A Struggle of Wills: How to force the Custodian of a Will in Florida to Provide a Copy

Just as in the case of Smokey Susan, I encounter many clients initially because someone else claims to have the last Will of a recently deceased which the client believes impacts their interests one way or the other.  Under Florida law, if you are the custodian of the original Will of an individual, you are required to deposit the original Will with the clerk of the court in the county where the deceased last resided, within 10 days of your notice of the death.  Note that the time is measured from notice of the death to the custodian, not from the date of death.

Most people are totally unaware that this law exists.  Many people choose to ignore the law, not always for nefarious purposes.  I have many clients who choose not to deposit their deceased's Will because we have determined that there is no need for probate and not filing the Will keeps the terms totally private.  The only downside to this course of action is if the Will is lost and a subsequent probate is needed then we are either left with the expensive task of proving a copy of the Will or in the worst case scenario, a decedent who is rendered intestate.  Most people are willing to take that risk, either for privacy concerns or out of sentimentality.

Some people refuse to provide a copy of the Will, or deposit the original with the clerk for the wrong reasons.  Most of the justifications for not depositing the Will with the clerk are just rationalizations which can be summed up in one word:  Greed.  Unfortunately, the old estate planning adage that "blood is thicker than water, but money is thicker than blood" is true.

When a party having the original Will refuses to deposit it with the clerk, or even provide a copy to my client, I make a demand for compliance with the statute by letter and serve it by certified mail, return receipt requested.  I usually set a 10 day deadline, tracking the notice provision of the statute.  Strictly speaking, the 10 day time period is not required nor is the demand letter.  But in practical terms, you need to show the court that you gave the custodian a chance to comply with the statute.  Otherwise, the first thing the custodian will claim is "I didn't know about the death" or "I didn't know about the statute."

The statute authorizes an action to compel production of the Will and after notice, for an award of attorney's fees and costs and damages associated with the failure to produce the Will.  Another reason to make the formal demand first is that even though the statute only requires petition and notice, in my experience in almost every situation like this, the court wants to see that this isn't the first opportunity the opposing party had to comply.  So, I would never walk into court after the opposing party produced the Will and expect an automatic award of attorney's fees and costs unless I could show the "pre-suit" demand had been made.  Only in a situation where my client is going to suffer immediate harm due to a failure to produce the Will would I even consider foregoing the pre-suit demand.  Even then, I would try to give at least a 24 hour demand first.   As far as damages go, there are no reported cases on the topic and I would not expect to receive such an award absent really egregious circumstances, or some very clear cut and unattenuated damages.

The way this really works is I send the letter and 99% of the time, the person takes the Will to the courthouse and files it with the clerk from whom I then obtain a certified copy.  In 19 years, I've only once had to actually file an action to compel production of the Will and I did it by filing a petition for administration as if the decedent was intestate and adding allegations regarding our demand and her failure to act.  Then I filed a separate motion in the probate to compel her to produce the Will. Unbelievably, she still failed to produce the Will. The court entered a second order, held her in contempt, and assessed attorney's fees and costs against her. Only then did she produce the Will.

The litigant in that probate tried every shady tactic out there to cut her nephew out of his one-half share of the estate.  She even tried to argue that jurisdiction was in Alabama, and that's why she did not have to produce the Will while at the same time alleging that the deceased was the owner of homestead property in Florida.  Since you cannot own a homestead in Florida and be a non-resident, this was the most ridiculous argument of all.

So, the take away from this post should be that if you have possession of a Florida resident's original Will, after they die and you know about it, you need to take it to the courthouse in the county in which they resided.  If you do not know about their death, once you receive a formal demand under the statute to produce the Will, produce it! No harm, no foul.  If you fail to act after notice and demand, eventually, you are going to have to pay someone's attorney's fees for taking you to court and that never ends well.  There is even the possibility of a damage award so the best course of action is to file the Will as soon as you know the testator/testatrix has died.

If you are on the other end of the equation, ask nicely first, then make a formal demand, then file the probate and a motion to compel.  If there are extenuating circumstances where you will suffer specific harm due to the failure to act, make those known to the custodian at every opportunity in order to strengthen your case for damages down the road.

Cheers everyone, it's the Weekend!

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Cariou v. Prince: A Long Overdue Update

One of my very first posts to this blog was supposed to be about a Louis Vuitton bag, but ended up being about a huge copyright case concerning appropriation art and the fair use doctrine.  The Cariou v. Prince case has made its way from the trial court (Southern District of New York) to the appellate court (Second Circuit), and is now back with the trial court.  The Second Circuit reversed the district court, and remanded the case as to five works for further consideration under the standards set forth in the Second Circuit's opinion.

For a detailed discussion of the Second Circuit's opinion, look to these articles:  Art in America Magazine, Hyperallergic (my favorite), NY Times, or the Gallerist.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Filing a Caveat in Florida Probate: What is it and Why do I need it?

A caveat is a pleading which any interested person (creditor, heir, or other party who meets the definition under Fla. Stat. Ch. 731.201(23)) may file with the Probate Clerk in the county in which the deceased resided. The purpose of a caveat is to put the world on notice of your particular interest in the estate, and to make anyone trying to open the estate serve you with notice first before anything happens.

For example, in the case of Smokey Susan, we filed a caveat in order to keep Melanie from opening Joe's estate without our knowledge.  When Melanie did file her petition seeking to be personal representative, the rules required her to serve Susan with formal notice.  The service of formal notice gave Susan 20 days to respond.  Thus, we answered the petition and filed our own pleadings, thereby framing the dispute up for the court and preventing Melanie from seizing control of Joe's estate. Without the caveat, we would have been entitled to notice (to Susan as the natural guardian of Tami), but given Melanie's prior misrepresentations to the funeral home regarding Joe's lack of living relatives, there is a good chance we would not have received notice.   We would have been left with the unenviable task of checking the clerk's website daily to see if Melanie had opened the estate, and we would have had to go through an entire additional set of pleadings just to get our interest before the court.

A caveat is a great way to make sure that you know when a probate is filed.  Many times, a parent will die and a dispute will arise between siblings.  Generally, one of the siblings will have control of the parent's will, and has had access to the parent's finances up until the death, but refuses to share the information with the other children.  There is a method to force the person in control of the will to file it with the clerk of court (look for that information in my next post), but if there's no reason to do so and you just want to make sure a probate does not happen without your knowledge, a caveat is your best bet. Not only does it serve your purposes well, the filing fee is relatively inexpensive and the cost of preparing a caveat should be minimal.



Julie



Copyright 2013 Julie Ann Sombathy All Rights Reserved

Your Funeral: Who Gets to Direct the Details

Last week I shared the story of an old client, Smokey Susan.  Susan originally came to see me because the funeral home would not let her direct the disposition of her ex-husband's remains since there was another person claiming that right, and no clear winner to the dispute.

Susan really had no claim to any right to bury Joe:  they weren't married, and the fact that she was the mother of Joe's only child (a minor) was not very persuasive.  If no one else had claimed the right to direct disposition, Susan would have been okay.  The problem was Melanie's claim that under Joe's will, she had the right to make disposition decisions.

How could the dispute over what to do with Joe's remains have been resolved? The best way to avoid a problem at the funeral home is to execute an Appointment of Agent to Dispose of Bodily Remains.  In this document, you can name an agent as well as a successor agent.  You can also be as detailed or as nonspecific as you choose.

For example, I have clients who have very specific wishes with respect to burial versus cremation.  Along those same lines, many clients have very specific wishes with respect to their place of burial, or the treatment of their ashes.

You can also outline the type of service, if any, you want held in addition to other details.  As examples, I will share excerpts out of two of my favorite "directives":

I.     "I am to be buried in the family plot at the farm in Alabama, in the space between my mother and grandfather and I am to be dressed in the blue silk kimono my second husband brought me back from the War."

II.    "I do not want any type of service at the funeral home, or viewing.  Please bury me next to my wife, and have the preacher give a graveside service for family only.  On the following Saturday night, host a night in my honor at American Veterans Lodge # and open a $500 tab for my friends."

Both of these people are gone now, and their agents did as instructed.

I strongly recommend this document for couples when their children are a "Brady Bunch" or if their children fight and argue.  Often, deep resentments surface after the death of a loved one, and for some reason it starts at the funeral home.  I've had many a phone call from a distressed widow or widower who has found out at the funeral home that the stepchildren have very different ideas about where their deceased parent should be buried.  The strangest one was the case where the deceased had divorced the mother of the stepchildren 30 years prior, but the stepchildren wanted him buried next to their deceased mother (his ex-wife of 30 years) her rather than his current wife of 20 years!

Another way to avoid this situation is to purchase a prepaid funeral plan.  This allows you to decide many of the details in advance, and pay for it.

Many people think that an instruction in their will regarding their burial will suffice, and fifty years ago this was true;  however, the will has to be admitted to probate and the personal representative appointed before the personal representative has the legal authority to carry out your wishes.  Consider the time involved in finding an attorney, an appointment, preparation of the pleadings, and waiting on the court to enter an order and issue Letters of Administration. Even in the best of times, you could be facing a delay of 2-4 weeks, and that is only if everyone involved is on the same page.  If there is a dispute about the will, or there is no will and a dispute among the heirs about who should serve as personal representative, the delay could be months in duration. That's a long time to wait.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

A Tale of a Terrible Client--Smokey Susan

CAVEAT: Even though a lot of details are public record, the names and relevant identifying details of all persons, as well as some of the facts, in this post have been altered in order to maintain any potential attorney-client privilege.

Once I had a client named Susan.  She was a real piece of work. Don't cry for her. She totally doesn't deserve it.

Susan came to see me about her ex-husband, Joe.  She was trying make arrangements for Joe’s funeral, and claimed that a  "floozy" bartender named Melanie was trying to take control. Why did Susan care? Susan had a young daughter, Tami.  Susan's ex-husband, Joe, was Tami's adoptive father.  Susan and Joe were married and divorced two times.  Tami came along in between the first and second marriage, and Joe adopted Tami when she was about 5. No one had the authority to dispose of Joe's remains:  he wasn't married, had no living relatives other than Tami, and Tami was not 18.

At first, Susan presented very sympathetically.  Joe was a drunk, horrible person.  The second divorce came about because Joe had molested Tami.  Susan just wanted to protect Tami's interests, and Melanie at the dive bar down the street from his home was trying to steal Joe's estate from his young child.  Melanie claimed to have a will, but she would not provide a copy to Susan or to me.  Because Melanie had a will (she did show it to the funeral home) and because Susan was also claiming the right to dispose of Joe's remains as Tami's parent, the funeral home literally put Joe on ice and told Melanie and Susan to come back with a court order.

The first thing I did was file a Caveat for Susan on behalf of Tami in the probate court records on Joe's estate.  The Caveat insured that no one could do anything in Joe's estate without first giving Susan a 20 day notice.  Sure enough, Melanie filed a petition to administer Joe's estate just a few days later, and had to serve Susan.  I filed a motion to dismiss the petition, as well as an answer and counter-petition to invalidate the proffered will as the product of undue influence.  In other words, I filed a will contest on Susan's behalf. Last, I filed a petition to appoint Susan personal representative of Joe's intestate estate.

The only assets of any value belonging to Joe were a half interest as a co-tenant in his home, the contents of the home, and a Cadillac.  Susan owned the other half of the home, which was purchased by them during the second marriage.  By the time we got all of the initial motions and such before the court both Susan and Melanie had gone into the home and taken items of personal property and Melanie had taken possession of the Cadillac and was driving it (presumably with no insurance). Of course, Susan did not tell me before the hearing that she had taken things out of the home.  By contrast, I had heard extensively in person, on the phone, and in writing about Melanie having that Cadillac. 

A side note about Susan:  she was a heavy smoker.  We had to schedule her appointments so that no other clients were present so I could leave the door to my office open while meeting with her. Imagine the worst dive bar you've ever been in, multiply by 100, and then imagine that stink on one person.  That will give you an idea of how bad she smelled.  She was like Pigpen from Charlie Brown, with a haze of smoke, nicotine and tar buzzing around her at all times like an evil, migraine inducing force field.  Susan was a letter writer.  She would call me or come in, and then immediately follow up with a ten page letter which was nothing but a ramble and regurgitation of the conversation.  Invariably, the letter was trying to get me to agree with whatever harebrained idea she had hatched to get the Cadillac from Melanie.  Also invariably, the letter would smell so bad we would have to open it, and HANG IT IN THE OUTBUILDING BEHIND OUR OFFICE to air it out.  It would still stink afterwards, but it would be bearable. The letter would arrive, and the funk would precede it by 10 feet, minimum.  I never saw Susan when she didn't reek, have a tissue in hand, and she had at least one horrifying coughing fit per visit.  She was also actively sick every single time I saw her.  She even came to court while she had the flu.  I don't think I'll ever forget this aspect of the case. Susan was a one woman walking anti-smoking campaign.

Back to the hearing.  The court refused to appoint either party as personal representative and entered an order that the proceeding was adversary.  The court also entered an order prohibiting either party from removing things from Joe's home, and enjoining Melanie from driving the Cadillac (but allowing her to maintain custody of it for the time being). After the hearing, we filed a petition to determine homestead as to Joe's half interest as a cotenant in the home.  Because Tami was under 18, Joe could not leave his home to anyone else under the homestead provisions of the Florida Constitution.  Opposing counsel (who claimed to be a probate attorney) thought that Joe's will leaving everything to Melanie trumped Tami's homestead rights, which could not have been more wrong.

At Susan and Melanie's subsequent depositions, I first learned that during their second marriage, Joe had executed a will leaving everything to Susan.  The will also provided that if Susan was dead (which is how she would be treated post-divorce), Susan's sister was named as personal representative and trustee for Tami's benefit and Tami was the sole beneficiary of Joe's estate.  Melanie claimed that Joe adopted Tami solely to increase his disability benefits. According to Melanie, Tami had an ongoing relationship with her biological father who agreed to the adoption because he would not have to pay child support.  I also learned that a term of Susan and Joe's divorce was that Susan would deed her half interest in Joe's home to him, an act which she had thus far failed to do.  Melanie also testified that Susan routinely allowed Joe unsupervised visitation with Tami after the second divorce. 

Susan brushed off all of these facts:  she admitted letting her daughter visit with Joe after the divorce (she claimed he was "better"), she said Joe told  her she didn't have to deed him that half interest in his home, she didn't mention the will because she didn't like her sister and did not want her sister to get control of Joe's estate.  All Susan wanted to talk about, ad nauseum, was that old Cadillac.  I have often wondered if the Cadillac had something valuable hidden in it, considering the war Susan and Melanie waged over it.

Prior to his death, Joe had taken out a "title loan" on the car which remained unpaid.  Susan and I discussed her options: she could buy the lien, and we could file a replevin action and repossess the car to satisfy the lien.  Susan listened and understood (her stinky missives made the fact of her understanding very clear).  Instead of buying the loan, Susan went to the loan company and paid off the lien.  Thus, Susan got possession of the title which she then took to the DMV and totally misrepresented her relationship to Joe.  All she needed was a certified copy of Joe's death certificate and the original will she didn't like in order to walk into DMV with the car title and say she was still his wife in order to get the title put into her name. 

Susan showed up at my office and presented the new title as a fait accompli, expecting a pat on the back for a job well done.  This was the beginning of a very rapid end for me and Susan:  she was shocked that I was not happy with her clever thinking, and I was appalled at her disregard for my advice and the law.  I refused to file a replevin action for her and instructed her to that she had to immediately transfer the title back to Joe's name (albeit subject to her lien for the exonerated title loan). Susan refused to do so.  So, in due course, I terminated our relationship.

Susan went back to the attorney who prepared the "lost" will (that she didn't like) and an Order Determining Homestead was entered.  Tami never received a dime.  Susan sold the home within about a year of the order being entered to Tami's biological father. The deed was signed by Susan showed Susan as a co-owner.  How did she pull off that trick? Melanie dropped out as soon as she realized she was not getting the house. I was gone. Susan's new attorney did not know about the divorce agreement and so it looked like Susan owned half and Joe owned half. She even opened a guardianship for Tami, and represented that Tami only owned half (and more importantly, failed to tell anyone about her agreement to deed her half to Joe).  Then in the guardianship, Susan got all the proceeds from the sale (without telling anyone how the buyer was related to her and Tami) because she claimed to have been paying the mortgage and maintenance on the home (which was not the case when I represented her).

What happened to the Cadillac? Well, Susan filed a small claims action and repossessed the car from Melanie using the fraudulently obtained car title.  She also got a judgment for costs which Melanie ultimately had to pay.  Here again, she got away with this for most of the same reasons she got away with the house.  In addition, Melanie did not have an attorney, and must not have understood how Susan could only have lied to get the title.

Why didn't I intervene?  First, I didn't know about it until I went to look at the court records to write this post.  You fire a client and move on. The last pleading I saw in the probate was the Order granting my motion to withdraw. Susan sold the home and repossessed the car about a year later.  Second, even if I had known what Susan was up to, most likely I would not have been able to disclose anything to anyone in order to bring her lies and machinations to light.  In Florida, with very few exceptions, an attorney is obligated to keep the information obtained through representation of a client confidential. Attorneys are expected to err in favor of nondisclosure whenever there is even a question to disclose or not disclose. If I had known about the misrepresentation in the guardianship about Tami's interests in the home and the suit against Melanie to repossess the car, I would have at least called the Bar to get some guidance on my obligations to Susan.

Like I said, Susan was a real piece of work.  She has remarried twice in the intervening years. I could not bear to be within ten feet of her, so I find this fact particularly astounding. I looked Tami up on the internet recently, and it does not look to me like Susan had a transformative experience and became an exemplary parent. Poor Tami, she never had a fighting chance.

Coming up next week:  A post discussing the legal and procedural aspects of this story.

Have a great weekend!

Julie






Copyright 2013 Julie Ann Sombathy All Rights Reserved

Justice Sotomayor Totally Called It: Fourth Amendment vs Domestic Spying

In January 2012, the U.S. Supreme Court issued a landmark ruling regarding warrantless GPS surveillance. Read the full opinion of U.S. v. Jones here.  I blogged about it the day the ruling came out, here.


At the time, I thought the most interesting part was this excerpt from Justice Sotomayor's concurring opinion in which she wrote:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on....More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties....This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.  Perhaps, as Justice Alito notes, some people may find the “tradeoff ” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.

(emphasis added).

After this summer's disclosures about the NSA's domestic spying, Justice Sotomayor's words in 2012 were eerily prescient.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

Random Post about Shoes and Purses

I'm back.  I took a break.  Blogging is hard if you have Can't Stop Editing Syndrome.

I'll be posting again with some new stories from old clients and cases in the next few days.

In the meantime, some fun!

First, shoes that are fabulous. Fall is here (even if it is in the 90's in NW Florida), and every Fall I want accessories and clothes in deep purple, aubergine, eggplant.  This year is no different.

These basic pumps by Louboutin are a great not too dark purple.  LOVE.

Valentino started a collection called Rockstud in 2011.  At first the collection was only for purses, but it has expanded to clothes and yes, shoes.  My favorites are the kitten heel (I can't believe I wrote that).

 Then there's the flat, which is also fabulous.








Lastly, the line also includes the Avoto in Nude.  Gorgeous.

Second, purses.  I have been obsessed with Furla's Candy Bags all summer long.  Maybe it is because I was a teen in the 80's.

I love the cielo blue and the purple.  The transparency of the blue (and most of the light colors) is actually fun. The purse is made completely of PVC rubber.  It is a little heavy, but I've had leather bags that were way worse. They're pretty indestructible too (except for dyes).

There are full size and mini versions.  I prefer the full size bag, called the Bauletto Satchel.  The darker colors are less transparent, more opaque but still very pretty.  The purple matches those Louboutins, doesn't it? Hmmm.

This bag is not for an introvert, as you will be stopped multiple times a day by total strangers to ask about the bag. It is also the most money I have ever spent on a purse ($250). These bags are not cheap, but I have enjoyed both immensely.  If you can manage not to permanently track dye onto the PVC (like I did to the blue one), the resale value on EBay is ridiculous.  I've seen the purse go for more on EBay than you can buy a new one online from a retailer like Macy's.  Go figure.

So I hope you enjoyed the pictures.  I'll be back later this week with a new story and a more serious, lawyerly topic.  For now, have a great week.

Julie




Copyright 2013 Julie Ann Sombathy All Rights Reserved