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The Law Offices of Adrian Philip Thomas

  • Florida Inheritance Law

    June 8th, 2010

    Posted by Adrian P. Thomas

    STEP CHILDREN AND CHILDREN BORN OUT OF WEDLOCK

    Florida inheritance laws do not treat your stepchildren as your legal heirs, therefore, they do not have an automatic legal right to inherit from you. If you want to ensure they will receive part of your estate, you will need a Will that specifically names them as a beneficiary. If you simply leave “20 percent to my children”, then your stepchildren may inherit nothing. It is important to name each individual child as a beneficiary instead of referring to them as “my children”, which will avoid confusion in interpretation of the Will language. If you formally adopt your stepchildren, then they will inherit from you as a beneficiary the same way as your biological children. Read the rest of this entry

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  • Florida Wrongful Death

    May 31st, 2010

    Posted by Adrian P. Thomas

    A wrongful death lawsuit will inevitably be filed in connection with the fatal I-95 sport-utility crash that left two dead from the Hollywood Florida area.  Personal injury lawyers will hire probate lawyers to open the estates so a personal representative can be appointed to file a survival action and a wrongful death claim.  According to reports, the vehicle lost control and flipped over which might lead investigators for the wrongful death lawyers to examine whether any defect existed in the vehicle that may have caused it flip.   Read the rest of this entry

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  • DISPOSITION OF THE BODY

    May 24th, 2010

    Posted by Adrian P. Thomas

    Who Decides?

    In the past, Florida Statutes and case law were lacking any real direction as far as who “owns” a deceased person’s body and ultimately who decides how to dispose of the deceased person’s body. Unfortunately, many people do not plan ahead for such an important decision and when one fails to make these arrangements in advance of death, families are left to decide which really means estate litigation lawyers have yet another fight on their hands. The failure to make burial arrangements often creates dissension among loved ones who may never have discussed what a deceased person’s wishes were as far as the disposition of their remains after death. Cremation or burial, where to be buried, whether to donate the body for science, or even what kind of funeral service are just some of the disputes that arise among loved ones. The Anna Nicole Smith and Schiavo cases were a couple of the more publicized disputes that with the help of elder law layers, the media and judges got turned into a three-ringed circus. Read the rest of this entry

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  • Power of Attorney

    May 19th, 2010

    Posted by Adrian P. Thomas

    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. Read the rest of this entry

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    Posted in General, Probate Litigation | 1 Comment »

  • Leader of the Class

    May 11th, 2010

    Posted by Adrian P. Thomas

    Second District Finds No Authority Under Probate Code for Class Claims

    The Second District Court of Appeals rendered a harsh rejection of a Lee County Circuit Court’s decision allowing a class action claim against a decedent’s estate.  Baillargeon v. Sewell, 2010 WL 1727892, 35 Fla.L.Weekly D978a, (Fla.2d DCA April 30, 2010) announced a decision important to inheritance lawyers and others interested in Florida probate law and Florida probate and will and estate administration issues. 

    When Frank D’Alessandro (the Decedent) died, he was one of several defendants named in a class action lawsuit in federal court filed by Randolph Sewell and Daphne Sewell (the Sewells), on behalf of themselves and all others similarly situated, founded upon allegations involving a failed investment scheme.  The Personal Representative was substituted as a party in the pending action after decedent’s death.  Within three months after the first publication of notice to creditors, the Sewells filed a statement of claim “both individually and on behalf of [a] class of claimants.” In their statement of claim, the Sewells did not list the names and addresses of the other members of the putative class. Read the rest of this entry

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  • Exploitation of the Edlerly

    May 4th, 2010

    Posted by Christopher P. Taylor

    CRIMINAL PROSECUTION FOR FINANCIAL EXPLOITATION OF THE ELDERLY – THE SQUEAKY WHEEL GETS THE OIL

     “It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.”  — Hubert H. Humphrey

     It is a sad fact that most people who commit financial exploitation against the elderly get away with it. Often, the exploitation becomes so easy that the exploiter does it more than once and against more than one victim. Their actions become increasingly bolder, and with few exceptions, their greed leads them to steal larger sums of money from each new victim. This is why they must be prosecuted to the full extent, as there WILL be another victim.

    Unfortunately, financial crimes against the elderly continue to escalate at an alarming rate and, more often then not, are never prosecuted. Because exploitation is misunderstood, those who witness it either do the wrong thing or nothing at all to prevent it. Witnesses often fail to act because they mistakenly believe that confused victims don’t have capacity but must be treated as if they did. When a reporting officer does not properly recognize an exploitation crime, they make a common mistake of classifying the crime as a civil matter because the incapacitated victim signed legal documents transferring assets or because consent was apparently given. Attorneys tend to shy away from pursuing criminal investigations on behalf of their clients because they couldn’t justify charging elderly or mentally infirm victims exorbitant fees. How could an attorney claim that an elderly client chose to retain his or her services at a specified rate per hour and then insist in the same breath that the client doesn’t have the capacity to make financial decisions?

    Even more alarming, as my recent experience in attempting to have a home health aide arrested for theft from an elderly client (detailed below) revealed, is the general feeling of helplessness or careless attitude expressed by several law enforcement officers – why bother, even if one arrest is made, there’s a thousand more waiting in line to prey upon the elderly.  What is unclear is whether the increasing number of elderly exploitation cases is the cause or the result of this kind of thinking. Read the rest of this entry

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  • Proper Will Preparation and Execution

    April 26th, 2010

    Posted by Adrian P. Thomas

    It is imperative that a person’s Last Will and Testament be properly prepared by a skilled and competent estate planning attorney and that the execution of this Last Will and Testament is performed appropriately and according to Florida Statutes.   Most recently-drafted Wills are self-proved wills, executed in accordance with Florida Statutes 732.502 and 732.503.

    Florida Statute 732.502 sets forth the exact execution requirements for a Will to be valid.  These are the formal steps that must be taken to ensure that a Will was validly signed by the testator and the attesting witnesses.  If a Will is executed without a “self-proving affidavit,” then at the time of the decedent’s death, the witnesses to the Will will need to sign oaths in front of a court official to swear that the Will submitted is the Will the testator signed in front of them.  This can present obvious problems if the testator executed a Will 20 years before death.  Fortunately, the legislature contemplated this problem and provided a mechanism for “proving” the authenticity of the Will at the time of execution.  Florida Statute 732.503 sets for the requirements for a “self-proving” Will.  Read the rest of this entry

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  • Being of unsound mind…

    April 15th, 2010

    Posted by Adrian P. Thomas

    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 the care of the guardian, the testator was moved around so that the out-of-state relatives did not have contact with her and were unable to locate her for substantial periods.  Despite that a guardian was being appointed, the decedent was seen by a physician and psychiatrist and was found to be lucid.  She then signed a will, leaving her recent friend (who had asked for the guardianship in the first place), and charities which he solely controlled, the entirety of her quite substantial estate. Read the rest of this entry

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    Posted in Guardianship Litigation, Probate Litigation | No Comments »

  • Florida Inheritance Law

    March 26th, 2010

    Posted by Adrian P. Thomas

    Questions regarding Florida Inheritance Law and Florida Inheritance Lawsuits.

    When Olga Kuhnreich died, she was unmarried and had no children.  She was survived by her niece, Conchita, and Sister Gladys.  Olga’s will named Conchita as the Personal Representative.  Conchita read the last will and testament after Olga’s death and was confused as to who was to inherit Olga’s home.  The confusion was Article Three of the Will, titled “Specific Bequests of Real and/or Personal Property,” concerned two parcels of real estate. First, a West Palm Beach condominium unit was gifted outright to two named beneficiaries. Second, “[f]rom the sale of: 202 N.W. 18 Street[,] Delray Beach, Florida 33444,” the will gifted specific dollar amounts to five persons: Robert Kuhnreich, $5,000; “Lane Abbot, AKA Orlando Abad,” $10,000; “David Mears, AKA David Abad,” $10,000; “Connie Abad, AKA Conchita Abad,” $30,000; and Maria De Cuena, $5,000.  Article Three ended with this sentence:

    “In the event that I do not possess or own any property listed above on the date of my death, the bequest of that property shall lapse.”

    Article Four was titled “Homestead or Primary Residence.” It stated:

    I will, devise and bequeath all my interest in my homestead or primary residence, if I own a homestead or primary residence on the date of my death that passes through this Will, to see above primary residence. If I name more than one person, they are to receive the property [X] equally, after all estate taxes, debts are satisfied.

     

    Name Address Relationship

    Gladys Pajares 1150 N.E. 155 Street, N. Miami Beach Fla Sister

    Conchita Donahue 44 Pine Oak Drive, Littleton, Colorado Niece

    Property: Primary Resident[sic] 202 N.W. 18 Street Delray Beach, Florida 33444 Read the rest of this entry

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    Posted in Estate Litigation | 1 Comment »

  • Undue Influence

    March 24th, 2010

    Posted by Adrian P. Thomas

    Friends, Romans, countrymen, lend me your ears….

    How much ear bending is influence verses undue influence?

    As a law firm that focuses on probate, estate and trust litigation, we encounter all sorts of factual scenarios. In one case where our client was the longtime caregiver/friend of the decedent, a will contest was against the estate planning documents which left the estate substantially to the friend to the exclusion of a son and grandchild. The cause of action contesting the will sounds in undue influence and intentional interference with an expectancy. Throughout the course of the discovery, opposing counsel maintained that the care-giving services provided by our client amounted to overreaching and undue influence. However, as per the Second District Court of Appeal in Florida, the conduct of a person charged with:

    Undue influence, as it is required for invalidation of a will, must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will. Mere affection, kindness or attachment of one person for another may not of itself constitute undue influence. Heasley v. Evans, 104 So.l 2d 854, 857 (Fla. 2d DCA 1958). Read the rest of this entry

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    Posted in Estate Litigation, General | No Comments »