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Florida Probate Blog

Category: Estate Litigation

Adrian Thomas Lawyer Rating

Written by on Feb 28, 2012| Posted in: Estate Litigation

LAWYER RATINGS Adrian Thomas has achieved the highest lawyer rating in Martindale-Hubbel. AV® Peer Review Rating — An AV® certification mark is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence. A lawyer must be admitted to the bar for 10 years or more to receive an AV® rating. Adrian Thomas has achieved the highest lawyer rating on Avvo.  Adrian Thomas has been selected Florida Trend Legal Elite  for four consecutive years, 2008-2011. See comments from Adrian Thomas’s clients.    

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Florida Guardianship Lawyer

Written by on Feb 24, 2012| Posted in: Estate Litigation

Florida Guardianship Lawyers who focus on elder law topics can prepare wills and trusts, provide Medicaid plans or assist with guardianship for people who are mentally incapacitated.  Being mentally incapacitated is not the same as being mentally incompetent but the conclusion can sometimes be the same – someone cannot take care of himself or herself and needs a guardian to be appointed by the Court.  The Law Offices of Adrian Philip Thomas, P.A. has Florida guardianship lawyers practicing with the firm, including Robert M. Trinkler, who has previously served as counsel of record in more than 2,000 guardianship and incapacity proceedings throughout the State of Florida and who has successfully handled hundreds of adversarial guardianship and incapacity matters.  The lawyers at Law Offices of Adrian Philip Thomas, P.A. have extensive experience in all aspects of Florida guardianship proceedings.

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Florida Marchman Act

Written by on Feb 21, 2012| Posted in: Estate Litigation

With the recent death of Whitney Houston, there has been a heightened awareness of substance abuse and more importantly how pervasive this problem is in all walks of society. Addiction knows no barriers, whether they are social, racial or economic.

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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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Florida Homestead Law

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

Marriage and Homestead in the Florida Probate Process What if my deceased spouse and I were not living together at the time he or she passed away?  Do I still have Florida homestead protection from creditors? I recently had a case where this issue arose.  Although these questions may appear to be ripe for further problems and complex factual disputes regarding the quality and status of the marriage, Florida statutes and courts have made this issue fairly clear.  If you are married at the time of your spouse’s death, you may invoke your surviving spousal rights for homestead protection on your deceased spouse’s home.  Florida does not recognize separations or any other problems that may have existed during the marriage in making a determination of homestead status.  In Florida, you are either married, or you are not.  As they say, “you cannot be a little bit pregnant.” A surviving spouse’s […]

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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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Florida Guardianship, Part 3

Written by on Sep 1, 2011| Posted in: Estate Litigation

There are certain procedures that need to be followed in seeking the determination of incapacity and the appointment of a guardain.  Needless to say, they are quite stringent.  Florida courts understand the gravity of implementing a guardianship and do not take such a course of action lightly.  The relevant statutes in determining incapacity are found in Chapter 744, Florida Statutes, along with the Guardianship Rules within the Florida Probate Rules. The first step in the process is having your attorney file a petition to determine incapacity.  This petition must be filed in the county where the alleged incapacitated person resides or is found.  In addition, it must be signed by the party seeking such a determination under penalties of perjury (also known as a “verified petition”).  Pursuant to Fla. Stat., 744.3201(3), a petition for appointment of a guardian must be filed simultaneously with the petition to determine incapacity.  If the […]

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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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Removal of Personal Representative

Written by on May 16, 2011| Posted in: Estate Litigation

CAN A PERSONAL REPRESENTATIVE OF AN ESTATE BE REMOVED? Pursuant to Florida Statute 733.302, any person who is over the age of 18 years old, and is a resident of Florida at the time of death of the person whose estate is to be administered is qualified to act as personal representative in Florida. You may receive a copy of the Notice of Administration of an estate, which will indicate who is the acting Personal Representative of that estate.  Pursuant to Florida Statue 733.212, a copy of the notice of administration should be served on the following persons who are known to the personal representative:  the decedent’s surviving spouse, beneficiaries, the trustee of any trust and each qualified beneficiary of the trust, persons who may be entitled to exempt property, and interested persons.  Florida Statute 731.201(23) defines an interested person as “any person who may reasonably be expected to be […]

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