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Florida Probate Blog

Author: Victor D. Orihuela

UNDUE INFLUENCE AND THE BURDEN OF PROOF

Written by on Oct 14, 2013| Posted in: Probate Litigation

A large number of cases that we litigate regard a will or a trust that our client believes should be invalidated on the basis of undue influence.  In order to prove such a case, it must be shown that that the testator’s mind was so controlled by persuasion, pressure, and outside influences that he or she did not act voluntarily, but was subject to the will of another (the defendant) when the execution of the document took place.  In re Estate of Starr, 125 Fla. 536 (1936).  Moreover, an important aspect of any case regarding undue influence is the establishment of a presumption of undue influence, which is created by showing that the defendant is a substantial beneficiary under the will or trust, that he/she possessed a confidential relationship (or close relationship) with the testator, and that he/she was active in the procurement of the will or trust.  In re […]

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Last Will Mistake

Written by on Sep 18, 2013| Posted in: Probate Litigation

I Made a Mistake! Particularly in their later years, people begin addressing how their assets will be distributed amongst their loved-ones.  Whether by creating a trust for the first time or by amending a previous one, people try to make sure that everyone they want to take care after their death is actually provided for in their testamentary documents.  However, what happens if a mistake is found in the trust?  What happens if that mistake is found after the testaor passes away?  Is there any recourse provided by Florida Statutes or in case law that allow for some type of relief in such instances? The Florida legislature codified the reformation of a trust instrument based upon a mistake in 2007 by the passing of Fla. Stat. 736.0415, which reads as follows: Upon application of a settlor or any interested person, the court may reform the terms of the trust, even […]

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Judicial Modification of Trusts

Written by on Jun 4, 2013| Posted in: General

Trusts are created for a variety of reasons.  Whether it is for tax and creditor protection or because the beneficiary is still a minor, there may be myriad reasons for their preparation.  Nevertheless, the initial purpose behind the execution of a trust may get lost or become impractical as time passes or the circumstances that were present at the time of its execution are no longer present or have changed making judicial modification of trusts necessary. In contemplation of such changing of circumstances, the Florida legislature enacted Fla. Stat. §736.04113 which allows a trustee or a qualified beneficiary to petition the court for an order to modify or terminate a trust in the event that settlor’s purpose behind executing the trust is no longer being satisfied.    The statute states, in relevant part, as follows: (1)    Upon application of a trustee of the trust or any qualified beneficiary, a court at any time may modify the […]

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ATTORNEY’S FEES AND COSTS IN BREACH OF FIDUCIARY DUTY MATTERS

Written by on Feb 27, 2013| Posted in: Probate Litigation

In the Florida Probate Code, the legislature has taken into account the various attorney’s fees and costs incurred during an estate or trust proceeding, including when there are contested matters and allegations of breach of fiduciary duty.  No attorney can guarantee that your attorney’s fees will be paid from the other side; however, there are several statutes that allow a petitioner to seek such financial relief. Fla. Stat. 733.106 states, in relevant part, as follows: (1)   In all probate proceedings costs may be awarded in chancery actions …. (3)   Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate. (4)   When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid. Fla. Stat. 733.609 states, in relevant part, as follows: (1)    A personal representative’s fiduciary duty is the […]

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Florida Guardianship and Examining Committee Reports

Written by on Jan 16, 2013| Posted in: Guardianship Litigation

When there are concerns that a loved-one may have limited mental capacity, it may be appropriate to petition the Court for implementation of a guardianship.  However, courts view guardianships as a last resort, and they will not usually grant them if there is a sufficient less restrictive alternative to guardianship.  Examples of these less restrictive alternatives would be a power of attorney, a healthcare surrogate, and/or a trust. Nevertheless, there are times when courts have to intervene and initiate a guardianship.  Once a petition to determine incapacity is filed, the court orders that three (3) examining committee members assess the alleged incapacitated person’s mental health and they provide recommendations to the court as to whether or not they believe that a guardianship should be initiated by the court. However, there has been some recent case law that may shed some light as to how strictly the court should consider these […]

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HOMESTEAD REAL PROPERTY AND A SURVIVING SPOUSE’S ELECTION

Written by on Nov 19, 2012| Posted in: General

The Florida Constitution (Article X, Section 4), Florida Statutes, and Florida decisional law delineate the different protections offered to family of a decedent’s homestead property.  Most recently, Fla. Stat. 732.401 was enacted by the legislature and provides, in relevant part, as follows: (1)  If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes. (2)  In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being […]

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Pretermitted Share vs. Elective Share

Written by on Sep 28, 2012| Posted in: General

Assuming there is no pre-marital agreement, a surviving spouse who is not included in the decedent’s Will may take a pretermitted share or an elective share.  Which one to take requires an analysis of what the decedent owned and – more importantly – how he owned it. A “pretermitted” spouse is one who becomes a spouse after the decedent created his Will.  The law assumes that the decedent intended to provide for the spouse but simply did not get around to updating his Will.  The pretermitted share is the same as the intestate share, which is 50% of the probate estate.  The elective share makes no assumption about what the decedent intended and is a mechanism for enforcing Florida’s public policy against disinheriting one’s spouse.  The elective share is 30% of the elective estate.  The elective estate is much broader than the probate estate and may include revocable trusts, jointly-owned property, pay-on-death […]

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Removal of Personal Representative

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

Removal of Personal Representative:  When conflicts between Personal Representatives and Beneficiaries create grounds for removal.             The administration of an estate can sometimes be a difficult and tedious process, which is further aggravated when the ever-present emotional aspects continue to linger, especially amongst heirs who have lost a loved-one.  Nevertheless, personal representatives are bound to their statutory duties and to properly administer the estate in the best interest of the beneficiaries.  But what happens when that duty is breached or there appears to be a clear conflict between the personal representative and a beneficiary?  Florida statutes and case law have provided several avenues for beneficiaries to seek appropriate remedies in such cases; however, one thing that beneficiaries need to remember and understand is the extreme dislike between beneficiaries and personal representatives is not sufficient grounds for removal of a personal representative.  Parker v. Shullman, 843 So.2d 960 (Fla. 4th DCA 2003).               […]

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Creditor Claims Florida Probate

Written by on May 31, 2012| Posted in: Estate Litigation

CREDITOR CLAIMS IN THE FLORIDA PROBATE PROCEES             As is often the case, people pass away with a debt owed to another person or entity.  When this occurs, the proper manner for a creditor to collect on such a debt is to file a Statement of Claim in the decedent’s estate pursuant to Fla. Stat. §733.703.  The primary time limitation that creditors must be wary of stems from Fla. Stat. §733.702, which states that the claim must be filed within three (3) months after the time of the first publication of the notice to creditors (which is published by the personal representative near the commencement of the estate administration) or, if the creditor is a known and/or reasonably ascertainable creditor, thirty (30) days after being served with the notice to creditors.  Typically, the proper person to file an objection to any such claim is the personal representative.  However, under the […]

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Creditor Claims in Florida Probate

Written by on Apr 16, 2012| Posted in: Probate Litigation

If you are involved in an estate administration that requires some attention to the collecting or defending of a creditor claim, it is in your best interest to consult with an attorney experienced in the Florida probate process in order to ensure that the proper steps are being taken to prosecute or defend such a claim.

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