Category: Blog

What To Do With Old Wills

Updating your estate plan every few years, and particularly after a big life event (such as death, divorce, having a child, etc.), is most often an estate planner’s recommendation.  That being said, people do not always follow those recommendations.  Sometimes wills which are 10 or more years old are brought in by a client seeking to open up a probate. …

In an intestate estate – i.e., an estate in which the Decedent died without having a will – the state of Florida’s Probate Code statutes dictate how the Decedent’s assets will be distributed.

Assuming the Decedent was married, the surviving spouse typically is the one appointed as the personal representative. …

Unclaimed or abandoned property refers to financial assets which have not had contact with its owner, are unknown or lost, or have been left inactive or not generated any activity by its owner, or are otherwise somehow unclaimed or abandoned by its owner.  Some common types of unclaimed property include bank accounts (both checking and savings accounts), stocks, annuities, certificates of deposit from financial institutions, uncashed dividends, payroll checks, traveler’s checks, trust distributions, unredeemed money orders, insurance payments or refunds, life insurance policy payments, utility security deposits, and even contents of safe deposit boxes….

A trustee is charged with protecting and investing trust assets and administering those assets per the terms of the trust agreement for the benefit of the trust’s beneficiaries.  See Fla. Stat.  736.0801 et seq.

While this sounds like a basic premise, there are some important functions which a trustee must do in their fiduciary role. …

In Florida, one cannot completely disinherit their spouse.  The right to a surviving spouse’s estate is called the elective share, which is thirty percent (30%) of the decedent-spouse’s estate.  Fla. Stat. 732.2065.  Indeed, a decedent’s surviving spouse is entitled to four different rights which come into play in the absence of a valid prenuptial or postnuptial agreement. …

The short answer to this question is yes.

What is an irrevocable trust?  It is a trust document that generally is not subject to revocation or modification, once executed and funded. There are exceptions which may permit the changing of the terms of an irrevocable trust.

The Florida Trust Code, Chapter 736 of the Florida Statutes, allows a court to modify an irrevocable trust where the modification is consistent with the intent of the grantor….

Wallace v. Torres Rodriguez, — So. 3d —, 2022 WL 1481782 (Fla. 3d DCA 2022)

This recent case from the Third District Court of Appeal involved a husband, a wife, and the husband’s longtime girlfriend.

In 2010, the wife, Patricia, asked her attorney to draft an irrevocable trust agreement for both her and the husband, Milton….

Duff-Esformes v. Mukamal, 332 So. 3d 17 (Fla. 3d DCA 2021)

The appellant in this case, Elizabeth Ann Duff-Esformes, was the Decedent’s surviving spouse, one of two beneficiaries of the Decedent’s estate.  The other beneficiary was the residual beneficiary, the Nathan J. Esformes Living Trust, to which the appellant was the sole beneficiary as well. …

In Florida, a child who is born or adopted after their parent is called a “pretermitted child” and can inherit from their parent’s estate, as set forth in Fla. Stat. §732.302:

732.302 Pretermitted children.—When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:…

It appears from the will that the omission was intentional;

Sometimes clients inquire about adding their children’s names to the deeds on their homes – thinking this plan would avoid probate or perhaps in an effort to protect the home from claims, even if the home is protected homestead.  Generally speaking this may not be a good idea. 

One reason is that, upon death, your assets receive what is called a “step up” in basis – basis is a tax term which describes the amount of income received when an asset is sold, i.e., the original purchase price. …