On February 29, 2012 the Second District Court of Appeals issued an opinion involving the appointment of a Personal Representative (sometimes referred to as an executor or administrator) for the estate of a decedent who died without a Will.  When a decedent has made a valid Will, this document will normally nominate a person or bank to be Personal Representative.  What happens when there is no Will?

The Florida Probate Code specifies that there is a priority of preference that is to be followed in determining who will be Personal Representative.  A surviving spouse comes first, followed by a person who is selected by a majority in interest of the heirs.  A “majority in interest” means a person or combination of people who get at least 51% of the value of the assets of the estate.  The third preference is an heir nearest in degree (meaning essentially the closest relative or someone from a group of people who all have the same relationship to the decedent).

In the February ruling the court was confronted with a situation where a surviving spouse requested that he be appointed Personal Representative of his late wife’s estate.  The request of the surviving spouse was challenged by the decedent’s mother (the spouse’s mother-in-law).  The mother asked to be appointed Personal Representative and made allegations against the spouse of a “serious nature” in her petition to the court.  The published opinion does not specify what those allegations were, but the appellate court confirmed that person’s preference in appointment is subject to their being fit to serve.  A person is not fit to serve if the individual “lacks the necessary qualities and characteristics”.

The important point in the appellate ruling is that because the trial court appointed the mother of the decedent simply on her allegations and without her presenting any actual evidence of the spouse‘s lack of fitness, the case was sent back for a hearing where such evidence must be presented.

There are some valuable lessons to learn from this case.  First, in contested estates, suspicions and allegations are not enough to win.  You have to prove wrongdoing or lack of fitness with facts.  Second, a person is not a Personal Representative simply because they were nominated in a Will.  The Will has to be admitted to probate (ruled valid) and the nomination approved by the Court.  Third, the approval of a nomination is subject to that person being fit, an adult, mentally competent, not being a convicted felon, and either being a resident of Florida or being related to the decedent within a definition in the Florida Probate Code.

Often one of the last things Courts want to deal with at trial is all of the personal property in the home.  This is one of the areas of the divorce which parties should make a concerted effort to resolve amongst themselves.  However, sometimes it cannot be accomplished and the matter must be tried before the Court with other property.   In a recent case, at trial, the Judge ordered the parties to attend mediation to resolve the issue of dividing the contents of the home after the trial.  The appellate court reversed citing McAvoy v. McAvoy, 662 So. 2d 744,745 (Fla. 5^th DCA 1995) (“the parties are entitled to a final distribution of their assets and liabilities at the time of dissolution”).

This case also held that when the Husband consolidated investments into one investment after filing the entire appreciation of the asset was marital and subject to divide.

See, Kumar v. Kumar, 37 Fla. L. Weekly D725 (Fla. 2nd DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Former NFL star Warren Sapp recently filed for Chapter 7 Bankruptcy in the Southern District of Florida.   Although Sapp’s Chapter 7 filing will no doubt be more complicated than most Chapter 7 cases, it is still governed by the same underlying rules and laws.   The basic premise of Chapter 7 is that a debtor turns over his non-exempt assets to a trustee who then liquidates the assets and uses the proceeds to pay the debtor’s creditors.  The debtor then receives a discharge of most if not all of his debt.  In most of the Chapter 7 cases that our firm files, the debtor is able to exempt all or close to all of his assets.   In cases where we can’t exempt all of the debtor’s assets, the debtor is usually able to “buy-back” his non-exempt assets from the trustee.

Warren Sapp’s bankruptcy is obviously much different than the typical Chapter 7 case.  Sapp still has significant assets and still generates a huge monthly income.  His bankruptcy schedules list his monthly income at over $115,000 per month and his monthly expenses are close to this amount.  Normally there is a Means-Test in order to qualify for Chapter 7.  However, since the majority of Sapp’s debt is non-consumer and primarily business debt, he was still able to qualify for Chapter 7.

Sapp also looks to be able to exempt a significant amount of his assets as well.  His NFL 401k and pension should be fully exempt under Florida law.  His primary residence and most if not all of his other retirement accounts are also exempt.  Sapp’s furniture, bank accounts, and jewelry are non-exempt and would need to be either surrendered or repurchased from the Trustee.  Interestingly, Sapp claims that he lost his Super Bowl and National Championship rings.  As these rings would now be property of the bankruptcy estate, Sapp would face significant penalties if it is proven that he lied about losing these rings.

Most of Sapp’s debt will be discharged among completion of his petition.  The most notable exception is child support and alimony.  Sapp owes a significant amount of child support and alimony; none of which will be dischargeable in bankruptcy.

Jonathan Bierfeld is an attorney with Martin Law Firm, P.L., whose practice focuses in Bankruptcy Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida.  He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.

Florida law is well settled that absent a contractual agreement releasing the liability on the promissory note, parties are responsible for the debt even after the foreclosure process is complete.  Therefore, a trial court cannot factor the speculative release of the debt in its award of equitable distribution.

A recent case out of the Third District Court of Appeal deals with this very issue.  The Husband wanted to let the marital home go into strategic foreclosure due to being underwater on the home by approximately $76,000.  However, the Wife did not want to have her reputation tarnished.  The trial court found that most people in their situation would elect strategic foreclosure and since the Wife insisted on keeping the house she should solely be liable for the debt.  The Appeals Court reversed finding this rationale legally insufficient.  Specifically, since Florida law is well settled that absent a contractual agreement releasing the liability on the promissory note, parties are responsible for the debt even after losing the collateral, the Appeals Court found the liability to be marital.  Further, as the trial court’s rationale was not within the statutory guidelines for deviation from an equal division, the Appeals Court found the trial court’s rational legally insufficient.  

See, Bryne v. Bryne, 37 Fla. L. Weekly D688 (Fla. 3d DCA 2012).

Dustin Michael Butler is an Attorney with Martin Law Firm, P.L., whose practice focuses in Family Law and Civil Litigation.  He is admitted to practice law in the State of Florida and the Federal Court for the Middle District of Florida. He primarily practices in Lee County Florida in Cape Coral and Fort Myers, Florida.