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Florida Probate Blog

Author: Adrian P. Thomas

Undue Influence Florida

Written by on Mar 27, 2011| Posted in: Probate Litigation

New tricks for an old dog? As the seminal case of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), turns 40 years old, a review of the holding is warranted to see if whether it is withstanding the test of time.  To prove undue influence in Florida, a will or trust contestant must show that the decedent was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust.  Often in undue influence actions, the first and second items are stipulated to, as it is appropriate that a substantial beneficiary may have a confidential relationship with a decedent. While not exhaustive, the Florida Supreme Court provided seven criteria in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) in determining undue influence: 1) presence of the […]

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Trustee’s Fee

Written by on Mar 24, 2011| Posted in: General

What Is a Reasonable Trustee’s Fee?  Under the Florida Trust Code, “A Trustee is entitled to compensation that is reasonable under the circumstances.”  F.S. §736.0708(1).  Unfortunately, the statutes are devoid of any reference to what amounts to “reasonable” compensation or how to determine whether fees sought by a trustee are per se reasonable. Generally, compensation of a Trustee may be established in the Trust instrument or by separate agreement with the Trustee.  In the absence of either, the circuit court has jurisdiction to review and determine a trustee’s fees.  F.S. §736.0201(4)(c), (4)(g).  Even in certain situations in which the trust does specify the trustee’s compensation, the court may adjust that compensation if the trustee’s duties are substantially different from those contemplated when the trust was created or if the compensation specified is unreasonably low or high.  F.S. §736.0708(2).  As a result, whether or not the trust instrument provides for the […]

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Lack of Capacity – Will Contest Florida

Written by on Mar 24, 2011| Posted in: Probate Litigation

What does it mean to have lack of mental capacity or lack of testamentary capacity? Lack of Mental Capacity or Lack of Testamentary Capacity claims are based on the testator’s lack of mental capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and Testament generally means that the Testator understood the nature and extent of his assets […]

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Florida Undue Influence Claim

Written by on Mar 23, 2011| Posted in: Probate Litigation

What is “undue influence?” Undue Influence claims challenge whether the testator made the Last Will and Testament freely and without being coerced by someone. An undue influence lawsuit relates to whether the decedent made his or her Last Will and Testament without being coerced by another person or persons. For example, a family member, friend, long-time employee, or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that person while excluding children, relatives and others who should receive the inheritance. Undue influence occurs when a person is compelled to perform an act (signing of a Last Will and Testament) as a result of improper pressure exerted upon him or her.

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Florida Will Contest

Written by on Mar 22, 2011| Posted in: Estate Litigation

What is a Will Contest? A will contest is a challenge to the Last Will & Testament submitted for probate on behalf of a decedent.  This firm represents both executors who have a fiduciary duty to defend a Last Will and Testament filed for Probate and heirs who feel they have been unfairly omitted from a Last Will and Testament. For those heirs who feel they have been unfairly omitted from a Last Will and Testament, challenging the validity of a Last Will and Testament in Florida can be done on many grounds. One of the most direct ways to attack a Last Will and Testament is to prove that it was not properly signed by the testator (the person who made his or her Last Will and Testament). A Last Will and Testament can be admitted into Probate and accepted by the court even though it was executed improperly. […]

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Florida Slayer Statute

Written by on Jan 11, 2011| Posted in: Probate Litigation

CONVICTED KILLER TO COLLECT A FORTUNE FROM HIS VICTIM An interesting case out of New York is making headlines.  It involves a young man, heroin addict who admitted to killing his mother-in-law after she caught him trying to steal jewelry from her Long Island home.  He subsequently entered a plea agreement for 25 years in jail, avoiding life in prison.  Prior to the victim’s murder, she had prepared a Will bequeathing all of her estate to her only daughter.  The daughter, married to the murderer, was never charged in the crime.  After the man was arrested for the murder in November 2009, he remained in jail during which time his wife, the victim’s daughter, died in February 2010, leaving everything in her Estate to her jailed husband.  The victim’s family is, needless to say, outraged and attempting to set aside the plea bargain made with the murderer unless he agrees to […]

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When Good Trustees Go Bad

Written by on Oct 4, 2010| Posted in: Trust Litigation

Desperate Times Call for Desperate Measures “O mischief, thou art swift to enter in the thoughts of desperate men!”~William Shakespeare During the recent economic crisis, our office has seen an increase in trust litigation matters involving trustees failing to fulfill their fiduciary obligations by participating in self-dealing, receiving unreasonable compensation and trustee fees and taking personal loans against the Trust expecting to pay it back before any of the beneficiaries become aware. These cases generally do not involve strangers or neutral, independent, or professional trustees breaching their duties to the Trusts, but quite often involve siblings breaching their duties to siblings, step-parents failing their step-children, long-time family attorneys or friends stealing from their clients’ children. What is disturbing is these are the same people we tend to trust and have shown no signs of dishonesty or disloyalty in the past. One can debate the reasons behind this sudden increase in […]

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Elective Share Contribution Obstacles

Written by on Jul 29, 2010| Posted in: Probate Litigation

While election and determination of elective share may not pose a problem, enforcing contribution from beneficiaries can. Under the Florida Probate Code, when a person’s spouse dies, the surviving spouse has the right to take an elective share pursuant to Florida Statute § 732.201.  An elective share is essentially Florida’s way of insuring that some money or property is left to the surviving husband or wife. The elective share estate includes not only probate assets but many assets which are designed to pass outside the probate estate.  Pursuant to Fla. Stat. § 732.2065, the elective share is equal to 30% of the elective estate.  A significant amount of litigation occurs regarding the elective share. 

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Florida Trusts and Real Property

Written by on Jun 17, 2010| Posted in: Trust Litigation

What’s a beneficiary to do? Many people utilize revocable trusts in an effort to avoid probate.  Often, the primary asset of a revocable trust is real estate.  The person who signs the trust (Settlor) customarily chooses the individual(s) to serve as a successor trustee upon the Settlor’s death or incapacity. Once the Settlor dies and a successor trustee accepts the position, a set of laws mandates the trustee’s conduct under Florida law.  These laws are found in Chapter 736 of the Florida Statutes, also known as the Florida Trust Code.  In particular, sections 736.0801 (duty to administer trust), 736.0802 (duty of loyalty) 736.0803 (impartiality), and 736.0804 (prudent administration) are triggered.  The Florida Trust Code was modified substantially in recent years and the current version took effect on July 1, 2007.    

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Exploitation of the Edlerly

Written by on May 4, 2010| Posted in: General

CRIMINAL PROSECUTION FOR FINANCIAL EXPLOITATION OF THE ELDERLY – THE SQUEAKY WHEEL GETS THE OIL  “It was once said that the moral test of government is how that government treats those who are in the dawn of life, the children; those who are in the twilight of life, the elderly; and those who are in the shadows of life, the sick, the needy and the handicapped.”  — Hubert H. Humphrey  It is a sad fact that most people who commit financial exploitation against the elderly get away with it. Often, the exploitation becomes so easy that the exploiter does it more than once and against more than one victim. Their actions become increasingly bolder, and with few exceptions, their greed leads them to steal larger sums of money from each new victim. This is why they must be prosecuted to the full extent, as there WILL be another victim. Unfortunately, […]

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