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Florida Probate Blog

Yearly Archives: 2011

Florida Power of Attorney

Written by on Sep 29, 2011| Posted in: General

THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY, AND CHANGES TO FLORIDA STATUTE 709 AS OF OCTOBER 1, 2011:  PART I. Nearly all men can stand adversity, but if you want to test a man’s character, give him power.  Abraham Lincoln Recent legislation has conformed Florida’s Power of Attorney Statute 709 to the Uniform Power of Attorney Act, with certain modifications, in an attempt to achieve greater consistency among the 50 states and Washington D.C.  On May 4, 2011, the Florida legislature passed Senate Bill 670, on June 21, 2011 the Florida Power of Attorney Act was signed into law by Governor Scott, and it became effective October 1, 2011.  Florida Statute 709 applies to powers created by individuals (with four exceptions), and does not apply to powers created by entities or corporations.  Florida Statute 709 applies to all Powers of Attorney used in Florida and governed by Florida law.  […]

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Florida Inheritance Disputes

Written by on Sep 19, 2011| Posted in: Probate Litigation

Quite frequently, as an inheritance lawyer who handles lawsuits with last will and testaments and codicils, I am asked questions regarding Florida inheritance disputes and the procedures for proving a lost or destroyed will. To establish and probate a lost or destroyed will, the specific content of the will must be proved by the testimony of two disinterested witnesses or, if a correct copy is provided, it must be proved by one disinterested witness.  In one court case involving a Florida inheritance fight, a lawyer provided a copy of the missing will to the court and presented a disinterested witness who testified that it was a correct copy.  Even though there was conflicting testimony by the other witness (who stood to gain if the will was rejected) that the will was later revoked by the decedent, the Court still found the lost or destroyed will could be admitted to probate. […]

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The Trustee’s Duty to Inform

Written by on Sep 15, 2011| Posted in: Trust Litigation

The Trustee’s Duty to Inform and Account The trustee is the person with legal title to trust assets; however, the trust beneficiaries are the true owners of the trust assets.  The trustee has a legal duty to inform and to account to the beneficiaries and the trust beneficiaries are entitled to inspect all documents and papers relating to the trust. The existence of a legal duty is important because it gives beneficiaries rights and remedies and exposes a trustee to liability for breach of those duties. In Florida, the trustee’s duty to inform and to account is found in the Florida Statutes (Florida Trust Code) at §736.0813, which states that the trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.  This duty includes notifying the beneficiaries of the trustee’s name and address, notifying the beneficiaries of an irrevocable trust that the trust […]

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Florida Intestate Estates: Spousal Shares

Written by on Sep 12, 2011| Posted in: Estate Litigation

New Changes to Spousal Shares in Florida Intestate Estates Beginning October 1, 2011, new rules regarding Florida Intestate Estates will go into effect, drastically changing what happens in estates involving spouses who die without a Will. Florida law has long recognized the rights of married persons whose spouse dies intestate, or without a Will. The surviving spouse’s share was determined based upon whether the deceased spouse had children, and whether those children were also the children of the surviving spouse. Under the current law, Florida Statute §732.102, the intestate (without a Will) share of the surviving spouse is: (1)  If there is no surviving descendants of the decedent, the entire intestate estate. (2)  If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated […]

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Florida Guardianship, Part 3

Written by on Sep 1, 2011| Posted in: Estate Litigation

There are certain procedures that need to be followed in seeking the determination of incapacity and the appointment of a guardain.  Needless to say, they are quite stringent.  Florida courts understand the gravity of implementing a guardianship and do not take such a course of action lightly.  The relevant statutes in determining incapacity are found in Chapter 744, Florida Statutes, along with the Guardianship Rules within the Florida Probate Rules. The first step in the process is having your attorney file a petition to determine incapacity.  This petition must be filed in the county where the alleged incapacitated person resides or is found.  In addition, it must be signed by the party seeking such a determination under penalties of perjury (also known as a “verified petition”).  Pursuant to Fla. Stat., 744.3201(3), a petition for appointment of a guardian must be filed simultaneously with the petition to determine incapacity.  If the […]

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Abuse of the Elderly

Written by on Aug 24, 2011| Posted in: General

Elder Law – Abuse of the Elderly In the context of trust and estate litigation, clients occasionally believe the conduct of others rises to the level of criminal liability.  While filing a lawsuit for breach of fiduciary duty or undue influence can help the client collect money, there are times that a client believes that getting money is insufficient.  Short of requesting charges be filed by the police or State Attorney, there is a Florida law that is commonly referred to as the abuse of the elderly statute that goes beyond the traditional recovery of money when a senior adult is abused. The elder abuse statute (Florida Statute §415.1111) allows for the prosecution of abuse, neglect or exploitation on behalf of a vulnerable adult against any perpetrator.  Such an action pursuant to the statute must be brought by the vulnerable adult, that person’s guardian, by a person or organization acting […]

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Florida Power of Attorney

Written by on Aug 16, 2011| Posted in: General

THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY With Great Power Comes Great Responsibility.  Voltaire There are important differences between standard powers of attorney and durable powers of attorney but each document is ripe for being abused.  A standard power of attorney document provides the authority for another person  (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and not able to pay bills or banking transactions or the principal plans to travel and needs to have documents signed while away, then the ordinary or standard power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf.  A standard power of attorney would become invalid if the principal became […]

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Florida Guardianship

Written by on Aug 10, 2011| Posted in: Guardianship Litigation

After a judicial hearing is held and the ward is found to “lack the capacity to manage some or all of his/her property or to meet at least some of the essential health and safety requirements of such person”(§ 744.102(12), Florida Statutes), the proceeding for an involuntary guardianship is implemented.  The Court may appoint either a plenary or limited guardian, depending on the extent and severity of the ward’s incapacity.  In a plenary guardianship, all of the Ward’s delegable rights are delegated to the guardian; no rights are reserved for the Ward.  § 744.102(9)(b), Florida Statutes.  These delegated rights are found in § 744.3215(3)(a-g) and include the following: to contract; to sue and defend lawsuits; to apply for government benefits; to manage property or to make any gift or disposition of property; to determine his or her residence; to consent to medical and mental health treatment; and to make decisions […]

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Florida Probate Litigation: Stealing from an Estate

Written by on Aug 9, 2011| Posted in: Probate Litigation

My probate practice regularly performs cleaning services for the messes caused by maladministration of estates by fiduciaries.  Unfortunately, with increasing frequency, estates and their beneficiaries are victimized not only by negligent fiduciaries, but by attorneys who steal from the estates. For example, one attorney was recently charged with stealing more than $300,000 in guns, jewelry and art from a friend who died of cancer.   A beneficiary named in the will contacted police after receiving nothing from the estate.    Evidently, the lawyer was unsuccessful in attempting to be appointed personal representative of the estate.  Further, the lawyer was charged with forgery for allegedly signing the decedent’s name on a check two days after the man passed away.  Finally, the lawyer was charged with perjury for allegedly claiming to be executor of the estate when he re-registered several guns in his name. Misconduct by Florida attorneys involved in handling wills and trusts […]

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Wills and Probate: Selecting a Good Probate Lawyer

Written by on Jul 26, 2011| Posted in: General

If you need a good probate lawyer, it’s because someone has died and either the estate needs to be administered or there is a dispute over a last will or a fight over a share or portion of the estate.  While there is no guarantee that the lawyer you are hiring is “good,”one method of increasing the odds of hiring a competent probate attorney to check whether your lawyer has a Martindale Hubble rating that is at an acceptable level to you. Martindale-Hubbell Peer Review Ratings reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. For lawyers rated with the changed methodology the Martindale-Hubbell Peer Review Ratings will reflect the following: General Ethical Standards Rating. The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities.   […]

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