Damaged will in Florida

arialWhat is the name of your state? Florida

I am the executor of my cousin's will. However, the copy of the will she left for me is damaged. There is one paragraph of the will that is torn off. My assumption is that she thought she could change the will by removing that paragraph. However, I don't know. The original lawyer who completed the will is now retired and an invalid. The attorney who has his case files (which I hope contain the original will) is still searching (very slowly, I might add). I've been told that if the original cannot be found that it should be probated as if my cousin died intestate. That means all assets (small house and a few dollars) would revert to the state. That certainly is not what my cousin desired or expected to happen.


What options do I have?

JB in Miami

jlbrooks said:

arial

That means all assets (small house and a few dollars) would revert to the state.

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My response:

An attorney never told you this bit of information. So, where did you get that belief?

IAAL

That's what I was told

Dear IAAL,

Unfortunately, it seems, that IS what an attorney told me. He also added that he would need to do more research on case law. I told him, in no uncertain terms, that I was not interested in pursuing the intestate route. It didn't make sense to me because the rest of the will (minus the missing part) was signed and witnessed. The first three paragraphs name me as the executor and the recipient of the house. The forth paragraph is missing. I assume it had something to do with the distribution of her monetary assets. It is thought that she changed her mind about a friend who was named, but I don't know that. That might shed some light on why she removed paragraph four.

JB in Miami

jlbrooks said:

Dear IAAL,

Unfortunately, it seems, that IS what an attorney told me. He also added that he would need to do more research on case law. I told him, in no uncertain terms, that I was not interested in pursuing the intestate route. It didn't make sense to me because the rest of the will (minus the missing part) was signed and witnessed. The first three paragraphs name me as the executor and the recipient of the house. The forth paragraph is missing. I assume it had something to do with the distribution of her monetary assets. It is thought that she changed her mind about a friend who was named, but I don't know that. That might shed some light on why she removed paragraph four.

JB in Miami

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My response:

You HAD to have misunderstood the attorney. The decedent may have, in fact, invalidated her own Will under Florida law which is probably the reason why the attorney needs to do more research on the issue. That's reasonable. If the Will is invalid, then she died "intestate", i.e., "without a Will". That's the easy part, and worth the research time.

However, Intestacy doe not mean that "her property goes to the State". The State of Florida has no interest in her personal or real property - - except for, perhaps, taxes on the Estate - - if any are due at all.

Florida has an entire statutory, and case law, scheme for people who die without a Will. The "State" is the absolute and very LAST entity that would take from her Estate, and that will only happen if she left absolutely no heirs, either lineal or lateral.

IAAL

Thank you!

Dear IAAL,

Thank you for your response. Yes, what you said makes sense to me as well, but since I know absolutely nothing about probate law, the whole idea of the state receiving her property, unfortunately, came from the attorney. Now in his defense, he is not primarily a probate attorney and was probably just speaking from the top of his head. However, the thought that the state may end up with her property as a result of this unauthorized change she made is what drove me to seek other information through this website. I just couldn't accept the option that was presented.

This lawyer is a casual friend who is very successful in his practice, with several high profile clients. Maybe probate just isn't his thing but he accepted my retainer regardless. He's had the case for more than a month now with very little progress. How long do you think is appropriate to give the other attorney time to look through the files of the retired attorney in an attempt to find an original or at least an undamaged copy. My cousin's will had "Copy" stamped on it, so I believe an original may still exist somewhere. She didn't have it. I've been through all of her stuff.

I have to say that even before today, I haven't been very pleased with the followup and response from my lawyer. I don't know how long these things take but I haven't been feeling all of that warm and fuzzy, if you know what I mean.

Thanks again for your insights. They really were helpful to me.

JB in Miami

jlbrooks said:

Dear IAAL,

Thank you for your response. Yes, what you said makes sense to me as well, but since I know absolutely nothing about probate law, the whole idea of the state receiving her property, unfortunately, came from the attorney. Now in his defense, he is not primarily a probate attorney and was probably just speaking from the top of his head. However, the thought that the state may end up with her property as a result of this unauthorized change she made is what drove me to seek other information through this website. I just couldn't accept the option that was presented.

This lawyer is a casual friend who is very successful in his practice, with several high profile clients. Maybe probate just isn't his thing but he accepted my retainer regardless. He's had the case for more than a month now with very little progress. How long do you think is appropriate to give the other attorney time to look through the files of the retired attorney in an attempt to find an original or at least an undamaged copy. My cousin's will had "Copy" stamped on it, so I believe an original may still exist somewhere. She didn't have it. I've been through all of her stuff.

I have to say that even before today, I haven't been very pleased with the followup and response from my lawyer. I don't know how long these things take but I haven't been feeling all of that warm and fuzzy, if you know what I mean.

Thanks again for your insights. They really were helpful to me.

JB in Miami

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My response:

Consult with another local attorney, preferably one that is Certified in Probate law. You can call the Florida State Bar for a referral in your area.

Yes, without the original Will, you can't even present the copy to the court because it was altered. If she is determined by the court to have died intestate, then you'll get nothing from the Will. As a matter of fact, another family member will probably Petition the court to be appointed as the Estate Administrator, and the Estate will be divided up between the surviving family.

You need to consult with another attorney fast. It may turn out, because of the potential invalidity of the Will, that you're spending all of this money on nothing - - because you won't receive anything under the Statutory scheme - - unless you're a family member.

Most assuredly, and no matter how "successful" your current attorney might be in other areas of law, one thing is sure - - he does not appear very good when it comes to Probate law.

IAAL

The attorney who told you that everything would go to the "state" was mistaken and probably just speaking off of the top of his head. He has had adequate time by now to research this.

The chain of command clearly states that a decedent's brothers or sisters, OR THEIR CHILDREN (which would be you, a cousin) would be eligible to inherit through the intestate probate procedures, so that means you would get everything unless there are other relatives in this family.

DANDY DON IN OKLAHOMA ([email protected])

Thanks for responding

Dear Dandy Don,

Let me explain the family connection.

My cousin was my first cousin. Her father and my father were brothers. On her mother's side, she has a great aunt (her mother's aunt) and her great aunt's three children (maybe second cousins twice removed). In the part of the will that was undamaged, my cousin made me her executor and the recipient of her small two bedroom home. That part was very clear. I believe that her aunt and cousins also recognize that as her wishes. In addition, while she was in the hospital, I was her defacto guardian and made medical decisions on her behalf. She also executed a limited power of attorney to allow me to deal with some credit card issues that she had. I don't know if that makes any difference, but that's how it lays out.

Any thoughts?

JB in Miami