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Florida Probate Blog

Author: Adrian P. Thomas

Exploitation of the Elderly

Written by on Mar 18, 2015| Posted in: General

Fla. Stat. § 732.518 provides that “[a]n action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.”  Essentially this means that interested persons cannot contest a will until after the death of the person who made the will.  But what if you know that your elderly family member or loved one has been taken advantage of by a caregiver and you want to protect him or her now? Fortunately, the Florida Legislature has provided a means of not only protecting vulnerable, elderly adults, but also punishing those who exploit them for personal gain.  Fla. Stat. § 415.1111 provides a civil cause of action against a caregiver or person who stands in a position of trust and abuses that trust through neglect, deception, or intimidation in order to defraud […]

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Proving Undue Influence

Written by on Feb 6, 2015| Posted in: Probate Litigation

Proving that a will was procured by the undue influence of another can sometimes be difficult.  Often, this type of conduct occurs in secret, away from the watchful eyes of family and loved ones and involves the victimization of an elderly, ill person at the hands of someone he or she trusts.  Florida law recognizes this realty and the legislature has provided a means by which plaintiffs may not only prove undue influence, but also shift the burden of proof so that that defendant must offer his own evidence. Fla. Stat. §733.107 provides that, when contesting the validity of a will, the burden of proof shifts.  First, the proponent of the will, i.e. the defendant, must establish that the will was properly executed.  If the defendant initially proves that the Will was signed and properly witnessed, then the burden to prove undue influence shifts to the plaintiff.  Fla. Stat. § […]

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Undue Influence under Florida’s Trust Code

Written by on Sep 25, 2014| Posted in: Trust Litigation

Florida Statute § 736.0406 Effect of fraud, duress, mistake, or undue influence.— If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void. In 2006, the Florida legislature passed into law the new Florida Trust Code. Of the numerous provisions codified into statute under Chapter 736, about 40% were found in prior Florida law, while roughly 60% were based on the Uniform Trust Code, a non-binding, model legal code utilized to form the basis for various state laws throughout the country.  Although comprehensive in scope, Chapter 736 does not purport to address […]

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Spousal Inheritance after Divorce

Written by on Jul 2, 2014| Posted in: General

What rights does a divorced spouse have to inherit from a former spouse’s estate? Fla. Stat. § 732.703 became effective in 2012 and concerns beneficiary designations on life insurance policies, annuities, IRAs, 401ks and other employee benefit plans.  The statute is perceived as a legislative reaction to some decisional case law and also to the problem that surfaced when divorced clients never returned to their estate planning attorneys to revise their estate planning documents and beneficiary designations. The statute provides: § 732.703. Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death. (1)  As used in this section, unless the context requires otherwise, the term: (a)  “Asset,” when not modified by other words or phrases, means an asset described in subsection (3), except as provided in paragraph (4)(j). (b)  “Beneficiary” means any person designated in a governing instrument to receive an interest in an asset upon the death of […]

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Florida No Contest Clause

Written by on Jun 30, 2014| Posted in: General

A No Contest Clause is a provision in a will or trust that penalizes an interested person who seeks to contest or challenge the validity of the will or trust instrument.  These clauses are sometimes referred to as in terrorem clauses.  Generally, a no contest clause penalizes a person contesting the will or trust by providing that the person loses all rights to receive any gift or devise under the will or trust if he or she contests its validity or challenges the terms of the instrument. Florida law invalidates no contest clauses in both wills and trusts.  Florida Statute section 732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”  Similarly, Florida Statute section 736.1108 (1) provides that “[a] provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or […]

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Successor Personal Representative May Sue Attorney for Estate

Written by on Jun 10, 2014| Posted in: Estate Litigation

FLORIDA APPELLATE COURT RULES SUCCESSOR PERSONAL REPRESENTATIVE IS ALLOWED TO SUE A FORMER PERSONAL REPRESENTATIVE’S ATTORNEY FOR MALPRACTICE Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014) A lawsuit was filed in Florida alleging the initial personal representative, with her lawyer’s guidance, improperly disclaimed or transferred out of the estate certain assets belonging to the estate that could have been used to pay its creditors.  A trial court ruled that a successor personal representative does not have standing to bring a legal malpractice action against the Florida attorney who was hired by the initial personal representative to aid her in the administration of the estate. The appellate court reversed and stated that the powers, duties, and obligations of the personal representative apply not only to the estate, but also to other individuals related to the estate’s administration, including its beneficiaries, creditors, contractors, accountants, and […]

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Oral Agreement to Divide Inheritance

Written by on Jun 10, 2014| Posted in: Estate Litigation

ORAL AGREEMENTS SUFFICIENT UNDER FLORIDA LAW TO DIVIDE INHERITANCE FROM PARENTS Can siblings verbally agree to divide an inheritance prior to their parent’s or grandparent’s death?  The answer in Florida is Yes. In is widely accepted that in order for an agreement between parties to be legally binding and enforceable by a court or judge, at least four elements must be present:  (1) offer; (2) acceptance; (3) specific terms; and (4) consideration.  What is consideration? Consideration is simply a bargained for change in legal position between the parties.    One way to describe how the element of consideration is usually viewed by courts is to look at whether or not the parties making the promises to each other are either doing something that they are not under a legal obligation to do;  or refraining from doing something that they have a legal right to do (i.e., surrender or forebear from asserting […]

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Pretermitted Child: Paternity vs. Adoption

Written by on Apr 23, 2014| Posted in: Probate Litigation

The Florida legislature enacted a statute to protect the inheritance rights of children born after a decedent executed his or her Last Will & Testament.  The statute, known as a “Pretermitted Children” and found at Fla. Stat. §732.302, provides that “when a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received it the testator had died intestate.”  The statute is predicated on the notion that parents intend for their children to inherit from them and that if a child was born after a parent executes a Will that it was probably an oversight not to execute a new […]

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Probate and Prenuptial Agreements

Written by on Mar 11, 2014| Posted in: Probate Litigation

What impact does a prenuptial agreement have upon title to the assets of a trust and the rights of trust beneficiaries? The importance of that question was highlighted by a recent Second District Court of Appeals case, Shakespeare v. Prince, 129 So.3d 412 (Fla. 2d DCA 2013). In Shakespeare, Mr. and Mrs. Shakespeare entered into a prenuptial agreement to maintain their assets separately. Mrs. Shakespeare, who had inherited a substantial fortune from her prior marriage, bought a home for the couple in Collier County. She subsequently created a trust and, waiving her homestead rights, transferred title of the home to the trust, making the home a trust asset. Mrs. Shakespeare’s trust provided that, upon her death, Mr. Shakespeare would receive only a life estate in the home; upon Mr. Shakespeare’s death, title to the home would pass to Mrs. Shakespeare’s son from her first marriage. This relatively straight-forward estate plan […]

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How Long Does a Beneficiary Have to Challenge the Actions (or Inaction) of a Trustee?

Written by on Feb 10, 2014| Posted in: Trust Litigation

Typically, a trustee serves its accounting on beneficiaries which discloses all matters involving the trusts.  Under normal circumstances, a beneficiary then has four years from receipt of the accounting to bring an action for breach of fiduciary duty.  If an accounting is not provided to the beneficiaries, or when the accounting falls short of properly informing a beneficiary of what is happening with the trust assets, then the Statute of Limitations never begins to run.  If a beneficiary has actual knowledge of the matter not adequately disclosed in the accounting, and it can be proven by clear and convincing evidence that the beneficiary had actual knowledge, or if there has been a repudiation of the Trust by the Trustee and the beneficiary has actual or constructive knowledge of the repudiation, then the four-year statute of limitations will bar that claim, Fla. Stat. §736.1008(3)(a).  The fact that a Trustee has not […]

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