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Florida Probate Blog

Yearly Archives: 2011

Florida Undue Influence Claim

Written by on Mar 23, 2011| Posted in: Probate Litigation

What is “undue influence?” Undue Influence claims challenge whether the testator made the Last Will and Testament freely and without being coerced by someone. An undue influence lawsuit relates to whether the decedent made his or her Last Will and Testament without being coerced by another person or persons. For example, a family member, friend, long-time employee, or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that person while excluding children, relatives and others who should receive the inheritance. Undue influence occurs when a person is compelled to perform an act (signing of a Last Will and Testament) as a result of improper pressure exerted upon him or her.

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Florida Will Contest

Written by on Mar 22, 2011| Posted in: Estate Litigation

What is a Will Contest? A will contest is a challenge to the Last Will & Testament submitted for probate on behalf of a decedent.  This firm represents both executors who have a fiduciary duty to defend a Last Will and Testament filed for Probate and heirs who feel they have been unfairly omitted from a Last Will and Testament. For those heirs who feel they have been unfairly omitted from a Last Will and Testament, challenging the validity of a Last Will and Testament in Florida can be done on many grounds. One of the most direct ways to attack a Last Will and Testament is to prove that it was not properly signed by the testator (the person who made his or her Last Will and Testament). A Last Will and Testament can be admitted into Probate and accepted by the court even though it was executed improperly. […]

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Florida Probate

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

Need legal advice relating to Florida probate? Someone recently stated that they needed legal advice for a Florida probate.  Florida probate matters come in many shapes and sizes.  Probate in Florida usually is a non-confrontational process of representing the Personal Representative of a Last Will and Testament by filing forms and complying with procedures.  However, sometimes legal advice in Florida probate matters may have nothing to do with forms and procedures but everything to do with contesting a Last Will and Testament or challenging a person’s mental capacity.  The term probate is being stretched to include trust disputes and guardianship matters, too.   With the explosion of material on the internet, clients are becoming very educated about what legal advice they need whether or not the traditional probate definition is applicable, but it is still recommended to consult with a lawyer who practices probate law in Florida.

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Probate Litigation

Written by on Mar 14, 2011| Posted in: Estate Litigation

CONVERSION OR CIVIL THEFT? Probate and Trust lawsuits, at times, involve someone holding a power of attorney who oversteps their authority and improperly takes possession of property, assets or money of another.  In this situation, they may have committed conversion and/or civil theft. The Restatement of Torts defines conversion as an intentional exercise of dominion and control over a chattel (property or asset) which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.  Under Florida case law, conversion is defined as the wrongful control of another person’s property, assets or money.  Seymour v. Adams, 638 So.2d 1044 (Fla. 5th DCA 1994).  The essence of the tort of conversion is the exercise of wrongful dominion or control over property, assets or money to the detriment of the rights of the actual owner.  Goodwin […]

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Gold Diggers Beware!

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

Florida enacts legislation allowing challenges to “deathbed marriages.”  It used to be that you could marry someone only moments before death and be vested with all the same rights and benefits as a spouse of 50 years.  Florida wised up to this type of predatory behavior and enacted Florida Statute §732.805, which became effective on October 1, 2010.  The statute allows an interested party to challenge a surviving spouse’s rights by alleging that the marriage was procured by fraud, duress or undue influence.  The burden is on the challenger to establish, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence.  The cause of action cannot be brought until the death of the person believed to have been coerced into marriage and is only available for four (4) years from date of death.  It will be interesting to revisit this blog after causes of action […]

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Florida Estate Tax

Written by on Feb 17, 2011| Posted in: General

Florida Estate Tax (Florida Death Tax) Prior to January 1, 2005, Florida’s estate tax system was commonly referred to as a “pick up” tax. This was because Florida picked up all, or a portion of, the credit for state death taxes allowed on the federal estate tax return (federal Form 706 or 706NA). Under this system, when the estate’s gross value was below the minimum federal estate tax filing threshold, estate tax was not due to Florida. Federal changes eliminated Florida’s estate tax after December 31, 2004. This happened because the federal credit for state death taxes on the federal estate tax return became a deduction for state estate taxes. Since Florida estate tax was based solely on the federal credit, after December 31, 2004 estate tax was no longer due. However, the personal representative of an estate may still need to complete certain forms to remove the automatic Florida estate tax lien.  Estates Required to […]

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Florida Medicaid 2011

Written by on Feb 5, 2011| Posted in: General

The asset and income numbers for 2011 are out: Gross Monthly Income for Medicaid applicants:  $2,022 Monthly Personal Allowance:  $35 Asset Limit (individual):  $2,000 Asset Limit (couple):  $3,000 Community Spouse Resource Allowance:  $109,560 Maximum Monthly Maintenance Income Allowance:  $1,822 Maximum Monthly Maintenance Needs Allowance:  $2,739

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Understanding the New Estate Tax Laws and Its Effects

Written by on Feb 5, 2011| Posted in: General

One of the first things that people should know regarding the federal estate tax is that this is a tax for “wealthy” people.  The majority of people, people who do not have millions of dollars in their bank account, should not fear that the federal estate tax will substantially deplete their loved-ones’ inheritance.  Additionally, Florida is one of the few states that does not have its own state estate tax, providing further incentive to reside here.   However, substantial changes occurred at the end of 2010 regarding the federal estate tax.  The government recently enacted new legislation known as the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, which provides for these key changes in the estate tax:  The current law applies only to decedents dying on or after January 1, 2010.  Estates which have less than $5 million ($10 million for married couples) are exempt from paying […]

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Am I a beneficiary?

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

HOW WILL I KNOW IF I AM A BENEFICIARY OF A DECEDENT? Pursuant to Florida Statutes, if you were named as a beneficiary of a decedent, the personal representative of the estate would notify you by serving you with a copy of the Notice of Administration of the estate of the decedent.  Pursuant to Florida Statue 733.212, the personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative, such as 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 affected by the outcome of the particular proceeding involved.  Under Florida Statute 731.201(2), a beneficiary means an heir at law in an […]

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End of Life Directives and Preneed Guardians in Florida

Written by on Jan 19, 2011| Posted in: General

Recently, it was reported that the percentage of people filling out living wills and healthcare surrogate forms has increased little since Congress enacted the Patient Self Determination Act ordering healthcare facilities to provide information to patients about advance directives. What are advance directives? With about 80 percent of deaths occurring in hospitals or nursing homes, you can use advance directives, in the form of a living will, to let their doctors and family know what kind of treatment you do not want in case you are incapable of making the decision.  A living will does not mean you want to forego life-saving treatment; it simply sets forth how you want, or don’t want, aggressive high technology treatment, feeding tubes, respirators, and other life support measures. Although the original health care bill provided that Medicaid could pay for consultations about end of life issues, this provision was unfortunately dropped as part […]

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