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Florida Probate Blog

Category: General

Abuse of Power of Attorney

Written by on Apr 29, 2011| Posted in: General

Power of Attorney Abuse is on the Rise. A power of attorney is a document that transfers legal authority to another person. The person granting the power of attorney is called a principal who gives another, known as the attorney-in-fact, the written legal authority to make decisions on a specific, narrow or broad range of topics. The potential for wrong doing exists in the power of attorney relationship through fraud, theft, improper transfers, self-dealing, improper gifting and retitled accounts and beneficiaries. Power of attorney holders can change beneficiary designations and account titles so the heirs are left with little to no inheritance. A power of attorney can also be abused when dealing with life insurance, annuities, bank accounts, joint accounts or pay on death accounts. Typically, an attorney-in-fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the power of attorney. An attorney-in-fact, however, […]

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Florida Wrongful Death and Probate

Written by on Apr 4, 2011| Posted in: General

Wrongful Death Suits during the Florida Probate Process In many probate cases that come to our office, we discover that the decedent died under somewhat unusual circumstances (medical malpractice, automobile accident, etc.) that may give rise to a wrongful death law suit.  Sometimes the filing of a wrongful death suit may be warranted during the pendency of the Florida probate process.  For example, we recently had been representing a client for relatively standard estate administration.  During this administration, a hospital filed a claim against the estate for an exorbitant fee for the one day of medical services they provided to the decedent who died while at this hospital.  After requesting and reviewing the itemized medical bill and records, we uncovered that the decedent died during a routine medical procedure, possibly due to the negligent act of the medical provider.  In order to bring a wrongful death suit, you must show […]

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Best Florida Probate Attorney

Written by on Mar 29, 2011| Posted in: General

Who is the Best Florida Probate Attorney? A friend recently asked, “who is the best Florida probate attorney?”  While there are certainly some preeminent attorneys practicing in the area, the concept of “best” is subjective.  The question would be better phrased as “which probate attorney would best meet my needs?” When interviewing a lawyer to determine whether he or she can represent you in a estate, the best gauge of whether you are hiring the best probate attorney for you is to look at the level of education, length of time as a lawyer and the area of legal concentration.  The last is perhaps the most important factor of all when deciding which probate lawyer is best for you.  For example, not long ago a lawyer on the other side of a case was representing his client in a Will contest and my firm was defending.  The lawyer on the other side was struggling with […]

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Deathbed Marriages

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

True love? Earlier this month, I blogged about Florida’s deathbed marriage statute, which was enacted in October 2010.  The American Bar Journal just reported a story about a lawyer in California who was suspended from the practice of law over her marriage to an elderly client.  Apparently, the lawyer had drafted a Will for the client leaving his estate to his relatives in Norway.  A couple of years later, they were involved in a relationship and the client gave the lawyer $339,000 with his relatives’ consent.  Subsequently, the lawyer and client got married but the client filed for divorce the same year because the two were not living together.  Shortly thereafter, the client was moved into a nursing home and died.  The State Bar of California suspended the lawyer who it found “took advantage of a lonely, sick old man.”  While the client was not literally on his deathbed at the […]

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Trustee’s Fee

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

What Is a Reasonable Trustee’s Fee?  Under the Florida Trust Code, “A Trustee is entitled to compensation that is reasonable under the circumstances.”  F.S. §736.0708(1).  Unfortunately, the statutes are devoid of any reference to what amounts to “reasonable” compensation or how to determine whether fees sought by a trustee are per se reasonable. Generally, compensation of a Trustee may be established in the Trust instrument or by separate agreement with the Trustee.  In the absence of either, the circuit court has jurisdiction to review and determine a trustee’s fees.  F.S. §736.0201(4)(c), (4)(g).  Even in certain situations in which the trust does specify the trustee’s compensation, the court may adjust that compensation if the trustee’s duties are substantially different from those contemplated when the trust was created or if the compensation specified is unreasonably low or high.  F.S. §736.0708(2).  As a result, whether or not the trust instrument provides for the […]

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Florida Probate

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

Need legal advice relating to Florida probate? Someone recently stated that they needed legal advice for a Florida probate.  Florida probate matters come in many shapes and sizes.  Probate in Florida usually is a non-confrontational process of representing the Personal Representative of a Last Will and Testament by filing forms and complying with procedures.  However, sometimes legal advice in Florida probate matters may have nothing to do with forms and procedures but everything to do with contesting a Last Will and Testament or challenging a person’s mental capacity.  The term probate is being stretched to include trust disputes and guardianship matters, too.   With the explosion of material on the internet, clients are becoming very educated about what legal advice they need whether or not the traditional probate definition is applicable, but it is still recommended to consult with a lawyer who practices probate law in Florida.

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Florida Estate Tax

Written by on Feb 17, 2011| Posted in: General

Florida Estate Tax (Florida Death Tax) Prior to January 1, 2005, Florida’s estate tax system was commonly referred to as a “pick up” tax. This was because Florida picked up all, or a portion of, the credit for state death taxes allowed on the federal estate tax return (federal Form 706 or 706NA). Under this system, when the estate’s gross value was below the minimum federal estate tax filing threshold, estate tax was not due to Florida. Federal changes eliminated Florida’s estate tax after December 31, 2004. This happened because the federal credit for state death taxes on the federal estate tax return became a deduction for state estate taxes. Since Florida estate tax was based solely on the federal credit, after December 31, 2004 estate tax was no longer due. However, the personal representative of an estate may still need to complete certain forms to remove the automatic Florida estate tax lien.  Estates Required to […]

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Florida Medicaid 2011

Written by on Feb 5, 2011| Posted in: General

The asset and income numbers for 2011 are out: Gross Monthly Income for Medicaid applicants:  $2,022 Monthly Personal Allowance:  $35 Asset Limit (individual):  $2,000 Asset Limit (couple):  $3,000 Community Spouse Resource Allowance:  $109,560 Maximum Monthly Maintenance Income Allowance:  $1,822 Maximum Monthly Maintenance Needs Allowance:  $2,739

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Understanding the New Estate Tax Laws and Its Effects

Written by on Feb 5, 2011| Posted in: General

One of the first things that people should know regarding the federal estate tax is that this is a tax for “wealthy” people.  The majority of people, people who do not have millions of dollars in their bank account, should not fear that the federal estate tax will substantially deplete their loved-ones’ inheritance.  Additionally, Florida is one of the few states that does not have its own state estate tax, providing further incentive to reside here.   However, substantial changes occurred at the end of 2010 regarding the federal estate tax.  The government recently enacted new legislation known as the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010, which provides for these key changes in the estate tax:  The current law applies only to decedents dying on or after January 1, 2010.  Estates which have less than $5 million ($10 million for married couples) are exempt from paying […]

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Am I a beneficiary?

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

HOW WILL I KNOW IF I AM A BENEFICIARY OF A DECEDENT? Pursuant to Florida Statutes, if you were named as a beneficiary of a decedent, the personal representative of the estate would notify you by serving you with a copy of the Notice of Administration of the estate of the decedent.  Pursuant to Florida Statue 733.212, the personal representative shall promptly serve a copy of the notice of administration on the following persons who are known to the personal representative, such as 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 affected by the outcome of the particular proceeding involved.  Under Florida Statute 731.201(2), a beneficiary means an heir at law in an […]

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