client portal
  • Blue Forbes logo
  • AVVO 10.0
  • Top 100 Lawyers badge
  • Daily Business Review Newspaper
  • Legal Elite 2012 Badge
  • Top Rated Lawyers
  • The American Lawyer, Adrian Philip Thomas

Florida Probate Blog

Author: Adrian P. Thomas

Capacity to Create a Trust in Florida

Written by on Sep 21, 2012| Posted in: Guardianship Litigation

Florida guardianship lawyers frequently encounter disputes in connection with what rights a vulnerable adult should have judicially delegated to a guardian.  Those disputes often develop into contests regarding the duration of those delegated rights and whether and to what extent the rights can and should be restored to the alleged incapacitated person.  Many factors and variables enter the legislatively created mechanism for determining these issues. Sometimes, prior to, during, and even after incapacity proceedings, the Florida guardianship lawyer will discover that a family member or other person has orchestrated the execution of a will or trust by the alleged incapacitated person.  These situations present difficult legal and ethical issues for the Florida guardianship attorney. The Florida Trust Code contains a section providing that “a trust is created only if: (a) the settlor has capacity to create a trust.”  §736.0402(1)(a).  Proceedings to determine the competency of a person are controlled by […]

read more

Homestead Property and Joint Ownership

Written by on Sep 17, 2012| Posted in: Estate Litigation

  HOMESTEAD PROPERTY AND JOINT OWNERSHIP “The home to everyone is to him his castle and fortress, as well for his defense against injury and violence, as for his repose.”  Edward Coke. Recently, new case law has established that exactly how the Deed is worded it is very important in the determination of whether the property was a homestead property when one of the owners of the property dies.  Article X, section 4( c) of the Florida Constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.”  If a Florida resident acquires property as a joint tenant with rights of survivorship while he has a minor child and lives in the primary residence, the property will not be deemed the decedent’s homestead, as it passes entirely at the time of his death to the other joint tenant. The recent […]

read more

Inheritance Rights of Former Spouse

Written by on Sep 10, 2012| Posted in: Probate Litigation

As a Florida probate attorney, it is customary to encounter issues and disputes arising from a former spouse of the decedent.  For some time the Florida Legislature has provided a statutory scheme which provides a presumption preventing former spouses from inheriting from wills and revocable trusts (Florida Statutes §§ 732.507(2) and 736.1105, respectively).  Florida Statute 732.507(2) provides that any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage, absent the will or dissolution or divorce judgment expressly providing otherwise. Similarly, Florida Statute §736.1105 provides that a revocable trust executed by a spouse prior to annulment or dissolution of the marriage becomes void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce, absent the trust instrument or a judgment […]

read more

Aronson v. Aronson

Written by on Jul 24, 2012| Posted in: Probate Litigation

WHEN OUT-OF- STATE ESTATE PLANNING DOCUMENTS DO NOT ACHIEVE THEIR OBJECTIVES UNDER FLORIDA LAW  “There is nothing more important than a good, safe, secure home.”  Rosalynn Carter             Often, out-of-state residents own property in Florida, and have their estate planning documents prepared out-of-state, without consulting with competent Florida counsel to inquire if their estate planning documents will achieve their objectives and goals under Florida Law.             In July of 1996, Hillard J. Aronson resided in Massachusetts with his second wife, Doreen Aronson, and Mr. Aronson was the owner of a condominium located in Key Biscayne, Florida.    He decided to create a revocable trust in which he was both a life beneficiary and a trustee, and upon his death, his trust created a life-time irrevocable martial trust for his wife, Doreen, with remainder to his two sons from his prior marriage.  Mr. Aronson then deeded the Florida condominium to himself as […]

read more

Florida Trust Litigation

Written by on Jul 6, 2012| Posted in: Trust Litigation

There are many times when trustees, beneficiaries, or others with an interest in the trust’s assets will challenge the terms of a trust, the actions of a trustee, or the validity of the entire trust instrument itself and lawsuits will be filed. Florida Trust Litigation situations can include: Trust Contests – Sometimes beneficiaries and/or people excluded from a trust will file a law suit challenging the legal validity of a Trust. They may do so in any number of ways, such as asserting mistake in execution, undue influence or lack of capacity.  The causes of action for a trust dispute or trust contest are substantially similar to those for a will contest. Trust Construction – There are occasions when a Trust contains language that is confusing or even contradictory.  Mistakes can be made, or ambiguities can arise, when Trusts are prepared. Afterwards, a lawsuit may be needed in order for […]

read more

Possession of Homestead by Personal Representative

Written by on Jul 2, 2012| Posted in: General

Possession of Homestead by a Personal Representative Homestead, in the estate and trust context, is the real property owned by a decedent at the time of death, which was used as his primary residence at the time of his death. As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that it can be devised to the spouse if not survived by minor children. If not survived by a spouse or minor child, the decedent is free to devise the property as he wishes. Typically, if homestead property is devised to an heir or descendant, as permitted by law, it vests in said heir or descendant immediately upon death and is not considered an asset of the estate. In many cases, the homestead can be the largest asset owned by a decedent at the […]

read more

Probate Caveat

Written by on Jun 26, 2012| Posted in: Probate Litigation

CAVEATOR BEWARE:  Rocca v. Boyansky, 80 So.3d 377 (Fla. 3d DCA 2012) Matthew Rocca is the grandson of decedent, Sidney Boyansky.  Sidney had included Matthew in his estate planning documents until he executed November 2007 documents that cut Matthew out.  Sidney died on April 23, 2009.  On June 10, 2009, Sidney’s surviving spouse filed a Petition for Administration to admit the 2007 will to probate.  On August 21, 2009, Matthew filed a caveat.  In Florida, a caveat is a document that an interested person or a creditor may file with the probate court that alerts would-be personal representatives or proponents of wills to the existence of this person and his claim in the estate.  Florida Statute §731.110(1) provides that “any interested person who is apprehensive that an estate, either testate or intestate [meaning with a will or without a will, respectively], will be administered or that a will may be […]

read more

Exploitation of the Elderly

Written by on Jun 19, 2012| Posted in: Estate Litigation

The Gold Digger “She take my money when I’m in need Yeah, she’s a triflin’ friend indeed Oh, she’s a gold digger way over town That digs on me.” ~ Ray Charles and Kanye West While the lyrics may be slightly tongue-in-cheek, there is nothing funny about elder abuse.  Elderly people are uniquely vulnerable to exploitation in many forms.  One of the most insidious forms is exploitation masquerading as romantic love.  Traditional notions that the “gold digger” was always a young, attractive female exploiting an older man have given way to the reality of gender equality.  Just as often, it is a younger male exploiting an older woman of financial means.  Oftentimes, the exploiter is a contemporary, but the sirens don’t go off for family as quickly as they do when someone younger starts showing interest. Elderly people are uniquely vulnerable to this particular type of exploitation for several reasons.  […]

read more

Breach of Fiduciary Duty Statute of Limitations

Written by on Jun 11, 2012| Posted in: Estate Litigation

WHAT IS THE STATUTE OF LIMITATIONS FOR BREACH OF FIDICUARY DUTY OF A TRUSTEE IN A TRUST ACTION? “Man must cease attributing his problems to his environment, and learn again to exercise his will – his personal responsibility in the realm of faith and morals.”  Albert Schweitzer When a trustee is appointed, the trust instrument and Florida law direct and authorize the trustee to perform their duties as fiduciaries.  When a trustee breaches his fiduciary duty, what is the statute of limitations time frame in which to bring a lawsuit against the trustee?  Florida law (section 736.1008 and chapter 95) provides specific time-frames within which lawsuits can be filed against a trustee.  The law first imposes a short, six-month limitation period for bringing an action against a trustee for a breach of trust if the beneficiary has received a final, annual, or periodic account “fully disclosing the matter”.  Florida Statute 737.307; […]

read more

How many witnesses are required for a Trust in Florida?

Written by on Jun 6, 2012| Posted in: Estate Litigation

How many witnesses are required for a Trust in Florida? The Florida Trust Code sets forth the requirements for how many witnesses are required for a Trust in Florida.  Specifically, Fla.Stat. 736.0402(1), provides: The settlor has capacity to create a trust; The settlor indicates an intent to create the trust; The trust has a definite beneficiary (with some exceptions, e.g. trust for care of animals); The trustee has duties to perform; and The same person is not the sole trustee and sole beneficiary. There are also certain formalities required for creation of a revocable trust.  Fla.Stat. 736.0403(2) provides that “the testamentary aspects of a revocable trust, executed by a settlor who is a domicilary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state.”  This begs the question “what […]

read more
Page 5 of 22 First...23456789...Last

We can make a difference.
Call now for a complimentary consultation.
Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Suntrust Center
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301