What happens when a person writes a new will, revokes his or her previous valid will, and the probate court later determines that the new will is invalid? Usually, the person will be considered to have died intestate, i.e., without a will, and his or her property will be distributed according to the Florida intestate…
Continue reading ›Florida law allows a decedent to forgive certain debt upon his or her death. For example, a holder of a promissory note who wishes to forgive the outstanding debt that has not been paid upon his or her death may do so through his will. Problems arise, however, when the estate is insolvent. In Lauritsen…
Continue reading ›A spendthrift trust protects the trust assets against most creditors. To be valid under Florida law, a spendthrift trust must restrain both voluntary and involuntary transfers of the beneficiary’s interest. In other words, one cannot validly set up a trust to keep creditors out while simultaneously allowing the beneficiary to freely transfer his interest in…
Continue reading ›In interpreting a will, Florida law holds that the intention of the testator is the controlling factor in the analysis. However, Florida law also provides that the testator’s intention should be gleaned from the four corners of the will. Aldrich v. Basile, 2014 Fla. LEXIS 1027, at *12 (Fla. Mar. 27, 2014) (“The testator’s intention…
Continue reading ›Under Florida law, if a person wishes to contest the validity of a legal instrument, i.e., a will or trust, he or she cannot simultaneously benefit from that instrument. The “renunciation rule” requires that an individual challenging the validity of a legal instrument return the payments or benefits that he or she received under that…
Continue reading ›Before drafting a will, the testator, i.e., the person who owns the assets that will be distributed after his or her death, must fully understand any restriction placed on the alienation of his or her assets. A testator might erroneously believe he or she has the power to devise an asset as he or she…
Continue reading ›The right to testamentary disposition of property is a right protected by the Florida Constitution. To be valid under Florida law, a will must satisfy certain formalities: the will must be (1) in writing, (2) signed by the testator at the end of the will (or at the direction and presence of the testator), and…
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