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Florida Probate Blog

Author: Adrian P. Thomas

Florida Probate Creditor Claim

Written by on Jun 5, 2012| Posted in: Estate Litigation

Oftentimes people die owing money; this can be in the form of unpaid bills, loans, or other obligations.  Florida law is very specific regarding the procedure for submitting creditor claims against a decedent’s estate.  Under Florida Statute 733.2121, the Personal Representative of a Florida estate shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors.  Florida law further establishes deadlines for filing claims by creditors, as well the proper procedure for the Personal Representative to handle such claims. Recently, the Second District Court of Appeal reviewed a case where a creditor filed his statement of claim in the probate case over ten months after notice to creditors was first published, but two years to the day after decedent’s death.  The […]

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Florida Will and Trust Dispute Lawyer

Written by on May 30, 2012| Posted in: Estate Litigation

FLORIDA WILL AND TRUST DISPUTE LAWYER AND LOST OR DESTROYED WILL OR TRUST PROCEDURE              As a Florida will and trust dispute lawyer, I frequently encounter situations where the original will or trust (or amendments thereto) is lost.  Often, after a loved one’s death, we are presented with situations where we only have photocopies of the will or trust to determine the intent of our loved one’s testamentary wishes.              The procedure and challenges faced within that procedure in the law were outlined in a recent case Smith v. DeParry, 37 Fla. L. Weekly 1070; 2012 Fla. App. Lexis 6880 (Fla. 2nd DCA 2D11-1851 2012).  In this case the decedent owned two dogs which were the subject of a lost will which had established a pet trust for the health, care and welfare of the dogs.  The Florida will and trust dispute lawyer who represented the personal representatives of the estate, filed the documents […]

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Florida Will & Trust Dispute Lawyers

Written by on May 29, 2012| Posted in: Estate Litigation

RECOVERY OF ATTORNEY’S FEES TIMING FOR APPEAL AND CONSIDERATIONS BY FLORIDA WILL AND TRUST DISPUTE LAWYERS              As a Florida Will and Trust dispute lawyer, situations are frequently encountered where a request has to be made to the court for payment of attorney’s fees.  These requests are made by the will dispute lawyer on behalf of a Will executor, executrix and/or Trustee in order to secure payment of the will or trust dispute attorney’s fees from the estate or trust.   Sometimes a court will determine that the lawyer’s services have benefited the trust or estate, and sometimes the court will determine they have not.  Other times, a court will determine that the fees requested are not reasonable or not in conformity with community standards.  When a will and trust dispute lawyer receives a negative ruling on behalf of his or her client, an appeal is often the next legal maneuver.  […]

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Breach of Fiduciary Duty and Surcharge Action

Written by on May 22, 2012| Posted in: Trust Litigation

IMPOSING PERSONAL LIABILITY ON A TRUSTEE FOR BREACH OF FIDUCIARY DUTY WITH A SURCHARGE ACTION “We count on the space of trust that confidentiality provides.  When someone breaches that trust, we are all worse off for it.”  Hillary Clinton When a trustee is appointed, the trust instrument and Florida Statutes direct and authorize the trustee to perform their fiduciary duties as trustee. Florida Statute 736.0401 and 736.0402.  What can be done if the trustee or successor trustee breaches their fiduciary duties as trustee?  The elements of a cause of action against the trustee for breach of fiduciary duty are: 1) the existence of a duty; 2) breach of that duty; and 3) damages flowing from the breach of that duty.  Crusselle v. Mong, 59 So.3d 1178 (Fla. 5th DCA 2011). Florida Statute 736.1002 lists damages for breach of trust for which a trustee may be liable.  If there is an […]

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Florida Will Reformation

Written by on May 8, 2012| Posted in: Estate Litigation

Florida Will Reformation Can a Will be changed after death? While Florida law provides for challenges to the probate of Wills under theories such as duress, improper execution, undue influence, and incompetency, beneficiaries and other interested persons of a Last Will and Testament now have a new way to change a Will after death.  Effective July 1, 2011, Florida Statute 732.615 (“Reformation to correct mistakes”), allows for modification of a Last Will and Testament where a mistake of fact or law needs to be corrected in the written Will.  This Florida law can be used by beneficiaries of a Will in instances where a specific gift in the Last Will and Testament is a mistake; such a situation may arise with regards to the amount of a specific bequest.  Perhaps the decedent’s intention was to provide $50,000 to a grandchild but the Last Will and Testament offered for probate instead […]

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Fort Lauderdale Will and Trust Disputes

Written by on Apr 29, 2012| Posted in: General

Fort Lauderdale Will and Trust Disputes Fort Lauderdale, Florida has a large elderly and affluent population making it a hotbed for Will and Trust Disputes.  These cases may include causes of action for undue influence, lack of capacity and tortious interference. Sometimes family members realize after a loved one dies that a long-standing estate plan has been disrupted by someone who has abused a position of trust and confidence with an elderly person.  Other times, family members have to defend against attack by a disgruntled person who has been excluded from an estate plan. Whether the will or trust dispute is being prosecuted or defended, the attorneys at Adrian Philip Thomas, P.A. are experienced in all aspects of will and trust dispute litigation. Schedule a free consultation with an experienced Florida will and trust dispute lawyer.  Call the Law Offices of Adrian Philip Thomas, P.A. toll free at (800) 249-8125.

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Florida Probate Litigation Lawyers

Written by on Apr 23, 2012| Posted in: Probate Litigation

Florida Probate Litigation Florida Probate Litigation law suits in Florida are ones involving estates, trusts, guardianships and probate.  They may involve documents including: Last Will & Testament, Living Trust, Durable Power of Attorney, etc.  These cases are filed on a daily basis throughout the State of Florida.  Many of these lawsuits include counts for undue influence, lack of capacity, and tortious interference but regardless on the title of the lawsuit they all involve some level of exploitation of the elderly.  Exploitation can occur when a person who stands in a position of trust and confidence with a vulnerable adult knowingly, by deception or intimidation, obtains or uses a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.  Ignoring this sophisticated […]

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Florida Constructive Trust

Written by on Apr 13, 2012| Posted in: Trust Litigation

A Constructive Trust is an equitable remedy and is created when a court, through application of a legal fiction, deems property formerly held by one who wrongfully obtained the property, to be held in Trust for the one who the property justly belongs to be the beneficiary of the Trust.

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Florida Guardianship Attorney’s Fees

Written by on Mar 30, 2012| Posted in: Guardianship Litigation

FLORIDA GUARDIANSHIP ATTORNEY’S FEES Lawyers in Florida who handle contested guardianships and inheritance disputes concerning Wills and Trusts frequently encounter issues regarding what law is to apply to fee dispute resolutions.  As practitioners, it is always important to provide the correct and applicable law to the trial court so that the issue may be resolved appropriate through application of the correct law in existence at the time the dispute arose to the specific facts and circumstances leading to the fee dispute. A case illustrating the importance of guiding the trial court with the correct law was issued by the Second District Court of Appeals in the Guardianship of Kay RC (Fla. 2nd DCA, case number 2D10-5956, March 9, 2012).  This case involved a lawyer who represented the guardian of the ward.  The guardian discharged the attorney and retained another law firm and the first lawyer applied for fees relating to […]

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Writ of Prohibition Probate

Written by on Mar 29, 2012| Posted in: General

EXTRAORDINARY WRITS IN PROBATE As a Florida Probate lawyer who handles lawsuits involving inheritance disputes with Wills and Trusts in Florida, we frequently encounter situations where we are asked to employ a variety of extraordinary Writs that are available in Florida jurisprudence.  Among the extraordinary Writs is the Writ of Prohibition. Typically, a Writ of Prohibition is issued by a District Court of Appeals to prevent or stop a lower court (county or circuit) from any further action involving a lawsuit.  If the Court of Appeals issues an Order to Show Cause upon receipt of the Writ of Prohibition, the consequences are extreme:  The lower court is prevented from conducting further action until the Appellate Court discharges the Writ. The circumstances under which a Writ of Prohibition can be utilized in the Probate context varies but most frequently it involves a request for the District Court of Appeals to prevent […]

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