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Understanding Your Florida Beneficiary Rights

In estate and contract law, a “beneficiary” is simply someone who has the legal right to receive the benefits of an instrument or contract.  A beneficiary of a will, for example, has the right to receive distributions of estate assets through the will.  Or a trust’s beneficiary is someone who receives disbursements of trust assets or income—that is, the person the trust is designed to benefit. Similarly, a Florida life insurance policy’s beneficiary holds the right to receive the policy’s payout when it is triggered, and the designated beneficiary of a retirement account automatically accedes to the account upon the owner’s death. Florida beneficiary rights then would concern the right to receive benefits from these kinds of assets in Florida usually distributed from a Florida last will or Florida revocable or irrevocable trust.

Understanding Florida Beneficiary Rights

It’s important to note, though, that the right to receive payments or assets is not the only right enjoyed by beneficiaries.  Under Florida law, beneficiaries are afforded numerous other privileges and protections, depending upon the vehicle through which they stand to benefit.  If you’re a designated beneficiary under a will, trust, insurance policy, or other instrument, a familiarity with all of your legal and contractual rights allows you to better understand and take advantage of your position as a beneficiary.

Rights of Beneficiaries and Heirs in Florida Probate

Although the two terms are often used interchangeably, there is a distinction between an “heir” and a “beneficiary” in Florida probate law.  A “beneficiary” in a Florida probate is someone named in a will and who has a right or potential right to receive wealth transferred through the will.  An “heir,” on the other hand, stands to inherit—under state intestate succession laws—wealth from a decedent who did not have a will.  Heirs are usually relatives of the decedent, but beneficiaries don’t necessarily have to be.

Although we will primarily use the term “beneficiary,” heirs of intestate estates have most of the same rights as beneficiaries—except when the right specifically relates to a will.  Both heirs and beneficiaries have important “information rights,” or rights to be kept informed as estate administration progresses and notified of certain important events.  Florida beneficiary rights require that Florida beneficiaries must be provided notice that an estate has been opened and that a personal representative has been appointed to act for the estate.  If the estate is involved in any probate or trust litigation in Florida or if any adversary proceedings are commenced, beneficiaries have the right to receive notice and stay informed of the litigation status.

Florida beneficiary rights also require that beneficiaries also have the right to receive an accounting of the estate from the personal representative.  The accounting must include an inventory of all estate assets in Florida and perhaps elsewhere, with each asset’s appraised value, and a statement of all transactions involving the estate.  Transactions will include claims and expenses paid out and any receivables or income that comes in.  If the estate includes a safe deposit box, a beneficiary can also request an accounting of its contents.

A beneficiary has the right to object to certain matters and petition the probate court for clarification of others.  Within 90 days of receiving notice of the estate, a beneficiary can contest a will or appointment of the personal representative.  If the identities or precise inheritances of an estate’s beneficiaries are not clear, potential beneficiaries can petition the court for a determination of either.

Because beneficiaries stand to gain from an estate, they have rights that help ensure estate assets are properly protected.  Beneficiaries can object to claims filed by creditors (though that is usually the personal representative’s duty) and can petition the court for a determination as to whether an asset is exempt, including under Florida’s homestead exemption.

In general, Florida beneficiary rights require that a beneficiary has the right to be treated fairly by the Florida personal representative, who must always act in the best interest of the estate.  If a personal representative is acting improperly, a beneficiary can petition the probate court for removal, contest a personal representative’s claim for compensation if it is unreasonable, or contest a transaction if the personal representative has a conflict of interest.

A beneficiary can expect to receive bequests with reasonable promptness, including through an interim distribution or family allowance when appropriate.  Both allow estate assets to be disbursed while the estate is still pending.  The promptness that a beneficiary can expect varies based on the circumstances of the estate. An estate with substantial assets in Florida, limited creditors, and specific bequests of assets will allow for quicker distributions than an estate that is entangled in litigation, has numerous creditor claims to sort out, and describes inheritances as a percentage of the estate’s value.

In many ways, the duties owed by a personal representative to an estate’s beneficiaries are similar to the duties owed by a trustee to trust beneficiaries. Both a trustee and a personal representative are fiduciaries, charged with putting others’ interests above their own.  So, it isn’t surprising that the beneficiaries of a trust have many of the same rights as an estate’s beneficiaries.

Rights of Trust Beneficiaries in Florida

The rights of a Florida trust beneficiary are largely derived from the duties of the trust’s trustee.  Trustees must administer their trusts in good faith, in accordance with the best interests of beneficiaries and the purpose of the trust.  Beneficiaries have a right to a properly administered trust, managed in accordance with Florida trust law and the trust’s purpose.  If there are any failings, beneficiaries can hold the trustee accountable.

A trustee’s duty to act in good faith and in beneficiaries’ best interests includes a duty to avoid conflicts of interest and self-dealing, and to reasonably limit trust expenses.  If a trust has more than one beneficiary, the trustee must act impartially toward the beneficiaries. In the event of any improper dealing or expenses, beneficiaries can petition a court to void inappropriate transactions or to hold the trustee liable for losses incurred by the trust.

As with beneficiaries in probate, Florida trust law provides trust beneficiaries with substantial information rights.  A beneficiary generally has the right to be kept “reasonably informed of the trust and its administration.” This includes the right to receive an annual accounting from the trustee, which must provide a record of all transactions involving the trust and a statement of all gains, losses, distributions, and fees.  The required disclosure of fees includes all fees paid by the trust to the trustee and any professionals hired by the trustee on the trust’s behalf.

Florida beneficiary rights require that beneficiaries have the right to insist that the trustee protect trust assets—through appropriate legal action when necessary—and invest prudently.  If the trustee has special skills, a beneficiary can expect that those skills will be used to benefit the trust.  A trustee who fails to meet these standards potentially breaches the fiduciary duty owed to beneficiaries, in which case a beneficiary has the right to hold the trustee personally liable for any resulting losses and to petition a court for appointment of a different trustee.

Florida Beneficiary Contractual Rights

Other Types of Beneficiaries:  P/O/D, T/O/D, Retirement Accounts, and Life Insurance

“Payment on Death” (POD) and “Transfer on Death” (TOD) in Florida are similar designations allowing an asset’s title to automatically pass to a named beneficiary upon the current owner’s death.  In Florida, POD designations are commonly used for bank and money-market accounts and CD’s.  TOD designations are typically associated with stocks, bonds, and brokerage accounts.  The big advantage of either designation is that, after the owner dies, the asset vests in the beneficiary with no need for probate.

A POD or TOD designee has the right to receive the subject asset in the future, at the time of the owner’s death, but doesn’t acquire a present interest when the designation is made, like with a life interest in real estate.  So, where a remainderman of a life estate has a right to insist that the real estate be maintained and preserved to protect the value of the remainder interest, a TOD or POD beneficiary has no such right.

Retirement accounts, such as 401k’s and IRAs in Florida, allow the account owner to designate a beneficiary to accede to the account upon the owner’s death.  As with a POD beneficiary, a retirement account beneficiary does not need to go through probate—the account passes automatically.

When the account transfers, the beneficiary has three basic options for accepting it (or four if the beneficiary is a spouse):  withdraw the money and pay the income taxes now; leave the account in place and accept required minimum distributions over the beneficiary’s life expectancy; or roll over the account into an “inherited IRA,” which allows for continued tax deferral but no additional contributions.  A beneficiary spouse can do any of the above or roll over the account into an IRA in the name of the surviving spouse, which is then treated as if it had always belonged to the surviving spouse.

Life insurance beneficiaries have the right to receive a policy’s payout upon the death of the insured.  With most policies, the beneficiary has numerous settlement options to choose from, ranging from a single, lump-sum payment to an annuitized “life income” payout that provides regular guaranteed distributions for the rest of the beneficiary’s life.  Under Florida’s exemption laws, life insurance proceeds are protected from attachment by the beneficiary’s creditors in most cases.  And beneficiaries can usually claim life insurance proceeds as an exempt asset in bankruptcy as well.

Being a beneficiary is generally a good thing.  After all, by definition you get to be the one who stands to benefit.  However, there are times when beneficiaries need to take action to ensure they receive the full benefits of the position.  If you have questions or need legal representation relating to rights you hold as a beneficiary under Florida law, an attorney experienced with Florida’s trusts and estates laws can help you to better understand and protect your interests.

Steve Gibbs, Esq.

 

111 comments… add one
  • Tonya Miller-Turczyn October 29, 2019, 10:52 am

    Would you be willing to come and do a talk on Florida Beneficary Rights at Keller Willimas Peace River Patners in Punta Gorda, Fl.

    Tonya
    941.505.1031

    • gibbslawfl October 29, 2019, 11:13 am

      Hello Tonya, thanks for commenting and for your kind invitation. I’m always willing to come and talk to groups. The question is always scheduling as I am currently back and forth between 2 offices. Let me know if you’re flexible and perhaps sometime during the season we can arrange something.

      Best, Steve Gibbs, Esq.

  • Mayra johnston April 24, 2020, 9:44 am

    I recently lost a sister. She resided in Florida. She had a live in companion. Her companion is recently in a coma and has been since state lockdown was enforced. Other health issue placed him there in hospital.she passed 4/13/20. She had no living will,but a small life insurance policy that found recently found by the sister who is overlooking their home they shared. She obviously passed before him,and he was listed as beneficiary along with me as secondary. I live in New Jersey . Since her cam panino is not responsive and surely can’t in any way function,how is her policy going to handled so the funds of the policy can be used to pay for my sisters burial,if her companion is unable and in fact pass himself? Horrible.!

    • gibbslawfl April 24, 2020, 12:15 pm

      Hello Mayra, thanks for commenting. Good question and a general answer without looking into this is that even though your sister’s partner is unresponsive, because he is still living he is entitled to the proceeds. If he, as the beneficiary, has a representative such as a power of attorney, then that person can use the proceeds for his benefit.

      Best,

      Steve Gibbs, Esq.

  • James and Karen April 29, 2020, 3:18 pm

    Hi my husband’s parents lived in Florida My father in law passed away. My mother in law is still alive . They have a trust set up with a layer .2 of my sisters are POA for Mom there are 8 children in the family. We where told that all 8 kids get the house once Mom passes. My sister will not let me see a copy of the trust , which she has or the Paperwork .
    If the trust is revocable doesn’t it become irrevocable when one parent passed?
    My sister called the lawyer handling the matter and told her not to speak to me !
    As a beneficiary don’t I have a right to see the trust ? Please help

    • gibbslawfl April 29, 2020, 3:41 pm

      Hello James and Karen, sorry to hear about your situation; although, I assure you it is pretty common. The short answer is that as a beneficiary, you absolutely have rights, such as the right to a copy of the trust and an accounting, etc. And, yes the trust would become irrevocable upon the last settlor’s death. If you’re not getting cooperation, you may nee to get FL legal help to get proper attention. Let us know if we can help further by connecting with Gene at admin@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Royce Rivard May 6, 2020, 8:04 pm

    Dear Atty. Gibbs my name is Royce Rivard I’m in a beneficiary of the Florida trust set up by my grandfather and a second trust that was funded with gifts to my father.
    Is it possible to get a consultation I have several questions that I cannot get the personal representative or trustee to give me a straight answer on the value of grandfather’s
    The accounts are worth far less then my original statement and the trustee resigned.
    Trust statements arrived with many different titles not matching the title of the trust

    • gibbslawfl May 6, 2020, 11:22 pm

      Hello Royce, thanks for your inquiry. You can get a consultation scheduled by connecting with Gene at admin@gibbslawfl.com and leaving your best contact information. I’ll look forward to connecting.

      Best, Steve Gibbs, Esq.

  • Randall S Austin May 25, 2020, 12:08 pm

    I am a Benificiary of my Father’s estate who passed a year ago April 19th. I live in Georgia and my two siblings live in Florida. My sister is in charge of handling Will.
    I was never contacted about his posessions which was clearly stated in his Will everything split 3ways. So I got no posessions of his.
    I was actually threatened by my brother not to keep bothering them when he got sick before passing he called my wife and made threats to me through her. You have to understand we are all estranged.
    I got 1/3 of his life insurance and 1/3 of a retirement account now there is still a condominium he had
    Sister will not disclose any financial records to me I’m lost in this living in Georgia and she won’t acknowledge any text I send so I may need help. Or sue her
    Randall Austin

    • gibbslawfl May 25, 2020, 1:32 pm

      Hi Randall, these kinds of situations are exactly why I wrote this article. You’ll most likely need to hire a lawyer in the state in which your father resided in order to have your rights protected. Let us know if we can help by e-mailing Gene at admin@gibbslawfl.com.

      Best,

      Steve Gibbs, Esq.

  • Elizabeth June 7, 2020, 8:07 am

    Thank you for allowing us to comment here with questions. After my husband’s death I found a life insurance policy that he had created prior to us marrying when our child was born. I was the beneficiary of the majority of the policy with a member of his family the beneficiary of the remainder. Again this policy was made prior to us marrying. Is there anything to be done, to correct this?

    • gibbslawfl June 8, 2020, 12:09 pm

      Hello Elizabeth, thanks for reading and commenting. When someone passes away, the beneficiary is set in stone at that point in my experience. It’s different if someone becomes incapacitated and and a spouse has a durable power of attorney. That being the case, if you feel that mistakes were made there is always a possibility of a claim under the elective share laws in Florida under the elective share laws which are in place to protect spouses.

      Best, Steve Gibbs, Esq.

  • stela June 15, 2020, 10:59 am

    hello good day i am stela from Philippines. i have friend from Florida who passed away last February 2020..but before he died he told me that he made me as his beneficiaries… i dont know the name of insurance company.. what should i do? should i just wait that someone reach me out if im really one of the beneficiary of my friends insurance?.. and contacted his work company thru messenger since i dont know the insurance company but they just seen it.. no response at all😩

    • gibbslawfl June 17, 2020, 10:57 am

      Hello Stela, sorry to hear about your situation. Honestly, if he didn’t tell you the company, the only other way is find out who is handling his estate. If he has other family, you might start there.

      Best,

      Steve Gibbs, Esq.

  • Donna July 1, 2020, 10:51 am

    My mother in law recently passed. She always told my husband and myself that she had 5 life insurance policies. One for each of her 4 children, and one for her burial expenses. She had the one child (my husband’s sister) listed as beneficiary and entrusted her to disperse the money equally. There was no written will. She honestly believed her daughter would fulfill her final wishes, we don’t have as much faith. We are not sure if my mother in law was able to keep up with all the policies towards the end of her life but we do know that she had her burial policy. I believe it was a $20,000 policy. My sister in law opted to have my mother in law cremated with a cost of only $1000. My sister in law is being less than forthcoming regarding my mother in law’s policies. Caught between a rock and a hard place here. Don’t want to fight over money, but also want my sister in law to fulfill my mother in law’s wishes. With her being listed as beneficiary, and no written will, is she entitled to keep all payouts? Thank you.

    • gibbslawfl July 1, 2020, 3:14 pm

      Hello Donna and thanks for commenting. This situation looks a bit complicated; however, as a general rule the beneficiary designated would dictate who owns the proceeds, especially in the absence of a valid will or trust. To be certain, you would need a consultation with a FL estate attorney to look at assets and policy designations in more detail.

      Best, Steve Gibbs, Esq.

  • Glenda Brewer July 27, 2020, 5:13 pm

    Mr Gibbs,
    A close uncle of mine lived and died in Florida, he has shared with us we were in his will. His executor is his CPA who lives in CA. When we wanted to come to Florida after my uncles passing we were told the house is locked up, we can not see his estate. He is having appraiser there and all items will be sold.
    Who notifies beneficiaries? And when after death do they notify a beneficiary. And when do they supply us a will or trust that shows the beneficiary? After the estate has been gone through? We live in WA. State.
    Thank You.

    • gibbslawfl July 28, 2020, 9:33 pm

      Hello Glenda, thanks for commenting. If there is a trust you would be entitled to a copy within a reasonable time. A will would be filed with the probate court and the county thus would be a public record. It is typical to secure the estate upon someone passing; however, I’m a bit surprised there hasn’t been more details shared with the heirs. All of the above should ideally be done within a few months of the date of death.

      I hope this helps.

      Best, Steve Gibbs, Esq.

  • Audrey W August 10, 2020, 11:32 pm

    Thank you for taking time out of your busy day to help people with their questions or concerns. If there were more people like you, the world would be a much better place.

    • gibbslawfl August 13, 2020, 4:57 pm

      Thank you Audrey, I appreciate your comment, especially during such crazy times.

      Best, Steve Gibbs, Esq.

      • Shirley Pond July 20, 2021, 5:07 am

        I have a question. My mother in law passed away in florida and her will qas never changed and named her ex-husband as her executor of her will but we also found out my husband was named on 2 bank accounts as POD and then 2 other accounts no one is named. One is an IRA the other unsure. Does my husband have to give that money that he is named on as POD to his step father because he is executor or can he distribute as he sees fit.

        • gibbslawfl July 27, 2021, 6:51 pm

          Hello Shirley, a POD generally does not have to be distributed back to the estate; however, you really need to schedule a legal consultation with an estate planning attorney to have the accounts and PODs properly reviewed before taking any action. Let us know if we can help.

          Best, Steve Gibbs, Esq.

  • Audrey W August 10, 2020, 11:59 pm

    Thank you for taking time to read and hopefully answer my question.
    I am one of 3 beneficiares to my mother’s will. My mom passed away May 29, 2020 and left behind her home amongst other stuff located in Florida. Mom’s will is not probated. My sister who lives in Texas is the exeutor of the will. I told the executor (my sister) that i wanted to go stay at our mothers house for a couple of weeks to start packing up stuff for charity and spend some time at the Florids beaches, I too live in Texas. My sister told me No i could not stay at our moms house. My mom’s house is not on the market, no one lives there and the estate is paying the bills. Does my sister have the right to deny me access to my mom’s house or forbid me from staying a couple of weeks at this point ?

    • gibbslawfl August 13, 2020, 5:00 pm

      Aubrey, yes the Personal Representative (executor) is responsible to safeguard the estate and this can often include not allowing anyone to enter real property (or stay there) in order to protect belongings and the property. This is particularly important if there are other beneficiaries, so you shouldn’t take it personally. Your sister could actually be liable for letting you stay there before the estate is settled.

      I hope this helps clarify.

      Best, Steve Gibbs, Esq.

  • Penni Mitchell August 24, 2020, 5:28 pm

    If an heir passes away prior to dispersment of a loved one’s estate, do they still receive their share of the estate? Does their share go on to that person’s heirs?

    • gibbslawfl August 28, 2020, 11:09 am

      Hello Penni, thanks for reading. It actually may depend upon what the deceased person’s estate plan says. It wouldn’t go to the deceased heir in any event but could go to his or her heirs or to another contingent beneficiary.

      Best, Steve Gibbs, Esq.

  • Melissa September 1, 2020, 7:47 am

    Good morning,
    My father recently passed away, he lived and died in Florida . I was the only beneficiary on his life insurance. He did not have a will that I have located. I have a sister, that my dad did not want to receive anything. After funeral costs there is some life insurance money left. Can my sister sue for the insurance money if she wanted to?

    • gibbslawfl September 1, 2020, 12:49 pm

      Hello Melissa, thanks for commenting. Anyone can sue anyone for anything; however, your sister probably wouldn’t prevail in this case unless there was some legal reason why the beneficiary designation on the policy should be deemed invalid. Generally, this would hold against legal claims.

      Hope this helps.

      Best, Steve Gibbs, Esq.

  • Dee Bobori September 2, 2020, 2:54 am

    Quick question. Live in Colorado. Florida condo bought by parents. 20+ years ago and my sister pushed to be put on JTWROS deed to avoid probate and I was told it was so we would have access to money in case of parents death from cruising or traveling etc to get the back to Colorado etc. I believed her and never gave it a thought again. ( BTW, Sister never paid anything to condo purchase or home owners dues nor taxes) . A year ago, sister and I signed a notarized Heir Agreement that anything (including real estate previously/currently) left to either of us by our parents would be split 50/50. Dad was suffering from dementia and was always threatening to change the Will when he got mad — favoring one daughter over the other depending on his mood. We both signed this agreement willingly to maintain peace and sanity. Parents just died together of COVID-19 in an assisted living facility. Sister now doesn’t want to be held to the heir agreement because she is now the full owner and doesn’t consider herself a beneficiary of their death. I think she benefited and inherited this property because they died. She doesn’t agree. If that is how she felt, she should have put an exclusion about the condo in the Heir Agreement. But she blames me for not having it included. I always thought it was part of my parents property to be split in half and thought that “any and all real estate” covers their properties well enough. Any thought? We are looking for representation.
    – DB
    P.S. Parents left a Will splitting estate expressly and emphatically stating a 50/50 split for everything else. But the condo is a non-probate asset due to its JTWROS status. So it’s the notarized Heir Agreement I think should be enforceable.

    • gibbslawfl September 4, 2020, 12:03 pm

      Hello Dee, thanks for commenting. I actually haven’t come across and “heir agreement” and thus am not sure if it could be enforced by a FL Court, although if it is a valid agreement, there is a chance they would. That would be something to discuss with a probate litigation attorney and its something we don’t handle. I would research attorneys with that expertise in FL and book a consultation because this will likely involve suing your sister to recover half of the real property if you decide to make the claim.

      Best,

      Steve Gibbs, Esq.

  • Sylvia September 6, 2020, 1:36 am

    Good evening:
    My Uncle passed and had no children so he left his savings funds to his nieces and nephews. All 28 of them. He also had real estate in Indiana with a home that was left to the Trustee. The beneficiaries received a Trust Disclosure stating that unpaid and outstanding lease payments and renovations are needed for the Indiana Lake house and Florida house. The Trustee sent a Ratification of Consent for loans to the Trust. Is the savings money left to the nieces and nephews separate from the estate he gave to the Trustee? We do not benefit from the estate. Correct me if I’m wrong, but is she asking that we allow her to put a hold on our money so she can use it as a loan to improve her estate assets? When or how would we get paid? Shouldn’t we get our funds disbursed aside of her trying to figure out what she’s going to do with her assets?
    Any guidance would help me understand this better than I do at this point. Thank you.
    Sylvia

    • gibbslawfl September 11, 2020, 2:18 pm

      Hi Sylvia, thanks for commenting. It’s impossible to know what is going on without reviewing the trust and assets. In Florida, a beneficiary is entitled to a copy of the trust and an accounting of assets. If you’re a beneficiary of the legal guardian for one, I suggest you attempt to obtain this information and if you aren’t receiving it you may be wise to seek a Florida estate attorney to help you obtain it and ask the right questions.

      Best, Steve Gibbs, Esq.

  • Raymond Parrish September 14, 2020, 7:41 am

    Thank you for taking the time to answer this question.
    Dad and Mom passed. Seven siblings one sibling is being sued. The sibling listed as executor on the Will concealed the will and no probate has been open. Can a civil case go forward without the estate first going to probate? Do the plaintiffs have a cause of action without the Will going through probate? Is the civil case a collateral attack agents the probate court. If the case goes to trial and the plaintiffs win, will the winnings go into the Estate Bank Accounts? The will was cancelled until after the civil case had started. The Will does give all bank accounts to the single sibling. If the Will is not contested and the probate court gives the single sibling the Estate Bank Accounts, will she get all the money back that was given to the estate after the Civil Case ended. Can the Civil Case be dismissed due to no cause of action? Can the Civil Case be dismissed due to a Collateral Attack on the Will? Is an action brought “on behalf” of an estate by someone, without letters of administration and who is not named as an executor in the Will, is this a nullity.
    Thanks for all your help.
    Raymond Parrish

    • gibbslawfl September 17, 2020, 7:13 pm

      Hello Raymond, the short answer to your scenario is that interested parties can generally force a probate to be opened. You would need to consult with an estate litigation attorney to look into this more closely and it is something that our office doesn’t get involved in beyond the negotiation stages.

      Best of luck.

      Steve Gibbs, Esq.

  • K noe September 27, 2020, 1:29 am

    My father passed away recently. He and my stepmother have a revokable trust. Each becoming the trustee if the other dies before them. My stepmother isn’t being forthcoming with any documentation. She states that myself, my brother, and 2 stepsisters are all beneficiaries. She states things to me that don’t make sense. One day she can not locate papers and then the next she can. It’s starting to get fairly frustrating. She has missed the 10 day window to file my father’s will and now states that she cannot find the correct paperwork that states that she is the trustee. I feel like she is purposefully keeping us all in the dark. She is now indicated that she is leaving the state with her brother to spend time with her children. She’s filed no paperwork with the county clerks office. I haven’t been able to find a clear time line as to when she is compelled to start releasing assets, paying debts, or producing documentation to the beneficiaries. I feel like she is trying to escape… she does not seem the least bit concerned. Advice is appreciated.

    • gibbslawfl September 29, 2020, 2:20 pm

      Hello and thanks for reading. The short answer is that you may need legal help in Florida to get her to pay attention as these kind of behaviors are pretty common.

      Unfortunately, if someone won’t cooperate, the most effective approach is to put some on notice of potential legal consequences. For you, it is really a question of the size estate and whether it is worth hiring someone to help. Your remedies could include requiring that a probate be opened in FL to put everything in front of a judge. Hope this offers some direction.

      Best, Steve Gibbs, Esq.

  • Lauraine Saballa September 28, 2020, 1:49 pm

    Hello and thank you for allowing me to leave a comment/question for your reply. My husband lost his share in a tenant in common sibling house inharitnance from our dad after he passed away. My husband and I, we were forced to “sell” his share because it is law in WA State, per our Bankruptcy Trustee. My husband has 5 siblngs (6 children in all). A non-family individual had later purchased my husband’s share. Sadly, 1 of my siblings had died leaving 4 siblings able to split her share (I get included at this time) 5 ways. Question? Do I have any right to receive my deceased sister’s full share rather than only 1/5? That would seem fair, leaving the 5 of us siblings with a full share each. What do you think? Can my husband do anything to get a full share again after the passing of his oldest sibling? My husband is the second oldest. Thank you very much!

    • gibbslawfl September 29, 2020, 2:28 pm

      Hello Lauraine, thanks for commenting. Unfortunately there is way too much going on here to be able to offer a much of response without a consultation and actually reviewing the deed. Generally speaking, it doesn’t really matter what is fair but rather whether the distribution is spelled out (as in a deed) or whether it to authorized by state statutes which is “per stirpes”. Also, bankruptcy is it’s own arena and all bets are off if someone had to give up a share due to bankruptcy. That said, selling a share wouldn’t necessarily mean that you husband wouldn’t be able to inherit another person’s share later. This could depend on the type of bankruptcy and other issues.

      Best, Steve Gibbs, Esq.

  • Don Powell October 5, 2020, 7:43 pm

    Mr. Gibbs,
    Thank you in advance for reviewing my concerns.
    My wife and her sister are co-trustees of a family trust. There are ten beneficiaries. My wife is one of the original co-trustees after the other original co-trustee resigned and the only named successor trustee will resign soon. From the attorney, I understand that the Grantor is the only person who could appoint a successor trustee in this instance. Since the Grantor is deceased, that cannot be the case. The trust document states that after the 30-day written notice of the resignation of the last-named co-trustee, the terminating trustee or any beneficiary may petition the court to appoint another successor co-trustee. The trust does not state that another co-trustee is required. According to The Florida Statues section 736.0704, I understand Item 2 applies in this situation – “If one or more co-trustees remain in office, a vacancy in a trusteeship need not be filled. A vacancy in a trusteeship must be filled if the trust has no remaining trustee”.

    My question is as follows: Who is responsible for the court and/or attorney fees if a beneficiary petitions the court for a successor trustee? The trust document does not address this issue.

    Thank you, and best regards,
    Don Powell

    • gibbslawfl October 7, 2020, 6:05 pm

      Hi Don, thanks for commenting. This is a bit involved for a blog comment; however, the short answer is most likely that the beneficiary may initially be responsible for attorney’s fees and could perhaps ask the court to require the trust to reimburse you for them. This would depend on the need and reasons for a co-trustee, etc. I’m saying this with the caveat that I don’t work a lot on the trust litigation side and there may be an attorney’s fees statute for this…am just not aware of one.

      Hope this helps point you in the right direction from an education standpoint. If you need something concrete, I recommend you seek feedback from a trust litigation attorney in a consultation setting having the trust available for review.

      Best, Steve Gibbs, Esq.

  • Padraig McClamrock October 6, 2020, 5:29 pm

    Hi,
    My wife is one of 3 siblings. Their mother remarried years ago and she and her husband set-up a will that named the 3 children as beneficiaries of the estate as well as being named on the deed of the house – mom’s kids own 1/2 of the house (1/3 each) and new husband owned other 1/2 of house. The will states that her estate shifts to the husband upon her death. Mom passed away 2 years ago and they are just now entering probate. Do the beneficiaries of the estate lose their rights upon their mother’s passing, and does all the discretion and authority Of the estate shift to the step-father?

    Thank you.

    • gibbslawfl October 7, 2020, 6:08 pm

      Hello and thanks for commenting, your situation is impossible for me to comment on without reviewing the deed and it sounds like you need an experienced estate attorney to do that. I strongly recommend you go the route of getting a professional opinion on the deeed.

      Best, Steve Gibbs, Esq.

  • Karen Krietemeyer October 7, 2020, 1:46 pm

    Hello,
    My father has an irrevocable trust in which my siblings and I are beneficiaries. I am the
    trustee of the irrevocable trust. One sibling is requiring accounting of the trust now. In the trust book, it say to report accounting to beneficiaries “then eligible to receive mandatory distributions”…etc etc
    Is this a Florida law to provide prior to the grantor death?

    • gibbslawfl October 7, 2020, 6:10 pm

      Hello Karen, it isn’t required in my understanding prior (even with an irrevocable trust) to the grantor’s death; however, the trust may require something more stringent. You might have your father ask the attorney who prepared the trust to advise on this issue.

      Best, Steve Gibbs, Esq.

  • KAREN F FLYNN October 9, 2020, 1:08 pm

    hello, My husbands dad was taken under guardianship thru the state and was assigned a personal representative. He has since passed on and we received word asking if we wanted to retain the representative. Not living in the Florida area we agreed to retain her services. I received a notice from the state appointed attorney regarding probate. Our letter clearly states that these attorneys are representing the personal representative and not us. And want to charge us a minimum of $6,000.00
    in legal fees as well as give the representative 3% of the entire estate. Do we have choices here? Should we retain our own attorney and try to get rid of the present attorney and representative if that is even possible? I was also wondering about the assets. There are 2 beneficiaries does the state have the right to liquidate all the assets in order to distribute

    • gibbslawfl October 9, 2020, 7:28 pm

      Hello Karen and thanks for commenting. You do have choices and this is they asked you to agree to the PR. Now that you’ve done so, would need to see what you signed; although, I think you could likely terminate that PR and potentially terminate the firm involved. As an aside, the $6,000 is fairly standard for a formal administration and they would also likely ask for additional attorneys’ fees by statute. The 3% PR fee may be deemed excessive depending upon the size of the estate. All of this is for educational purposes only, as this case would need to be looked at in detail. Let us know if you want to schedule an additional discussion by connecting at info@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Karen Cloud October 22, 2020, 11:37 pm

    Hello,
    My sister and I are both beneficiaries of our mothers Will. Our mother passed away this June and made my sister Personal Representative. My sister is not following the wishes of our mother, additionally, she has not communicated with me in almost two months on matters related to the estate. When it was time to place mom in hospice and out of her best interest, my sister refused and demanded that I sign the papers (so I did); my sister also lost interest in selling mom’s house so went on a weeks long vacation to Colorado abandoning me to the process, and has not helped me at all with any of the upkeep/maintenance and checking in of the house. Mom left a letter stating that we should discuss everything together before making any decisions and my sister is very well much aware of this letter and has a copy of it. My sister took items out of mom’s house to her house in a city 4 hours away instead of distributing them here equally between the both of us as the Will directs. My sister in her last text to me stated that she has no plan to return so this sounds like theft. I asked her questions that go unanswered and they go unanswered out of spite, this PR position has gone to her head. She has taken several thousand dollars worth of items including money earned from a garage sale. She has not yet provided an accounting to me of the items she carted off, one such item includes a chest of silverware which my sister said she didn’t want, and I told her that I wanted it. To date I have no idea, what or where these items are or if she has sold them or given them away. I don’t know what my rights are as beneficiary when it comes to my mothers personal items that were supposed to be divided in the city of her residence. Do I need an attorney?
    Thank You.

    • gibbslawfl October 23, 2020, 4:18 pm

      Hello Karen and thanks for commenting. It sound like you may be in a situation where an independent attorney who represents your interests may be helpful and even essential depending on what is at stake. This process would generally begin with an independent consultation. Let us know if we can help.

      Best, Steve Gibbs, Esq.

  • Mary Kenney October 27, 2020, 7:11 pm

    Hello, can the sole heir of an estate and the current personal representative petition the court to change the personal representative “on consent”? I suppose this would be a petition for removal, but in this case it is not contested. The sole heir (adult daughter of the deceased) would like to be appointed the personal representative, and the personal representative does not object to this. From a timing perspective, we are past the 90 day notice to creditors period and there are no claims against the estate. I’m wondering if there is a more “informal” way to go about making the change of personal rep if both heir and current PR are in agreement. Thank you for any insight.

    • gibbslawfl October 29, 2020, 4:41 pm

      Hello Mark and thanks for commenting. I’d have to be familiar with your probate process to offer a reliable answer. Generally, speaking, when you’re before the court, a petition to remove and replace would be required in my opinion. I you’re in an active process, your probate attorney (who is required in Florida) should be able to offer the best direction.

      Best, Steve Gibbs, Esq.

  • Katherine Kopplin November 1, 2020, 12:49 am

    Hi there,
    My brother passed away 14 months ago in Florida. I am a beneficiary. His girlfriend is executor and joint tenant. In his Will he left me 50% of his home and her the other. He also left me his art collection, statutes and several other items. In the will
    he states that these items are to come to me at such time the girlfriend either dies or sells the house, which she still lives in. Her attorney is requesting all beneficiaries to sign a waiver that all assets have been distributed nor has she made a list of assets. Two of us have not received anything due to the wording and her refusal to release them to us.
    What can I do?

    • gibbslawfl November 3, 2020, 12:30 pm

      Hello Katherine, I strongly suggest (for educational purposes only) that you don’t sign any waivers and you may benefit from a consultation because you are being asked by an attorney to waive rights. Let us know if we can help by connecting with Gene at admin@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Carole November 1, 2020, 10:40 am

    Dear Sir
    My partner is listed as an heir on his fathers estate which is being foreclosed on. The family disowned him prior to his fathers death and he wants no part of the estate or possessions. He contacted the attorney of the plaintiff explaining this but gets ignored. He has a written letter notarized stating hes relinquishing all rights. Who does he send this to? Does he need to send one to the plaintiff directly and one to the court house where the hime sits or is the plantiffs attorney sufficient? He wants nothing to do with any of it. He doesn’t want his fathers lack of paying the house or anything else to fall on him. Hes washed his hands of them and wants nothing. Thank you for your time.

    • gibbslawfl November 3, 2020, 12:33 pm

      Hello Carole, thanks for commenting; however, your situation appears to be complicated and requires a professional consultation. Unfortunately, estate litigation is not our focus as we are 100%c committed to helping people avoid the very kinds of situations you’re describing. Other than getting that information from that attorney or hiring legal counsel, there isn’t much else to recommend.

      Best, Steve Gibbs, Esq.

  • Jay H. November 20, 2020, 11:05 am

    My mother died in Oct.
    She was married to a man that is not my biological father.
    According to F.S.732.102(3), I am entitled to one-half of my mother’s estate.
    According to F.S.733.301(1)(b), My step-father has preference of appointment; to become the estate’s personal representative.

    My step-father has gained the services of his long time personal friend (20 year friendship), who is also a lawyer.
    This lawyer has stated that he wishes to receive no compensation for his work.

    I believe (reasonably) that there may be a conflict of interest.
    And I would like to verify the transaction history of my mother’s bank account.
    So,

    What statute allows me to get financial information from a bank?
    I’m not looking to move the money, nor am I interested in any transactions before her death.

    For the record, it’s been one week since the petition has been filed with the court.
    I have yet to recieve the notice of administration.

    • gibbslawfl November 23, 2020, 12:54 pm

      Hello Jay, thanks for commenting. The intestacy laws are somewhat complicated and a number of addition questions need to be addressed to even begin to respond.
      For this reason, based upon your facts, it appears you need an actual attorney consultation because you are asking for specific legal guidance about statutes and legal rights.

      Best, Steve Gibbs, Esq.

  • Robert Armacost November 21, 2020, 11:09 pm

    Mr. Gibbs:
    My step-mother passed away in August 2020. My father predeceased her in 2011. Over the years, their wills left everything to her two children and his three children in equal shares (20%). In 2012, my step-mother’s son convinced her to create a living trust with him as co-trustee. The beneficiary provisions still included equal distribution to the five children. In 2015, she signed an amendment to the trust that changed the beneficiary distribution to my father’s children to a small fixed amount, a fixed amount to a niece, and the balance split equally between him and his sister. The amendment appears to be legally executed. There is no way to determine if she fully understood the details of the change. Do we have any basis to challenge the validity of this amendment?

    • gibbslawfl November 23, 2020, 1:00 pm

      Hi Robert, in America, there is always a legal way to challenge something. It looks like you’re considering the approach of “undue influence” and this can be a tough burden of proof in court. Your question to consider is how big the estate is because it will most likely be expensive to hire decent legal counsel out of the gate with no guarantee of recovery.

      Best, Steve Gibbs, Esq.

      • Robert Armacost November 24, 2020, 3:52 pm

        Thank you for your insight. Total estate is less than $500K . Clearly not worth the hassle and pain. Thanks again.

  • Vickie November 29, 2020, 10:08 pm

    A friend of mine lost her mother in September 2020. Seven weeks later her father passed away. There was a living trust in place. She is the only child. Because annuities and life insurance do not have to go in the living trust the beneficiaries on the two annuities and one life insurance policy was the surviving spouse. Because he died seven weeks later the beneficiaries did not get changed to the daughter although it is stated in the revocable living trust that the daughter gets 100% after both have passed away. The banks and life insurance companies are requesting a letter of administration. Does the daughter have to go through probate in order to get the proceeds from the life insurance and the annuities.

    • gibbslawfl December 1, 2020, 4:52 pm

      Hello Vicki, thanks for reading. If the “estate” was on the policy as beneficiary than the Florida probate would need to be completed. Let us know if we can help by connecting at info@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • michelle December 4, 2020, 3:00 pm

    hello my grandpa lives in florida i live in ohio he has a living trust since i live in a different state am i still able to be the administrator of the living trust. he was told that it has to be a florida resident to be the administrator. Thanks

    • gibbslawfl December 7, 2020, 12:22 pm

      Hi Michelle, it sounds like your grandpa is getting legal help so I’ll defer to that though I’ll mention technically, a Personal Representative of a will can reside out of state if he or she is a family member and a Trustee can typically reside elsewhere as well. At the end of the day its your grandfather’s estate and his call.

      Best, Steve Gibbs, Esq.

  • C.Hall December 4, 2020, 7:30 pm

    My step mother hated me. She died 5 or 6 years ago. Now my father passed. They left my step sister 75 percent of the estate and I got 25. I am my fathers only blood decendant and my two children.And the trust refers to me as my fathers step daughter. Can I contest the trust because my step mother and sister unduly influenced my father my entire life to keep him away from me?

    • gibbslawfl December 7, 2020, 12:23 pm

      Hello, anything can be contested; however, it may cost substantial legal fees to to do. You’ll need to do a cost benefit analysis.

      Best, Steve Gibbs, Esq.

  • Linda Blackman March 9, 2021, 9:41 pm

    My father died in Boca Raton, Florida in 2015. He had a wife, not my mother. Both my father and his wife told us that my husband was the PR. I don’t have siblings and I, my three adult children and my grandchildren are the only heirs per stripes. My father’s lawyer said my husband was not permitted to be the PR as he was not a blood relative or a resident of the state of Florida. ( I quickly learned that was not true as we have been married for 48 years)His wife was written as the PR with me second in the will that was produced.His wife died two years after him in Sept 2017. When I assumed the trustee status of his trust i learned that his wife removed money from his trust during the last weeks of his life including the day before he died. I learned that the lawyer for both of them rewrote his wife’s will in contravention to my father’s wishes. In spite of official status as PR the Financial Institutions refused to provide accounting of all the accounts individually and jointly owned by my father. I have filed with FINRA and the SEC. I also filed a Bar Complaint re ethical violations and conflict of interest. the Bar Complaint has reached the Grievance Committee. Can the lawyer be sued for ethical malpractice and are there lawyers who will do this on contingency?

    • gibbslawfl March 11, 2021, 10:43 am

      Hello Linda, I’m not aware of an “ethical malpractice” claim; however, suing lawyers isn’t really my area of expertise:) It sounds like you may need to connect with someone who regularly handles legal malpractice suits.

      Best, Steve Gibbs, Esq.

  • Kim March 11, 2021, 12:52 pm

    My father died without a will in Florida. I received a waiver of priority consent to appointment of personal representative and waiver of notice and bond for one of my siblings. If I choose to consent and waive bond, do I receive accountings and inventories as a beneficiary to my father’s estate? Does Also, I received survivor’s consent to personal representative’s petition for authority to sell decedent’s homestead property which lists the property and states that I consent to the granting of personal representative’s petition for authority to sell decedent’s homestead property for $____________ located at the address. Why is the dollar amount on my consent left blank? Furthermore, the petition for administration intestate from the court lists assets, but a checking account states unknown amount. The lawyer which my sibling retained to represent them sent me a letter which states an approximate amount. Should the exact amount be in the court documents which listed the assets. I would appreciate any guidance you can provide.

    • gibbslawfl March 11, 2021, 1:18 pm

      Hi Kim, unfortunately we can only offer feedback for educational purposes and cannot get into legal advice that warrants a full review and consultation. In this case, it would require further discussion and an examination of court documents to offer meaningful advice. Without due diligence and a confidential relationship, to offer other feedback in this case could lead you in the wrong direction. Let us know if we can help coordinate a consultation.

      Best, Steve Gibbs, Esq.

  • Rita March 12, 2021, 5:35 pm

    My father died a month ago, and we have only a copy of the will, not the original. His bank account had a POD, naming his grandson from the first marriage as his beneficiary (my Mom and he were married 64 years at the time of his death). The money was accrued during their marriage. She has Alzheimer’s, and she has been living with me and my husband for the past 4 years. None of us was made aware that he changed the banks and beneficiaries. Is my Mom entitled to any of this money? What are our options in Florida? Would appreciate your response. Thanks.

    • gibbslawfl March 13, 2021, 9:53 am

      Hi Rita, it’s tough to comment without more insight and in a blog context I can only offer general information for educational purposes. Legal advice needs to happen in the context of an attorney client consultative relationship. That said, I can tell you that if dad changed beneficiaries way from mom who has Alzheimer’s, there could’ve been a valid reason to preserve the estate and help mom qualify for Medicaid if she needs skilled care. Also, if mom did receive money and tried to give it away, it would still penalize her for Medicaid. On the other hand, if she was left nothing, she could potentially claim an “elective share” if the assets. Much more due diligence would need to be done to offer clear direction but I hope this offers some insight.

      Best, Steve Gibbs, Esq.

      • Rita March 13, 2021, 3:16 pm

        Thank you for your reply.

  • LA DONNA L PERMENTER April 5, 2021, 10:40 pm

    My mother passed away 3 mons ago today 4-5-21 , my brother is the executor, I am one of 3 beneficiary to the real estate and “Payment on Death” (POD) for my mother’s bank account and savings account. There are 3 siblings with equal beneficiary rights. (1) brother (2) myself (3) my sister beneficiaries with equal shares.
    My brother did not advise when the will was to be reviewed with my mothers estate attorney, I would not have know if they had not slipped up and gave date & time. My mothers checking account my sister was listed in 2004 on the account to sign to pay bills while my mother was visit with her out of state and became very ill. The will & deed was produced in 2008 and it listed all 3 siblings as equal beneficiaries, including the bank accounts. I asked to see the beginning balances from the date of my mothers death and my sister refuses. My sister took over the accounts and states will not share. My brother and sister took all of the collectable valueable coins and did not share. My mother since 2008 told me a 100’s of times and especially towards the end it will take all 3 of siblings to access bank accounts.
    I have had to retain an attorney to request to do a letter requesting the access and they still refuse. Now the estate attorney, that did the will is now represent my siblings against me. I feel there is a conflict of interest from this attorney, who also failed to advise my grand daughter that she was to receive my mothers retirement account funds, it was not to be disclosed to any of us siblings. This disclossure ‘highly pissed’ off my siblings. The retirement funds where deposited into the banking account that my sister has now seized those funds also. I requested a copy of the will and was refused. I feel self- dealing and major conflicts are going on. Can this estate attorney represent my siblings against me in this ‘fubar’!?!?!?! The attorney sent me a letter stating my siblings hired him and he does not have to answer to me about anything. WTH!?!?!? All I want is what my mother wanted me to have.
    Thank you in advance for any advise you can give me!!!! 🙁 this is all turned into a nightmare that could have been avoided if the attorney had done his job correctly. He NEVER returned any of my calls I feel so alienated in the ‘FUBAR’!!!!!
    La Donna

    • gibbslawfl April 6, 2021, 3:42 pm

      Hello, family disputes and be difficult; however, it is difficult to comment in a blog post setting as I can’t offer strategic or legal advice. I recommend you go back to the attorney that you hired with these concerns and if you aren’t happy with the feedback that it may be time to find a new lawyer. In general, beneficiaries are entitled to receive fair information and cooperation concerning the estate settlement process and from what you said, a conflict of interest is possible.

      Best, Steve Gibbs, Esq.

  • Lucy April 29, 2021, 1:58 pm

    One of my parent passed and named me primary beneficiary, and the spouse contingent of a pension fund. On the beneficiary form the allocation percentage was written as 50% each. Is this beneficiary form invalid or will causes a major issues? Where can I find the statute regarding something of this matter.
    And, is it possible to use past beneficiary form(s), or does the last beneficiary form wipes out all past beneficiary forms?

    • gibbslawfl April 29, 2021, 2:25 pm

      Hello Lucy, generally speaking and for educational purposes (not legal advice), the beneficiary form is what it is and would require splitting the account 50/50. Absent a legal claim of lack of capacity or undue influence, this would not be subject to a legal challenge.

      I hope this helps.

      Best, Steve Gibbs, Esq.

  • daniela May 4, 2021, 3:53 pm

    Hello, my dad’s spouse is administrating my dad’s estate and she forgot to include properties that belong to me and my sister. How can I file a claim or something with probate so i can fight it? thank you!

    • gibbslawfl May 5, 2021, 12:31 pm

      Hello Daniela, sorry to hear about your situation. Unfortunately, generally you would need to hire a lawyer file a contest in probate as this is a fairly complicated area of law. I would look for someone who handles Florida probate litigation as this isn’t our focus area.

      Best, Steve Gibbs, Esq.

  • Elaine Cooper May 15, 2021, 5:07 pm

    We are involved/beneficiaries of an intestate/probate in Miami Florida.
    Distributions were made to an employee of the decedents business without approval and now that employee is claiming she is a creditor (2 years later) and wants to be compensated. What rights do we have as beneficiaries ? The estate is sizeable and there are a lot of beneficiaries.
    I’ve also emailed you with my cell number. If you can call me that would be great.

    • gibbslawfl May 17, 2021, 2:57 pm

      Hello Elaine, thanks for your comment. It sounds like a tough situation. The way that we stay organized is to run all appointments through Gene in my office at 239-415-7495. Will look for your e-mail and reach out to schedule or please re-send.

      Thank you. Steve Gibbs, Esq.

  • Grady May 18, 2021, 9:32 am

    My twin sister and I have an ongoing probate case in Fl in which we are the sole beneficiaries of the estate. My father and I were not as close so I agreed to let her be the personal representative. There was a will that was made several years back and a retirement account that has already been distributed. But I now feel that my sister may possibly be taking advantage of the fact that I signed waivers to as I was told would speed up the process. If she is not trying to advantage of this i believe at best she has been very negligent with the estate. But as time has gone by I’m beginning to question her motive and intent because before the probate process started she convinced me to help her get his vehicle put in her name by saying dad wanted me to have the vehicle. Then when the probate process started she then convinced me to sign waivers saying that instead of going by the will we will distribute the property of the estate among ourselves which after she got the vehicle i was given the title to a boat with a non working motor and also a title to a small camper trailer which the amount of both probably only equal half of the vehicle that has been put in her name. And I was told by her to back date titles or put them in the probate which made me a little unsure of what to do and then began to wonder why she used the will and then got me to sign waivers after she alone used the will to benefit herself . I don’t want to fight and argue over money and assets now there are several more things that have come into question i feel like i have been taken advantage of by giving her the leave way to divide things amongst ourselves and appointing her as personal representative. What rights do I have to see accounting information and how far back before his death if at all do I have to see the information. He passed away due to covid-19 and was in the hospital probably 2 weeks before he passed,

    Thanks for any information you can provide.

    • gibbslawfl May 18, 2021, 4:27 pm

      Hello Grady, unfortunately your situation is all too common. In general, you’re entitled to full disclosure concerning assets, bills and distributions paid from the estate. If you’re not confident, you would be entitled to information. You may need representation to get the information you’re looking for and if litigation is required, it can get expensive. So the idea is to avoid needless litigation if possible and pursue cooperative solutions. This is our priority in ever case. Let us know if you’d like more assistance by connecting with Gene at info@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Chuck May 19, 2021, 11:23 am

    I’ll keep this as brief as possible. My mother just died. Prior to her death there was a POA with 3 agents. Myself and 2 siblings. I know it’s atypical but that’s also my family. They accused me of fraud and immediately denied me access to all financials, accounts, passwords, etc….with zero explanation and refused to tell my why until she died. It was not true and I believe a ploy to gain control. All decisions we’re supposed to be made in unison, not independently and once they took over everything without any explanation, it was clearly a violation of the POA. At the same time, packages with expensive designer names were be delivered which tells me they were dipping into my mother’s accounts. One of them actually commandeered my mother’s vehicle and is now MIA. Now that the POA is a ineffective, the will kicks, which is also MIA, however, it was known that one of my sisters would be the trustee and everything would be split equally between 4 kids. My question is how soon can I request an accounting of the estate? I know they’ve been spending something, I just don’t know what. I mean how do I stop them from spending or hiding accounts? Thank you for your time.

    • gibbslawfl May 21, 2021, 2:59 pm

      Hello Chuck, your situations looks to be very involved and thus requires a consultation, as blog posts are really just an educational Q and A forum. To schedule an appointment, please connect with Gene at 239-415-7495.

      Best, Steve Gibbs, Esq.

  • James June 6, 2021, 9:47 am

    My sister is the executor of my father’s estate. He passed away roughly two years ago. The will is in probate. The major assets have been sold (house, boat, cars); all that is left for distribution are his personal belongings. Despite the foregoing, my sister has not been forthcoming with the details I would like as a beneficiary of the estate. I have demanded all kinds of documents from her, but she refuses to provide them. What is the extent of her legal obligations to provide me an accounting? Is the estate bank account ledger sufficient? Am I entitled to all of the bills/invoices/sales receipts? Thank you.

    • gibbslawfl June 6, 2021, 1:46 pm

      Hello James, yours is one of the most common questions that I get. The short answer is that you have the right to a full and fair accounting of assets and expenses; however, there are some things that are discretionary for the Personal Representative. For example, you may not necessarily be entitled to see all bills and receipts if they are listed in an accounting. I’m not sure what would be more complete than a bank account ledger, meaning, wouldn’t it show if cash were being pulled out, etc? Since this is in probate, an inventory of assets should be listed as a matter of court filings. All that suffice to say, if you don’t believe that your sister is dealing with assets honestly, the recourse is to get an attorney to represent you to make inquiries and legal demands if needed.

      Hope this offers some insight.

      Best, Steve Gibbs, Esq.

  • Megan W July 2, 2021, 3:50 pm

    If I’m a beneficiary, can I stay at the estate until it’s sold? If the trustee doesn’t allow it, do I have any legal right?

    • gibbslawfl July 5, 2021, 2:06 pm

      Hello Megan, the short answer without reviewing the trust is no and no. The trustee has legal control over the real property.

      Best, Steve Gibbs, Esq.

  • Tina Paton July 19, 2021, 7:12 pm

    I have several questions regarding a intestate estate., with regard to the personal representative. Can someone contact me. This is a Florida estate but I live in NC and I’m a heir. 910-977-7272

    • gibbslawfl July 27, 2021, 6:47 pm

      Hello Tina,

      Sorry for the delay as I’ve been traveling. If you would like to schedule a consultation, please connect with our office at 239-415-7495 or via e-mail at info@gibbslawfl.com.

      Best, Steve Gibbs, Esq.

  • Tom Mahoney August 3, 2021, 4:18 pm

    First of all, this forum is awesome, and thanks for allowing everyone to ask questions. Dad passed in 2017, left everything to Mom, who passed Jan of this year. in FL I am in GA, 3 siblings in MA, including the executor of the estate. Mother had an IRA and a divide by 4 plan/will set up for it, so we have all established inheritance IRAs. My questions are, since Mother was an established resident of FL for 30 years, the executor is in MA, who’s laws do we follow, FL or MA? Next question is since we all just split up the contents of the apartment, all small stuff, except for some expensive jewelry, how does that (the jewelry) get divided up? None of the material possessions were mentioned in the will, and most were valued at probably $10-200 per item. My guess would be that it (the jewelry) should be appraised and become part of the estate and the same divide by 4 rule be applied. Your thoughts?

    • gibbslawfl August 5, 2021, 12:08 pm

      Hi Tom, thanks for commenting. Yes, your common sense approach is likely correct; granted, for concrete advice you would need a consultation as this is really just a guess offered for educational purposes, having not reviewed the documents, etc.

      Best, Steve Gibbs, Esq.

  • K August 8, 2021, 7:30 pm

    Hello, my mother passed away in May 2021, my brother is the executor of her will. My brother, sister and myself are beneficiaries. I just received the paper work for probate And the estimated value of her home is the county tax estimate. My brother doesn’t think it is worth having the house appraised and plans to sell it for around $200,000.00 the county value is 145,000.00 . He thinks that we should just pay the tax on the difference because it’s not really our money, I disagree. If that $145,000.00 valuation is on the court papers being submitted is that considered as the value of the house for federal tax purposes? Also, I haven’t signed and returned the papers to the attorney my brother hired. What happens if I don’t sign? Thank you for sharing your experience with us lay people.

    • gibbslawfl August 10, 2021, 12:36 pm

      Hello and thanks for commenting. Generally a CMA (comparative market analysis) is recommended whenver real property is sold and this is a fair alternative to a formal appraisal. Sometimes the terms are interchanged so it is unclear what your brother is saying. As far as the value for capital gains purposes, it would be the sale price; however, there should be a step up in basis. These are all questions for the probate attorney that you should be able to ask if you approach them cooperatively. Otherwise, they may think there is a conflict of interest and recommend you seek counsel. You really don’t have to sign papers until you get full disclosure. However, refusal to sign can result in additional legal fees and conflicts that probably can be avoided. If you’d like help with these issue, we do assist clients in a pre-litigation capacity.

      Let us know if we can help.

      Best, Steve Gibbs, Esq.

  • Donna August 10, 2021, 11:10 am

    Hi,
    My mom died this past December. She has two children, myself and my brother. I am executor of her will. I live in NJ and my mom was a resident of Florida. My mom passed at my home and the death certificate had her as NJ resident, in December of 2018. Her will was made in NJ and lawyer made her resident of New Jersey as she was a snow bird and I took her to lawyer in Jersey for her will. After her death I had the will probated in state of NJ. She owns a condo in Florida which my brother wants to buy me out. I am fine with that but a real estate lawyer in Florida says he need to probate the will in Florida even though it has already been done I had the state of NJ Amend her death certificate to show she was a Florida resident and her will clearly states all her assets to be split 50/50 with my brother and I. I dont know the law and I don’t understand why this lawyer has to do all this probate in Florida and a petition for Ancillary Administration for my brother so he can handle the Florida real estate. He is saying it’s all because her will says she is Jersey resident and she has been a homestead Florida resident for over 30 years. It was a mistake that we didn’t catch as she also lived with me in the summer.
    I did all her bills and her main bank account which I was in so I could pay them was in NJ
    The lawyer is charging over $5000 to do all this Probate, petition to determine homestead status of real property and all we want to do is have my brother buy my share of my mothers condo. And for him to own the condo
    Since I don’t know real estate law I’m just unsure if all that needs to be involved. I told lawyer that if I had to pay back taxes because did her will shows at end of 2018 she was NJ resident. Is all this really necessary?

    Thanks for your time

    • gibbslawfl August 10, 2021, 12:43 pm

      Hello Donna,

      This looks complicated and is why we make the case every day to get folks to do proper planning. If mom was declared a NJ resident and there is FL real property then, yes, a Florida ancillary administration is required regardless of the NJ probate. If there are back taxes, then yes they would need to be paid in NJ. Other questions concerning residency may need to be answered.

      Let us know if we can help.

      Best, Steve Gibbs, Esq.

  • Donna August 10, 2021, 1:14 pm

    Thank you, I appreciate your time. I will proceed with the lawyer down in Florida

  • Henry Mc August 22, 2021, 8:06 am

    Hello Si: I had a sister that died on July 1, 2021 , 3 weeks before she died , one of my sister and her executed a revocable trust where the sibblings are beneficiaries . In July 26 , my sibblings and me received a waiver and consent of full accounting and any liability claim to start distribution of the estate. The lawyer sent us the trust ,a letter and copy of a check with the waiver. The letter reads:
    upon receipt of your signed waiver and consent, we will mail a check to you for your share
    Of the Bonnie G, Neiman Revocable Trust. The lawyer signed the letter. Since were are giving up all our rights, 3 of the sibblings, we decided to sent a trustee (sister) a letter to reach a non judicial agreement of extra compensation in exchange to sign the waiver and give up our rights, We did not received any answer from the lawyer or my sister, so we finally decided to sign the waiver becuase we do not want to challenge the trust in court due to the onerous costs and length of time involved on it . We are on age of 76 to 84 year old and not in such good health, and our beneficiaries rights lapse after dead.The problem is after we signed the waivers we have not received our payment and the trustee and the lawyer do not answer our calls. Please, is there anything we can do. ?

    • gibbslawfl August 24, 2021, 12:15 pm

      Hello Henry, the short answer is that if you signed a waiver then the law firm needs to comply and send out payment. Without additional investigation it is difficult to comment further and a consultation is really the forum to do so.

      Let us know if we can help.

      Best, Steve Gibbs, Esq.

  • Scott L Sandler September 13, 2021, 10:26 pm

    Thank you for taking your time to answer all of our questions, to the best of your ability and obvious limitations.

    My questions refers to the necessity of hiring an attorney to oversee the disbursement of assets from my mother’s estate in FL who past the end of August, 2021. My brother was named the Executor of her will, with both of us being equal beneficiaries. Her estate has sizeable assets in stock (under 1M) at a prominent brokerage and somewhere under $50K+ in various bank accounts. She also has 5 investment properties which will probably have to go thru probate since they’re only in an LLC and not funded by the Trust.

    My question is, if I believe my brother is adequately answering my questions, giving me a full accounting when he gets statements, etc, & will provide me with a full disclosure of bills paid, would it be fair to say that an attorney wouldn’t necessarily be needed to oversee the disbursement of these assets, but most likely would be needed when we attempt to divided the rental properties?? Thank you in advance.

    • gibbslawfl September 13, 2021, 11:35 pm

      Hello Scott, you’re welcome and yet I’m concerned by your question and what limitations you’re referring to. I do this in order to offer general information for educational purposes only, and thus, if there are some limitations, it would be that a blog post is an inappropriate forum to offer feedback concerning complex legal scenarios. Detailed legal questions that are inquiring about the need for legal services, warrant a careful investigation of relevant documents and a full understanding of the facts in the context of a confidential attorney-client relationships. So, when you’re asking “would it be fair to say” followed by “that an attorney wouldn’t necessarily be needed” I am compelled to recommend that you schedule a consultation with a probate attorney in order to get that question properly answered.

      Best to you.

      Steve Gibbs, Esq.

  • Susan October 19, 2021, 11:43 am

    Hi – thank you for taking the time to review my question and answer it, for educational purposes. My father in law recently passed away and left real property (house , vehicles , household contents) in Florida. My mother in law preceded him in death. He did not have a will. My sister in law lives in an adjacent property. My husband and my sister in law are the only heirs. There are no creditors. We have agreed to a summary administration with no personal representative. The papers have been filed in probate. My husband and his sister are estranged. My husband has requested keys to the property so that he can get an appraisal done, but he has been denied. Does he have a right to obtain keys? And if so, how can we require his sister to comply? We have a legal representative, but she is telling us we have a right to change the locks. We don’t want to have to break into the property to do that. We would instead prefer to get keys.

    • gibbslawfl October 21, 2021, 4:20 pm

      Hello Susan, of course and thanks for your question. If you have a legal representative I recommend directing specific questions to him/her and if this isn’t possible then we are taking new clients:). In general, your husband would have the right to access the property in order to change locks, etc. It appears that a probate should be filed and a personal representative needs to be appointed.

      Best, Steve Gibbs, Esq.

  • D Pieroni October 21, 2021, 11:18 am

    I am a NY resident and heir of a Fl estate. I have requested all transactions of the Fl Estate and neither the representative nor attorney will provide. This article advises I’m entitled to all transactions. How can I convince them to provide? Thank you

    • gibbslawfl October 21, 2021, 4:24 pm

      Hello, if you’re truly an “heir” you would be entitled to information. If they don’t provide you may need legal help.

      Best, Steve Gibbs, Esq.

  • Elissa Berger November 3, 2021, 6:35 pm

    My mother passed away in May 0f 2021. She updated her will in March of 2021, leaving 40% to me, 40% to her granddaughter (daughter of my brother who died in September 2016), and the remainder to her nephews. She had several bank accounts of modest means.
    She also had a modest death benefit IRA, with my brother and I listed as beneficiaries. Since he died in 2016 and she never updated her IRA beneficiary form, does this mean that I get the entire IRA amount or does half go to my brother’s daughter, even thought this was not updated on the beneficiary form?

    • gibbslawfl November 5, 2021, 2:08 pm

      Hello Elissa, your question could depend upon how the IRA beneficiary form reads. Likely a probate for your brother would be needed to allocate the proceeds but impossible to know without a deeper dive into the facts. If you need a consultation, you can schedule directly from the website home page.

      Best, Steve Gibbs, Esq.

  • Joyce November 8, 2021, 5:17 pm

    I am the trustee of my mother’s trust. One of the beneficiaries, John, died after her, and I made his distribution check out to John’s estate. The executor of John’s estate does not want to accept this distribution until 2 years after John’s death. Should I just leave the money in there for 2 years, until they want to accept it?

    • gibbslawfl November 10, 2021, 10:27 am

      Good morning Joyce, you would benefit from a consultation rather than trying to handle this with a blog comment:) It may be that with the beneficiary predeceased, other beneficiaries are entitled to the share. You could be liable as trustee if you wrongfully distribute it. Proceed with extreme caution.

      Best, Steve Gibbs, Esq.

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