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Florida Probate Blog

Author: Michele M. Thomas

What are probate assets?

Written by on Dec 13, 2010| Posted in: General

Generally, probate assets are those assets in the decedent’s sole name at death or otherwise owned solely by the decedent and which contain no provision for automatic succession of ownership at death. For example: a bank account in the sole name of a decedent is a probate asset, but a bank account held in-trust-for (ITF) another, or held jointly with rights of survivorship (JTWROS) with another, is not a probate asset; a life insurance policy, annuity or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a policy payable to the decedent’s estate is a probate asset; real estate titled in the sole name of the decedent is a probate asset (unless it is homestead), but real estate held as joint tenants with rights of survivorship or as tenants by the entirety is not a probate asset; property owned by husband and wife […]

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Is probate necessary?

Written by on Dec 10, 2010| Posted in: General

Probate is necessary to wind up the affairs the decedent leaves behind. Probate also serves to transfer assets from the decedent’s individual name to the proper beneficiary. Florida has had probate laws in force since becoming a state in 1845. Florida law provides for all aspects of the probate process, but allows the decedent to make certain decisions by leaving a valid will.  Whether or not probate is necessary depends on a number of factors.

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How much does it cost for probate?

Written by on Dec 9, 2010| Posted in: General

The personal representative, the attorney and other professionals whose services may be required in administering a probate estate (such as appraisers and accountants) are entitled by law to reasonable compensation. The fee for the personal representative of a probate estate is usually determined in one of five ways: as set forth in the will; set forth in a contract between the personal representative and the decedent; as agreed among the personal representative and the persons who bear the impact of the fee; as the amount presumed to be reasonable as calculated under Florida law if the amount is without objection; or as determined by the judge, applying Florida law.

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Probate Attorney

Written by on Dec 8, 2010| Posted in: General

Adrian Thomas is the CEO/Shareholder of a boutique, seven-attorney and 8 paralegal law firm located in Fort Lauderdale, Florida .  The firm concentrates its practice to probate, guardianship, estate and trust litigation. Adrian Thomas has resided in Florida for the past thirty years and has practiced law in Broward County for the past 18 years. Mr. Thomas is “AV” rated by Martindale Hubbell and has been selected as one of Florida’s Legal Elite by Florida Trend Magazine in 2008, 2009 and 2010. Mr. Thomas concentrates his personal practice in estate litigation, both prosecuting and defending, which includes matters involving estates, trusts, probate, and guardianship. He represents clients with disputes throughout the State of Florida.

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Battle of Wills

Written by on Dec 6, 2010| Posted in: Estate Litigation

The battle over a Will can be more like a battle of wills. “It’s the principle of the matter” We hear these words consistently from our clients over phone or in the office… “It is not the money; it is the principle of the matter.”  Litigation over an estate, Will, trust or inheritence can be emotionally traumatic for clients, especially when the dispute is between parties who are family members.  Although the majority of our clients want to resolve their issues quickly and inexpensively, many clients are willing to use the judicial process to vindicate what they believe were wrongs suffered at the hands of a family member.  This path is frequently expensive and may cost more than any eventual recovery; however, many litigants are willing to stand on principle – even when a cost-benefit analysis does not make sense financially – to achieve a measure of satisfaction and closure through the judicial process.   

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Show me the money!

Written by on Nov 30, 2010| Posted in: General

My brother is refusing  to give an accounting of the estate assets – Why? A beneficiary of an estate has the right to an accounting of estate assets.  Once an accounting has been requested,  Florida probate law requires that it be produced within a reasonable amount of time.  In fact, the law requires a Personal Representative to file an accounting  with the court and to serve it on all affected beneficiaires (unless it has been waived) when the administration of the estate is complete.  The accounting must be signed by the person preparing it to hold that person responsible for the information contained in the accounting.  Most importantly, a beneficiary has the right to inspect the documents (for example, bank records, receipts and checks) to confirm that the accounting being produced is supported by the evidence.  A probate litigation lawyer should never accept an accounting for her client without the supporting documentation to […]

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Desperate Times…

Written by on Nov 24, 2010| Posted in: Estate Litigation

…call for desperate measures  The Marchman Act:  Emergency help for a drug-addicted family member. Recently I heard of a terrible story involving a promising college student who became addicted to illegal narcotics and dropped out of school.  She began engaging in behavior that was inconsistent with that of her prior twenty years, yet despite her obvious decline her parents were powerless to stop it.  It seems that every time they sought help from the authorities they were reminded that, legally, their daughter was an adult.  If she were in possession of drugs they could arrest her, but there weren’t other options presented.  Meanwhile, her abuse of narcotics eventually led to her death.  Needless to say, her parents were devastated. While I did not know the parents personally, the story bothered me.  Here were two individuals who deeply loved their only child, yet lost her because of her drug addiction and […]

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Are you my lawyer?

Written by on Nov 23, 2010| Posted in: Estate Litigation

DOES AN ATTORNEY WHO REPRESENTS THE PERSONAL REPRESENTATIVE OF AN ESTATE ALSO REPRESENT THE BENEFICIARIES? Pursuant to Florida Statute 733.301, if a person dies with a valid Last Will and Testament in place, the personal representative is usually nominated by the document itself.  In the event the person nominated to be the personal representative of the estate is not able to perform their duties as personal representative, the well-drafted Will would name a successor personal representative.  If that is not the case, then Florida Statute 733.301 provides for the personal representative being selected by a majority in interest of the persons entitled to the estate.  Also, in some instances, the Court may select a person of interest who is best qualified to serve as the personal representative of the estate pursuant to Florida Statute 733.301.

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Florida Elective Estate

Written by on Nov 15, 2010| Posted in: Estate Litigation

In Florida the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and curtesy which was the historic basic rights given to a spouse after death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective […]

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An injunction by any other name…

Written by on Nov 2, 2010| Posted in: Trust Litigation

Does the Florida Trust Code allow for freezing of trust assets without the burden of proving the traditional elements for an injunction? In short the answer is “sort of.”  Historically, if you want an injunction, the moving party must prove: She will suffer irreparable harm for which there is no adequate remedy at law unless injunctive relief is granted; She has a clear legal right to request injunctive relief; and The entry of this injunctive relief will not disserve the public interest.     “No adequate remedy at law” is the insurmountable obstacle to injunctive relief because many court rules that if you can get a money judgment (whether or not it is  collectable),then there is an adequate remedy at law therefore you are not entitled to an injunction.  Think of injunctions as the appropriate remedy for the hippie who doesn’t want the developer to cut down a 500 year old […]

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