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Florida Probate Blog

Category: General

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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What is guardianship?

Written by on Mar 13, 2012| Posted in: General

Guardianship is a legal proceeding in which a guardian is appointed to exercise the legal rights of a disabled or incapacitated person.  In Florida, the circuit courts have jurisdiction over guardianship matters.  The disabled or incapacitated person is referred to as the “ward.”  There are several different types of disability or incapacity, including:  being a minor child with no living parents, being a mentally ill or handicapped adult, being an elderly person with dementia, being disabled by injury (for example a stroke), being so impaired by substance abuse that the person is effectively disabled.  In general, a person is “disabled” for guardianship purposes if the person is unable to conduct his or her personal or business affairs or lacks the physical or mental capacity to care for his or her support needs, which may be due to minority (under 18), old age, illness, substance abuse, mental illness, birth defect, traumatic […]

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Estate Law Florida

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

Estate Law Florida What is “estate” law? From a lawyer’s perspective, the term “estate” refers to many different things. Gross Estate The Internal Revenue Service uses the term “gross estate” to mean every asset in which a decedent had an ownership interest on his or her date of death.  This includes real estate, life insurance, bank accounts, stocks, etc.  If a decedent dies with significant wealth, his estate is subject to an “estate tax” and the attorney will need to prepare a Federal Estate Tax Return, form 706. Probate Estate The term “probate estate” refers only to those assets owned by the decedent in his or her sole name.  Some decedents have nothing subject to probate, some have a few assets subject to probate, and other decedents have all of their assets subject subject to probate. Trust Estate If a decedent had a revocable or “living” trust, then the assets […]

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Gainesville Wrongful Death Crash Lawyer

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

Personal Injury Gainesville, Florida crashes:  Interstate 75 Alachua County.    In a series of overnight accidents in northern Florida, blamed on poor visibility from smoke from a nearby brush fire, authorities said at least ten people were killed in the crashes.  Most of the collisions were on Interstate 75, in Northern Florida according to the Alachua County Sheriff’s Office. Crashes also occurred on U.S. Highway 441 near Gainesville, Florida.  The National Weather Service in Jacksonville had issued a dense smoke advisory due to nearby fires which cut visibility to less than a mile. Car crashes, motorcycle accidents, medical malpractice, and other tragic events that form the basis of many personal injury lawsuits in Florida.  Where death is involved, they usually include the filing of a claim for damages resulting from the victim’s wrongful death against the negligent person.   Damages based upon wrongful death can include a wide variety of things, from seeking […]

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Florida Trust Decanting

Written by on Dec 29, 2011| Posted in: General

Florida Trust Decanting:  Phipps v. Palm Beach Trust Co., 196 So. 299 (Fla. 1940) and Florida Statute §736.04117 “Decanting” is the legal term used to describe the distribution of trust property from one trust to another trust pursuant to the trustee’s discretionary authority to make distributions to or for the benefit of one or more beneficiaries.  Common law provides authority for trust decanting, but several states – including Florida – have codified the common law.  Florida Statute §736.04117 became effective on July 1, 2007. Under common law, a trustee with absolute power to invade principal is the equivalent of a donee of a special power of appointment.  Restatement (Second) of Prop.: Donative Transfers §11.1  Absent a contrary provision in the governing document, a donee of a power of appointment may exercise such power in a manner which is less extensive than authorized by the instrument creating the power.  Thus, “the […]

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German Wills in Florida

Written by on Dec 7, 2011| Posted in: General

Recognition of a German Will in the USA (formal validity) by Jan-Hendrick Frank, Esq. This article provides an introduction to the recognition of German Wills in Florida. German Wills:  Formal requirement under German law Under the German Civil Code (“BGB”), the testator can choose between two forms of traditional wills (§2231 BGB): 1) The public or notarized will (§2232 BGB), and 2) the holographic or handwritten will (§2247 BGB). Witnesses are not required for the validity of a holographic or notarized will under German law. Unlike the U.S., witnessed wills are uncommon in Germany.   State of Florida According to 732.502 (2), Fla.Stat., a will must be in writing, signed by the testator and authenticated by two witnesses. A holographic will is without force or effect under Florida law. There is no regulation with regards to foreign wills. However, if the decedent died domiciled in Germany, it may be valid under the applicable […]

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What is the best way to find a good probate lawyer?

Written by on Dec 1, 2011| Posted in: General

Here are some tips to locate a good probate lawyer in Florida: Look at the experience level of the attorney. Does the lawyer focus their area of legal practice to probate, trusts and estates? Review the information on the firm’s Web site.  Does the information look relevant and focused? Ask for referrals…especially former clients. Contact The Florida Bar to confirm the lawyer is in good standing. Investigate whether the law firm has good infrastructure.  Ask about support staff, technology, billing practices and procedures for attorney/client communication.

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Palm Beach County Probate Attorney

Written by on Oct 27, 2011| Posted in: General

Palm Beach County Probate Attorney The lawyers of Adrian Philip Thomas, P.A. represent clients throughout the State of Florida, including Palm Beach County, Florida.  Palm Beach County, Florida is the largest county in the state of Florida in total area and third in population. As of 2010, the county’s estimated population was 1,320,134.  Palm Beach County is one of three counties comprising the South Florida metropolitan area. Its largest city and county seat is West Palm Beach.  Boca Raton is the second largest, having a population approaching 90,000 and Boynton Beach is the third largest city, with a population nearing 70,000 residents. With a large retirement population and wealthy coastal towns such as Palm Beach, Jupiter, Manalapan, and Boca Raton all within the Palm Beach County limits, it is Florida’s wealthiest county which makes it a haven for exploitation of the elderly, undue influence and fraudulent last will and testament cases. If you are […]

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Florida Elder Abuse Attorney

Written by on Sep 30, 2011| Posted in: General

Florida Elder Abuse Attorney An elder abuse attorney in Florida can mean many different things.  An elder abuse lawyer can refer to an elderly person being harmed in a nursing home or an elder abuse lawyer can mean a probate lawyer who is hired after or before death to correct an injustice done to an elderly citizen.  Our law firm receives inquires asking us to represent relatives who believed their love ones were financially exploited and they refer to this financial abuse as elder abuse.  Probate disputes perhaps always involve an old person being taken advantage of – the issue is whether a skilled probate lawyer can get the evidence to prove the financial exploitation.

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