“Florida inheritance dispute” is a general term that may include several types of litigation, including Will disputes (lack of mental capacity and undue influence), tortious interference with an expectancy, elective share litigation, breach of fiduciary duty litigation, trust dispute, and exploitation of the elderly.  If you believe you have a Florida inheritance dispute issue, you should consult with an attorney who limits his practice to this area of the law, which is complicated and requires experience.

To read more about Florida Inheritance Disputes, please visit Florida Probate Lawyer.

If you would like a consultation with a Florida Inheritance Dispute Lawyer at Adrian Philip Thomas, P.A., please call (800) 249-8125 to schedule a free consultation.

Fort Lauderdale Will and Trust Disputes

Fort Lauderdale, Florida has a large elderly and affluent population making it a hotbed for Will and Trust Disputes.  These cases may include causes of action for undue influence, lack of capacity and tortious interference.

Sometimes family members realize after a loved one dies that a long-standing estate plan has been disrupted by someone who has abused a position of trust and confidence with an elderly person.  Other times, family members have to defend against attack by a disgruntled person who has been excluded from an estate plan.

Whether the will or trust dispute is being prosecuted or defended, the attorneys at Adrian Philip Thomas, P.A. are experienced in all aspects of will and trust dispute litigation.

Schedule a free consultation with an experienced Florida will and trust dispute lawyer.  Call the Law Offices of Adrian Philip Thomas, P.A. toll free at (800) 249-8125.

Tampa Probate Lawyer

Probate lawyers in Tampa share the same concerns as probate lawyers throughout the State of Florida – lawsuits involving wills, trusts, estates, guardianships and other elder law matters.  Tampa is a part of the metropolitan area most-commonly referred to as the Tampa Bay Area and Tampa-St. Petersburg-Clearwater. This four-county area is composed of roughly 2.7 million residents, a substantial number of whom are elderly.  Accordingly, trust and will litigation, probate and guardianship disputes, and other elder law matters arise on a frequent basis.  The attorneys at Adrian Philip Thomas, P.A. find themselves litigating in Tampa almost as much as any other area in Florida.  Mr. Thomas is a well-respected Florida litigation probate and trust attorney and is the managing partner of his boutique, nine-attorney Fort Lauderdale law firm.  Our firm video demonstrates the commitment we have to our clients.  To learn more about our law firm, please watch our video at  or find it on our website at www.florida-probate-lawyer.com .

 

EXTRAORDINARY WRITS IN PROBATE

As a Florida Probate lawyer who handles lawsuits involving inheritance disputes with Wills and Trusts in Florida, we frequently encounter situations where we are asked to employ a variety of extraordinary Writs that are available in Florida jurisprudence.  Among the extraordinary Writs is the Writ of Prohibition.

Typically, a Writ of Prohibition is issued by a District Court of Appeals to prevent or stop a lower court (county or circuit) from any further action involving a lawsuit.  If the Court of Appeals issues an Order to Show Cause upon receipt of the Writ of Prohibition, the consequences are extreme:  The lower court is prevented from conducting further action until the Appellate Court discharges the Writ.

The circumstances under which a Writ of Prohibition can be utilized in the Probate context varies but most frequently it involves a request for the District Court of Appeals to prevent a lower court from exercising its jurisdiction in a matter that it has no jurisdiction to decide.  Once such case recently ruled on by the Third District Court of Appeals from Miami-Dade County illustrates the use of Writ of Prohibition in Probate court.

In Carlton Fields PA and Gary W. Pollock v. Edward J. Locascio and In Re: Estate of Sylvia M. Locascio (Fla. 3^rd DCA numbers 3D12-20 and 3D11-3342 March 7, 2012), the Third District Court of Appeals ruled that prohibition was not an appropriate remedy to prevent the lower court from acting in excess of its jurisdiction.  In the Locascio Estate, creditors held property liens on Edward S. Locascio’s property following his conviction for the murder of the decedent.  Although the Probate court recognized that the decedent’s property had passed outside of probate, the creditors refused to release their recorded liens.  On appeal, the Third District Court of Appeals held that the Probate court was without jurisdiction to continue controlling the convicted murder’s interest in the residence or in his share of the net proceeds for sale because those property rights were not part of the Estate of Sylvia Locascio or otherwise under the jurisdiction of the Probate court.

This case is an important reminder of the importance of using extraordinary Writs for review of interlocutory orders and actions by Probate lawyers in Florida.

Virtual Adoption and its Effects on Estates and the Probate Process

Roger dies without a will.  He is survived by his son, Junior, and his purported daughter, Mary.  During a previous marriage, Roger and his first wife had attempted to adopt Mary, who was a young child at the time.  They file the necessary paperwork with the family court, along with the signed consent of the natural mother.  Mary lives with Roger for some time, with Roger treating her and introducing her to other as his daughter.  Unfortunately, before the adoption is finalized, Roger and his first wife divorce, and the adoption is never finalized.  By the time the divorce is final, Mary is no longer a minor and has moved out of Roger’s home to live with her boyfriend.  Fast-forward to the present, Roger’s estate is opened and Junior is appointed as the personal representative.  He now attempts to exclude Mary as a beneficiary claiming that she is neither the biological nor the adopted child of Roger.  Does Mary have any recourse?  Is Mary not an heir of Roger’s estate merely because of this technicality?

The Law Regarding Virtual Adoptions

In the legal realm and in Florida courts, “virtual adoption” is a coined phrase wherein a person agrees in a contract to legally adopt a child of another, but, for one reason or another, the person fails to do so (a legal synonym for this would be “equitable adoption”).  This is not an overly common issue before the courts; in fact, if the issue was presented before a local judge, it may be met with a blank stare.  Nevertheless, this issue does find its way in the courts, and more specifically, in the context of probate and estate issues.

In 1985, the Fifth District Court of Appeals of Florida discussed the elements required to prove “virtual adoption” and they are as follows:

1. An agreement between the natural and adoptive parents (to adopt the child);
2. Performance by the natural parents of the child in giving up custody;
3. Performance by the child by living in the home of the adoptive parents;
4. Partial performance by the foster parents in taking the child into the home and treating the child as their child; and
5. Intestacy of the foster parents.

All of these elements must be proven through clear and convincing evidence.

In re the Heirs of Hodge, 470 So.2d 740 (Fla. 5^th DCA 1991); In re Estate of Musil, 965 So.2d 1157 (Fla. 2d DCA 2007).

Virtual adoption is not a mechanism to create a parental relationship between people; it is an equitable remedy to enforce a contract.  An adopted child has the same rights as a biological child under Florida law.  As a result, a child who proves virtual adoption has the same rights a biological child to inherit from the estate of a parent.

Additionally, the Florida Probate Code directs who should have preference of appointment as the personal representative when the decedent dies without a will.  Fla. Stat. §733.103(b) states that such preference shall be given in the following order: (1) the surviving spouse; (2) the person selected by a majority in interest of the heirs; and (3) the heir nearest in degree (if more than one applies, the court may select the one best qualified).

Virtual Adoption of Mary

Going back to our example with Junior and Mary, Mary first has to prove all of the elements for a virtual adoption.  (a) Was there an agreement between Mary’s natural parents and Roger to adopt Mary?  According to our facts, Roger and his first wife filed all of the necessary paperwork under the family statutes to adopt Mary, including the signed consent of Mary’s parents.  This signed consent acts as the required agreement; therefore, the first element is satisfied.

(b) Was there performance by Mary’s natural parents to give up custody?  Given our facts, Mary had been living with Roger, had been a financial dependent of Roger, and in all other ways been the parent of Mary. Through this conduct of Roger and the consent by Mary’s natural mother, performance by Mary’s natural parent could be proven.  If only the paperwork had been filed, but Mary had still been living with her natural parent, then this element may be difficult to prove.

(c)  Was there performance by Mary by living in the home of Roger?  Since Mary lived with Roger and the first wife, then no longer lived with Roger after he divorced, this element would nevertheless be satisfied since Mary had shown performance. In Laney v. Roberts, 409 So.2d 201 (Fla. 3d DCA 1982), the Court noted that “[t]he performance required by the child is satisfied by living in the home of the adoptive parents.”  In this case, the adoptive parents and the child became estranged once the child reached the age of majority. The court noted that even if the relationship “was distant — even nonexistent — such a fact does not serve to defeat claim” by the child seeking to retain her interest as an heir.  Therefore, even if Roger and his first wife divorced and Mary moved out because she was no longer a minor, this would in no way impact the satisfaction of this element.

(d) Did Roger take Mary into his home and treat Mary as his own child?  Mary would have to show that not only did she live with Roger, but that he treated her as her dependent and held her out as his daughter.  Our facts indicate that this element may be satisfied.  Mary may have to prove through written documentation, specifically Roger’s income tax statements and other bank documents that Mary was a financial dependent of Roger.  In addition, if there were any family friends who knew Roger and Mary during the time that they lived together, their testimony would be relevant.  This family friend may know if Roger introduced and in all ways considered Mary as his daughter.

(e)  Did Roger die intestate?  Intestate is a probate term meaning that the decedent died without a valid will.  The decedent’s estate would then pass to the appropriate interested parties as designated in the Florida Probate Code.  In Mary’s case, unless someone can show the Roger did have a valid will when he died, this element will be satisfied.

In and apart from a mere beneficial interest in Roger’s Estate, Mary may also have a claim to remove Junior as the personal representative and petition the Court to have her appointed as the personal representative.  As indicated above, Fla. Stat. §733.103(b) (2), (3), the Court will grant preference of appointment of a personal representative of an intestate estate to a person selected by a majority of the interested parties, and, if there is no majority, to the heir closest in degree.  In Mary’s case, if she can successfully convince the Court to enter an order that validates the virtual adoption by Roger, then she can subsequently claim that Junior never received her consent, as an interested party, to become the personal representative.  In addition, she would also be in the same class of heirs as Junior in regards to the closest degree.  Therefore, she may be successful in not only removing Junior as the personal representative since he did not have the consent of a majority of the interested parties, but she may also petition the Court that she is an heir closest in degree and that, given the circumstances, she would be best qualified to serve and to administer the Estate for the best interests of the beneficiaries.

Conclusion

As stated previously, virtual adoptions have not been an overly-common occurrence in the Florida courts; however, they have become more prominent in recent years.  This may be due to the differences in society over the last several decades.  People who are now in their 80’s and 90’s most likely had children in the 1940’s and 1950’s, during a time that the idea of a litigious family squabble was much less prominent than it is today.  As a result, people then may not have taken the time to make sure that every technical aspect of an adoption was finalized.  Florida probate courts have increasingly been presented with the virtual adoption argument, and this may only be the beginning of a much more prominent issue that the Courts will have to consider.  Therefore, it is important for any potential beneficial heir of a loved-one’s estate to be fully aware of circumstances and legal aspects of an estate administration, and the best way to be informed of such issues is to consult a probate attorney.

Attorney Fee Issues in Florida Probate Court Partition Actions

Lawyers in Florida who handle inheritance disputes and lawsuits involving wills and trusts in probate court often find themselves embroiled in a battle for attorneys ‘ fees.  Typically, in Florida for an award of attorney’s fees to be paid, there has to be some statutory or contractual basis.  In other words, if the parties don’t have an agreement that provides that the lawyers will be paid, then there must be some law written in the books by the state government that affords payment for legal fees.

Florida estate and trust lawyers sometimes encounter situations in the administration of wills, estates, and trusts, that involve dividing a parcel of real property for distribution to beneficiaries.   These types of cases are referred to as “partition actions” and lawyers are entitled to an award of fees.   Florida Statutes Section 64.081.  The amount of attorney’s fees to be awarded in a partition action is within the discretion of the trial court.  This rule was affirmed recently by a Florida Court in Fernandez-Fox v. Reyes (Fla. 5^th DCA, February 17, 2012).  Pursuant to the statute, each party to a partition action must pay a share of the attorney’s fees to the plaintiff’s attorney, the defendant’s attorney, or to each of them.

Is a decedent permitted to forgive debt owed to him when his estate is insolvent to pay the debts and costs of administration? 

According to Florida’s Fifth District Court of Appeals, the answer is “no.”

In Lauritsen v. Wallace, 67 So.3d 285 (Fla. 5th DCA 2011), the decedent father had included a provision in his Last Will & Testament forgiving his son’s debt to the father, which was secured by a promissory note.  The decedent’s estate was insolvent so the Personal Representative asked that the note be included as an estate asset.  The trial court held that the debt was forgiven at the instant the decedent died so it could not be considered an asset.  The appellate court disagreed.

This was a case of first impression in Florida.  The Court noted that “there are no Florida cases that address the question of whether the release and forgiveness of an obligation in a will operates to defeat the payment of obligations and expenses of a decedent’s estate.  However, other jurisdictions have considered the question, and have uniformly concluded that forgiveness of a debt in a will occurs only after creditors and expenses are paid.”

Further, the Court found that “several sections of the probate code support the conclusion that a devise cannot be elevated over administrative expenses and the rights of creditors” and cites Fla.Stat. 731.201(10), Fla.Stat. 733.805(1), and Fla. Stat. 733.707(1).

Ultimately, the Fifth District Court of Appeals held that “a decedent can release a debt owed to the decedent through a testamentary devise only to the extent that the decedent’s estate is solvent to pay all debts and administrative costs of the estate.”

Guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of a disabled or incapacitated person.  In Florida, the circuit courts have jurisdiction over guardianship matters.  The disabled or incapacitated person is referred to as the “ward.”  There are several different types of disability or incapacity, including:  being a minor child with no living parents, being a mentally ill or handicapped adult, being an elderly person with dementia, being disabled by injury (for example a stroke), being so impaired by substance abuse that the person is effectively disabled.  In general, a person is “disabled” for guardianship purposes if the person is unable to conduct his or her personal or business affairs or lacks the physical or mental capacity to care for his or her support needs, which may be due to minority (under 18), old age, illness, substance abuse, mental illness, birth defect, traumatic accident, etc.  So a guardianship is the state stepping in to help someone who cannot properly care for himself to receive care and assistance.  A guardian is an institution or an individual who is appointed by the court to care for that person.

To learn more about guardianship administration in Florida, visit our guardianship practice areas page.

Estate Law Florida

What is “estate” law?

From a lawyer’s perspective, the term “estate” refers to many different things.

Gross Estate

The Internal Revenue Service uses the term “gross estate” to mean every asset in which a decedent had an ownership interest on his or her date of death.  This includes real estate, life insurance, bank accounts, stocks, etc.  If a decedent dies with significant wealth, his estate is subject to an “estate tax” and the attorney will need to prepare a Federal Estate Tax Return, form 706.

Probate Estate

The term “probate estate” refers only to those assets owned by the decedent in his or her sole name.  Some decedents have nothing subject to probate, some have a few assets subject to probate, and other decedents have all of their assets subject subject to probate.

Trust Estate

If a decedent had a revocable or “living” trust, then the assets owned by the trust are referred to as the “trust estate.”  These assets are not subject to probate in the court system and are therefore separate and distinct from the probate estate.  A decedent may have both probate estate and a trust estate depending on the ownership of the assets at the time of death.

So the term “estate law” is an umbrella term that includes many subcategories:  gross estate, probate estate, and trust estate.  If an attorney practices estate law and is engaged to do “estate administration,” the work will include some or all of the various types of estates discussed above.

What is a Trustee?  Who is a personal representative?

Is a Florida trustee’s fiduciary duty different from a Florida personal representative’s?  To answer this question, you must first ask what is the difference between a trustee and a personal representative.

A trustee is someone or some entity appointed in a trust to perform the tasks listed in the trust, which typically include the distribution of assets to the beneficiaries and handling any other issues that may arise in the administration of the trust.  A trust is a private document and is usually prepared for tax purposes, creditor protection and avoiding probate.  A personal representative is someone or some entity list in a Will or appointed by the probate court to administer the estate of a deceased person.

The duties and responsibilities of a trustee and a personal representative are listed in different sections of the Florida Probate Code (Fla. Stat. §§736 and 733, respectively), but Fla. Stat. §733.602(1) states as “a personal representative is a fiduciary who shall observe the standards of care applicable to trustees.”

Although the duties of a Florida trustee and personal representative are listed in different sections of the Code and Florida law goes into much further detail regarding the duties and responsibilities of a trustee, ultimately the law provides that the duties and responsibilities of a trustee and a personal representative are essentially the same and may be used interchangeably.  The Florida law makers believed that because a trustee and a personal representative are appointed with the important job of administering assets and have been trusted with great power and responsibility, it makes sense that each one should be held to similar standards.

For further information regarding the differences between a trustee and a personal representative and whether either one is fulfilling its fiduciary duties, it may be in your best interest to contact a Florida trust and estate lawyer or probate attorney.