I have over four (4) decades of Florida legal experience guiding families and loved ones through the Manatee County Florida probate process. A decedent's Florida probate estate can be handled through the Summary Administration process (if the Florida probate assets are valued under $75,000) or the Formal Administration process (if the Florida probate assets exceed $75,000 in value).
Manatee County Florida probate proceedings are a court supervised process for identifying and gathering a Manatee County Florida decedents assets, paying federal and state income taxes, paying creditor claims, and ultimately distributing the decedent's assets to his or her beneficiaries or heirs. A Manatee County Florida Circuit Court Judge presides over the proceedings. The Florida Probate Code can be found in Chapters 731 through 735 of the Florida Statutes. A Manatee County Florida probate estate will be administered as testate (decedent died with a valid Last Will and Testament) or intestate (decedent died without a Will).
Formal Probate Administration: The Florida formal probate process is required for Manatee County Florida estates valued at over $75,000.00. It is a court supervised proceeding where: (i) a Florida decedent's Last Will and Testament, if one exists, is accepted by the Manatee County Florida Probate Judge, (ii) a Florida personal representative is appointed to administer the estate, (iii) Notice of Administration is served on all interested individuals (surviving spouse, beneficiaries, etc.) and (iv) a Notice to Creditors is published to identify unknown creditors and sent to all known creditors. After the expiration of Florida creditor claims period (ninety days) creditors who fail to file a Statement of Claim loose their right to collect on the decedent’s debt. Once all estate assets are collected, debts and taxes are paid and after the distribution of estate assets is made to the beneficiaries, the Manatee County Florida Probate Estate is closed and the Florida personal representative is relieved of all duties and liabilities to the Estate.
Summary Probate Administration: When a Manatee County Florida probate estate has a value of less than $75,000 this simplified Florida probate process may be utilized. Under the Florida probate process the estate beneficiaries must file a petition with the Manatee County Florida probate court, request the Probate Judge approve the petition and request an order distributing the estate assets.
Ancillary Probate Administration: Ancillary Florida probate administration is the Manatee County Florida probate process conducted when a Non-Florida resident decedent dies owning Manatee County Florida real estate. The probate process is required to pass legal title to the estate asset to the estate beneficiary. If probate proceedings are required in the decedent's state of residence an exemplified transcript of the probate documents (Last Will & Testament, Letters of Administration, Order Admiting Will, etc.) and a death certificate will be required to open the Manatee County Florida ancillary probate proceeding. The Manatee County Florida ancillary probate proceeding can be handled through either the Florida Summary Administration process or the Florida Formal Probate Administration process. Under a formal proceeding a Florida personal representative will be appointed to administer the ancillary probate estate.
Florida Probate and Estate Litigation: The Florida legal process under which an individual (beneficiary, disinherited family member, etc.) contests or disputes the administration of a Manatee County Florida residents probate estate proceedings (Will or Trust). The basis for the contest or dispute can be an allegation of undue influence, lack of capacity, duress, fraud, lack of proper formalities, ...
A Florida Last Will & Testament or Trust can be challenged for numerous reasons. Among the basis include: (i) Undue Influence; (ii) Lack of Capacity; (iii) Lack of Proper Formalities; (iv) Fraud; (v) Duress; and (vi) Coercion.
Undue Influence: A claim of "undue influence" can be alleged when the testator executes the document as a result of improper pressure (typically from a family member, care giver, friend, etc.). The allegation can usually be substantiated when a long-standing estate plan is radically changed with different beneficiaries receiving the bulk of the decedents estate.
Lack of Capacity: Under Florida law, the individual signing a Florida Last Will and Testament ("Will") must possess the mental capacity to create the document, understand the nature and value of his/her assets, and the people to whom they are leaving their estate at death. A Will can be challenged on the basis that the signor lacked mental capacity at the time it was executed.
Lack of Proper Formalities: Proper execution of a Florida Last Will and Testament ("Will") requires the Will to be executed in front of two witnesses (who are able to acknowledge that the testator signed the document as their Will). The document may be challenged on the basis that it was not properly drafted, signed or witnessed.
Fraud: This occurs when the testator is fraudulently induced into signing an estate planning document which does not reflect their true intent.
Duress / Coercion: When an unlawful threat or pressure forces an individual to sign an estate planning document that they would not have otherwise executed.
Florida Will Contest Standard - Carpenter Standard: A presumption of undue influence arises when it is demonstrated by the person contesting the will that the individual alleged to have unduly influenced:
(i) occupied a confidential relationship with the testator;
(ii) was a substantial beneficiary under the will; and
(iii) was active in procuring the will.
Active procurement can be shown regarding seeking a will when various factors are proven to have occurred. The Carpenter case, which the Florida Supreme Court decided in 1971 established the following factors to examine:
(i) The presence of the beneficiary at the execution of the will;
(ii) The presence of the beneficiary on during which times the testator expressed the desire to make a will;
(iii) The beneficiary of the will recommending an attorney to draw the will;
(iv) The beneficiary having knowledge of the contents of the will prior to the testators execution;
(v) Instructions regarding preparation of the will by the beneficiary to attorney preparing the will;
(vi) The Beneficiary obtaining witnesses for the execution of the will; and
(vii) Maintaining the will by the beneficiary after the execution of the will.
If multiple of these situations are demonstrated to have occurred the presumption that the will was procured by undue influence may arise. When the presumption arises the beneficiary is required to then show a reasonable explanation for their active role in procuring the will. If the beneficiary cannot provide a reasonable explanation of his or her active role in the procurement of the will, this alone is sufficient to find undue influence. If the beneficiary can come forward with a reasonable explanation, then the person contesting the will must go forward with evidence that the will was procured through undue influence.
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Marc J. Soss, Attorney at Law | (941) 928-0310