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Florida Probate Blog

Author: Adrian P. Thomas

Corya and Woodward

Written by on Jun 24, 2016| Posted in: Trust Litigation

LIMITATIONS ON PROCEEDINGS AGAINST TRUSTEES:  CORYA, WOODWARD AND FLA. STAT. §736.1008 The Florida Trust Code contains a section titled “limitations on proceedings against trustees” that is a limitation of actions and accrual of claims statute specifically applicable to claims for breach of fiduciary duty in the context of trusts.  Specifically, Fla. Stat. §736.1008 provides, in pertinent part, as follows (emphasis and commentary added for clarification): (1) Except as provided in subsection (2), all claims by a beneficiary against a trustee for breach of trust are barred as provided in chapter 95 as to: (a) All matters adequately disclosed in a trust disclosure document issued by the trustee, with the limitations period beginning on the date of receipt of adequate disclosure. NOTE:  (1)(a) provides that IF there is adequate disclosure in a trust disclosure document, THEN the 4-year statute of limitations (“SOL”) in Chapter 95 applies BUT the claim does not accrue until […]

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Can I fire my trustee

Written by on Jun 14, 2016| Posted in: Uncategorized

Over nearly 20 years, my law firm has received hundreds of phone calls asking – How can I fire my Trustee? or How can I remove my Trustee?  In Florida, getting rid of a Trustee is called a trustee removal action where a beneficiary seeks to remove a trustee of a trust, sometimes for reasons other times for no reason.  Florida Trust law contains specific statutes which address the removal of trustees. According to Florida Statute §736.0706, removal of a trustee may be sought by the settlor, a co-trustee, or any beneficiary.  In fact, a court may remove a trustee on its own. Grounds for removing a trustee include: a serious breach of trust, lack of cooperation among co-trustees substantially impairing the administration of the trust, and unfitness, unwillingness, or persistent failure of the trustee to effectively administer the trust.  The court may determine that removal of the trustee best […]

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RETROACTIVE DUE PROCESS IN PROBATE

Written by on Jan 20, 2016| Posted in: General

Typically, when the Supreme Court of the United States announces a new Rule of Federal Constitutional Law dealing with due process, the new Rules are applied retroactively. However, Florida probate courts are left with the power and discretion to carve out exceptions to the general rule in their own probate, will, trust and adoption jurisprudence.

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Will Substitutes in Florida

Written by on Jan 5, 2016| Posted in: Probate Litigation

THE CONFUSING LAW OF WILL SUBSTITUTES “Many legal doctrines today appear jarringly, carelessly, almost randomly out of harmony with one another.  The chaos has gone largely undetected and hence, has continued to swirl unimpeded.  But it is there to be seen, if we only care to look.  To observe the chaos, one has simply to forsake all instruments of magnification and scan the skies with the naked eye.”             -Adam Hirsch, Professor of Law, Florida State University. Professor Hirsch’s enlightened and succinct summary of the inconsistencies in the law of inheritance is most apparent when viewing the body of law surrounding the issue of Will Substitutes.  The increasing use of Will Substitutes to dispose of property upon death has caused great confusion among both practitioners and lay persons in the State of Florida.  Compounding the confusion problem is the fact that our probate law practice is […]

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Florida Court Determines Wife Unduly Influenced Husband

Written by on May 8, 2015| Posted in: Probate Litigation

Florida law is well established that when a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.   As probate litigators, we frequently encounter situations where a court is presented with circumstances suggesting that a elderly person has unfortunately been taken advantage of by their own spouse.  Most often the wrongdoer is a person who marries the victim just prior to death and changes the victim’s estate plan to disinherit family members who were previously the intended beneficiaries of the victim’s long standing estate plan. One such case was recently presented in Palm Beach County, Florida where the court upheld the challenge by a testator’s daughter who sought to invalidate the will that was executed a year after the […]

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Exploitation of the Elderly

Written by on Mar 18, 2015| Posted in: General

Fla. Stat. § 732.518 provides that “[a]n action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.”  Essentially this means that interested persons cannot contest a will until after the death of the person who made the will.  But what if you know that your elderly family member or loved one has been taken advantage of by a caregiver and you want to protect him or her now? Fortunately, the Florida Legislature has provided a means of not only protecting vulnerable, elderly adults, but also punishing those who exploit them for personal gain.  Fla. Stat. § 415.1111 provides a civil cause of action against a caregiver or person who stands in a position of trust and abuses that trust through neglect, deception, or intimidation in order to defraud […]

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Proving Undue Influence

Written by on Feb 6, 2015| Posted in: Probate Litigation

Proving that a will was procured by the undue influence of another can sometimes be difficult.  Often, this type of conduct occurs in secret, away from the watchful eyes of family and loved ones and involves the victimization of an elderly, ill person at the hands of someone he or she trusts.  Florida law recognizes this realty and the legislature has provided a means by which plaintiffs may not only prove undue influence, but also shift the burden of proof so that that defendant must offer his own evidence. Fla. Stat. §733.107 provides that, when contesting the validity of a will, the burden of proof shifts.  First, the proponent of the will, i.e. the defendant, must establish that the will was properly executed.  If the defendant initially proves that the Will was signed and properly witnessed, then the burden to prove undue influence shifts to the plaintiff.  Fla. Stat. § […]

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Undue Influence under Florida’s Trust Code

Written by on Sep 25, 2014| Posted in: Trust Litigation

Florida Statute § 736.0406 Effect of fraud, duress, mistake, or undue influence.— If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void. In 2006, the Florida legislature passed into law the new Florida Trust Code. Of the numerous provisions codified into statute under Chapter 736, about 40% were found in prior Florida law, while roughly 60% were based on the Uniform Trust Code, a non-binding, model legal code utilized to form the basis for various state laws throughout the country.  Although comprehensive in scope, Chapter 736 does not purport to address […]

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Spousal Inheritance after Divorce

Written by on Jul 2, 2014| Posted in: General

What rights does a divorced spouse have to inherit from a former spouse’s estate? Fla. Stat. § 732.703 became effective in 2012 and concerns beneficiary designations on life insurance policies, annuities, IRAs, 401ks and other employee benefit plans.  The statute is perceived as a legislative reaction to some decisional case law and also to the problem that surfaced when divorced clients never returned to their estate planning attorneys to revise their estate planning documents and beneficiary designations. The statute provides: § 732.703. Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death. (1)  As used in this section, unless the context requires otherwise, the term: (a)  “Asset,” when not modified by other words or phrases, means an asset described in subsection (3), except as provided in paragraph (4)(j). (b)  “Beneficiary” means any person designated in a governing instrument to receive an interest in an asset upon the death of […]

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Florida No Contest Clause

Written by on Jun 30, 2014| Posted in: General

A No Contest Clause is a provision in a will or trust that penalizes an interested person who seeks to contest or challenge the validity of the will or trust instrument.  These clauses are sometimes referred to as in terrorem clauses.  Generally, a no contest clause penalizes a person contesting the will or trust by providing that the person loses all rights to receive any gift or devise under the will or trust if he or she contests its validity or challenges the terms of the instrument. Florida law invalidates no contest clauses in both wills and trusts.  Florida Statute section 732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”  Similarly, Florida Statute section 736.1108 (1) provides that “[a] provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or […]

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