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Florida Probate Blog

Category: Probate Litigation

Tick Tock

Written by on Dec 28, 2009| Posted in: General

District Courts Uphold Probate Court Dismissals of Untimely Filed Claims. Creditors of estates typically must file a claim against a probate estate within three months of receiving notice that the decedent had died and a probate estate has been opened.  Otherwise, the creditor (or anyone else seeking a claim against an estate) is generally limited to two years following the decedent’s date of death to seek recovery of money from a probate estate.  These principals have been codified by the Florida legislature in the Probate Code. The two leading cases interpreting these sections of the Probate Code are Comerica Bank & Trust, FSB v. SDI Operating Partners, LP, 673 So.2d 163 (Fla.4th DCA 1996) and  May v. Illinois Nat. Ins. Co. 771 So.2d 1143 (Fla. 1999).  Comerica involved an action arising from alleged environmental pollution of land once owned by the Decedent.  The current owner of the polluted land filed […]

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The Golden Rule: he who has the gold, makes the rules.

Written by on Dec 14, 2009| Posted in: General

How do I find out what assets are in a probate estate? With increasing frequency in Florida, friend and relatives of a loved one are left wondering what happened to the estate that they knew existed prior to death but apparently disappeared after the probate estate is opened and the last will and testament is admitted to probate.   Often, the source of the confusion is communication between the family members and the decedent prior to death concerning an understanding of the content and value of the estate. But what can you do when the loved one dies, a will is admitted to probate, and the friends and relatives who thought they were beneficiaries never hear a word or receive any notice or information regarding the assets of the estate and the particulars from the attorney administering the estate? 

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What’s the hold up?

Written by on Nov 24, 2009| Posted in: General

My sister is not giving me my share of my mother’s estate – what do I do? It depends why you’re not getting your share.  Is it too early? Florida law provides the duties and powers of a personal representative commence upon appointment.  The personal representative is under a duty to marshall, settle and distribute the assets of the decedent in accordance with the terms of the decedent’s Last Will and Testament and Florida law as expeditiously and efficiently as is consistent with the best interests of the estate.     What does that mean?  Well it’s a case-by-case basis because no two estates are alike; however, the law requires certain action by the executor, designed to keep all beneficiaries informed and the process honest.  For example, within 60 days of being appointed executor, the law requires that an inventory of the probate assets be filed with the court and served […]

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Bad Heir Day

Written by on Oct 28, 2009| Posted in: General

State v. Marshall ends after six month trial. “Money is like manure; it’s not worth a thing unless it’s spread around.”—Brooke Astor I have previously written about Meryl Gordon’s recent book Mrs. Astor Regrets: The Hidden Betrayals of a Family Beyond Reproach as an outline of what can happen when wealth meets the dysfunctional family. As readers may know, the late philanthropist Brooke Astor’s probate estate was the subject of litigation and criminal charges in New York. Brook Astor inherited over $60 million when her husband died in 1953. Amazingly, between then and 2003, she changed her last will and testament no less than 38 times. Evidently, Ms. Astor detested her son, Anthony Marshall’s third wife, Charlene, and began making changes to her will at the end of her life to insure that Charlene did not inherit any of the family fortune. Prosecutors charged in an eighteen count indictment that […]

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Descendants by Blood

Written by on Sep 15, 2009| Posted in: Estate Litigation

This case illustrates the difficulties faced by courts when confronted with the conflict between social policy and the law’s goal of giving legal effect to the desires of a person as expressed in their will or trust.

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Virtual Adoption versus Will Contest

Written by on Sep 4, 2009| Posted in: Estate Litigation

The only situation that I believe would require the virtual adoption case to be determined before the will contest case would be in the context of a pretermitted child where a person omits to provide in his or her last will and testament for a child or adopted child because the child was born or adopted (which presumably would include virtual adoption) after making the last will and testament.

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Rules of Affection

Written by on Aug 10, 2009| Posted in: Estate Litigation

Frequently, probate litigators are called upon by clients to ask a probate judge to interpret an ambiguous clause in a Will that invariably directly affects the substantive rights of the beneficiaries.

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Will Contests: When, Where and How?

Written by on Jul 27, 2009| Posted in: Probate Litigation

Court Refuses to Throw Out Case Based on Technical Deficiency Contesting a Last Will and Testament in Probate Court requires the skill and expertise of a lawyer who is familiar with both the substantive law governing probate litigation and also the procedural rules contained in the Florida Probate Rules and Rules of Civil Procedure. One of the areas about which a probate litigator must have knowledge is whether to and when it is necessary to serve papers by what is known as “formal notice.” The failure to accomplish this type of service can have significant implications on the substantive legal rights of litigants in probate court.

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Probate Litigation

Written by on Jul 17, 2009| Posted in: Probate Litigation

Appellate Procedure: Is the Case Ready for Appeal? Appealing a probate ruling is no easy undertaking and requires special care, attention, and a firm command of the governing rules and decisional case law. One of the first things examined by an appellate attorney is whether the order from which an appeal is sought is a final order.

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Inequitable Conduct Doctrine

Written by on Jul 1, 2009| Posted in: General

Will Contest Lawyers Awarded Fees From Proponent of Forged Last Will and Testament Generally, each party who brings or defends a lawsuit is each responsible for their own attorneys fees, regardless of who wins or loses, unless there is a governing statute or contract that specifies from whom or where the fees should be paid.  This is generally true in the probate arena as well, that persons who hire lawyers to bring a contest or lawsuit against a last will and testament are responsible for their own fees, even if they win, unless certain special circumstances are shown.  One of these is the idea that the services rendered by the lawyer brought about a “benefit” to the estate.  I have previously written about this concept in my blog. 

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