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  • General FAQ

    • How long does probate take in Florida?
      The length of the probate process in Florida depends on the type of proceeding. There are two primary types of probate in Florida: formal probate administration and summary probate administration. In addition, in limited circumstances, disposition without administration may be available as an option. Formal probate administration typically takes between six and nine months from start to finish. Summary probate administration, which is reserved for estates worth less than $75,000 that have no debt, can take as little as one month to complete.
    • Does Florida probate require and attorney?
      In most circumstances, a personal representative must hire a Florida probate attorney to assist with the probate process. The only situations where it isn’t necessary include summary administration, disposition without administration, and any estate where the executor is the sole beneficiary. However, it is advisable to seek legal guidance regardless of the type of probate proceeding.
    • What size estate will require a Florida probate attorney?
      Generally, estates worth $75,000 and above require a Florida probate attorney. There are only some instances where a lawyer isn’t necessary. As noted above, these include summary administration, disposition without administration, and any estate where the executor is the sole beneficiary.
    • Why should I hire an estate planning attorney?
      There are several reasons to hire an estate planning attorney, including:
      • Estate planning is extremely complicated
      • No two estate plans are exactly the same, so a lawyer is necessary to design a custom plan
      • The one-size-fits-all estate planning documents available online fail to take people’s unique estate planning needs into consideration
      • An estate planning attorney can take steps to avoid the probate process
    • What is the estate planning process?
      Estate planning is a process in which an estate planning attorney works with an individual to determine how his or her assets will be preserved, held, and distributed after his or her passing. It also involves planning for the management of a person’s property and financial obligations should he or she become incapacitated.
    • What can a probate litigation attorney do for me?
      When a person dies, his or her assets must pass along to the rightful beneficiaries and/or heirs. Probate is the process by which this happens when a decedent has no will, has a will, or has a trust but failed to place all his or her assets into the trust. In some cases, disputes arise regarding the distribution of assets during probate. When probate-related disputes arise, a probate litigation attorney provides legal guidance to individuals, beneficiaries, heirs, executors, and trustees to help ensure a satisfactory resolution.
    • Do I need a will contest lawyer to contest a will in Florida?
      A will expresses a party’s wishes regarding how his or her assets are to be distributed to beneficiaries after his or her death. A will contest is an effort to invalidate the will of a deceased person. A will may be contested for a variety of reasons. To contest a will, a party must have the legal standing and the legal basis to do so. In addition, there are strict deadlines for filing a will contest in Florida. In other words, will contests are complicated. Therefore, although not required by law, anyone seeking to contest a will in Florida should seek the assistance of an experienced will contest lawyer.
    • Who pays legal costs when contesting a will?
      When a party contests a will, he or she must pay all upfront costs for beginning a court case. As litigation progresses, the contesting party must pay to hire attorneys and other professionals. If a person loses a will contest, he or she may have to cover court costs for the prevailing party. In addition, when considering whether to contest a will, a party should first assess the value of the estate. If the estate is small, a will contest could potentially badly deplete the estate.
    • Is a probate administration attorney necessary?
      In most cases, a personal representative must hire an attorney to assist with probate administration. However, even in cases in which a probate administration attorney isn’t required by law, it is advisable to hire an attorney for assistance with probate administration. Below are a few examples of the ways a probate administration attorney can help with the probate process:
      • Prepare legal documents:  Regardless of the size of the estate, the probate process requires the preparation and submission of a lot of paperwork. Without extensive knowledge of the probate process in Florida, completing and submitting all required documents by their respective deadlines can be challenging. A knowledgeable estate administration lawyer will ensure that all required probate documents are legally sufficient and submitted in a timely manner.
      • Prevent claims against the estate: During the probate process, people may attempt to make claims against the estate. An experienced and knowledgeable probate administration lawyer can reduce the filing of such claims by ensuring that the probate administration process proceeds in a timely manner without unnecessary delays. 
      • Mitigate disputes: Disputes among family members often arise during the probate administration process. An attorney can help mitigate such issues. 
      • Interpret the will: Wills are complicated legal documents, and they can be difficult to interpret, especially if prepared by a non-attorney. An experienced attorney can help an estate’s personal representative interpret the terms of the will to ensure that the decedent’s wishes regarding his or her property are honored.  
      • Management of creditors: Regardless of the size of an estate, creditors are often one of the biggest concerns during the probate administration process. In Florida, creditors receive higher priority than beneficiaries, so it is important to hire an experienced attorney to accurately determine the full extent of an estate’s creditors when a person passes away.
    • What are the duties of a probate administration attorney?
      A Florida estate administration lawyer helps guide the personal representative through the probate administration process, ensuring that all legal requirements are met and that the personal representative has the information necessary to faithfully carry out his or her duties under Florida law.
  • Probate

    • What is the role of a Florida probate attorney?
      The job of a Florida probate attorney is to guide the personal representative (also sometimes described as the executor or administrator) through administration of the estate, helping ensure that all technical requirements are met and that the personal representative understands and has the information necessary to carry out his or her responsibilities.
    • How much does it cost to hire a probate attorney?

      The cost to hire a Florida probate attorney depends on the type of administration, the size of the estate, and whether there are any out-of-the-ordinary issues to be addressed in the probate process.

      Florida law allows for the payment of “reasonable compensation,” and sets forth a table of fees that will be presumed to be reasonable. These start at a $1,500 flat fee for estates valued at $40,000 or less and shift to a percentage-based formula for estates valued at more than $100,000.

      However, the attorney and personal representative may agree to a different method of determining fees, so long as the method is reasonable and no interested party objects. And, services that fall outside the normal administration of an estate may result in additional fees. Your probate attorney will be able to provide more specific information about the likely fees associated with an estate matter like yours.

    • How long does probate take?
      How long probate takes varies depending on the type of administration and the complexity of the estate. The probate process always takes more than three months, because creditors are allowed 90 days to submit claims. A summary administration—that is, a small estate that is administered informally—may often be completed in four to six months. However, formal administration typically takes several months, and often more than a year. In a particularly complex administration or where issues such as will contests and contests over valuation of property arise, the matter can stretch out for two years or more.
    • Do I need a Florida probate attorney?

      In most Florida probate cases, the Florida Rules of Civil Procedure require that the personal representative be represented by an attorney. This requirement is to the advantage of both the personal representative and the beneficiaries, since the probate process can be daunting and confusing. There are some limited exceptions, such as for estates in which the personal representative is the sole beneficiary. However, it is generally in the personal representative’s best interest to hire a probate attorney even when one is not required, as small mistakes can create serious complications.

      Beneficiaries typically do not need their own probate attorneys, but may choose to hire one if conflicts arise or they have reason to believe that the personal representative is acting dishonestly or is not fulfilling his or her responsibilities.

    • Can probate fees be paid from the estate?
      Yes. In fact, costs of administering the estate are the number one priority under Florida law, meaning that they are paid before any other debts or obligations of the estate, and before any assets are distributed to heirs or beneficiaries.
    • How does a probate attorney/lawyer get paid?
      The probate attorney’s fees are paid by the estate. The personal representative may pay reasonable attorney fees from the estate assets without a court order.
    • Who does a probate attorney represent?

      A Florida probate attorney represents the personal representative in his or her capacity as administrator of the estate. This is an important qualification, as the probate attorney does not serve the personal representative in connection with any separate role he or she may play, such as beneficiary of the estate.

      If you believe that you have reason to contest a loved one’s will, you will want to consult with an experienced estate litigation attorney as soon as possible, to ensure that you are prepared to move forward quickly.

    • How do you settle an estate without probate?

      Generally, the probate process is required to legally transfer property of the estate to beneficiaries. Under certain limited circumstances, though, Florida law allows for “disposition without administration.” This type of disposition is available only when the estate consists solely of personal property that falls within specific limits and the property is being release to the person who paid funeral expenses and medical expenses in the 60 days preceding the death.

      Probate may also be avoided when the deceased made other provisions for all property to be transferred, such as placing everything he or she owned into a living trust so that there is no property belonging to the estate.

    • Who gets paid first from an estate?

      Florida law sets forth the order of priority for payment of estate obligations and distribution of assets, and there are quite a few expenses and other obligations to be paid before heirs and beneficiaries. Top priority goes to costs of administration and compensation to the personal representative and his or her attorney—in other words, the actual costs of getting the estate settled.

      Funeral and burial expenses come next, followed by debts of the estate, which are broken out into several levels of priority.

    • What funeral expenses can be paid by an estate?

      Any reasonable funeral, interment, and grave marker expenses may be paid by the estate, up to an aggregate total of $6,000. These expenses may be paid directly or may be paid as reimbursement to any person who advanced the funds to cover the expenses.

      Will contests based on allegations of undue influence are particularly difficult, since the influenced person is no longer available to testify or otherwise provide information, and the boundaries as to what constitutes undue influence are somewhat subjective. Thus, it is generally in your best interest to get guidance from an experience will contest lawyer.

    • What assets are subject to probate?

      All assets of the deceased are subject to probate unless other provision has been made. Some examples of assets that would not pass through probate would include a retirement account with a direct beneficiary listed, a bank account that is jointly held with rights of survivorship, or a life insurance policy with a listed beneficiary. Assets contained in a living trust do not pass through probate because they are property of the trust and not of the deceased.

      While probate litigation is an adversary proceeding opened in an existing probate case, passing property through a trust doesn’t require involvement of the probate court. Thus,  challenging the validity or administration of a trust requires initiating a lawsuit.

    • What do I need to bring to a probate lawyer?

      You may not have all of the documents and information you need when you initially meet with your probate attorney, but the more you can assemble and bring with you to that meeting, the more quickly and smoothly you can begin to move the probate process forward.

      Some important documents you should provide to your attorney include the death certificate, the will or trust documents, as complete a list of assets as you have been able to assemble, bank account information, retirement account information, and any life insurance policy. This list is not exhaustive, and it’s better to err on the side of over-inclusion, so if you are unsure whether certain documents will be useful or not, take them along and let the attorney determine which are needed.

    • Does the executor have the final say?

      The executor of an estate (called the “personal representative” in Florida) has the power to make decisions in furtherance of settling the estate and making distributions to heirs and beneficiaries. However, the personal representative must act in accordance with the terms of the will, with Florida law, and with any orders entered by the probate court.

      If an interested party feels that the personal representative is not following the will or the law, or that the personal representative is not acting in the best interests of the estate, he or she may be able to challenge those actions in probate court, or petition to remove and replace the personal representative.

    • Can the executor of the estate take everything?
      The personal representative, also known as the executor in some states, is bound to manage the estate in accordance with the terms of the will or, in the absence of a will, the laws of intestate succession. Florida law creates a strict hierarchy for payment of expenses and debts of the estate before assets are distributed to beneficiaries, and an interested party who believes the personal representative is misdirecting assets has recourse through the probate court or, in some cases, through a separate lawsuit against the personal representative.
    • What debts are forgiven at death?
      While any creditor is of course free to forgive a debt when the person who owes the money dies, debts are not forgiven by operation of law, and forgiving debts is not standard practice for most creditors. The estate will typically be responsible for debts remaining at death. However, in most cases, heirs and beneficiaries are not responsible for debts of the decedent. If there are not sufficient assets in the estate to cover outstanding debts, the lower priority debts will go unpaid and creditors cannot pursue family members for payment unless they were obligated on the debt, such as having co-signed for the loan.
    • Can property be sold during probate?
      Yes. It is often necessary for the personal representative to sell property during probate, in order to convert assets to cash to pay costs of administration, debts of the estate, and to make distributions that don’t involve the direct transfer of property. In most cases, the personal representative can take this action on behalf of the estate, without a court order. However, there are limitations on certain types of transfers, such as sales to interested parties and the transfer of certain real property. A probate attorney can assist in understanding which property will require special measures before sale.
    • Do bank accounts have to go through probate?
      Whether or not a bank account passes through probate depends on how the account was held at the time of death. For instance, a bank account that is owned by a living trust will remain property of the trust, and management of the account will pass to the successor trustee. A bank account that is jointly held with rights of survivorship will pass to the co-holder without having to pass through probate. But, any property of the deceased that does not pass through another legal channel like the ones described above must be transferred through the probate process.
    • Do executors have to give an accounting to beneficiaries?
      The personal representative is required to file various inventories and accountings with the probate court, and beneficiaries have a right to obtain and review these reports. In addition, beneficiaries have the right to request that the court order the personal representative to provide an interim accounting during probate. And, beneficiaries may request further explanation of some aspects of probate reporting, such as how the personal representative arrived at valuation of assets.
    • Can the executor of the estate be sued?
      Under certain circumstances, an “interested party” may sue the personal representative of an estate.  In fact, a will provision relieving the personal representative of personal liability will be deemed invalid if it excuses the personal representative from legal responsibility for breach of fiduciary duty committed in bad faith or with reckless indifference. However, personal representatives enjoy some legal protection from liability. For instance, a personal representative is not liable for any action taken with leave of the court. If you are the beneficiary of an estate and believe that the personal representative has failed to fulfill his or her duties and you have been harmed or are being harmed by that failure, consult a local probate attorney about your options as soon as possible.
    • How long after a person dies does the estate have to be settled?
      There is no specific time limit for settling an estate, though probate courts favor efficient administration. If you are the beneficiary of an estate that has stalled, you may be able to ask the court to enter an order creating deadlines for completion of certain tasks or phases of the estate administration. However, be aware that what seems like a long time for a beneficiary awaiting an inheritance isn’t necessarily an unreasonable time in terms of a probate proceeding. While small estates can often be wrapped up in a matter of months, some estates are in probate for more than a year.
  • Estate Planning

    • What is an estate?
      A: All of the property you control or own—or that may be generated upon your death, such as life insurance— is your estate. You may be the sole owner of this property, or share ownership. Your estate includes these items and more: 
      • Real property, such as houses and buildings
      • Personal property, such as cars, stocks and bonds, bank accounts, mutual funds, cash, jewelry and furniture
      • Life insurance, IRAs, pension benefits, and obligations or debts owed
      • Businesses and business interests
    • Why should I have an estate plan?
      In addition to the benefits outlined above, an estate plan gives you control over how your assets will be managed after your death and ensures your end-of-life wishes are carried out. Without a will or other estate documents, any decisions will be dictated by Florida law, which may or may not be in line with what you would have wanted if you’d had a say in your affairs. Another important reason to have a will and estate plan is that it relieves family members of having to make decisions and minimizes conflict over your estate.
    • Can't I create a will without an estate planning attorney?
      In short, yes, and there are plenty of software and online options to do so. But there are a number of excellent reasons why you should work with an experienced estate planning and probate attorney. A will that’s incorrectly written or improperly executed may be found to be invalid, and the rules that govern the drafting of wills varies from state to state. It’s very easy to make errors while preparing your own will, and some of them can have significant effects later on. It’s also easy to overlook the inclusion of some assets or omit clear instructions on how your estate should be administered. It’s also very important to have an estate planning lawyer work with you to draft a will that will withstand the probate process and accurately reflect all of your wishes
    • I want to change my existing will. How do I do that?
      In order to change your will, you will need to execute an amendment or execute a new will. In either instance, the guidance of an estate planning lawyer is essential. An amendment, or codicil, must make proper reference to your existing will that remains in effect, and must be signed in the presence of witnesses and be notarized. A new will should include language that makes it clear that you are revoking your previous will. A qualified attorney will ensure that either a codicil or new will is properly prepared and valid.
    • What is probate?
      When a testator dies, his or her will must be submitted to a probate court for execution. This is the legal process that carries out the administration of your estate and is overseen by a probate judge. The judge determines whether the will meets the requirements of Florida law. If there is no valid will at the time of the testator’s death, the legal process of administering and closing out his or her estate is still governed by the probate judge. The probate process can be complicated, so it’s best to have an estate planning and probate attorney assist you in identifying estate assets, working with creditors, and managing the distribution of your assets to your beneficiaries.
    • What is a living will?
      There is often confusion surrounding the meaning of the term “living will.” Unlike a traditional will that sets out instructions for how your assets will be distributed after your death, a living will goes into effect while you are still living. A living will gives you the opportunity to provide specific instructions, in advance, for your end-of-life medical care, including whether you wish to be kept alive by life-support apparatus and/or want other measures taken to prolong your life. Because a person cannot know when he or she may be incapacitated and unable to express such wishes, it’s important to have proper documentation that makes those wishes clear.
    • What is power of attorney?
      This is a legal document that allows you to delegate authority to another person, with the definition of that authority spelled out in the document. A power of attorney may grant another person the right to sell a property, access financial accounts, sign legal documents, or other such “powers.” A power of attorney is a very important document and is subject to complex laws and regulations, so it should be drawn by an experienced attorney.
    • What does "testate" and "intestate" mean in estate planning?
      In the simplest terms, a person is said to die testate when he or she has a valid will in effect at the time of death, and intestate when there is no valid will. The laws of “intestate succession” dictate that the legal system will determine how your estate is distributed. If you die intestate—or if your will is not properly prepared and therefore invalid—you will have had no influence on or control over who receives assets from your estate. Having a will prepared by an experienced estate attorney is the best strategy for ensuring your estate is distributed according to your wishes.
    • What should I know about estate taxes?
      The government levies taxes on the estate of a deceased person, but Florida does not have an estate tax (or an inheritance tax). If you inherit property from someone in a state that does have an inheritance tax, however, you may be taxed. There may also be federal estate taxes that apply to your unique situation, so you should consult an estate planning attorney for more information about state and federal estate and inheritance taxes.
    • When should an estate plan be updated?
      Ideally, you should meet with your estate planning attorney every few years to keep your will current and make sure it stays in compliance with any changing Florida laws. You should at least update your will whenever you experience a significant change in your life, such as marrying, divorcing, or having a child.
  • Undue Influence

    • What constitutes undue influence in Florida?
      Undue influence in estate planning occurs when a person is pressured, tricked, or in some other way compelled by a third party to execute estate planning documents that do not reflect his or her true wishes. Simply making a suggestion or offering advice generally does not constitute undue influence. Rather, a party challenging a will or other legal document on the grounds of undue influence must typically show that the person executing the document was particularly vulnerable to influence as a result of his or her circumstances and relationship to the influencer.
    • Who may be liable for undue influence?
      While many factors are considered in assessing whether undue influence occurred, a person found to have exerted undue influence must have enjoyed a confidential relationship with the decedent, and must have actively participated in procuring the will or trust. Active procurement is established largely, though not entirely, through consideration of “the Carpenter factors”—factors set forth by the Florida Supreme Court in an undue influence case in 1971.
    • What are the Carpenter factors?
      In determining whether a person exerted undue influence in the creation of a will or trust, the Florida Supreme Court has directed judges to consider the following seven factors:
      1. Was the accused beneficiary present when the will was executed?
      2. Was the accused beneficiary present when the deceased discussed his or her desire to make a will or create a trust, and his or her intentions regarding beneficiaries?
      3. Was the attorney who drafted the will recommended by the accused beneficiary?
      4. Did the accused beneficiary have knowledge of the contents of the will or trust prior to execution?
      5. Did the accused beneficiary provide instructions to the attorney drafting the will or trust document?
      6. Did the accused beneficiary recruit the witnesses to the will?
      7. Was the accused beneficiary in possession of/responsible for safekeeping of the document after execution?
      These factors need not all be present to establish undue influence, and other factors may be considered in addition to this list.
    • What other types of factors will a court consider in determining undue influence?
      A court may also consider factors such as: 
      • Whether the accused beneficiary actively kept the deceased isolated and fostered alienation of family members
      • The reasonableness of the terms, which is not alone sufficient to invalidate a will, but may be evidence of undue influence
      • Mental disparity between the decedent and the accused beneficiary, such that the decedent could have been easily influenced
       This list is not exhaustive. The Carpenter court specifically stated that courts could consider additional factors in determining undue influence, and the evidence considered will depend to a degree on the specifics of the case.
    • How does undue influence occur?
      Undue influence happens in many ways, but there are common threads. For example, the person subjected to undue influence is somehow vulnerable. This may be because he or she is ill and dependent on a family member or other caretaker, because his or her cognitive abilities are fading, or simply because isolation has eliminated checks and protections that might otherwise prevent that person from being victimized. Second, the influencer exerts some degree of control in procuring the will or trust. The Carpenter factors describe some ways in which this procurement might occur, but the list is not exhaustive. For example, a caretaker could talk an elderly patient through the process of generating a will online rather than involving an attorney at all, or even draft a document for the charge to sign using forms. The bottom line is that undue influence occurs when someone in a position of trust takes advantage of the weakness or vulnerability of another person to persuade or coerce that person to create a will or trust that benefits the influencer.
    • What are some examples of undue influence?
      No one factor determines undue influence. However, some common undue influence scenarios include: 
      •  A caretaker on whom a sick or elderly person depends playing on that person’s fear of being neglected or left alone to convince him to change his will to benefit the caretaker
      • One family member who is local running interference with the rest of the family to convince the vulnerable person that the influencer is the only one who cares about her and thus is the only one who should benefit from the estate
    • What are the warning signs of undue influence?
      Undue influence is often discovered after the fact, when the deceased’s will is submitted to probate and family members learn of a radical change compared with a longstanding will or what the testator has led them to expect. But, awareness of the risk factors and signs associated with undue influence can help protect your loved ones during their lifetimes. Be on the lookout for: 
      • A new “friend” who has suddenly taken on a prominent role in the life of an elderly or ailing relative
      • Isolation, particularly if a caregiver or local family member discourages contact
      • Financial changes, unusual loan requests, and other signs that a person may be suffering other forms of financial abuse
      • Fearfulness, depression, and other changes that may suggest your loved one is being subjected to new stressors
       Regular interaction can be the best defense.
    • How can I prove undue influence?
      An experienced Florida estate lawyer can help you construct your undue influence claim. You must establish that the accused influencer: 
      • Receives a substantial benefit under the terms of the will or trust,
      • Enjoyed a confidential relationship with the deceased; and
      • Actively procured the will
       Once these three elements have been established, a presumption of undue influence arises. However, that does not necessarily mean that the court will find undue influence, since the accused beneficiary may present evidence to rebut the presumption.
    • Can I raise an undue influence claim on my own?
      Once these three elements have been established, a presumption of undue influence arises. However, that does not necessarily mean that the court will find undue influence, since the accused beneficiary may present evidence to rebut the presumption. Legally, you can choose to initiate a claim of undue influence on your own. However, it is important to remember that representing yourself in court does not change or relax the rules of evidence and procedure—you will be expected to follow all technical and procedural requirements and understand the legal provisions just as an attorney would be. Undue influence cases are nuanced and can be difficult to prove, so it is in your best interest to have an experienced advocate by your side.
  • Elder Abuse

    • What does an elder abuse lawyer do?

      An elder abuse lawyer helps vulnerable elderly people to protect themselves, and family members to protect their elderly loved ones. Exactly what action an elder abuse attorney will take depends on the type of abuse, who is perpetrating the abuse, and the elder’s circumstances.

      For example, if an elder’s assets are at risk due to financial exploitation, Florida law provides for a temporary freeze to prevent a financial abuser from draining the elderly person’s resources while the victim, family members, or officials are investigating and taking appropriate action. During this time, the judge may also prohibit contact between the elderly person and the alleged exploiter. The injunction can be issued without notice to the abuser, and may remain in effect without a hearing for up to 15 days.

      Of course, this is just one example of the type of protective action an elder abuse lawyer may take to protect a vulnerable person from exploitation. Every case is different. An experienced elder abuse attorney can explain the options and help determine the best course of action.

    • What is financial exploitation of the elderly?

      Florida law sets forth a long list of behaviors that constitute exploitation of an elderly person, including:

      • Knowingly obtaining, using, or attempting to obtain or use the elderly person’s assets with the intent to deprive the elder of the use and benefit of the assets or to benefit someone else, if that act is committed by someone who is in a position of trust or has a business relationship with the elderly person;
      • Commission of the same act by someone who knows or reasonably should know that the elder lacks the capacity to consent;
      • Breach of any one of a number of fiduciary duties to an elderly person resulting in unauthorized appropriation, transfer, of sale of property;
      • Misappropriation of funds from an account in which the elder placed the funds, owned the funds, and was the sole contributor or payee of the funds before the misappropriation; or
      • A caregiver or person in a position of trust intentionally or negligently failing to effectively use an elderly person’s income and assets for the elder’s support and maintenance.

      If you are uncertain whether your situation or your elderly loved one’s circumstances constitute financial exploitation, an experienced elder law attorney can be your best source of information.

    • Who commits financial elder abuse?
      An elderly person can potentially be financially exploited by any number of people. Unfortunately, a high percentage of financial abuse of the elderly and disabled occurs at the hands of family members or close friends. However, paid caregivers, nursing home employees, financial services providers, con artists, and even sham businesses may commit financial exploitation.
    • What are some examples of exploitation of the elderly?

      Some of the most common types of elder financial exploitation involve family members or other caregivers siphoning off funds and other property belonging to the elderly person. This may involve an adult child using the elderly person’s funds for his own benefit without the elder’s knowledge, or an in-home caregiver removing small valuables from the home.

      However, exploitive transactions don’t always happen behind the elder’s back. An unscrupulous family member or caregiver may exploit the elder’s confusion, isolation and dependence to deceive or intimidate him or her into signing over property.

      Examples of exploitation by people other than caregivers and close family members include a “financial advisor” deceiving an elderly person into a fraudulent investment, a trustee using trust assets for the benefit of someone other than the intended beneficiary, or a “new friend” gaining the confidence of an elderly person who has suffered cognitive losses and persuading or deceiving the elder into giving him or her money and other property.

    • Who can be a victim of elder financial exploitation?

      For purposes of the financial exploitation statute, Florida law defines an elderly person as one who is 60 years of age or older and is suffering from “the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.”

      The same statute protects certain disabled adults, regardless of age.

      Of course, if the elderly person has not been diagnosed with a specific condition, it may be difficult to determine whether he or she falls within this definition. An experienced elder law attorney will use information such as medical records and the testimony of those who have spent time with the elderly person to help establish limitations on his ability to adequately care for or protect himself.

    • Is exploitation of the elderly a felony?

      Under Florida law, financial exploitation of the elderly as described above could be a felony. How serious the felony charge is will depend on the value of the property involved. While criminal prosecution of a financial abuser may cut off that person’s access to the victim, and perhaps provide for restitution, it typically occurs after significant damage has been done.

      Civil action, such as filing for an injunction to prevent further dissipation of the elderly person’s property and restraining contact between the victim and the abuser often allows for swifter intervention and provides more effective protection for the elderly person.

    • Can there be jail time for elder abuse?

      Yes, a person may be criminally prosecuted and sentenced to jail for a variety of types of elder abuse, including financial exploitation of an elderly person. In fact, financial exploitation involving large sums of money or property with significant value can carry a prison sentence of up to 30 years.

      However, it is important to remember that criminal prosecution occurs after a crime has been committed, which likely means that the vulnerable elderly person will already have suffered losses. An experienced elder abuse attorney can help you act earlier, to prevent further dissipation of the elder’s resources. Civil action does not preclude criminal prosecution. In fact, evidence collected to build a civil case may aid in prosecution of a financial abuser.

    • Who pays the fees for an elder care attorney?
      Who is responsible for attorney fees in an elder abuse case depends on the type of claim involved. Under some circumstances, Florida law allows the victim to recover attorneys’ fees from the exploiter.
  • Will Contests & Elective Share

    • How much time do you have to contest a will in Florida?

      Florida law provides a relatively narrow window in which to contest a will. There is no mechanism for challenging a will during the testator’s lifetime, even if there are clear signs of mental incapacity, undue influence, or other grounds.

      However, once the testator passes away, the process can move quickly. The notice of administration issued by the personal representative of the estate starts a 90-day timeline for contesting the will or the appointment of the personal representative. If a “formal notice” is issued, the time frame is shortened to just 20 days.

      Twenty days is a very short period of time in which to secure legal advice and move your challenge forward, so it is in your best interest to seek counsel as soon as you recognize that a will contest may be required.

    • Can you challenge a will after probate?
      In Florida, you can contest a will that is in probate, but cannot contest a will after the court has discharged the estate. Where notice of administration is properly served, this rarely becomes an issue, as the short deadlines to initiate a will contest will typically expire long before an estate is settled.
    • Do I have a legal right to see my parents’ will?

      During your parents’ lifetime, you have no rights with regard to their will. A will has no legal effect until the testator passes away, and it is entirely up to each individual whether to share the terms of the will with family members and other beneficiaries during his or her lifetime.

      Once the testator passes away, the will is submitted to probate and becomes a matter of public record. At that point, the executor of the will is required to serve notice on beneficiaries and certain other interested parties.

    • Can you put a “No Contest” clause in a Florida will?

      To discourage heirs and beneficiaries from delaying administration and potentially draining the estate with family disputes, some testators include a “no contest” provision in their wills. These provisions dictate that anyone who initiates a will contest and loses will receive nothing—even if the terms of the original will left that person a significant bequest.

      Florida law, however, does not recognize no-contest provisions. If such a provision is included in a Florida will, the probate court will simply disregard it. Thus, a beneficiary who steps forward to contest the will is not at risk of being disinherited by a no-contest provision.

    • What are the requirements for a will to be valid?

      In Florida, a person must be at least 18 years of age and of sound mind to execute a valid will. But those aren’t the only requirements. In addition:

      • A Florida will must be in writing—an attempted will may fail if the testator used another form, such as verbal statements or a recording, to make his or her wishes known
      • A Florida will must be signed—even a written will may fail unless it was signed by the testator (or, under limited circumstances, by someone acting at his or her direction)
      • A Florida will must be signed by two qualified witnesses—each witness must sign the will in the presence of the other witness and the testator
    • Can I contest a will because it wasn’t properly executed?

      A Florida will may be deemed invalid because it wasn’t properly executed. Some failures in form are straightforward: for example, the will may be signed by only one witness, or may not be signed by witnesses at all.

      Often, however, the alleged flaw is less clear. For instance, a family member may claim that the testator’s signature was forged, or that the witnesses signed at separate times and places rather than in the presence of one another.

      If a loved one has died and you believe that the will was not properly executed, it is in your best interest to contact an estate litigation attorney as soon as possible. A lawyer who is experienced in handling will contests can advise you as to the likelihood of a successful challenge, and can explain the process and the resources required to contest the will.

      Similarly, if you are the executor of or a beneficiary to a will that is being contested, contact an attorney as soon as possible to learn more about how you can defend the will and protect your interests and those of other named beneficiaries.

    • Can a properly executed will be contested?
      Even if a will is perfect in form and has been properly signed and witnessed, it may be subject to challenge for other reasons. The testator may have been mentally incapable of executing a valid will at the time the document was signed, for example, or may have been tricked or pressured into signing the document.
    • Can I contest a “Self-Proving” will?

      You may have heard that some wills are “self-proving.” While Florida law does allow for self-proving wills, the term is a bit misleading. A self-proving will is simply a will that is accompanied by an affidavit from the witnesses stating under oath that they signed the will as witnesses, and that they did so in the presence of one another and the testator.

      A self-proving will can save time and effort, because in a straightforward, uncontested probate administration, the affidavit allows the personal representative to move forward without summoning one of the witnesses to establish that the will was properly and voluntarily executed. However, the affidavit—like any other testimony—can be challenged. In addition, some grounds for a will contest may not have been apparent to the witnesses.

      So, while a self-proving will typically ease the burden of administration slightly, it does not render the will immune to contest.

    • When can a will be contested on the basis of fraud?

      There are two types of fraud that may form the basis for a will contest: fraudulent inducement and fraud in execution.

      Fraudulent inducement occurs when someone employs fraud to influence the testator’s decisions about how to dispose of his or her estate. Fraud occurs when:

      • The person makes false representations of material fact to the testator
      • He or she knows that the representations are false
      • He or she intends that the testator will act on the false information
      • Injury occurs as a result of the deception

      In the context of a will contest, the injury is typically that the testator makes a decision that he or she would not have made with accurate information, shifting assets away from anticipated beneficiaries.

      Fraud in the execution of a will is more straightforward than fraudulent inducement. The victim of fraudulent inducement knows what the will is and what it contains, but has made decisions based on falsehoods. When fraud is employed in the execution of a will, the testator may believe that he or she is signing something other than a will. Or, the testator may know that the document being executed is a will, but believe that it says something different than it does.

    • What does it mean to execute a will under duress?

      Will contests based on duress are relatively uncommon, both because the level of conduct that supports a duress claim is unusual and because it can be very difficult to establish that a testator acted under duress once he or she is deceased. Although there are exceptions, duress is most likely to occur when the testator is isolated with and dependent on a relative or other caregiver.

      Some examples of duress include threats of physical harm if the testator does not execute the will and withholding of care, food, medicine and other necessities.

    • What does it mean for the testator to be incapacitated?

      A will may be properly executed and still deemed invalid. One of the most common will challenges involves a claim that the testator lacked the capacity to make a will. This often arises with regard to elderly testators or those who were already suffering a final illness when the will was created.

      Capacity is determined on a case-by-case basis—the simple fact that the testator is of advanced age, is seriously ill, or even has been diagnosed with a condition that could potentially impact mental functioning won’t necessarily lead to a determination that the will is invalid. Rather, the court will look at the specific circumstances at the time the will was executed, including any medical condition, the impact of medications the testator may have been taking, and other factors.

      Will contests based on incapacity typically rely on witness testimony, of both medical professionals and of those who had the opportunity to observe the testator at and near the time the will was created and signed.

    • Can the executor of a will take everything?

      The executor of a will is legally bound to dispose of assets as the law requires and the will dictates. That means paying taxes, debts of the estate, and costs of administration, and then distributing the remainder of the estate to the designated beneficiaries. Occasionally, an executor may decide not to play by the rules, or may simply not be competent to manage the estate as required.

      Florida law protects beneficiaries from executor misconduct in a variety of ways, from reporting requirements to a process for removal of an executor who is not fulfilling his or her responsibilities. A local estate planning attorney can help assess the situation and determine the best approach under your specific circumstances.

    • Does a will override a trust?

      Although wills and trusts are both tools people can use to pass property after death, they are entirely separate and one does not supersede the other. A will dictates how property belonging to the deceased will be distributed after his or her death. However, property that has been placed in trust is the property of the trust, not of the deceased.

      A will and a trust may be used in combination. However, property that has been transferred into the trust and not transferred back out does not become part of the estate, and will be distributed according to the terms of the trust. Similarly, property that has not been transferred to the trust will pass through the deceased’s estate, whether under the terms of a will or intestate succession.

    • What is elective share in Florida?

      Every state calculates the spouse’s elective share a bit differently. In Florida, the surviving spouse is entitled to 30% of the “elective estate.” However, determining exactly what is and is not included in the elective estate and the value of those assets can be complicated.

      For example, homestead property is included in the elective estate. But, how that property is valued for purposes of calculating the surviving spouse’s share of the estate depends on the legal interest the spouse receives and other factors. And, property may be counted toward the surviving spouse’s elective share even if that property is not part of the deceased’s estate.

      A local estate attorney who is experienced in handling elective share matters can be the best source of information about what is and is not included in the elective estate and how value will be determined.

    • Can a spouse be disinherited?

      In Florida, a surviving spouse cannot be effectively disinherited. If the decedent does not leave behind a will or other provision for disposition of assets after his or her death, the Florida law of intestate succession directs all or part of the estate to the surviving spouse.

      If the decedent has a will that leaves the spouse out, actively attempts to disinherit the spouse, or simply leaves the spouse less than the elective share under Florida law, the surviving spouse can simply opt for his or her elective share over the terms of the will.

    • Does a will supersede a spouse's interest in the estate?
      In short, no. In fact, choosing the elective share is also known as “electing against the will.” In simple terms, this gives the surviving spouse the opportunity to reject the terms of the deceased spouse’s will and instead take the share provided by Florida law.
    • Can an unmarried partner inherit?

      An unmarried partner can inherit if the deceased leaves behind a will, trust, or other vehicle that names the partner as a beneficiary. However, an unmarried partner is not entitled to inherit through intestate succession when there is no will, and will not be entitled to an elective share.

      Further, if the deceased partner was legally married to someone else at the time of his or her death, the surviving spouse’s elective share will take precedence over the terms of the will. Under those circumstances, the unmarried partner may receive less than the deceased intended, or even nothing.

    • What will the surviving spouse inherit in Florida?

      The elective share is just one factor in determining how much the surviving spouse will inherit in Florida. For example, if there is no provision for disposition of the deceased’s assets, the surviving spouse will receive either the entire estate or half of the estate—more than he or she would receive through the elective share.

      Alternatively, the deceased spouse may have bequeathed the surviving spouse the full estate, or some portion of the estate that is larger than the elective share.

      If the surviving spouse chooses the elective share, he or she will receive 30%, though calculation of that share is not as straightforward and clear as the percentage makes it sound

      It is also important to note that the surviving spouse—like any beneficiary—receives bequests from the estate based on the value of the estate remaining after debts of the estate, taxes, and costs of administration have been paid. Thus, 30% or 50% of the estate won’t be equal to 30% or 50% of the deceased spouse’s property. And, if the deceased left the surviving spouse a specific bequest, such as $250,000 rather than a share of the estate, the spouse will receive the full amount only if it remains available after expenses of the estate are paid.

    • Does Florida have an inheritance or estate tax?
      The state of Florida does not impose either an estate tax or an inheritance tax. That means that the estate itself is not taxed, and beneficiaries are not taxed on the property they receive through intestate succession or administration of a will. Florida residents who inherit estates may be subject to federal taxes, but this only applies to estates valued at more than $11.2 million (as of 2018)
    • What is the deadline for exercising the right to an elective share?
      The surviving spouse must file his or her election within six months of being served with Letters of Administration or two years after the date of death—whichever comes first. It is possible to obtain an extension to claim the elective share, but there’s a deadline for that, too, so the sooner you speak with an experienced estate lawyer and gather the information you need to move forward, the better.