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Florida Probate Blog

Yearly Archives: 2013

What are the fiduciary duties of a trustee?

Written by on Apr 1, 2013| Posted in: Trust Litigation

“The trust of the innocent is the liar’s most useful tool.”  Stephen King Our firm is contacted by many trust beneficiaries who have never received a trust accounting, and they are not aware of the fiduciary duties the Trustee of the trust has to the trust beneficiaries.  Often, the trust beneficiaries place faith and trust in the Trustee to administer the Trust in accordance with the law and what is morally correct.  They are surprised to find that the Trustee of a Trust has specific fiduciary duties to all of the beneficiaries of the trust, which include, but are not limited to the following: 1)     Under Florida law, a trustee has a duty to administer the trust in good faith, in accordance with the terms and purposes of the trust, and in the interests of the beneficiaries pursuant to Fla. Stat. § 736.0801. 2)    The Trustee owes the trust beneficiaries a […]

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ATTORNEY’S FEES AND COSTS IN BREACH OF FIDUCIARY DUTY MATTERS

Written by on Feb 27, 2013| Posted in: Probate Litigation

In the Florida Probate Code, the legislature has taken into account the various attorney’s fees and costs incurred during an estate or trust proceeding, including when there are contested matters and allegations of breach of fiduciary duty.  No attorney can guarantee that your attorney’s fees will be paid from the other side; however, there are several statutes that allow a petitioner to seek such financial relief. Fla. Stat. 733.106 states, in relevant part, as follows: (1)   In all probate proceedings costs may be awarded in chancery actions …. (3)   Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate. (4)   When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid. Fla. Stat. 733.609 states, in relevant part, as follows: (1)    A personal representative’s fiduciary duty is the […]

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How do I contest a Will?

Written by on Feb 11, 2013| Posted in: Probate Litigation

Client’s often call Adrian Philip Thomas, P.A. to ask “how do I contest a Will?”  There are specific grounds and legal reasons needed to challenge a Will in Florida and a skilled Florida probate lawyer can provide guidance. First, the Will should be scrutinized to see if it was properly executed, witnessed and notarized.  In Florida, there are very specific laws regarding the formality of how a Will is signed.  It must be signed by the Testator and witnessed by two witnesses in the same room and the same time who actually witness the Testator executing the Will.  Each witness must sign in the presence of the other, and then the Will needs to be notarized. Second, under Florida law, the Testator is required to have the appropriate mental capacity to sign the Will.  This would include the Testator understanding the nature and value of his assets, who should inherit […]

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Simultaneous Death Law

Written by on Feb 11, 2013| Posted in: Probate Litigation

If an individual elects not to execute a Last Will and Testament, then Florida law makes provisions for distribution of his assets at death.  One area where this is of particular note is Florida’s Simultaneous Death Law, found in Florida Statute § 732.601.  The Simultaneous Death Law is triggered when two (or more) people die and there is insufficient evidence that that the persons have died other than simultaneously.  This is common in fatal accidents, where it is not readily known which individual died first.  This can be important when it comes to determining the ownership of joint accounts (passes to survivor but who was survivor?), determining the correct beneficiary of a life insurance policy, or who takes under a Last Will and Testament. Under Florida Statute 732.601(1), “[w]hen title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property […]

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Florida Guardianship and Examining Committee Reports

Written by on Jan 16, 2013| Posted in: Guardianship Litigation

When there are concerns that a loved-one may have limited mental capacity, it may be appropriate to petition the Court for implementation of a guardianship.  However, courts view guardianships as a last resort, and they will not usually grant them if there is a sufficient less restrictive alternative to guardianship.  Examples of these less restrictive alternatives would be a power of attorney, a healthcare surrogate, and/or a trust. Nevertheless, there are times when courts have to intervene and initiate a guardianship.  Once a petition to determine incapacity is filed, the court orders that three (3) examining committee members assess the alleged incapacitated person’s mental health and they provide recommendations to the court as to whether or not they believe that a guardianship should be initiated by the court. However, there has been some recent case law that may shed some light as to how strictly the court should consider these […]

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Fort Lauderdale Probate Litigation Lawyer

Written by on Jan 10, 2013| Posted in: General

A Fort Lauderdale Probate Litigation Lawyer may represent clients in connection with disputes arising over a Last Will & Testament.  There are several grounds for contesting a decedent’s Last Will & Testament, including: mistake in execution, undue influence, and lack of testamentary capacity.  In addition to Will contests, probate litigation may involve:  Will construction (interpreting the meaning of a Will), determination of heirs, elective share, breach of fiduciary duty, removal of fiduciary, surcharge (making a fiduciary pay back losses caused by his/her conduct), and accounting.  Each of these topics is discussed in greater detail at our website.  Just follow the links at the top of this page.   The Fort Lauderdale Probate Litigation Lawyers at Adrian Philip Thomas, P.A. represent clients in connection with all probate litigation matters, both prosecuting and defending.  If you or someone you know needs to consult with a Fort Lauderdale Probate Litigation Lawyer, call toll free […]

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