• Accounting – if a beneficiary has received inadequate or insufficient information from a trustee, the beneficiary may need to formally demand an accounting to compel compliance.
• Removal – if a trustee has acted inappropriately and needs to be removed from the position of trustee, a beneficiary may seek to have the court remove the trustee.
• Breach of Fiduciary Duty – if a trustee has engaged in conduct that violates his duties to the beneficiaries, a beneficiary may sue the trustee for breach, which is a cause of action for money damages.
• Trust Modification – if a beneficiary believes there is a mistake in the trust or that the person who made the trust did not adequately anticipate the beneficiary’s current needs, he may seek assistance – either through the courts or outside of the courts – in changing the terms and provisions of the trust.
• Trust Termination – if the beneficiaries of a trust believe that the trust’s primary purposes has been fulfilled (e.g. to educate a certain class of beneficiaries), they may seek to have the trust terminated and the balance of the trust funds distributed to the beneficiaries.
• Undue Influence/Lack of Capacity – like a Will Contest, if an interested person believes that a trust document was created as the result of undue influence or lack of capacity, he may bring a cause of action challenging the validity of the trust document or parts of the trust document.

If you need to speak with a FL Trust Dispute Lawyer, please call the Law Offices of Adrian Philip Thomas, P.A. toll free at (800) 249-8125 for a free consultation.

Can a Will be changed after death?

While Florida law provides for challenges to the probate of Wills under theories such as duress, improper execution, undue influence, and incompetency, beneficiaries and other interested persons of a Last Will and Testament now have a new way to change a Will after death.  Effective July 1, 2011, Florida Statute 732.615 (“Reformation to correct mistakes”), allows for modification of a Last Will and Testament where a mistake of fact or law needs to be corrected in the written Will.  This Florida law can be used by beneficiaries of a Will in instances where a specific gift in the Last Will and Testament is a mistake; such a situation may arise with regards to the amount of a specific bequest.  Perhaps the decedent’s intention was to provide $50,000 to a grandchild but the Last Will and Testament offered for probate instead lists $500.  In such a scenario, a probate law attorney could use the discovery rules to seek out evidence that both the testator’s intent and the terms of the Will were affected by a mistake of law or fact.  This may be done through written discovery, deposition, or issuance of subpoenas.

If you have a Florida Will Reformation question, please contact the Florida Probate Attorneys at Adrian Philip Thomas, P.A. for a free consultation.  Call toll free at (800) 249-8125.

Our office receives communications nearly every day from people asking “how do I contest a Will in Florida?”

As with most questions in the law, the answer is “it depends” and it largely depends on the basis for contesting the Will.  Is it because you know the decedent executed a more-recent Will?  Is it because the Will filed was executed improperly?  Is it because the decedent who made the Will lacked capacity at the time it was made?  Is it because the decedent who made the Will was being unduly influenced by someone when it was made?  Sometimes it is appropriate and sufficient to file an Objection to the Petition for Administration or to the Petition to Admit Will but sometimes a law suit (Complaint) challenging the Will is necessary.

The best answer to the question “how do I contest a Will in Florida?” is that you should consult with a Florida lawyer who handles probate litigation, which includes Will contests, who can ask you the right questions to determine whether you have a valid basis for contesting a Will.

For more information about how to contest a Will in Florida, please see our Will Contest FAQs or schedule a no-obligation consultation with an attorney at Adrian Philip Thomas, P.A.

To read more about Florida Inheritance Disputes, please visit Florida Probate Lawyer.

If you would like a consultation with a Florida Inheritance Dispute Lawyer at Adrian Philip Thomas, P.A., please call (800) 249-8125 to schedule a free consultation.

Fort Lauderdale, Florida has a large elderly and affluent population making it a hotbed for Will and Trust Disputes.  These cases may include causes of action for undue influence, lack of capacity and tortious interference.

Sometimes family members realize after a loved one dies that a long-standing estate plan has been disrupted by someone who has abused a position of trust and confidence with an elderly person.  Other times, family members have to defend against attack by a disgruntled person who has been excluded from an estate plan.

Whether the will or trust dispute is being prosecuted or defended, the attorneys at Adrian Philip Thomas, P.A. are experienced in all aspects of will and trust dispute litigation.

Schedule a free consultation with an experienced Florida will and trust dispute lawyer.  Call the Law Offices of Adrian Philip Thomas, P.A. toll free at (800) 249-8125.

            As is often the case, people pass away with a debt owed to another person or entity.  When this occurs, the proper manner for a creditor to collect on such a debt is to file a Statement of Claim in the decedent’s estate pursuant to Fla. Stat. §733.703.  The primary time limitation that creditors must be wary of stems from Fla. Stat. §733.702, which states that the claim must be filed within three (3) months after the time of the first publication of the notice to creditors (which is published by the personal representative near the commencement of the estate administration) or, if the creditor is a known and/or reasonably ascertainable creditor, thirty (30) days after being served with the notice to creditors.  Typically, the proper person to file an objection to any such claim is the personal representative.  However, under the Florida Probate Code, any interested person in the estate, whether a beneficiary or another creditor, may also file an objection to a filed claim.

            Fla. Stat. §733.705 describes the procedure of paying and objecting to claims that are filed in an estate.  In regards to objections, the statute states as follows:

(2)   On or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later, a personal representative or other interested person may file an objection to a claim. 

 An “interested person” under the Florida Probate Code is one who may be reasonably expected to be affected by the outcome of a particular proceeding involved.  Of course, a beneficiary or a creditor of an estate would come under this definition and have the authority to file an objection to a filed claim.  This often occurs when a beneficiary or creditor does not believe that the personal representative has been performing his or her duties diligently and in the best interest of the estate and/or if there is a suspicion of a conflict of interest.  Although such impropriety is not required for an interested person to file an objection to a claim, this is the typical scenario where one would see a non-personal representative filing an objection to a creditor claim.

Once the objection is filed, however, the claimant has their own time limitation to consider.  Pursuant to Fla. Stat. §733.705(5), a claimant is limited to thirty (30) days from the date of service of this objection to bring an independent action upon the claim filed.  In other words, the creditor has to file a separate lawsuit against the estate in order to collect on his, her or its claim.  Moreover, Florida case law is clear that this lawsuit must be an “independent” lawsuit, meaning that it cannot be filed in the probate estate.  Williams v. Estate of Williams, 493 So.2d 44 (Fla. 5^th DCA 1986); In re Estate of Fornash, 372 So.2d 128 (Fla. 2d DCA 1979). 

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.

             A Constructive Trust is an equitable remedy and is created when a court, through application of a legal fiction, deems property formerly held by one who wrongfully obtained the property, to be held in Trust for the one who the property justly belongs to be the beneficiary of the Trust.  Unlike other Trusts, a Constructive Trust is not predicated upon the party’s intent.  It is an equitable remedy and a tool used by courts to prevent someone from being unjustly enriched at the expense of an innocent victim.

            American Jurisprudence follows two distinct paths of reasoning with regards to the creation of a Constructive Trust.  One school of thought holds that a Constructive Trust arises when a transaction procured by fraud requires a court to impose a remedy of a Constructive Trust.  Another school of thought (and the one followed by Florida courts) holds that a Constructive Trust is not a Trust at all,  but is merely a remedy imposed by a court when asked to do so by a beneficiary who has been victimized by some inequitable and unjust conduct.  This is the minority view in the United States and is still followed by Florida courts.

            The Second District Court of Appeals recently reaffirmed this minority view of the law when it dealt with the allegations in a complaint that attempted to set forth a cause of action for a Constructive Trust.  In Swope v. Harmon (Fla.2^nd DCA 2D11-3228, March 28, 2002) 37 Fla.L.Weekly D725, the court faced an appeal by Plaintiff after the trial court had dismissed the complaint finding that the plaintiff failed to allege sufficient facts to satisfy all the requirements for imposition of a Constructive Trust.  The Second District Court of Appeal affirmed the result but for different reasons then those stated by the trial court.  According to the Second District Court of Appeals, “A Constructive Trust is not a traditional cause of action; it is more accurately defined as an equitable remedy.”  The Court also stated that “because a Constructive Trust is a remedy, it must be imposed based upon an established cause of action.”

            Probate litigators who frequently face situations where an innocent party has been victimized by a wrongdoer, (and the wrongdoer has possession of property that does not rightfully belong to them through using undue influence, fraud, duress or coercion of another by changing a Will or Trust or some other unscrupulous conduct,) are equipped with the extraordinary remedy of Constructive Trust.  This equitable remedy can be critical in achieving justice for victims of undue influence and other tortious conduct in connection with the interference with the family’s inheritance and expectancy.

Lawyers in Florida who handle contested guardianships and inheritance disputes concerning Wills and Trusts frequently encounter issues regarding what law is to apply to fee dispute resolutions.  As practitioners, it is always important to provide the correct and applicable law to the trial court so that the issue may be resolved appropriate through application of the correct law in existence at the time the dispute arose to the specific facts and circumstances leading to the fee dispute.

A case illustrating the importance of guiding the trial court with the correct law was issued by the Second District Court of Appeals in the Guardianship of Kay RC (Fla. 2^nd DCA, case number 2D10-5956, March 9, 2012).  This case involved a lawyer who represented the guardian of the ward.  The guardian discharged the attorney and retained another law firm and the first lawyer applied for fees relating to the work he had performed in his representation of the ward.  The guardian objected claiming that the lawyer was billing for administrative tasks and that the guardian could have performed the same work at no cost to the ward.  The trial court granted the Petition but awarded fees for a lesser amount then requested.

Another Petition for Fees was submitted by the lawyer and the court held a hearing denying the Petition and cited a case from 1997 which held that an attorney was not entitled to recover fees for time spent in collecting fees from the ward or the ward’s errors because that work did not inure to the ward’s benefit and was not statutorily authorized.  On appeal, the Second District Court of Appeals found that the trial court had erred in relying on a 1997 case that had been superseded by statutes first adopted in 2003 which authorized fees that are not substantially unreasonable.  This statute codified at Florida Statute §744.108(2)(a)-(i) provides the criteria that the trial court should consider when determining fees for a guardian or an attorney.