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.

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 people love their pets so much they try to leave money to them in their will. This does not work. Pets can’t own things. But, a pet owner can specify in a last will and testament that a trust be set up to provide funds to take care of the pet.

So, next time you’re talking to your pet, think about who you want to do the talking when you’re gone. Then tell your lawyer to update your will.

The probate law in Florida is partly in the statutes (substantive) and partly in the rules (procedural). You have to know both for a successful, timely probate process. The whole concept of probate in Florida is to find out what the decedent owned, find out who are the creditors and beneficiaries, pay the creditors first, and transfer what’s left to the beneficiaries.

That’s easy to say, but you need to know the statutes and rules to do it right. Because creditors have 2 years to make a claim so if you don’t do it right, you could end up paying them from your own funds.

That’s why it’s always best for a Florida probate lawyer to advise the person named as personal representative (executor) in the deceased’s will. Even if there’s no probate. Many people think that the will is all they need. The truth is that the will must be admitted to probate by the court before you can act on it. That’s just one of the statutory and rule requirements for probate in Florida. A probate lawyer in Florida can help you with the rest.