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Florida Probate Blog

Category: General

DOES A PERSONAL REPRESENTATIVE NEED TO HIRE AN ATTORNEY?

Written by on Oct 7, 2012| Posted in: General

In Florida, every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative. Fla. Prob. R. 5.030 (a). In nearly all Florida probate cases, it’s important, and typically required, that the personal representative of an Estate have legal representation. Even in the simplest probate case, legal issues are likely to arise. There will be statutory requirements and issues where the Court requires an attorney to be part of the process to assist in advising the personal representative of rights, duties, and obligations they have to the estate and beneficiaries. There are numerous complex matters that can arise during the administration of an estate, in addition to deadlines, duties and other responsibilities […]

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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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Possession of Homestead by Personal Representative

Written by on Jul 2, 2012| Posted in: General

Possession of Homestead by a Personal Representative Homestead, in the estate and trust context, is the real property owned by a decedent at the time of death, which was used as his primary residence at the time of his death. As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that it can be devised to the spouse if not survived by minor children. If not survived by a spouse or minor child, the decedent is free to devise the property as he wishes. Typically, if homestead property is devised to an heir or descendant, as permitted by law, it vests in said heir or descendant immediately upon death and is not considered an asset of the estate. In many cases, the homestead can be the largest asset owned by a decedent at the […]

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Florida Inheritance Dispute Lawyer

Written by on May 1, 2012| Posted in: General

“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.

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Fort Lauderdale Will and Trust Disputes

Written by on Apr 29, 2012| Posted in: General

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.

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Tampa Probate Lawyer

Written by on Apr 13, 2012| Posted in: General

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 […]

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Writ of Prohibition Probate

Written by on Mar 29, 2012| Posted in: General

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 […]

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Virtual Adoption and Probate

Written by on Mar 27, 2012| Posted in: General

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 […]

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Attorney’s Fees in Partition Actions

Written by on Mar 26, 2012| Posted in: General

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 […]

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Debt Forgiveness and Creditor Claims

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

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 […]

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