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Florida Probate Blog

Author: Adrian P. Thomas

Abuse of the Elderly

Written by on Aug 24, 2011| Posted in: General

Elder Law – Abuse of the Elderly In the context of trust and estate litigation, clients occasionally believe the conduct of others rises to the level of criminal liability.  While filing a lawsuit for breach of fiduciary duty or undue influence can help the client collect money, there are times that a client believes that getting money is insufficient.  Short of requesting charges be filed by the police or State Attorney, there is a Florida law that is commonly referred to as the abuse of the elderly statute that goes beyond the traditional recovery of money when a senior adult is abused. The elder abuse statute (Florida Statute §415.1111) allows for the prosecution of abuse, neglect or exploitation on behalf of a vulnerable adult against any perpetrator.  Such an action pursuant to the statute must be brought by the vulnerable adult, that person’s guardian, by a person or organization acting […]

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Florida Power of Attorney

Written by on Aug 16, 2011| Posted in: General

THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY With Great Power Comes Great Responsibility.  Voltaire There are important differences between standard powers of attorney and durable powers of attorney but each document is ripe for being abused.  A standard power of attorney document provides the authority for another person  (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and not able to pay bills or banking transactions or the principal plans to travel and needs to have documents signed while away, then the ordinary or standard power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf.  A standard power of attorney would become invalid if the principal became […]

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Florida Probate Litigation: Stealing from an Estate

Written by on Aug 9, 2011| Posted in: Probate Litigation

My probate practice regularly performs cleaning services for the messes caused by maladministration of estates by fiduciaries.  Unfortunately, with increasing frequency, estates and their beneficiaries are victimized not only by negligent fiduciaries, but by attorneys who steal from the estates. For example, one attorney was recently charged with stealing more than $300,000 in guns, jewelry and art from a friend who died of cancer.   A beneficiary named in the will contacted police after receiving nothing from the estate.    Evidently, the lawyer was unsuccessful in attempting to be appointed personal representative of the estate.  Further, the lawyer was charged with forgery for allegedly signing the decedent’s name on a check two days after the man passed away.  Finally, the lawyer was charged with perjury for allegedly claiming to be executor of the estate when he re-registered several guns in his name. Misconduct by Florida attorneys involved in handling wills and trusts […]

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Reformation of Florida Trusts

Written by on Jul 25, 2011| Posted in: Trust Litigation

Section 736.0415 of the Florida Trust Code expressly provides that unambiguous provisions of a trust may be reformed where clear and convincing evidence shows that the language of the trust does not reflect the settlor’s intent, even where the evidence regarding the settlor’s intent is contrary to the trust itself: Upon application of a settlor or any interested person, the court may reform the terms of a trust, even if unambiguous, to conform the terms to the settlor’s intent if it is proved by clear and convincing evidence that both the accomplishment of the settlor’s intent and the terms of the trust were affected by a mistake of fact or law, whether in expression or inducement. In determining the settlor’s original intent, the court may consider evidence relevant to the settlor’s intent even though the evidence contradicts an apparent plain meaning of the trust instrument. See § 736.0415, Fla. Stat. […]

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Probate Litigation

Written by on Jul 13, 2011| Posted in: Probate Litigation

While most probate litigation involves challenging and defending wills and trusts, a recent case I handled dealt with the absence of an original will.  Florida probate law provides that when an original will that is known to have existed  cannot be located after the death of the testator there is a presumption that the testator destroyed the will with the intent to revoke it.  In other words, the law is presuming that a last will and testament is important enough to be kept in a safe place so it can be discovered after death.  However, in our firm’s case, the decedent was believed to have kept the original in his safe deposit box yet shortly after his death many potential intestate heirs had access to the safe.  An intestate heir is an heir who exists only when there is no last will and testament.  In our case, the decedent’s children from his first wife […]

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Florida Probate Blog

Written by on Jul 8, 2011| Posted in: General

Florida Probate Blog My law firm contributes relevant topics to our law firm’s Florida probate blog which are designed to educate and inform both lawyers and non-lawyers.  Blogs dealing with probate and trust issues are not designed to legal advice concerning estates, probate, guardianship or trust litigation issues, but are intended as a general introduction to the specific area of concern. Our previous blogs include topics dealing with: Probate Litigation Estate Litigation Trust Litigation Guardianship Litigation Wrongful Death Litigation Undue Influence Lack of Mental Capacity Probate Administration Probate for Resident Aliens / Non-US Citizens Ancillary Probate Matters Elective Share Option Power of Attorney Will Contests Breach of Fiduciary Duty/ Heir & Beneficiary Rights If you would like to subscribe to our Florida Probate Blog, you can input your email address under “subscribe” or click on the RSS feed button.

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Trustee Removal Action

Written by on Jun 6, 2011| Posted in: Trust Litigation

Can I fire my trustee? We receive numerous inquiries from clients asking, “How can I fire my Trustee?”  In Florida, “firing a Trustee” is called a trustee removal action, through which an interested party may seek to remove a trustee of a trust, sometimes for reasons other times for no cause.  Florida Trust law contains specific statutes which address the removal of trustees. According to Florida Statute §736.0706, removal of a trustee may be sought by the settlor, a co-trustee, or any beneficiary. In addition, a court may remove a trustee on its own. Grounds for removal include a serious breach of trust, lack of cooperation among co-trustees, and unfitness, unwillingness, or persistent failure to effectively administer the trust. Any action to remove a trustee on these grounds would be considered a removal “for cause.” Florida Statute §736.0706, also permits the removal of a trustee without cause at the request […]

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Inheritance for a Minor Child: Role of Guardian ad Litem

Written by on May 18, 2011| Posted in: Estate Litigation

How can a minor child inherit from an estate?  In Florida probate,  money and property is often left  to minors.  These gifts to minor can be through  a will or trust, or a child can take through intestacy (where there is no will).  However, Florida probate laws often requires that a guardian ad litem be appointed to represent the minor child’s financial interest. While Florida has laws for guardians of persons and property, oftentimes a minor only needs to have a Guardian Ad Litem appointed.  For all civil matters generally, a court must “appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or…make such other order as it deems proper for the protection of the infant or incompetent person.”  Fla. R. Civ. P. 1.210(b).  Recently my office represented a client is a trust termination case which came from an undue influence contest.  […]

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Abuse of Power of Attorney

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

Power of Attorney Abuse is on the Rise. A power of attorney is a document that transfers legal authority to another person. The person granting the power of attorney is called a principal who gives another, known as the attorney-in-fact, the written legal authority to make decisions on a specific, narrow or broad range of topics. The potential for wrong doing exists in the power of attorney relationship through fraud, theft, improper transfers, self-dealing, improper gifting and retitled accounts and beneficiaries. Power of attorney holders can change beneficiary designations and account titles so the heirs are left with little to no inheritance. A power of attorney can also be abused when dealing with life insurance, annuities, bank accounts, joint accounts or pay on death accounts. Typically, an attorney-in-fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the power of attorney. An attorney-in-fact, however, […]

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Florida Probate Litigation

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

What is Probate Litigation? In Florida, probate litigation is one of the most hotly-contested areas of the law; here, surviving family members use the judicial system to correct an array of injustices. Probate is the legal process by which a person’s debts are paid and assets owned by the decedent are distributed upon death. Probate litigation frequently arises in the context of a Will contest.  When a decedent has created a Last Will and Testament and it is offered for probate, Florida law grants creditors and heirs various rights, privileges and limitations that must be strictly followed. Usually, Florida probate litigation is first considered by a client when they receive a Notice of Administration alerting them that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred. Probate litigation is the broad concept of challenging the contents of the Last Will […]

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