If you’re working with the trustee of an irrevocable trust that needs fixing for some reason, your first thought should be to simply re-write the thing by using F.S. 736.04117, Florida’s trust “decanting” statute. Decanting allows you to re-write …
Can you sue a fictitious “John Doe” instead of a deceased party’s actual court-appointed personal representative?
To be clear, under Florida law there’s no such thing as a separate legal entity known as an “estate.” If you want to sue, get paid from, or transfer property to an “estate,” all of that needs to happen via …
What’s a “caveat” and why should probate attorneys care?
There are all sorts of reasons why you may not want to commence a probate proceeding, but still have concerns about someone else getting the jump on you by secretly probating an invalid Will. In those cases you’ll want to …
Jury trials in Will contests
In Florida we don’t have jury trials in will contests. But if you’re creative and the facts line up just right, your inheritance case could be decided by a jury if it’s framed as a “tortious interference with an expectancy” …
Is a homestead order entered by a probate judge lacking jurisdictional authority binding on third parties?
Sometimes third parties who had no knowledge of a family’s probate proceeding and wouldn’t have had standing to intervene anyway, are nonetheless adversely impacted by legally improper (and usually self serving) orders entered in these proceedings.
In a lot of …
Are Florida’s courtroom doors closed to older claimants seeking to establish paternity in probate proceedings, but wide open for everyone else?
If a man dies intestate, any children he had while married are automatically considered his heirs, and entitled to a share of his estate as determined by F.S. 732.103. Not so for out-of-wedlock children. If those heirs want …
Can “excusable neglect” get you an extension to file a late homestead election?
One of the basic building blocks of Florida probate law is the mandatory life estate in homestead property all surviving spouses are entitled to under F.S. 732.401(1). Life estates are supposed to protect surviving spouses by guaranteeing them the …
Are the rules for personal jurisdiction different in probate?
Non-resident parties can’t be pulled into Florida litigation if they don’t have the kind of “minimum contacts” with this state necessary to satisfy our long-arm statute requirements under F.S. 48.193, and the constitutional due process requirements articulated by our …
Can a Florida probate judge order you to turn over property located in Canada?
In contested probate proceedings, if someone’s asserting a jurisdictional defense it’s probably coming up in one of two contexts. Either your judge lacked personal jurisdiction over one of the litigants (see here, here, here for past examples), or …
Must all probate disclaimers of real estate contain legal descriptions?
Lee v. Lee, 263 So.3d 826 (Fla. 3d DCA January 23, 2019)
A “disclaimer” is essentially a refusal of a gift or bequest, and you typically see them in the context of postmortem estate planning. For example, if …