Same Sex Marriage is Legal in all 50 States--Now What? Thoughts on the Practical Effect on the Practice of Law in Florida.

Same sex marriage (SSM) is legal in all 50 states as of June 26, 2015.  Now what?  [If you want to read the landmark decision of the US Supreme Court making SSM legal everywhere in the U.S., here's a link:  Obergefell v. Hodges.]

For Florida practitioners, there are four obvious areas in which the legalization of SSM will have an immediate and practical effect:  family law, estate planning, real property, and personal injury.

1.  Family Law:  where there are marriages, there will also be divorces. Practitioners have been fashioning SSM "divorces" for years through contracts but the remedy was woefully insufficient. The big change here from the parties' perspective is the entitlement to the benefit of the divorce code. The big change coming in family law practice is a revision of pleadings and forms such as prenuptial agreements to refer properly to the spouses in personal pronouns and appellations.  The general consensus developing is that the proper manner to refer to the parties to a SSM are Husband/Husband or Wife/Wife. [Side note; There's about a million other variations on this issue having to do with gender referencing but that is not what this blog post is about and many other more learned and nuanced sources exist on the internet--google it].  The use of the Husband/Husband or Wife/Wife appellations will cause some need for careful drafting though since most programs or forms rely on the Husband/Wife configuration to keep track of each party in a document.  So if your forms are built on that paradigm, you will have to be extra careful when using them to draft documents for a SSM-divorce or prenuptial agreement.

2.  Estate Planning:  Estate planning practitioners have also been writing same sex documents for years. The real change here is not necessarily the forms but the rights and privileges parties to SSM will now be entitled to claim.  For example, the surviving spouse of a SSM will now be entitled to claim pretermitted spouse status, elect to take the spousal share, inherit by intestacy,  be entitled to all of the rights of a surviving spouse with respect to homestead including an election to take the spouse's joint tenant's share in the homestead, be entitled to be Personal Representative in an intestate estate, and be entitled to claim personal property exemptions for personal property, vehicles and other tangibles. The HUGE impact the legalization of SSM will have on estate planning for same sex couples is really not quantifiable.  Check out my website for answers to Frequently Asked Questions about Probate and Estate Planning.

3.  Real Property:  Just as with family law and estate planning, documents will have to be revised; however, most real property practitioners have been writing deeds and other instruments for same sex couples for years.  Here again the HUGE change is the rights and privileges the SSM couple will now be entitled to claim.  First, having the right to own property as tenants by the entireties is a really big deal.  Why?  Because real property held as tenants by the entireties is very special, and immune from all efforts of collection unless the judgment holder has a judgment against both spouses.  This is really the only change for real property that matters (excluding homestead as addressed above).  The big change in practice will be remembering to acknowledge the SSM in our deeds.  Best practice has always been to reference the marital status of both grantor and grantee in every deed (so that a title examiner down the road can exclude homestead and/or tenants by the entireties issues from a transaction).  Now more than ever, this best practice will be paramount since before the homestead and tenants by the entireties was only an issue when the grantor or grantee was a man and a woman. Now any combination of genders could be a married couple so what before was a best practice is now an absolute necessity in my opinion.  I wrote about the history of homestead in Florida here.  Check out my website for answers to Frequently Asked Questions about real estate.

4.  Personal Injury:   Parties to a SSM will now enjoy the same spousal rights in personal injury and wrongful death cases as everyone else. Where before the uninjured partner in a same sex couple was not entitled to sue for loss of consortium, etc, a legally married same sex couple will enjoy these rights.

Many other practice areas will be affected by this epic shift in the landscape and my thoughts above are directed primarily to areas of my practice (1-3 above) in which I anticipate immediate changes.   Please note that I am not interested in a debate about SSM, or anyone's opinion on SSM so please do not bother commenting as I will be very liberal with the delete button. That said, I would love to read comments about the effect of this case on your practice.

Happy Wednesday!

Julie

Isler & Sombathy, P.A.


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Copyright Julie Ann Sombathy 2016 All Rights Reserved

Faye's Story Redux

Back in March, I told the story of my old client Faye in three parts:  Part One, Part Two, and Part Three.

The critical moment in Faye's story was when at the eleventh hour on the eve of the bench trial on the issue of whether or not Faye's brothers would be heirs of their mother's intestate estate, Faye and the private investigator both located copies of the Final Judgment of Adoption.  When we disclosed to the brothers' attorney that we had located the document, the brothers dropped their claim.  So we never had to go to court and prove the fact of the brothers' adoption, which was essential to Faye's case.

My next post will go through how I had planned to get the key pieces of evidence admitted into evidence at the bench trial.


Julie

Copyright 2013 Julie Ann Sombathy All Rights Reserved

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

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

The Story of Arnie and Ophelia

After a year of blogging, it finally dawned on me the other day that some of my old cases would make entertaining blog posts. So, this "story" will be a first in a series. (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). Also, I will weave a little legal information in the story, but I'll try to keep it painless.

I once had clients early in my practice named Arnie and Ophelia Williams. When Ophelia died, they had just celebrated their 65th wedding anniversary. Sixty-five years! In my late 20's I thought that this was the most incredible thing I had ever encountered. Arnie and Ophelia were in their 80's. This is their story.

I met Arnie and Ophelia because they needed to do some estate planning. While they were old, both were mentally sharp. Arnie had a shock of white hair and brilliant blue eyes. Ophelia had a lot of health problems and Arnie had a gouty foot. Because of Arnie's foot and Ophelia's health, their insurance agent persuaded me to make a house call. They lived in a modest home, on a modest street, in a modest middle class neighborhood. They were worth millions.

Forty years earlier, they had lived in Virginia. Arnie worked at a manufacturing plant. Arnie received stock options as part of his compensation. While he was in his forties, Arnie retired and moved to Panama City. Arnie managed to parlay his stock holdings in the manufacturing company together with the investments he had made during his "working life" into a substantial portfolio by playing the stock market. He was a front runner in the whole "day trader" work from home movement of the early 90's.

The greatest sorrow of their lives was that they were never able to have children. Ophelia had no living relatives. Arnie had a nephew, Jerry, with whom they were close. Jerry lived out of state, but he visited regularly. I believe this part to be totally true because if there is one thing elderly clients will tell you when you are doing their will, it is which relatives come see them and which ones don't visit or call. [Go call your elderly relatives right now. This blog will be here in a half hour.]

So, Arnie and Ophelia executed Pour Over Wills and a Joint Revocable Trust with traditional estate tax planning for the time period.  The trust left everything to Jerry.  The Pour Over Will named Jerry and two friends of Arnie and Ophelia as their co-executors (in Florida we call the executor the Personal Representative).  Likewise, the trust named Jerry and the two friends as successor Co-Trustees. Soon after they executed their documents, but before we could fully fund their trust, Ophelia died. Arnie died less than 30 days later. I've always thought he died of a broken heart because all that was really wrong with him was that gouty foot. He just went to bed and never got better. At the time, I thought his death was the most tragically romantic thing, ever.

Most everything that was not in the trust was in just Arnie's name, so in the end we only had to probate Arnie's Pour Over Will to transfer the rest of the assets into the trust. Unfortunately for me and Jerry, when we opened Arnie's safe deposit box we found original stock certificates for 65 different companies. Each of these stock certificates ultimately required 3 medallion endorsed signatures. So, that was a total of about 200 endorsed signatures from 3 people living in 3 different states. It took months to accomplish and to this day remains one of the most frustrating tasks I've ever encountered in a probate.

Meanwhile, back in Virginia a woman was dying. She was in her 70's and had one child, Rose. Rose was in her early 40's with strikingly orange-red hair and brilliant blue eyes. She was also a child of tragedy, having lived her entire life without her father who had died before she was even born. Just before taking her last breath, Rose's mother motioned her close and whispered in her ear that "I have to tell you something. The man you thought was your father wasn't your father. Your father lives in Florida. There's a shoebox in the top of my closet with your name on it with everything about your father in it."

Eventually, Rose got out that box, hired an investigator and tracked down her father. She tried to call him several times, but lost her nerve and hung up. Her husband finally made the call for her. A man answered the phone and when Rose asked for her father, Arnie Williams, she was told that he had recently died.

Jerry is the man who had to give Rose that bit of news, but he did not know then her relationship to his uncle. Soon after that call, Rose called me. In the face of her incredible story, all I could tell Rose to do was hire an attorney in Florida. I also had to warn Jerry that he might not inherit anything at all.

See, Rose was potentially a Pretermitted Child. In layman's terms, that means a child of which the deceased person was unaware when they signed their Will. A Pretermitted Child is entitled to the share of the deceased's estate to which they would have been entitled under the intestate statute. For an only child, that would have meant 100% of Arnie's estate.

About a week later, a local attorney called me on Rose's behalf. She had been to Florida to meet with him in person (and to also meet Jerry--her long lost cousin). The first thing he asked me was "Did Arnie have crazy orange hair and blue eyes?"  In that shoebox Rose's mother had hidden in the top of the closet were pictures of a orange-red haired man in his 40's with brilliant blue eyes holding a baby which Rose knew to be herself. There were birthday cards for her 1st and 2nd birthday and letters. Jerry confirmed that Arnie had orange-red hair like Rose in his younger days. He also confirmed though family photos that the man holding baby Rose was most likely his uncle. Jerry does not think his Aunt Ophelia ever knew about Rose or the affair.

Because it was obvious that Arnie knew Rose existed, she was not a pretermitted child, and did not inherit anything from his estate. Jerry inherited 100%. When I last spoke to Jerry, he said that he and Rose continued to be in contact. Rose never held the inheritance against Jerry.

Through talks between Rose and Jerry comparing the respective lives of her mother and his uncle, Arnie's secrets were revealed. Rose's mother was married to Arnie's boss at the manufacturing company. She and Arnie had an affair, and Rose was the result. Before Rose was born, her mother's husband died in an accident at the plant. Although we will never know, I've always thought Arnie's somewhat early retirement and move had to of come about when baby Rose was very young since her hair and eyes were such an identifying trait. People back then were way better at keeping secrets, though, and also tended to turn a blind eye to such things. Who knows? The affair could have been a well kept secret or an "open secret." This part of Arnie and Rose's story will never be known.

So that is the story of Arnie and Ophelia, or rather, of Arnie and Rose.

The take aways from the story for me were:

1. Secrets rarely stay secret forever.

2. Attorneys should always ask their clients about children outside of marriage, and tell them an abbreviated version of this story in case there is a secret love child to be addressed.

3. No matter how well intentioned, the decisions you make as a parent do not always work out well.

4. If you create a secret like Arnie and Rose's mother did, maybe you should take it to your grave.

5. Call or visit your Elderly Relatives, they miss you and they're lonely. Ten minutes out of your day will totally make their week.

6. For the love of all, please put your stock holdings in an account. Do not hold original certificates. I cannot stress this one enough. It took years for $0.01 checks to quit arriving.

7. Naming more than two Co-Trustees or Co-Personal Representatives can result in unnecessary expense and hassle.

8. Address the potential of an unknown child in your will or trust to avoid what could have happened if Rose had either been dishonest or truly unknown to Arnie.

9. If you don't tell your estate planning attorney everything, including the embarrassing bits like a secret love child, your attorney cannot do an effective job.

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Copyright 2013 All Rights Reserved Julie Ann Sombathy

How do I find a probate attorney in Florida?

Someone you know has died and their estate must be probated. Or, you are unsure if there is anything you must do now that your spouse has died, so you begin the process of finding an attorney to advise you. How do you find an attorney who is best suited to assist you?

Probate is an area of practice that requires experience and knowledge in a combination of several areas of law such as real property, inheritance, intestate and testate succession laws, and elder law. In addition, a working knowledge and understanding of federal estate tax laws is a must for any decent probate practitioner. If your case will involve a dispute between beneficiaries or heirs, or a will contest, your chosen attorney should also be well versed in civil litigation.

The phone book is the last place you should look to find a probate attorney.   Ask your friends, your boss, or any other person whose opinion you value.  Call the clerk of the probate court at the county courthouse where you intend to file the probate. The clerk will usually give you a list of names of the attorneys the clerk sees day in, day out. Or, if your county’s court files are online, search the probate cases and look for frequently recurring names as the Petitioner’s attorney. Check the prospective attorney’s discipline record by performing a Member Search on the Florida Bar's website.

Next, schedule a consult appointment with your top choice. Usually, there is a minimal charge for a consult, and sometimes this is waived if you hire the attorney to do the probate.  Ask up front if you need to use a credit card to pay the consult fee because some offices only accept cash or checks.  Make sure to note your appointment time and date, and if you have a problem and need to reschedule, don't wait until the last second to do so, that is just rude and inconsiderate.

Abraham Lincoln practiced
law for over 25 years

Don't expect to speak to the attorney until your appointment time.  As Abe Lincoln said "A lawyer's time and advice are his stock in trade."  Expecting legal advice over the phone is unrealistic and unfair.  Look at it this way:  it is like going through the drive through and ordering a burger and fries, getting the food, and making an appointment to come back in a week to pay for it.  Who does that?  No one.

Honest Abe Rocking
the Doctor Who

And the lawyer does not owe you anything just because they are a lawyer.  Law school was not exactly fun, and most of us are still paying for it.  If you are calling an attorney that makes so much money he should be happy to give you free advice, what are you doing?  There are plenty of good attorneys in every town who charge reasonable fees for their services.  Why are you calling the most expensive one in town anyway?  If you are, then you can probably afford to pay!  Ah, the never ending paradox.

Once you make an appointment, try to make the most of it by coming prepared with as much information as possible.  Your attorney needs this information to determine the type of probate to file and when to file it, as well as a myriad of other decisions that influence the direction you and your attorney ultimately decide to take.


I think what most people want when they come to see me for a probate, more than anything else, is a sense of resolution, of purpose and direction.  A goal, if you will. The death of someone you know well enough to need to probate their estate is never pleasant, and the practical aftermath can be a confusing morass of legal jargon and paperwork.  Unfamiliar paperwork is never fun to deal with, even in the best of times. So arm yourself with information. This is my Checklist.

Make a list of questions. Go through all of the questions on your list with the attorney until you understand the answer to all of them. Most attorneys will “interview” you about the deceased's assets and liabilities, and testamentary documents (like a will or a trust) as a way to assess the type of probate required. This is why it is important to come to the consultation prepared; the more information you have with you, the better informed your attorney will be and an informed decision is rarely a bad thing.

Ask for a basic explanation of the process and what to expect along the way. Make sure you completely understand the attorney's fee structure, when and how the fee will be paid, and what expenses to expect and when/how those will be paid.

Pay attention to the office, the staff, and the general atmosphere if your appointment is in person. If you are doing business over the phone, the staff should already have prepared you for how the consult will be conducted. Either way, if the office is a mess, the staff is surly, or you just don't feel comfortable with the lawyer, pay the consult fee and keep looking.

Julie
My Website


Copyright 2012 Julie Ann Sombathy All Rights Reserved

If I Have a Will, Do I Avoid Probate (and Other Frequently Asked Questions)

1.         What is a will, and why do I need one?  

A Will is nothing more than a letter to the probate Judge, telling the court who you want to be in control of your estate (your Personal Representative) and how you want your estate to be distributed.  A person is intestate when they have no Will.  The intestate statute may call for distribution of your estate which is in contradiction to your wishes. 

2.         Does a will avoid probate?

No.  A Will requires probate because a Will is like a letter to the probate Judge.  If you write a Will there is a good chance that your estate will have to be probated. 

3.         Why do I want to avoid probate?

Probate prices in Florida are considered high.  Average shrinkage of an estate in Florida caused by probate expense is between 3%-10% of the value of all the assets going through probate.  Florida statutes provide that the attorney may be paid 3%of the first million dollars of assets in the probate estate.  Thereafter, there is a decreasing percentage payment.  This percentage fee is in addition to an hourly rate for any “extraordinary” expenses such as assisting the Personal Representative in a real estate closing.  The Personal Representative is also entitled to a fee which is usually equal to the attorney’s percentage fee under the statute.  For this reason, as well as the time involved in the average estate, most people wish to avoid probate, or at least minimize their exposure to the probate process.       

4.         What is probate?

Probate is the process of changing title of your assets after your death from your ownership to your beneficiaries or heirs. During this process, all of the assets that you owned during your lifetime in your individual name and outside of any trust or beneficiary designated asset will be retitled and distributed to your beneficiaries or heirs, after payment of your creditors. 

5.         What is a living trust, and why do I need one?

A living trust is a document which creates an entity that will survive your death.  The primary purpose of a living trust is to avoid probate.  A secondary purpose and the driving force behind the desire to have a living trust is the avoidance of estate tax.  A third purpose in creating a living trust is to consolidate your assets and prepare for administration of your assets during your lifetime but in a time where you are not able to care for yourself.  A living trust can avoid probate after your death and in many cases guardianship during your lifetime.  The decision of whether or not to declare a living trust should be made with the advice of an attorney.   

6.         Does a trust avoid probate?

In most cases, yes;  however, even though many people establish a living trust, some do not follow through with funding the living trust.  For this reason, beneficiaries of a  living trust end up having to probate assets which were never transferred to the decedent’s trust.  In addition, most people choose not transfer their homestead into their living trust and after their death the homestead must also be transferred through a probate. 

7.         What is a Durable Power of Attorney, and why do I need one?

A Durable Power of Attorney is a document in which you give someone else the right to be you.  This person, depending upon the scope of powers you confer upon them, may do any number of things as if they were you including closing bank accounts, taking out loans, selling real estate and the like.  A Durable Power of Attorney can be invaluable in protecting your assets and maintaining your lifestyle in a time of incapacity not only in your old age but at any time during your life.   

8.         What is a Designation of Healthcare Surrogate, and why do I need one?

A Designation of Healthcare Surrogate is a document created by Florida statute.  In this document you name a surrogate to act for you in your health care decisions when you are unable to do so for yourself.  To be clear, no one needs a Designation of Healthcare Surrogate unless they have a clear desire regarding their care in the instance of a serious injury or illness.    

9.         What is a Living Will, and why do I need one?

A Living Will is a document in which you state your desires for life support and other treatments such as the withholding of food and water.  I recommend that my clients execute a Living Will in addition to a Designation of Healthcare Surrogate so that if the Designation of Healthcare Surrogate is ever deemed an invalid document in a court of law or though a statutory repeal, your desires for your healthcare will be known.  To be clear, no one needs a Living Will unless they have a clear desire regarding their care in the instance of a serious injury or illness.    

10.       What other documents are there that I might need to complete my estate plan?

There are several other documents which could make up your complete estate plan in addition to a Will or Trust, Durable Power of Attorney and Designation of Healthcare Surrogate.  Many times my clients wish to execute a Designation of Preneed Guardian.  This document is like a letter to the probate Judge stating who you wish to act as your guardian in your incapacity.  You can designate separate persons to act as guardian of your person (the person in charge of making decisions for you such as where you would live and who your doctor will be) and your property (the person in charge of your assets).  Another document which my clients find useful is an Appointment of Agent to Dispose of Bodily Remains.  Basically this document allows you to name someone to be in charge of your funeral and disposition of your remains.  Both of these documents are used most often in second marriages or in family situations where there is strife between the parents and children or among the children. 

For more information, visit my website.

Julie

Copyright All Rights Reserved Julie Ann Sombathy 2012