Homestead, Will Contests, and Car Titles: The Last of Smokey Susan

Last month, I shared the sordid tale of one of my least favorite clients, Smokey Susan.  Susan's case involved numerous aspects of Florida probate law, some of which I addressed in this post, here, and here.

In addition, the results of Susan's case were directly affected by Florida Homestead law. Basically, Joe could not leave his interest in his homestead (really 100% but swindled by Susan for 50%) to anyone other than Tami because Tami was under 18 at the time of Joe's death. For a more in depth review of Florida Homestead law, check out this post.

The thing which ultimately tore it for me with Susan was the shenanigans she pulled with the title to the Cadillac.  For more information about how to transfer a title to a car after the owner dies without probate, check out this post.

Lastly, Susan's case involved a will contest.  The basics of a will contest were addressed by Faye's Story, Part One, Part Two, and Part Three.

A short epilogue to Smokey Susan's story:

Whatever happened to Joe's remains?  Melanie skipped out as soon as she figured out she wasn't getting the Cadillac or the house.  Susan did pay for Joe's funeral.  But don't give her too much credit for that sole act of decency;  she charged Tami's half of the sale proceeds from the homestead with the funeral expense in the guardianship.

Like I said, Susan was a real piece of work.


Cheers, and Happy Wednesday. We have officially made it to the downhill side of the week!

Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

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

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

Faye's Story (Part Three)

Today's blog is the final and third part of a client story.  Part One is the back story and context.  Part Two is the will contest. You should read these first if you haven't already done so.    

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

By the time we reached the point in Faye's story where we determined that the Will was not admissible to probate, almost two years had passed.  During this time, Faye hired a private investigator in Virginia to search for the adoption papers for John and Frank.  We knew that John and Frank were most likely adopted in Virginia, but we did not know exactly where in Virginia and we were not one hundred percent sure that they had not been adopted in Maryland.  This is because very soon after when we believed that the adoption occurred, John and Frank’s adoptive parents moved to Maryland where they lived until their deaths.  The private investigator looked in all of the likely places in Virginia, and then focused his attention on Maryland.  Finding the adoption papers for John and Frank was a two and half year ordeal.  

The investigator first found the probate records of the adoptive parents.  Both the mother and father’s Will referenced John and Frank as their adoptive sons and left them everything.  Nevertheless, this was not direct proof of the adoption.  What we needed was direct evidence of the adoption: a certified copy of the decree of adoption.  So, the investigator kept going and even located the school where John and Frank attended K-12 grade, on the theory that their adoption papers would be in the records.  Unfortunately, this school burned to the ground with all of the records in it.  

After exhausting all potential sources for the adoption paperwork in Maryland and Virginia, Faye then hired an attorney in Virginia in the city where she knew her mother lived after her father left.  This is where we found the divorce decree which stated that four of the five children had been “adopted out” and that Faye was in her father’s custody.  Unfortunately, the divorce decree which recited that four of the five children were “adopted out” this was not direct but rather indirect evidence of the adoptions as well so the search continued. 

Our attorney in Virginia searched long and hard for the adoption paperwork in the town where the divorce was entered, to no avail.  He then turned his attention to where we knew either Faye’s parents had lived or where we believed John and Frank’s adoptive parents lived just prior to their move to Maryland. 

A final hearing was set on the issue of which of the children were legally entitled to inherit and we were set to proceed with the indirect evidence on hand, as well as Faye's testimony.  Without the direct evidence, it would be a decision for the court to make as the trier of fact based on all of the documents and testimony.  If you've never been in this position, let me tell you:  it stinks.  Knowing without doubt that something is true, and being unable to prove it with incontrovertible evidence is the pits both for the client and the attorney.  It would be a massive understatement to say we were stressing over the outcome of this hearing.

Then, for once in her life, luck finally intervened in Faye's favor.  Literally 24 hours before the hearing I received two phone calls.  The first phone call was from Faye.  In going through the attic at her mother’s house she found a box containing all of the adoption paperwork for all four of the adopted children.  None of the paperwork was certified; however, I was confident that I could at least convince the court to give us sufficient time to obtain certified copies now that we knew where to look.  As I hung up with Faye our Virginia attorney called to tell me that he had located the adoption file for John and Frank and that he was overnighting me a certified copy of the adoption papers.  

Once all of the dust settled, John and Frank were forced to drop their remaining action.  Faye inherited one hundred percent of her mother’s estate under the intestate statute because she was the only child who was still legally her mother’s child.    

These events happened a long time ago.  I recently saw Faye at the courthouse and I am sad to say that life continues to be unkind to her.  Faye is one of those people who just seems dogged by tragedy.  Her relationship with John and Frank was irreparably damaged by their actions in the probate.  She still has no contact with Mike (by his choice), and she has no relationship with her nephews by her sister Eliza.  

The greatest irony of the whole thing is that the only asset in the estate was a home.  Not even a particularly valuable home, just a nice little house in a slightly shabby neighborhood.  The most vicious litigation I've ever seen was in probate and in every single case the litigants were not fighting over things, but a mother's love.  

Faye and her brothers never really resolved that issue by fighting over the house and they probably never will.

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Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part Two)

Today's blog is the second part of a three part client story.  Part One is the back story and context. You should read it first if you haven't already done so.  Part Two is the will contest.  Part Three (coming Friday) is the conclusion. 

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

Unfortunately, the adoption papers which Faye's mother kept in her Bible disappeared after the funeral.  Since the loss of the adoption paperwork worked to their benefit, John and Frank were the obvious suspects.  Because the adoptions occurred so long in the past and in another state, we had to hire a private investigator to find proof of the adoptions.  As for Eliza, a search of local records found a copy of her obituary which clearly referenced her adoptive mother and her natural mother.  This was enough to convince Eliza’s sons that they should back out of the litigation and they did so early on.   John and Frank on the other hand were also well aware that they had been adopted by an aunt and uncle, but were adamant that they were not adopted.  John and Frank were in it for the cash.  Because we could not find their adoption paperwork we had to proceed on their Will contest.     

In any Will contest regarding the proper execution of the Will, the most important people are the two witnesses to the Will.  If the Will is self proven, the notary is the third most important person.  If the two witnesses give testimony which contradict each other, or show that the Will was not executed properly then the proponent of the Will will lose on that ground.  So in the course of things, I found myself in Pensacola deposing the two witnesses to the holographic Will.  The witnesses were unrelated to each other in any way except they were both friends of Faye and her mother.   On the day that Faye’s mother executed her Will, they were having a party at her house which sounded like a cookout.  Both witnesses gave consistent testimony regarding the manner in which they witnessed the Will.  Unfortunately for Faye, the witnesses’ testimony also completely invalidated the Will.

Apparently, Faye’s mother hand wrote her Will and signed it.  During the party, she asked the first witness to witness her signature.  This part was done correctly in that Faye’s mother showed the signed Will and then attested to her signature to the witness and asked the witness to sign as a witness.  The problem is that the first witness witnessed the Will while the second witness was on the back deck drinking a beer.  Thereafter, the first witness went to the restroom and the second witness came in and Faye’s mother repeated the process.  Thus, neither witness was in presence of each other at all, much less in the presence of Faye's mother and each other, as is required by the Will statute. 

The end result of this was that Faye’s mother was intestate.  The brothers were counting on this because then they would inherit (under their reasoning) an intestate share of their mother’s estate.  Because Faye’s mother was not married at the time of her death her estate would be divided into four equal shares:  one each for Faye and her two brothers John and Frank, and one to be divided by Eliza’s children.  Everyone agreed that Mike had been adopted by strangers, so there was never any suggestion that he would inherit any of Faye’s mother’s estate.    

So, Faye's entire inheritance turned on proving the adoption of John and Frank by the aunt and uncle.  This proved to be incredibly difficult and ultimately required the services of a P.I. and an attorney in two different states as well as some luck.

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Copyright 2013 Julie Ann Sombathy All Rights Reserved

Faye's Story (Part One)

Today I am posting another old client story.  This story is told most easily in three parts.  Today is the back story and context. Part Two is the will contest.  Part Three is the conclusion. 

(CAVEAT: Even though a lot of details are public record, the names and relevant identifying details have been altered in order to maintain any potential attorney-client privilege). 

I once had a client named Faye.  Her story spanned 60 years, took place in four states, involved a child abduction, adoptions, greed, theft, and a mother's overwhelming guilt. This is Faye's story. 

Faye was the youngest of five children.  The oldest two of her siblings were her brothers John and Frank.  The next oldest sibling was her sister Eliza.  Her closest sibling in age was her brother Mike.  When Faye was about five her father announced that he wanted a divorce.  The family lived in Virginia.  This was in the late 1940's.  Faye’s mother had no marketable skills and no college education, without which a woman in that day could not really make enough money to support herself, much less her five young children.  Before the divorce was even filed, Faye’s father picked her up at the playground and drove all the way to California.  Faye lived with her father in California until she was a young adult, with no contact at all with her mother.  In essence, her father kidnapped Faye and left the four older children with their mother to fend for themselves.  Faye's father never supported her mother or his other four children and acted as if they did not exist. 

After Faye’s father abducted her from the playground, her mother fell apart.  Ultimately, Faye’s three brothers and sister were put up for adoption by her mother.  The two oldest boys, John and Frank, were adopted by Faye’s father’s brother and his wife.  Thus, while they were legally adopted, their last name never changed.  Faye’s sister was adopted by an aunt who lived in Panama City.  Her last name changed because the aunt was married.  Faye’s youngest brother was adopted by total strangers;  his last name changed to reflect his new familial relationship. 

Faye was reunited with her mother in her early adulthood.  At that time, her mother had gotten herself back together and moved to Panama City to be close to Faye’s sister.  Faye came back to live with her mother in Panama City when she was a young adult.  Faye lived with her mother on and off throughout her mother’s life.   Before Faye’s sister turned thirty, she died in a car accident leaving two small sons.  In the last few years of Faye’s mother’s life, she was reunited with John and Frank.  They made numerous visits to Panama City to see their mother and would often stay with her. 

Faye's mother never got over having to put her children up for adoption. While she ultimately reunited with four of her five children, the youngest son, Mike, wanted nothing to do with his "birth" family.  Faye's mother kept a Bible on her bedside table.  In the Bible were copies of the adoption papers for all four of her children.  It was the first thing she saw in the morning and the last thing she saw at night: a physical manifestation of her failings.  Anyone who knew Faye's mother, knew her story and the guilt she struggled with to the end of her days.

Faye’s mother died and Faye hired me to probate her estate. This case was unique in so many ways.  Faye’s mother’s Will was a holographic Will.  What this means is that the Will was entirely handwritten.  A holographic Will in Florida is perfectly legal as long as all of the formalities required by the Will statute are followed.  The formalities are pretty simple.  First, the person signing the Will (Testator or Testatrix)  must sign at the end.  Second, the Testator must then either affirm their signature to two witnesses (“this is my signature, please witness it”) or actually make the signature in the presence of two witnesses.  Next, and the part which most often is not performed correctly, the two witnesses must witness the signature in the Testator’s presence and in the presence of each other.  A notary is not required in order to properly execute a Will; however, if you wish to make the Will self-proven then the Testator and both witnesses must sign again with the same formalities and the notary must notarize all three signatures.  A self proving Will is ideal because it does not require the testimony or oath of a witness to allow admission of the Will to probate.  Click here for more detail on wills and probate.    

Faye’s mother’s Will left everything to Faye and named Faye Personal Representative.  Everything appeared to be in order, so we filed a Formal Administration.  Faye’s brothers intervened together with Eliza’s two children claiming that they were entitled to a share of the estate and contesting the Will.  A Will can be contested in Florida for three main reasons:  first, a Will may be contested on the basis that it was improperly executed;  second, a Will can be contested because it is the product of “undue influence;”  third, a Will can be contested on the basis that the Testator was incompetent at the time the Will was executed.  Undue influence is a topic in and of itself and it was not raised in this case.  The contest was based on claims of improper execution as well as incapacity of Faye’s mother.  

Testamentary capacity is a different evaluation from mental capacity.  In Florida, testamentary capacity means that you are able to identify the natural objects of your bounty, you comprehend the nature and extent of your assets, you are oriented to time and place, and you are capable of understanding the legal effect of the documents that you are signing.  This is a very minimal standard. An oft cited case held that "even a mad man may sign a will during a lucid interval."

When we first received the intervention pleadings,  we foolishly though that we would be able to resolve the matter quickly because John, Frank, and Eliza had been legally adopted.  In Florida when a person is legally adopted they are no longer the blood relatives of their natural parents or anyone related to their natural parents, and are immediately treated as a blood relative of their adopted parents and anyone related to their adopted parents.  So, in essence, adoption in Florida changes your blood lines by  legal fiction.  There are three main exceptions to this rule, found at Florida Statute chapter 732.108(1)(a)-(c)(2013)(click here for the text). For this reason we believed that simply showing the court that John, Frank and Eliza had been adopted would be sufficient. 

That is not how things turned out, and what started as a simple probate with a handwritten will turned into a three year saga with several dead ends and turns before resolution was finally found.

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