Boca Raton Probate Litigation Attorney

Probate is the legal term for the administration of a decedent’s estate.  This process ordinarily involves admitting the decedent’s last will and testament and appointing a personal representative (also known as an executor) to oversee the administration process.  A fundamental part of a personal representative’s duties is the marshaling of probate assets for eventual distribution to the beneficiaries of the estate. Often times, disagreements arise in the course of this process, necessitating the retention of a Boca Raton probate litigation attorney. 

Ellis Law Group, P.L. is a Boca Raton probate litigation firm offering solutions in all types of estate disputes. Contact us today to learn more about how we can assist your family in resolving probate matters.

Re-Titled and Wrongfully Transferred Assets/Depleted Estate

One of the fundamental tenets of probate is that a decedent’s will only controls the disposition and distribution of probate assets.  Probate assets are, in essence, those assets owned by the decedent which are not co-owned with rights of survivorship and which do not have any designated beneficiaries.  Often times, usually late in a decedent’s lifetime, the titling of assets changes or assets are transferred in a manner which results in a reduction in value of the estate.  For instance, a bank account once held in the decedent’s name alone is retitled such that it is held by the decedent and his or her son as joint tenants with rights of survivorship.  In some cases. substantial funds from a large account are transferred, without rhyme or reason, shortly before the decedent’s death.  It is also not uncommon that a family member becomes a signatory on a decedent’s account and abuses that power for personal gain by using the decedent’s assets for personal purposes.

In many of these cases, the manner in which these assets are transferred or retitled is profoundly at odds with the terms of the decedent’s will, thereby suggesting that the decedent did not legitimately intend for these transactions to occur.

Probate courts are courts of equity, which means that the judges who preside over estate matters look past the form of a transaction or asset in order to determine the true substance or truth.  When assets have been improperly retitled or transferred, or when a decedent’s funds have been spent down without the decedent’s consent, probate courts can and do find that these assets are, legally speaking, still part of the probate estate.  Courts have the power to order the return of these assets to the estate either through subsequent retitling or the delivery of funds. In addition, where an individual who is a beneficiary of the estate is found to have committed this type of wrongdoing, the court can find that the beneficiary’s interest in the estate has been satisfied to the extent of the unjust enrichment.

It is incumbent on those adversely affected by these acts to protect themselves, and to do so within various limitations periods imposed by Florida law.  The attorneys of Ellis Law Group are available in Boca Raton and throughout Florida to consult in matters such as these.

Spousal Rights

Elective Share

Florida law provides that a spouse cannot be disinherited by will.  The only way a surviving spouse can be disinherited is through the execution of a valid premarital or postmarital agreement.  In the absence of a nuptial agreement, a surviving spouse is, at a minimum, entitled to an elective share.

As with other rights and interests in an estate, a qualifying spouse’s right to take an elective share must be exercised within the prescribed time.  In most cases, a spouse will be required to exercise this right within 6 months of being served with Notice of Administration but in any case, the right must be exercised within two years of the decedent’s death.

In Florida, the elective share is defined as 30 percent of the elective estate.  Florida subscribes to an “enhanced elective estate” system.  Even though an elective share is calculated as part of the probate process, the assets which ultimately form and fund the elective share may include assets which are not probate assets.  Florida law provides that the following non-probate assets are included in the elective estate from which the elective share is taken: the decedent’s fractional interest in jointly held property; the decedent’s interest in his or her homestead property; the decedent’s interest in assets with a designated beneficiary; the cash surrender value of certain policies of life insurance; and certain transfers of property made within a year of the decedent’s death.

It is the personal representative’s responsibility to put together the inventory of assets which form the elective estate and to set forth what the estate believes the value of the elective share is.  Both the spouse and the beneficiaries are afforded the right to object to this information. Potential grounds for objection are that certain includable assets were not disclosed in the inventory or that assets were improperly valued.  If disagreements cannot be amicably resolved, litigation may ensue.

Pretermitted Spouse

In some cases, a decedent makes his will before marriage and does not thereafter execute a new will naming his or her spouse as a beneficiary.  When the surviving spouse married the decedent after the will was made and the spouse is not named in the will, the spouse may be pretermitted. A pretermitted spouse is entitled to a share of the estate equal to that which the spouse would have received if the decedent died without a will.  Depending on the facts and circumstances, this would either be half or all of the probate estate. Unlike an elective share, the inheritance to a pretermitted spouse is made up exclusively of probate assets.

Other Spousal Rights

In addition to elective share, Florida law may confer other rights on surviving spouses.  One such right is the right to exempt property. As the name suggests, exempt property is exempt from the claims of creditors and is distributed to a spouse in addition to any other bequests.  That is, exempt property does not count towards satisfaction of an elective share or bequests made in a will. This right must be timely exercised, or it is waived. The deadline to claim exempt property will depend on the attendant facts and circumstances.  

A surviving spouse may also be able to claim family allowance, which provides for the distribution of probate assets in an amount not to exceed $18,000.00 to allow a surviving spouse to pay his or her personal expenses while administration is ongoing.

The Boca Raton firm Ellis Law Group can assist surviving spouses in all probate matters, whether or not litigation is involved, in order to protect their elective share, pretermitted spousal share, and other rights.

Contact an Experienced Boca Raton Probate Litigation Attorney Today

If you and your loved ones are struggling with a probate dispute, a Boca Raton probate litigation attorney at Ellis Law Group can offer you the experienced and compassionate legal representation you need. Contact us online or by phone at 561-910-7500