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

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