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Florida Probate Blog

Author: Michele M. Thomas

Trust Reformation

Written by on Jun 23, 2010| Posted in: Trust Litigation

Breathing Life Into An Otherwise Unenforceable Trust Instrument The following is based on real events, only the names have been changed to protect the guilty.  Jane Settlor created her revocable trust in 2005, naming herself as the initial trustee and sole income beneficiary during her lifetime, and upon her death, the remainder of the trust estate is to be divided amongst numerous individuals (some family, some not), charities and a charitable foundation that she created.  The drafting attorney, John Lawyer, is also the nominated successor trustee and the CEO of Mrs. Smith’s charitable foundation. A couple years after executing her trust, Jane Settlor pulled out her estate planning documents to re-review her estate plan.  Upon reviewing her revocable trust, and to her surprise, she noticed that many of the residuary beneficiaries of her trust were people that she hardly knew at all, and should not have been included as beneficiaries […]

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More than a Merely Perfunctory Matter

Written by on Jun 21, 2010| Posted in: General

Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences.  An example of one of the plain and simple rules of litigation is that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost When counsel files a suggestion of death, opposing […]

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Having a Missing Person Declared Dead

Written by on Jun 21, 2010| Posted in: General

Under Florida law, “a person who is absent from the place of his or her last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The person’s death is presumed to have occurred at the end of the period unless there is evidence establishing that death occurred earlier. Evidence showing that the absent person was exposed to a specific peril of death may be a sufficient basis for the court determining at any time after such exposure that he or she died less than 5 years after the date on which his or her absence commenced. ”  F.S. 731.103 (3) Florida law does not preclude the establishment of death by direct or circumstantial evidence prior to 5-years.

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Florida Inheritance Law

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

STEP CHILDREN AND CHILDREN BORN OUT OF WEDLOCK Florida inheritance laws do not treat your stepchildren as your legal heirs, therefore, they do not have an automatic legal right to inherit from you. If you want to ensure they will receive part of your estate, you will need a Will that specifically names them as a beneficiary. If you simply leave “20 percent to my children”, then your stepchildren may inherit nothing. It is important to name each individual child as a beneficiary instead of referring to them as “my children”, which will avoid confusion in interpretation of the Will language. If you formally adopt your stepchildren, then they will inherit from you as a beneficiary the same way as your biological children.

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Florida Wrongful Death

Written by on May 31, 2010| Posted in: General

A wrongful death lawsuit will inevitably be filed in connection with the fatal I-95 sport-utility crash that left two dead from the Hollywood Florida area.  Personal injury lawyers will hire probate lawyers to open the estates so a personal representative can be appointed to file a survival action and a wrongful death claim.  According to reports, the vehicle lost control and flipped over which might lead investigators for the wrongful death lawyers to examine whether any defect existed in the vehicle that may have caused it flip.  

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Written by on May 24, 2010| Posted in: General

Who Decides? In the past, Florida Statutes and case law were lacking any real direction as far as who “owns” a deceased person’s body and ultimately who decides how to dispose of the deceased person’s body. Unfortunately, many people do not plan ahead for such an important decision and when one fails to make these arrangements in advance of death, families are left to decide which really means estate litigation lawyers have yet another fight on their hands. The failure to make burial arrangements often creates dissension among loved ones who may never have discussed what a deceased person’s wishes were as far as the disposition of their remains after death. Cremation or burial, where to be buried, whether to donate the body for science, or even what kind of funeral service are just some of the disputes that arise among loved ones. The Anna Nicole Smith and Schiavo cases […]

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Power of Attorney

Written by on May 19, 2010| Posted in: General

How Much Power Does a Power of Attorney Really Give? As probate and trust litigation attorneys, day in and day out, we deal with claims for undue influence, lack of testamentary capacity, and improper execution of testamentary documents.  However, one issue that comes up periodically but often overlooked, is the breach of fiduciary duty by an attorney-in-fact by improperly using a power of attorney.  Often, a power of attorney is used to the detriment of the principal, and by extension the principal’s heirs.  It is standard practice for estate planning lawyers to recommend and prepare a durable power of attorney as part of a client’s estate planning package, as it is important for a mechanism to be in place so the principal’s family can manage his/her financial affairs in the event the principal becomes incapacitated.

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Leader of the Class

Written by on May 11, 2010| Posted in: General

Second District Finds No Authority Under Probate Code for Class Claims The Second District Court of Appeals rendered a harsh rejection of a Lee County Circuit Court’s decision allowing a class action claim against a decedent’s estate.  Baillargeon v. Sewell, 2010 WL 1727892, 35 Fla.L.Weekly D978a, (Fla.2d DCA April 30, 2010) announced a decision important to inheritance lawyers and others interested in Florida probate law and Florida probate and will and estate administration issues.  When Frank D’Alessandro (the Decedent) died, he was one of several defendants named in a class action lawsuit in federal court filed by Randolph Sewell and Daphne Sewell (the Sewells), on behalf of themselves and all others similarly situated, founded upon allegations involving a failed investment scheme.  The Personal Representative was substituted as a party in the pending action after decedent’s death.  Within three months after the first publication of notice to creditors, the Sewells filed […]

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Proper Will Preparation and Execution

Written by on Apr 26, 2010| Posted in: General

It is imperative that a person’s Last Will and Testament be properly prepared by a skilled and competent estate planning attorney and that the execution of this Last Will and Testament is performed appropriately and according to Florida Statutes.   Most recently-drafted Wills are self-proved wills, executed in accordance with Florida Statutes 732.502 and 732.503. Florida Statute 732.502 sets forth the exact execution requirements for a Will to be valid.  These are the formal steps that must be taken to ensure that a Will was validly signed by the testator and the attesting witnesses.  If a Will is executed without a “self-proving affidavit,” then at the time of the decedent’s death, the witnesses to the Will will need to sign oaths in front of a court official to swear that the Will submitted is the Will the testator signed in front of them.  This can present obvious problems if the testator executed […]

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Being of unsound mind…

Written by on Apr 15, 2010| Posted in: Guardianship Litigation

Your mother’s incompetent to handle any of her affairs…but she can sign a new Will cutting you out! An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian.  Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for appointment of a guardian, which the Court approved.  While under […]

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