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Florida Probate Blog

Author: Michele M. Thomas

Probate and Due Process in Florida

Written by on Dec 14, 2016| Posted in: General

DEATH, PROBATE AND DUE PROCESS:  Do the Notice Requirements Under the Florida Probate Code and Rules Pass Constitutional Muster? by Adrian P. Thomas, Michele M. Thomas and Daniel A. McGowan Property rights are among the basic substantive rights expressly protected by the Due Process Clause of the United States Constitution and the Florida Constitution.[i]  Probate proceedings are in rem proceedings directed against property and against anyone claiming an interest in the property.[ii]  A proceeding to admit a will to probate affects the property rights of an interested person and that person is entitled to due process of law before those rights are extinguished, diminished or otherwise affected.   Due Process             The United States Supreme Court has held that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonable calculated, under all the circumstances, to apprise interested parties of the pendency […]

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Convicted Felons Cannot Serve as Personal Representative

Written by on May 14, 2016| Posted in: Probate Litigation

In Florida, a person is not qualified to act as personal representative of a decedent’s estate if the person has been convicted of a felony.  See, Fla.Stat. 733.303.  In a recent opinion, the Fourth District Court of Appeals recently upheld the trial court’s denial of a father’s petition for administration of his daughter’s estate. (See, In re: Estate of Sharonda Renae Butler, 41 Fla.L.Weekly D979a.) The father claimed that because he was the sole heir that his prior felony conviction, which disqualifies him under the statute, should not disqualify him in his daughter’s estate.  The trial court disagreed and the Fourth DCA sided with the trial court.   Although the father’s position is understandable from a beneficiary’s view point – that as the only beneficiary there is no one else to object to or be affected by his appointment as personal representative –  it also overlooks the other large class the Florida Probate […]

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Decidedly Inconvenient: Joint Accounts and POD Accounts

Written by on May 13, 2016| Posted in: General

“But Mom only added my brother so he could pay estate expenses and then the money was supposed to be divided equally amongst all of the children like the Last Will & Testament says!” Almost every day, a prospective client calls to say that a sibling was added to Mom’s bank account, either as a joint tenant or as the pay-on-death beneficiary, solely for “convenience” purposes so he or she could pay estate expenses and that it was Mom’s intention that the remaining funds be distributed equally to all of her children.  Naturally, the sibling who was added to the account does not share this view (which is the reason for the phone call).  Invariably, the sibling who was added is the one who lives closest to Mom so it is simple for him to rationalize and justify keeping all of the money – even when that is not what Mom wanted –  because “I was the one helping out.”  In this way, […]

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Attorney’s Fees in Will Contest

Written by on May 5, 2016| Posted in: Probate Litigation

William Anderson v. Laura McDonough, Personal Representative of the Estate of Helen E. Anderson (41 Fla.L.Weekly D884b), April 15, 2016 In a recent opinion, the Second District Court of Appeals held that the personal representative of an estate was not entitled to a personal judgment for attorney’s fees against an unsuccessful will contestant.  The trial court entered an order awarding the estate $51,897 in attorney’s fees against William Anderson for his unsuccessful challenge to his mother’s Last Will & Testament.  The Second DCA reversed the award because it was unsupported by the law and by the facts of the case.   Anderson and his brothers were excluded from their mother’s will, which left everything to their aunt.  Anderson brought a will contest but the court upheld the will as valid.  The estate then filed a motion for attorney’s fees against Anderson pursuant to Fla. Stat. s. 733.106, which provides that: […]

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Who has standing to assert claim for tortious interference with an expectancy?

Written by on Oct 21, 2015| Posted in: Estate Litigation

TORTIOUS INTERFERENCE WITH AN EXPECTANCY IS AN INTENTIONAL TORT AND THE DISAPPOINTED BENEFICIARY IS THE PERSON WITH STANDING TO BRING THE CLAIM Tortious interference with an expectancy has been a recognized tort theory in Florida since 1966.  Allen v. Leybourne 190 So.2d 825 (Fla. 3d DCA 1966) (“when there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action”).    Several years later, the Third District Court of Appeals upheld the following jury instructions in a tortious interference with an expectancy case: The issues for your determination on the claim of the Plaintiff are whether prior to a certain date, Decedent had a formed, fixed intention to give Plaintiff a share of his estate, and, if […]

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DeWitt and the Importance of Adequate Probate Remedies

Written by on Oct 6, 2015| Posted in: Estate Litigation

When is “failure to exhaust probate remedies” properly asserted as an affirmative defense to a tortious interference with an expectancy action?  The answer is almost never.  (Click here for information about the tort action.) The Dewitt v. Duce, 408_So.2d_216, (Fla. 1981), holding can be paraphrased as follows:  The State of Florida has an interest in the orderly succession of property and therefore prefers that a dispute concerning a decedent’s property be conducted in probate shortly after the decedent’s death rather than in a civil action years later.  Therefore, if you can achieve exactly the same result with a Will contest that you could with a tortious interference law suit, then you must chose the Will contest.  If you do not chose the Will contest, then you will be unable to sue for tortious interference later for one simple reason:  “The probate of a Will in Florida is conclusive of its due […]

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Time Share Scam

Written by on Feb 5, 2015| Posted in: Uncategorized

It has come to our attention that an individual claiming to be Attorney Adrian Thomas is contacting people around the country about buying and selling time shares.  This is a SCAM.  Do not give this individual any information about you or about your bank accounts.  The man calling leaves a message that he is “Attorney Adrian Thomas” calling about timeshares and leaves the following callback numbers:  321-200-0097, 321-250-6903, 321-250-9121.  Directions are sent to send money to the Dominican Republic via Western Union.   The matter has been reported to the Federal Bureau of Investigation and the Federal Trade Commission.  If you are contacted by someone claiming to be Attorney Adrian Thomas about a timeshare, please provide this office with the information so we can pass it along to the FBI. If you have lost money through this scam, please log on to www.ic3.gov to file a complaint with the FBI. Thank you to those of you who took the […]

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Trust Modification under Florida’s Trust Code

Written by on Dec 18, 2014| Posted in: Trust Litigation

Can a court consider extrinsic evidence when asked to modify a trust under the judicial modification statutes even if the trust instrument is unambiguous?  YES! Historically, common law rules of construction provided that the intent of a settlor of a trust should be ascertained from the “four corners” of the trust and that extrinsic evidence of the settlor’s intent should only be considered if there was an ambiguity in the trust instrument.  The effect of this common law rule was that a trustee or beneficiary seeking to modify the terms of the trust would only be permitted to do so if the court found that the trust, or a portion thereof, was ambiguous.  Absent ambiguity, the court was unable to consider any other evidence of the settlor’s intent and the beneficiaries were stuck with whatever the trust said on its face.  The old analysis changed when Florida adopted the Florida […]

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