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Florida Probate Blog

Category: Estate Litigation

Grounds for Florida Will Contest

Written by on Jul 11, 2013| Posted in: Estate Litigation

Many families, upon the death of a loved one, along with dealing with the obvious associated pain, also unfortunately are presented with the situation where they believe that there may have been questionable circumstances involved in the process of the preparation and drafting of the Will. The question arises, are there actually grounds to contest the Will? The first consideration in making this determination is whether the Will was properly executed. IN RE Estate of Blakenship 122 So. 2d 466 (Fla. 1960) declared that the requirements for execution and qualification are governed by statute and F.S. 732.502 sets for the requirements for proper execution. A general roadmap requires scrutiny of, at the very least, some of the following issues: F.S. 732.501 indicates that the testator must be of sound mind and at least 18 years of age or an emancipated minor. The Will must be in writing, signed at the […]

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Florida Trust Lawyer

Written by on Jun 28, 2013| Posted in: Estate Litigation

The Florida Trust Code continues to grow and respond to the suggestions of the Florida Bar and Florida Trust Lawyers. A recent example is the recent enactment of Senate Bill 492 which made a number of changes which were recommended by Florida Trust Lawyers participating in the Florida Real Property, Probate, and Trust Law Section of the Florida Bar. One of the more significant changes of the Florida Trust Code used by Florida Trust Attorneys, which becomes effective October 1, 2013, is the expansion of the long arm jurisdiction of Florida Courts to adjudicate trust disputes. Many Florida Probate lawyers and Florida Trust attorneys remember the lesson from Pennoyer v. Neff, a SCOTUS opinion from 1878 which held that service over a person or property physically within a state confers jurisdiction to that person or property. But what happens when a beneficiary of a Florida trust has a dispute with […]

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What is a Spendthrift Trust?

Written by on Jun 18, 2013| Posted in: Estate Litigation

A valid spendthrift provision prevents a beneficiary from transferring his or her interest in the trust as well as prevents creditors or assignees of the beneficiary from reaching any of he trust funds until they are dispersed to the beneficiary.

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Inheritance Dispute Lawyers

Written by on Apr 8, 2013| Posted in: Estate Litigation

 Remedies Available in Florida Courts Tortious interference with an inheritance is a relatively new but widely recognized tort that is currently accepted in Florida and half of the United States.  Many other states have reported cases from their state Supreme Court or appellate level addressing the tort, but declining to determine whether it is recognized.  Clearly, the trend is moving toward national acceptance and recognition of the tort. The importance of availability of the tort cannot be understated.  It serves many purposes, especially in Florida, where elderly and vulnerable adults are preyed upon by unscrupulous persons seeking to financially exploit Florida’s elderly citizens.    The tort provides a remedy in the form of money, a civil remedy, to a person who believes that another has wrongfully interfered with an inheritance.  The remedy is awarded by the civil court, not the probate court, and the money award is paid by the person […]

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Homestead Property and Joint Ownership

Written by on Sep 17, 2012| Posted in: Estate Litigation

  HOMESTEAD PROPERTY AND JOINT OWNERSHIP “The home to everyone is to him his castle and fortress, as well for his defense against injury and violence, as for his repose.”  Edward Coke. Recently, new case law has established that exactly how the Deed is worded it is very important in the determination of whether the property was a homestead property when one of the owners of the property dies.  Article X, section 4( c) of the Florida Constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.”  If a Florida resident acquires property as a joint tenant with rights of survivorship while he has a minor child and lives in the primary residence, the property will not be deemed the decedent’s homestead, as it passes entirely at the time of his death to the other joint tenant. The recent […]

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Broward County Trust Litigation

Written by on Aug 2, 2012| Posted in: Estate Litigation

Broward County Trust Litigation cases are filed in the Seventeenth Judicial Circuit in Fort Lauderdale, Florida.  Broward County cities include:  Coconut Creek, Cooper City, Coral Springs, Dania Beach, Davie, Deerfield Beach, Fort Lauderdale, Hallandale, Hollywood, Lauderdale-by-the-Sea, Lauderdale Lakes, Lauderhill, Lighthouse Point, Margate, Miramar, Plantation, Pompano Beach, Pembroke Pines, Sunrise, Tamarac, and Weston. For more information about various Broward County Trust Litigation causes of action, click here. If you have a Broward County Trust Litigation question, call the attorneys at Adrian Philip Thomas, P.A. for a no obligation consultation at 800-249-8125.

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Exploitation of the Elderly

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

The Gold Digger “She take my money when I’m in need Yeah, she’s a triflin’ friend indeed Oh, she’s a gold digger way over town That digs on me.” ~ Ray Charles and Kanye West While the lyrics may be slightly tongue-in-cheek, there is nothing funny about elder abuse.  Elderly people are uniquely vulnerable to exploitation in many forms.  One of the most insidious forms is exploitation masquerading as romantic love.  Traditional notions that the “gold digger” was always a young, attractive female exploiting an older man have given way to the reality of gender equality.  Just as often, it is a younger male exploiting an older woman of financial means.  Oftentimes, the exploiter is a contemporary, but the sirens don’t go off for family as quickly as they do when someone younger starts showing interest. Elderly people are uniquely vulnerable to this particular type of exploitation for several reasons.  […]

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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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Breach of Fiduciary Duty Statute of Limitations

Written by on Jun 11, 2012| Posted in: Estate Litigation

WHAT IS THE STATUTE OF LIMITATIONS FOR BREACH OF FIDICUARY DUTY OF A TRUSTEE IN A TRUST ACTION? “Man must cease attributing his problems to his environment, and learn again to exercise his will – his personal responsibility in the realm of faith and morals.”  Albert Schweitzer When a trustee is appointed, the trust instrument and Florida law direct and authorize the trustee to perform their duties as fiduciaries.  When a trustee breaches his fiduciary duty, what is the statute of limitations time frame in which to bring a lawsuit against the trustee?  Florida law (section 736.1008 and chapter 95) provides specific time-frames within which lawsuits can be filed against a trustee.  The law first imposes a short, six-month limitation period for bringing an action against a trustee for a breach of trust if the beneficiary has received a final, annual, or periodic account “fully disclosing the matter”.  Florida Statute 737.307; […]

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How many witnesses are required for a Trust in Florida?

Written by on Jun 6, 2012| Posted in: Estate Litigation

How many witnesses are required for a Trust in Florida? The Florida Trust Code sets forth the requirements for how many witnesses are required for a Trust in Florida.  Specifically, Fla.Stat. 736.0402(1), provides: The settlor has capacity to create a trust; The settlor indicates an intent to create the trust; The trust has a definite beneficiary (with some exceptions, e.g. trust for care of animals); The trustee has duties to perform; and The same person is not the sole trustee and sole beneficiary. There are also certain formalities required for creation of a revocable trust.  Fla.Stat. 736.0403(2) provides that “the testamentary aspects of a revocable trust, executed by a settlor who is a domicilary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state.”  This begs the question “what […]

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