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Florida Probate Blog

Author: Adrian P. Thomas

Possession of Homestead by Personal Representative

Written by on Jul 2, 2012| Posted in: General

Possession of Homestead by a Personal Representative Homestead, in the estate and trust context, is the real property owned by a decedent at the time of death, which was used as his primary residence at the time of his death. As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that it can be devised to the spouse if not survived by minor children. If not survived by a spouse or minor child, the decedent is free to devise the property as he wishes. Typically, if homestead property is devised to an heir or descendant, as permitted by law, it vests in said heir or descendant immediately upon death and is not considered an asset of the estate. In many cases, the homestead can be the largest asset owned by a decedent at the […]

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Probate Caveat

Written by on Jun 26, 2012| Posted in: Probate Litigation

CAVEATOR BEWARE:  Rocca v. Boyansky, 80 So.3d 377 (Fla. 3d DCA 2012) Matthew Rocca is the grandson of decedent, Sidney Boyansky.  Sidney had included Matthew in his estate planning documents until he executed November 2007 documents that cut Matthew out.  Sidney died on April 23, 2009.  On June 10, 2009, Sidney’s surviving spouse filed a Petition for Administration to admit the 2007 will to probate.  On August 21, 2009, Matthew filed a caveat.  In Florida, a caveat is a document that an interested person or a creditor may file with the probate court that alerts would-be personal representatives or proponents of wills to the existence of this person and his claim in the estate.  Florida Statute §731.110(1) provides that “any interested person who is apprehensive that an estate, either testate or intestate [meaning with a will or without a will, respectively], will be administered or that a will may be […]

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Exploitation of the Elderly

Written by on Jun 19, 2012| Posted in: Estate Litigation

The Gold Digger “She take my money when I’m in need Yeah, she’s a triflin’ friend indeed Oh, she’s a gold digger way over town That digs on me.” ~ Ray Charles and Kanye West While the lyrics may be slightly tongue-in-cheek, there is nothing funny about elder abuse.  Elderly people are uniquely vulnerable to exploitation in many forms.  One of the most insidious forms is exploitation masquerading as romantic love.  Traditional notions that the “gold digger” was always a young, attractive female exploiting an older man have given way to the reality of gender equality.  Just as often, it is a younger male exploiting an older woman of financial means.  Oftentimes, the exploiter is a contemporary, but the sirens don’t go off for family as quickly as they do when someone younger starts showing interest. Elderly people are uniquely vulnerable to this particular type of exploitation for several reasons.  […]

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Breach of Fiduciary Duty Statute of Limitations

Written by on Jun 11, 2012| Posted in: Estate Litigation

WHAT IS THE STATUTE OF LIMITATIONS FOR BREACH OF FIDICUARY DUTY OF A TRUSTEE IN A TRUST ACTION? “Man must cease attributing his problems to his environment, and learn again to exercise his will – his personal responsibility in the realm of faith and morals.”  Albert Schweitzer When a trustee is appointed, the trust instrument and Florida law direct and authorize the trustee to perform their duties as fiduciaries.  When a trustee breaches his fiduciary duty, what is the statute of limitations time frame in which to bring a lawsuit against the trustee?  Florida law (section 736.1008 and chapter 95) provides specific time-frames within which lawsuits can be filed against a trustee.  The law first imposes a short, six-month limitation period for bringing an action against a trustee for a breach of trust if the beneficiary has received a final, annual, or periodic account “fully disclosing the matter”.  Florida Statute 737.307; […]

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How many witnesses are required for a Trust in Florida?

Written by on Jun 6, 2012| Posted in: Estate Litigation

How many witnesses are required for a Trust in Florida? The Florida Trust Code sets forth the requirements for how many witnesses are required for a Trust in Florida.  Specifically, Fla.Stat. 736.0402(1), provides: The settlor has capacity to create a trust; The settlor indicates an intent to create the trust; The trust has a definite beneficiary (with some exceptions, e.g. trust for care of animals); The trustee has duties to perform; and The same person is not the sole trustee and sole beneficiary. There are also certain formalities required for creation of a revocable trust.  Fla.Stat. 736.0403(2) provides that “the testamentary aspects of a revocable trust, executed by a settlor who is a domicilary of this state at the time of execution, are invalid unless the trust instrument is executed by the settlor with the formalities required for the execution of a will in this state.”  This begs the question “what […]

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Florida Probate Creditor Claim

Written by on Jun 5, 2012| Posted in: Estate Litigation

Oftentimes people die owing money; this can be in the form of unpaid bills, loans, or other obligations.  Florida law is very specific regarding the procedure for submitting creditor claims against a decedent’s estate.  Under Florida Statute 733.2121, the Personal Representative of a Florida estate shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors.  Florida law further establishes deadlines for filing claims by creditors, as well the proper procedure for the Personal Representative to handle such claims. Recently, the Second District Court of Appeal reviewed a case where a creditor filed his statement of claim in the probate case over ten months after notice to creditors was first published, but two years to the day after decedent’s death.  The […]

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Florida Will and Trust Dispute Lawyer

Written by on May 30, 2012| Posted in: Estate Litigation

FLORIDA WILL AND TRUST DISPUTE LAWYER AND LOST OR DESTROYED WILL OR TRUST PROCEDURE              As a Florida will and trust dispute lawyer, I frequently encounter situations where the original will or trust (or amendments thereto) is lost.  Often, after a loved one’s death, we are presented with situations where we only have photocopies of the will or trust to determine the intent of our loved one’s testamentary wishes.              The procedure and challenges faced within that procedure in the law were outlined in a recent case Smith v. DeParry, 37 Fla. L. Weekly 1070; 2012 Fla. App. Lexis 6880 (Fla. 2nd DCA 2D11-1851 2012).  In this case the decedent owned two dogs which were the subject of a lost will which had established a pet trust for the health, care and welfare of the dogs.  The Florida will and trust dispute lawyer who represented the personal representatives of the estate, filed the documents […]

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Florida Will & Trust Dispute Lawyers

Written by on May 29, 2012| Posted in: Estate Litigation

RECOVERY OF ATTORNEY’S FEES TIMING FOR APPEAL AND CONSIDERATIONS BY FLORIDA WILL AND TRUST DISPUTE LAWYERS              As a Florida Will and Trust dispute lawyer, situations are frequently encountered where a request has to be made to the court for payment of attorney’s fees.  These requests are made by the will dispute lawyer on behalf of a Will executor, executrix and/or Trustee in order to secure payment of the will or trust dispute attorney’s fees from the estate or trust.   Sometimes a court will determine that the lawyer’s services have benefited the trust or estate, and sometimes the court will determine they have not.  Other times, a court will determine that the fees requested are not reasonable or not in conformity with community standards.  When a will and trust dispute lawyer receives a negative ruling on behalf of his or her client, an appeal is often the next legal maneuver.  […]

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Breach of Fiduciary Duty and Surcharge Action

Written by on May 22, 2012| Posted in: Trust Litigation

IMPOSING PERSONAL LIABILITY ON A TRUSTEE FOR BREACH OF FIDUCIARY DUTY WITH A SURCHARGE ACTION “We count on the space of trust that confidentiality provides.  When someone breaches that trust, we are all worse off for it.”  Hillary Clinton When a trustee is appointed, the trust instrument and Florida Statutes direct and authorize the trustee to perform their fiduciary duties as trustee. Florida Statute 736.0401 and 736.0402.  What can be done if the trustee or successor trustee breaches their fiduciary duties as trustee?  The elements of a cause of action against the trustee for breach of fiduciary duty are: 1) the existence of a duty; 2) breach of that duty; and 3) damages flowing from the breach of that duty.  Crusselle v. Mong, 59 So.3d 1178 (Fla. 5th DCA 2011). Florida Statute 736.1002 lists damages for breach of trust for which a trustee may be liable.  If there is an […]

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Florida Will Reformation

Written by on May 8, 2012| Posted in: Estate Litigation

Florida Will Reformation Can a Will be changed after death? While Florida law provides for challenges to the probate of Wills under theories such as duress, improper execution, undue influence, and incompetency, beneficiaries and other interested persons of a Last Will and Testament now have a new way to change a Will after death.  Effective July 1, 2011, Florida Statute 732.615 (“Reformation to correct mistakes”), allows for modification of a Last Will and Testament where a mistake of fact or law needs to be corrected in the written Will.  This Florida law can be used by beneficiaries of a Will in instances where a specific gift in the Last Will and Testament is a mistake; such a situation may arise with regards to the amount of a specific bequest.  Perhaps the decedent’s intention was to provide $50,000 to a grandchild but the Last Will and Testament offered for probate instead […]

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