Questioning Language of Crescenzo Case…
As you know, last week, this author published a blog on the Crescenzo case. A well, known, very respected probate and trust litigator and good friend, Andrew B. Sasso, responded to me with some thoughts. As this author is not a litigator, clarifications are always welcome. It appears that this case may not mean what it appears to say!
“The language in Crescenzo v. Simpson, — So.3d —- (2018) (2018 WL 1219709) raises concerns as it could be read to require the filing of a caveat as a condition precedent to contesting the admission of a will to probate. In Crescenzo, even though an answer was filed, the trial court admitted a will to probate without deciding the challenge because the contestant did not file a caveat. Although the Second District Court of Appeal reversed the trial court – it is troubling that the opinion states “[w]e hold that Mr. Crescenzo’s answer was the functional equivalent of a caveat.” The Florida Probate Code and Florida Probate Rules provide the option of filing a caveat to require notice to the caveator prior to the admission of a will to probate. However, a caveat is not required to contest the admission of a will to probate. Instead the contestant is required to timely file a response (e.g. motion to dismiss, answer, etc.) to the petition for administration.
Florida Statutes, Section 731.110 (sc. Caveat; proceedings), inter alia, provides “[a]ny interested person who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without that person’s knowledge may file a caveat with the court” and “the court may not admit a will of the decedent to probate or appoint a personal representative until formal notice of the petition for administration has been served on the caveator or the caveator’s designated agent and the caveator has had the opportunity to participate in proceedings on the petition, as provided by the Florida Probate Rules.” Likewise, Florida Probate Rule 5.260 (sc. Caveat; proceedings) provides that “[a]fter the filing of a caveat by an interested person other than a creditor, the court must not admit a will of the decedent to probate or appoint a personal representative without service of formal notice on the caveator or the caveator’s designated agent.”
ADVICE: Always consult with an experienced probate and trust litigator before responding to a contest of a will or contesting a will. As you can see, case law may not be clear and an experienced attorney can guide you in the law and the rules. Thanks Mr. Sasso for your thoughtful response and clarification!
WORD OF THE WEEK: “POD” payable on death is often referred to as a “poor man’s will”. Under Florida law a POD account can provide that, upon your death, the bank account is “paid on death” to the named beneficiary(s). If more than one person is named, then the account is presumed to be paid to the survivor(s). Thus, if a beneficiary predeceases the decedent, then the monies would be paid to the surviving beneficiary(s) and if there is no surviving beneficiary(s), then the funds will be distributed and subject to probate in the estate of the last surviving POD beneficiary. While many individuals may find POD helpful, there are many situations, such as a desire to make payments out to beneficiaries over time in a trust, where a POD is not the best solution.
GENEROSITY IS A KEY TO HAPPINESS…REACH OUT AND HELP SOMEONE TODAY! 😎