Most probate proceedings are uncontested family affairs. In almost all respects that’s a good thing. There’s one downside, however. Because there’s no one contesting anything (and thus keeping everyone on their toes), mistakes happen.
For example, a family might consent to a homestead order that’s actually contrary to the decedent’s will. If everyone impacted by the mistake agrees to undo it (or live with it), no harm no foul. On the other hand, fixing a mistake when there’s conflict can be tricky … as demonstrated in the following case.
Mullins v. Mullins, — So.3d —-, 2019 WL 2396753 (Fla. 5th DCA . June 07, 2019)
In this case a woman died survived by three adult children, two sons and a daughter. The decedent left instructions in her will that basically allowed her two sons to live in her home for as long as they got along, and when both decided they’d had enough, the house was to be sold and the proceeds split as “agreed” by her three children. This was a problem waiting to happen.
On appeal the 5th DCA construed mom’s will as devising a life estate in her homestead property to her two sons and a remainder interest to all three siblings. During the probate process the three siblings consented to entry of a homestead order that devised the property to all three siblings equally, omitting any reference to the life estate. That was a mistake.
Shorty after mom died one of the brothers “made it impossible for anyone else to occupy the property” prompting his two siblings to (very reasonably) seek a partition order from the probate judge forcing a sale (thus allowing everyone to peaceably go their separate ways). The brother who was causing the conflict cried foul, pointing to the life estate he’d inherited in the house under his mom’s will, which barred the kind of sale his siblings were now attempting to force on him. The two siblings that wanted the partition order ultimately prevailed at the trial-court level on the grounds that objecting-brother’s consent to the faulty homestead order was the equivalent of a written agreement under F.S. 733.815 waiving his life estate.
Does a signed “consent” = “written agreement” to altering your share of an estate? NO
It’s perfectly legal and acceptable for estate beneficiaries to enter into agreements among themselves divvying up inheritances any way they want; it’s their property, they can do with it as they please. And F.S. 733.815 provides a statutory vehicle for getting these deals done while the probate proceeding remains ongoing (as long as they’re in writing). So does a signed “consent” to a homestead order that’s at odds with the decedent’s will amount to a binding “written agreement” under F.S. 733.815 waiving property rights? NO, so saith the 5th DCA:
While “[h]eirs and beneficiaries may formally agree to alter their prescribed interests in an estate, … such an agreement must be in writing and comply with section 733.815, Florida Statutes.” Clifton v. Clifton, 553 So. 2d 192, 194 (Fla. 5th DCA 1989) (footnote added). The consents signed by Robert, Kenneth, and Carla state that each beneficiary “hereby consents to the Petition to Determine Homestead Property; consents to the entry of an Order Determining Homestead Property; waives service of Notice of Hearing upon the undersigned and consents to entry of such order ex-parte.” Conspicuously missing is any reference to an agreement to alter the interests, shares, or amounts to which Robert, Kenneth, and Carla are entitled under the will. See § 733.815, Fla. Stat. (2011). And as conceded by counsel, no contract between the three exists that would alter the interests, shares, or amounts to which they are entitled. Id. As such, the consents signed by Robert and Kenneth do not constitute an agreement to reject their life estates. The consents simply establish that the siblings consented to an order confirming their homestead exemption and nothing more.