client portal
  • Legal Leaders logo
  • Blue Forbes logo
  • AVVO 10.0
  • Top 100 Lawyers badge
  • Daily Business Review Newspaper
  • Legal Elite 2012 Badge
  • Top Rated Lawyers
  • The American Lawyer, Adrian Philip Thomas

Florida Probate Blog

Category: General

Decidedly Inconvenient: Joint Accounts and POD Accounts

Written by on May 13, 2016| Posted in: Estate Litigation

“But Mom only added my brother so he could pay estate expenses and then the money was supposed to be divided equally amongst all of the children like the Last Will & Testament says!” Almost every day, a prospective client calls to say that a sibling was added to Mom’s bank account, either as a joint tenant or as the pay-on-death beneficiary, solely for “convenience” purposes so he or she could pay estate expenses and that it was Mom’s intention that the remaining funds be distributed equally to all of her children.  Naturally, the sibling who was added to the account does not share this view (which is the reason for the phone call).  Invariably, the sibling who was added is the one who lives closest to Mom so it is simple for him to rationalize and justify keeping all of the money – even when that is not what Mom wanted –  because “I was the one helping out.”  In this way, […]

read more

RETROACTIVE DUE PROCESS IN PROBATE

Written by on Jan 20, 2016| Posted in: General

Typically, when the Supreme Court of the United States announces a new Rule of Federal Constitutional Law dealing with due process, the new Rules are applied retroactively. However, Florida probate courts are left with the power and discretion to carve out exceptions to the general rule in their own probate, will, trust and adoption jurisprudence.

read more

Curator vs. Personal Representative

Written by on Dec 14, 2015| Posted in: General

  There are several scenarios that we are presented with wherein the appointment of a curator (or neutral fiduciary) is warranted for the administration of an estate.  However, what happens when the alleged tortfeasor (whether a brother, sister, step-mother, etc.) has already been appointed as the personal representative of the estate, but we know that he/she should not be because of some prior bad conduct regarding the Estate’s assets.  Regardless of the bad conduct, who would administer the estate while you are trying to prove that case? Fla. Stat. §731.201 defines a “curator” as a person who is appointed by the probate court to take charge of the estate until letters of administration are issued (in other words, until a specific personal representative is appointed).  A curator is essentially someone neutral who is appointed to temporarily administer an estate.  Many probate attorneys request that a curator be appointed while there […]

read more

Florida Probate Creditor Claims

Written by on Nov 11, 2015| Posted in: General

We have previously written entries regarding Fla. Stat. §733.702 and the time limitation for filing a creditor claim in an estate proceeding.  This time limitation includes a claim founded upon the wrongful act of the decedent where the decedent’s estate would owe you some sort of financial award or relief.  Once expired, an extension of the time limitation may only be granted upon grounds of fraud, estoppel, or insufficient notice of the claims period. Fla. Stat. §733.2121 further discusses the procedure a personal representative must adhere to in order to commence this timeframe for creditors to file their respective claims.  Pursuant to this statute, the personal representative must publish a notice to creditors in a newspaper in the county where the estate is being administered and must make a diligent search to serve a copy of the notice to creditors on any reasonably ascertainable creditors.  The definition of a ‘reasonably […]

read more

Mediation and Settlement Agreements

Written by on Oct 13, 2015| Posted in: General

Misrepresentations by Tortfeasor During Mediation: Fool Me Once… So you’ve sued someone for undue influence, tortious interference with expectancy of inheritance or a similar tort grounded upon fraud. It is well-settled in Florida that such causes of action are based upon fraud and must be pled with specificity. Although the Florida Supreme Court did acknowledge in In re Carpenter’s Estate, 253 So.2d 697 (Fla. 1971) that undue influence by its very nature is committed in secret and thus is not susceptible to direct proof, plaintiffs are faced with another dilemma when trying to settle undue influence cases at mediation: “What else did the defendant do that we don’t know about?” Deciding whether and upon what terms to settle a case is often difficult enough, so the unknown only makes it even more difficult when contemplating whether to give the defendant a full general release. While Florida law does provide a […]

read more

Reasonably Ascertainable Creditors

Written by on Oct 5, 2015| Posted in: General

How long does a creditor have to file a claim in the probate estate? Many clients ask how long it takes for an estate to be completely administered.  The answer is: it depends. One of the several factors that will affect the timeframe is how many and what type of creditor claims are filed in the estate.  Once a creditor claim is filed, the estate (through the personal representative) must properly address the claim. Fla. Stat. §733.701 states that every personal representative must publish and serve a notice to creditors.  This notice to creditors will place any prospective creditor of an estate on notice that they have a certain time period within which to file a claim.  If the creditor does not timely file a claim, it will be forever barred and that creditor cannot recoup any funds from the estate. Therefore, the essential question that every personal representative and […]

read more

Qualified Renunciation

Written by on Aug 19, 2015| Posted in: General

Part II As we’ve previously written about on this blog, while one of the pleading requirements for a Will Contest or Trust Contest in Florida is a general allegation in the complaint that the contestant renounces any benefit he or she receives under the challenged document, “qualified renunciation of benefits” is a technical pleading requirement, and equity does not require actual return of benefits received in every situation. See, Qualified Renunciation) Last July we blogged about Fintak v. Fintak, 120 So.3d 177 (Fla. 2d DCA 2013), a case in which the court refused to apply the renunciation rule to allow for the dismissal of a claim made by a beneficiary who had received benefits that he would have received regardless of the instruments he was attacking. The rationale behind the Fintak decision was that the contestant did not receive under the challenged document “a benefit to which he would not be entitled […]

read more

Change in Statutory Duty of Un-Qualified Personal Representatives

Written by on Aug 18, 2015| Posted in: General

When a person dies, with or without a last will and testament, there is a high probability that the person who died (the “Decedent”) will have left behind obligations that must be fulfilled and other matters that must be addressed before their property can be distributed. The property that a Decedent leaves behind when he or she dies and which is the subject of administration in probate court makes up what is called the “estate.” §731.201(14), Fla. Stat. (2015). Just like a business needs a manager to run its day-to-day operations, an estate needs a manager to finish handling the Decedent’s affairs so that the estate may be distributed, either according to the terms of the Decedent’s last will and testament or under the laws of intestacy. In Florida, the person who is charged with managing, or “administering,” the Decedent’s estate is called the “Personal Representative.” §731.201(28), Fla. Stat. (2015). […]

read more

BUT YOU AGREED TO MAKE ME THE BENEFICIARY!

Written by on Apr 14, 2015| Posted in: General

Whether in the context of a divorce proceeding or when a couple is preparing their estate planning together, some people agree to a contract to subsequently make a Will or Trust that names another as the primary beneficiary.  This primarily (but not always) takes place when a married couple enters into a prenuptial or postnuptial agreement and in said agreement, they each agree that they will each sign a Will that makes the other person a beneficiary. What if in this agreement, they both agree that they will never revoke or amend such a Will regardless of divorce?  What if one of them changes the Will after the divorce?  What happens when that person dies? Florida Courts have dealt with similar situations and have held that such an irrevocable contract to make a Will can be made binding and damages may be sought against the breaching party’s estate.  In Boyle […]

read more

Probate Creditor Claims in Florida

Written by on Apr 6, 2015| Posted in: General

ADDRESSING THE ISSUE OF CREDITOR CLAIMS FROM THE VIEWPOINT OF THE PERSONAL REPRESENTATIVE One of the significant issues a Personal Representative of an Estate needs to address is that of the claims against the Estate by creditors. To administer an estate in an orderly manner, the Personal Representative must ascertain what debts and claims are to be paid by the estate, because no assets should be distributed until the Personal Representative is certain that these debts and claims can be paid. Florida Statute 733.212 states that “the Personal Representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent or unliquidated.”  A diligent search must be undertaken, and such a  search depends on the familiarity of the Personal Representative with the decedent’s affairs. It should include a careful review of the defendant’s […]

read more

We can make a difference.
Call now for a complimentary consultation.
Toll Free 1-800-249-8125

Phone: (954) 764-7273
Fax: (954) 764-7274

Las Olas Square
515 East Las Olas Blvd, Suite 1050
Fort Lauderdale, FL 33301