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in the state of Florida when you have an attorney draw up a last will and testament for you and then that lawyer holds onto your will and all of your financial paperwork until you pass at which time probate is to be filed, an executor to be named, and the estate dispersed.....is that correct?

 

So my question is...when you pay a lawyer for this service before you die in Florida what exactly is the lawyers responsibility? More specifically is the lawyer under any obligation at all to make sure the will is filed and dispersed properly? 

 

i find it curious that an attorney can take an old womans money and then when she dies just crumple up the will and split the proceeds with one of the heirs but thats what happeed in my moms case and so far i am hearing there is nothing i can do and i find that hard to believe.....

they made a fake will and i can prove that ...i called the fl bar assoc and they basically told me oh well....

 

so can anyone tell me if the attorney has any obligation to see thate the will is dispursed propry or at least an obligation to notify other eirs or anything? and obligation aside...what do attorneys usually do?

thank ou

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in the state of Florida when you have an attorney draw up a last will and testament for you and then that lawyer holds onto your will and all of your financial paperwork until you pass at which time probate is to be filed, an executor to be named, and the estate dispersed.....is that correct?

 

 

Are you asking if that is required?  If so, the answer is "No."  In fact, most testators hold the original of their will.  And I'm not certain what you mean by "financial paperwork", but most testators do not even hand over any of that to their attorney.

 

So my question is...when you pay a lawyer for this service before you die in Florida what exactly is the lawyers responsibility? More specifically is the lawyer under any obligation at all to make sure the will is filed and dispersed properly?

 

 

Pay for what service?  Unless the attorney was nominated as the executor, there is no obligation to see that the will is filed.  And, as I said above, attorneys generally won't even have the original of the will.  And, unless appointed by the court as executor, attorneys are certainly not obligated to see that the estate is "dispersed properly."

 

i find it curious that an attorney can take an old womans money and then when she dies just crumple up the will and split the proceeds with one of the heirs but thats what happeed in my moms case and so far i am hearing there is nothing i can do and i find that hard to believe.....

they made a fake will and i can prove that ...i called the fl bar assoc and they basically told me oh well....

 

 

So, you are accusing this attorney of fraud?  Something that potentially would get the attorney disbarred and possibly prosecuted criminally.

 

There is something that does not ring true here.  What did the estate/probate attorneys that you consulted have to say?

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in the state of Florida when you have an attorney draw up a last will and testament for you and then that lawyer holds onto your will and all of your financial paperwork until you pass at which time probate is to be filed, an executor to be named, and the estate dispersed.....is that correct?

 

Your question, as phrased, doesn't make a lot of sense.  While it is not uncommon for a lawyer who prepares a will for a client to hold onto the original of the will for safe keeping, it is probably much more common for clients to hold onto their own wills (either in their homes or, sometimes, in a safe deposit box), and, sometimes, the testator will give the original will to the person nominated as executor.  I've never heard of a situation in which a lawyer holds onto all of a client's "financial paperwork."  It certainly is true that, when a person who has made a will dies, the person in possession of the will should either file the will with the local clerk and/or take steps to probate the estate.  Whether anything is ultimately disbursed obviously depends on the specific facts regarding the estate.

 

 

 

So my question is...when you pay a lawyer for this service before you die in Florida what exactly is the lawyers responsibility?

 

The lawyer's responsibility is to do whatever he/she was hired to do.

 

 

 

More specifically is the lawyer under any obligation at all to make sure the will is filed and dispersed properly?

 

Section 732.901(1) of the Florida statutes provides as follows:  "The custodian of a will must deposit the will with the clerk of the court having venue of the estate of the decedent within 10 days after receiving information that the testator is dead. The custodian must supply the testator’s date of death or the last four digits of the testator’s social security number to the clerk upon deposit."  In this regard, I disagree with "harrylime's" statement that, "nless the attorney was nominated as the executor, there is no obligation to see that the will is filed."  But I do agree that, unless a lawyer in possession of a deceased client's will was hired to do something more, that is the end of the lawyer's responsibilities.

 

 

 

i find it curious that an attorney can take an old womans money and then when she dies just crumple up the will and split the proceeds with one of the heirs but thats what happeed in my moms case and so far i am hearing there is nothing i can do and i find that hard to believe.....

they made a fake will and i can prove that ...i called the fl bar assoc and they basically told me oh well....

 

Just about anything can happen.  People commit crimes every day.  Is there something you can do about what you described.  Of course there is, and I'm at a loss to understand why anyone would tell you otherwise.  Obviously, you'd need to take action in the probate court.  Also, complaints about attorneys are made to the Florida Bar (http://www.floridabar.org/attorneydiscipline).  Not to any bar assocation (bar associations in Florida are voluntary organizations with no disciplinary power whatsoever).

 

 

 

what do attorneys usually do?

 

Attorneys usually do what they're hired to do, to the best of their ability (and, of course, to the extent permitted by law).

 

For what it's worth, you seem to be asking generalized, hypothetical questions based on factual scenarios that don't appear to line up with the specific situation you described.  Not really sure what the point of that might be.  However, I do agree with "harrylime" that what you've accused this lawyer of doing would be criminal and subject the lawyer to disbarment.

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 In this regard, I disagree with "harrylime's" statement that, "nless the attorney was nominated as the executor, there is no obligation to see that the will is filed."  

 

 

Yeah, I wasn't at all clear about context.  I was thinking more in terms of the attorney not holding the original will.  The attorney would have no obligation to seek out whoever might have possession and make sure that that person files.

 

That 10 day statute, and similar ones in other states, gets badly overblown.  Yeah, it's there.  But it's a sword in case the custodian of a will, for some reason, is obstinate about not filing.  It's not as if someone walking into the court 90 days after the testator's death to file the will is going to be clapped in cuffs and hauled away to wear the orange jumpsuit.

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Yeah, I wasn't at all clear about context.  I was thinking more in terms of the attorney not holding the original will.  The attorney would have no obligation to seek out whoever might have possession and make sure that that person files.

 

That 10 day statute, and similar ones in other states, gets badly overblown.  Yeah, it's there.  But it's a sword in case the custodian of a will, for some reason, is obstinate about not filing.  It's not as if someone walking into the court 90 days after the testator's death to file the will is going to be clapped in cuffs and hauled away to wear the orange jumpsuit.

 

I concur on both counts, and I assume there is relatively little in terms of legal recourse if a custodian of a will violates the statute (even knowingly).

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I concur on both counts, and I assume there is relatively little in terms of legal recourse if a custodian of a will violates the statute (even knowingly).

 

It's in the next subsection:

 

(2) Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will. All costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.

 

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Was any type of probate proceeding ever done in court?

 

Probate might not have been necessary if her assets had a designated beneficiary where the beneficiary would be automatically paid upon death.  Maybe there are no assets that need to be probated.

 

Were you ever notified of any probate hearings or did you ever receive a copy of the will?

 

Are you named as a beneficiary in it?

 

Who was the executor of the estate--the attorney, or your sibling or someone else?

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ok well first of all thank you for your replies I appreciate it. The situation is this, my mother passed away last October. she left me a small insurance policy which my sister tried to claim. I am in court on that issue right now. Before my mother died back in 2005 she told each of her children (there are 3) separately about how much she left for us in her will and what she wanted done. Now I know things can change but I also know my mothers situation fairly well. After she died my sister who was supposed to be named as executor according to my mother took everything and went home and never even notified me or my brother. So I called the attorney my mother told me she had her will with and this attorney refused to even speak to me. I have tried everything but no one would show me a copy of the will and the attorney still has not filed it.My sister meanwhile has been saying that my mother cut everyone out of the will but her and that she had no assets left but I KNOW this is not true. Well last week my sister sent in a statement to the judge in the insurance case and in it she included a copy of my mothers supposed will....this will is absolutely fake and will be thrown out of any court...

It is ONE paragraph that basically says my sister gets everything my mother had and no one is allowed to contest this. and for starters MY name is spelled wrong on it. My mother never once in 53 years spelled my name wrong but my sister on the other hand has always spelled my name the way it is on the will...that's the first clue my mom didn't write it....then it is dated 10 days before she died AND the signature is clearly NOT my mothers true signature......she died of bladder cancer in a hospice clearly when this will was coerced out of her she would have been out of her mind on pain killers probably morphine so she was in no shape to sign a will. Also my sister had power of attorney at the end and the whole reason she fought me for the insurance money was she claims she paid for the funeral because she was supposed to get the insurance money to cover it but in her letter to the judge she states very clearly that she felt comfortable writing a check for the funeral expenses out of my mothers account which means a) she did not pay for the funeral at all my mother did and B) she was not supposed to use her power of attorney to take money out of the account after my mothers death. My sister is also claiming that my mother had nothing left because it all went to medical bills but i know for a fact that that is not true because my mother had both champus and aarp insurances and they paid 100% of her medical so she had very little if any medical bills.

My mother told me back in 2005 about the attorney having her will....I don't know the particulars so maybe she was confused but i do know because she told me that she thought the attorney would make sure my sister did what she was supposed to do. My brother and I both at some point expressed concern to our mother that our sister would try to make it hard for us to get our share or take it all together but my sister is the oldest so our mother thought she was the rightful executor and she always said that's what the lawyer is for to make sure she cant do anything.....so maybe she just thought that I don't know.

I live in Washington state and I dont have the money for all of the traveling and attorneys to fight this so I dont know what to do but it doesnt seem right to just let my sister get away with ripping my mom off while she was dying. And the way this attorney hid from me from day one makes me feel like she took some part in all of this...at the very least someone probably this attorney wrote up that fake will....she is acting too suspicious if she has no culpability in this then why not just talk to me and say I did my job I dont know what your sister is doing...why hide from me and refuse to even speak to me?

I just really want to see the real will.....i dont even care if i get the money though I would like to make my sister pay some of it back just on principal but that isnt the most important thing to me the most important thing is SEEing the real will so I know what it says not getting the stuff. So I was considering writing the atorney and my sister registered letters offering a deal where if they give me a true copy of the real will no matter what it says I will not take any legal action against them. Anybody think that might work or is it a bad idea? I am also thinking of starting a go fund me to try and get money for legal fees but living in washington and this is in florida thats gonna take a lot of money. And then if I do end up taking this to court and say I win and the judge awards me 150,000.00 I dont actually get that money right then right? I may even have to take them back to court several times before I see any of it right? And since my sister is already 60 and this could take years what are the odds that I spend all this money to go to court...win....and still never see a dime or the will???

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Oh an my sister has claimed in an official capacity many times over the past year that she is the executor of my mothers will and she has paid bills and sold assets in that capacity which she has absolutely no right to do because in florida no one can be the executor of a will until it has gone through probate and been signed by a judge granting them executorship (its not called that in florida) ...all of that is money she should have to pay back because she had no legal right to dispuse any of it! She told the mortgage company she is the executor she told the electric company and the bank and also the judge in this insurance case and the insurance company. Many of those are in writing!

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Sorry I forgot but the law in florida is that a person such as myself  or my sister etc can not file probate. In florida an attorney must file probate and that is why my mother had her will with an attorney and that attorney was supposed to file the will in probate because that IS part of their job and probate can not be filed without an attorney.  How can they make a law that forces you to have an attorney to file probate but then not have any protection under that law? The attorney that was hired by my mother before her death can just crumple up the will and refuse to file anything. And Florida law also states that every heir has a right to see a copy of the will but the attorney can just say there isnt one? Not that she is saying there isnt one she just is refusing to talk to me at all or send me a copy. 

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So, with all that blah, blah, blah, you really have no proof that this attorney has commuted fraud.

 

I'll put it succinctly.  Get some money somewhere to retain an attorney or you reconcile yourself to being happy with whatever proceeds you receive from the insurance policies.

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Just because an attorney is required to file probate (assuming that is true) the fact that an attorney drafted the will, does not obligate him/her legally or morally to file for probate.  His client is dead.  The new party is entitled to hire and pay their own attorney or hire and pay the estate planning attorney to proceed with probate.

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The situation is this. . . .

 

I didn't read through this gigantic block of text, but I assume this relates to the situation that is the subject of several prior threads that you started.  I did scan for questions, but all of them seemed to be rhetorical or unanswerable, so I can only refer you back to what we told you in the prior threads -- all of which basically boiled down to that, since you're on the other side of the country, even if something nefarious is happening, you aren't going to be able to do anything about it unless you get yourself to Florida or hire a lawyer there.

 

 

 

i dont know why that little smiley face showed up in there but i didnt mean for it to.

 

Because this cite has a ridiculous feature that automatically turns "( b )" or "b )" (both without the spaces between the parentheses and the letter "b") into emoticons and "( c )" (again, without spaces) into the circle-c copyright symbol unless you click the "more reply options" button and disable emoticons.  Since we commonly quote statutes here, this happens quite regularly, and all of the regulars here are used to it.  I've complained about this, but the moderators who have bothered to respond tell us that they have no ability to effect change, so we live with it.

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I didn't read through this gigantic block of text, but I assume this relates to the situation that is the subject of several prior threads that you started.  I did scan for questions, but all of them seemed to be rhetorical or unanswerable, so I can only refer you back to what we told you in the prior threads -- all of which basically boiled down to that, since you're on the other side of the country, even if something nefarious is happening, you aren't going to be able to do anything about it unless you get yourself to Florida or hire a lawyer there.

 

 

 

 

 

I didn't read through this gigantic block of text, but I assume this relates to the situation that is the subject of several prior threads that you started.  I did scan for questions, but all of them seemed to be rhetorical or unanswerable, so I can only refer you back to what we told you in the prior threads -- all of which basically boiled down to that, since you're on the other side of the country, even if something nefarious is happening, you aren't going to be able to do anything about it unless you get yourself to Florida or hire a lawyer there.

 

Actually though i do have another post in the insurance section that is completely separate from this which is about the will and probate. I am almost finished with the insurance case and am now trying to concentrate on what if anything I can do about getting a copy of my mothers real will. Everyone just keeps going on about proceeds but I care more about getting my hands on the actual will than i do proceeds If that is not possible then it isnt but clearly I am not the kind of person who just accepts forget it as an answer without trying a few times so I am here trying to figure this out. It worked for me on the insurance so it might help on this. I thought thats what this forum was for. 

I don't form everything as a question. Sometimes I throw an idea out there to see if anyone will give me advice on whether it might work or not.

 

 

 

Because this cite has a ridiculous feature that automatically turns "( b )" or "b )" (both without the spaces between the parentheses and the letter "b") into emoticons and "( c )" (again, without spaces) into the circle-c copyright symbol unless you click the "more reply options" button and disable emoticons.  Since we commonly quote statutes here, this happens quite regularly, and all of the regulars here are used to it.  I've complained about this, but the moderators who have bothered to respond tell us that they have no ability to effect change, so we live with it.

 

Thank You

 

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... trying to concentrate on what if anything I can do about getting a copy of my mothers real will.

 

 

Then petition the probate court to order the custodian to produce the will.

 

(2) Upon petition and notice, the custodian of any will may be compelled to produce and deposit the will. All costs, damages, and a reasonable attorney’s fee shall be adjudged to petitioner against the delinquent custodian if the court finds that the custodian had no just or reasonable cause for failing to deposit the will.

 

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OK....SO

The Judge in the insurance case handed it over to a mediator. We each ( me, my sisiter and my brother) have to write her a statement saying what we can live with then she will give it to the judge to decide. She kind of hinted that if we cant mediate it then it willgo back to the judge and she could hold it up a long time. Im not sure how seriously to consider that. The thing is I still feel i am the legal benificiary and my sister is claiming A) that she paid for my mothers funeral and this wasto reimburse her 

BUT...i saw the canceled check and yes my sister gave the check to the funeral home but it was written on my mothers account so she didnt pay for it!

And she is claiming that because she was a former beneficiary she should get it.

 

Two thing i want to know though 

First of all she presented a packet of information to the FEDERAL judge in this case and part of that was a will that is definately fake and i can tell you any judge would throw it out...it was signed ten days before my mothers death and she was in a hospice bed full of morphine at the time which you can tell because the signature is just a scribble way off where it should be.....NOW i know that the will doesnt have any bearing on this case at all so it is irrellevant but here is what i am thinking...IF i was a federal judge and someone presented me with a fake will then i would consider that person suspect and throw their case out.....also there is the fact that my mother had ME as the sole benificiary on the insurance for a full 8 years before she died and she KNEW she had cancer and was terminal at least a year before she died and she still kept me as the beneficiary so to me that means she meant to keep me!

Of course no one knows what the actuall judge will decide but i feel i am rightfully the sole beneficiary here so if I say that to the mediator what are the odds the judge will consider these things?  

Ill tell you i am just really confused...if people can just claim insurance by saying the person said i could have it after they die then why dont more people do it? There should be clear rules set forth as to how to handle these cases.....why do insurance companies tell you it is ok to change the benificiary as much as you want if they are not going to abide by your wishes?

Anyone have any suggestions on what I should say in my statement?

 

Thank You all again...at least it seems to be moving forward now

 

Oh yeah and i forgot my brother is trying to get a share too even though he is not on the policy but the insurance company searched for him and informed him of the case so he wants some too....what can i do about that...he sure as hell doesnt deserve any,...he never filed a claim or anything like my sister did he just found out cause the insurance company found him trying to convolute things

 

I would seriously like to ask for 100%....would there be any chance that would bode well for me????

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Yes, you can state that as the designated beneficiary and according to law, you are entitled to 100% of the money and yes, you are likely to get it.  The purpose of mediation is to get the parties to come to some type of agreement in order to avoid  the expense and hassle of going through a long and drawn out trial.  The statements that your sister and brother will provide will never present a strong enough argument for them to get anything, and the mediator and the judge both know that.

 

You will look even better to the mediator and to the judge if your letter also includes a statement that out of kindness/generosity and in order to try to keep "family harmony", you are going to share a portion of the proceeds with your brother and sister (the amount you want them to have is up to you to decide:  you are going to offer them an amount of between 10% to 25%, with a limit of no more than 25% and there will be no long drawn out negotiations.  If you don't give them anything you will be facing more aggravation and harassment from both of them.

 

Get over the fact that you will never see the will and go on with your life.  At least you will have the satisfaction of knowing that your sister didn't get away completely with what she was trying to do and that you are the winner!!
 

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pixeltwistr,

 

So your sister provided a will? The scribbled signature is fine.Generally speaking, any marking can be someones signature as long as they intend that marking to be their signature. Most states require witnesses, does she also have those?

 

The FindLaw.com Team

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