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Florida Probate Blog

Yearly Archives: 2012

Capacity to Create a Trust in Florida

Written by on Sep 21, 2012| Posted in: Guardianship Litigation

Florida guardianship lawyers frequently encounter disputes in connection with what rights a vulnerable adult should have judicially delegated to a guardian.  Those disputes often develop into contests regarding the duration of those delegated rights and whether and to what extent the rights can and should be restored to the alleged incapacitated person.  Many factors and variables enter the legislatively created mechanism for determining these issues. Sometimes, prior to, during, and even after incapacity proceedings, the Florida guardianship lawyer will discover that a family member or other person has orchestrated the execution of a will or trust by the alleged incapacitated person.  These situations present difficult legal and ethical issues for the Florida guardianship attorney. The Florida Trust Code contains a section providing that “a trust is created only if: (a) the settlor has capacity to create a trust.”  §736.0402(1)(a).  Proceedings to determine the competency of a person are controlled by […]

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Homestead Property and Joint Ownership

Written by on Sep 17, 2012| Posted in: Estate Litigation

  HOMESTEAD PROPERTY AND JOINT OWNERSHIP “The home to everyone is to him his castle and fortress, as well for his defense against injury and violence, as for his repose.”  Edward Coke. Recently, new case law has established that exactly how the Deed is worded it is very important in the determination of whether the property was a homestead property when one of the owners of the property dies.  Article X, section 4( c) of the Florida Constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.”  If a Florida resident acquires property as a joint tenant with rights of survivorship while he has a minor child and lives in the primary residence, the property will not be deemed the decedent’s homestead, as it passes entirely at the time of his death to the other joint tenant. The recent […]

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Inheritance Rights of Former Spouse

Written by on Sep 10, 2012| Posted in: Probate Litigation

As a Florida probate attorney, it is customary to encounter issues and disputes arising from a former spouse of the decedent.  For some time the Florida Legislature has provided a statutory scheme which provides a presumption preventing former spouses from inheriting from wills and revocable trusts (Florida Statutes §§ 732.507(2) and 736.1105, respectively).  Florida Statute 732.507(2) provides that any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage, absent the will or dissolution or divorce judgment expressly providing otherwise. Similarly, Florida Statute §736.1105 provides that a revocable trust executed by a spouse prior to annulment or dissolution of the marriage becomes void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce, absent the trust instrument or a judgment […]

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Broward County Trust Litigation

Written by on Aug 2, 2012| Posted in: Estate Litigation

Broward County Trust Litigation cases are filed in the Seventeenth Judicial Circuit in Fort Lauderdale, Florida.  Broward County cities include:  Coconut Creek, Cooper City, Coral Springs, Dania Beach, Davie, Deerfield Beach, Fort Lauderdale, Hallandale, Hollywood, Lauderdale-by-the-Sea, Lauderdale Lakes, Lauderhill, Lighthouse Point, Margate, Miramar, Plantation, Pompano Beach, Pembroke Pines, Sunrise, Tamarac, and Weston. For more information about various Broward County Trust Litigation causes of action, click here. If you have a Broward County Trust Litigation question, call the attorneys at Adrian Philip Thomas, P.A. for a no obligation consultation at 800-249-8125.

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Aronson v. Aronson

Written by on Jul 24, 2012| Posted in: Probate Litigation

WHEN OUT-OF- STATE ESTATE PLANNING DOCUMENTS DO NOT ACHIEVE THEIR OBJECTIVES UNDER FLORIDA LAW  “There is nothing more important than a good, safe, secure home.”  Rosalynn Carter             Often, out-of-state residents own property in Florida, and have their estate planning documents prepared out-of-state, without consulting with competent Florida counsel to inquire if their estate planning documents will achieve their objectives and goals under Florida Law.             In July of 1996, Hillard J. Aronson resided in Massachusetts with his second wife, Doreen Aronson, and Mr. Aronson was the owner of a condominium located in Key Biscayne, Florida.    He decided to create a revocable trust in which he was both a life beneficiary and a trustee, and upon his death, his trust created a life-time irrevocable martial trust for his wife, Doreen, with remainder to his two sons from his prior marriage.  Mr. Aronson then deeded the Florida condominium to himself as […]

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Florida Trust Litigation

Written by on Jul 6, 2012| Posted in: Trust Litigation

There are many times when trustees, beneficiaries, or others with an interest in the trust’s assets will challenge the terms of a trust, the actions of a trustee, or the validity of the entire trust instrument itself and lawsuits will be filed. Florida Trust Litigation situations can include: Trust Contests – Sometimes beneficiaries and/or people excluded from a trust will file a law suit challenging the legal validity of a Trust. They may do so in any number of ways, such as asserting mistake in execution, undue influence or lack of capacity.  The causes of action for a trust dispute or trust contest are substantially similar to those for a will contest. Trust Construction – There are occasions when a Trust contains language that is confusing or even contradictory.  Mistakes can be made, or ambiguities can arise, when Trusts are prepared. Afterwards, a lawsuit may be needed in order for […]

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Possession of Homestead by Personal Representative

Written by on Jul 2, 2012| Posted in: General

Possession of Homestead by a Personal Representative Homestead, in the estate and trust context, is the real property owned by a decedent at the time of death, which was used as his primary residence at the time of his death. As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that it can be devised to the spouse if not survived by minor children. If not survived by a spouse or minor child, the decedent is free to devise the property as he wishes. Typically, if homestead property is devised to an heir or descendant, as permitted by law, it vests in said heir or descendant immediately upon death and is not considered an asset of the estate. In many cases, the homestead can be the largest asset owned by a decedent at the […]

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Probate Caveat

Written by on Jun 26, 2012| Posted in: Probate Litigation

CAVEATOR BEWARE:  Rocca v. Boyansky, 80 So.3d 377 (Fla. 3d DCA 2012) Matthew Rocca is the grandson of decedent, Sidney Boyansky.  Sidney had included Matthew in his estate planning documents until he executed November 2007 documents that cut Matthew out.  Sidney died on April 23, 2009.  On June 10, 2009, Sidney’s surviving spouse filed a Petition for Administration to admit the 2007 will to probate.  On August 21, 2009, Matthew filed a caveat.  In Florida, a caveat is a document that an interested person or a creditor may file with the probate court that alerts would-be personal representatives or proponents of wills to the existence of this person and his claim in the estate.  Florida Statute §731.110(1) provides that “any interested person who is apprehensive that an estate, either testate or intestate [meaning with a will or without a will, respectively], will be administered or that a will may be […]

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Exploitation of the Elderly

Written by on Jun 19, 2012| Posted in: Estate Litigation

The Gold Digger “She take my money when I’m in need Yeah, she’s a triflin’ friend indeed Oh, she’s a gold digger way over town That digs on me.” ~ Ray Charles and Kanye West While the lyrics may be slightly tongue-in-cheek, there is nothing funny about elder abuse.  Elderly people are uniquely vulnerable to exploitation in many forms.  One of the most insidious forms is exploitation masquerading as romantic love.  Traditional notions that the “gold digger” was always a young, attractive female exploiting an older man have given way to the reality of gender equality.  Just as often, it is a younger male exploiting an older woman of financial means.  Oftentimes, the exploiter is a contemporary, but the sirens don’t go off for family as quickly as they do when someone younger starts showing interest. Elderly people are uniquely vulnerable to this particular type of exploitation for several reasons.  […]

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Removal of Personal Representative

Written by on Jun 19, 2012| Posted in: Estate Litigation

Removal of Personal Representative:  When conflicts between Personal Representatives and Beneficiaries create grounds for removal.             The administration of an estate can sometimes be a difficult and tedious process, which is further aggravated when the ever-present emotional aspects continue to linger, especially amongst heirs who have lost a loved-one.  Nevertheless, personal representatives are bound to their statutory duties and to properly administer the estate in the best interest of the beneficiaries.  But what happens when that duty is breached or there appears to be a clear conflict between the personal representative and a beneficiary?  Florida statutes and case law have provided several avenues for beneficiaries to seek appropriate remedies in such cases; however, one thing that beneficiaries need to remember and understand is the extreme dislike between beneficiaries and personal representatives is not sufficient grounds for removal of a personal representative.  Parker v. Shullman, 843 So.2d 960 (Fla. 4th DCA 2003).               […]

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