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Florida Probate Blog

Category: General

End of Life Directives and Preneed Guardians in Florida

Written by on Jan 19, 2011| Posted in: General

Recently, it was reported that the percentage of people filling out living wills and healthcare surrogate forms has increased little since Congress enacted the Patient Self Determination Act ordering healthcare facilities to provide information to patients about advance directives. What are advance directives? With about 80 percent of deaths occurring in hospitals or nursing homes, you can use advance directives, in the form of a living will, to let their doctors and family know what kind of treatment you do not want in case you are incapable of making the decision.  A living will does not mean you want to forego life-saving treatment; it simply sets forth how you want, or don’t want, aggressive high technology treatment, feeding tubes, respirators, and other life support measures. Although the original health care bill provided that Medicaid could pay for consultations about end of life issues, this provision was unfortunately dropped as part […]

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Partition Actions in Florida

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

When joint owners of real estate in Florida disagree as to how their property should be handled, one owner may wish to sell it while the other owner does not.  Florida law provides for a specific mechanism to force the sale of the property – the partition action.  In a partition action, the Court will either force the property to be divided into pieces, awarding each piece to one of the owners, or it will require that the property be sold at auction, dividing up the proceeds among the owners.

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What is probate?

Written by on Dec 14, 2010| Posted in: General

Probate in Florida Probate is a court-supervised process for identifying and gathering the decedent’s assets; paying taxes, claims and expenses; and distributing assets to beneficiaries. The Florida Probate Code is found in Chapters 731 through 735 of the Florida Statutes. Florida law also establishes a non-administration proceeding called “Disposition of Personal Property Without Administration.”

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Illegitimate Child is Still a Legitimate Heir

Written by on Dec 13, 2010| Posted in: General

Q.  Does a child have a right of inheritance from a father who never knew the child existed?  The rub is the child’s mother gave the child up for adoption without the father’s knowledge.  The father’s name is not on the original birth certificate but could be easily verified.  Historically, if a child was illegitimate, most jurisdictions required only the consent of the child’s natural mother to the adoption of the child.  The right to grant or withhold such consent was not extended to the fathers of illegitimate offspring, since they were not considered to have sufficient interest in the benefits and obligations of raising a child to determine whether the child should be released for adoption. In 1979, this trend was reversed in Caban v. Mohammed, 441 U.S. 380, 99 S. Ct. 1760, 60 L. Ed. 2d 297 (1979).  The key issue was whether the consent of an unwed […]

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What are probate assets?

Written by on Dec 13, 2010| Posted in: General

Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example: a bank account in the sole name of a decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset; a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent’s estate is a probate asset; real estate titled in the sole name of the decedent is a probate asset (unless it is homestead), but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset; property owned by husband and wife […]

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Is probate necessary?

Written by on Dec 10, 2010| Posted in: General

Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.  Whether or not probate is necessary depends on a number of factors.

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How much does it cost for probate?

Written by on Dec 9, 2010| Posted in: General

The personal representative, the attorney and other professionals whose services may be required in administering a probate estate (such as appraisers and accountants) are entitled by law to reasonable compensation. The fee for the personal representative of a probate estate is usually determined in one of five ways: as set forth in the will; set forth in a contract between the personal representative and the decedent; as agreed among the personal representative and the persons who bear the impact of the fee; as the amount presumed to be reasonable as calculated under Florida law if the amount is without objection; or as determined by the judge, applying Florida law.

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Probate Attorney

Written by on Dec 8, 2010| Posted in: General

Adrian Thomas is the CEO/Shareholder of a boutique, seven-attorney and 8 paralegal law firm located in Fort Lauderdale, Florida .  The firm concentrates its practice to probate, guardianship, estate and trust litigation. Adrian Thomas has resided in Florida for the past thirty years and has practiced law in Broward County for the past 18 years. Mr. Thomas is “AV” rated by Martindale Hubbell and has been selected as one of Florida’s Legal Elite by Florida Trend Magazine in 2008, 2009 and 2010. Mr. Thomas concentrates his personal practice in estate litigation, both prosecuting and defending, which includes matters involving estates, trusts, probate, and guardianship. He represents clients with disputes throughout the State of Florida.

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Battle of Wills

Written by on Dec 6, 2010| Posted in: Estate Litigation

The battle over a Will can be more like a battle of wills. “It’s the principle of the matter” We hear these words consistently from our clients over phone or in the office… “It is not the money; it is the principle of the matter.”  Litigation over an estate, Will, trust or inheritence can be emotionally traumatic for clients, especially when the dispute is between parties who are family members.  Although the majority of our clients want to resolve their issues quickly and inexpensively, many clients are willing to use the judicial process to vindicate what they believe were wrongs suffered at the hands of a family member.  This path is frequently expensive and may cost more than any eventual recovery; however, many litigants are willing to stand on principle – even when a cost-benefit analysis does not make sense financially – to achieve a measure of satisfaction and closure through the judicial process.   

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Show me the money!

Written by on Nov 30, 2010| Posted in: General

My brother is refusing  to give an accounting of the estate assets – Why? A beneficiary of an estate has the right to an accounting of estate assets.  Once an accounting has been requested,  Florida probate law requires that it be produced within a reasonable amount of time.  In fact, the law requires a Personal Representative to file an accounting  with the court and to serve it on all affected beneficiaires (unless it has been waived) when the administration of the estate is complete.  The accounting must be signed by the person preparing it to hold that person responsible for the information contained in the accounting.  Most importantly, a beneficiary has the right to inspect the documents (for example, bank records, receipts and checks) to confirm that the accounting being produced is supported by the evidence.  A probate litigation lawyer should never accept an accounting for her client without the supporting documentation to […]

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