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Florida Probate Blog

Author: Adrian P. Thomas

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 […]

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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 […]

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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, […]

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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 […]

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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 […]

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Florida Guardianship Lawyer

Written by on Feb 24, 2012| Posted in: Estate Litigation

Florida Guardianship Lawyers who focus on elder law topics can prepare wills and trusts, provide Medicaid plans or assist with guardianship for people who are mentally incapacitated.  Being mentally incapacitated is not the same as being mentally incompetent but the conclusion can sometimes be the same – someone cannot take care of himself or herself and needs a guardian to be appointed by the Court.  The Law Offices of Adrian Philip Thomas, P.A. has Florida guardianship lawyers practicing with the firm, including Robert M. Trinkler, who has previously served as counsel of record in more than 2,000 guardianship and incapacity proceedings throughout the State of Florida and who has successfully handled hundreds of adversarial guardianship and incapacity matters.  The lawyers at Law Offices of Adrian Philip Thomas, P.A. have extensive experience in all aspects of Florida guardianship proceedings.

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Estate Law Florida

Written by on Feb 20, 2012| Posted in: General

Estate Law Florida What is “estate” law? From a lawyer’s perspective, the term “estate” refers to many different things. Gross Estate The Internal Revenue Service uses the term “gross estate” to mean every asset in which a decedent had an ownership interest on his or her date of death.  This includes real estate, life insurance, bank accounts, stocks, etc.  If a decedent dies with significant wealth, his estate is subject to an “estate tax” and the attorney will need to prepare a Federal Estate Tax Return, form 706. Probate Estate The term “probate estate” refers only to those assets owned by the decedent in his or her sole name.  Some decedents have nothing subject to probate, some have a few assets subject to probate, and other decedents have all of their assets subject subject to probate. Trust Estate If a decedent had a revocable or “living” trust, then the assets […]

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Gainesville Wrongful Death Crash Lawyer

Written by on Jan 30, 2012| Posted in: General

Personal Injury Gainesville, Florida crashes:  Interstate 75 Alachua County.    In a series of overnight accidents in northern Florida, blamed on poor visibility from smoke from a nearby brush fire, authorities said at least ten people were killed in the crashes.  Most of the collisions were on Interstate 75, in Northern Florida according to the Alachua County Sheriff’s Office. Crashes also occurred on U.S. Highway 441 near Gainesville, Florida.  The National Weather Service in Jacksonville had issued a dense smoke advisory due to nearby fires which cut visibility to less than a mile. Car crashes, motorcycle accidents, medical malpractice, and other tragic events that form the basis of many personal injury lawsuits in Florida.  Where death is involved, they usually include the filing of a claim for damages resulting from the victim’s wrongful death against the negligent person.   Damages based upon wrongful death can include a wide variety of things, from seeking […]

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Jury Trials in Probate

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

Jury Trials in Probate  Our firm regularly demands jury trials in probate matters.  There are a variety of reasons for doing so, including the simple fact that it is a constitutional right of all citizens to preserve and guarantee a trial by jury in all proceedings.  Also important is the fact that jury trials are vital to maintaining the public’s confidence and trust in our judicial system.  The value of jury trials in probate has become even more critical with the dramatic decline in the number of jury trials in recent years. One of the evolving and developing areas of the law that assists probate litigators in providing access to jury trials is the theory of liability founded in what is referred to as “tortious interference with an inheritance” or “intentional interference with an expectancy.”   Our firm regularly handles these cases on behalf of relatives who have been victimized by […]

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Breach of Trust

Written by on Jan 20, 2012| Posted in: Trust Litigation

REMEDIES FOR BREACH OF TRUST A trustee of a trust has several duties and obligations to the beneficiaries in administering a trust, including but not limited to: administering the trust in good faith, in accordance with its terms and purposes (Fla.Stat. §736.0801); a duty of loyalty and to administer the trust solely in the interests of the beneficiaries (Fla.Stat. §736.0802); the trustee shall act impartially in administering the trust property giving due regard to the respective interests of multiple beneficiaries (Fla. Stat. §736.0803); in administering a trust, the trustee shall only incur expenses that are reasonable in relation to the trust property, the purposes of the trust and the skills of the trustee (Fla. Stat. §736.0805); a trustee shall keep clear, distinct, and accurate records of the administration of the trust (Fla. Stat. §736.0810); a trustee shall keep the qualified beneficiaries of the trust reasonably informed of the trust and […]

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