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Items filtered by date: Wednesday, 09 May 2018

There are a number of situations where a party may need to contest the validity of a Florida will. One legal tool that a party may use to protect its interests is the filing of a “caveat.” This is essentially a notice filed with the probate court reserving the right to be notified if an estate has been opened.

Caveats are necessary because a person who files a will for probate–typically the personal representative named in the document–does not have to provide advance notice to any interested parties beforehand.

But if there is reason to challenge or contest the validity of the will, and therefore the personal representative's appointment, it is critical that any objecting parties are heard first. For this reason, Section 731.110 of the Florida Statutes expressly provides that once a caveat has been filed by an interested person–other than a creditor of the deceased–the will cannot be admitted to probate until the objector has a chance to be heard by the court.


Florida: A Caveat By Any Other Name Is Still a Caveat

Florida Probate Rules establish the necessary form for filing a caveat. Specifically, Rule 5.260 states the caveat should contain:

● the name of the deceased individual whose estate is the subject of the probate petition;
● the last four digits of the decedent's Social Security number or year of birth, assuming the objector knows this information;
● the objector's interest in the decedent's estate; and
● the name and mailing address of the objector.

Any filing that substantially contains this information should be treated by the probate court as a caveat even if it is not explicitly labeled as such. The Florida Second District Court of Appeals recently addressed this point in a pending will contest from Hillsborough County. The appeals court held a probate judge erred when he admitted a will to probate without first hearing an objecting party's contest.

The decedent in this case passed away nearly seven years ago. But nobody attempted to open a probate estate until five years later, when the personal representative nominated by a will purportedly signed by the decedent was filed with the court. The petitioner said an estate was necessary to probate a piece of real property in Hillsborough County, which under the terms of the will should pass to the decedent's sister and niece.

An objector filed a document labeled as an “Answer and Affirmative Defenses to Petition for Administration” with the probate court. The objector said he owned 50 percent of the real property in question, and he further claimed the will was invalid as the product of undue influence and fraud. The probate court admitted the will to probate without hearing or considering these objections.

The Second District said that was a mistake. Although the objector did not label his filing as a “caveat,” that is what it was, the appeals court said, and it substantially complied with the requirements of Rule 5.260. As a result, the objector was at least entitled to a formal hearing on his will contest.


Get Help With a Florida Will Contest/Challenge.

If you are involved in a will contest, either as a challenger or as the personal representative, it is important to work with an experienced Fort Myers probate administration lawyer who can guide you through the process. Contact the Kuhn Law Firm, P.A., today at 239-333-4529 to schedule a free estate planning consultation with a member of our team.

Published in General/Features
Wednesday, 09 May 2018 22:40

The Can't-Do Republicans




Back in '92, the late Paul Weyrich and I held a press conference during the Republican National Convention to make two announcements.

First, we were endorsing George Bush 41's re-election. Second, we'd just made the most meaningless endorsement in history. He had so thoroughly bungled his first term that there was nothing to be done to save him. And we were right.

The Republicans are now facing the same future in November. At this point, they may lose the House and quite possibly the Senate. Worse, they've so botched their opportunity that only they can save themselves now. Their $1.3 trillion omnibus bill was not just the most reckless spending bill in history, it was an abject surrender on every single political and policy pledge made to those who put them in office, save helping the military.

It's been this way from the start. First, they asked for control of the House and its appropriations authority to right the fiscal ship, and as importantly, to end Obamacare. In 2010, they got it -- and immediately stated they could do nothing without the Senate. In 2014, they were awarded that, too -- and just as quickly declared they could do nothing without the White House. So, in 2016 they were handed that, and with it complete control of the legislative process, but now with no more excuses available.

And what have they done? They surrendered without a fight. Any real advance, be it Justice Gorsuch, regulatory relief, minimal border security, minimal tax cuts or minimal changes in Obamacare, has all been driven by the White House. Congress has done nothing.

Here's the difference between the two parties. For the past eight years, the GOP has been the party that begins each conversation with, "This is why we can't do it." The Democrats begin theirs with, "This is how we'll get it done." The crisis for Republicans is so grave that not even a rhetorical shift will save them. Only action, concrete action, might. They must come up with victories.

Here's what they need to do, in six easy steps.

1. Like it or not, they must wrap themselves around the president to save him from impeachment. This means publicly embracing him as their leader. More to the point, it means supporting everything he puts on the table from here through November, and doing it with brio.

2. Reverse that disastrous $1.3 trillion omnibus. This talk about a revision, or worse, a balanced budget amendment, is the height of hypocrisy and the public's not going to stand for it. It's like committing rape and then joining the #MeToo movement. Only tangible results, legislation that reduces the deficit and puts the government on the road to fiscal sanity, will work.

3. Kill Obamacare. Nothing less will do. The public that voted these Republicans in has had it with excuses and half-measures.

4. End the funding of Planned Parenthood. The pro-life movement is leaving the GOP, and for good reason. When Republicans award the operation that proudly massacres more than 300,000 babies annually with $450,000,000 dollars taken from American taxpayers, there's no difference between the parties.

5. Fund border security. The base will not stomach any more of the GOP's public displays of affection for Chuck Schumer while denying funds for Trump's border wall. Promises made, promises broken.

6. Deliver real personal tax cuts. What they came up with last year rewarded big business nicely while excusing nearly 50 percent of Americans from the responsibility of paying taxes altogether. Everyone else was given a small amount of relief. Those were your voters, GOP.

Here is the bottom line. On Sept. 30, five weeks before the election, there will be the need for a new spending bill to keep the government running. Everything listed above can be accomplished in that one piece of legislation. No more excuses. No more punts. No more stalling.

It's so obvious, really. At this point the GOP faithful are set to make a devastating declaration in seven months: "We gave you complete control, and you not only accomplished nothing, you broke your word on virtually everything. Good-bye."

And you know what, Republicans? They're right.

L. Brent Bozell III
and Tim Graham

Published in Politics

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