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Florida Probate Blog

Yearly Archives: 2009

The Scope of Legal Liability

Written by on Oct 6, 2009| Posted in: General

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.

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Pre-Marital Agreements and Joint Property

Written by on Oct 2, 2009| Posted in: Estate Litigation

Therefore, while Sharyn Turchin was absolutely correct that a gift is presumed under Florida law when property is purchased by one spouse but placed in the names of both parties, this presumption does not apply when the antenuptial agreement specifically designates how the jointly held property is to be distributed. Thus, Sharyn was entitled to only one-half of the proceeds from the sale of the Coconut Isle property that was left in the parties’ joint account. With respect to the proceeds from the satisfaction of the Aqua Vista mortgage, the court, again relying upon the terms of the prenuptial agreement, ruled that she had no right to or interest in the proceeds.

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Descendants by Blood

Written by on Sep 15, 2009| Posted in: Estate Litigation

This case illustrates the difficulties faced by courts when confronted with the conflict between social policy and the law’s goal of giving legal effect to the desires of a person as expressed in their will or trust.

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Virtual Adoption versus Will Contest

Written by on Sep 4, 2009| Posted in: Estate Litigation

The only situation that I believe would require the virtual adoption case to be determined before the will contest case would be in the context of a pretermitted child where a person omits to provide in his or her last will and testament for a child or adopted child because the child was born or adopted (which presumably would include virtual adoption) after making the last will and testament.

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Playing by the Rules

Written by on Aug 28, 2009| Posted in: General

Questions often arise concerning whether and to what extent the Rules of Civil Procedure govern probate proceedings. Generally, the Florida Probate Rules provide that certain proceedings, such as to remove a personal representative, to determine beneficiaries, and to partition property for the purposes of distribution, constitute adversary proceedings.  In addition, the court can determine any proceeding to be adversary on its own, or by motion of a party. Once a proceeding is determined to be adversary in the probate court, the Florida Probate Rules specify that the proceedings, as nearly as practicable, are to be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure are to govern. Fla.Prob.R. 5.025(d).

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Elder Abuse is a Family Issue

Written by on Aug 26, 2009| Posted in: Estate Litigation

In cases where there are allegations that a will signature was forged, it is helpful to engage the expertise of a forensic handwriting expert to examine the original document; however courts sometimes disregard dueling handwriting experts as hired guns who will testify predictably in favor of their client’s position.

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Death and Taxes

Written by on Aug 25, 2009| Posted in: Estate Litigation

It is important for probate practitioners to address foreseeable situations so as to avoid unnecessary litigation costs to the estate after administration commences and beneficiaries become disgruntled with the tax apportionment position taken by the estate fiduciary.

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Florida Wrongful Death Act

Written by on Aug 12, 2009| Posted in: Estate Litigation

once the expenses became a charge against the Estate pursuant to section 768.21(6)(b) of the Wrongful Death Act, the personal representative had the exclusive authority to resolve those claims in a reasonable and equitable manner and in accordance with section 733.707 of the probate code.”

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Alternatives to Guardianship

Written by on Aug 10, 2009| Posted in: Guardianship Litigation

When an issue arises concerning whether and to what extent a guardianship or alternatives to guardianship should be considered, it is imperative to consult a probate attorney to explore all of the options and the implications involved in this complicated judicial process.

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Rules of Affection

Written by on Aug 10, 2009| Posted in: Estate Litigation

Frequently, probate litigators are called upon by clients to ask a probate judge to interpret an ambiguous clause in a Will that invariably directly affects the substantive rights of the beneficiaries.

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