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Florida Probate Blog

Category: General

Lost or Destroyed Will

Written by on May 16, 2013| Posted in: General

What happens when the Decedent’s original Last Will & Testament cannot be found? It is well-settled under Florida law that when an original will that is known to have existed cannot be located after the death of the decedent, the presumption is that the testator destroyed the will with the intent to revoke it. In re: Estate of Parker, 382 So.2d 652 (Fla. 1980). Often, a family member will have a copy of the Will and will offer it for probate and ask the probate court to admit the Will as if it were an original.  Then, the proponent of the lost will (the person offering the copy for probate) has the burden of introducing competent, substantial evidence to overcome the presumption that the will was destroyed by the testator. Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996). The Parker court said that the first […]

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ADRIAN THOMAS LAWYER REPUTATION

Written by on Apr 18, 2013| Posted in: General

“The way to gain a good reputation is to endeavor to be what you desire to appear.”  ~ Socrates The lawyers at Adrian Philip Thomas, P.A. strive to be competent and passionate advocates for their clients while maintaining high levels of professional courtesy and ethical conduct.  For twenty years, we have been serving the needs of clients with probate administration and estate litigation disputes throughout the State of Florida.  We are proud to have earned the gracious thanks of many clients over the years. Dear Adrian, Oh happy days!  I could not have found finer legal representation.  I will be eternally grateful to you.  Thank you so much.  You took on a complicated case over multiple jurisdictions made overly complex so I could never prevail.  Your staff, your firm, absolutely everyone attended to me with the utmost courtesy, skill and promptness.  Thank you, Adrian, for fighting so hard for me.  Warmest regards, E.S. To […]

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Fort Lauderdale Probate Litigation Lawyer

Written by on Jan 10, 2013| Posted in: General

A Fort Lauderdale Probate Litigation Lawyer may represent clients in connection with disputes arising over a Last Will & Testament.  There are several grounds for contesting a decedent’s Last Will & Testament, including: mistake in execution, undue influence, and lack of testamentary capacity.  In addition to Will contests, probate litigation may involve:  Will construction (interpreting the meaning of a Will), determination of heirs, elective share, breach of fiduciary duty, removal of fiduciary, surcharge (making a fiduciary pay back losses caused by his/her conduct), and accounting.  Each of these topics is discussed in greater detail at our website.  Just follow the links at the top of this page.   The Fort Lauderdale Probate Litigation Lawyers at Adrian Philip Thomas, P.A. represent clients in connection with all probate litigation matters, both prosecuting and defending.  If you or someone you know needs to consult with a Fort Lauderdale Probate Litigation Lawyer, call toll free […]

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QUALIFICATIONS AND COMPENSATION OF PERSONS GIVEN POWER OF ATTORNEY IN FLORIDA

Written by on Nov 20, 2012| Posted in: General

A Power of Attorney is a writing that grants authority to someone to act in the place of the principal, whether or not the term “power of attorney” is actually used in that writing.  It is often used as an estate planning tool to avoid a guardianship proceeding should the person granting the power of attorney become incapacitated. The “agent” or person given the authority to act for a principal under a power of attorney can be designated as an agent, attorney-in-fact- or otherwise, and includes an original agent, co-agent and successor agent.  Fla. Stat. 709.2102 The agent named in a Power of Attorney may be any natural person who is eighteen years of age or older and of sound mind. In the alternative, a designated agent given a power of attorney may also be a financial institution having trust powers and a place of business in Florida and authorized […]

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HOMESTEAD REAL PROPERTY AND A SURVIVING SPOUSE’S ELECTION

Written by on Nov 19, 2012| Posted in: General

The Florida Constitution (Article X, Section 4), Florida Statutes, and Florida decisional law delineate the different protections offered to family of a decedent’s homestead property.  Most recently, Fla. Stat. 732.401 was enacted by the legislature and provides, in relevant part, as follows: (1)  If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes. (2)  In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being […]

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Florida Homestead Law: Condos and Co-ops

Written by on Oct 30, 2012| Posted in: General

As a Florida probate attorney, one issue that often arises is the treatment of homestead real property.  Under Florida law there are three contexts in which the homestead has significance: (a) taxation, (b) exemption from forced sale and (c) descent and devise.  Florida case law is plentiful as it pertains to homestead real property, especially since a 1984 change in the Florida Constitution which broadened the constitutional definition of the term “homestead.” While Florida homestead law can be found in Article X, Section 4 of the Florida Constitution, many decisions of Florida appellate court must be considered when seeking the Constitutional protections.  One also must determine what context they are seeking to invoke the Constitutional protection (exemption from forced sale or devise and descent), as the District Courts of Appeal have treated certain contexts different.  For instance, while a condominium may be considered homestead, a cooperative apartment may not, depending […]

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Can I do whatever I want with a power of attorney?

Written by on Oct 15, 2012| Posted in: General

This question seems to be arising more and more often lately.  Most estate planning attorneys recommend their clients create a durable power of attorney (DPA), naming a close, trusted family member (usually a spouse or adult child) to serve in the capacity as their attorney-in-fact to manage their finances and other personal business in the event of temporary or permanent incapacity.  It’s a very smart estate planning tool for obvious reasons, but it is also one that is extremely susceptible to abuse by the attorney-in-fact.  After all, the activities of an attorney-in-fact are not court-monitored or approved, which makes it very enticing for one to help themselves. Over the past couple years, there seems to have been a significant rise in the number of lawsuits filed in Florida for breach of fiduciary duty arising from self-dealing conduct with DPA’s.  What’s more is that many lawyers are taking the position in […]

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DOES A PERSONAL REPRESENTATIVE NEED TO HIRE AN ATTORNEY?

Written by on Oct 7, 2012| Posted in: General

In Florida, every guardian and every personal representative, unless the personal representative remains the sole interested person, shall be represented by an attorney admitted to practice in Florida. A guardian or personal representative who is an attorney admitted to practice in Florida may represent himself or herself as guardian or personal representative. Fla. Prob. R. 5.030 (a). In nearly all Florida probate cases, it’s important, and typically required, that the personal representative of an Estate have legal representation. Even in the simplest probate case, legal issues are likely to arise. There will be statutory requirements and issues where the Court requires an attorney to be part of the process to assist in advising the personal representative of rights, duties, and obligations they have to the estate and beneficiaries. There are numerous complex matters that can arise during the administration of an estate, in addition to deadlines, duties and other responsibilities […]

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Pretermitted Share vs. Elective Share

Written by on Sep 28, 2012| Posted in: General

Assuming there is no pre-marital agreement, a surviving spouse who is not included in the decedent’s Will may take a pretermitted share or an elective share.  Which one to take requires an analysis of what the decedent owned and – more importantly – how he owned it. A “pretermitted” spouse is one who becomes a spouse after the decedent created his Will.  The law assumes that the decedent intended to provide for the spouse but simply did not get around to updating his Will.  The pretermitted share is the same as the intestate share, which is 50% of the probate estate.  The elective share makes no assumption about what the decedent intended and is a mechanism for enforcing Florida’s public policy against disinheriting one’s spouse.  The elective share is 30% of the elective estate.  The elective estate is much broader than the probate estate and may include revocable trusts, jointly-owned property, pay-on-death […]

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Possession of Homestead by Personal Representative

Written by on Jul 2, 2012| Posted in: General

Possession of Homestead by a Personal Representative Homestead, in the estate and trust context, is the real property owned by a decedent at the time of death, which was used as his primary residence at the time of his death. As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that it can be devised to the spouse if not survived by minor children. If not survived by a spouse or minor child, the decedent is free to devise the property as he wishes. Typically, if homestead property is devised to an heir or descendant, as permitted by law, it vests in said heir or descendant immediately upon death and is not considered an asset of the estate. In many cases, the homestead can be the largest asset owned by a decedent at the […]

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