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

Fort Lauderdale Will and Trust Disputes

Written by on Apr 29, 2012| Posted in: General

Fort Lauderdale Will and Trust Disputes Fort Lauderdale, Florida has a large elderly and affluent population making it a hotbed for Will and Trust Disputes.  These cases may include causes of action for undue influence, lack of capacity and tortious interference. Sometimes family members realize after a loved one dies that a long-standing estate plan has been disrupted by someone who has abused a position of trust and confidence with an elderly person.  Other times, family members have to defend against attack by a disgruntled person who has been excluded from an estate plan. Whether the will or trust dispute is being prosecuted or defended, the attorneys at Adrian Philip Thomas, P.A. are experienced in all aspects of will and trust dispute litigation. Schedule a free consultation with an experienced Florida will and trust dispute lawyer.  Call the Law Offices of Adrian Philip Thomas, P.A. toll free at (800) 249-8125.

read more

Florida Probate Litigation Lawyers

Written by on Apr 23, 2012| Posted in: Probate Litigation

Florida Probate Litigation Florida Probate Litigation law suits in Florida are ones involving estates, trusts, guardianships and probate.  They may involve documents including: Last Will & Testament, Living Trust, Durable Power of Attorney, etc.  These cases are filed on a daily basis throughout the State of Florida.  Many of these lawsuits include counts for undue influence, lack of capacity, and tortious interference but regardless on the title of the lawsuit they all involve some level of exploitation of the elderly.  Exploitation can occur when a person who stands in a position of trust and confidence with a vulnerable adult knowingly, by deception or intimidation, obtains or uses a vulnerable adult’s funds, assets, or property with the intent to temporarily or permanently deprive a vulnerable adult of the use, benefit, or possession of the funds, assets, or property for the benefit of someone other than the vulnerable adult.  Ignoring this sophisticated […]

read more

Florida Constructive Trust

Written by on Apr 13, 2012| Posted in: Trust Litigation

A Constructive Trust is an equitable remedy and is created when a court, through application of a legal fiction, deems property formerly held by one who wrongfully obtained the property, to be held in Trust for the one who the property justly belongs to be the beneficiary of the Trust.

read more

Florida Guardianship Attorney’s Fees

Written by on Mar 30, 2012| Posted in: Guardianship Litigation

FLORIDA GUARDIANSHIP ATTORNEY’S FEES Lawyers in Florida who handle contested guardianships and inheritance disputes concerning Wills and Trusts frequently encounter issues regarding what law is to apply to fee dispute resolutions.  As practitioners, it is always important to provide the correct and applicable law to the trial court so that the issue may be resolved appropriate through application of the correct law in existence at the time the dispute arose to the specific facts and circumstances leading to the fee dispute. A case illustrating the importance of guiding the trial court with the correct law was issued by the Second District Court of Appeals in the Guardianship of Kay RC (Fla. 2nd DCA, case number 2D10-5956, March 9, 2012).  This case involved a lawyer who represented the guardian of the ward.  The guardian discharged the attorney and retained another law firm and the first lawyer applied for fees relating to […]

read more

Writ of Prohibition Probate

Written by on Mar 29, 2012| Posted in: General

EXTRAORDINARY WRITS IN PROBATE As a Florida Probate lawyer who handles lawsuits involving inheritance disputes with Wills and Trusts in Florida, we frequently encounter situations where we are asked to employ a variety of extraordinary Writs that are available in Florida jurisprudence.  Among the extraordinary Writs is the Writ of Prohibition. Typically, a Writ of Prohibition is issued by a District Court of Appeals to prevent or stop a lower court (county or circuit) from any further action involving a lawsuit.  If the Court of Appeals issues an Order to Show Cause upon receipt of the Writ of Prohibition, the consequences are extreme:  The lower court is prevented from conducting further action until the Appellate Court discharges the Writ. The circumstances under which a Writ of Prohibition can be utilized in the Probate context varies but most frequently it involves a request for the District Court of Appeals to prevent […]

read more

Attorney’s Fees in Partition Actions

Written by on Mar 26, 2012| Posted in: General

Attorney Fee Issues in Florida Probate Court Partition Actions Lawyers in Florida who handle inheritance disputes and lawsuits involving wills and trusts in probate court often find themselves embroiled in a battle for attorneys ‘ fees.  Typically, in Florida for an award of attorney’s fees to be paid, there has to be some statutory or contractual basis.  In other words, if the parties don’t have an agreement that provides that the lawyers will be paid, then there must be some law written in the books by the state government that affords payment for legal fees. Florida estate and trust lawyers sometimes encounter situations in the administration of wills, estates, and trusts, that involve dividing a parcel of real property for distribution to beneficiaries.   These types of cases are referred to as “partition actions” and lawyers are entitled to an award of fees.   Florida Statutes Section 64.081.  The amount of attorney’s […]

read more

Breach of Fiduciary Duty

Written by on Mar 25, 2012| Posted in: Trust Litigation

BREACH OF TRUSTEE’S OR SUCCESSOR TRUSTEE’S FIDUCIARY DUTY “The prudent heir takes careful inventory of his legacies and gives a faithful accounting to those whom he owes an obligation of trust.”  John F. Kennedy When a Revocable Trust is executed, the Trustee is usually the person who executed the trust.  The settlor of the trust could also appoint another person or financial institution as the Trustee of his or her revocable trust.   When the Trustee dies or is no longer able to serve, a successor trustee is named in the trust instrument, which directs and authorizes the successor trustee to perform their fiduciary duties as successor trustee. Florida Statute 736.0401 and 736.0402.  What happens if the trustee or the successor trustee does not perform their fiduciary duties as trustee?  The beneficiaries and residual beneficiaries of the trust should take careful inventory of their legacy.  They are entitled to a yearly […]

read more

Preservation of Assets During a Will Contest

Written by on Mar 24, 2012| Posted in: Probate Litigation

A Will Contest can often be a lengthy process involving extensive motion practice, discovery, and various other pre-trial matters that can arise during the litigation. A Will Contest can begin both before and after the appointment of a personal representative.  Whether a dispute arises before or after the appointment of the personal representative, the concern becomes how one can protect and preserve the estate’s assets for the ultimate beneficiaries, pending a final determination by the court. The circuit court, sitting in its probate capacity, has inherent jurisdiction to monitor the administration of an estate and to take such appropriate action as it may deem necessary to preserve the assets of the estate for the benefit of the ultimate beneficiaries.  See Estate of Conger, 414 So.2d 230 (Fla. 3rd DCA 1982).  Furthermore, a probate court has the authority to issue temporary injunctions freezing assets claimed to belong to a decedent’s estate, […]

read more

Debt Forgiveness and Creditor Claims

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

Is a decedent permitted to forgive debt owed to him when his estate is insolvent to pay the debts and costs of administration?  According to Florida’s Fifth District Court of Appeals, the answer is “no.” In Lauritsen v. Wallace, 67 So.3d 285 (Fla. 5th DCA 2011), the decedent father had included a provision in his Last Will & Testament forgiving his son’s debt to the father, which was secured by a promissory note.  The decedent’s estate was insolvent so the Personal Representative asked that the note be included as an estate asset.  The trial court held that the debt was forgiven at the instant the decedent died so it could not be considered an asset.  The appellate court disagreed. This was a case of first impression in Florida.  The Court noted that “there are no Florida cases that address the question of whether the release and forgiveness of an obligation […]

read more

How to Remove a Trustee in Florida

Written by on Feb 29, 2012| Posted in: Trust Litigation

Florida law allows for a trustee in Florida to be removed for certain reasons.  The grounds to remove a trustee in Florida include: (a) The trustee has committed a serious breach of trust; (b) The lack of cooperation among cotrustees substantially impairs the administration of the trust; (c) Due to the unfitness, unwillingness, or persistent failure of the trustee to administer the trust effectively, the court determines that removal of the trustee best serves the interests of the beneficiaries; or (d) There has been a substantial change of circumstances or removal is requested by all of the qualified beneficiaries, the court finds that removal of the trustee best serves the interests of all of the beneficiaries and is not inconsistent with a material purpose of the trust, and a suitable cotrustee or successor trustee is available. A trustee has the duty to administer the trust diligently for the benefit of the beneficiaries. A trustee […]

read more
Page 7 of 23 First...4567891011...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