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johnbsims3
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# Posted: 19 Oct 2006 17:26 - Edited by: johnbsims3
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Real Cases In Progress, Issues and Help Requested
This forum is for issues that you have pending and need professional help or advice on how to proceed, and what to do. Please do not post personal information or information that would jeapordize your case!
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Dan
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# Posted: 16 Dec 2009 16:36
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Dear John,
This piece of law seems very unexact. In my father's estate, we have a very complex case.
There was a widow of 2 days that was not included in the will.
There were three children, all above the age of 18, but one that was 21 and still legally a dependent. They were willed all assets equally.
The law says the widow has "a life estate" and the children have "a vested remainder" of the house. What exactly do these terms equate to in financial terms? The estate lawyer has said that would be roughly 80% widow, 20% children (because the widow is young, in her 50s). I searched for hours for some obvious piece of legislature with a table or an equation on how to calculate this percentage, but it looks like the law is pretty pathetic, unless I'm missing something. Is there an equation I am missing? What cases can you refer me to that would serve as precedents on which to anticipate a percentile?
Thanks!
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johnbsims3
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# Posted: 16 Dec 2009 17:44
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Dan,
I assume this is what you are referring to:
Fla. Stat. 732.401 Descent of homestead.--
(1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent's death per stirpes.
(2) Subsection (1) shall not apply to property that the decedent and the surviving spouse owned as tenants by the entirety.
732.4015 Devise of homestead.--
(1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner's spouse if there is no minor child.
(2) For the purposes of subsection (1), the term:
(a) "Owner" includes the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor's death as if the interest held in trust was owned by the grantor.
(b) "Devise" includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor's homestead.
As far as a percentage, I don't see how the attorney gets 20% out of 3 siblings. The widow should get 100% and when she dies, the siblings slit the estate equally...
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Dan
Member
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# Posted: 16 Dec 2009 18:12
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Hey John,
Thanks for the answer. I was in fact referring to "732.401". The estate lawyer lead us to believe that if the descendents (3 children) and the spouse agreed to sell the house, the money from the sale would be split based on some agreement and calculation between judge, lawyers, and involved parties. He said that a monetary value could somehow be assigned to the "life estate" based on the age of the spouse of the decedent (she is 54 so he said it would be a high value), and the vested remainder would be aprox. 20% of whatever the house sells for. He seems to think that she does not in fact outright own the house, but a life estate could somehow be equated to a value. Do you think this isn't true? Right now the estate is preventing the house from foreclosing by paying for the mortgage. The assumption was that the estate had an interest in the sale of the house, and therefore had good reason to keep the house from foreclosing. Is this an incorrect assumption?
Thanks!
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johnbsims3
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# Posted: 16 Dec 2009 18:17
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I am not sure on this. The judge may have some case law precedent he is relying on. Can you ask the attorney? Any agreement or calculation between Judge, attorney and others may not be the right thing...A monetary value should be based on an appraisal. Why does he come up with 20%? Ask some questions and I will inquire with our lawyer.
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