client portal
  • Blue Forbes logo
  • AVVO 10.0
  • Top 100 Lawyers badge
  • Daily Business Review Newspaper
  • Legal Elite 2012 Badge
  • Top Rated Lawyers
  • The American Lawyer, Adrian Philip Thomas

Florida Probate Blog

Yearly Archives: 2011

Removal of Personal Representative

Written by on May 16, 2011| Posted in: Estate Litigation

CAN A PERSONAL REPRESENTATIVE OF AN ESTATE BE REMOVED? Pursuant to Florida Statute 733.302, any person who is over the age of 18 years old, and is a resident of Florida at the time of death of the person whose estate is to be administered is qualified to act as personal representative in Florida. You may receive a copy of the Notice of Administration of an estate, which will indicate who is the acting Personal Representative of that estate.  Pursuant to Florida Statue 733.212, a copy of the notice of administration should be served on the following persons who are known to the personal representative:  the decedent’s surviving spouse, beneficiaries, the trustee of any trust and each qualified beneficiary of the trust, persons who may be entitled to exempt property, and interested persons.  Florida Statute 731.201(23) defines an interested person as “any person who may reasonably be expected to be […]

read more

Adoption and Inheritance

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

Adoption:  Inheriting From Both Sets of Parents.  Can You Really Have It Both Ways? Every year, thousands of orphaned children are adopted by foster families nation-wide.  Most of them lead normal lives with their adoptive families, not giving much thought about their natural parents.  After all, in most cases, the adoptive family is the only family they ever knew.  Now, for just a moment imagine that you are one of those children.  You live in Oregon where you were born (out of wedlock), adopted and raised; and you just discovered the shocking reality that your natural father never knew of your existence because your natural mother withheld the news of your birth from him resulting in your adoption without his consent.  Suddenly, the pre-conceptions you had about your real father (that he abandoned you) have vanished and are now replaced with questions about what would have been.  Then, you set […]

read more

Abuse of Power of Attorney

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

Power of Attorney Abuse is on the Rise. A power of attorney is a document that transfers legal authority to another person. The person granting the power of attorney is called a principal who gives another, known as the attorney-in-fact, the written legal authority to make decisions on a specific, narrow or broad range of topics. The potential for wrong doing exists in the power of attorney relationship through fraud, theft, improper transfers, self-dealing, improper gifting and retitled accounts and beneficiaries. Power of attorney holders can change beneficiary designations and account titles so the heirs are left with little to no inheritance. A power of attorney can also be abused when dealing with life insurance, annuities, bank accounts, joint accounts or pay on death accounts. Typically, an attorney-in-fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the power of attorney. An attorney-in-fact, however, […]

read more

Florida Wrongful Death and Probate

Written by on Apr 4, 2011| Posted in: General

Wrongful Death Suits during the Florida Probate Process In many probate cases that come to our office, we discover that the decedent died under somewhat unusual circumstances (medical malpractice, automobile accident, etc.) that may give rise to a wrongful death law suit.  Sometimes the filing of a wrongful death suit may be warranted during the pendency of the Florida probate process.  For example, we recently had been representing a client for relatively standard estate administration.  During this administration, a hospital filed a claim against the estate for an exorbitant fee for the one day of medical services they provided to the decedent who died while at this hospital.  After requesting and reviewing the itemized medical bill and records, we uncovered that the decedent died during a routine medical procedure, possibly due to the negligent act of the medical provider.  In order to bring a wrongful death suit, you must show […]

read more

Best Florida Probate Attorney

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

Who is the Best Florida Probate Attorney? A friend recently asked, “who is the best Florida probate attorney?”  While there are certainly some preeminent attorneys practicing in the area, the concept of “best” is subjective.  The question would be better phrased as “which probate attorney would best meet my needs?” When interviewing a lawyer to determine whether he or she can represent you in a estate, the best gauge of whether you are hiring the best probate attorney for you is to look at the level of education, length of time as a lawyer and the area of legal concentration.  The last is perhaps the most important factor of all when deciding which probate lawyer is best for you.  For example, not long ago a lawyer on the other side of a case was representing his client in a Will contest and my firm was defending.  The lawyer on the other side was struggling with […]

read more

Florida Probate Litigation

Written by on Mar 29, 2011| Posted in: Probate Litigation

What is Probate Litigation? In Florida, probate litigation is one of the most hotly-contested areas of the law; here, surviving family members use the judicial system to correct an array of injustices. Probate is the legal process by which a person’s debts are paid and assets owned by the decedent are distributed upon death. Probate litigation frequently arises in the context of a Will contest.  When a decedent has created a Last Will and Testament and it is offered for probate, Florida law grants creditors and heirs various rights, privileges and limitations that must be strictly followed. Usually, Florida probate litigation is first considered by a client when they receive a Notice of Administration alerting them that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred. Probate litigation is the broad concept of challenging the contents of the Last Will […]

read more

Undue Influence Florida

Written by on Mar 27, 2011| Posted in: Probate Litigation

New tricks for an old dog? As the seminal case of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), turns 40 years old, a review of the holding is warranted to see if whether it is withstanding the test of time.  To prove undue influence in Florida, a will or trust contestant must show that the decedent was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust.  Often in undue influence actions, the first and second items are stipulated to, as it is appropriate that a substantial beneficiary may have a confidential relationship with a decedent. While not exhaustive, the Florida Supreme Court provided seven criteria in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) in determining undue influence: 1) presence of the […]

read more

Deathbed Marriages

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

True love? Earlier this month, I blogged about Florida’s deathbed marriage statute, which was enacted in October 2010.  The American Bar Journal just reported a story about a lawyer in California who was suspended from the practice of law over her marriage to an elderly client.  Apparently, the lawyer had drafted a Will for the client leaving his estate to his relatives in Norway.  A couple of years later, they were involved in a relationship and the client gave the lawyer $339,000 with his relatives’ consent.  Subsequently, the lawyer and client got married but the client filed for divorce the same year because the two were not living together.  Shortly thereafter, the client was moved into a nursing home and died.  The State Bar of California suspended the lawyer who it found “took advantage of a lonely, sick old man.”  While the client was not literally on his deathbed at the […]

read more

Trustee’s Fee

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

What Is a Reasonable Trustee’s Fee?  Under the Florida Trust Code, “A Trustee is entitled to compensation that is reasonable under the circumstances.”  F.S. §736.0708(1).  Unfortunately, the statutes are devoid of any reference to what amounts to “reasonable” compensation or how to determine whether fees sought by a trustee are per se reasonable. Generally, compensation of a Trustee may be established in the Trust instrument or by separate agreement with the Trustee.  In the absence of either, the circuit court has jurisdiction to review and determine a trustee’s fees.  F.S. §736.0201(4)(c), (4)(g).  Even in certain situations in which the trust does specify the trustee’s compensation, the court may adjust that compensation if the trustee’s duties are substantially different from those contemplated when the trust was created or if the compensation specified is unreasonably low or high.  F.S. §736.0708(2).  As a result, whether or not the trust instrument provides for the […]

read more

Lack of Capacity – Will Contest Florida

Written by on Mar 24, 2011| Posted in: Probate Litigation

What does it mean to have lack of mental capacity or lack of testamentary capacity? Lack of Mental Capacity or Lack of Testamentary Capacity claims are based on the testator’s lack of mental capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and Testament generally means that the Testator understood the nature and extent of his assets […]

read more
Page 4 of 6123456

We can make a difference.
Call now for a complimentary consultation.
Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Suntrust Center
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301