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Florida Probate Blog

Author: Adrian P. Thomas

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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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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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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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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Trust Accountings and Litigation

Written by on Dec 19, 2012| Posted in: Trust Litigation

In trust litigation a dispute between a beneficiary and the trustee of a trust is not uncommon.  Florida law provides that a trustee of an irrevocable trust has a duty to inform and account to a qualified beneficiary pursuant to Fla. Stat. 736.0813.  However, what happens where a qualified beneficiary has never received an accounting and then seeks redress in Court for the actions of a trustee years later? The Third District Court of Appeal recently considered such a matter in Taplin v. Taplin, 88 So. 2d 344 (Fla. 3d DCA 2012).    In Taplin, the trial court dismissed a second amended complaint with prejudice filed by a qualified beneficiary against the Co-Trustees of a trust.  The complaint had sought an accounting, breach of trust removal of trustees and surcharge.  The dismissal was based upon failure to object within the six-month limitation period provided by Florida law (at that time Florida Statute […]

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QUALIFICATIONS AND COMPENSATION OF PERSONS GIVEN POWER OF ATTORNEY IN FLORIDA

Written by on Nov 20, 2012| Posted in: General

A Power of Attorney is a writing that grants authority to someone to act in the place of the principal, whether or not the term “power of attorney” is actually used in that writing.  It is often used as an estate planning tool to avoid a guardianship proceeding should the person granting the power of attorney become incapacitated. The “agent” or person given the authority to act for a principal under a power of attorney can be designated as an agent, attorney-in-fact- or otherwise, and includes an original agent, co-agent and successor agent.  Fla. Stat. 709.2102 The agent named in a Power of Attorney may be any natural person who is eighteen years of age or older and of sound mind. In the alternative, a designated agent given a power of attorney may also be a financial institution having trust powers and a place of business in Florida and authorized […]

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Florida Guardianship: Examining Committees and Due Process

Written by on Nov 8, 2012| Posted in: Guardianship Litigation

THE RIGHT IN FLORIDA TO CONFRONT EXAMINING COMMITTEE MEMBERS IN A CONTESTED INCAPACITY GUARDIANSHIP PROCEEDING The Fourteenth Amendment of the United States Constitution, and Article I, Section 9 of the Florida Constitution, provide that no person shall be deprived of their fundamental rights without due process of law.  Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in Florida’s judicial system for the protection and enforcement of private rights applied in his or her case.  For these reasons, the Florida Legislature has required that in the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.  The procedures to determine incapacity and the minimum requirements to comply with due process have been codified by the Florida Legislature at Florida Statute §744.331.  These […]

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Florida Homestead Law: Condos and Co-ops

Written by on Oct 30, 2012| Posted in: General

As a Florida probate attorney, one issue that often arises is the treatment of homestead real property.  Under Florida law there are three contexts in which the homestead has significance: (a) taxation, (b) exemption from forced sale and (c) descent and devise.  Florida case law is plentiful as it pertains to homestead real property, especially since a 1984 change in the Florida Constitution which broadened the constitutional definition of the term “homestead.” While Florida homestead law can be found in Article X, Section 4 of the Florida Constitution, many decisions of Florida appellate court must be considered when seeking the Constitutional protections.  One also must determine what context they are seeking to invoke the Constitutional protection (exemption from forced sale or devise and descent), as the District Courts of Appeal have treated certain contexts different.  For instance, while a condominium may be considered homestead, a cooperative apartment may not, depending […]

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DOES A PERSONAL REPRESENTATIVE NEED TO HIRE AN ATTORNEY?

Written by on Oct 7, 2012| Posted in: General

In Florida, every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative. Fla. Prob. R. 5.030 (a). In nearly all Florida probate cases, it’s important, and typically required, that the personal representative of an Estate have legal representation. Even in the simplest probate case, legal issues are likely to arise. There will be statutory requirements and issues where the Court requires an attorney to be part of the process to assist in advising the personal representative of rights, duties, and obligations they have to the estate and beneficiaries. There are numerous complex matters that can arise during the administration of an estate, in addition to deadlines, duties and other responsibilities […]

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