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Florida Probate Blog

Yearly Archives: 2012

Attorney’s Fees in Partition Actions

Written by on Mar 26, 2012| Posted in: General

Attorney Fee Issues in Florida Probate Court Partition Actions Lawyers in Florida who handle inheritance disputes and lawsuits involving wills and trusts in probate court often find themselves embroiled in a battle for attorneys ‘ fees.  Typically, in Florida for an award of attorney’s fees to be paid, there has to be some statutory or contractual basis.  In other words, if the parties don’t have an agreement that provides that the lawyers will be paid, then there must be some law written in the books by the state government that affords payment for legal fees. Florida estate and trust lawyers sometimes encounter situations in the administration of wills, estates, and trusts, that involve dividing a parcel of real property for distribution to beneficiaries.   These types of cases are referred to as “partition actions” and lawyers are entitled to an award of fees.   Florida Statutes Section 64.081.  The amount of attorney’s […]

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Breach of Fiduciary Duty

Written by on Mar 25, 2012| Posted in: Trust Litigation

BREACH OF TRUSTEE’S OR SUCCESSOR TRUSTEE’S FIDUCIARY DUTY “The prudent heir takes careful inventory of his legacies and gives a faithful accounting to those whom he owes an obligation of trust.”  John F. Kennedy When a Revocable Trust is executed, the Trustee is usually the person who executed the trust.  The settlor of the trust could also appoint another person or financial institution as the Trustee of his or her revocable trust.   When the Trustee dies or is no longer able to serve, a successor trustee is named in the trust instrument, which directs and authorizes the successor trustee to perform their fiduciary duties as successor trustee. Florida Statute 736.0401 and 736.0402.  What happens if the trustee or the successor trustee does not perform their fiduciary duties as trustee?  The beneficiaries and residual beneficiaries of the trust should take careful inventory of their legacy.  They are entitled to a yearly […]

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Preservation of Assets During a Will Contest

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

A Will Contest can often be a lengthy process involving extensive motion practice, discovery, and various other pre-trial matters that can arise during the litigation. A Will Contest can begin both before and after the appointment of a personal representative.  Whether a dispute arises before or after the appointment of the personal representative, the concern becomes how one can protect and preserve the estate’s assets for the ultimate beneficiaries, pending a final determination by the court. The circuit court, sitting in its probate capacity, has inherent jurisdiction to monitor the administration of an estate and to take such appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries.  See Estate of Conger, 414 So.2d 230 (Fla. 3rd DCA 1982).  Furthermore, a probate court has the authority to issue temporary injunctions freezing assets claimed to belong to a decedent’s estate, […]

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Debt Forgiveness and Creditor Claims

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

Is a decedent permitted to forgive debt owed to him when his estate is insolvent to pay the debts and costs of administration?  According to Florida’s Fifth District Court of Appeals, the answer is “no.” In Lauritsen v. Wallace, 67 So.3d 285 (Fla. 5th DCA 2011), the decedent father had included a provision in his Last Will & Testament forgiving his son’s debt to the father, which was secured by a promissory note.  The decedent’s estate was insolvent so the Personal Representative asked that the note be included as an estate asset.  The trial court held that the debt was forgiven at the instant the decedent died so it could not be considered an asset.  The appellate court disagreed. This was a case of first impression in Florida.  The Court noted that “there are no Florida cases that address the question of whether the release and forgiveness of an obligation […]

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What is guardianship?

Written by on Mar 13, 2012| Posted in: General

Guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of a disabled or incapacitated person.  In Florida, the circuit courts have jurisdiction over guardianship matters.  The disabled or incapacitated person is referred to as the “ward.”  There are several different types of disability or incapacity, including:  being a minor child with no living parents, being a mentally ill or handicapped adult, being an elderly person with dementia, being disabled by injury (for example a stroke), being so impaired by substance abuse that the person is effectively disabled.  In general, a person is “disabled” for guardianship purposes if the person is unable to conduct his or her personal or business affairs or lacks the physical or mental capacity to care for his or her support needs, which may be due to minority (under 18), old age, illness, substance abuse, mental illness, birth defect, traumatic […]

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Adrian Thomas Attorney

Written by on Mar 8, 2012| Posted in: Estate Litigation

Adrian Thomas Attorney Attorney Adrian Thomas is a shareholder and senior partner of a boutique, nine-attorney law firm located in Fort Lauderdale, Florida. He has resided in Florida for the past thirty years and has practiced law in Broward County for the past 18 years. Adrian Thomas is “AV” rated by Martindale Hubbell and has been selected as one of Florida’s Legal Elite by Florida Trend Magazine in 2008, 2009, 2010 and 2011.  Attorney Adrian Thomas concentrates his practice in estate litigation, both prosecuting and defending, which includes matters involving estates, trusts, probate, and guardianship. He represents clients with disputes throughout the State of Florida.

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Adrian Philip Thomas

Written by on Mar 3, 2012| Posted in: Estate Litigation

Attorney Adrian Philip Thomas is a shareholder and founding partner of the Law Offices of Adrian Philip Thomas, P.A., a boutique, nine-attorney law firm located in Fort Lauderdale, Florida. He has resided in Florida for the past thirty years and has practiced law in Broward County for the past 18 years. Mr. Thomas is “AV” rated by Martindale-Hubbell and has been selected as one of Florida’s Legal Elite by Florida Trend Magazine in 2008, 2009, 2010 and 2011. Mr. Thomas concentrates his practice in estate litigation, both prosecuting and defending, which includes matters involving estates, trusts, probate, and guardianship. He represents clients with disputes throughout the State of Florida. Attorney Adrian Philip Thomas has a Masters in Law from the University of Miami, a Juris Doctor from Nova Southeastern University, and a Bachelor of Science from the University of Florida. Attorney Adrian Philip Thomas has lectured at continuing legal education seminars […]

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How to Remove a Trustee in Florida

Written by on Feb 29, 2012| Posted in: Trust Litigation

Florida law allows for a trustee in Florida to be removed for certain reasons.  The grounds to remove a trustee in Florida include: (a) The trustee has committed a serious breach of trust; (b) The lack of cooperation among cotrustees substantially impairs the administration of the trust; (c) Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or (d) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available. A trustee has the duty to administer the trust diligently for the benefit of the beneficiaries. A trustee […]

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Adrian Thomas Lawyer Rating

Written by on Feb 28, 2012| Posted in: Estate Litigation

LAWYER RATINGS Adrian Thomas has achieved the highest lawyer rating in Martindale-Hubbel. AV® Peer Review Rating — An AV® certification mark is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence. A lawyer must be admitted to the bar for 10 years or more to receive an AV® rating. Adrian Thomas has achieved the highest lawyer rating on Avvo.  Adrian Thomas has been selected Florida Trend Legal Elite  for four consecutive years, 2008-2011. See comments from Adrian Thomas’s clients.    

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Florida Guardianship Lawyer

Written by on Feb 24, 2012| Posted in: Estate Litigation

Florida Guardianship Lawyers who focus on elder law topics can prepare wills and trusts, provide Medicaid plans or assist with guardianship for people who are mentally incapacitated.  Being mentally incapacitated is not the same as being mentally incompetent but the conclusion can sometimes be the same – someone cannot take care of himself or herself and needs a guardian to be appointed by the Court.  The Law Offices of Adrian Philip Thomas, P.A. has Florida guardianship lawyers practicing with the firm, including Robert M. Trinkler, who has previously served as counsel of record in more than 2,000 guardianship and incapacity proceedings throughout the State of Florida and who has successfully handled hundreds of adversarial guardianship and incapacity matters.  The lawyers at Law Offices of Adrian Philip Thomas, P.A. have extensive experience in all aspects of Florida guardianship proceedings.

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