Is Signed Consent The Same Thing as A Written Agreement When It Comes to Changing Your Estate Share?

When it comes to probate proceedings, most are uncontested. In virtually every respect, this is a good thing. However, there’s a downside. Since nobody is contesting anything, mistakes can happen. For example, the family may consent to a homestead order against the will of the decedent. If everybody affected by this error agrees to live with it or undo it, there’s no problem. Yet, if a conflict arises, fixing the mistake can be a major issue.

The Mullins v. Mullins Case

One example of a problematic issue in this regard is the Mullins v. Mullins case. The woman in question died, and her daughter and two sons survived her. In her will, the decedent issued instructions that permitted her sons to continue living in her home. The arrangement was that they would sell the house once they decided to go their separate ways. They would then divide the proceeds of the sale as agreed by the three children. Unfortunately, this led to a host of problems.

On appeal, the 5th DCA construed the mother’s will as having devised a life estate in the homestead property to the two sons. It also deemed the three siblings were to receive a remainder interest. During the process of the probate proceedings, all three siblings agreed to enter a homestead order. This devised the property equally to all three. There was no reference made to the homestead’s life estate. This was an error.

Soon after his mother died, one brother prevented the others from occupying the property. This prompted his sister and brother to petition the probate judge seeking a partition order to force a sale. This would allow everybody involved to go their separate ways peaceably.

The brother causing the problem contested the order. He pointed to his inheritance of the life estate in the house that was in his mother’s will. This barred the type of sale that his siblings now wanted to force. Ultimately, the brother and sister succeeded in obtaining a partition order when it went to court. The court deemed that when their brother consented to the erroneous homestead order, it was equivalent to a written agreement. This meant that he waived his life estate under F.S. 733.815.

Is A Written Agreement the Same Thing As A Signed Consent?

The answer to this question is a definite no. It’s completely acceptable and legal for the beneficiaries of an estate to agree with each other. They can divide up their inheritances in any way they wish. The property they’ve inherited is their own. This means they can do anything they wish with it. 

F.S. 733.815 provides the statutory vehicle that allows the courts to do these deals during the probate proceedings. So long as those deals are in writing, the court can execute them while probate is ongoing. 

In the Mullins v. Mullins case, the consents the siblings signed omitted key references. There was no mention made of agreements to change the shares, amounts, or interests to which they were to receive. This means no contract existed between them. As a result, the consents that the brothers signed didn’t constitute their agreement to reject the life estates. Their consents only established that they consented to the order that confirmed their homestead exemption. They agreed to nothing else. 

Drawing Up A Clear Will

As the above case shows, it’s clear that ensuring clarity of your will is paramount to avoid future issues. An experienced Florida probate attorney can help you draw up a clear will to properly distribute your assets. Contact Thomas McDonald Law today to find out more about how we can help you with this.

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