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Florida Probate Blog

Category: General

Abuse of the Elderly

Written by on Aug 24, 2011| Posted in: General

Elder Law – Abuse of the Elderly In the context of trust and estate litigation, clients occasionally believe the conduct of others rises to the level of criminal liability.  While filing a lawsuit for breach of fiduciary duty or undue influence can help the client collect money, there are times that a client believes that getting money is insufficient.  Short of requesting charges be filed by the police or State Attorney, there is a Florida law that is commonly referred to as the abuse of the elderly statute that goes beyond the traditional recovery of money when a senior adult is abused. The elder abuse statute (Florida Statute §415.1111) allows for the prosecution of abuse, neglect or exploitation on behalf of a vulnerable adult against any perpetrator.  Such an action pursuant to the statute must be brought by the vulnerable adult, that person’s guardian, by a person or organization acting […]

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Florida Power of Attorney

Written by on Aug 16, 2011| Posted in: General

THE POWERS AND LIMITATIONS OF POWERS OF ATTORNEY With Great Power Comes Great Responsibility.  Voltaire There are important differences between standard powers of attorney and durable powers of attorney but each document is ripe for being abused.  A standard power of attorney document provides the authority for another person  (the agent or attorney-in-fact) to make decisions and take actions on the principal’s behalf when the principal is unable to do so for himself or herself.  In the event the principal becomes physically incapacitated, and not able to pay bills or banking transactions or the principal plans to travel and needs to have documents signed while away, then the ordinary or standard power of attorney document would authorize the principal’s chosen agent or attorney-in-fact to execute documents, receive and pay bills and make banking transactions on the principal’s behalf.  A standard power of attorney would become invalid if the principal became […]

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Wills and Probate: Selecting a Good Probate Lawyer

Written by on Jul 26, 2011| Posted in: General

If you need a good probate lawyer, it’s because someone has died and either the estate needs to be administered or there is a dispute over a last will or a fight over a share or portion of the estate.  While there is no guarantee that the lawyer you are hiring is “good,”one method of increasing the odds of hiring a competent probate attorney to check whether your lawyer has a Martindale Hubble rating that is at an acceptable level to you. Martindale-Hubbell Peer Review Ratings reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. For lawyers rated with the changed methodology the Martindale-Hubbell Peer Review Ratings will reflect the following: General Ethical Standards Rating. The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities.   […]

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Will Contest Lawyer

Written by on Jul 11, 2011| Posted in: General

Florida Will Contest Lawyer People looking for a will contest lawyer in Florida often ask the following questions: Can a will be challenged during life? A will cannot challenged during a person’s life.  Will contests can only happen after death.  Sometime the person who made the last will and testament is still alive but are incompetent and in need of a guardianship.  Many times during the guardianship proceeding evidence about the drafting, creation, and signing the will can be preserved for a will contest after death.  Can a last will be contested if it was not properly signed? A will must be signed by the maker of the will and by two witnesses who saw the person sign the will (or who were told by the testator that he signed the will) and those two witnesses must also sign the will. Otherwise, the will is invalid and can be contested. […]

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Florida Probate Litigation

Written by on Jul 10, 2011| Posted in: General

Florida Probate Litigation Probate litigation often involves a will contest. Probate litigation is also a term used to describe a challenge to trust because trust disputes in Florida are litigated in the probate court.  Probate litigation, trust contests and Florida will contests are one of the most hotly-contested areas of the law, used by surviving family members to correct an array of injustices. Probate litigation is the broad concept which may include challenging: the validity of a Last Will and Testament; a provision within the Last Will and Testament; the terms of a Trust; the validity of a person’s other estate planning documents; the appointment of a personal representative (known in some states as an “executor”); the actions of a personal representative; or an elective share. Our law firm concentrates its practice in Florida probate litigation.  Visit our website www.florida-probate-lawyer.com for a detailed reference on most probate and trust litigation topics.

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Florida Probate Blog

Written by on Jul 8, 2011| Posted in: General

Florida Probate Blog My law firm contributes relevant topics to our law firm’s Florida probate blog which are designed to educate and inform both lawyers and non-lawyers.  Blogs dealing with probate and trust issues are not designed to legal advice concerning estates, probate, guardianship or trust litigation issues, but are intended as a general introduction to the specific area of concern. Our previous blogs include topics dealing with: Probate Litigation Estate Litigation Trust Litigation Guardianship Litigation Wrongful Death Litigation Undue Influence Lack of Mental Capacity Probate Administration Probate for Resident Aliens / Non-US Citizens Ancillary Probate Matters Elective Share Option Power of Attorney Will Contests Breach of Fiduciary Duty/ Heir & Beneficiary Rights If you would like to subscribe to our Florida Probate Blog, you can input your email address under “subscribe” or click on the RSS feed button.

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CREDITORS AND SOLVENCY IN THE PROBATE PROCESS

Written by on Jul 7, 2011| Posted in: General

Let’s say your father passed away with $200,000 in his estate and you are the only heir.  If your father had owed money on the date of his death, the estate would be obligated to satisfy that creditor prior to you obtaining your inheritance.  Florida law provides that a devise (distribution) owed to a beneficiary is subject to charges for debts, expenses, and taxes.  In our example, if the creditor claim was for $100,000, it would be paid first, and you would then inherit the $100,000 remaining in the estate.  However, what if your father only had $90,000 on the date of his death, yet still had the $100,000 creditor?  Unfortunately, your father’s estate would be insolvent and your inheritance may be completely wiped out.  Now suppose that the person who owes the estate is a child who convinced his father to make a quick change to his last will […]

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Florida Homestead Law

Written by on Jun 3, 2011| Posted in: General

Florida Homestead Law Update On October 1, 2010, Florida Statute 732.401(2) was added to update Florida Homestead law, as least partially in response to the escalating insurance and property tax rates in recent years. Under the old Florida Homestead law, if a decedent did not devise his  homestead property pursuant to the requirements of the Florida Constitution and was survived by a spouse and at least one lineal descendant, then the surviving spouse would receive only a life estate with the remainder passing to the descendant(s). A life estate might sound great, but it comes with many financial responsibilities, including: property taxes, insurance, special assessments (if applicable), mortgage interest, etc.  Furthermore, if the remainder beneficiaries refused to agree to sell the property, there was not much recourse for the surviving spouse. The new Florida Homestead law allows a surviving spouse to elect to receive a tenant-in-common, one-half interest in the decedent’s […]

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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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Adoption and Inheritance

Written by on May 3, 2011| Posted in: General

Adoption:  Inheriting From Both Sets of Parents.  Can You Really Have It Both Ways? Every year, thousands of orphaned children are adopted by foster families nation-wide.  Most of them lead normal lives with their adoptive families, not giving much thought about their natural parents.  After all, in most cases, the adoptive family is the only family they ever knew.  Now, for just a moment imagine that you are one of those children.  You live in Oregon where you were born (out of wedlock), adopted and raised; and you just discovered the shocking reality that your natural father never knew of your existence because your natural mother withheld the news of your birth from him resulting in your adoption without his consent.  Suddenly, the pre-conceptions you had about your real father (that he abandoned you) have vanished and are now replaced with questions about what would have been.  Then, you set […]

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