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Florida Probate Blog

The Law Offices of Adrian Philip Thomas

How do I contest a Will?

Written by on Feb 11, 2013| Posted in: Probate Litigation

Client’s often call Adrian Philip Thomas, P.A. to ask “how do I contest a Will?”  There are specific grounds and legal reasons needed to challenge a Will in Florida and a skilled Florida probate lawyer can provide guidance. First, the Will should be scrutinized to see if it was properly executed, witnessed and notarized.  In Florida, there are very specific laws regarding the formality of how a Will is signed.  It must be signed by the Testator and witnessed by two witnesses in the same room and the same time who actually witness the Testator executing the Will.  Each witness must sign in the presence of the other, and then the Will needs to be notarized. Second, under Florida law, the Testator is required to have the appropriate mental capacity to sign the Will.  This would include the Testator understanding the nature and value of his assets, who should inherit […]

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Simultaneous Death Law

Written by on Feb 11, 2013| Posted in: Probate Litigation

If an individual elects not to execute a Last Will and Testament, then Florida law makes provisions for distribution of his assets at death.  One area where this is of particular note is Florida’s Simultaneous Death Law, found in Florida Statute § 732.601.  The Simultaneous Death Law is triggered when two (or more) people die and there is insufficient evidence that that the persons have died other than simultaneously.  This is common in fatal accidents, where it is not readily known which individual died first.  This can be important when it comes to determining the ownership of joint accounts (passes to survivor but who was survivor?), determining the correct beneficiary of a life insurance policy, or who takes under a Last Will and Testament. Under Florida Statute 732.601(1), “[w]hen title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property […]

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Florida Guardianship and Examining Committee Reports

Written by on Jan 16, 2013| Posted in: Guardianship Litigation

When there are concerns that a loved-one may have limited mental capacity, it may be appropriate to petition the Court for implementation of a guardianship.  However, courts view guardianships as a last resort, and they will not usually grant them if there is a sufficient less restrictive alternative to guardianship.  Examples of these less restrictive alternatives would be a power of attorney, a healthcare surrogate, and/or a trust. Nevertheless, there are times when courts have to intervene and initiate a guardianship.  Once a petition to determine incapacity is filed, the court orders that three (3) examining committee members assess the alleged incapacitated person’s mental health and they provide recommendations to the court as to whether or not they believe that a guardianship should be initiated by the court. However, there has been some recent case law that may shed some light as to how strictly the court should consider these […]

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Fort Lauderdale Probate Litigation Lawyer

Written by on Jan 10, 2013| Posted in: General

A Fort Lauderdale Probate Litigation Lawyer may represent clients in connection with disputes arising over a Last Will & Testament.  There are several grounds for contesting a decedent’s Last Will & Testament, including: mistake in execution, undue influence, and lack of testamentary capacity.  In addition to Will contests, probate litigation may involve:  Will construction (interpreting the meaning of a Will), determination of heirs, elective share, breach of fiduciary duty, removal of fiduciary, surcharge (making a fiduciary pay back losses caused by his/her conduct), and accounting.  Each of these topics is discussed in greater detail at our website.  Just follow the links at the top of this page.   The Fort Lauderdale Probate Litigation Lawyers at Adrian Philip Thomas, P.A. represent clients in connection with all probate litigation matters, both prosecuting and defending.  If you or someone you know needs to consult with a Fort Lauderdale Probate Litigation Lawyer, call toll free […]

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Trust Accountings and Litigation

Written by on Dec 19, 2012| Posted in: Trust Litigation

In trust litigation a dispute between a beneficiary and the trustee of a trust is not uncommon.  Florida law provides that a trustee of an irrevocable trust has a duty to inform and account to a qualified beneficiary pursuant to Fla. Stat. 736.0813.  However, what happens where a qualified beneficiary has never received an accounting and then seeks redress in Court for the actions of a trustee years later? The Third District Court of Appeal recently considered such a matter in Taplin v. Taplin, 88 So. 2d 344 (Fla. 3d DCA 2012).    In Taplin, the trial court dismissed a second amended complaint with prejudice filed by a qualified beneficiary against the Co-Trustees of a trust.  The complaint had sought an accounting, breach of trust removal of trustees and surcharge.  The dismissal was based upon failure to object within the six-month limitation period provided by Florida law (at that time Florida Statute […]

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EMERGENCY TEMPORARY GUARDIANSHIPS AND TRUSTS

Written by on Dec 10, 2012| Posted in: Guardianship Litigation

Under Florida law, prior to the appointment of a permanent guardian but after the filing of a petition to determine incapacity, a probate court may appoint an emergency temporary guardian (“ETG”) for the person and/or property of an alleged incapacitated person. Before the appointment of an ETG, the court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired, which would be sufficient grounds for the appointment of an ETG of the person. Likewise, if the court determines that the person’s property is in danger being wasted, misappropriated or lost, then an ETG of the property may be appointed. Until recently, there was no clear guidance as to what effect the appointment of an ETG had upon the ability of the alleged incapacitated person to make changes to his or her estate planning, particularly in […]

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QUALIFICATIONS AND COMPENSATION OF PERSONS GIVEN POWER OF ATTORNEY IN FLORIDA

Written by on Nov 20, 2012| Posted in: General

A Power of Attorney is a writing that grants authority to someone to act in the place of the principal, whether or not the term “power of attorney” is actually used in that writing.  It is often used as an estate planning tool to avoid a guardianship proceeding should the person granting the power of attorney become incapacitated. The “agent” or person given the authority to act for a principal under a power of attorney can be designated as an agent, attorney-in-fact- or otherwise, and includes an original agent, co-agent and successor agent.  Fla. Stat. 709.2102 The agent named in a Power of Attorney may be any natural person who is eighteen years of age or older and of sound mind. In the alternative, a designated agent given a power of attorney may also be a financial institution having trust powers and a place of business in Florida and authorized […]

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HOMESTEAD REAL PROPERTY AND A SURVIVING SPOUSE’S ELECTION

Written by on Nov 19, 2012| Posted in: General

The Florida Constitution (Article X, Section 4), Florida Statutes, and Florida decisional law delineate the different protections offered to family of a decedent’s homestead property.  Most recently, Fla. Stat. 732.401 was enacted by the legislature and provides, in relevant part, as follows: (1)  If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes. (2)  In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being […]

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Florida Guardianship: Examining Committees and Due Process

Written by on Nov 8, 2012| Posted in: Guardianship Litigation

THE RIGHT IN FLORIDA TO CONFRONT EXAMINING COMMITTEE MEMBERS IN A CONTESTED INCAPACITY GUARDIANSHIP PROCEEDING The Fourteenth Amendment of the United States Constitution, and Article I, Section 9 of the Florida Constitution, provide that no person shall be deprived of their fundamental rights without due process of law.  Procedural due process under the Florida Constitution guarantees to every citizen the right to have that course of legal procedure which has been established in Florida’s judicial system for the protection and enforcement of private rights applied in his or her case.  For these reasons, the Florida Legislature has required that in the adjudicatory hearing on a petition alleging incapacity, the partial or total incapacity of the person must be established by clear and convincing evidence.  The procedures to determine incapacity and the minimum requirements to comply with due process have been codified by the Florida Legislature at Florida Statute §744.331.  These […]

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Florida Homestead Law: Condos and Co-ops

Written by on Oct 30, 2012| Posted in: General

As a Florida probate attorney, one issue that often arises is the treatment of homestead real property.  Under Florida law there are three contexts in which the homestead has significance: (a) taxation, (b) exemption from forced sale and (c) descent and devise.  Florida case law is plentiful as it pertains to homestead real property, especially since a 1984 change in the Florida Constitution which broadened the constitutional definition of the term “homestead.” While Florida homestead law can be found in Article X, Section 4 of the Florida Constitution, many decisions of Florida appellate court must be considered when seeking the Constitutional protections.  One also must determine what context they are seeking to invoke the Constitutional protection (exemption from forced sale or devise and descent), as the District Courts of Appeal have treated certain contexts different.  For instance, while a condominium may be considered homestead, a cooperative apartment may not, depending […]

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