Surviving spouse rights in Florida are strongly protected under Florida law.  In order to waive spousal rights under Florida law, a written agreement is required that has certain requirements. Florida Marital Agreements to Waive Spousal Rights Section 732.702, Fla. Stat. (2019) addresses the waiver of spousal rights, including intestate rights, and states: (1) The rights of a surviving spouse to an elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate or any of tho ..read more

The Florida Elective Share is a means by which surviving spouses receive a fair share of their deceased spouse’s estate, no matter what the estate planning documents say.  In general, the Florida elective share provides that the surviving spouse is to receive no less than 30% of the deceased spouse’s assets.  See Fla. Stat. s. 732.201. Table of Contents Making the Florida Elective Share Election How To Calculate The Florida Elective Share Florida Elective Share Earns Interest Elective Share May Not be Charged for Estate Attorney Fees Waiving Elective Share Making the Florida Ele ..read more

State of Florida Document Library for Probate, Trust, Guardianship, and Inheritance Litigation Probate Administration Caveat Petition for Appointment of Curator Petition for Administration Oath of Personal Representative Formal Notice of Petition for Administration Notice of Administration Waiver of Notice of Administration Inventory Notice to Creditors Objection to Creditor Claim Satisfaction of Creditor Claim Petition for Homestead Final Accounting     Probate Litigation   Trust Administration   Trust Litigation   Guardianship Administration and Litigation   Inh ..read more

No.  An estate is not eligible to file for bankruptcy protection under the United States Bankruptcy Code.  As explained in In Re Taplin, 641 B.R. 236 (E.D. Cal. 2022): The Bankruptcy Code provides that only a ‘person’ that resides or has a domicile, a place of business, or property in the United States, or a municipality, may be a debtor under the Bankruptcy Code. 11 U.S.C. § 109(a). The term ‘person’ includes individual, partnership, and corporation, but, except for potential eligibility to serve on a chapter 11 creditor’s committee, does not include a governmental unit. 11 U.S.C ..read more

When someone passes away owning Bitcoin or another cryptocurrency, the recovery process can be difficult or impossible.  As a personal representative or executor of an estate, the first job is to locate, custody and protect the assets of the deceased.  Recovery of Bitcoin and other cryptocurrencies is an essential part of being a personal representative. In order to locate and collect the Bitcoin of a deceased person, the basic facts about Bitcoin and how Bitcoin has been held over they years is necessary.  This is because Bitcoin has been held in a number of different forms ove ..read more

Parties in a case can send each other document production requests, under the Florida Rules of Civil Procedure, Rule 1.350.  Objections can be made, and the Court can rule on them.  If an objection is lodged because an items is protected under a privilege, such as attorney-client privilege, if the Court overrules the non-privilege objections, the objecting party can be required to produce a privilege log to aid the litigants in adjudicating the privilege. Rule 1.280 – GENERAL PROVISIONS GOVERNING DISCOVERY (b)(6)Claims of Privilege or Protection of Trial Preparation Materials. When a ..read more

Yes, a seemingly obscure probate rule about whether a dispute is adversarial or not can have a large consequence, as made clear in the case of Dora v. Morrison, 5D22-1369 (5th DCA 2024). What Does it Mean in Florida Probate Proceedings for a Dispute to be Adversarial? Some probate proceedings can become contested  – think of a few obvious proceedings such as a will contest or an attempt to remove a personal representative for breach of duty.  If a probate proceeding becomes contested, the rules of civil procedure should apply, and they do.  If a probate proceeding is not adversa ..read more

Elon Musk has brought suit against ChatGPT-maker OpenAI and its CEO, Sam Altman, saying they abandoned the startup’s original mission to develop artificial intelligence for the benefit of humanity and not for profit.   Musk’s lawsuit alleges a breach of contract, saying Altman and co-founder Greg Brockman originally approached him to make an open source, non-profit company, but the startup established in 2015 is now focused on making money. Musk said OpenAI’s founders originally agreed to work on artificial general intelligence, a concept that machines could handle tasks like a human ..read more

Yes, pursuant to the Uniform Trust Code and Mississippi law, an irrevocable trust can be amended 25 years after its creation by the settlor, to correct a scrivener’s error.  The Mississippi Supreme Court, in In the Matter of the Elton G. Beebe Sr. Irrevocable Family Mortgage Trust, held that the settlor, by clear and convincing evidence, met the standard for correcting a mistake in an irrevocable trust. The $80 million Trust named sixteen lifetime beneficiaries.  The distribution plan of the Trust was simple: The Trust provides that it is a discretionary trust and that the trustees ..read more

Revocable trusts are used for two primary purposes – to avoid probate, and to keep assets out of a guardianship.  At least that is what estate planning clients are led to believe.  But can a guardian of property replace the trustee of the ward’s revocable trust?  Yes.  The Florida Guardianship Code gives tremendous power to guardians, including the amendment of revocable trusts and the replacement of trustees.   Florida Guardianship Code Section 744.441(19) gives the authority to amend a revocable trust, with court approval: (19) Create or amend revocable trusts o ..read more