Probate

April 3, 2008

Do it yourself Estate Planning: Bad News Part 9

Invalid transfer of Florida Homestead with do it yourself deed leads to unintended consequences!

Man wants his second wife to have a life estate in his homestead after his death with the remainder to go to his children and not his second wife’s children.

His mistake, he used a preprinted deed and filled it out wrong. The court found that he did validly convey a life estate to his wife, but did not convey the remainder of the property to his daughter because it must have been signed by both spouses.

April 2, 2008

Marilyn Monroe’s Estate Loses Ruling

by David M. Goldman

A federal curt found that Marilyn Monroe was a New Yorker when she died in 1962. This means her estate which has earned more than 30 million dollars licensing her image can not control the licensing. Product makers may be free to use her image without paying licensing fees to her estate because of a difference between California and New York state laws.

Marilyn Monroe LLC plans to appeal the ruling. If you license your image, it may be important to look at the laws of your state to determine what rights your estate will have. If you have questions about licensing in your state you should Contact a Florida Estate Planning Lawyer to discuss the effects of your domicile on your future heirs.

April 1, 2008

Florida Comon Law gives Guardian Ad Litem of Child Priority of Mother’s Disposition

by David M. Goldman

Arthur v. Milstein. et al, 949 So.2d 1163 (Fla. 4th DCA February 28, 2007)

In this dispute regarding who controlled the disposition of the body of Anna Nicole Smith, the trial court ruled that the guardian ad litem for her minor daughter Dannielynn had priority over Anna Nicole Smith’s mother based upon interpretation of Florida Statutes section 406 defining a “legally authorized person” upon whom a funeral home can rely to receive burial instructions. The appellate court indicated section 406 simply protects a funeral home from liability, and Florida common law applies regarding who has the right to possession of the body. The court found the trial court’s ruling was “the right result, but for the wrong reasons,” and based upon evidence indicating the intent of Anna Nicole Smith, affirmed the trial court ruling.

This issue could have been avoided with a properly drafted Florida Will. If you would like your Florida Will reviewed please Contact a Florida Estate Planning Lawyer.

March 31, 2008

Surving Spouse has no Property Interest in Husband’s Body

by David M. Goldman

City of Key West v. Knowles, 948 So.2d 58 (Fla. 3 DCA January 10, 2007)

A surviving spouse sued the city of Key West, Florida claiming she was deprived of her property interest in her husband’s buried remains without due process in violation of 42 U.S.C. 1983.

The Court found that an individual has no constitutionally protected property interest to a decedent’s remains after the point of burial or other lawful disposition, the appellate court reversed the $15,000 jury verdict that had been entered in favor of the surviving spouse.

March 29, 2008

Can Co-op be a Homestead in Florida?

by David M. Goldman

Phillips v. Hirshon, 963 So. 2d 227 (Fla. 2007).
The supreme court agreed to hear a case which will determine if Florida’s revisions to the homestead laws allow for a cooperative apartment to be considered homestead property for descent purposes. We should have an answer on this question by the end of April.

If you own a property and are concerned about its status as a Florida Homestead please Contact a Florida Estate Planning Lawyer to discuss your circumstances.

March 28, 2008

Florida Disclaimer of Interest and Effect on PR

by David M. Goldman

Qarcia v. Morrow, 954 So.2d 656 (Fla. 3rd DCA April 4,2007)

This case involves competing petitions for appointment as personal representative filed by a decedent’s grandson with statutory priority to be appointed as personal representative and the former wife of the decedent’s son. After his mother’s death, and while in prison, the decedent’s son acquiesced in a state court order requiring him to transfer his mother’s condominium unit and certain financial accounts to his ex-wife to satisfy past-due child support payments. The son later executed a disclaimer of the interest in his mother’s estate and the grandson filed that disclaimer in support of his petition to be appointed as personal representative. The former spouse argued the fling of the disclaimer was an effort to work a fraud on the court and, without an evidentiary hearing, the court appointed the former spouse as personal representative. The appellate court reversed the decision and remanded for a further evidentiary hearing to determine whether the grandson “lacks the necessary qualities and characteristics” to be personal representative.

March 27, 2008

Father by Court order remains Father after Death of Child

by David M. Goldman

Glover v. Miller. 947 So.2d 1254 (Fla. 4th DCA January 31, 2007)

After a 16-year-old child was killed by a police officer, two separate men claimed they were his father and asserted the right to be appointed personal representative of the child’s estate for purposes of pursuing a wrongful death action. One man had been declared the decedent’s father in a paternity action 12 years previously and had been required to pay child support. Post-death DNA testing showed a 99% likelihood that the other man actually was the decedent’s natural father. The appellate court affirmed a trial court’s determination that the man previously declared to be the father was entitled to priority in appointment and that absent having the judgment of paternity vacated and a new determination of paternity entered, the man previously deemed the father was, for purposes of appointment of personal representative, the decedent’s “father in the eyes of the law, regardless of the results of DNA testing.”

March 26, 2008

Court Must Have Reason to Deny Will’s Appointment of PR

by David M. Goldman

Hemandez v. Hernandez, 946 So.2d 124 (Fla. 5th DCA January 19, 2007)

A trial court refused to appoint the decedent’s son as personal representative, despite the fact the decedent had nominated a son in his last will, instead appointing an unrelated attorney. The only basis for the courts ruling was that there was animosity between the nominated personal representative and his brother. Citing the absence of any evidence that the nominated personal representative does not meet the statutory criteria to qualify, and that there are no other “exceptional circumstances,” the appellate court reversed the trial court.

March 24, 2008

Florida Elective Share Held Constitutional

by David M. Goldman

Magee v. Magee, 32 Fla. L. Weekly 02307 (Fla. 2d DCA September 26, 2007)

In a challenge to the constitutionality of Florida’s elective share statutes, the Second District Court of Appeal upheld a lower court ruling that the statute is constitutional. The Court applied a test of whether there is “any reasonable relationship between the act and the furtherance of a valid governmental objective,” and rejected the challenger’s argument that the “far more rigorous analysis” of whether the statute is “reasonably necessary to protect the public.” The Court found that the state has a strong public policy concerning protection of the surviving spouse about
marriage in existence at the time of the decedent’s death and that, therefore, the provisions of the elected chair statutes serve a legitimate legislative purpose. On February 20, 2008, the Florida Supreme Court refused to accept jurisdiction for an appeal of this decision.

March 23, 2008

Florida Land Owner Dies prior to sale of Property

by David M. Goldman

Vazpuez v. Bvrski, 32 Fla. L. Weekly D2415 (Fla. 2d DCA October 10, 2007)

Prior to his death, a decedent entered a contract to sell real property. The decedent died prior to closing on the contract. The purchaser filed a Petition for Administration in which he expressly alleged the obligation based upon the purchase and sale agreement. The purchaser subsequently filed a Petition for Appointment of Guardian Ad Litem to represent the interests of unidentified heirs, and again alleged the obligation based upon the purchase and sale agreement. The personal representative of the estate subsequently filed a petition for authorization to sell the real property pursuant to the contract.

The guardian ad litem objected claiming, inter alia, the purchaser had failed to file a claim in the estate. The trial court agreed and denied the request for authorization to sell the property.