There’s been a lot of talk lately about helping consumers represent themselves in routine legal matters, without (or with limited) need for attorney involvement.  I think this is a good idea for simple matters that members of the public really can handle themselves.  Why force someone to pay an attorney if they don’t need one?

But this raises an important question, which has not been fully settled: What sort of legal matters are simple enough for a person to handle without attorney assistance?  One of the most-often mentioned is wills.  Aren’t these routine forms that a person can be trusted to fill in themselves?  Or should attorney (or paralegal) assistance be required?

Well … let’s take a look.

In re Estate of Aldrich

In the recent case of In re Estate of Aldrich, the Florida District Court of Appeals (1^st DCA) recently had to sort out the mess left behind when Ann Dunn Aldrich took a shot at making her own will using a pre-printed legal form.

The first sentence of the statement of facts reads: “On April 5, 2004, Ms. Aldrich wrote her will on an ‘E-Z Legal form.’”  (When a case starts like this, you can expect trouble.)

It turns out that Ms. Aldrich didn’t understand the importance of a residuary clause in a Last Will and Testament.  She itemized the assets of her estate and left them to her sister (Mary Jane).  If Mary Jane predeceased Ms. Aldrich, the itemized assets were to go to Mr. Aldrich.  The will left no residuary clause, probably because Ms. Aldrich thought she had listed everything and didn’t understand the distinction between specific and residuary bequests.

Mary Jane died a few years after Ms. Aldrich signed her will, leaving Ms. Aldrich with cash and land in Putnam County, Florida.  Ms. Aldrich died a few years later, without having updated her will.

When the case went to probate, two of Ms. Aldrich’s nieces popped up, claiming that they had an interest in the cash and land that Ms. Aldrich inherited from Mary Jane.  Since the cash and land were not described in Ms. Aldrich’s will, and since the will didn’t have a residuary clause, the nieces claimed that those assets should pass through Florida’s laws of intestacy.

Mr. Aldrich believed that the assets should have gone to him, for three reasons:

1. The will only listed Mary Jane and Mr. Aldrich as potential beneficiaries and left them all of the property that Ms. Aldrich owned at the time.  It was not unreasonable to conclude, then, that Ms. Aldrich did not intend for any portion of her property to pass to anyone other than Mary Jane or Mr. Aldrich;
2. Fla. Stat. § 732.6005(2) provides that a will should be interpreted to pass all property that was owned at death, including property that was acquired after the date the will was signed; and
3. There is a legal presumption that, when someone makes a will, they intend to dispose of everything that they own.  (Again, this is a reasonable assumption).

Even though Mr. Aldrich was probably right that Ms. Aldrich intended him to get everything, he lost.  The will was very clear on who was to receive specific assets and didn’t show any intent to dispose of anything else.  The will’s silence with regard to the cash and land that Ms. Aldrich inherited from Mary Jane was not an ambiguity that left room for interpretation.  The mere fact that the will did not contain a residuary clause did not give the court the discretion to revise it.  The court reasoned:

While the will does not dispose of all the property Ann Dunn Aldrich owned at her death, this circumstance is hardly unique to her or her estate and does not contravene any rule of law or public policy.  Nor does the will reflect any mistake on her part … It does not matter whether or not Ann Dunn Aldrich owned real property in Putnam County or held [cash] at the time she executed her will, or acquired the real property and deposited the cash afterwards.  In either event, the will as written and executed failed to dispose of those unmentioned assets.

Under Florida law, when a will doesn’t dispose of all of a decedent’s property, the property that is not disposed of passes under Florida’s intestacy laws.  Since there was no residuary clause in the will, the court held that Ms. Aldrich’s nieces did have an interest in the cash and real estate that Ms. Aldrich inherited from her sister after she executed her will.

A competent attorney wouldn’t have let this happen.  The will would have had a residuary clause leaving everything to Mr. Aldrich if that was Ms. Aldrich’s intent.  If that wasn’t her intent, the will would have stated that any property not disposed of should pass to her heirs at law.  In either event, her intent would have been clear and this mess would have been avoided.

And here’s the real kicker:  A simple will like this shouldn’t cost more than several hundred dollars. One can only wonder how much of her estate went to legal fees to battle this out in court.

Lessons Learned(?)

So are wills routine legal documents that can be prepared without assistance?  In some cases, yes.  But when things go wrong, they can go really wrong.  As I mentioned in a recent post:

When it comes to reliance on forms without the advice of attorneys  …  To be honest, sometimes these things work out okay.  But sometimes they don’t. We, as attorneys, see what happens when it all hits the fan.

This case is an example of that.  Of course, the person who made the will never knew (she was dead by the time the problem was discovered).  But I’d bet that, had she known what would happen, she would have gladly spent a few hundred dollars to have a proper will drawn up.  It would have been cheap insurance against the risk involved.

One of the most frequent questions I get from clients has to do with Florida intestate law.  Clients want to know what happens when someone has died without a will.

Intestate succession can vary from state to state, but usually the decedent’s assets will pass to his or her spouse and children in various proportions.  Florida intestate laws are no different.  The Florida Probate Code divides a deceased person’s estate between his or her spouse and children.  But the question of who gets what depends on the decedent’s family situation.

If the Decedent Was Married and Had No Descendants

This is the easy one:  If the deceased person was married but has no living descendants (children, grandchildren, etc.), the spouse gets everything.

If the Decedent Was Married and Had Living Descendants

If the deceased person was married and had living descendants, the spouse gets one-half of the estate and the descendants will share the balance of the estate equally.  If all of the descendants are all the spouse’s children (as opposed to being children from another marriage, for example), the spouse gets an additional $60,000 off the top, before the estate is divided.

For example, suppose that John dies leaving a surviving spouse (Mary) and two children (Jack and Jill).  He had $300,000.00 in assets.  If Jack and Jill are not Mary’s children, Mary would get $150,000 in assets and Jack and Jill would get $75,000 each.  But if Mary is the mother of Jack and Jill, she would get $180,000 ($60,000 off the top plus $120,000 as her half of the $240,000 balance) and Jack and Jill would each get $60,000.

Suppose that Jack is Mary’s son but Jill is a child from a prior marriage.  Does Mary get $60,000 off the top?  No.  In order for Mary to get the $60,000, Mary must be the mother of all of John’s descendants.  If even one of John’s descendants is not also Mary’s descendant, Mary’s share is limited to one-half of the estate.

If the Decedent Was Unmarried and Had Living Descendants

If the decedent had no spouse but had living descendants, the descendants get everything on a per stirpes basis.  This means that the estate is divided at each generation, with children of any deceased parent to take the share their parent would have taken.

Suppose that John was unmarried at the time of his death.  John had three sons, Curly, Larry, and Moe. Moe died before John, leaving two sons, Little Moe and Shemp.  John’s estate would be divided in equal thirds at the first generational level (his children).  Curly and Larry would each get one third.  Since Moe predeceased John, his one third would pass to Little Moe and Shemp in equal halves, giving them one-sixth each.

If the Decedent Was Unmarried and Had No Descendants

If the decedent was unmarried and had no descendants, his estate would pass to more remote family members in order of priority:

• First, his estate would pass to his father and mother equally.  If only one of them survive the decedent, that parent would get everything.
• Second, if the decedent’s father and mother are dead, his estate would pass to his brothers, sisters, and descendants of deceased brothers and sisters on a per stirpes basis.
• Third, if there is no surviving father, mother, siblings, or descendants of siblings, the estate is split equally between the decedent’s mother’s relatives and the decedent’s father’s relatives.
  • The grandmother and grandfather (or the survivor of them) on each side would have first rights.
  • If the grandmother and grandfather are deceased, the estate would go to uncles, aunts, and descendants of deceased uncles and aunts.
  • If there are no surviving relatives on the mother’s side of the family, everything will go to the father’s side of the family, and vice versa.

So there’s the nuts and bolts of Florida intestate distribution.  Check our article on Florida Intestacy and Intestate Succession for more information.

So how long does it take to probate a will in Florida?  This is not an easy question to answer precisely, but it’s possible to give a few guidelines that hold true in most cases.

The length of probate in any state depends on whether creditors must be notified and the length of the creditor claims period.  These creditor claims period set a floor (but not a ceiling) on how much time it will take to probate the estate.

For example, Mississippi probate law provides for a 90-day period during which creditors can submit claims.  This means that it is impossible to close a Mississippi estate is less than 3 or 4 months, but the estate proceeding could take much longer.  The creditor claims period in Alabama probate is 6 months. This again sets a minimum amount of time that the estate must remain open.

In Florida formal probate administrations, all claims must be filed within 3 months of the date that notice to creditors is first published (but not less than 30 days after any known creditors have been provided with actual notice).  Assuming that it takes several weeks to get to the point where notice is first published, this means that it is impossible to close the estate in less than 4 months.   A 6 to 8 month timeframe would be more reasonable for most estates. 

Beyond these general guidelines, though, this is one question I can’t answer with much precision.  There are too many variables involved.  For example, what if real estate needs to be sold during the probate proceeding?  A house that sits on the market for a year or more will obviously lengthen the time it takes to wrap up the probate proceeding.

We could talk about other variables, like whether estate tax returns are needed or litigation is involved. These complicating factors lengthen the time it takes to probate the estate. But if we stick to the simple estates, where there are no complicated tax or creditor issues and everyone gets along, you can expect the probate process to take between 6 and 8 months. 

Statutes sometimes use language that is less than clear.  Case in point: Florida Statutes 193.155 (Homestead Assessments), which borrows the phrase “naturally dependent” from the homestead language of the Florida constitution.  In Willens v. Garcia, Florida’s 3DCA had to interpret this language in an appeal from the Miami-Dade County Circuit involving inheritability of the homestead tax benefits provided under Florida law.

Shane Willens served as the “full-time, in-home, resident caretaker for his stroke-bound father” for some 20 years.  From 1992 until his death, Shane’s father was protected by the Save-Our-Homes cap, which limits the annual increase of the assessed value of homestead property to 3 percent annually.  When Shane’s father died, Shane acquired his father’s home as remainderman under a life estate deed.  The Miami-Dade County property appraiser then reassessed the home at true value.  Shane objected, claiming that the transfer of the property to him was not a true change in ownership for purposes of the Florida homestead tax statutes.

Florida Statutes 193.155(3)(a) requires that Florida homestead property be “assessed at just value as of January 1 of the year following a change of ownership.”  The change in ownership terminates any benefit that the prior owner enjoyed due to the Save Our Homes cap.  But not every change in ownership is a “change in ownership” within the meaning of the statute.  There are several statutory exceptions, one of which applies to a “transfer [at death] between the owner and another who is a permanent resident and is legally or naturally dependent upon the owner.”

Shane claimed that he was “naturally dependent” on his father and thus statutorily protected against a reassessment of the property at fair market value.  The trial court rejected this argument and allowed the property to be reassessed at true value.  On appeal, the 3DCA had to determine what the phrase “naturally dependent’ means in the context of Florida homestead tax exemption. Since the phrase “legally or naturally dependent” is not defined in the Florida statutes, the Court had to decide, with little guidance, how that phrase would apply to Shane’s situation.

Shane argued that “naturally dependent” included the concept of “moral obligation.”  Under this line of reasoning, Shane was morally obligated to support his father and thus naturally dependent on him for the years that he supported him.  Shane buttressed his argument with a 1982 Attorney General opinion that found that natural dependent included moral dependency.

The Court rejected Shane’s argument, stating that the 1982 Attorney General opinion was “based upon questionable reasoning.”  The Court found a 1938 Attorney General opinion to be more persuasive. That opinion, which interpreted a prior version of the homestead law that was similar to the one at issue, held that “naturally dependent” refers to “persons related by blood to the owner of the property” that depend on the owner for support.  Finding that Shane did not qualify under this definition, the Court upheld the reassessment of the homestead property at full value.

The opinion is full hints that the court was sympathetic to Shane’s situation.  The court repeatedly used laudatory language to refer to Shane (e.g., stating that Shane’s “multi-decade sacrifice of himself for the benefit of his father is laudable, indeed heroic in its proportions”).  But there were gaps in Shane’s reasoning.  If anyone was dependent on anyone, it was Shane’s father that was dependent on him. At the end of the day, there wasn’t a logical basis for reversing the dependency and finding that an “able-bodied adult” was somehow dependent upon the one he took care of.  And that was fatal to Shane’s position.

Willens v. Garcia, 36 Fla. L. Weekly (Fla. 3d DCA 2011)

I’m going to go slightly off-topic today because I think this case is worth it.  It involves the intersection of parental rights and freedom of religion.  And it is at least tangentially related to probate and estate planning since this type of issue could have a bearing on who to name as a guardian of a minor child.

Winters v. Brown [1] involved a court dispute between unmarried parents over the mother’s views on health care.  As stated by the court:

Mother is a chiropractor and a proponent of holistic medicine. A tenet of her religious beliefs is that God has provided the human body with an innate immune system that enables the body to heal itself. Mother believes that anything introduced into the body to prevent disease or treat illness is against the will of God. Specifically, Mother opposes vaccinations.

Father, on the other hand, thought that the child should “receive traditional medical care, including well baby exams, blood draws, urinalysis, and vaccinations.”

The trial court had to decide who had the ultimate responsibility for the child’s health care.  The law cannot restrict exposure of a child to his or her parent’s beliefs and practices.  But Florida recognizes an exception to this rule if there is “a clear, affirmative showing that these religious activities will be harmful to the child.”[2] The trial court’s job was to apply these principles to this case.

Both the mother and father had put on expert testimony in the trial.  The father’s expert witness testified, not surprisingly, that vaccinations were very safe and effective and that all sorts of calamity would ensue if children were not vaccinated on the prescribed schedule.  The mother’s expert witness testified that one in five children in the U.S. suffer from neurodevelopmental disorders that may have been caused by vaccinations.  He concluded that “it’s less harmful for a child not to be vaccinated than it is for a child to be vaccinated.”

After hearing the expert testimony, the trial court determined that the father should be allowed to make decisions regarding the minor’s health care and vaccinations.  The court stated:

The issue . . . is not one of simply exposing the minor child to the mother’s religious beliefs and practices, it involves an issue that could cause physical and serious harm to the minor child. When parents cannot agree, the court is called upon to break the impasse, and that decision must be made in the best interests of the minor child.

On review, District Court’s job was to determine if the trail court’s decision was supported by competent, substantial evidence.  Under this standard of review, the District Court can’t substitute its judgment for that of the trail court.  If there was a basis for the trial court’s decision, it will stand.

Without much comment, the District Court affirmed the trial court’s decision, claiming that it was supported by competent, substantial evidence.  But was it?  Keep in mind that, for the decision to have been upheld, the “competent, substantial evidence” must have been enough to support “a clear, affirmative showing that these religious activities will be harmful to the child.”

In this case, the mother put on testimony to from a credible expert in the field that the immunizations could actually be harmful. And there is a bourgeoning field of research to indicate just that.  The issue was not whether it could be conclusively proved that the immunizations were or were not harmful, but whether it could be clearly and affirmatively demonstrated that the mother’s health care practices would be harmful to the child.  Given the conflicting testimony involved, not to mention the mother’s educational background, can we really say that there was a “clear, affirmative showing” that going without vaccinations would be harmful to the child?  Or is this another example of the tyranny of the majority in action? I think the District Court dropped the ball on this one.

One wonders how this would have played out in the eighteenth century, when leeching was still an accepted form of practice by the medical community.  History has shown that the medical consensus has proven wrong in many cases, most often when it defies common sense.  And this hasn’t been remedied by scientific advances.  Even within today’s medical community, debates continue about the overuse of cesarean sections, tonsillectomy, appendectomy, and various other procedures that may be considered “routine” in one decade and unnecessary or harmful in the next.

In my opinion, this was an unnecessary infringement on the mother’s religious liberty and parental rights. I know families who have foregone immunizations and have children that are as healthy as any.  And I had an estate planning client recently whose adult daughter had been institutionalized all of her life due to a neurodevelopmental disorder that was caused by her vaccinations.  I get nervous when I see religious beliefs infringed just because they are a little outside the box.  Given the religious liberties and parental rights at stake in this case, the District Court was obliged to look at this a little more closely than it appears to have done.

[1] 36 Fla. L. Weekly 175a (Fla. 4^th DCA 2011).

[2] Mesa v. Mesa, 652 So.2d 456, 457 (Fla. 4^th DCA 1995) (emphasis added).

I wrote recently about the definition of an “interested person” under Florida law and gave a few examples of who is and isn’t an interested person for purposes of Florida probate.  Today I want to take a look at a few more examples of interested persons under Florida law.

• Florida Personal Representatives – It should be obvious that Florida personal representatives have an interest in Florida probate proceedings.  But Florida law has a specific provision just in case.  Florida Statutes § 732.201(23) provides: “In any proceeding affecting the estate or the rights of a beneficiary in the estate, the personal representative of the estate shall be deemed to be an interested person.”  But there is case law stating that these rights come into existence only when the estate is actually opened with the court.[1] The fact that a person is named as personal representative in an unprobated will may not be enough.
• Heirs and Devisees of the Estate – Heirs (those who inherit from the decedent through intestacy) and devisees (those who inherit through the decedent’s will) are also considered interested persons.  Again, no surprises here.  Heirs and devisees are clearly affected by the outcome of the probate proceeding. 
• Trustees of Most Revocable Trusts – As mentioned previously, trustees of trusts that were established by the decedent and, at the time of the decedent’s death, revocable by the decedent (whether acting alone or in conjunction with someone else) are considered interested persons.  This arrangement covers the traditional revocable trust/living trust estate planning arrangement.
• Assignees of Heirs – What about those who acquire an heir’s interest in the estate?  Are they considered interested persons?  The answer is a clear “yes.” “An assignee of an intestate heir of an estate steps into the shoes of the intestate heir and may appear as a party in interest in a probate proceeding.”[2]
• Prior/Alternate Personal Representatives – Personal representatives under earlier wills may have standing to contest later wills.[3]
• Creditors – Creditors may be interested persons if they are affected by the outcome of the probate proceeding.  For example, one case[4] involved a claimant’s claim against an estate had been stricken, and the order striking the claim was on appeal. The second district held that the claimant was an interested party.  Another case[5] held that a low-priority creditor was an interested person even though the estate had no assets with which to pay the claim.

I plan to wrap this up within the next couple of days with examples of individuals who are not interested persons under Florida law.

[1] Onofrio v. Johnston & Sasser, P.A., 782 So.2d 019 (Fla. 5^th DCA 2001).

[2]Morse v. Clark, 890 So.2d 496 (Fla. 5^th DCA 2004).

[3] Wheeler v. Powers, 972 So.2d 285 (Fla. 5^th DCA 2008); Engelberg v. Birnbaum, 580 So.2d 828 (Fla. 4^th DCA 1991).

[4] Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986).

[5] Arzuman v. Estate of Bin, 879 So.2d 675 (Fla. 4^th DCA 2004).

I answered a question from a prospective client recently about the inventory of the Florida probate estate.  Specifically, the client asked whether the personal representative had a duty to file an inventory and what disclosure requirements apply under Florida law.  I thought I’d share a beefed-up version of the answer here.

Florida law generally requires the personal representative to file an inventory of the assets of the estate, including their estimated fair market value at the time of the decedent’s death.  Clients are sometimes concerned about this requirement.  What if an unscrupulous creditor sees deep pockets and fraudulent inflates his or her claim against the estate?  Or what if a thief combs the probate records to look for valuables that can be stolen?

Thankfully, Florida law provides for confidentiality of the personal representative’s inventory.  Effective July 1, 2009, all estate inventories are confidential and not disclosed in public records.  But the confidentiality is not absolute.  The court clerk must disclose the inventory for inspection or copying to:

1. The personal representative or his attorney;
2. An  interested person; or
3. By court order upon a showing of good cause.

Under Florida Probate Rule 5.340(d), the personal representative must also serve copies of the inventory “on the Department of Revenue, the surviving spouse, each heir at law in an intestate estate, each residuary beneficiary in a testate estate, and any other interested person who may request it in writing.”

The personal representative must also notify each beneficiary that he or she has a right to request the inventory.  If the beneficiary requests the inventory, the personal representative should provide it promptly.  Florida Statutes 733.604(1)(a) provides:

Upon written request to the personal representative, a beneficiary shall be furnished a written explanation of how the inventory value for an asset was determined, or, if an appraisal was obtained, a copy of the appraisal, as follows:

(a)To a residuary beneficiary or heir in an intestate estate, regarding all inventoried assets.

(b)To any other beneficiary, regarding all assets distributed or proposed to be distributed to that beneficiary.

And interested parties can request information about how values are determined. For example, interested parties may want to know whether an appraiser was used and, if so, which appraiser was involved.  The personal representative must furnish this information to interested parties upon request.

Practice Note: To best protect the inventory from inadvertent disclosure, the Florida probate attorney should file a Notice of Confidential Information within Court Filing along with the inventory.  This puts the clerk on notice that the inventory should not be made available to the general public.