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Florida Probate Blog

Category: Probate Litigation

Inheritance Rights of Former Spouse

Written by on Sep 10, 2012| Posted in: Probate Litigation

As a Florida probate attorney, it is customary to encounter issues and disputes arising from a former spouse of the decedent.  For some time the Florida Legislature has provided a statutory scheme which provides a presumption preventing former spouses from inheriting from wills and revocable trusts (Florida Statutes §§ 732.507(2) and 736.1105, respectively).  Florida Statute 732.507(2) provides that any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage, absent the will or dissolution or divorce judgment expressly providing otherwise. Similarly, Florida Statute §736.1105 provides that a revocable trust executed by a spouse prior to annulment or dissolution of the marriage becomes void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce, absent the trust instrument or a judgment […]

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Aronson v. Aronson

Written by on Jul 24, 2012| Posted in: Probate Litigation

WHEN OUT-OF- STATE ESTATE PLANNING DOCUMENTS DO NOT ACHIEVE THEIR OBJECTIVES UNDER FLORIDA LAW  “There is nothing more important than a good, safe, secure home.”  Rosalynn Carter             Often, out-of-state residents own property in Florida, and have their estate planning documents prepared out-of-state, without consulting with competent Florida counsel to inquire if their estate planning documents will achieve their objectives and goals under Florida Law.             In July of 1996, Hillard J. Aronson resided in Massachusetts with his second wife, Doreen Aronson, and Mr. Aronson was the owner of a condominium located in Key Biscayne, Florida.    He decided to create a revocable trust in which he was both a life beneficiary and a trustee, and upon his death, his trust created a life-time irrevocable martial trust for his wife, Doreen, with remainder to his two sons from his prior marriage.  Mr. Aronson then deeded the Florida condominium to himself as […]

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Probate Caveat

Written by on Jun 26, 2012| Posted in: Probate Litigation

CAVEATOR BEWARE:  Rocca v. Boyansky, 80 So.3d 377 (Fla. 3d DCA 2012) Matthew Rocca is the grandson of decedent, Sidney Boyansky.  Sidney had included Matthew in his estate planning documents until he executed November 2007 documents that cut Matthew out.  Sidney died on April 23, 2009.  On June 10, 2009, Sidney’s surviving spouse filed a Petition for Administration to admit the 2007 will to probate.  On August 21, 2009, Matthew filed a caveat.  In Florida, a caveat is a document that an interested person or a creditor may file with the probate court that alerts would-be personal representatives or proponents of wills to the existence of this person and his claim in the estate.  Florida Statute §731.110(1) provides that “any interested person who is apprehensive that an estate, either testate or intestate [meaning with a will or without a will, respectively], will be administered or that a will may be […]

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Florida Probate Litigation Lawyers

Written by on Apr 23, 2012| Posted in: Probate Litigation

Florida Probate Litigation Florida Probate Litigation law suits in Florida are ones involving estates, trusts, guardianships and probate.  They may involve documents including: Last Will & Testament, Living Trust, Durable Power of Attorney, etc.  These cases are filed on a daily basis throughout the State of Florida.  Many of these lawsuits include counts for undue influence, lack of capacity, and tortious interference but regardless on the title of the lawsuit they all involve some level of exploitation of the elderly.  Exploitation can occur when a person who stands in a position of trust and confidence with a vulnerable adult knowingly, by deception or intimidation, obtains or uses a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.  Ignoring this sophisticated […]

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Creditor Claims in Florida Probate

Written by on Apr 16, 2012| Posted in: Probate Litigation

If you are involved in an estate administration that requires some attention to the collecting or defending of a creditor claim, it is in your best interest to consult with an attorney experienced in the Florida probate process in order to ensure that the proper steps are being taken to prosecute or defend such a claim.

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Preservation of Assets During a Will Contest

Written by on Mar 24, 2012| Posted in: Probate Litigation

A Will Contest can often be a lengthy process involving extensive motion practice, discovery, and various other pre-trial matters that can arise during the litigation. A Will Contest can begin both before and after the appointment of a personal representative.  Whether a dispute arises before or after the appointment of the personal representative, the concern becomes how one can protect and preserve the estate’s assets for the ultimate beneficiaries, pending a final determination by the court. The circuit court, sitting in its probate capacity, has inherent jurisdiction to monitor the administration of an estate and to take such appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries.  See Estate of Conger, 414 So.2d 230 (Fla. 3rd DCA 1982).  Furthermore, a probate court has the authority to issue temporary injunctions freezing assets claimed to belong to a decedent’s estate, […]

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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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Jury Trials in Probate

Written by on Jan 26, 2012| Posted in: Probate Litigation

Jury Trials in Probate  Our firm regularly demands jury trials in probate matters.  There are a variety of reasons for doing so, including the simple fact that it is a constitutional right of all citizens to preserve and guarantee a trial by jury in all proceedings.  Also important is the fact that jury trials are vital to maintaining the public’s confidence and trust in our judicial system.  The value of jury trials in probate has become even more critical with the dramatic decline in the number of jury trials in recent years. One of the evolving and developing areas of the law that assists probate litigators in providing access to jury trials is the theory of liability founded in what is referred to as “tortious interference with an inheritance” or “intentional interference with an expectancy.”   Our firm regularly handles these cases on behalf of relatives who have been victimized by […]

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Notice of Administration in Florida

Written by on Jan 13, 2012| Posted in: Probate Litigation

Notice of Administration in Florida Probate The Notice of Administration is a formal document that notifies all interested parties of the death of the decedent, the filing of the last will and testament for probate, and that an objection to the validly of the will and the probate proceedings must be filed within a certain period of time or be forever barred. The recipient of a Notice of Administration may have a variety of legal bases (e.g., Lack of Mental Capacity, Undue Influence, Duress, Intentional Interference with an Expectancy, and/or Improper Signing of the Will) to try to stop the administration of the estate or the challenge the validity of the Will.  If you receive a Notice of Administration informing you that you have a limited time-frame, the Notice provisions will override any deals, promises or assurances that if you don’t contest the will you will get your fair share.  So […]

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Personal Representatives Gone Wild

Written by on Nov 29, 2011| Posted in: Probate Litigation

Often with estates, a conflict develops between beneficiaries and the Personal Representative that leads to litigation.  This litigation can be the result of a delay in administration of the estate, distribution of assets, or differences in personality.  Recently a client hired our law firm to seek to remove a Personal Representative who had incurred very substantial fees for travelling around the country to repeatedly check on the decedent’s assets, which was an expense the client felt was unjustified. Florida Statutes list causes for which a Personal Representative may be removed.  One of these causes include “holding or acquiring conflicting or adverse interest against the estate that will or may interfere with the administration of the estate as a whole.”  However, a dispute between the beneficiaries of an estate by itself in insufficient grounds to refuse to appoint a personal representative if otherwise qualified.  That holding, however, came in a case where […]

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