Boyes, Farina & Matwiczyk



Pretermitted Children

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;

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Considerations of transfers of property by deed

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. …

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Timing is Everything

Rasor v. Estate of Rasor, — So. 3d —, 2022 WL 945667, 47 Fla. L. Weekly D759 (Fla. March 30, 2022)

Timing really is everything, as the Fourth District explained in its recent opinion in the Rasor v. Estate of Rasor decision of March 30, 2022. 

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What is an Affidavit of Heirship?

When someone dies intestate – without a will – and leaves behind property, a probate case will need to be opened to distribute that property to the decedent’s heirs.  An Affidavit of Heirship is a sworn statement – a document which has to be signed by the proposed personal representative in the presence of a notary – that lists the decedent’s known family members at the time of the decedent’s death, and how they are related to the decedent….

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The probate court cannot prematurely discharge a personal representative, but must allow for the statutory time for objections to be filed with the court

Florida Probate Rule 5.400, entitled “Distribution and Discharge”, requires a personal representative to file a final accounting and a petition for discharge, together with a plan of distribution.  This is filed once the personal representative has completed their administration process and are about to distribute the last remaining assets.  One of the items which is also part of the petition for discharge is listing the compensation paid or proposed to be paid. …

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Relation Back Doctrine

The recent case of Estate of McKenzie through McIntosch v. High Rise Crane, Inc., 326 So. 3d 1161 (Fla. 1st DCA 2021) emphasized that a personal representative’s powers relate back and have the same effect as those occurring after a personal representative’s appointment. 

Specifically, the First District looked at the “relation back doctrine” as set forth in Fla….

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Removal of a Personal Representative in a Florida Estate

Generally speaking, a personal representative is charged with a fiduciary duty to administer the estate for the interest of its beneficiaries, and is required to observe the same standards of care as trustees.  Fla. Stat. 733.602(1).

A personal representative’s duties are set forth in the Florida Probate Code (Fla.

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What to do with a Decedent’s original last will?

When someone dies in Florida, their original last will is to be deposited – or filed – in the probate court, in the county where that person resided.  The parameters for this are set forth in Florida Statute 732.901 (which states, in relevant part):

732.901 Production of wills.—…

The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead.

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Subsequent Estate Administration

One may wonder what happens when additional property is discovered after an estate is closed and distributions are made to the beneficiaries.  For example, a life insurance policy, an unknown bank account, or perhaps some stocks may be discovered after the estate is closed.

In Florida, the method for dealing with this later-discovered additional property is governed by Florida Statute 733.903 and Florida Probate Rule 5.460 for “Subsequent Administration”. …

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Pet Trusts – Considering the What Ifs

Pets become members of your family.  You love them dearly, care for them and want to be sure they are also loved and cared for if they survive you after you die.  You may wish to consider including provisions for them in your estate plan. If do not have provisions for your pet in your estate planning documents, then you may wonder how your pet will be cared for after your death….

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