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Florida Probate Blog

Category: Estate Litigation

How do I contest a Will in Florida?

Written by on May 7, 2012| Posted in: Estate Litigation

How do I contest a Will in Florida? Our office receives communications nearly every day from people asking “how do I contest a Will in Florida?” As with most questions in the law, the answer is “it depends” and it largely depends on the basis for contesting the Will.  Is it because you know the decedent executed a more-recent Will?  Is it because the Will filed was executed improperly?  Is it because the decedent who made the Will lacked capacity at the time it was made?  Is it because the decedent who made the Will was being unduly influenced by someone when it was made?  Sometimes it is appropriate and sufficient to file an Objection to the Petition for Administration or to the Petition to Admit Will but sometimes a law suit (Complaint) challenging the Will is necessary. The best answer to the question “how do I contest a Will […]

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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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Adrian Thomas Attorney

Written by on Mar 8, 2012| Posted in: Estate Litigation

Adrian Thomas Attorney Attorney Adrian Thomas is a shareholder and senior partner of a boutique, nine-attorney law firm located in Fort Lauderdale, Florida. He has resided in Florida for the past thirty years and has practiced law in Broward County for the past 18 years. Adrian 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, 2010 and 2011.  Attorney Adrian Thomas concentrates his 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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Adrian Philip Thomas

Written by on Mar 3, 2012| Posted in: Estate Litigation

Attorney Adrian Philip Thomas is a shareholder and founding partner of the Law Offices of Adrian Philip Thomas, P.A., a boutique, nine-attorney law firm located in Fort Lauderdale, Florida. He 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, 2010 and 2011. Mr. Thomas concentrates his 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. Attorney Adrian Philip Thomas has a Masters in Law from the University of Miami, a Juris Doctor from Nova Southeastern University, and a Bachelor of Science from the University of Florida. Attorney Adrian Philip Thomas has lectured at continuing legal education seminars […]

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Adrian Thomas Lawyer Rating

Written by on Feb 28, 2012| Posted in: Estate Litigation

LAWYER RATINGS Adrian Thomas has achieved the highest lawyer rating in Martindale-Hubbel. AV® Peer Review Rating — An AV® certification mark is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence. A lawyer must be admitted to the bar for 10 years or more to receive an AV® rating. Adrian Thomas has achieved the highest lawyer rating on Avvo.  Adrian Thomas has been selected Florida Trend Legal Elite  for four consecutive years, 2008-2011. See comments from Adrian Thomas’s clients.    

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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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Florida Marchman Act

Written by on Feb 21, 2012| Posted in: Estate Litigation

With the recent death of Whitney Houston, there has been a heightened awareness of substance abuse and more importantly how pervasive this problem is in all walks of society. Addiction knows no barriers, whether they are social, racial or economic.

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Florida Trustee: Duty of Impartiality

Written by on Jan 12, 2012| Posted in: Estate Litigation

THE TRUSTEE’S DUTY OF IMPARTIALITY WITH BENEFICIARIES OF A TRUST. Impartial – unable to perceive any promise of personal advantage from espousing either side of a controversy.  Ambrose Bierce Recently, the problem of a trustee financially favoring one beneficiary over another presented itself.  In this case, the trustee was making distributions to one beneficiary without question, while denying the other beneficiary of similar distributions.  When this occurs, it is imperative that a competent attorney review the trust document and any amendments to the trust to determine if there exists any specific language allowing for the inequity in distribution.  If no such language exists, then the trustee has breached their fiduciary duty of impartiality to the beneficiaries of the trust. Florida Statute 736.0803 states that “[i]f a trust has two or more beneficiaries, the trustee shall act impartially in administering the trust property, giving due regard to the beneficiaries’ respective interests.” […]

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Florida Trust Termination

Written by on Jan 10, 2012| Posted in: Estate Litigation

Florida Trust Termination It is not uncommon for people to place real estate in a trust as part of their estate plan. What happens when the person dies and the real estate is unproductive or the value gets reduced?  Recently a client had a one-half interest in a trust that was to last for several years, the primary asset of which was a house.  The owner of the house wanted it to be available for his sibling to use after his death.  Unfortunately, the house had fallen behind in monthly dues with the homeowner’s association and was not used or lived in after the death of the owner.  Of course, expenses (such as property taxes and homeowner’s dues) needed to be paid and the homeowner’s association sued for past due bills. Fortunately, Florida law permits the Court to modify an irrevocable trust if not inconsistent with the settlor’s (the creator of […]

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Florida Homestead Law

Written by on Oct 18, 2011| Posted in: Estate Litigation

Marriage and Homestead in the Florida Probate Process What if my deceased spouse and I were not living together at the time he or she passed away?  Do I still have Florida homestead protection from creditors? I recently had a case where this issue arose.  Although these questions may appear to be ripe for further problems and complex factual disputes regarding the quality and status of the marriage, Florida statutes and courts have made this issue fairly clear.  If you are married at the time of your spouse’s death, you may invoke your surviving spousal rights for homestead protection on your deceased spouse’s home.  Florida does not recognize separations or any other problems that may have existed during the marriage in making a determination of homestead status.  In Florida, you are either married, or you are not.  As they say, “you cannot be a little bit pregnant.” A surviving spouse’s […]

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