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Florida Probate Blog

Category: Probate Litigation

Power of Appointment

Written by on Jan 2, 2014| Posted in: Probate Litigation

A Cautionary Tale from the First District Court of Appeal:  exercise a power of appointment with great care to avoid harsh results. In general, Florida Circuit Courts sit in equity over trust and will disputes and are thus empowered to look to the intent of the settlor of a trust or testator of a will when deciding the rights of litigants.  However, Florida’s 1st District Court of Appeal recently authored an opinion which indicates that, in situations regarding powers of appointment, strict compliance with the written instrument is absolutely necessary, regardless of the apparent intent of the testator attempting to exercise the power through a provision in her will.  The case, Cessac v. Stevens, 2013 Fla. App. LEXIS 18525 (Fla. Dist. Ct. App. 1st Dist. Nov. 20, 2013), is one of only two Florida cases which speak directly to this issue. A power of appointment is, generally speaking, the authority […]

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Priority in Florida Probate Proceedings

Written by on Nov 26, 2013| Posted in: Probate Litigation

It is often the case that people pass away with real property located in various states.  What occurs when there is a bona fide dispute over where your loved-one was actually domiciled on the date of his or her death?  What if there is a question as to which state should administer the estate?  The 4th District Court of Appeals recently heard a matter where there was such a dispute.  The late mother of the appellant died in Philadelphia, Pennsylvania in 2011.  The appellant subsequently opened a probate proceeding in Philadelphia seeking to probate a 2010 Will.  When the mother’s surviving husband received notification of this proceeding, he subsequently filed a petition to open a probate administration in Palm Beach County, Florida, asserting that this 2010 Will was invalid due to undue influence and requested that the estate probate her 1991 Will instead. The appellant (son) objected to the Florida […]

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COMPARING FLORIDA AND OHIO WILL CONTESTS

Written by on Oct 25, 2013| Posted in: Probate Litigation

Ohio and Florida share many characteristics:  love of college football and family values, among others.  But when it comes to the procedures to evaluate the validity of testamentary instruments, Ohio and Florida part ways significantly.  The most glaring difference is the availability of pre-death will contests in Ohio, a statutory animal that does not exist in Florida, and is available in only four other states in the country. The Ohio Statute allows a testator or testatrix of a will executed in accordance with Ohio law, to file a lawsuit seeking the court to declare during their life that the will is valid.  The statute requires the testator or testatrix in Ohio to name as defendants all people who would be entitled to an inheritance under the laws of intestacy as well as all of the beneficiaries specifically named in the will.  The court then conducts a hearing and if the […]

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UNDUE INFLUENCE AND THE BURDEN OF PROOF

Written by on Oct 14, 2013| Posted in: Probate Litigation

A large number of cases that we litigate regard a will or a trust that our client believes should be invalidated on the basis of undue influence.  In order to prove such a case, it must be shown that that the testator’s mind was so controlled by persuasion, pressure, and outside influences that he or she did not act voluntarily, but was subject to the will of another (the defendant) when the execution of the document took place.  In re Estate of Starr, 125 Fla. 536 (1936).  Moreover, an important aspect of any case regarding undue influence is the establishment of a presumption of undue influence, which is created by showing that the defendant is a substantial beneficiary under the will or trust, that he/she possessed a confidential relationship (or close relationship) with the testator, and that he/she was active in the procurement of the will or trust.  In re […]

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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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Last Will Mistake

Written by on Sep 18, 2013| Posted in: Probate Litigation

I Made a Mistake! Particularly in their later years, people begin addressing how their assets will be distributed amongst their loved-ones.  Whether by creating a trust for the first time or by amending a previous one, people try to make sure that everyone they want to take care after their death is actually provided for in their testamentary documents.  However, what happens if a mistake is found in the trust?  What happens if that mistake is found after the testaor passes away?  Is there any recourse provided by Florida Statutes or in case law that allow for some type of relief in such instances? The Florida legislature codified the reformation of a trust instrument based upon a mistake in 2007 by the passing of Fla. Stat. 736.0415, which reads as follows: Upon application of a settlor or any interested person, the court may reform the terms of the trust, even […]

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ATTORNEY’S FEES AND COSTS IN BREACH OF FIDUCIARY DUTY MATTERS

Written by on Feb 27, 2013| Posted in: Probate Litigation

In the Florida Probate Code, the legislature has taken into account the various attorney’s fees and costs incurred during an estate or trust proceeding, including when there are contested matters and allegations of breach of fiduciary duty.  No attorney can guarantee that your attorney’s fees will be paid from the other side; however, there are several statutes that allow a petitioner to seek such financial relief. Fla. Stat. 733.106 states, in relevant part, as follows: (1)   In all probate proceedings costs may be awarded in chancery actions …. (3)   Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate. (4)   When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid. Fla. Stat. 733.609 states, in relevant part, as follows: (1)    A personal representative’s fiduciary duty is the […]

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How do I contest a Will?

Written by on Feb 11, 2013| Posted in: Probate Litigation

Client’s often call Adrian Philip Thomas, P.A. to ask “how do I contest a Will?”  There are specific grounds and legal reasons needed to challenge a Will in Florida and a skilled Florida probate lawyer can provide guidance. First, the Will should be scrutinized to see if it was properly executed, witnessed and notarized.  In Florida, there are very specific laws regarding the formality of how a Will is signed.  It must be signed by the Testator and witnessed by two witnesses in the same room and the same time who actually witness the Testator executing the Will.  Each witness must sign in the presence of the other, and then the Will needs to be notarized. Second, under Florida law, the Testator is required to have the appropriate mental capacity to sign the Will.  This would include the Testator understanding the nature and value of his assets, who should inherit […]

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Simultaneous Death Law

Written by on Feb 11, 2013| Posted in: Probate Litigation

If an individual elects not to execute a Last Will and Testament, then Florida law makes provisions for distribution of his assets at death.  One area where this is of particular note is Florida’s Simultaneous Death Law, found in Florida Statute § 732.601.  The Simultaneous Death Law is triggered when two (or more) people die and there is insufficient evidence that that the persons have died other than simultaneously.  This is common in fatal accidents, where it is not readily known which individual died first.  This can be important when it comes to determining the ownership of joint accounts (passes to survivor but who was survivor?), determining the correct beneficiary of a life insurance policy, or who takes under a Last Will and Testament. Under Florida Statute 732.601(1), “[w]hen title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property […]

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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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