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Florida Probate Blog

Author: Adrian P. Thomas

Ownership of Safe Deposit Box Contents

Written by on Jan 24, 2017| Posted in: General

Who owns the contents of a safe-deposit box when two people are on the box and one dies? The answer may depend on what is specifically provided in the lease or rental agreement with the bank.  In other words, does the bank have a written policy regarding who owns and/or who can enter the box in the event of death of one of the co-owners?  If the bank does not have specific rules, the Florida law provides that if a safe-deposit box is rented or leased in the names of two or more lessees, access to the safe-deposit box will be granted to either of them, regardless of whether or not the other lessee is living or competent.  But is access to the box the same as ownership of the content of the box?  First, there is no parallel statute that determines the ownership of the contents of safe deposit […]

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Due Process, Death and Taxes

Written by on Jan 9, 2017| Posted in: General

I have written extensively about the application of the due process requirements under both the Florida and United States Constitutions in previous blogs and cannot resist touching upon a recent opinion in a state court case applying federal due process law:  Kimberly Rice Kaesterner 1992 Family Trust v. North Carolina Dep’t of Revenue 789 S.E.2d 645 (N.C.Ct. App. 2016). New York probate and Florida probate lawyers understand that it has long been the law of the land that the fact that beneficiaries of a trust are not residents does not deprive property subject to the trust a situs in the state where the trustee is domiciled.   Typically, the trust property is taxed to the holder of the legal title—the trustee—or where the property is located.  The tax is not imposed on the trust beneficiary. In fact, Chief Justice Oliver Wendell Holmes and the United States Supreme Court has ruled that […]

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Trust Revocation: No Magic Art is Necessary

Written by on Dec 27, 2016| Posted in: Uncategorized

The Uniform Trust Code §602(c) provides that a settlor may revoke or amend a revocable trust by substantial compliance with a method provided in the terms of the trust or by any method manifesting clear and convincing evidence of the settlor’s intent.   Section 736.0602(3) of the Florida Trust Code is identical to the Uniform Code with respect to the revocation of trusts.  What is Clear and Convincing Evidence?  Florida trust lawyers know that ‘clear and convincing evidence’ is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue. BDO Seidman, LLP v. Banco Espirito Santo International, 38 So.3d 874 (Fla. 3d DCA 2011).  The standard of proof has also been described as an intermediate standard of proof, more than the ‘preponderance of the evidence’ standard used in most civil cases, and less than […]

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Trustee’s Duty to Inform and Account

Written by on Dec 6, 2016| Posted in: Trust Litigation

A Trustee’s Duty to Inform and Account Under the Florida Law The essence of the trustee’s existence is to keep a trust’s beneficiaries adequately informed.  Florida probate practitioners, trust lawyers, and estate attorneys all recognize the reality that virtually all fiduciary litigation commences with a beneficiary not receiving a proper trust accounting or explanation of the trustee’s conduct.  The Florida Trust Code provides that a trustee has a duty to keep the “qualified beneficiaries” of an irrevocable trust reasonably informed of the trust and its administration.  Florida law also holds that while a trustee owes no duties to a contingent beneficiary, once the trust becomes irrevocable at the death of the settler, the beneficiary may sue for breach of a duty that the trustee owed to the settlor/beneficiary which was breached during the lifetime of the settlor and subsequently affects the interest of the vested beneficiary.  This general principle was […]

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Attorney-Client Privilege in Probate Litigation

Written by on Nov 18, 2016| Posted in: Probate Litigation

Death, Lawyers, and Loose Lips:  Third District Court of Appeals Clarifies Distinction Between Ethical duty of Confidentiality from Evidentiary Privilege The attorney client privilege dates back to the English Common Law of the late sixteenth century making it the first privilege the law recognized for confidential communication.  For example, see Dennis v. Codrington, 21 Eng.Rep. 53 (1580) (finding “A counselor not to be examined of any matter, wherein he hath been of counsel”).  Thus, it is generally accepted by Florida probate lawyers that the ethical rule of attorney-client confidentiality limits disclosure of information acquired during the scope of the representation.  The only exception is where the client consents to the disclosure.  Rule 4-1.6(a) of the Florida Rules of Professional Conduct articulates the prohibition of disclosure of confidential information: “A lawyer must not reveal information relating to representation of a client…unless the client gives informed consent.”    The sanctity of the […]

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Corya and Woodward

Written by on Jun 24, 2016| Posted in: Trust Litigation

LIMITATIONS ON PROCEEDINGS AGAINST TRUSTEES:  CORYA, WOODWARD AND FLA. STAT. §736.1008 The Florida Trust Code contains a section titled “limitations on proceedings against trustees” that is a limitation of actions and accrual of claims statute specifically applicable to claims for breach of fiduciary duty in the context of trusts.  Specifically, Fla. Stat. §736.1008 provides, in pertinent part, as follows (emphasis and commentary added for clarification): (1) Except as provided in subsection (2), all claims by a beneficiary against a trustee for breach of trust are barred as provided in chapter 95 as to: (a) All matters adequately disclosed in a trust disclosure document issued by the trustee, with the limitations period beginning on the date of receipt of adequate disclosure. NOTE:  (1)(a) provides that IF there is adequate disclosure in a trust disclosure document, THEN the 4-year statute of limitations (“SOL”) in Chapter 95 applies BUT the claim does not accrue until […]

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Can I fire my trustee

Written by on Jun 14, 2016| Posted in: Uncategorized

Over nearly 20 years, my law firm has received hundreds of phone calls asking – How can I fire my Trustee? or How can I remove my Trustee?  In Florida, getting rid of a Trustee is called a trustee removal action where a beneficiary seeks to remove a trustee of a trust, sometimes for reasons other times for no reason.  Florida Trust law contains specific statutes which address the removal of trustees. According to Florida Statute §736.0706, removal of a trustee may be sought by the settlor, a co-trustee, or any beneficiary.  In fact, a court may remove a trustee on its own. Grounds for removing a trustee include: a serious breach of trust, lack of cooperation among co-trustees substantially impairing the administration of the trust, and unfitness, unwillingness, or persistent failure of the trustee to effectively administer the trust.  The court may determine that removal of the trustee best […]

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RETROACTIVE DUE PROCESS IN PROBATE

Written by on Jan 20, 2016| Posted in: General

Typically, when the Supreme Court of the United States announces a new Rule of Federal Constitutional Law dealing with due process, the new Rules are applied retroactively. However, Florida probate courts are left with the power and discretion to carve out exceptions to the general rule in their own probate, will, trust and adoption jurisprudence.

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Will Substitutes in Florida

Written by on Jan 5, 2016| Posted in: Probate Litigation

THE CONFUSING LAW OF WILL SUBSTITUTES “Many legal doctrines today appear jarringly, carelessly, almost randomly out of harmony with one another.  The chaos has gone largely undetected and hence, has continued to swirl unimpeded.  But it is there to be seen, if we only care to look.  To observe the chaos, one has simply to forsake all instruments of magnification and scan the skies with the naked eye.”             -Adam Hirsch, Professor of Law, Florida State University. Professor Hirsch’s enlightened and succinct summary of the inconsistencies in the law of inheritance is most apparent when viewing the body of law surrounding the issue of Will Substitutes.  The increasing use of Will Substitutes to dispose of property upon death has caused great confusion among both practitioners and lay persons in the State of Florida.  Compounding the confusion problem is the fact that our probate law practice is […]

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Florida Court Determines Wife Unduly Influenced Husband

Written by on May 8, 2015| Posted in: Probate Litigation

Florida law is well established that when a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.   As probate litigators, we frequently encounter situations where a court is presented with circumstances suggesting that a elderly person has unfortunately been taken advantage of by their own spouse.  Most often the wrongdoer is a person who marries the victim just prior to death and changes the victim’s estate plan to disinherit family members who were previously the intended beneficiaries of the victim’s long standing estate plan. One such case was recently presented in Palm Beach County, Florida where the court upheld the challenge by a testator’s daughter who sought to invalidate the will that was executed a year after the […]

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