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Florida Probate Blog

Yearly Archives: 2011

Reformation of Florida Trusts

Written by on Jul 25, 2011| Posted in: Trust Litigation

Section 736.0415 of the Florida Trust Code expressly provides that unambiguous provisions of a trust may be reformed where clear and convincing evidence shows that the language of the trust does not reflect the settlor’s intent, even where the evidence regarding the settlor’s intent is contrary to the trust itself: Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor’s original intent, the court may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument. See § 736.0415, Fla. Stat. […]

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Probate Litigation

Written by on Jul 13, 2011| Posted in: Probate Litigation

While most probate litigation involves challenging and defending wills and trusts, a recent case I handled dealt with the absence of an original will.  Florida probate law provides that when an original will that is known to have existed  cannot be located after the death of the testator there is a presumption that the testator destroyed the will with the intent to revoke it.  In other words, the law is presuming that a last will and testament is important enough to be kept in a safe place so it can be discovered after death.  However, in our firm’s case, the decedent was believed to have kept the original in his safe deposit box yet shortly after his death many potential intestate heirs had access to the safe.  An intestate heir is an heir who exists only when there is no last will and testament.  In our case, the decedent’s children from his first wife […]

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Will Contest Lawyer

Written by on Jul 11, 2011| Posted in: General

Florida Will Contest Lawyer People looking for a will contest lawyer in Florida often ask the following questions: Can a will be challenged during life? A will cannot challenged during a person’s life.  Will contests can only happen after death.  Sometime the person who made the last will and testament is still alive but are incompetent and in need of a guardianship.  Many times during the guardianship proceeding evidence about the drafting, creation, and signing the will can be preserved for a will contest after death.  Can a last will be contested if it was not properly signed? A will must be signed by the maker of the will and by two witnesses who saw the person sign the will (or who were told by the testator that he signed the will) and those two witnesses must also sign the will. Otherwise, the will is invalid and can be contested. […]

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Florida Probate Litigation

Written by on Jul 10, 2011| Posted in: General

Florida Probate Litigation Probate litigation often involves a will contest. Probate litigation is also a term used to describe a challenge to trust because trust disputes in Florida are litigated in the probate court.  Probate litigation, trust contests and Florida will contests are one of the most hotly-contested areas of the law, used by surviving family members to correct an array of injustices. Probate litigation is the broad concept which may include challenging: the validity of a Last Will and Testament; a provision within the Last Will and Testament; the terms of a Trust; the validity of a person’s other estate planning documents; the appointment of a personal representative (known in some states as an “executor”); the actions of a personal representative; or an elective share. Our law firm concentrates its practice in Florida probate litigation.  Visit our website www.florida-probate-lawyer.com for a detailed reference on most probate and trust litigation topics.

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Florida Probate Blog

Written by on Jul 8, 2011| Posted in: General

Florida Probate Blog My law firm contributes relevant topics to our law firm’s Florida probate blog which are designed to educate and inform both lawyers and non-lawyers.  Blogs dealing with probate and trust issues are not designed to legal advice concerning estates, probate, guardianship or trust litigation issues, but are intended as a general introduction to the specific area of concern. Our previous blogs include topics dealing with: Probate Litigation Estate Litigation Trust Litigation Guardianship Litigation Wrongful Death Litigation Undue Influence Lack of Mental Capacity Probate Administration Probate for Resident Aliens / Non-US Citizens Ancillary Probate Matters Elective Share Option Power of Attorney Will Contests Breach of Fiduciary Duty/ Heir & Beneficiary Rights If you would like to subscribe to our Florida Probate Blog, you can input your email address under “subscribe” or click on the RSS feed button.

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CREDITORS AND SOLVENCY IN THE PROBATE PROCESS

Written by on Jul 7, 2011| Posted in: General

Let’s say your father passed away with $200,000 in his estate and you are the only heir.  If your father had owed money on the date of his death, the estate would be obligated to satisfy that creditor prior to you obtaining your inheritance.  Florida law provides that a devise (distribution) owed to a beneficiary is subject to charges for debts, expenses, and taxes.  In our example, if the creditor claim was for $100,000, it would be paid first, and you would then inherit the $100,000 remaining in the estate.  However, what if your father only had $90,000 on the date of his death, yet still had the $100,000 creditor?  Unfortunately, your father’s estate would be insolvent and your inheritance may be completely wiped out.  Now suppose that the person who owes the estate is a child who convinced his father to make a quick change to his last will […]

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Trustee Removal Action

Written by on Jun 6, 2011| Posted in: Trust Litigation

Can I fire my trustee? We receive numerous inquiries from clients asking, “How can I fire my Trustee?”  In Florida, “firing a Trustee” is called a trustee removal action, through which an interested party may seek to remove a trustee of a trust, sometimes for reasons other times for no cause.  Florida Trust law contains specific statutes which address the removal of trustees. According to Florida Statute §736.0706, removal of a trustee may be sought by the settlor, a co-trustee, or any beneficiary. In addition, a court may remove a trustee on its own. Grounds for removal include a serious breach of trust, lack of cooperation among co-trustees, and unfitness, unwillingness, or persistent failure to effectively administer the trust. Any action to remove a trustee on these grounds would be considered a removal “for cause.” Florida Statute §736.0706, also permits the removal of a trustee without cause at the request […]

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Florida Homestead Law

Written by on Jun 3, 2011| Posted in: General

Florida Homestead Law Update On October 1, 2010, Florida Statute 732.401(2) was added to update Florida Homestead law, as least partially in response to the escalating insurance and property tax rates in recent years. Under the old Florida Homestead law, if a decedent did not devise his  homestead property pursuant to the requirements of the Florida Constitution and was survived by a spouse and at least one lineal descendant, then the surviving spouse would receive only a life estate with the remainder passing to the descendant(s). A life estate might sound great, but it comes with many financial responsibilities, including: property taxes, insurance, special assessments (if applicable), mortgage interest, etc.  Furthermore, if the remainder beneficiaries refused to agree to sell the property, there was not much recourse for the surviving spouse. The new Florida Homestead law allows a surviving spouse to elect to receive a tenant-in-common, one-half interest in the decedent’s […]

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Emergency Temporary Guardianship

Written by on May 23, 2011| Posted in: Guardianship Litigation

Elder Law Concepts is not always for the Elderly.   In some cases, a parent may see their child go through a sudden, unexpected fight with cancer; a brother may be trying to take advantage of his wealthy but impaired sibling by stealing his financial assets; or a daughter might have witnessed the advisors of her mentally incompetent mother conspiring to misappropriate her assets.   There may be circumstances where immediate action is necessary in order to protect the health and/or financial welfare of such a person.  In these cases, an adult interested in the welfare of a loved-one may wish to petition the court for an emergency temporary guardianship (ETG).  While, the typical ETG is used for incapacitated senior citizens, there are scenarios with teenagers and other young adults who may be abusing drugs and/or alcohol as to warrant the imposition of an emergency temporary guardianship.   §744.3031 (1), Florida Statutes, […]

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Inheritance for a Minor Child: Role of Guardian ad Litem

Written by on May 18, 2011| Posted in: Estate Litigation

How can a minor child inherit from an estate?  In Florida probate,  money and property is often left  to minors.  These gifts to minor can be through  a will or trust, or a child can take through intestacy (where there is no will).  However, Florida probate laws often requires that a guardian ad litem be appointed to represent the minor child’s financial interest. While Florida has laws for guardians of persons and property, oftentimes a minor only needs to have a Guardian Ad Litem appointed.  For all civil matters generally, a court must “appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or…make such other order as it deems proper for the protection of the infant or incompetent person.”  Fla. R. Civ. P. 1.210(b).  Recently my office represented a client is a trust termination case which came from an undue influence contest.  […]

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