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Florida Probate Blog

Category: General

Removal of Personal Representative

Written by on Oct 2, 2013| Posted in: General

What are the Grounds for the Removal of a Personal Representative? Florida Statute 733. 504 lists the causes for which a personal representative may be removed. Those are: 1)      Adjudication of incompetency or, even without adjudication, physical or mental incapacity rendering the P.R. incapable of discharging his or her duties; 2)      Failure to comply with an Order of the probate court unless the order is superseded on appeal; 3)      Failure to Account for the sale of property or to produce for inspection the estate assets; 4)      Wasting or other maladministration of the estate; 5)      Failure to give bond or security; 6)      Conviction of a felony by an individual personal representative or insolvency of a corporate personal representative; 7)      Revocation of probate of a will that names the personal representative; 8)      Conflicting or adverse interests against the estate; 9)      Removal of domicile from Florida if domicile was a requirement of initial appointment; […]

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Termination or Suspension of Durable Powers of Attorney

Written by on Sep 19, 2013| Posted in: General

Often times we are contacted by clients that inquire as to whether or not a Power of Attorney can be terminated and/or suspended for their elderly loved one who becomes incapacitated.  Typically this issue presents itself when an elderly loved one is requested or coerced to execute a Power of Attorney in favor of another family member during a period of time when their capacity may be compromised.  In some circumstances, the Power of Attorney may validly executed and later abused after elderly loved one’s capacity comes into question.  A valid Power of Attorney is a very valuable tool when properly utilized and likewise can be disastrous if abused.  It is not uncommon for us to receive inquiries from clients who discover that their elderly loved one is being financially exploited by someone abusing a Power of Attorney.  A Power of Attorney is a writing that grants authority to an […]

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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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Lost or Destroyed Will

Written by on May 16, 2013| Posted in: General

What happens when the Decedent’s original Last Will & Testament cannot be found? It is well-settled under Florida law that when an original will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the will with the intent to revoke it. In re: Estate of Parker, 382 So.2d 652 (Fla. 1980). Often, a family member will have a copy of the Will and will offer it for probate and ask the probate court to admit the Will as if it were an original.  Then, the proponent of the lost will (the person offering the copy for probate) has the burden of introducing competent, substantial evidence to overcome the presumption that the will was destroyed by the testator. Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996). The Parker court said that the first […]

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ADRIAN THOMAS LAWYER REPUTATION

Written by on Apr 18, 2013| Posted in: General

“The way to gain a good reputation is to endeavor to be what you desire to appear.”  ~ Socrates The lawyers at Adrian Philip Thomas, P.A. strive to be competent and passionate advocates for their clients while maintaining high levels of professional courtesy and ethical conduct.  For twenty years, we have been serving the needs of clients with probate administration and estate litigation disputes throughout the State of Florida.  We are proud to have earned the gracious thanks of many clients over the years. Dear Adrian, Oh happy days!  I could not have found finer legal representation.  I will be eternally grateful to you.  Thank you so much.  You took on a complicated case over multiple jurisdictions made overly complex so I could never prevail.  Your staff, your firm, absolutely everyone attended to me with the utmost courtesy, skill and promptness.  Thank you, Adrian, for fighting so hard for me.  Warmest regards, E.S. To […]

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Fort Lauderdale Probate Litigation Lawyer

Written by on Jan 10, 2013| Posted in: General

A Fort Lauderdale Probate Litigation Lawyer may represent clients in connection with disputes arising over a Last Will & Testament.  There are several grounds for contesting a decedent’s Last Will & Testament, including: mistake in execution, undue influence, and lack of testamentary capacity.  In addition to Will contests, probate litigation may involve:  Will construction (interpreting the meaning of a Will), determination of heirs, elective share, breach of fiduciary duty, removal of fiduciary, surcharge (making a fiduciary pay back losses caused by his/her conduct), and accounting.  Each of these topics is discussed in greater detail at our website.  Just follow the links at the top of this page.   The Fort Lauderdale Probate Litigation Lawyers at Adrian Philip Thomas, P.A. represent clients in connection with all probate litigation matters, both prosecuting and defending.  If you or someone you know needs to consult with a Fort Lauderdale Probate Litigation Lawyer, call toll free […]

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QUALIFICATIONS AND COMPENSATION OF PERSONS GIVEN POWER OF ATTORNEY IN FLORIDA

Written by on Nov 20, 2012| Posted in: General

A Power of Attorney is a writing that grants authority to someone to act in the place of the principal, whether or not the term “power of attorney” is actually used in that writing.  It is often used as an estate planning tool to avoid a guardianship proceeding should the person granting the power of attorney become incapacitated. The “agent” or person given the authority to act for a principal under a power of attorney can be designated as an agent, attorney-in-fact- or otherwise, and includes an original agent, co-agent and successor agent.  Fla. Stat. 709.2102 The agent named in a Power of Attorney may be any natural person who is eighteen years of age or older and of sound mind. In the alternative, a designated agent given a power of attorney may also be a financial institution having trust powers and a place of business in Florida and authorized […]

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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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Florida Homestead Law: Condos and Co-ops

Written by on Oct 30, 2012| Posted in: General

As a Florida probate attorney, one issue that often arises is the treatment of homestead real property.  Under Florida law there are three contexts in which the homestead has significance: (a) taxation, (b) exemption from forced sale and (c) descent and devise.  Florida case law is plentiful as it pertains to homestead real property, especially since a 1984 change in the Florida Constitution which broadened the constitutional definition of the term “homestead.” While Florida homestead law can be found in Article X, Section 4 of the Florida Constitution, many decisions of Florida appellate court must be considered when seeking the Constitutional protections.  One also must determine what context they are seeking to invoke the Constitutional protection (exemption from forced sale or devise and descent), as the District Courts of Appeal have treated certain contexts different.  For instance, while a condominium may be considered homestead, a cooperative apartment may not, depending […]

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Can I do whatever I want with a power of attorney?

Written by on Oct 15, 2012| Posted in: General

This question seems to be arising more and more often lately.  Most estate planning attorneys recommend their clients create a durable power of attorney (DPA), naming a close, trusted family member (usually a spouse or adult child) to serve in the capacity as their attorney-in-fact to manage their finances and other personal business in the event of temporary or permanent incapacity.  It’s a very smart estate planning tool for obvious reasons, but it is also one that is extremely susceptible to abuse by the attorney-in-fact.  After all, the activities of an attorney-in-fact are not court-monitored or approved, which makes it very enticing for one to help themselves. Over the past couple years, there seems to have been a significant rise in the number of lawsuits filed in Florida for breach of fiduciary duty arising from self-dealing conduct with DPA’s.  What’s more is that many lawyers are taking the position in […]

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