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Florida Probate Blog

Category: Estate Litigation

Successor Personal Representative May Sue Attorney for Estate

Written by on Jun 10, 2014| Posted in: Estate Litigation

FLORIDA APPELLATE COURT RULES SUCCESSOR PERSONAL REPRESENTATIVE IS ALLOWED TO SUE A FORMER PERSONAL REPRESENTATIVE’S ATTORNEY FOR MALPRACTICE Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014) A lawsuit was filed in Florida alleging the initial personal representative, with her lawyer’s guidance, improperly disclaimed or transferred out of the estate certain assets belonging to the estate that could have been used to pay its creditors.  A trial court ruled that a successor personal representative does not have standing to bring a legal malpractice action against the Florida attorney who was hired by the initial personal representative to aid her in the administration of the estate. The appellate court reversed and stated that the powers, duties, and obligations of the personal representative apply not only to the estate, but also to other individuals related to the estate’s administration, including its beneficiaries, creditors, contractors, accountants, and […]

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Oral Agreement to Divide Inheritance

Written by on Jun 10, 2014| Posted in: Estate Litigation

ORAL AGREEMENTS SUFFICIENT UNDER FLORIDA LAW TO DIVIDE INHERITANCE FROM PARENTS Can siblings verbally agree to divide an inheritance prior to their parent’s or grandparent’s death?  The answer in Florida is Yes. In is widely accepted that in order for an agreement between parties to be legally binding and enforceable by a court or judge, at least four elements must be present:  (1) offer; (2) acceptance; (3) specific terms; and (4) consideration.  What is consideration? Consideration is simply a bargained for change in legal position between the parties.    One way to describe how the element of consideration is usually viewed by courts is to look at whether or not the parties making the promises to each other are either doing something that they are not under a legal obligation to do;  or refraining from doing something that they have a legal right to do (i.e., surrender or forebear from asserting […]

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WILL DISPUTES AND MEDIATED SETTLEMENT AGREEMENTS

Written by on Dec 19, 2013| Posted in: Estate Litigation

by Adrian Thomas When can a mediated settlement agreement be set aside? The First District Court of Appeal recently decided Pierce v. Pierce (In re Estate of Pierce), 2013 Fla. App. LEXIS 19597, 2013 WL 6438955 (Fla. Dist. Ct. App. 1st Dist. Dec. 10, 2013), which succinctly addressed the issue of when a mediated settlement agreement may be set aside or vacated. Pierce involved a will dispute between two sisters, Linda and Tamra Pierce.  After contentious litigation, the parties went to mediation.  The morning after mediation, Linda had second thoughts about the settlement agreement and sought to set it aside (vacate) it.  The lower court judge held that he could not find that Linda had “freely, knowingly and intelligently entered into the agreement.”  The First DCA reversed, not only because the lower court’s finding was unsupported by competent substantial evidence, but also because the lower court applied the wrong standard.  […]

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Freezing Assets: Putting a Stop to Ongoing Injury

Written by on Jul 29, 2013| Posted in: Estate Litigation

We speak with clients everyday who worry that estate trust assets are going to waste or being actively misappropriated.  Some cases involve breach of fiduciary duties, while others may involve fraud or undue influence in the inception.  Though the facts and circumstances vary, the concern is the same: irreparable harm is occurring and time is of the essence. In these situations, an injured party can appeal to the courts and invoke one of the most powerful tools available to the judicial system, the injunction.  An injunction is a court order that prohibits a party from doing some act which injures another party.  Injunctions are a function of the court sitting in equity, meaning they address a harm that cannot be adequately addressed by filing a lawsuit and receiving later damages from the offending party.  For example, if a trustee is actively melting down priceless family heirlooms to sell for scrap […]

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Grounds for Florida Will Contest

Written by on Jul 11, 2013| Posted in: Estate Litigation

Many families, upon the death of a loved one, along with dealing with the obvious associated pain, also unfortunately are presented with the situation where they believe that there may have been questionable circumstances involved in the process of the preparation and drafting of the Will. The question arises, are there actually grounds to contest the Will? The first consideration in making this determination is whether the Will was properly executed. IN RE Estate of Blakenship 122 So. 2d 466 (Fla. 1960) declared that the requirements for execution and qualification are governed by statute and F.S. 732.502 sets for the requirements for proper execution. A general roadmap requires scrutiny of, at the very least, some of the following issues: F.S. 732.501 indicates that the testator must be of sound mind and at least 18 years of age or an emancipated minor. The Will must be in writing, signed at the […]

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Florida Trust Lawyer

Written by on Jun 28, 2013| Posted in: Estate Litigation

The Florida Trust Code continues to grow and respond to the suggestions of the Florida Bar and Florida Trust Lawyers. A recent example is the recent enactment of Senate Bill 492 which made a number of changes which were recommended by Florida Trust Lawyers participating in the Florida Real Property, Probate, and Trust Law Section of the Florida Bar. One of the more significant changes of the Florida Trust Code used by Florida Trust Attorneys, which becomes effective October 1, 2013, is the expansion of the long arm jurisdiction of Florida Courts to adjudicate trust disputes. Many Florida Probate lawyers and Florida Trust attorneys remember the lesson from Pennoyer v. Neff, a SCOTUS opinion from 1878 which held that service over a person or property physically within a state confers jurisdiction to that person or property. But what happens when a beneficiary of a Florida trust has a dispute with […]

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What is a Spendthrift Trust?

Written by on Jun 18, 2013| Posted in: Estate Litigation

A valid spendthrift provision prevents a beneficiary from transferring his or her interest in the trust as well as prevents creditors or assignees of the beneficiary from reaching any of he trust funds until they are dispersed to the beneficiary.

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Inheritance Dispute Lawyers

Written by on Apr 8, 2013| Posted in: Estate Litigation

 Remedies Available in Florida Courts Tortious interference with an inheritance is a relatively new but widely recognized tort that is currently accepted in Florida and half of the United States.  Many other states have reported cases from their state Supreme Court or appellate level addressing the tort, but declining to determine whether it is recognized.  Clearly, the trend is moving toward national acceptance and recognition of the tort. The importance of availability of the tort cannot be understated.  It serves many purposes, especially in Florida, where elderly and vulnerable adults are preyed upon by unscrupulous persons seeking to financially exploit Florida’s elderly citizens.    The tort provides a remedy in the form of money, a civil remedy, to a person who believes that another has wrongfully interfered with an inheritance.  The remedy is awarded by the civil court, not the probate court, and the money award is paid by the person […]

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Homestead Property and Joint Ownership

Written by on Sep 17, 2012| Posted in: Estate Litigation

  HOMESTEAD PROPERTY AND JOINT OWNERSHIP “The home to everyone is to him his castle and fortress, as well for his defense against injury and violence, as for his repose.”  Edward Coke. Recently, new case law has established that exactly how the Deed is worded it is very important in the determination of whether the property was a homestead property when one of the owners of the property dies.  Article X, section 4( c) of the Florida Constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child.”  If a Florida resident acquires property as a joint tenant with rights of survivorship while he has a minor child and lives in the primary residence, the property will not be deemed the decedent’s homestead, as it passes entirely at the time of his death to the other joint tenant. The recent […]

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Broward County Trust Litigation

Written by on Aug 2, 2012| Posted in: Estate Litigation

Broward County Trust Litigation cases are filed in the Seventeenth Judicial Circuit in Fort Lauderdale, Florida.  Broward County cities include:  Coconut Creek, Cooper City, Coral Springs, Dania Beach, Davie, Deerfield Beach, Fort Lauderdale, Hallandale, Hollywood, Lauderdale-by-the-Sea, Lauderdale Lakes, Lauderhill, Lighthouse Point, Margate, Miramar, Plantation, Pompano Beach, Pembroke Pines, Sunrise, Tamarac, and Weston. For more information about various Broward County Trust Litigation causes of action, click here. If you have a Broward County Trust Litigation question, call the attorneys at Adrian Philip Thomas, P.A. for a no obligation consultation at 800-249-8125.

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