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Florida Probate Blog

Category: Probate Litigation

Elective Share Contribution Obstacles

Written by on Jul 29, 2010| Posted in: Probate Litigation

While election and determination of elective share may not pose a problem, enforcing contribution from beneficiaries can. Under the Florida Probate Code, when a person’s spouse dies, the surviving spouse has the right to take an elective share pursuant to Florida Statute § 732.201.  An elective share is essentially Florida’s way of insuring that some money or property is left to the surviving husband or wife. The elective share estate includes not only probate assets but many assets which are designed to pass outside the probate estate.  Pursuant to Fla. Stat. § 732.2065, the elective share is equal to 30% of the elective estate.  A significant amount of litigation occurs regarding the elective share. 

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Notice to Creditors

Written by on Jul 6, 2010| Posted in: General

DETAILS ON NOTICE TO CREDITORS IN FLORIDA PROBATE ESTATES             The Personal Representative of an Estate must promptly publish a Notice to Creditors pursuant to Florida Statute 733.2121.  The Notice should contain the following: 1)    The name of the decedent; 2)    The file number of the estate; 3)    The designation and address of the Court in which the case has been filed; 4)    The name and address of the Personal Representative of the Estate; 5)    The name and address of the Personal Representative’s attorney; and 6)    The date of the first publication. 

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More than a Merely Perfunctory Matter

Written by on Jun 21, 2010| Posted in: General

Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences.  An example of one of the plain and simple rules of litigation is that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost When counsel files a suggestion of death, opposing […]

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Power of Attorney

Written by on May 19, 2010| Posted in: General

How Much Power Does a Power of Attorney Really Give? As probate and trust litigation attorneys, day in and day out, we deal with claims for undue influence, lack of testamentary capacity, and improper execution of testamentary documents.  However, one issue that comes up periodically but often overlooked, is the breach of fiduciary duty by an attorney-in-fact by improperly using a power of attorney.  Often, a power of attorney is used to the detriment of the principal, and by extension the principal’s heirs.  It is standard practice for estate planning lawyers to recommend and prepare a durable power of attorney as part of a client’s estate planning package, as it is important for a mechanism to be in place so the principal’s family can manage his/her financial affairs in the event the principal becomes incapacitated.

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Being of unsound mind…

Written by on Apr 15, 2010| Posted in: Guardianship Litigation

Your mother’s incompetent to handle any of her affairs…but she can sign a new Will cutting you out! An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian.  Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for appointment of a guardian, which the Court approved.  While under […]

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ELDERLY EXPLOITATION vs CIVIL THEFT

Written by on Mar 1, 2010| Posted in: Estate Litigation

DISTINGUISHING DAMAGES SOUGHT BY FIDUCIARIES AND INDIVIDUALS UNDER FLORIDA STATUTES §415.1111 and §772.11 When trying to decide between which cause of action to file against a person who has committed financial exploitation against or theft from a vulnerable or disabled adult, one must first establish who has been damaged, the vulnerable or disabled adult themselves, or an individual with an expectancy in inheritance or other interest expected from the vulnerable or disabled adult, and whose expectancy or interest was lost or diminished as a result of the exploitation or theft against the vulnerable adult. Pursuant to Fla. Stat. §415.1111, “A vulnerable adult who has been abused, neglected, or exploited . . . has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” [reproduced below] The action may only be brought by the vulnerable adult, or that person’s guardian, by […]

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Substituted Parties

Written by on Feb 24, 2010| Posted in: Estate Litigation

What Happens When a Party Dies During a Lawsuit? One of the hotly-contested issues among Florida probate lawyers in the context of inheritance lawsuits involving beneficiaries of wills and trusts is whether and to what extent appellate courts have jurisdiction over orders entered in Florida lawsuits involving last wills and testaments and lawsuits involving Florida trusts, trustees and beneficiaries.  Generally, Florida Rule of Appellate Procedure 9.110, which governs “Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases,” applies to proceedings that seek review of orders in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”   The dissenting opinion in one recent case in the First District Court of Appeals in Florida dealt with the issue of whether the  a court’s determination of whether notice of was properly served […]

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Appellate Standards of Review

Written by on Jan 26, 2010| Posted in: General

The appellate process is often a confusing landmine of rules, procedures and traps for the unwary.  One of the essential elements for an inheritance lawyer in understanding the appellate review process is the applicable standard of review for particular issues addressed in the court of appeals.  In Florida, in the context of inheritance law court decisions, the different district courts of appeal are not required to defer to lower tribunals on issues of law.  Stated another way, appellate review of a decision that is based on a legal conclusion involves no more than a determination whether the applicable issue of law was correctly decided in the lower tribunal. This concept is commonly referred to as the de novo review doctrine.

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Pretermitted Children: Evidence Must Be Compelling to Disinherit

Written by on Jan 22, 2010| Posted in: General

What is a Pretermitted Child? A pretermitted heir describes a person who would likely stand to inherit under a Last Will and Testament, except that the person who wrote the Will did not know or did not know of the child at the time the Will was written.  Many jurisdictions have enacted statutes that allow a pretermitted child to demand an inheritance under the Will  Florida’s probate code provides when a testator omits to provide by Will for any of his or her children born after making the Will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless it appears from the Will that the omission was intentional, or the testator […]

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Probate Appeals

Written by on Jan 5, 2010| Posted in: Estate Litigation

The issue of what probate rulings are appealable in the context of will contests and probate litigation is complicated, confusing, and subject to debate among jurists and attorneys in Florida.  Generally, the issue is governed by appellate rules, which authorize appeals of “orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person[.]”  Due to the ambiguity of the language of the rule, the Florida Supreme Court has offered guidance in the form of comments to an amendment to one of the rules: “[I]n probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different persons.  An order of the circuit court that determines a right, an obligation or the standing of an interested person as defined by the Florida Probate Code may be appealed before the administration of the […]

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