Estate planning, probate, trust, guardianship, litigation and associates tax consequences FAQs.

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 Cody & Linde, PLLC to get your questions answered.

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  • Is the procedure the same for challenging a will or a trust?

    There are some important differences when challenging a will or a trust. First, for a will to be valid you must have an original will and that will must be deposited with the court before the will can be admitted to probate.  If you do not have the will, then absent a procedure to prove a lost will, the decedent is presumed to have destroyed a will in his or her possession, and the decedent will be deemed to have died without a will.  If you are contesting a will, you cannot have a jury trial and the contest is done in front of a probate judge.

    To challenge a trust you must file a complaint in the civil division of the circuit court and you proceed under the rules of civil procedure. This means you must obtain a summons and serve the defendant(s).  Further, losing the original trust does not imply the trust was revoked.  

    If you have to challenge a will and a trust signed at the same time, be careful that the will does not have a provision that reconstitutes the trust.  We have seen lawsuits seeking to challenge the validity of a trust when the plaintiff fails to challenge a will in a timely.  If the will is then deemed valid and the will reconstitutes the trust, the trust challenge will be over before any evidence was obtained.  Probate litigation and trust litigation are complicated and your chances of success will be improved by having an expert in wills, trusts and estates to guide you.  For more information contact Florida Bar Board Certified Wills, Trusts and Estates attorney Matthew A. Linde today at 239.939.7100.

  • 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!

  • 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.

  • 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.

  • 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.

  • My mom died after being married to my dad for many years; (2) soon after mom died a much younger woman (Liaretta) started following dad around; (3) eventually just before dad diedhe changed his will and made Liaretta the personal representative of the will; (4) we have filed a petition to revoke the will, but we have discovered that the vast majority of assets were transferred to Liaretta before dad died. We are concerned that by the time we get to trial on the will contest, Liaretta will have spent or transferred the funds she duped dad into transferring to her before he died. What can we do?

    Generally, assets that were transferred before the decedent's death can be set aside or revoked based on the same grounds that a will could be set aside.  Those transfers could be set aside (an action for rescission) based on fraud, undue influence, mistake or lack of capacity.  Another option is to initiate a cause of action to establish a constructive trust.  However, the standing to bring these actions belongs to the personal representative.  What does one do if the personal representative is the abuser?  First, the litigant could petition the court to appoint an administrator ad litem.  Generally, an administrator ad litem is appointed by the court when the personal representative has an interest that is adverse to the estate (such as when the personal representative sold assets from the decedent before he or she died).  Another option is to petition to remove the personal representative based on a conflict of interest with the estate. 

    Further, the litigant always has the option to petition the court to issue a temporary injunction with or without notice freezing the assets transferred to Liaretta.  However, courts are generally hesitant to issue this type of injunction.  Further, the litigant has to follow a specific procedure that can become expensive.  It should be obvious that it is critically important to have an advocate who is very proactive in discovering assets that may have been taken from the decedent before he died.  Contact Linde Law Group           

  • What types of litigation could involve the probate estate of a deceased person?

    When someone dies in Florida with assets titled in their own name (as opposed to assets held in trust, in joint tenancy with right of survivorship, in a tenants by the entirety, in a pay-on-death or transfer-on-death account) those assets generally cannot be transferred except through a probate proceeding.  The court appoints a personal representative to take charge of the decedent's property.  The personal representative has many different duties under Florida law.  Thus, litigation can involve who is the personal representative.  When a will has been properly executed with an attestation clause, then generally the court must appoint the person nominated in the will if they are otherwise qualified.  However, if there is no will, then before a person can be appointed personal representative; all individuals with an equal right to be appointed must be noticed of the proceeding by certified mail (commonly referred to as “formal notice”). 

    Even if a will is properly executed, a beneficiary under the will can challenge the will within three months after that person has received a notice of administration from the personal representative.  Will challenges can involve, mistake (although not mistake of the inducement), insane delusion, undue influence or lack of capacity. 

    A properly executed will can be ambiguous if the will was not written very well.  There can be latent ambiguities or patent ambiguities.  Thus, litigation can involve a proceeding to interpret that meaning of a phrase in a will.

    One of the first tasks of a personal representative is to inventory the assets of the estate.  Once this is done, the personal representative files an inventory with the court and serves the inventory on the beneficiaries.  If the beneficiaries disagree with the inventory, then litigation can result from objections to the inventory.  Sometimes there are claims that before the person died, that person was manipulated by someone determined to steal money.  This happens a lot in Florida.    

    Once a personal representative has been appointed, the personal representative must send out a notice to creditors.  The notice to creditors is published and creditors have ninety days (90) days to file a creditor claim.  If the creditor is “reasonably ascertainable” to the personal representative then the personal representative must send that creditor a notice and the creditor has the later of thirty (30) days from the notice or ninety (90) days from the original publication to file a claim.  If the creditor files a claim, then the personal representative may object to the claim.  If that happens, the creditor generally has thirty (30) days to file a lawsuit on the claim.  Thus, litigation can involve creditor claims. 

    When the creditors have been paid, tax returns have been filed and the estate is ready to close, the personal representative must serve an accounting on all beneficiaries unless waived.  Litigation can result from objections to the accounting if the personal representative wasted assets or paid attorney too much money et cetera. 

    These are just some examples of issues that can result in probate litigation.  Please contact Linde Law Group today to answer any questions that you have.  For more information contact Florida Bar Board Certified wills, trusts and estates expert Matthew A. Linde at 239.939.7100 or 844.357.0572 today!

  • But the probate/trust attorney told me that I do not need my own attorney. Is that true?

    We have seen some of the biggest problems develop from this simple question.  The context of this question is that you are a beneficiary of a trust or estate.  You called the attorney to ask him/her some questions, and the paralegal or secretary told you that your own attorney would just increase the cost.  It is possible that could be true, but remember that the trust/estate attorney does not represent you.  The trust/estate attorney represents the personal representative/trustee.  If the attorney is knowledgeable, then that attorney will know that there is case law that suggests that the attorney has a fiduciary duty to the beneficiaries as well as the personal representative or trustee.  But often what happens is that the attorney for the personal representative/trustee is not that knowledgeable, and that attorney who purportedly represents the personal representative/trustee ends up acting as the representative for the personal representative/trustee in their individual capacity.  This can result in the attorney taking positions that are directly adverse to your interests.  You will now know when this happens unless you have your own advocate.  You should never sign something if you do not understand what you are signing and the larger the estate/trust the more important it is that you have someone that can advise you whether the estate/trust is being administered correctly.  We have seen beneficiaries lose millions of dollars because the beneficiaries trusted the attorney for the estate/trust and signed a document waiving important rights or failed to assert claims in a timely manner.

  • My mom died in Fort Myers, can I contest the will my mom executed just before she died?

    A “will contest” is generally a proceeding under Chapter 733 of the Florida probate code to have all or part of a will that has been sent to the court for a probate declared void.  For example, assume that Jane has two siblings: Mean and Greedy.  Mean and Greedy were able to have mom change her will just before she died leaving all of her probate estate to Mean and Greedy and cutting out Jane except for a gift of $1,000.00 out of a two million ($2,000,000.00) dollar estate.  Mean and Greedy file a petition to have the will admitted.  Because the purported will names Mean and Greedy as the personal representatives, Mean and Greedy do not have to send the petition for probate to Jane before sending it to the court.  If the will was signed by mom, two witnesses, and if the will has an attestation clause, then the probate court will admit the will to probate usually after requesting a bond, but without noticing Jane. Once the will is admitted, Mean and Greedy are required to send a Notice of Administration to (1) the surviving spouse if there is one, (2) beneficiaries, (3) the trustee of a revocable trust, (4) individuals entitled to exempt property.  Once Jane receives the Notice of Administration, Jane has three months to object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court.  If Jane did not receive a Notice of Administration, then other limitations apply.