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Florida Probate Blog

Author: Michele M. Thomas

Wills and Probate: Selecting a Good Probate Lawyer

Written by on Jul 26, 2011| Posted in: General

If you need a good probate lawyer, it’s because someone has died and either the estate needs to be administered or there is a dispute over a last will or a fight over a share or portion of the estate.  While there is no guarantee that the lawyer you are hiring is “good,”one method of increasing the odds of hiring a competent probate attorney to check whether your lawyer has a Martindale Hubble rating that is at an acceptable level to you. Martindale-Hubbell Peer Review Ratings reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. For lawyers rated with the changed methodology the Martindale-Hubbell Peer Review Ratings will reflect the following: General Ethical Standards Rating. The General Ethical Standards rating denotes adherence to professional standards of conduct and ethics, reliability, diligence and other criteria relevant to the discharge of professional responsibilities.   […]

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Will Contest Lawyer

Written by on Jul 11, 2011| Posted in: General

Florida Will Contest Lawyer People looking for a will contest lawyer in Florida often ask the following questions: Can a will be challenged during life? A will cannot challenged during a person’s life.  Will contests can only happen after death.  Sometime the person who made the last will and testament is still alive but are incompetent and in need of a guardianship.  Many times during the guardianship proceeding evidence about the drafting, creation, and signing the will can be preserved for a will contest after death.  Can a last will be contested if it was not properly signed? A will must be signed by the maker of the will and by two witnesses who saw the person sign the will (or who were told by the testator that he signed the will) and those two witnesses must also sign the will. Otherwise, the will is invalid and can be contested. […]

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Florida Probate Litigation

Written by on Jul 10, 2011| Posted in: General

Florida Probate Litigation Probate litigation often involves a will contest. Probate litigation is also a term used to describe a challenge to trust because trust disputes in Florida are litigated in the probate court.  Probate litigation, trust contests and Florida will contests are one of the most hotly-contested areas of the law, used by surviving family members to correct an array of injustices. Probate litigation is the broad concept which may include challenging: the validity of a Last Will and Testament; a provision within the Last Will and Testament; the terms of a Trust; the validity of a person’s other estate planning documents; the appointment of a personal representative (known in some states as an “executor”); the actions of a personal representative; or an elective share. Our law firm concentrates its practice in Florida probate litigation.  Visit our website for a detailed reference on most probate and trust litigation topics.

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Florida Homestead Law

Written by on Jun 3, 2011| Posted in: General

Florida Homestead Law Update On October 1, 2010, Florida Statute 732.401(2) was added to update Florida Homestead law, as least partially in response to the escalating insurance and property tax rates in recent years. Under the old Florida Homestead law, if a decedent did not devise his  homestead property pursuant to the requirements of the Florida Constitution and was survived by a spouse and at least one lineal descendant, then the surviving spouse would receive only a life estate with the remainder passing to the descendant(s). A life estate might sound great, but it comes with many financial responsibilities, including: property taxes, insurance, special assessments (if applicable), mortgage interest, etc.  Furthermore, if the remainder beneficiaries refused to agree to sell the property, there was not much recourse for the surviving spouse. The new Florida Homestead law allows a surviving spouse to elect to receive a tenant-in-common, one-half interest in the decedent’s […]

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Emergency Temporary Guardianship

Written by on May 23, 2011| Posted in: Guardianship Litigation

Elder Law Concepts is not always for the Elderly.   In some cases, a parent may see their child go through a sudden, unexpected fight with cancer; a brother may be trying to take advantage of his wealthy but impaired sibling by stealing his financial assets; or a daughter might have witnessed the advisors of her mentally incompetent mother conspiring to misappropriate her assets.   There may be circumstances where immediate action is necessary in order to protect the health and/or financial welfare of such a person.  In these cases, an adult interested in the welfare of a loved-one may wish to petition the court for an emergency temporary guardianship (ETG).  While, the typical ETG is used for incapacitated senior citizens, there are scenarios with teenagers and other young adults who may be abusing drugs and/or alcohol as to warrant the imposition of an emergency temporary guardianship.   §744.3031 (1), Florida Statutes, […]

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Removal of Personal Representative

Written by on May 16, 2011| Posted in: Estate Litigation

CAN A PERSONAL REPRESENTATIVE OF AN ESTATE BE REMOVED? Pursuant to Florida Statute 733.302, any person who is over the age of 18 years old, and is a resident of Florida at the time of death of the person whose estate is to be administered is qualified to act as personal representative in Florida. You may receive a copy of the Notice of Administration of an estate, which will indicate who is the acting Personal Representative of that estate.  Pursuant to Florida Statue 733.212, a copy of the notice of administration should be served on the following persons who are known to the personal representative:  the decedent’s surviving spouse, beneficiaries, the trustee of any trust and each qualified beneficiary of the trust, persons who may be entitled to exempt property, and interested persons.  Florida Statute 731.201(23) defines an interested person as “any person who may reasonably be expected to be […]

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Best Florida Probate Attorney

Written by on Mar 29, 2011| Posted in: General

Who is the Best Florida Probate Attorney? A friend recently asked, “who is the best Florida probate attorney?”  While there are certainly some preeminent attorneys practicing in the area, the concept of “best” is subjective.  The question would be better phrased as “which probate attorney would best meet my needs?” When interviewing a lawyer to determine whether he or she can represent you in a estate, the best gauge of whether you are hiring the best probate attorney for you is to look at the level of education, length of time as a lawyer and the area of legal concentration.  The last is perhaps the most important factor of all when deciding which probate lawyer is best for you.  For example, not long ago a lawyer on the other side of a case was representing his client in a Will contest and my firm was defending.  The lawyer on the other side was struggling with […]

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Deathbed Marriages

Written by on Mar 26, 2011| Posted in: General

True love? Earlier this month, I blogged about Florida’s deathbed marriage statute, which was enacted in October 2010.  The American Bar Journal just reported a story about a lawyer in California who was suspended from the practice of law over her marriage to an elderly client.  Apparently, the lawyer had drafted a Will for the client leaving his estate to his relatives in Norway.  A couple of years later, they were involved in a relationship and the client gave the lawyer $339,000 with his relatives’ consent.  Subsequently, the lawyer and client got married but the client filed for divorce the same year because the two were not living together.  Shortly thereafter, the client was moved into a nursing home and died.  The State Bar of California suspended the lawyer who it found “took advantage of a lonely, sick old man.”  While the client was not literally on his deathbed at the […]

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Florida Probate

Written by on Mar 16, 2011| Posted in: General

Need legal advice relating to Florida probate? Someone recently stated that they needed legal advice for a Florida probate.  Florida probate matters come in many shapes and sizes.  Probate in Florida usually is a non-confrontational process of representing the Personal Representative of a Last Will and Testament by filing forms and complying with procedures.  However, sometimes legal advice in Florida probate matters may have nothing to do with forms and procedures but everything to do with contesting a Last Will and Testament or challenging a person’s mental capacity.  The term probate is being stretched to include trust disputes and guardianship matters, too.   With the explosion of material on the internet, clients are becoming very educated about what legal advice they need whether or not the traditional probate definition is applicable, but it is still recommended to consult with a lawyer who practices probate law in Florida.

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Probate Litigation

Written by on Mar 14, 2011| Posted in: Estate Litigation

CONVERSION OR CIVIL THEFT? Probate and Trust lawsuits, at times, involve someone holding a power of attorney who oversteps their authority and improperly takes possession of property, assets or money of another.  In this situation, they may have committed conversion and/or civil theft. The Restatement of Torts defines conversion as an intentional exercise of dominion and control over a chattel (property or asset) which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.  Under Florida case law, conversion is defined as the wrongful control of another person’s property, assets or money.  Seymour v. Adams, 638 So.2d 1044 (Fla. 5th DCA 1994).  The essence of the tort of conversion is the exercise of wrongful dominion or control over property, assets or money to the detriment of the rights of the actual owner.  Goodwin […]

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