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Where There’s a Will, There Isn’t Always a Way

Paul L. Kurth died in Missoula, Montana on January 26, 2000; he was 82 years old. At the time of his death he was living with his niece and her husband, Sinda and Marty Puryer. According to Mr. Puryer, two years prior to Mr. Kurth’s death, Mr. Kurth dictated his will to Mr. Puryer. In the will, entitled “Instructions and Last Will and Testament of Paul L. Kurth,” Mr. Kurth left everything he owned to the Puryers. The will was signed by Mr. Kurth and witnessed by Mr. Puryer and a long term care giver. In 2001, a year after Mr. Kurth’s death, Mrs. Puryer hired an attorney to administer Mr. Kurth’s estate. The attorney collected the personal assets of Mr. Kurth’s estate and distributed them to the Puryers, according to the holographic will of Mr. Kurth’s and an affidavit signed by Mrs. Puryer attesting to the legitimacy of the will.  Past that point of administration, the Puryers never formally probated Mr. Kurth’s will.

In addition to the Mr. Kurth’s personal property, he held a real property interest in mineral rights in eastern Montana. In 2013, thirteen years after Mr. Kurth’s death, an oil and gas company contacted Bruce Barstis, one of Mr. Kurth’s nephews, in hopes of leasing the minerals. Mr. Barstis promptly retained an attorney and notified all of Mr. Kurth’s heirs (he was never married and had no children, he was survived by three siblings and nine nieces and nephews) that his estate needed to be probated to effect the transfer of his real property interest. Mr. Barstis offered to act as the estate’s personal representative. As soon as Mr. Puryer received the notice from Mr. Barstis he filed a Petition for Formal Probate of Will and Appointment of Personal Representative.writing-1149962_960_720

Mr. Barstis challenged the alleged will on multiple grounds, including that the time for probate had passed and that the exceptions to the time frame did not apply. According to §72-3-122(1), a will must be probated within three years after the death of the decedent with some exceptions. If the will is not probated within that time frame and does not fit into one of the exceptions, then the will cannot be accepted for probate and the decedent is considered to have died intestate, meaning without a will. The District Court held that the time to probate the will had expired and that the Puryers did not meet the exceptions; therefore, Mr. Kurth died intestate and the estate must proceed under Montana intestacy statutes. The Puryers appealed the decision. The Supreme Court of the State of Montana affirmed the District Court’s decision.

Wills are a very important, if not the most important, legal document that one will create during one’s life. Understandably, many people do not like thinking about their death and making a will makes them face that issue head on. However, a will is the last time you can speak to your family and provide direction regarding the transfer of your assets after your death. As a resident in Florida, in order for your will to be valid, it must comply with Florida law.

Mr. Kurth had what is called a holographic will. Holographic wills are handwritten wills that are signed by the testator and do not have to be witnessed. Florida does not accept holographic wills or nuncupative wills, those are wills that are made verbally in the presence of witnesses.  In Florida, for a will to be considered valid it must be in writing, the testator must sign the will at the end, it must be witnessed by two attesting witnesses, and the witnesses must sign the will in the presence of the testator and each other. Fla. Stat. §732.502. While a self-proven affidavit is not required for a will to be valid in Florida it is an easy process and one that many Florida lawyers will include when drafting a will. A self-proven will (affidavit) is an affidavit of the Will’s authenticity that is signed by the testator, two witnesses, and notarized. Fla. Stat. §732.503(1).

Florida does not have a time frame in which a will must be probated. But once Notice of Administration is served, the party objecting to the will or filing a will contest, has three months (90 days) to file their objection. Fla. Stat. §733.212(2)(c). It is important to note that the three month time frame begins when the Notice of Administration is served, not when the decedent passed or when the will was submitted for probate.

Finally, if a will is found to be invalid, then the decedent is considered to have died intestate. Florida Statutes provide how the estate will be distributed if the decedent dies intestate. Florida Statues §732.102, §732.103, §732.105, and §732.106 governs to whom the decedent’s estate will be distributed if they die intestate. These statutes take into account if there is a surviving spouse, lineal descendants (children and grandchildren), collateral descendants (nieces, nephews, brothers, sisters, and parents), half-blood descendants, and afterborn heirs (children conceived before the decedent’s death, but born after the decedent’s death). Also, Florida law declares how the estate will be divided between the heirs, which is per stirpes. Fla. Stat. §732.104.

Here at the Dean Law Firm, we are well versed not only in drafting wills but also probating estates, and litigating will and trust disputes.  With over 83 years of combined experience, the attorney’s at Dean Law Firm are here to help you with your estate planning concerns and issues. Please call us at 352.387.8700 or visit our website at www.deanfirm.com.