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Saturday, September 10, 2005

Joint Property Conversion and Need to File Claim in Probate [Florida]

Generally, anyone who believes a decedent owes him or her property must file a claim against the decedent’s death within 90 days of publication of a notice to creditors. Florida law allows for an exception where fraud exists, estoppel applies, or there is insufficient notice of the creditors period.

In a recent case, a decedent transferred property in a joint account to an account in his own name before his death. The joint tenant, his wife, did not file a timely claim against the estate. She came up with two principal defenses to her failure to file a timely claim.

The first was that under the "trust exception," a claim did not need to be filed. The trust exception generally provides that if the decedent was holding property in trust for someone, a timely probate claim need not be filed to obtain that property by the beneficiary. However, the Appeals Court recognized that the "trust exception" has been restricted to express trusts, and no longer applies to constructive or resulting trusts and would not apply in this case.

The wife also tried to claim that this situation is not a claim against an estate, but simply a determination of who owns property. The Appeals Court did not accept his argument either, finding that many creditor issues regarding property are really claims of unlawful possession or theft and should be cast as claims against the estate.

DEBRA JEAN SCOTT, v. MELISSA SCOTT REYES, Appellee. 2nd District. Case Nos. 2D04-4610 & 2D04-5345. Consolidated. Opinion filed September 9, 2005

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