Florida Probate, Trust & Estate Blog : Florida Probate Lawyers & Attorneys : Clark Skatoff Law Firm : FL Wills, Trusts & Inheritance : Palm Beach, Broward County, Boca Raton

Establishing paternity in probate proceedings is a common issue, especially with the widespread availability of inexpensive and highly reliable DNA testing.  The rules for establishing paternity in Florida probate proceedings, however, have a number of hurdles, some of which intentionally deny biological paternity from controlling the outcome.

A.  Florida Probate Paternity Statute

The starting point for paternity determinations in probate is found at section 732.108, Florida Statutes (2011), which provides that paternity for children born out of wedlock can be established as follows: 

(a)  The natural parents participated in a marriage ceremony before or after the birth of the person born out of wedlock, even though the attempted marriage is void. 

(b)  The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.

(c)  The paternity of the father is acknowledged in writing by the father.

If there is an adjudication of paternity, prior to the death of the father, it will likely have taken place in the family courts, whereas an adjudication of paternity after the death will most likely end up in the probate courts. Section 732.108 permits the probate courts to adjudicate paternity rights which have not already been adjudicated in another proceeding.

Section 732.108 does not permit the probate court to address paternity issues after a prior paternity determination in family court or elsewhere.  Instead, a litigant is required to go back to the court making the original paternity determination. In Glover v. Miller, 947 So.2d 1254, (Fla. 4th DCA 2007), a probate court addressed this very issue with regard to a party’s right to contest a prior paternity adjudication.

Because any determination of paternity will involve many other parties and have effects more far reaching than a mere adjudication of the biological connection between Jerrod and Glover, we are not convinced that such a determination can and should be made as part of the probate proceedings where the only issue to be determined is intestate succession. We agree with the trial court that in order for Glover to assert a right as an heir, the existing judgment of paternity would have to be vacated. A child cannot have two legally recognized fathers.

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In probate proceedings, it is not unusual for the original of the will to be missing, and only a copy of the will can be located.  Florida law allows the copy of the will to be probated, but any person adversly affected by the copy can challenge the admission of the copy of the will to probate. 

It is well-settled under Florida law that evidence that a testator's will was in his possession prior to death and cannot be located subsequent to death gives rise to a rebuttable presumption that the testator destroyed the will with the intention of revoking it. In re Estate of Carlton, 276 So.2d 832, 833 (Fla.1973).

To order to rebut the presumption that the will was destroyed, Florida courts have permitted a variety of evidence:

In several cases, Florida courts have found the presumption of intentional revocation to be rebutted by a showing of: 1) evidence that a person with an adverse interest, and the opportunity, may have destroyed the will, see In re Estate of Washington, 56 So.2d at 547; Lonergan v. Estate of Budahazi, 669 So.2d 1062 (Fla. 5th DCA 1996); Upson v. Estate of Carville, 369 So.2d 113 (Fla. 1st DCA 1979); 2) evidence that the will was accidentally destroyed, see In re Estate of Carlton, 276 So.2d at 833 (presumption was rebutted where decedent repeatedly spoke of his will and his intention to leave his estate to the petitioner, although the decedent's safe was found waterlogged and the papers inside turned to “mush”); 3) evidence that the original will had been seen among the decedent's papers after her death, see Silvers v. Estate of Silvers, 274 So.2d 20 (Fla. 3d DCA 1973); and 4) evidence that the decedent was insane and thus did not have testamentary capacity to effectively revoke the will, see In re Estate of Niernsee, 147 Fla. 388, 2 So.2d 737 (1941).
 

Balboni v. LaRocque, 991 So.2d 993 (Fla. 4th DCA  2008).  The use of presumptions and the ability to rebut them is an integral part of Florida probate procedure (see, for example, the presumption of undue influence).
 

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With the passage of the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRA), estate planners were on notice that there would be no estate tax in 2010.  Unfortunately, very few estate plans have been drafted to take into account this one-year repeal.

Prior to the passage of EGTRA, the estate tax rate was 55%, and the exemption amount was $675,000.  During the decade, the estate tax rate was gradually lowered to 45% by 2009, and the exemption amount was gradually raised, to $3.5 million by 2009.  Under EGTRA, there is no estate tax in 2010.  In 2011, however, the estate tax springs back with a vengeance - a 55% estate tax rate, and an exemption amount of only $1 million.

For deaths that occur in 2010, the repeal is important because the level of federal estate taxation can control bequests in a will or trust.  For a married couple with a taxable estate under the pre-2010 law, the goal was to take advantage of the estate tax exemption amount to the maximum extent possible, while leaving the remainder of the estate to the surviving spouse (directly or in a marital trust).  A standard will or revocable trust would establish two trusts for this purpose.  The first is the Family Trust, into which the maximum estate tax exemption amount would be allocated.  The second trust would be the Marital Trust, into which the balance of the estate would pass, free of estate tax.  A will or revocable trust would contain an allocation clause to fund each trust.  For example:

I give to the Marital Trust the smallest pecuniary amount that, if allowed as a federal estate tax marital deduction, would result in the least possible federal estate tax being payable by reason of my death, with the remainder to the Family Trust.

If there is no estate tax, this allocation clause could fairly be read as allocating none of the estate to the Marital Trust, and all of the estate to the Family Trust.  If the Marital Trust and the Family Trust have the same disposition plan, same beneficiaries and same trustees, there is likely no problem.  Such would often be the case in a first marriage / common children situation.

If there are children from a first marriage and a second spouse, the Marital Trust and the Family Trust will often look quite different.  For example, although only a surviving spouse can be a beneficiary of a Marital Trust while alive, the Family Trust may or may not include the surviving spouse as a beneficiary.  Or, if the surviving spouse is a beneficiary of the Family Trust, there may be more severe limitations on distributions.  Sometimes, a surviving spouse will control who gets the assets in the Marital Trust upon death, while a Family Trust would not typically contain such a provision.

A surviving spouse who receives a Marital Trust of zero as a result of the spouse passing away in 2010 will have some recourse - the elective share, which would allocate to the surviving spouse a portion of the overall estate.  (The elective share in Florida is 30%.)  The elective share, however, may be less than what the passing spouse may have intended to pass to the surviving spouse.  Moreover, the expense of claiming the elective share could be considerable - especially when property is located both inside and outside of Florida.  In other words, the surviving spouse could be significantly harmed by the obsolete allocation clause.  The beneficiaries of the Family Trust may also have cause to complain, given the chaos which will have been unleashed on their situation.  

Whether estate planning documents drafted after the passage of EGTRA in 2001 which do not take into account the 2010 estate tax environment create malpractice for the drafting attorney is an open question.  Certainly any person with an outdated estate plan should seek review and guidance at once. 

How Should Obsolete Estate Planning Documents be Fixed?

One way to fix an estate plan's funding formula will be an override provision.  For example, the following clause could be added after the funding formula.

Notwithstanding the foregoing, not less than 50% of the residuary estate shall be allocated to the Marital Trust.

OR

Notwithstanding the foregoing, not less than $2 million of the residuary estate shall be allocated to the Marital Trust.

There are likely a number of ways in which to protect an estate plan from the situation that Congress has placed the American public.  The important point is to do something.

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In Re Guardianship of Deily, (Fla. 2nd DCA January 15, 2010)

Whenever a minor or incapacitated person is injured and a lawsuit is warranted, the question arises as to who has authority to hire a personal injury attorney, and on what terms. 

In the cited-to case, an adult child was injured in a bicycling accident.  His mother hired a personal injury law firm to represent her son in a potential lawsuit, signing a "standard" contingency fee agreement.  The law firm made formal demands on all of the insurance carriers potentially at risk, and the carriers all tendered full policy limits.  While the settlement of the case was pending, the mother filed an incapacity petition and a guardianship petition.  The incapacity petition was granted; however, instead of appointing the mother as the guardian, the court appointed a professional guardian. 

The professional guardian then challenged the law firm's fee arrangement.  The trial court judge rejected the fee arrangement, on the ground that the incapacitated ward's mother was not authorized to act in any capacity on his behalf when she signed the retainer with the personal injury law firm, and that firm had no contract with the guardian. 

The appellate court reversed, holding that, although the guardian had not been appointed, "neither had anyone else."  The appellate court cited to Florida Rule of Civil Procedure 1.210(b), which provides that

[a] minor or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem.

The appellate court remanded the case to the trial court to determine whether the contingency fee agreement was proper, under the authority of Phillips v. Nationwide Mutual Insurance Co., 347 So.2d 465 (Fla. 2d DCA 1977), as follows:

A contingent fee arrangement entered into on behalf of a minor will be binding on the minor if the trial court determines: 1) that it was reasonably necessary to employ an attorney on behalf of the minor; and 2) that the contract by which the attorney was employed was fair and reasonable at the time it was entered into.

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In a startling display of Congressional ineptitude, Congress allowed the estate tax to expire as of January 1, 2010.  Before the trust fund babies trade in their Porches for Lamborghinis, realize that Congress may successfully enact an estate tax for 2010, and make it retroactive to January 1, 2010.  Although such retroactivity is likely to pass scrutiny, the results of any court  test are not likely to be resolved for years.  Here's why:

Assuming our hypothetical deceased passes away on January 1, 2010, the estate tax return is due nine months from the date of death.  Therefore, the estate tax return is due to be filed by October 1, 2010.  Assuming that prior to October 1, 2010 the Federal government enacts a new estate tax retroactive to January 1, 2010, the executor of the estate is likely to file the estate tax return showing zero estate tax liability, and include a disclosure statement that the estate is challenging the retroactive nature of the estate tax.  (To avoid interest and penalties while taking such a position, an executor should consider an estate tax deposit.) 

The audit of the estate tax return is not likely to conclude for eighteen months after filing the return, which takes us to April 1, 2012.  Assuming that the audit results in the IRS assessing the full estate tax, the estate has 90 days from the receipt of the IRS Notice of Assessment to file a Tax Court Petition.  Assume that the estate files its Tax Court Petition within one month, which takes us to May 1, 2012.

A Tax Court case typically takes approximately one year to resolve (although some tax court cases go on for many, many years).  Lets assume one year, so now we are at May 1, 2013.

Assume the Tax Court rules in favor of the IRS and upholds the retroactive estate tax.  The estate appeals the Tax Court ruling to a Court of Appeals.  The appeal may take approximately one year to resolve, depending on which circuit the appeal lies.  Lets assume one year, which takes us to May 1, 2014. 

Assume the Court of Appeals rules in favor of the IRS.  The estate seeks review by the Supreme Court.  Even if the Supreme Court refuses to hear the case, that process can take approximately two months to play out.  So now we are at July 1, 2014. 

For the "test case" to challenge the retroactivity of the estate tax back to January 1, 2010 (assuming Congress enacts such a statute), the results may not be known for over four years! 

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