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The Law Offices of Adrian Philip Thomas

  • Appealing Probate Court Orders

    December 1st, 2009

    Posted by Adrian P. Thomas

    Client:   What happened at court?

    Lawyer:   Justice Prevailed.

    Client:   Appeal Immediately!

    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.

    The question is uniquely challenging when a probate lawyer is confronted with an order arising from an adversarial proceeding in a Florida probate court.  Initially, the trust and estate lawyer will examine the probate order in the context of Rule of Appellate Procedure 9.110(a) (2), which provides that the review of an order by the appellate court is authorized when there is an order entered in probate “that finally determines a right or obligation of an interested person as defined in the Florida Probate Code.” This rule operates to broaden the scope of “finality” as that concept generally applies in civil matters.  However, sometimes it no easy task determining whether an interested person’s rights have been “finally determined” in a probate proceeding. Where the rights of the parties as relates to their interest in the probate estate are not finally determined, then the orders are not deemed final for purposes of appeal.  Read the rest of this entry

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  • What’s the hold up?

    November 24th, 2009

    Posted by Adrian P. Thomas

    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 on all interested persons.  The inventory is supposed to include reasonable detail and estimated fair market value at the date of the decedent’s death.  Be careful not to confuse “probate estate” with “gross estate.”  The probate estate means the property of a decedent that is subject to administration by the courts.  For example, mother dies with $10 million dollars – $1 million in an account in her individual name and $9 million in a joint account.  The “gross” estate is $10 million dollars, but the “probate” estate is only $1 million dollars.

    So it may be that you’re not getting your share of your mother’s estate because administration takes time, because of the way the assets were owned at the time your mother died, or because your sister may be characterizing estate assets in a manner favorable to her and not to you.   That is why beneficiaries sometimes hire lawyers to monitor the court proceedings and to make sure an executor is doing his or her job competently and honestly.

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  • Probate Litigation

    November 16th, 2009

    Posted by Adrian P. Thomas

    Fourth DCA overturns Broward Probate Court’s eviction of son from his deceased mother’s apartment.

    My blog has previously discussed the Fourth District’s view, articulated in Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009) on the limitations on an estate fiduciary in taking or encumbering homestead property.  Herrilka involved a dispute between two women who both claimed to be married to the decedent; consequently, a curator-Christine Yates-was appointed to marshal the estate assets.  One of the women, Mrs. Herrilka, occupied the real property that was, without dispute, the decedent’s homestead. Read the rest of this entry

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  • Exploitation of the Elderly

    November 12th, 2009

    Posted by Adrian P. Thomas

    Elders and Vulnerable Adults Frequently Get Taken For a Ride

    According to some recent statistical surveys, there will be 71.5 million people living in the United States who are over 65 years of age by the year 2030.  With the increase in the number of elderly persons moving to Florida, there will of course be a proportional number of those living here who have cognitive disabilities.  These seniors are frequently vulnerable targets of exploitation.

    Florida has taken steps to increase the protections of our vulnerable adults through enacting the abuse of the elderly statute.  The Florida Exploitation of Elderly Statute, codified at Fla.Stat. §415.1111 et seq. imposes civil penalties on persons who exploit a vulnerable adult in Florida.  These civil actions against exploiters have teeth—as the statute allows actual and punitive damages by a victim and the prevailing party can also recover attorney fees and costs.  Also, the statute is non-exclusive and allows cumulative remedies against perpetrators.  Finally, actions under Chapter 772 (Civil Penalties for Criminal Practices) allow for civil remedies for theft or exploitation of the elderly and can include treble (triple) damages, attorneys’ fees and court costs. Read the rest of this entry

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  • The Duties of Remaindermen

    November 3rd, 2009

    Posted by Adrian P. Thomas

    Court Allows Claim for Establishment and Foreclosure of Equitable Lien

    My practice is frequently faced with inquiries regarding the rights of remaindermen.  A remainderman is the person who inherits or is entitled under the law to inherit property upon the termination of the estate of the former owner. Usually this occurs due to the death or termination of the former owner’s life estate, but this can also occur due to a specific notation in a trust passing ownership from one person to another.

    For example, if the owner of property makes a grant of that property “to John for life, and then to Jane,” Jane is entitled to a future interest, called a remainder, and is termed a remainderman.

    As is often the case, the remaindermen and the life estate owner don’t always get along.  Sometimes, the friction is caused by what the remaindermen perceive as the life estate owner’s waste of the property.

    What are the duties of the life tenant? Read the rest of this entry

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  • Bad Heir Day

    October 28th, 2009

    Posted by Adrian P. Thomas

    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 Anthony and his lawyer, Francis Morrisey, conspired to make changes to Ms. Astor’s last will and testament long after she had the mental capacity to understand what was happening. Mrs. Astor, who had Alzheimer’s disease, was 105 when she died in August 2007. There has also been evidence introduced in the trial suggesting that Marshall and his lawyer forged Ms. Astor’s name on the last will and testament so as to shift almost $200 million to Marshall and Charlene. Read the rest of this entry

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  • Legal Comity

    October 27th, 2009

    Posted by Adrian P. Thomas

    Comity Act

    Part I

    Nebraksa and Florida probate courts involved in a jurisdictional showdown.

    Comity, or legal reciprocity, refers to the legal presumption that different jurisdictions recognize the validity and effect of their respective judicial acts.

    Last week the Second District issued an opinion highlighting some strain on the courtesies generally connected with comity, and clarifying some jurisdictional boundaries in Kountze v. Kountze, –So.3d–, 2009 WL 3320200, 34 Fla.L.Weekly D2142a (Fla.2nd DCA, October 16, 2009).  Kountze involved a complicated factual and procedural backdrop, even for a probate litigation dispute.  Basically, the dispute involved an inter vivos heirloom trust as part of a marital settlement agreement between the decedent and his former spouse.  The parties to the lawsuit were the remainder beneficiaries of the Trust.  

    In 2005, Edward Kountze, (“Edward”) as personal representative of the estate, deposited the decedent’s last will and testament in Collier County, Florida, where the decedent lived at the time of his death.  The heirloom trust, however, had Nebraska as its principal place of administration.  Thus, in 2006, Charles Kountze (“Charles”) filed a petition for trust administration in Nebraska. Read the rest of this entry

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  • The Scope of Legal Liability

    October 6th, 2009

    Posted by Adrian P. Thomas

    Fourth District confirms that attorneys may be liable to intended beneficiary of legal services.

    Florida courts traditionally limit attorney liability for negligence in the performance of professional duties to clients with whom the attorney shares contractual privity. An exception is recognized, however, where it can be demonstrated that the apparent intent of the client in engaging the services of the lawyer was to benefit another.  For the beneficiary of a last will and testament to state a viable cause of action, the testamentary intent as expressed in the will must be frustrated by the attorney’s negligence. Rosenstone v. Satchell, 560 So.2d 1229 (Fla. 4th DCA 1990).  Thus, an attorney may be held liable for breach of his duties to one who engages his services or to one who he knows is the intended beneficiary of his services.  Last week, the Fourth District relied on this precedent in forming its opinion reversing a Broward County probate judge in Wells v. Wells 34 Fla.L.Weekly D1897b (Fla.4th DCA, September 16, 2009).  Read the rest of this entry

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  • Pre-Marital Agreements and Joint Property

    October 2nd, 2009

    Posted by Adrian P. Thomas

    What’s mine is mine and what’s yours is mine…prenuptial agreement, joint property and hand grenades

    Sharyn and Leslie Turchin, like many couples these days, entered into a pre-marital agreement prior to their marriage ceremony whereby they both renounced any ownership rights to the other person’s property in case there was a termination to their marriage by divorce or death.   Thereafter, Leslie Turchin, using his premarital assets acquired two residences, one described as the Coconut Isle and the other as the Aqua Vista. He recorded title with both his name and his wife’s.  Both properties were subsequently sold during the marriage. The proceeds from the sale of the Coconut Isle property were deposited in the parties’ joint checking account. Thereafter, the husband withdrew most of the funds in order to satisfy his personal obligations with the balance of the withdrawn funds being deposited in the husband’s individual bank account. As part of the purchase price of the Aqua Vista property, the buyers executed a mortgage in favor of both the husband and wife.  Leslie Turchin died testate and his estate planning documents directed that the remaining balance on the Aqua Vista mortgage be forgiven. Read the rest of this entry

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  • Descendants by Blood

    September 15th, 2009

    Posted by Adrian P. Thomas

    It will have blood, they say; blood will have blood.

    ~William Shakespeare~

    Court rules the phrase “descendants by blood” is a legal term of art, not a scientific one.

    Court’s are often called upon to interpret ambiguous language contained in wills, trusts and other legal instruments.  Recently, I was curious to read that a court was called upon to give meaning to the phrase “descendants by blood” in Doe v. Doe, 34 Fla.L.Weekly D1819c (Fla 2nd DCA February 4, 2009).  I had presumed its meaning was clear, however, when I read the opinion issued by this court, it appears that it was necessary for an interpretation given the recent advances in technology, especially in the area of genetic testing.

    The facts of Doe are uncomplicated.  Chester Jr. and Eleanor, his wife, executed mutual revocable trust agreements.   Each trust provided for a class gift to the settlor’s grandchildren.  One of the grandchildren was Catherine, who was the daughter of Chester III by virtue of his name appearing on her birth certificate and a court order entered in the domestic relations division following Chester III’s divorce with Catherine’s mother. Read the rest of this entry

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