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Florida Probate Blog

Yearly Archives: 2013

Standing in a Will Contest

Written by on Aug 30, 2013| Posted in: Uncategorized

Who can contest a will in Florida?   This is a common question among potential clients who believe that, due to fraud, duress, undue influence, or lack of capacity, a will being offered for probate is invalid.  In these situations, the reason for the will’s invalidity may be obvious; perhaps the decedent had Alzheimer’s Disease and couldn’t remember his own name on the date he executed and signed the will.  However, when the will document omits or significantly neglects children, spouses, or siblings of the decedent, does that mean those people can automatically file suit?  Who has standing to contest the validity of the will? The Fourth District Court of Appeals has recently filed an opinion which speaks to the issue of standing in will contests and highlights the importance of specifically articulating a petitioner’s right to sue in the initial complaint.  In Gordon v. Kleinman, 38 Fla. L. Weekly […]

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Can trust assets be frozen during litigation?

Written by on Aug 28, 2013| Posted in: Trust Litigation

Frequently when individuals attempt to file a claim attacking the validity of a Trust or Amendment to Trust, they do not have the proper amount of information to determine the Trust value and, more importantly, whether the assets are being depleted. This is obviously a major concern as, regardless of the outcome of the action, should the Trust assets be depleted, the remedy available to the Plaintiff is obviously significantly limited. Therefore, in order to prevent further depletion of the assets, particularly until the facts regarding the assets of the Trust are obtained, an attempt to freeze the assets within the Trust is generally an option to be considered immediately after filing the action. The question arises, under what circumstances will the Court freeze the assets within a Trust pursuant to a movant’s request to do so? A request for the Court to freeze trust assets is a request for […]

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Freezing Assets: Putting a Stop to Ongoing Injury

Written by on Jul 29, 2013| Posted in: Estate Litigation

We speak with clients everyday who worry that estate trust assets are going to waste or being actively misappropriated.  Some cases involve breach of fiduciary duties, while others may involve fraud or undue influence in the inception.  Though the facts and circumstances vary, the concern is the same: irreparable harm is occurring and time is of the essence. In these situations, an injured party can appeal to the courts and invoke one of the most powerful tools available to the judicial system, the injunction.  An injunction is a court order that prohibits a party from doing some act which injures another party.  Injunctions are a function of the court sitting in equity, meaning they address a harm that cannot be adequately addressed by filing a lawsuit and receiving later damages from the offending party.  For example, if a trustee is actively melting down priceless family heirlooms to sell for scrap […]

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Grounds for Florida Will Contest

Written by on Jul 11, 2013| Posted in: Estate Litigation

Many families, upon the death of a loved one, along with dealing with the obvious associated pain, also unfortunately are presented with the situation where they believe that there may have been questionable circumstances involved in the process of the preparation and drafting of the Will. The question arises, are there actually grounds to contest the Will? The first consideration in making this determination is whether the Will was properly executed. IN RE Estate of Blakenship 122 So. 2d 466 (Fla. 1960) declared that the requirements for execution and qualification are governed by statute and F.S. 732.502 sets for the requirements for proper execution. A general roadmap requires scrutiny of, at the very least, some of the following issues: F.S. 732.501 indicates that the testator must be of sound mind and at least 18 years of age or an emancipated minor. The Will must be in writing, signed at the […]

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Florida Trust Lawyer

Written by on Jun 28, 2013| Posted in: Estate Litigation

The Florida Trust Code continues to grow and respond to the suggestions of the Florida Bar and Florida Trust Lawyers. A recent example is the recent enactment of Senate Bill 492 which made a number of changes which were recommended by Florida Trust Lawyers participating in the Florida Real Property, Probate, and Trust Law Section of the Florida Bar. One of the more significant changes of the Florida Trust Code used by Florida Trust Attorneys, which becomes effective October 1, 2013, is the expansion of the long arm jurisdiction of Florida Courts to adjudicate trust disputes. Many Florida Probate lawyers and Florida Trust attorneys remember the lesson from Pennoyer v. Neff, a SCOTUS opinion from 1878 which held that service over a person or property physically within a state confers jurisdiction to that person or property. But what happens when a beneficiary of a Florida trust has a dispute with […]

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What is a Spendthrift Trust?

Written by on Jun 18, 2013| Posted in: Estate Litigation

A valid spendthrift provision prevents a beneficiary from transferring his or her interest in the trust as well as prevents creditors or assignees of the beneficiary from reaching any of he trust funds until they are dispersed to the beneficiary.

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Judicial Modification of Trusts

Written by on Jun 4, 2013| Posted in: General

Trusts are created for a variety of reasons.  Whether it is for tax and creditor protection or because the beneficiary is still a minor, there may be myriad reasons for their preparation.  Nevertheless, the initial purpose behind the execution of a trust may get lost or become impractical as time passes or the circumstances that were present at the time of its execution are no longer present or have changed making judicial modification of trusts necessary. In contemplation of such changing of circumstances, the Florida legislature enacted Fla. Stat. §736.04113 which allows a trustee or a qualified beneficiary to petition the court for an order to modify or terminate a trust in the event that settlor’s purpose behind executing the trust is no longer being satisfied.    The statute states, in relevant part, as follows: (1)    Upon application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the […]

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Lost or Destroyed Will

Written by on May 16, 2013| Posted in: General

What happens when the Decedent’s original Last Will & Testament cannot be found? It is well-settled under Florida law that when an original will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the will with the intent to revoke it. In re: Estate of Parker, 382 So.2d 652 (Fla. 1980). Often, a family member will have a copy of the Will and will offer it for probate and ask the probate court to admit the Will as if it were an original.  Then, the proponent of the lost will (the person offering the copy for probate) has the burden of introducing competent, substantial evidence to overcome the presumption that the will was destroyed by the testator. Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996). The Parker court said that the first […]

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ADRIAN THOMAS LAWYER REPUTATION

Written by on Apr 18, 2013| Posted in: General

“The way to gain a good reputation is to endeavor to be what you desire to appear.”  ~ Socrates The lawyers at Adrian Philip Thomas, P.A. strive to be competent and passionate advocates for their clients while maintaining high levels of professional courtesy and ethical conduct.  For twenty years, we have been serving the needs of clients with probate administration and estate litigation disputes throughout the State of Florida.  We are proud to have earned the gracious thanks of many clients over the years. Dear Adrian, Oh happy days!  I could not have found finer legal representation.  I will be eternally grateful to you.  Thank you so much.  You took on a complicated case over multiple jurisdictions made overly complex so I could never prevail.  Your staff, your firm, absolutely everyone attended to me with the utmost courtesy, skill and promptness.  Thank you, Adrian, for fighting so hard for me.  Warmest regards, E.S. To […]

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Inheritance Dispute Lawyers

Written by on Apr 8, 2013| Posted in: Estate Litigation

 Remedies Available in Florida Courts Tortious interference with an inheritance is a relatively new but widely recognized tort that is currently accepted in Florida and half of the United States.  Many other states have reported cases from their state Supreme Court or appellate level addressing the tort, but declining to determine whether it is recognized.  Clearly, the trend is moving toward national acceptance and recognition of the tort. The importance of availability of the tort cannot be understated.  It serves many purposes, especially in Florida, where elderly and vulnerable adults are preyed upon by unscrupulous persons seeking to financially exploit Florida’s elderly citizens.    The tort provides a remedy in the form of money, a civil remedy, to a person who believes that another has wrongfully interfered with an inheritance.  The remedy is awarded by the civil court, not the probate court, and the money award is paid by the person […]

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