Probate Archives

How do I access a deceased loved one's bank account after they're gone?

Not uncommonly, we have clients come into the office after a loved one has died and ask for some assistance. Their request is often simple...for example: "How do I access Mom's bank account now that she's gone? Her Will says I'm supposed to get it. Can I take the Will to the bank and get it transferred over to my name?" Unfortunately, it's not that simple.

Proving Undue Influence in a Will Contest

When a family member or loved one decides to challenge a Will (or a Trust) based on "undue influence," proof is often a challenge. Undue influence in executing a Will is not usually exercised openly in the presence of others. It is usually perpetrated in secret. Changes made to a person's estate plan due to undue influence are often hidden by the perpetrator. As a result, most of the time undue influence cannot be proven directly. In many instances, it must be proven by way of presumptions and indirect or circumstantial evidence.

Contesting a Will: the Role of Undue Influence

More and more often these days, it seems that after a family member or loved one dies, those left behind are unhappy with the way the deceased's estate is to be distributed through their Last Will and Testament. Often, the persons feel that their loved one has been taken advantage of, perhaps due to their vulnerability or for other reasons. When a family member or loved one decides to challenge a Will (or a Trust), one of the most common grounds is based on what is known as "undue influence." Florida has a statute, Section 732.5165, Fla. Stat., which specifically provides that "[a] Will is void if the execution is procured by fraud, duress, mistake, or undue influence."

How do I transfer Florida real estate after the owner has died?

Not uncommonly, we have prospective clients come into the office after a loved one has died. Their request is often simple...for example:"I need a deed to put Mom's house into my name. Her Will says I'm supposed to get it. Can you prepare that deed for me?" Unfortunately, it's not that simple. In most instances, there will need to be a court order to transfer the property. And in Florida, that means opening a probate.

What is an "adversary proceeding" in Florida probate?

In Florida probate, certain types of disputes are considered adversary proceedings. This designation has several implications, including that fact that the Florida Rules of Civil Procedure apply. In effect, an adversary proceeding proceeds as if it were a civil lawsuit within the probate. In particular, the parties can conduct discovery, including Requests for Production of Documents, Interrogatories, and taking depositions.

Why does probate of a Florida estate take so long?

In Florida, probate is a court proceeding whereby a deceased person's final affairs are resolved and assets are distributed. There are two types of probate in Florida: summary administration and formal administration. In a summary probate, estate assets must not exceed $75,000 (not including the homestead) and there must be no creditors--or all creditors must be dealt with. Essentially all other probate cases fall under "formal" administration. 

Voluntarily Filing Probate to Resolve Creditor Claims

With effective estate planning, probate in Florida can almost always be avoided. This can be accomplished by establishing a Living Trust (also referred to as a "Revocable Trust") and transferring assets into the Trust before death. Avoiding probate may also be accomplished by use of beneficiary or "pay-on-death" designations with certain financial accounts, annuities, retirement accounts and life insurance policies.

In Florida, does a surviving spouse have a right to inherit from their deceased spouse?

As an estate planning lawyer, I sometimes have a client ask whether they are entitled to inherit from their spouse. In other words, can their spouse cut them out of an inheritance? For the most part, the answer is that one spouse cannot be "written out" altogether from their spouse's estate. Unless there's a Pre-Nuptial Agreement in place, the surviving spouse has certain rights that arise as a matter of Florida law.

Contesting a Will or Trust as a Result of Undue Influence in Florida

In Florida, a Last Will & Testament or a Trust can be contested for a number of reasons, including fraud, duress and undue influence. In the case of undue influence, if a substantial beneficiary under a Will or Trust occupies a confidential relationship with the person who executed the instrument and is active in procuring the contested Will or Trust, a presumption of undue influence arises. So what does it mean that a person is active in procuring?

Email us for a response

We Can Resolve Your Legal Issues

Bold labels are required.

Contact Information
disclaimer.

The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

close

Privacy Policy

Our Location

14497 North Dale Mabry Hwy
Suite 160-N
Tampa, FL 33618

Phone: 813-280-0082 (AT)
Fax: 813-968-9426
Tampa Law Office Map