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Florida Probate, Trust and Estate Blog

Florida Surviving Spouse’s Elective Share Earns Interest, Not Charged Fees

A surviving spouse’s elective share in Florida is often the subject of litigation in the Florida Probate Court.  Under Florida statutes, a Florida surviving spouse has the right to a share of the elective estate of the decedent.  A surviving spouse’s elective share is defined by Florida statute as an amount equal to 30 percent of the elective estate.

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Florida Personal Representatives and Curators Cannot Serve Concurrently

In Gordin v. Estate of Shelley, the Florida personal representatives of the estate of Shelley Wilensky appealed the Florida probate court’s order appointing a curator for the estate, without the personal representatives’ letters of administration being revoked or suspended.

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Notarial Wills of Florida Nonresidents Valid Only If Signed By The Testator

In Malleiro v. Mori, Florida’s Third District Court of Appeal considered the competing wills of a nonresident – one will executed in New York, and one will executed in Argentina - to determine which will validly devised Decedent’s estate.  This issue is particularly important in Florida, where many people from foreign countries and other states come to enjoy their retirement years. 

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Evidence Required to Determine Possession of Property During Florida Probate

One of the hallmark principles of estate administration is the personal representative’s right to take possession of all of the decedent’s property.  Fla. Stat. § 733.607(1).  However, this provision of the Probate Code also provides that such property can be left with the person presumptively entitled to it.  In the face of this language, disputes arise as to (i) whether property is, in fact, the decedent’s property; and (ii) whether someone other than the personal representative has a right to possession of the property during administration.

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Florida Known Creditors Denied Notice Have Two Years To File Claims  

In Jones v. Golden, the Florida Supreme Court settled a disputed issue amongst the Florida District Courts of Appeal — Is the claim of a creditor who is not served with a copy of the notice to creditors but whose claim is known or reasonably ascertainable barred under section 733.702(1) if not filed within three months after the first publication of the notice to creditors absent an extension, or is the claim timely if filed within two years of the decedent’s death under section 733.710? The now settled law of Florida is that the claim of a known or reasonably ascertainable creditor who was never served with a copy of the notice to creditors is timely if filed within two years of the decedent's death.  Here’s how the Florida Supreme Court got there.

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Florida Guardianships and Less Restrictive Alternatives to Guardianship

Florida guardianship statutes, the Florida probate rules, and the general rules of Florida civil procedure often operate together to dictate the rights and deadlines that a party has in a given proceeding. In Adelman v. Elfenbein, the Florida appellate court determined that the Florida guardianship statutes and related Florida probate and procedure rules deprived the Florida guardianship court of jurisdiction to enter an order appointing a plenary guardian of Burton Adelman.

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Florida’s Slayer Statute and Undue Influence Statute Strictly Construed

In Fiel v. Hoffman, the Florida appellate court decided that the Florida Slayer Statute and the Florida probate code statute regarding the effect of undue influence on the validity of a will mean what they say.  This Florida probate case involved the probate of Fontainebleau Miami Beach heir Ben Novack’s estate.  Ben’s wife, Narcy, was convicted of his murder.  Narcy was also responsible for the death of Ben’s mom.  Narcy had a daughter from a prior marriage, and the daughter had two sons.  The daughter and her sons were named as beneficiaries of Ben’s will if Ben’s mother and Narcy did not survive Ben.

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Florida Probate Court Has No Jurisdiction Over Out-Of-State Real Property

It is not uncommon for a resident of Florida to own real property in another state.  In Brown v. Brown, the Florida appellate court reminds us that a Florida probate court does not have jurisdiction over real property in another state, and thus cannot order the partition and sale of real property located outside of Florida.

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Interested Persons In Florida Guardianship Entitled to Due Process

Due process is a common issue that comes up in cases concerning all areas of Florida law.  In Flegal v. Guardianship of Peter R. Swistock, Sr., due process rights were at issue in the context of a Florida guardianship involving the joint titling of stocks between a ward and his daughters.

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Congratulations to Dan Bushell, Esq. for Prevailing in Carroll v. Israelson

A hearty congratulations is extended by Clark Skatoff, P.A. to Daniel Bushell, Esq. and Bushell Appellate Law P.A., for the recent victory in the Fourth District’s decision, Carroll v. Israelson, No. 4D13-4532 (Fla. 4th DCA July 1, 2015).  In Carroll, the Court held that any provision in a will in favor of a divorced spouse is treated as if the surviving former spouse predeceased the decedent. Under Section 732.507(2), Florida Statutes, the provision in favor of the surviving former spouse becomes void at the time of the dissolution of marriage, not at the time of the decedent’s death.

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