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Florida Probate Blog

Author: Adrian P. Thomas

Notice of Administration in Florida

Written by on Jan 13, 2012| Posted in: Probate Litigation

Notice of Administration in Florida Probate The Notice of Administration is a formal document that notifies all interested parties of the death of the decedent, the filing of the last will and testament for probate, and that an objection to the validly of the will and the probate proceedings must be filed within a certain period of time or be forever barred. The recipient of a Notice of Administration may have a variety of legal bases (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will) to try to stop the administration of the estate or the challenge the validity of the Will.  If you receive a Notice of Administration informing you that you have a limited time-frame, the Notice provisions will override any deals, promises or assurances that if you don’t contest the will you will get your fair share.  So […]

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Florida Trustee: Duty of Impartiality

Written by on Jan 12, 2012| Posted in: Estate Litigation

THE TRUSTEE’S DUTY OF IMPARTIALITY WITH BENEFICIARIES OF A TRUST. Impartial – unable to perceive any promise of personal advantage from espousing either side of a controversy.  Ambrose Bierce Recently, the problem of a trustee financially favoring one beneficiary over another presented itself.  In this case, the trustee was making distributions to one beneficiary without question, while denying the other beneficiary of similar distributions.  When this occurs, it is imperative that a competent attorney review the trust document and any amendments to the trust to determine if there exists any specific language allowing for the inequity in distribution.  If no such language exists, then the trustee has breached their fiduciary duty of impartiality to the beneficiaries of the trust. Florida Statute 736.0803 states that “[i]f a trust has two or more beneficiaries, the trustee shall act impartially in administering the trust property, giving due regard to the beneficiaries’ respective interests.” […]

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Florida Trust Termination

Written by on Jan 10, 2012| Posted in: Estate Litigation

Florida Trust Termination It is not uncommon for people to place real estate in a trust as part of their estate plan. What happens when the person dies and the real estate is unproductive or the value gets reduced?  Recently a client had a one-half interest in a trust that was to last for several years, the primary asset of which was a house.  The owner of the house wanted it to be available for his sibling to use after his death.  Unfortunately, the house had fallen behind in monthly dues with the homeowner’s association and was not used or lived in after the death of the owner.  Of course, expenses (such as property taxes and homeowner’s dues) needed to be paid and the homeowner’s association sued for past due bills. Fortunately, Florida law permits the Court to modify an irrevocable trust if not inconsistent with the settlor’s (the creator of […]

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Personal Representatives Gone Wild

Written by on Nov 29, 2011| Posted in: Probate Litigation

Often with estates, a conflict develops between beneficiaries and the Personal Representative that leads to litigation.  This litigation can be the result of a delay in administration of the estate, distribution of assets, or differences in personality.  Recently a client hired our law firm to seek to remove a Personal Representative who had incurred very substantial fees for travelling around the country to repeatedly check on the decedent’s assets, which was an expense the client felt was unjustified. Florida Statutes list causes for which a Personal Representative may be removed.  One of these causes include “holding or acquiring conflicting or adverse interest against the estate that will or may interfere with the administration of the estate as a whole.”  However, a dispute between the beneficiaries of an estate by itself in insufficient grounds to refuse to appoint a personal representative if otherwise qualified.  That holding, however, came in a case where […]

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Revocation of Trust

Written by on Nov 4, 2011| Posted in: Trust Litigation

Florida Court Suggests Withdrawals from Revocable Trust Principal During Settlor’s Live Can Be Viewed as Revocation of Trust and Subject to Challenge After Death by Remainder Beneficiaries ”When things change very rapidly, we have a fiduciary responsibility to review what are the circumstances.” –Jozef Strauss Florida is home to many elderly persons with dementia who are vulnerable to financial exploitation by others.  Unfortunately, the elderly who are susceptible to undue influence are often victimized by their own family members.   All too often, the safeguards that were presumably put in place through estate planning documents are thwarted by unbridled greed.  Sometimes, even the placement of trust by the elderly in a national financial institution will not immunize the elderly from abuses. A recent Florida appellate opinion details a family scenario frequently encountered by Florida probate lawyers who practice in the field of inheritance disputes involving wills, guardianships, estates and trusts.  Siegel […]

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Florida Trust Litigation

Written by on Oct 12, 2011| Posted in: Trust Litigation

Florida Trust Litigation Personal Jurisdiction It is not uncommon in South Florida for individuals to be beneficiaries of Florida trusts that have a trustee located in a state other than Florida.  There is no rule that the trustee of a Florida trust must be a Florida resident, or even have a presence in Florida.  However, prior to the enactment of the Florida Trust Code there was no specific provision of the Florida Statutes which conferred personal jurisdiction over parties who were not within the geographical boundaries of Florida.  Instead jurisdiction was obtained on out of state trustees and beneficiaries under the general long-arm statutes found in chapter 48.  This lead to substantial litigation in the form of Motions to Dismiss for Lack of Personal Jurisdiction. In trust litigation (as in all lawsuits), it is necessary for the Court to have personal jurisdiction over the trustee(s) and beneficiaries.  Otherwise, the Court […]

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Florida Power of Attorney

Written by on Sep 29, 2011| Posted in: General

THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY, AND CHANGES TO FLORIDA STATUTE 709 AS OF OCTOBER 1, 2011:  PART I. Nearly all men can stand adversity, but if you want to test a man’s character, give him power.  Abraham Lincoln Recent legislation has conformed Florida’s Power of Attorney Statute 709 to the Uniform Power of Attorney Act, with certain modifications, in an attempt to achieve greater consistency among the 50 states and Washington D.C.  On May 4, 2011, the Florida legislature passed Senate Bill 670, on June 21, 2011 the Florida Power of Attorney Act was signed into law by Governor Scott, and it became effective October 1, 2011.  Florida Statute 709 applies to powers created by individuals (with four exceptions), and does not apply to powers created by entities or corporations.  Florida Statute 709 applies to all Powers of Attorney used in Florida and governed by Florida law.  […]

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Florida Inheritance Disputes

Written by on Sep 19, 2011| Posted in: Probate Litigation

Quite frequently, as an inheritance lawyer who handles lawsuits with last will and testaments and codicils, I am asked questions regarding Florida inheritance disputes and the procedures for proving a lost or destroyed will. To establish and probate a lost or destroyed will, the specific content of the will must be proved by the testimony of two disinterested witnesses or, if a correct copy is provided, it must be proved by one disinterested witness.  In one court case involving a Florida inheritance fight, a lawyer provided a copy of the missing will to the court and presented a disinterested witness who testified that it was a correct copy.  Even though there was conflicting testimony by the other witness (who stood to gain if the will was rejected) that the will was later revoked by the decedent, the Court still found the lost or destroyed will could be admitted to probate. […]

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The Trustee’s Duty to Inform

Written by on Sep 15, 2011| Posted in: Trust Litigation

The Trustee’s Duty to Inform and Account The trustee is the person with legal title to trust assets; however, the trust beneficiaries are the true owners of the trust assets.  The trustee has a legal duty to inform and to account to the beneficiaries and the trust beneficiaries are entitled to inspect all documents and papers relating to the trust. The existence of a legal duty is important because it gives beneficiaries rights and remedies and exposes a trustee to liability for breach of those duties. In Florida, the trustee’s duty to inform and to account is found in the Florida Statutes (Florida Trust Code) at §736.0813, which states that the trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and its administration.  This duty includes notifying the beneficiaries of the trustee’s name and address, notifying the beneficiaries of an irrevocable trust that the trust […]

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Florida Intestate Estates: Spousal Shares

Written by on Sep 12, 2011| Posted in: Estate Litigation

New Changes to Spousal Shares in Florida Intestate Estates Beginning October 1, 2011, new rules regarding Florida Intestate Estates will go into effect, drastically changing what happens in estates involving spouses who die without a Will. Florida law has long recognized the rights of married persons whose spouse dies intestate, or without a Will. The surviving spouse’s share was determined based upon whether the deceased spouse had children, and whether those children were also the children of the surviving spouse. Under the current law, Florida Statute §732.102, the intestate (without a Will) share of the surviving spouse is: (1)  If there is no surviving descendants of the decedent, the entire intestate estate. (2)  If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated […]

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