About a month ago, this blog touched briefly on the fact that a recent case in one of Florida's appellate districts had pointed out the fact that settlement agreements during probate cases should be specific in what representations the parties relied on in coming to the agreement. As you may recall, the reason for this is that oral representations made during the settlement process are not admissible later if they are determined to be incorrect, as probate settlement negotiations are privileged in Florida.
There are two basic types of legal standards that are used when litigating legal issues: statutory law and case law. Statutory law consists of the laws passed by legislatures, be they federal or state, and signed by the executive; i.e. the president or governor. Case law, on the other hand, is comprised of the accumulated interpretations of courts, especially appellate courts, of the statutes on which the law is based as applied to certain real-life situations.
Previously, this blog has discussed those who are named personal representatives or executors of someone else's estate and the fiduciary duties he or she owes to the estate's beneficiaries. Meaning, a personal representative must behave loyally and in the best interests of the estate's beneficiaries. But what kind of behavior might be cause to head to probate court due to breach of the fiduciary duty? First, let's review where the fiduciary duty comes from. Florida Statute 733.609 provides that the duty of a personal representative is the same as that of the trustee of an express trust under the law. Thus, the fiduciary duty of a personal representative is a statutory one.
In Florida finding a person born in the state can seem to be harder than finding a non-native. Further, Florida is a popular destination for people sometimes called 'snowbirds,' who are usually retired and live part of the year here and the rest of it elsewhere. As a result, many individuals who die here may also own real property in other states or countries. So, when the will of such a person is probated here in Florida, can the probate judge direct a personal representative to convey out-of-state property to a beneficiary?
As we have discussed before, "undue influence" is one of the most common allegations when people contest a will in Florida. Because of this, both the legislature and the state supreme court have weighed in on the issue at various times. Below is a very brief description of their various actions.
This space has discussed several times the way wills can be used as a part of a comprehensive estate plan. We have touched on the reasons the will document should be specific in its bequests and some of the language that can be used to give voice to a clear intent of the testator. We have also pointed out some of the reasons an heir or other interested party may challenge the validity of all or part of a will in probate court. So, is there any way to write a will to attempt to avoid the possibility of litigation after one's death?
We've discussed various forms of estate planning in this blog, including the use of both trusts and wills in attempting to give voice to the intent of the testator (i.e. the person whose estate is in question). We have also talked about the form wills need to take to be valid, and some of what may cause a will to be contested in probate court. But what happens if someone who is supposed to inherit probate assets dies before the testator?
Perhaps you have a family member, loved one or friend who has recently passed away. When you look through their things, you find their will. While reading it, you find (hopefully, not to your surprise), that you have been named the executor of the estate. You are, of course, honored that you are trusted enough to be given such a responsibility, but then your thoughts turn to what, exactly, this means. What do you have to do? What are your duties, and where can you find help?
We touched previously in this space on talk that the Florida Legislature may consider a law giving people more control over who can access their online assets when they die or become incapacitated. That possibility has been given more concrete form in a bill introduced to the legislature by State Senator Dorothy Hukill. While the bill still must get through committee hearings before being presented to the entire chamber, it is a step forward in the process of clarifying how digital assets should be handled by personal representatives and guardians.
The Uniform Laws Commission attempts to promote stability and consistency in state statutes by promulgating uniform laws that states can use in their own legislative processes. The commission has delved into the area of trusts and estates by publishing a "Uniform Probate Code." In an attempt to keep up with common practices in the area, a section of the Uniform Probate Code addresses the use of so-called "trust protectors," a convention that has become more popular in recent years. Florida has modeled its own trust protector statute on this section. The question then arises, what is a trust protector?