In most cases, the originals of those documents will be needed at the critical time of incapacity or death. So, even though we live in an electronic age, the preservation of the paper documents we sign must be paramount.

Using bank safe deposit boxes as secure storage for these documents, along with real estate deeds, car titles, birth certificates, marriage licenses, and other important documents, has long been the gold standard.

But in recent years, as banks have reduced the number of their bricks and mortar locations, the availability and use of their safe deposit boxes has dwindled. Box rents are not profitable to banks, so this is understandable. 

Nevertheless, the issue remains: we need a place to keep our important documents. Here are five reasons why bank safe deposit boxes remain the logical choice.

First, if you always keep your wills and other important documents in a bank safe deposit box you will always know where they are. You won’t lose them. You won’t misplace them.

Second, if your safe deposit box is in the same bank that has your checking account, then when you become incapacitated or die, your family will know which bank has your safe deposit box, too, so they can find your original Florida will and other important documents.

Third, Florida law requires that a bank officer be present when a bank safe deposit box is opened after you die. Florida Statutes Sections 655.935, 655.936, and 733.6065. This keeps someone from reading the will, not liking what it says, and then shredding it.

Fourth, Florida banks generally have security procedures in place that keep safe deposit boxes more secure from theft than home safes. Sometimes banks locate their safe deposit boxes in their walk-in vaults. In any case, they are generally protected by a vaulted door. And they usually require two keys for access: the customer’s key and the bank’s key.

Fifth, bank safe deposit boxes are generally protected from hurricanes, tornadoes, fires, and other disasters, at least more so than our homes are protected.

In summary, Florida residents would be well-served to place their original wills, trusts, and other important documents in their bank’s safe deposit boxes.

On September 30, 2023, the entire estate of the late Kyle William Bruening passed to the State of Florida because he died without a will, spouse, descendant, parent, sibling, grandparent, aunt, uncle, or first cousin. He had second cousins, who filed for probate claiming to be his beneficiaries, but that relationship wasn’t close enough…wasn’t good enough. All of his probate assets escheated to the State of Florida.

“Where a decedent was never married, heirs are limited to the decedent’s descendants; parents; siblings and, if they are deceased, their descendants; grandparents; and aunts and uncles and, if they are deceased, their descendants.”

Fla. Dept. of Legal Affairs v. Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023)

The court based its ruling on Florida Statutes Section 732.103 which sets forth the order of inheritance when a Florida resident dies without a valid will. The court interpreted the statute to exclude those family members whose closest relationship is through a great-grandparent.

“Pursuant to section 732.103’s plain language, persons who have great-grandparents in common with a decedent but who otherwise have no familial relationship with a decedent are not in a class of persons recognized as heirs of an intestate decedent’s estate.” 

Fla. Dept. of Legal Affairs v. Estate of Bruening, 373 So.3d 337 (Fla. 4th DCA 2023)

This case reminds us of the need to do several things while we are living:

• Don’t assume that the loved ones you name in your will are going to survive you. Specify in your will what happens if they predecease you. Who will get their share?
• Name final takers in your will. If all of the family members you name in your will predecease you, who do you want to get your estate? Is it a person or a charity? Remember that it could escheat to the State of Florida if you skip this step.
• Safeguard the signed original of your will. Copies generally don’t count in probate. The original needs to be filed with the Clerk of Court within ten days after date of death, so keep it in a safe place, such as a bank safe deposit box. 

And remember, if you die without a valid will, your probate estate will pass as an intestate estate under Florida Statutes Section 732.103, like it or not. You might not like that thought. But the State might like it. A lot.

In Chauncy v. Gorden, 374 So.3d 884 (Fla. 5th DCA), the appellate court upheld the trial court’s determination that “use of the word ‘survivor’ in a will referred to the survivor of the two persons named in the will, not the heirs of those persons.”

In this case, the will apparently left the estate to two people “or the survivor of them”. One of them died before the maker of the will died. The case was filed by Chauncy, the son of the beneficiary who had died, and Chauncy claimed that “survivor” means any heirs of named beneficiaries. Both the trial court and the appellate court declined to agree with that position. The appellate court said:

There was nothing in the will or other circumstances to show that the word ‘survivor’ intended to be given any meaning other than its common one….Generally, the word ‘survivor’ should be given its literal interpretation as meaning one who outlives another, one of two or more persons who live after the other or others have died…The term ‘survivor’ is limited to the individuals of such a class, and does not include their children…Using the term ‘survivor’ will generally exclude representatives so that the last survivor of a class will take the whole share of one dying although others of the class have all died leaving issue.

Chauncy v. Gorden, 374 So.3d 884 (Fla. 5th DCA)

This is an interesting case. Who knew the word “survivor” was ambiguous, requiring a court to determine its meaning? Perhaps the will should have been more explicit by saying if either of the named beneficiaries predeceased the testator, then the gift to that person lapses and passes to the other person. Hindsight is 20-20, again.

-James W. Martin, St. Petersburg Probate Attorney February 24, 2024

Sometimes a Florida resident adds a child to their bank account, which raises the question whether doing so is intended to be a gift or is it just for convenience.

“A convenience account is a bank account owned by one person, the principal, who authorizes a second person to make deposits and withdrawals on behalf of the account owner. While operating like a joint account, a convenience account is for the benefit of the principal and does not contain a right of survivorship in the agent. See § 655.80(1), Fla. Stat. (2021).” 

Larkins v. Mendez, 2023 WL 3485303 (Fla. 3rd DCA 2023

Just such an issue arose in the Larkins case. As stated by the Court: 

“During administration of Decedent’s estate, a disagreement arose as to whether the BB&T bank account was an estate asset – specifically a convenience account – subject to distribution among the three brothers. While there was a place on the signature card for the account to be designated as a “convenience account,” the “convenience account” designation box was not selected.”

Larkins v. Mendez, 2023 WL 3485303 (Fla. 3rd DCA 2023)

Because the written paperwork at the bank did not say it was a convenience account, the son who was the joint owner thought the account passed to him when his father died, and he spent the money.

However, the father’s estate sued the son claiming the bank account was just a convenience account, even though that box was not checked off on the bank’s paperwork, so the estate claimed the account belonged to the father’s estate and not to the son.

Both the trial court and the appellate court held in favor of the estate and found that the bank account was a convenience account so it belongs to the estate and not to the son. The courts looked beyond the bank paperwork and based their decision on the following evidence that the father intended it to be a convenience account even though he did not check that box:

-Testimony of the father’s other son;

-Testimony of the father’s neighbor who visited the father before he died and took detailed notes of their conversation; and

-Bank records showing how the joint owner son handled the bank account before and after his father died.

This case provides several lessons. First, Florida residents who want to add a child to their bank account should decide whether doing so is intended to be a gift or just a convenience account; second, they should state that intent in writing on the bank account paperwork; third, they should keep copies of the bank account paperwork with their wills, trusts, and other important estate plan documents; and fourth, they should state that intent in their last wills and testaments. 

And, of course, if they intend it to be a convenience account, they should check the box and save everyone a lot of time and trouble.

-James W. Martin, St. Petersburg, Florida, Probate Estate Attorney, May 31, 2023

Before his death, Nat created a residence trust and conveyed his Florida apartment to it. The trust provided that, upon Nat’s death, the apartment transferred to Valerie for her life with a power of appointment in Valerie to exercise at her death to leave the remainder to her granddaughter. 

Any Florida probate attorney knows this cannot be done because Florida law restricts who may receive homestead property at death when there is a surviving spouse. The Florida Supreme Court has said:

“[W]here a testator dies leaving a surviving spouse and adult children, the property may not be devised by leaving less than a fee simple interest to the surviving spouse …. This exception is exclusive and prohibits the testator from devising less than a fee simple interest to his surviving spouse under the circumstances presented herein.”

In re Finch’s Estate, 383 So. 2d 755, 757 (Fla. 4th DCA 1980)

The appellate court in the Stirberg case reconfirmed this ruling by saying:

“Thus, any devise of homestead property that does not grant a fee simple interest to a surviving spouse fails, regardless of intent.”

Nat’s children claimed the trust provision violated the Florida Constitution’s homestead provisions, resulting in a void gift, so they filed a petition to determine homestead status of real property. 

In its opinion, the appellate court noted that homestead passes immediately on the date of death by saying:

“Homestead property rights vest immediately upon the death of a testator or settlor. See Aronson v. Aronson, 81 So. 3d 515, 519 (Fla. 3d DCA 2012) (“At the moment of Hillard’s death, his homestead property passed outside of probate.” (citations omitted)); § 736.1109(1), Fla. Stat. (2022) (“If a devise of homestead under a trust violates the limitations on the devise of homestead in s. 4(c), Art. X of the State Constitution, title shall pass as provided in s. 732.401 at the moment of death.”).”

What’s interesting about this case is that the trustee of the residence trust attempted to fix the void trust provision by filing a separate trust reformation action, which almost worked: the trial court ordered reformation of the trust. But, the children appealed, and the appellate court sent the case back to the trial court, saying: 

“Not even a retroactive action can validly cure a devise violating the homestead laws. See Gotshall v. Taylor, 196 So. 2d 479, 481 (Fla. 4th DCA 1967) (“If the requirements of the Constitution and the statutes are not complied with in alienating homestead real estate, the attempt is a nullity … and is void ab initio, and subsequent events will not breathe life into it[.]”). A trust reformation is such a retroactive action and therefore cannot cure a devise violating the homestead laws.

“The Residence Trust conveyed to Valerie a life estate in the apartment with a power to appoint the remainder. Appellants have alleged that this conveyance violates constitutional and statutory homestead law. If they are correct, the Apartment would have passed as provided by section 732.401(1), Florida Statutes (2022)—a life estate to Valerie and a remainder to Appellants as the Decedent’s descendants.”

The case isn’t over yet. Now it’s up to the trial court to hear the petition to determine homestead status of real property filed by the children. Any predictions on who wins?

-James W. Martin, St. Petersburg, Florida, Probate Estate Attorney, April 30, 2023

The same applies when the decedent dies in an auto accident: anyone claiming that the decedent caused injuries must file a claim in the probate proceeding.

The same also applies when anyone claims that the decedent stole money from them: they must file a claim in the probate proceeding.

Florida probate lawyers also know that just because a claim is filed in probate does not mean it will be paid. The first obstacle to getting paid is that the personal representative of the estate might object to the claim.

If that happens, then the person who filed the claim must file a separate lawsuit in civil court. So, if the claim was for money lent, there would be a civil lawsuit for money lent. And if the claim was for an auto accident, there would be a civil lawsuit for negligence. And if the claim was for theft, there would be a civil lawsuit for that. In each of those cases, it would go through the civil court process of filing pleadings, taking discovery, and holding a trial.

Florida probate lawyers know that if the claimant wins at trial, the civil court judge would enter a judgment in favor of the claimant and against the estate. But that still does not mean that the claim, now also a judgment, will be paid. That’s because there is a Florida probate statute that sets forth the order of priority of payment of claims, even if the claims are based on judgments.

Some claims have higher priority than others. Certain taxes, estate administration expenses, estate legal fees, last illness medical expenses are in higher classes of priority than general claims for money lent, auto accidents, and theft.

Some Florida probate and real estate lawyers, including me, have wondered what would happen if a probate claimant went through the above process in civil court and won at the civil trial and got a judgment against the estate and then took the extra step of recording a certified copy of that judgment in the county’s official records. 

Doing so creates a judgment lien on all real property owned by the judgment debtor in that county. F.S. §55.10. Would that give the claimant the right to levy on the estate’s real estate even if the claimant was in a lower class of priority?

In April 2022 the Florida Second District Court of Appeal in Jones v. McKinney, Case No. 2D21-252, 2022 WL 1159586, said no. Someone holding a judgment lien by recording a certified copy of a judgment cannot jump ahead and ignore the priority statute. Its claim must still follow the rules of priority set forth in the Florida Probate Code. The court pointed to F.S. §733.706, which says that claims on all judgments against a decedent must be filed in the same manner as other claims. 

Even though the judgment in this case was based on a jury verdict that the decedent committed exploitation of a vulnerable adult and civil theft and the claimant’s victim incurred $757,000 in actual damages, which the trial court tripled because it was for civil theft of an elderly person, resulting in a total judgment of $2,271,000.

The result might have been different if the claimant had been a mortgage lender instead of a victim of elder exploitation and theft. The court notes an exception in F.S. §733.706 for mortgages and other liens encumbering specific property. The court based its decision on the 1968 2nd DCA case of County of Pinellas v. Clearwater Federal Savings & Loan, 214 So.2d 525, that says a judgment lien is a general lien, which attaches to any property currently owned or subsequently acquired by the judgment debtor, whereas a mortgage is a lien upon specific property.

All of this points to the bottom line: Florida probate creditors have multiple hurdles to getting paid. And I haven’t even brought up the most common hurdle, the strict statutory deadline for filing claims.

A Florida probate court recently confirmed this principle. A lawyer in North Carolina provided services in a Florida probate proceeding even though he wasn’t licensed to practice law in Florida. The court held he was not entitled to be paid a fee. Any fee. (The lawyer was asking for a very, very large attorney fee for representing an income beneficiary of a trust), but the court said he gets nothing. Nothing. Because he was not licensed to practice in Florida.

The North Carolina lawyer could have avoided this outcome by either engaging a Florida lawyer to work on the trust case in the Florida probate court with him or by asking the Florida probate court to admit him to practice in that one case. But he did neither so he lost the attorney’s fee entirely. The court even made the North Carolina lawyer return the fees he had been paid already.

The Florida probate court held that the attorney’s fee contract with the unlicensed lawyer was void ab initio, meaning it was void from the beginning, from the moment it was signed. The court noted that in Florida it is illegal to practice law without a license. It is a felony. The court went on and said:

“…[T]he fact that a client knows the attorney he employs is not admitted in Florida should not permit an unlicensed attorney from recovering for illegal activity. Allowing an attorney to recover fees for the unauthorized practice of law is a violation of public policy, irrespective of the private interests and understandings of the parties. The judicial power of this state should not be used to effectuate a violation of public policy.”

This means that a lawyer licensed in another state who provides services in a Florida probate proceeding is not entitled to be paid for those services unless he or she engages a Florida-licensed lawyer as co-counsel or otherwise receives court approval to appear in that case.

In this case, it was an expensive lesson for the North Carolina lawyer.

For many decades, Florida law provided that the surviving spouse received half the estate* and the descendants shared the other half among themselves. This likely arose from public policy that both the surviving spouse and children needed assets to survive, but it also surprised many young couples. If a young father died without a will, half his estate would pass to his wife and the other half would go to a guardian for his minor children. Inheriting half the father’s assets at age 18 is probably not the best way to learn financial independence, so most parents made wills or held their assets in joint names as tenants by the entirety to avoid this result.

Along comes the 2011 Florida Legislature to the rescue. It enacted a law that amends the Florida Probate Code effective October 1, 2011 to provide that the entire estate passes to the surviving spouse if (a) the decedent died leaving a spouse and one or more descendants, (b) all of the decedent’s descendants are also the surviving spouse’s descendants, and (c) the surviving spouse has no other descendant.

It’s still a good idea for a young couple to make a will and to hold assets jointly as tenants by the entirety, but the new law will eliminate the surprise of a surviving spouse having to share assets with children when a spouse dies. It remains to be seen whether those children will be surprised to learn they get nothing.

*Actually, the law provides that, if all the decedent’s descendants are also descendants of the surviving spouse, then the spouse receives the first $60,000 before dividing the rest in half.

And for the probate court to decide, it needs to have all the wills that person ever made. So, if a rich uncle dies and leaves two wills in his desk at home, the person who finds them needs to file both of them with the probate court, and not just the one closer to date of death (and certainly not just the one that names that person).

In Florida we have a law that requires all wills to be filed within 10 days, and the law has teeth in it.

An hourly fee more directly compensates the lawyer for the effort involved in the probate proceeding. The effort varies depending on the number of assets, types of assets, number of creditors, number of beneficiaries, unusual facts, and other factors. The value of the probate assets is just one factor. A lower value probate estate can take as much effort as a higher value probate estate, and vice versa.

Florida lawyers are allowed to charge hourly attorneys fees instead of percentage probate fees. So, it’s always worth asking.

When a Florida resident dies, a probate proceeding is usually required. The decedent’s last will and testament is filed with the Court along with a petition for administration asking the Court to admit the will to probate (validate the will) and appoint a PR (personal representative or executor). The PR will publish notice to creditors in a newspaper, serve possible creditors, collect assets, pay debts and expenses and taxes, and then make distributions to beneficiaries.
Various parts of a probate proceeding might call for service of formal notice. For example, Florida Probate Rule 5.025 requires service of formal notice to determine beneficiaries, construe a will, remove a PR and other adversary proceedings. Rule 5.530 requires service of formal notice of a petition for summary administration on beneficiaries and known and reasonably ascertainable creditors who have not signed the petition.

Florida Probate Rule 5.040(a)(1) states what the formal notice consists of, as follows: “?(1) When formal notice is given, a copy of the pleading or motion shall be served on interested persons, together with a notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice, exclusive of the day of service, and to file the original of the written defenses with the clerk of the court either before service or immediately thereafter, and notifying the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded in the pleading or motion, without further notice.”

Florida Probate Rule 5.040(a)(3) states that formal notice of a Florida probate proceeding shall be served either in the usual way of serving process in Florida (sheriff, process server, etc.) or by sending a copy by any commercial delivery service (e.g., FedEx, UPS, etc.) requiring a signed receipt or by any form of mail requiring a signed receipt (e.g., U.S. Mail certified return receipt requested). The Rule goes on to require that ?a verified statement of service be filed with an attachment consisting of the “signed receipt or other evidence satisfactory to the court that delivery was made to the addressee or the addressee’s agent.”

So, it’s important to remember that when it comes to Florida probate proceedings, you don’t need to serve formal notice by sheriff. You can serve it by FedEx, UPS, etc., as long as you follow the rules. And if you receive a formal notice, don’t wait for the sheriff to show up to serve you since the service by mail, FedEx, etc., might be valid enough to bind you under Florida law.

If you receive a “Formal Notice” of a Florida probate proceeding, don’t wait for the sheriff to show up to serve you since service by mail might be valid enough to bind you under Florida law.

The word is out on Tampa Bay: sunny skies, white sandy beaches, water all around, and the world’s best airport; the arts, culture and music; state-wide cell phone coverage; high speed cable modem Internet access. What a great place for the High Tech to live!

What is not as well known is that Florida is a great place to preserve wealth. Now I’m not saying that the Great Depression is around the corner, but anyone who’s already made it big in the New Economy is well-advised to sock away a little money in a nest egg in Florida. All you need is Florida residency, and here is what you get to keep:

1 Florida Homestead: The home where you live, your wife lives, or your children live is your homestead. No one can take it from you no matter how much it’s worth. Even if you paid a million dollars for it. Or more.

Homestead is limited not by dollar amount but by quantity of land. If located within a city, the homestead can be up to half an acre — enough land for a really big house. If located outside a city, it can be up to 160 acres — enough land for a really, really big house and some cows, pigs and horses.

Caveat: If you mortgage your house, the lender can take your home through foreclosure if you default. If you fail to pay contractors who work on your home, they can foreclose, too. And the government can take your home if you fail to pay taxes, of course. But no other creditors can reach your Florida homestead.

Source: Florida Constitution Article X Section 4.2

2 Florida Wages. No one can take your salary and wages in Florida. Without limit. As long as you are head of a family who provides more than half the support for a child or other dependent. And the wages remain exempt from creditors while in your bank account for up to 6 months. Hint: You can live in Florida and telecommute anywhere in the world, and your wages are safe because you are a Florida resident. This includes salary, bonus, commission, the works.

Source: Florida Statutes Section 222.11. 3

3 Cash Value of Life Insurance and Annuities. No one can take the cash value of life insurance or annuities issued on your life, no matter how valuable. You can have a million dollar cash value life insurance policy or annuity, and a creditor cannot reach it. You must be both the owner of the policy or annuity, and it must be on your life. And, of course, you must be a citizen or resident of Florida. Hint: You don’t need to wait for cash value to build up through annual premiums. Your life insurance agent would be happy to sell you a policy or annuity that has just one up-front cash premium payment. It’s like putting money in the bank, except that it’s not government-insured and might not pay as much interest, but it’s your nest egg and it’s safe from creditors in case of the Big Crash.

Source: Florida Statutes Section 222.14.4

Those are the top three exemptions that Florida residents enjoy, and they are the kind needed to protect a nest egg from the unexpected. Other states are not so generous to their residents when it comes to keeping assets away from creditors. So, preserve your wealth and move to Florida where you can keep your nest egg in your big brick house and away from the Big Bad Wolf.

Notes: This article is not intended to be legal advice on a specific factual situation. Before relying on this article, obtain legal advice to update and apply the law to your specific facts.

A variation of this article was published May 2001 in the newsletter of the Florida Bar Entertainment, Arts & Sports Law Section.

1 For more information, go to www.jamesmartinpa.com or email him at jim@jamesmartinpa.com.

2 Florida Constitution Article X Section 4. Homestead; exemptions._(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;

(2) personal property to the value of one thousand dollars.

(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

(c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

3 Florida Statutes Section 222.11 Exemption of wages from garnishment._(1) As used in this section, the term:

(a) “Earnings” includes compensation paid or payable, in money of a sum certain, for personal services or labor whether denominated as wages, salary, commission, or bonus.

(b) “Disposable earnings” means that part of the earnings of any head of family remaining after the deduction from those earnings of any amounts required by law to be withheld.

(c) “Head of family” includes any natural person who is providing more than one-half of the support for a child or other dependent.

(2)(a) All of the disposable earnings of a head of family whose disposable earnings are less than or equal to $500 a week are exempt from attachment or garnishment.

(b) Disposable earnings of a head of a family, which are greater than $500 a week, may not be attached or garnished unless such person has agreed otherwise in writing. In no event shall the amount attached or garnished exceed the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.

(c) Disposable earnings of a person other than a head of family may not be attached or garnished in excess of the amount allowed under the Consumer Credit Protection Act, 15 U.S.C. s. 1673.

(3) Earnings that are exempt under subsection (2) and are credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings. Commingling of earnings with other funds does not by itself defeat the ability of a head of family to trace earnings.

4 Florida Statutes Section 222.14. “Exemption of cash surrender value of life insurance policies and annuity contracts from legal process. The cash surrender values of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state, upon whatever form, shall not in any case be liable to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract, unless the insurance policy or annuity contract was effected for the benefit of such creditor.”

Florida residents benefit from statutory exemptions from creditor’s claims.

You see, in Florida, revocable living trusts are liable for the claims of creditors of the probate estate. In addition, creditors have two years to file claims if there is no probate proceeding. The probate proceeding claims process reduces the time to file claims to just 3 months after notice to creditors is published. That’s why a trust almost never avoids probate in Florida. There is no creditor claims process for trusts, but there is one for probate.

If a trustee ignores this, the trustee could be liable to creditors after distributing the trust. That’s why wise trustees always file a probate proceeding even if the trust is fully funded with all the assets the decedent owned at death.

This is not a new law. It has been around almost a hundred years. “Adopted in 1920, Florida’s Dangerous Instrumentality Doctrine imposes strict vicarious liability upon the owner of a motor vehicle who voluntarily entrusts that motor vehicle to an individual whose negligent operation causes damage to another.” This is how the Florida Supreme Court described the doctrine in an opinion it wrote in 2000 in Aurbach v. Gallina, a case where an 18 year old driver allegedly caused an accident with a vehicle owned by her mother. In that case, the injured plaintiff also sued the driver’s father on a theory that both parents should be liable as the ones who made it possible for their child to have the vehicle in the first place. (The court decided that, because the father’s name was not on the vehicle’s title, he was not liable.)

So, while a motor vehicle costs lots of money, it’s not really an asset. It’s really a liability.

The answer to the question is generally that the will of a Florida resident cannot be contested while the person is alive. Florida Statutes Section 732.518 says: “An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.”

However, there are other things that a concerned family member might be able to do while the person is alive in order to protect the person and his or her assets and in order to preserve any estate plan that the person has already put into place.

In addition, after a Florida resident dies, there are very short time limits to file a contest to contest the will. The time limit could be as short as three months after the person’s death, but even determining the time limit is a question of law and fact that can be difficult to ascertain.

For these reasons, it is always a good idea to engage a Florida lawyer to provide legal advice regarding when to contest Florida wills.

Jim Martin is a Florida probate lawyer who drafts wills and trusts for Florida residents and who also advises beneficiaries, personal representatives, and trustees in probate and trust proceedings throughout Florida after a Florida resident dies. He usually charges for his services based on an hourly rate payable from the assets of the estate or trust (not a percentage fee). He encourages clients to do as much of the work as they can do in order to keep legal fees to a minimum. This page is the starting point for new clients to begin to understand the probate and trust administration process for deceased Florida residents.

What is probate? Probate is the process by which assets pass from someone who has died to his or her spouse, children or other beneficiaries after first being used to pay his or her debts, claims and taxes.

Why is probate required? In the olden days, property passed to the eldest son, but laws have changed so that the deceased person could leave a will naming a personal representative to pay the creditors and distribute the rest of the estate to beneficiaries named in the will. After someone dies, the will is filed with the court, and the court approves (probates) the will and appoints the personal representative named in it.

When is probate required? Probate is required in Florida whenever an individual dies owning any type of asset in his or her own name alone, unless all assets pass outside probate.

Can probate be avoided? Probate in Florida can be avoided by gifts before death, by owning assets jointly with survivorship rights, by contract such as life insurance and annuities and retirement accounts and IRAs, by titling assets in pay on death or transfer on death accounts, and by revocable trusts and irrevocable trusts.

Gifts Before Death. If a Florida resident gives away any asset before death then he or she would not own the asset at death and Florida probate would not generally be required for that asset. Of course, giving away all your assets might not be a good idea if you will need them, but some estate planning makes alternate provisions when a person does this.

Joint Property with Full Rights of Survivorship. If a Florida resident dies owning property in Florida jointly with full rights of survivorship with another person, then the property passes automatically by operation of law outside probate to the other person. Probate is not required for that property. However, if the property is owned as tenants in common with the other person, then probate is required, and the decedent’s interest in the property is a probate asset.

Tenancy by the Entirety. If a Florida resident dies owning property in Florida with his or her spouse as tenants by the entirety, then the property passes automatically by operation of law outside probate to the surviving spouse. Probate is not required for that property. Real estate in Florida owned by husband and wife is presumed to be tenancy by the entirety property, but it is best if the deed actually uses these words. Bank accounts and other tangible personal property in Florida can also be owned as tenants by the entirety. A couple must be married for tenancy by the entirety ownership to apply. Another benefit to tenancy by the entirety ownership in addition to avoiding probate is that Florida property owned as tenants by the entirety is not subject to claims of creditors of just one spouse; only joint creditors of both spouse can reach the tenancy by the entirety property to satisfy a judgment against them.

Life Insurance. Life insurance is a contract (policy) between a policyholder (owner) and an insurance company (insurer) by which the insurance company agrees to pay a certain sum of money to a third party (beneficiary) upon the death of a certain person (insured). The owner and insured can be the same person. When the insured dies, the insurance company pays the beneficiary directly per the insurance policy. Probate is not usually required for life insurance, but it can be required if the owner fails to designate a beneficiary or if the designated beneficiary dies before the insured. If the beneficiary designation fails, the contract usually specifies that the insurance company will pay the probate estate of the insured.

Annuities. Annuities are similar to life insurance but instead of paying a beneficiary after the insured dies, the annuity company pays the beneficiary during the annuitant’s life and payments stop being paid when the annuitant dies. (Sometimes there is a death benefit under the annuity contract that is similar to life insurance.) As long as there is nothing payable to the estate of the annuitant at death, there is no probate required for the annuity.

Retirement Accounts. Retirement accounts such as pensions, profit sharing plan accounts, 401(k) plan accounts, 403(b) plan accounts, and individual retirement accounts ( IRAs) provide for paying account balances at death of the account holder to the beneficiaries named in a designation of beneficiary form. No probate is generally required unless the beneficiary designations fail.

Pay on Death Accounts. Some accounts with banks, brokers and other financial institutions can be titled as pay on death, POD, transfer on death, TOD, or Totten Trust accounts, which named persons as beneficiaries to receive the account at death.

Trusts. A trust is a form of ownership created by a person (settlor) by which one person (trustee) holds legal title to property (corpus) for the benefit of another person (beneficiary) who is said to hold equitable title. A trust created by someone during his or her life is a living trust. If the trust can be revoked, then it is a revocable trust. If it cannot be revoked, then it is an irrevocable trust. If a Florida resident dies after creating a living trust, then any assets transferred to the trust during life do not usually require probate. Those assets pass outside probate because they are owned by the trustee of the trust and not by the deceased settlor.

When is probate required even if there are no assets owned at death? There are two situations where probate is opened even when the Florida resident owned no assets at death: wrongful death and living trust.

Wrongful Death. If a Florida resident dies as a result of someone else’s negligent or intentional act, there might be a cause of action for wrongful death against the perpetrator. In that case, a wrongful death lawsuit is filed by the personal representative of the probate estate. A probate proceeding must be opened in order to file the lawsuit even if the decedent owned no assets.

Living Trust. If a Florida resident dies owning no assets in his or her name but created a revocable trust during his or her life (living trust), then a probate proceeding is still recommended in order to clear claims of creditors in the shorter 3-month creditor claims period for probate estates instead of waiting the longer 2-year limitations period before distributing trust assets.

Some lenders choose not to file a claim in a probate estate, thinking that they can sue on the mortgage without filing a probate claim. Taking this approach might cost them the mortgage. A recent case provides some groundwork for defending against such a foreclosure.
In its 11/9/11 opinion Taylor v. Bayview Loan Servicing the Florida 2nd District Court of Appeal held that if a promissory note is secured by a mortgage, and if the note is assigned, then the mortgage follows the note and is automatically assigned along with the note, even if no separate assignment of mortgage is recorded.

The court cited the 1938 Florida Supreme Court case of Johns v. Gillian, 184 So. 140 (Fla. 1938), which said that “the mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt.”

Therefore, logically, if the note was not assigned but instead became unenforceable due to the Florida Probate Code’s statute of limitations, would not the mortgage that follows it also become unenforceable?

The mortgage follows the note. So, if the note becomes unenforceable, does the mortgage become unenforceable? The Florida Probate Code provides a 2-year statute of limitations on creditor claims, in addition to the 3-month statute of limitations on claims by reasonably ascertainable creditors. If a lender fails to file a claim within 2 years after the death of a borrower, does the mortgage become unenforceable?

Florida law provides that creditors are entitled to be paid before beneficiaries. It also provides that if there is not enough money to pay all creditors in full, then they are to be paid pro rata. That is, they get paid based on the size of their debt compared to the total debt of the estate. This means that if the personal representative pays out say $10,000 in claims and then finds there are $100,000 in total claims but only has $50,000 left in the bank account, the personal representative might be personally liable for the unpaid claims.

So how does a personal representative protect itself? By following the creditor claims process for Florida estates. First, the Florida probate lawyer will publish notice to creditors in the newspaper. Then, the personal representative will undertake a search for creditors and will serve copies of that notice to creditors on all possible creditors. Generally all claims must be filed within 3 months after the date of first publication, so in just 3 months the personal representative will know the total of all claims and be able to pay them using the funds available.

Something else to keep in mind is that generally only creditors who file claims with the court are entitled to be paid in Florida probate. There are exceptions, such as estate administration expenses and fees, but bills that are sent to the decedent are not claims and are not to be paid unless claims are filed with the court.

Probate in Florida can be simple and easy, but the rules must be followed in order to protect the personal representative from personal liability. The Florida probate lawyer can provide advice on these matters.

The idea behind having a power of attorney that “springs” into effectiveness upon incapacity was that the principal would be protected from the agent using the power of attorney while the principal was capable of acting on his or her own. But that idea can no longer be put into effect in Florida.

The new law says that a power of attorney signed after 10/1/11 is not effective if it provides that it is to become effective at a future date or upon the occurrence of a future event or contingency.

Of course, powers of attorney still cease to be effective upon death of the principal, a fact which many people still don’t seem to realize.

And, yes, Florida still recognizes durable powers of attorney that remain effective during incapacity, as long as the “magic words” are used.

But, apparently, it’s not clear enough. A recent court decision held that a homestead held “as joint tenants with full rights of survivorship and not as tenants in common” passed to the joint owner and not as homestead property. In Marger v. De Rosa, 2011 WL 252942 (Fla. 2nd DCA 2011), a father who had two minor children purchased a home with his own mother. The deed said the son and his mother owned the home “as joint tenants with full rights of survivorship and not as tenants in common.” The father died. The court held that 100% of the home passed to his mother. No part of the home passed to his minor children.

The court’s reasoning is based on the way the law treats the form of ownership known as joint with survivorship. Upon the death of one of the joint owners, the title to the property passes automatically by operation of law to the surviving joint tenant. The court reasoned that the father’s interest in the home ended immediately on his death so there was nothing to leave to his minor children.

What’s interesting about this case is that 1) it is surprising to Florida probate lawyers and Florida real property lawyers because we have seen the courts expanding the protections of the Florida constitutional homestead over the last twenty years, 2) this case goes in the other direction and limits the protection, and 3) there is nothing new about the theories behind the case. While some interesting theories were presented by the minor children’s attorneys, the court chose not to go with them.

This case shows that long-standing legal theories have built-in potential to clash with each other when the right facts invoke them. In this case, it was a clash between a grandmother and her minor grandchildren over a home she owned with their deceased son/father. Hopefully, those set of facts won’t soon present themselves again.

When a Florida resident dies, the Florida Constitution protects the surviving spouse and minor children from becoming homeless by prohibiting the decedent from leaving the homestead to anyone else. It says “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.” That seems pretty clear. But, apparently, it’s not clear enough.