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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What is a contract, and what are the essential elements of a contract?
According to Black's Dictionary (Ninth Edition), a contract is "an agreement between two or more parties creating obligations that are enforcable or otherwise recognizable at law. A contract is a promis, or a set of promises, for breach of which the law gives a remedy, or the performance of which the law in some way recognized as a duty."
There are many volumes written on the term contract. Basically, to create the agreement, there must be a offer to contract, and acceptance of the offer, and consideration between the parties. Thus, a contract is a agreement. The contract can be oral or in writing, but obviously a contract is much easier to enforce if it is written. For more information, contact Linde Law Group today.
What is a "will," and what exactly are the requirements I have to follow to execute a valid will in Florida?
A "will" is a defined term in the Florida Probate Code. Under §731.201(40) a will "means an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person's property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will."
Generally, the will execution problems that I see arise when a will is executed by someone other than a licensed attorney. Given that the procedure to execute a will is also governed by Florida statues, the process is easy if you simply follow it. Florida statute §732.501 states the following:
Every will must be in writing and executed as follows:
(1) (a) Testator's signature.
1. The testator must sign the will at the end; or
2. The testator's name must be subscribed at the end of the will by some other person in the testator's presence and by the testator's direction.
(b) Witnesses. --The testator's:
1. Signing, or
a. That he or she has previously signed the will, or
b. That another person has subscribed the testator's name to it,
must be in the presence of at least two attesting witnesses.
(c) Witnesses' signatures. --The attesting witnesses must sign the will in the presence of the testator and in the presence of each other.
(2) Any will, other than a holographic or nuncupative will, executed by a nonresident of Florida, either before or after this law takes effect, is valid as a will in this state if valid under the laws of the state or country where the will was executed. A will in the testator's handwriting that has been executed in accordance with subsection (1) shall not be considered a holographic will.
(3) Any will executed as a military testamentary instrument in accordance with 10 U.S.C. s. 1044d, Chapter 53, by a person who is eligible for military legal assistance is valid as a will in this state.
(4) No particular form of words is necessary to the validity of a will if it is executed with the formalities required by law.
(5) A codicil shall be executed with the same formalities as a will.
For more information contact Linde Law Group today.
My mother just died and my father predeceased him. There are assets in my mothers name alone. How do I get authority to distribute the assets according to my mothers will?
If there is a properly executed will, then the person named in the will has priority to be appointed as long as the named individual is not otherwise disqualified [There are several ways to be otherwise disqualified. For example, felons are otherwise disqualified, and so are minors, those deemed mentally unfit or nonresidents unless related by blood or marriage to the decedent.] from serving as personal representative. The courts have very limited authority to disregard the will and appoint someone else if the appointed person is qualified.
The named person files a petition for administration, a designation of resident agent and an oath, the will to be admitted, the filing fee and the order admitting the will. A petition to waive bond can also be filed, but in Lee County the court will probably require some type of bond, and the judge has sole discretion to determine whether a bond is required. If a bond is required, the amount of bond will be dependent on the assets listed on the petition for administration. A bond of $100,000.00 would probably cost $150.00 to purchase and there are companies that routinely issue probate bonds. Large bonds will require a credit check upon purchase, and bad credit can prevent the person named in the will from obtaining a bond, which means that somebody else has to be appointed. The person named in the will once appointed by the court is identified as the personal representative [in some other states this person is identified as the executor or executrix].
The person named in the will has priority to be appointed. Thus, under the Florida Probate Rules that person does not have to notice anybody when the petition for administration is filed with the court. However, assume that the person nominated in the will as personal representative has died and there are four siblings [You would have to follow the same procedure if there was no will and someone died and there were several individuals of equal degree of consanguinity to the decedent.]. Now assume that one sibling wants to be appointed personal representative. That person has to serve via certified mail a copy of the petition on the other siblings at the time that the person filed the petition for administration with the court. If none of the siblings object, then twenty days after each sibling was served with a copy of the petition for administration, the decedent’s child seeking to be appointed can file the proof of service [the green card for certified mail] with the court and the court will appoint that person by signing the order previously filed with the petition for administration.
If a bond is required by the court the person appointed as personal representative must purchase the bond and file the original bond with the court. Then the court will sign “Letters of Administration.” The Letters are the personal representative’s authority to act on behalf of the decedent. That wasn’t so bad was it? For more information contact Linde Law Group
How do I transfer tangible personal property to a trust, and why is it important that I understand the answer to this question?
This is an important question. After the death of the creator of a trust (identified after death as the "decedent"), if tangible personal property (i.e., jewelry, artwork, furniture, collections et cetera) has been transferred to a revocable trust, then the successor trustee of the trust will control the tangible personal property. However, if the tangible personal property has not been transferred to a trust, then upon the decedent's death, the disposition of the tangible personal property will be governed by the decedent's will. The will and the trust may not transfer the tangible personal property to the same individuals, and this can be a hotly contested issue if the value of the tangible personal property is significant. Thus, the best way to ensure that the decedent's intent to vest the ownership of the tangible personal property to the trust is clear is to execute a bill of sale. The bill of sale should identify the tangible personal property transferred to the trust with sufficient detail so that there are no problems understanding what property is transferred to a trust and what property is not transferred to the trust. It is also a good idea for the trustee to confirm receipt of the tangible personal property.
Without a bill of sale, it will be very difficult to prove that the decedent intended to transfer his or her tangible personal property to the trust. For additional information, contact Linde Law Group today!
I have heard that when I die I can dispose of my tangible personal property with a separate written statement. Is that true? If I can do this whatare the details.
When a relative dies (hence the "Decedent"), there is always an issue concerning what happens to the relative's tangible personal property. Tangible as the name implies is what you can see and touch. Examples of tangible personal property include the furniture, the Decedent's jewelry, guns, coin collections, paintings et cetera. Disputes can arise when a Decedent dies and the tangible personal property has not been secured. Frequently, potential heirs have the view that "finders are keepers" and valuable tangible personal property can disappear. What is interesting is that the personal who converted the tangible personal property always has justified why that person is "entitled" to the property.
Tangible personal property is treated somewhat uniquely under the Florida Probate Code. For example, under Florida Statute §732.515:
A written statement or list referred to in the decedent's will shall dispose of items of tangible personal property, other than property used in trade or business, not otherwise specifically disposed of by the will. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be prepared before or after the execution of the will. It may be altered by the testator after its preparation. It may be a writing that has no significance apart from its effect upon the dispositions made by the will. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing.
This allows a person to on a piece of paper to dispose (transfer) their tangible personal property without going through all the requirements of signing a will. There are several requirements here. First, the written statement or list must be referred to in the decedent's will. If the statement is not referred to in the Decedent's will then any statement disposing of the decedent's tangible personal property must be executed in the formalities of a will (i.e., the executor executes the will at the end in the presence of two witnesses who then sign the will in the presence of the testator and in the presence of each other). But what if a written statement is referred to in the decedent's trust? Then if the written statement is not executed with the formalities of a trust, then the statement is void unless the statement is also
Is there more than one type of probate proceeding? I mean what if my dad/mom left me with a small estate consisting of a house and $50,000.00?Do I have to go through a regular probate or is there an abbreviated option?
Section 735.201 of the Florida Probate Code provides that an estate may qualify for summary administration if it meets the following requirements: (a) the value of the entire estate subject to administration in this state, exclusive of property exempt from creditors' claims, must not exceed $75,000, or, the decedent must have died more than two years beforehand; and (b) if the decedent has left a valid will, the will must not direct formal administration in accordance with Fla. Stat. Ch. 733.
The estate must qualify under Fla. Stat. § 735.201 for summary administration. If it does not meet the requirements of that section, then the probate court is without authority to order summary administration. An order of summary administration that is entered based upon some error in procedure may be vacated, but unlike a void judgment, it has legal force and effect unless it is vacated.
Because exempt property, and real property located outside Florida are not included within the computation, summary administration is available when the value of the decedent's other assets does not exceed $75,000. Furthermore, since the decedent's homestead property is not defined as an asset of the estate (See Florida Statute §733.607) a beneficiary can petition the court for summary administration even if the decedent's homestead is worth several hundred thousand dollars. Realize if the estate has creditors, then in addition to a Petition for Summary Administration, the beneficiary will want to file a homestead petition and publish notice to creditors if less than two years has passed since the decedent died.
Summary administration is instituted by the filing of a petition. The Petition for Summary administration must be signed and verified by the surviving spouse, if any, and any beneficiaries seeking the relief. See Fla. Stat. § 735.203(1). However, a petition for summary administration is not required to be signed by a beneficiary who will receive a full distributive share. The petition for summary administration must be filed in the circuit court in which venue for the probate proceedings is proper. Venue, for purposes of summary administration, is determined in the same manner as for formally administered estates. As you might have guessed, a summary administration costs less than a regular administration, and is usually much quicker. For more information contact Linde Law Group today!
Why can't I just tell the judge what happened and get this lawsuit over with?
Believe me, our justice system is the best in the world. However, justice in the United States does not move at light speed. I have had many individuals not familiar with the process ask me the question listed above.
Understand that the process we have in litigation has evolved over many years. Lawsuits in probate and guardianships (identified as adversarial proceedings), and civil (trust litigation et cetera) lawsuits are all governed by the Florida or Federal Rules of Civil Procedure. The process starts with a complaint or petition, an answer (if no motion to dismiss is filed) an affirmative defenses (or maybe also a counterclaim) and a reply (a pleading that identifies why affirmative defenses are legally insufficient). This process can take months to complete because filing a motion to dismiss can take months to resolve.
Once the pleadings are closed (i.e., the process above is complete), a party can always seek to amend their pleadings, which can delay the process further. However, if no one amends the pleadings, then the next step is to conduct discovery. Discovery is generally conducted through examinations in guardianship incapacity proceedings, written questions, requests to produce documents and depositions. This process itself can take months. Once a party has conducted discovery, the next step is to notice the matter for trial in a civil proceedings or set the matter for an evidentiary hearing in a probate or guardianship proceeding.
Along the way, if a party wants the court to take some action, the party files a motion or petition. Because our courts are very busy, it may take a month or two to set the matter for hearing. When the matter eventually gets to trial, then the judge or jury hears all the evidence. Because the typical civil judge (at least in Lee County state courts) has over 5,000 (note a typo) matters assigned to him or her at any given time, judges do not take the time to review a file before the matter is set for a hearing in front of the judge. Each judge simply does not have the time. For more information please contact Florida Bar Board Certified wills, trusts and estates expert Matthew A Linde, P.A. today at 239.939.7100.
In Fort Myers, Cape Coral or Naples, what is an emergency temporary guardianship?
If you have decided that it is necessary to petition the circuit court to have someone, usually a close family member, declared incapacitated so that you can establish a guardianship, a common question is how long will this take?
The length to time depends on the judge that the case is assigned to. For example, in Lee County, there are five different civil judges. The time it takes: (1) to appoint an attorney for the alleged incapacitated person, (2) to appoint three examining committee members to examine the alleged incapacitated person, (3) for the examining committee to examine the alleged incapacitated person and file a report with the court, and (4) schedule the hearing at a future date after the examining committee reports are filed varies from four to eight weeks depending on the specific judge's work load.
However, what happens if you need something done right now?
Florida Statute §744.3031 describes the situations that a judge may appoint an emergency temporary guardian for an alleged incapacitated person. The court will hear a petition to appoint an emergency temporary guardian anywhere from two days to several weeks. The advantages of an emergency temporary guardianship are: (1) if a greedy family member is exploiting the alleged incapacitated person, greedy person does not have to be notified of the emergency hearing, (2) you do not have to wait for the examining committee to evaluate the alleged incapacitated person, and (3) the emergency guardian can be appointed much quicker.
However, you must file a petition to determine incapacity and a petition to appoint plenary or limited guardian before you can file a petition to appoint an emergency temporary guardian. The emergency temporary guardian can be for the person or property of the alleged incapacitated person. However, under §744.3031(1): “The court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person's property is in danger of being wasted, misappropriated, or lost unless immediate action is taken.” Thus, your attorney needs to collect admissible evidence that can be presented at a hearing to appoint an emergency temporary guardian. The hearing on an emergency temporary guardian can last anywhere from a few minutes to several hours. However, sometimes it is absolutely necessary to have an emergency temporary guardian appointed. For more information contact Linde Law Group today!
What is an ancillary administration, and when is an ancillary administration necessary?
Ancillary or supplementary administration is usually necessary when the decedent [the person who died owning the property] dies owning property within the state of Florida, and a primary or domiciliary probate has been commenced in another state. Since so many banks have merged, usually an ancillary administration is only necessary when the decedent died domiciled in another state owning real property or a closely held business within the state of Florida. The same is true if the decedent died in Florida owning property in another state.
Ancillary administration is commenced by filing a petition in the Florida circuit court, or for a decedent domiciled in Florida, in the state where the decedent’s property is located. In Florida, the petition must be accompanied by authenticated [this means each copy must have a court seal from the court where the document was filed by the clerk of courts stating it is a certified or authenticated copy of the original] copies of the foreign will, the petition for probate and the order admitting the will to probate and appointing the personal representative. According to §734.104 “If no petition is required as a prerequisite to the probate of a will in the jurisdiction where the will of the nonresident was probated, upon proof by affidavit or certificate that no petition is required, an authenticated copy of the will may be admitted to record without an authenticated copy of a petition for probate, and the order admitting the will to record in this state shall recite that no petition was required in the jurisdiction of original probate.”
If the petitioner has been nominated as the personal representative or executor [in Florida the term personal representative is used, but in many other states, the term executor is used instead] in the foreign state, then when the proper documents are filed, the foreign personal representative will be issued Florida Letters of Administration [“Letters” is simply a piece of paper that says "Letters of Administration" and also is signed by the judge and authenticated with the proper seal from the clerk of courts] after a bond, if required by the court, has been filed with the court. Once the foreign personal representative receives letters of administration, then the probate proceeds as any other Florida probate.
There are abbreviated procedures available when the gross value of property in Florida is less than $50,000.00 or when the ancillary procedure is commenced more than two years after the date of the decedent’s death. For further information, please contact Wills, Trusts and Estates Florida Bar Board Certified expert Linde Law Group today at 239.939.7100!
I have a mom in Fort Myers. What does an attorney who practices elder law actually do?
This is a good question. As the population grows, I have seen more and more attorneys claim to practice “elder law.” The next time an attorney tells you that, ask him or her exactly what “elder law” is. Since the attorney practices “elder law” one would hope that attorney can tell you what elder law is. However, because you read this Frequently Asked Question, you know the answer - at least according to the Florida Bar. Elder law is a term defined by Section 6-20.2(a) of the Rules Regulating the Florida Bar as:
“Elder law means legal issues involving health and personal care planning, including: advance directives; lifetime planning; family issues; fiduciary representation; capacity; guardianship; power of attorney; financial planning; public benefits and insurance; resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning; probate; nursing home claims; age or disability discrimination and grandparents' rights. The specialization encompasses all aspects of planning for aging, illness, and incapacity. Elder law clients are predominantly seniors, and the specialization requires a practitioner to be particularly sensitive to the legal issues impacting these clients.”