Legal Question in Wills and Trusts in Florida
My father\'s wife of 9 years recently died. My father is living, however suffers from Alzheimers and is in a nursing home. My siblings and myself were not informed of her death until several days later, after her children emptied all of the possessions from the house, took the cars and virtually cleaned out every joint account (checking, savings, brokerage, etc.) They are claiming that my father\'s wife (Joan) gifted everything to them. At this point, we (my dad\'s kids) are trying to backtrack on the details, finding out how things were titled, if, with her POA was able to give everything to them. While he has VA benefits, a GM pension and SS enough to cover his current care, our concern is, what happens if he needs more intensive nursing care. Is there a discovery process that we can initiate to find out records of ownership and titles? The house was jointly owned, so we have been advised that we may have an insurance claim due to augmented state rules in Florida (robbery?). We\'re looking at close to $1 million dollars in funds and assets...you advice on next steps? Is it possible to gift everything when there is a surviving spouse? In my Dad\'s trust, he specifically stated that he did not want to go into a nursing home-he built the house prior to the marriage for that purpose...we were planning to bring him home and hire in home care. Do we have recourse with this issue?
1 Answer from Attorneys
Long story short is, you need to sit down with a Florida probate attorney. First, Florida has an "augmented elective share" statute; if she left a will then your father (or his guardian) could "elect" against the will; the "augmented" part would include lifetime transfers from his wife to her children. In other words, if a lot of assets were transferred to her children shortly before her death, and if she had a will, then even if there's no assets left to probate in her estate (because her kids looted her assets prior to her death) THEN he can say I'm not taking anything under her will but am seeking to take what she had outside of the will; he would be entitled, generally, to about 30% of her gross assets.
Second approach would be to set aside the transfer to her children; there's various theories, fraud, undue influence, maybe misuse of power of attorney; depending on how the facts play out, but you really do need to sit down and talk to someone who knows what they're doing on this sort of thing, preferably a probate attorney.
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