Southeastern Upfitters

TRE Review ABCD

gladminx — Wed, 20 Jan 2021 20:57:04 +0000

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DBA Review ABCD

gladminx — Wed, 20 Jan 2021 20:56:22 +0000

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Mullins v. Mullins, Fla. 5th DCA (June 7, 2019)

gladminx — Wed, 20 Jan 2021 20:55:11 +0000

In a recent decision from the Fifth District Court of Appeal, the Appellant appealed a final summary judgment ordering the partition and sale of real property he and his two siblings inherited from their mother. The lower court previously determined the residence to be the mother’s homestead property, and ruled the proceeds from the sale of the home should be divided equally between the three siblings, notwithstanding language in the mother’s will to the contrary. This ruling also seems to be predicated on a stipulation for entry of an Order Determining Homestead that was signed by all three siblings.

The appellate court disagreed with the lower court and reversed its ruling because although the Will devised the homestead property to each of the siblings in equal shares, it also contained language indicating the two sons be allowed to reside there so long as they desired (and also so long as they paid apportioned expenses relating to the same).

It was later explained that the stipulation to the Order Determining Homestead did not create any new rights in the property for any of the siblings, but instead confirmed the pre-existing rights under the Will – which the court determined to be a proper devise of homestead property, subject to the two life estates the mother reserved for her sons. It appears the proper remedy for the one son who argued his brother ousted him from the property would be a partition of the life estate interests in his name only – not joined by his sister, who did not have any current possessory interest.

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Who Can Contest a Will or Trust in Florida?

gladminx — Wed, 20 Jan 2021 17:31:13 +0000

A common question asked by someone having concerns about fraud or other wrongdoing in conjunction with the procurement or execution of their loved one’s or friend’s will is “who can contest a will or trust in Florida?”

In legal circles, the question of whether any given individual (or entity) has the legal ability or authority to challenge a will or trust is often referred to as determining whether that person or entity has “standing.” Usually, the notion of standing considers whether a person or entity has a sufficient interest at stake in the litigation so as to make the case a true controversy between the parties.

With regard to who has standing to contest a will, the general rule is that those with standing include beneficiaries and legal heirs at law. It should be noted that others may have standing, and that certain beneficiaries or legal heirs at law might be barred from contesting the will. The Florida legislature identifies the requirements for standing in these actions in F.S. 733.109(1), which says that any “interested person” unless barred under F.S. 733.212 or F.S. 733.2123 may commence a proceeding to revoke the probate (or contest a will).

F.S. 731.201(23) “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. 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. In any proceeding affecting the expenses of the administration and obligations of a decedent’s estate, or any claims described in s. 733.702(1), the trustee of a trust described in s. 733.707(3) is an interested person in the administration of the grantor’s estate. The term does not include a beneficiary who has received complete distribution. The meaning, as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings.

Under F.S. 733.212(3), any interested person who has been served with a copy of the notice of administration is barred from objecting or contesting the administration of that particular will if they do not file an objection within 3 months of being served.

F.S. 733.2123 provides another potential category of who may potentially be barred from contesting a will except in the proceedings before the issuance of letters of administration for those who are served with the formal notice of the petition for administration (as well as those who waived notice).

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