client portal
  • Blue Forbes logo
  • AVVO 10.0
  • Top 100 Lawyers badge
  • Daily Business Review Newspaper
  • Legal Elite 2012 Badge
  • Top Rated Lawyers
  • The American Lawyer, Adrian Philip Thomas

Florida Probate Blog

Author: Adrian P. Thomas

Renunciation Rule

Written by on Sep 6, 2013| Posted in: Trust Litigation

What is the “renunciation rule?” Clients are often surprised to learn that if they want to challenge a trust document, they will – with limited exceptions – be required to return to the trust any distribution they have received under the challenged document while the litigation is pending.  This is called the “renunciation rule.”  The Second District Court of Appeals recently released an opinion that discussed at great length the origins and reasons for the renunciation rule.  See Fintak v. Fintak, 38 Fla.L.Weekly D1815 (August 30, 2013).  The renunciation rule originated in English ecclesiastical courts and originally provided that a beneficiary who received a bequest from a will must return the bequest before being permitted to contest the will.  Hamblett v. Hamblett, 6 N.H. 333 (1833).   The American courts interpreted that rule to mean that a beneficiary who receives and keeps a gift under a will or other instrument is estopped […]

read more

Standing in a Will Contest

Written by on Aug 30, 2013| Posted in: Uncategorized

Who can contest a will in Florida?   This is a common question among potential clients who believe that, due to fraud, duress, undue influence, or lack of capacity, a will being offered for probate is invalid.  In these situations, the reason for the will’s invalidity may be obvious; perhaps the decedent had Alzheimer’s Disease and couldn’t remember his own name on the date he executed and signed the will.  However, when the will document omits or significantly neglects children, spouses, or siblings of the decedent, does that mean those people can automatically file suit?  Who has standing to contest the validity of the will? The Fourth District Court of Appeals has recently filed an opinion which speaks to the issue of standing in will contests and highlights the importance of specifically articulating a petitioner’s right to sue in the initial complaint.  In Gordon v. Kleinman, 38 Fla. L. Weekly […]

read more

Freezing Assets: Putting a Stop to Ongoing Injury

Written by on Jul 29, 2013| Posted in: Estate Litigation

We speak with clients everyday who worry that estate trust assets are going to waste or being actively misappropriated.  Some cases involve breach of fiduciary duties, while others may involve fraud or undue influence in the inception.  Though the facts and circumstances vary, the concern is the same: irreparable harm is occurring and time is of the essence. In these situations, an injured party can appeal to the courts and invoke one of the most powerful tools available to the judicial system, the injunction.  An injunction is a court order that prohibits a party from doing some act which injures another party.  Injunctions are a function of the court sitting in equity, meaning they address a harm that cannot be adequately addressed by filing a lawsuit and receiving later damages from the offending party.  For example, if a trustee is actively melting down priceless family heirlooms to sell for scrap […]

read more

Florida Trust Lawyer

Written by on Jun 28, 2013| Posted in: Estate Litigation

The Florida Trust Code continues to grow and respond to the suggestions of the Florida Bar and Florida Trust Lawyers. A recent example is the recent enactment of Senate Bill 492 which made a number of changes which were recommended by Florida Trust Lawyers participating in the Florida Real Property, Probate, and Trust Law Section of the Florida Bar. One of the more significant changes of the Florida Trust Code used by Florida Trust Attorneys, which becomes effective October 1, 2013, is the expansion of the long arm jurisdiction of Florida Courts to adjudicate trust disputes. Many Florida Probate lawyers and Florida Trust attorneys remember the lesson from Pennoyer v. Neff, a SCOTUS opinion from 1878 which held that service over a person or property physically within a state confers jurisdiction to that person or property. But what happens when a beneficiary of a Florida trust has a dispute with […]

read more

What is a Spendthrift Trust?

Written by on Jun 18, 2013| Posted in: Estate Litigation

A valid spendthrift provision prevents a beneficiary from transferring his or her interest in the trust as well as prevents creditors or assignees of the beneficiary from reaching any of he trust funds until they are dispersed to the beneficiary.

read more

Lost or Destroyed Will

Written by on May 16, 2013| Posted in: General

What happens when the Decedent’s original Last Will & Testament cannot be found? It is well-settled under Florida law that when an original will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the will with the intent to revoke it. In re: Estate of Parker, 382 So.2d 652 (Fla. 1980). Often, a family member will have a copy of the Will and will offer it for probate and ask the probate court to admit the Will as if it were an original.  Then, the proponent of the lost will (the person offering the copy for probate) has the burden of introducing competent, substantial evidence to overcome the presumption that the will was destroyed by the testator. Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996). The Parker court said that the first […]

read more

Inheritance Dispute Lawyers

Written by on Apr 8, 2013| Posted in: Estate Litigation

 Remedies Available in Florida Courts Tortious interference with an inheritance is a relatively new but widely recognized tort that is currently accepted in Florida and half of the United States.  Many other states have reported cases from their state Supreme Court or appellate level addressing the tort, but declining to determine whether it is recognized.  Clearly, the trend is moving toward national acceptance and recognition of the tort. The importance of availability of the tort cannot be understated.  It serves many purposes, especially in Florida, where elderly and vulnerable adults are preyed upon by unscrupulous persons seeking to financially exploit Florida’s elderly citizens.    The tort provides a remedy in the form of money, a civil remedy, to a person who believes that another has wrongfully interfered with an inheritance.  The remedy is awarded by the civil court, not the probate court, and the money award is paid by the person […]

read more

What are the fiduciary duties of a trustee?

Written by on Apr 1, 2013| Posted in: Trust Litigation

“The trust of the innocent is the liar’s most useful tool.”  Stephen King Our firm is contacted by many trust beneficiaries who have never received a trust accounting, and they are not aware of the fiduciary duties the Trustee of the trust has to the trust beneficiaries.  Often, the trust beneficiaries place faith and trust in the Trustee to administer the Trust in accordance with the law and what is morally correct.  They are surprised to find that the Trustee of a Trust has specific fiduciary duties to all of the beneficiaries of the trust, which include, but are not limited to the following: 1)     Under Florida law, a trustee has a duty to administer the trust in good faith, in accordance with the terms and purposes of the trust, and in the interests of the beneficiaries pursuant to Fla. Stat. § 736.0801. 2)    The Trustee owes the trust beneficiaries a […]

read more

How do I contest a Will?

Written by on Feb 11, 2013| Posted in: Probate Litigation

Client’s often call Adrian Philip Thomas, P.A. to ask “how do I contest a Will?”  There are specific grounds and legal reasons needed to challenge a Will in Florida and a skilled Florida probate lawyer can provide guidance. First, the Will should be scrutinized to see if it was properly executed, witnessed and notarized.  In Florida, there are very specific laws regarding the formality of how a Will is signed.  It must be signed by the Testator and witnessed by two witnesses in the same room and the same time who actually witness the Testator executing the Will.  Each witness must sign in the presence of the other, and then the Will needs to be notarized. Second, under Florida law, the Testator is required to have the appropriate mental capacity to sign the Will.  This would include the Testator understanding the nature and value of his assets, who should inherit […]

read more

Simultaneous Death Law

Written by on Feb 11, 2013| Posted in: Probate Litigation

If an individual elects not to execute a Last Will and Testament, then Florida law makes provisions for distribution of his assets at death.  One area where this is of particular note is Florida’s Simultaneous Death Law, found in Florida Statute § 732.601.  The Simultaneous Death Law is triggered when two (or more) people die and there is insufficient evidence that that the persons have died other than simultaneously.  This is common in fatal accidents, where it is not readily known which individual died first.  This can be important when it comes to determining the ownership of joint accounts (passes to survivor but who was survivor?), determining the correct beneficiary of a life insurance policy, or who takes under a Last Will and Testament. Under Florida Statute 732.601(1), “[w]hen title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property […]

read more
Page 4 of 2312345678...Last

We can make a difference.
Call now for a complimentary consultation.
Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Suntrust Center
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301