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The Law Offices of Adrian Philip Thomas

  • PER STIRPES vs. PER CAPITA

    August 31st, 2010

    Posted by Adrian P. Thomas

    Last Will and Testament

     Hypothetical #1:               When Aunt Minerva died, she had no husband or children, but did have a valid Will, which was probated.  Her living descendants were her niece, Angela, her nephews, Barry and Charles.  They were over the age of 18 years old at the time of Aunt Minerva’s death.  When Aunt Minerva died, Angela had two children, Donald and Evelyn.  If Aunt Minerva’s Will stated that all of her estate was to be distributed to her then living descendants, per stirpes, then her niece, Angela, and her nephews, Barry and Charles each would receive a 1/3 share of her estate.  Angela’s children, Donald and Evelyn, would not receive anything from the estate.  Pursuant to Florida Statute 731.201(9), a lineal descendant or descendants mean “a person in any generational level down the applicable individual’s descending line.”  Adopted children come within the definition of lineal descendants.  The term “descendant” is synonymous with the terms “lineal descendant” and “issue”, but excludes collateral heirs.  Florida Statute 731.201. Read the rest of this entry

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  • Convenience Account or Inter Vivos Gift?

    August 15th, 2010

    Posted by Adrian P. Thomas

    A LESSON IN TRUST…

    We often come across cases in which a Will or a Trust leaves assets equally to all of the Decedent’s children. However, at the time of death, most of the Decedent’s assets are held in joint accounts with only one of the children named as a joint owner, thereby entitling only one child to the entire account as the remaining joint owner and avoiding the equal distribution that the parent planned through his or her Will and/or Trust.

    Unfortunately, the account title tends to control, despite the understanding that the child receiving the account as joint owner had been placed on the account for convenience purposes only to help mom or dad pay bills, as needed; not to receive all of the assets upon their death. Parents believe their children would never cut out their siblings but this is sadly not always the case. Read the rest of this entry

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    Posted in General, Probate Litigation, Trust Litigation | No Comments »

  • Can Step Children Inherit Property in Florida?

    August 10th, 2010

    Posted by Adrian P. Thomas

    A recent case from the 5th District answers the question of when, and under what circumstances, can step children take an inheritance and disinherit lineal descendants.  See Timmons v Timmons  35 Fla.L.Weekly D1264 (Fla. 5th DCA Case No. 08-4103). 

    When Frank died in 1999, he was married to Myrtle and had two adopted children from a previous marriage.  Myrtle had four children, none of which was ever adopted by Frank.  Frank created two trusts, a family trust and a marital trust.   Myrtle was the sole income beneficiary of the trusts during her lifetime, and upon her death, the marital trust was to pour over into the family trust.  The marital trust provided that upon Myrtle’s death, the trust’s remaining principal would pour over into the family trust and be distributed in accordance with the terms of the family trust.  The family trust provided that upon Myrtle’s death, the trust assets were to be divided “into as many equal shares as there are children of mine then living and deceased children of mine leaving issue then surviving.”  Read the rest of this entry

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  • Elective Share Contribution Obstacles

    July 29th, 2010

    Posted by sgp

    While election and determination of elective share may not pose a problem, enforcing contribution from beneficiaries can.

    Under the Florida Probate Code, when a person’s spouse dies, the surviving spouse has the right to take an elective share pursuant to Florida Statute § 732.201.  An elective share is essentially Florida’s way of insuring that some money or property is left to the surviving husband or wife. The elective share estate includes not only probate assets but many assets which are designed to pass outside the probate estate.  Pursuant to Fla. Stat. § 732.2065, the elective share is equal to 30% of the elective estate.  A significant amount of litigation occurs regarding the elective share.  Read the rest of this entry

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  • Notice to Creditors

    July 6th, 2010

    Posted by Adrian P. Thomas

    DETAILS ON NOTICE TO CREDITORS IN FLORIDA PROBATE ESTATES

                The Personal Representative of an Estate must promptly publish a Notice to Creditors pursuant to Florida Statute 733.2121.  The Notice should contain the following:

    1)    The name of the decedent;

    2)    The file number of the estate;

    3)    The designation and address of the Court in which the case has been filed;

    4)    The name and address of the Personal Representative of the Estate;

    5)    The name and address of the Personal Representative’s attorney; and

    6)    The date of the first publication.  Read the rest of this entry

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  • Trustee Compensation

    June 30th, 2010

    Posted by Adrian P. Thomas

    COMPENSATION OF TRUSTEES WHO ARE ALSO BENEFICIARIES

    In a recent Florida Second DCA case, Burgess v. Prince, 25 So.3d 705 (Fla. 2nd DCA 2010), the Court determined that a Trustee of a family trust, who was also a Trust beneficiary, was entitled to compensation for her management of Trust assets, despite the fact that the trust instrument provided that a beneficiary of the Trust could not receive compensation for serving as Trustee.  The trial court removed the Trustee and ordered that she may not be compensated for managing a business, which was a trust asset, and all compensation she received would be charged against her distributive share of the Trust.  See Id.  On appeal, the Appellate Court upheld the removal without discussion but reversed a part of the final judgment which ruled the Trustee could not be compensated for managing the business which was a trust asset.  Although the trust instrument provided that a Trustee who is also a beneficiary shall serve as Trustee without compensation, the Appellate Court found that the Trustee received compensation from the trust for operating the business, rather than as compensation as Trustee.  In ruling, the Appellate Court relied on language in the trust instrument which plainly stated that the Trustee can employee various individuals, including any Trustee, if such employment was deemed necessary or desirable and to be paid reasonable compensation for their services.  In addition, the trust instrument had language which allowed a Trustee to employee any beneficiary or individual fiduciary in any capacity. Read the rest of this entry

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  • Trust Reformation

    June 23rd, 2010

    Posted by Adrian P. Thomas

    Breathing Life Into An Otherwise Unenforceable Trust Instrument

    The following is based on real events, only the names have been changed to protect the guilty. 

    Jane Settlor created her revocable trust in 2005, naming herself as the initial trustee and sole income beneficiary during her lifetime, and upon her death, the remainder of the trust estate is to be divided amongst numerous individuals (some family, some not), charities and a charitable foundation that she created.  The drafting attorney, John Lawyer, is also the nominated successor trustee and the CEO of Mrs. Smith’s charitable foundation.

    A couple years after executing her trust, Jane Settlor pulled out her estate planning documents to re-review her estate plan.  Upon reviewing her revocable trust, and to her surprise, she noticed that many of the residuary beneficiaries of her trust were people that she hardly knew at all, and should not have been included as beneficiaries of her trust.  Mrs. Settlor immediately began crossing out names and devises, and interlineated (in her own handwriting) new names and devises.  Next to each interlineated change, Mrs. Settlor handwrote her initials and the date.  She then made some handwritten notes on the front page of the trust instrument, which read as follows:  “Mr. Lawyer, I read my trust today, and I couldn’t believe what I saw.  There were people named who I hardly even know.  I was so sick at the time I signed the trust, that I didn’t even know what was being presented to me for my signature!!!”  Read the rest of this entry

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  • More than a Merely Perfunctory Matter

    June 21st, 2010

    Posted by Adrian P. Thomas

    Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party

    Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences. 

    An example of one of the plain and simple rules of litigation is that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost

    When counsel files a suggestion of death, opposing counsel should (a) contact opposing counsel for information regarding the date and place of death, and such information as opposing counsel may have regarding whether an estate has been opened, or (b) propound discovery directed at obtaining the same information, or (c) both.  Generally, if the decedent’s estate has been opened, then the personal representative should be substituted in place of the decedent; however, if no estate has been opened, then another appropriate representative, such as a guardian ad litem, will need to be substituted.  Failure to substitute the proper representative or guardian nullifies subsequent proceedings. Read the rest of this entry

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  • Having a Missing Person Declared Dead

    June 21st, 2010

    Posted by Adrian P. Thomas

    Under Florida law, “a person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. “  F.S. 731.103 (3)

    Florida law does not preclude the establishment of death by direct or circumstantial evidence prior to 5-years.

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  • Florida Trusts and Real Property

    June 17th, 2010

    Posted by sgp

    What’s a beneficiary to do?

    Many people utilize revocable trusts in an effort to avoid probate.  Often, the primary asset of a revocable trust is real estate.  The person who signs the trust (Settlor) customarily chooses the individual(s) to serve as a successor trustee upon the Settlor’s death or incapacity.

    Once the Settlor dies and a successor trustee accepts the position, a set of laws mandates the trustee’s conduct under Florida law.  These laws are found in Chapter 736 of the Florida Statutes, also known as the Florida Trust Code.  In particular, sections 736.0801 (duty to administer trust), 736.0802 (duty of loyalty) 736.0803 (impartiality), and 736.0804 (prudent administration) are triggered.  The Florida Trust Code was modified substantially in recent years and the current version took effect on July 1, 2007.     Read the rest of this entry

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    Posted in Trust Litigation | 2 Comments »