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Florida Probate Blog

The Law Offices of Adrian Philip Thomas


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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Due Process in Guardianship and Incapacity Proceedings

Written by on Oct 19, 2012| Posted in: Guardianship Litigation

Losh v. McKinley 86 So.3d 1150 (Fla. 3d DCA 2012) When the Florida Guardianship Law (F.S. Chapter 744) was enacted more three decades ago, its then progressive legislative intent was clearly stated within the statute and still remains in effect today.  The statute unequivocally demands that it is to be liberally applied and construed to ensure that the least restrictive form of guardianship is made available; that viable alternatives to guardianship are considered prior to adjudicating a person incapacitated and that due process protections are to be afforded to every person who may become subject to guardianship and incapacity proceedings within the State of Florida.  In a recent Third District Court of Appeals case, Losh v. McKinley 86 So.3d 1150 (Fla. 3d DCA 2012), these fundamental protections were again upheld as public policy mandates due process for these individuals prior to a trial court’s removal of his or her rights. […]

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Can I do whatever I want with a power of attorney?

Written by on Oct 15, 2012| Posted in: General

This question seems to be arising more and more often lately.  Most estate planning attorneys recommend their clients create a durable power of attorney (DPA), naming a close, trusted family member (usually a spouse or adult child) to serve in the capacity as their attorney-in-fact to manage their finances and other personal business in the event of temporary or permanent incapacity.  It’s a very smart estate planning tool for obvious reasons, but it is also one that is extremely susceptible to abuse by the attorney-in-fact.  After all, the activities of an attorney-in-fact are not court-monitored or approved, which makes it very enticing for one to help themselves. Over the past couple years, there seems to have been a significant rise in the number of lawsuits filed in Florida for breach of fiduciary duty arising from self-dealing conduct with DPA’s.  What’s more is that many lawyers are taking the position in […]

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Written by on Oct 7, 2012| Posted in: General

In Florida, every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative. Fla. Prob. R. 5.030 (a). In nearly all Florida probate cases, it’s important, and typically required, that the personal representative of an Estate have legal representation. Even in the simplest probate case, legal issues are likely to arise. There will be statutory requirements and issues where the Court requires an attorney to be part of the process to assist in advising the personal representative of rights, duties, and obligations they have to the estate and beneficiaries. There are numerous complex matters that can arise during the administration of an estate, in addition to deadlines, duties and other responsibilities […]

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Pretermitted Share vs. Elective Share

Written by on Sep 28, 2012| Posted in: General

Assuming there is no pre-marital agreement, a surviving spouse who is not included in the decedent’s Will may take a pretermitted share or an elective share.  Which one to take requires an analysis of what the decedent owned and – more importantly – how he owned it. A “pretermitted” spouse is one who becomes a spouse after the decedent created his Will.  The law assumes that the decedent intended to provide for the spouse but simply did not get around to updating his Will.  The pretermitted share is the same as the intestate share, which is 50% of the probate estate.  The elective share makes no assumption about what the decedent intended and is a mechanism for enforcing Florida’s public policy against disinheriting one’s spouse.  The elective share is 30% of the elective estate.  The elective estate is much broader than the probate estate and may include revocable trusts, jointly-owned property, pay-on-death […]

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Capacity to Create a Trust in Florida

Written by on Sep 21, 2012| Posted in: Guardianship Litigation

Florida guardianship lawyers frequently encounter disputes in connection with what rights a vulnerable adult should have judicially delegated to a guardian.  Those disputes often develop into contests regarding the duration of those delegated rights and whether and to what extent the rights can and should be restored to the alleged incapacitated person.  Many factors and variables enter the legislatively created mechanism for determining these issues. Sometimes, prior to, during, and even after incapacity proceedings, the Florida guardianship lawyer will discover that a family member or other person has orchestrated the execution of a will or trust by the alleged incapacitated person.  These situations present difficult legal and ethical issues for the Florida guardianship attorney. The Florida Trust Code contains a section providing that “a trust is created only if: (a) the settlor has capacity to create a trust.”  §736.0402(1)(a).  Proceedings to determine the competency of a person are controlled by […]

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Homestead Property and Joint Ownership

Written by on Sep 17, 2012| Posted in: Estate Litigation

  HOMESTEAD PROPERTY AND JOINT OWNERSHIP “The home to everyone is to him his castle and fortress, as well for his defense against injury and violence, as for his repose.”  Edward Coke. Recently, new case law has established that exactly how the Deed is worded it is very important in the determination of whether the property was a homestead property when one of the owners of the property dies.  Article X, section 4( c) of the Florida Constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.”  If a Florida resident acquires property as a joint tenant with rights of survivorship while he has a minor child and lives in the primary residence, the property will not be deemed the decedent’s homestead, as it passes entirely at the time of his death to the other joint tenant. The recent […]

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Inheritance Rights of Former Spouse

Written by on Sep 10, 2012| Posted in: Probate Litigation

As a Florida probate attorney, it is customary to encounter issues and disputes arising from a former spouse of the decedent.  For some time the Florida Legislature has provided a statutory scheme which provides a presumption preventing former spouses from inheriting from wills and revocable trusts (Florida Statutes §§ 732.507(2) and 736.1105, respectively).  Florida Statute 732.507(2) provides that any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage, absent the will or dissolution or divorce judgment expressly providing otherwise. Similarly, Florida Statute §736.1105 provides that a revocable trust executed by a spouse prior to annulment or dissolution of the marriage becomes void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce, absent the trust instrument or a judgment […]

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