Blogs from January, 2011

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What is probate litigation? 

The word probate is an odd one, coming from the Latin word “probatus” which means “to prove.”  Originally, probate was the process to prove a Last Will and Testament of the decedent.  However, probate courts have expanded their jurisdiction to include guardianship and trust law, too.  So “probate litigation” encompasses guardianship, probate, and trust disputes

My firm has handled hundreds of probate litigation cases over the past ten years.  With that experience, we have learned that in a probate litigation case the facts are always the same in a general sense, but have infinite variety as to the particulars. There is always an elderly person, usually alone, and a predatory relative, friend, or caretaker who takes advantage of the loneliness and dependency of old age.

Probate litigation (remember that means estate, guardianship, and trust litigation) is a rapidly-developing area of the law in Florida. The large elderly population has created a hotbed for abuse and subsequent litigation. Because probate, guardianship, and trust work generally do not involve litigation, most lawyers who practice in those areas are reluctant – and wisely so — to litigate an issue themselves. Litigation is full of pitfalls that make it a hazard for attorneys who do not concentrate their practices.  

Here are some of the “red flags” that indicate you may have a probate litigation issue:

  • An elderly parent comes in with one of his children to prepare new estate planning documents that change the beneficial interests of all of his children;
  • A child with substance abuse issues decides to file a Petition to Determine Incapacity against an elderly parent even though the parent has complete estate planning documents that should eliminate the need for guardianship;
  • A decedent who was dying of cancer and on heavy medication signs a new will or a deed near the end of his or her life;
  • A child contacts you to advise you that she just found out a parent died a few months ago, the estate has been administered, and she never received any disclosure;
  • A client with estate planning documents dies and the estate has numerous joint bank accounts with only one of the decedent’s children or with a friend or caretaker;
  • A widow or a widower marries near the end of life and, notwithstanding a premarital agreement, creates joint accounts with the new spouse thereby cutting out the children the premarital agreement was designed to protect.
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