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Florida Probate Blog

Category: Estate Litigation

Florida Intestate Estates: Spousal Shares

Written by on Sep 12, 2011| Posted in: Estate Litigation

New Changes to Spousal Shares in Florida Intestate Estates Beginning October 1, 2011, new rules regarding Florida Intestate Estates will go into effect, drastically changing what happens in estates involving spouses who die without a Will. Florida law has long recognized the rights of married persons whose spouse dies intestate, or without a Will. The surviving spouse’s share was determined based upon whether the deceased spouse had children, and whether those children were also the children of the surviving spouse. Under the current law, Florida Statute §732.102, the intestate (without a Will) share of the surviving spouse is: (1)  If there is no surviving descendants of the decedent, the entire intestate estate. (2)  If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated […]

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Florida Guardianship, Part 3

Written by on Sep 1, 2011| Posted in: Estate Litigation

There are certain procedures that need to be followed in seeking the determination of incapacity and the appointment of a guardain.  Needless to say, they are quite stringent.  Florida courts understand the gravity of implementing a guardianship and do not take such a course of action lightly.  The relevant statutes in determining incapacity are found in Chapter 744, Florida Statutes, along with the Guardianship Rules within the Florida Probate Rules. The first step in the process is having your attorney file a petition to determine incapacity.  This petition must be filed in the county where the alleged incapacitated person resides or is found.  In addition, it must be signed by the party seeking such a determination under penalties of perjury (also known as a “verified petition”).  Pursuant to Fla. Stat., 744.3201(3), a petition for appointment of a guardian must be filed simultaneously with the petition to determine incapacity.  If the […]

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Inheritance for a Minor Child: Role of Guardian ad Litem

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

How can a minor child inherit from an estate?  In Florida probate,  money and property is often left  to minors.  These gifts to minor can be through  a will or trust, or a child can take through intestacy (where there is no will).  However, Florida probate laws often requires that a guardian ad litem be appointed to represent the minor child’s financial interest. While Florida has laws for guardians of persons and property, oftentimes a minor only needs to have a Guardian Ad Litem appointed.  For all civil matters generally, a court must “appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or…make such other order as it deems proper for the protection of the infant or incompetent person.”  Fla. R. Civ. P. 1.210(b).  Recently my office represented a client is a trust termination case which came from an undue influence contest.  […]

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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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Florida Will Contest

Written by on Mar 22, 2011| Posted in: Estate Litigation

What is a Will Contest? A will contest is a challenge to the Last Will & Testament submitted for probate on behalf of a decedent.  This firm represents both executors who have a fiduciary duty to defend a Last Will and Testament filed for Probate and heirs who feel they have been unfairly omitted from a Last Will and Testament. For those heirs who feel they have been unfairly omitted from a Last Will and Testament, challenging the validity of a Last Will and Testament in Florida can be done on many grounds. One of the most direct ways to attack a Last Will and Testament is to prove that it was not properly signed by the testator (the person who made his or her Last Will and Testament). A Last Will and Testament can be admitted into Probate and accepted by the court even though it was executed improperly. […]

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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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Gold Diggers Beware!

Written by on Mar 1, 2011| Posted in: Estate Litigation

Florida enacts legislation allowing challenges to “deathbed marriages.”  It used to be that you could marry someone only moments before death and be vested with all the same rights and benefits as a spouse of 50 years.  Florida wised up to this type of predatory behavior and enacted Florida Statute §732.805, which became effective on October 1, 2010.  The statute allows an interested party to challenge a surviving spouse’s rights by alleging that the marriage was procured by fraud, duress or undue influence.  The burden is on the challenger to establish, by a preponderance of the evidence, that the marriage was procured by fraud, duress, or undue influence.  The cause of action cannot be brought until the death of the person believed to have been coerced into marriage and is only available for four (4) years from date of death.  It will be interesting to revisit this blog after causes of action […]

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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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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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