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Florida Probate Blog

Category: General

Will Contest Lawyer

Written by on Jul 11, 2011| Posted in: General

Florida Will Contest Lawyer People looking for a will contest lawyer in Florida often ask the following questions: Can a will be challenged during life? A will cannot challenged during a person’s life.  Will contests can only happen after death.  Sometime the person who made the last will and testament is still alive but are incompetent and in need of a guardianship.  Many times during the guardianship proceeding evidence about the drafting, creation, and signing the will can be preserved for a will contest after death.  Can a last will be contested if it was not properly signed? A will must be signed by the maker of the will and by two witnesses who saw the person sign the will (or who were told by the testator that he signed the will) and those two witnesses must also sign the will. Otherwise, the will is invalid and can be contested. […]

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Florida Probate Litigation

Written by on Jul 10, 2011| Posted in: General

Florida Probate Litigation Probate litigation often involves a will contest. Probate litigation is also a term used to describe a challenge to trust because trust disputes in Florida are litigated in the probate court.  Probate litigation, trust contests and Florida will contests are one of the most hotly-contested areas of the law, used by surviving family members to correct an array of injustices. Probate litigation is the broad concept which may include challenging: the validity of a Last Will and Testament; a provision within the Last Will and Testament; the terms of a Trust; the validity of a person’s other estate planning documents; the appointment of a personal representative (known in some states as an “executor”); the actions of a personal representative; or an elective share. Our law firm concentrates its practice in Florida probate litigation.  Visit our website www.florida-probate-lawyer.com for a detailed reference on most probate and trust litigation topics.

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Florida Probate Blog

Written by on Jul 8, 2011| Posted in: General

Florida Probate Blog My law firm contributes relevant topics to our law firm’s Florida probate blog which are designed to educate and inform both lawyers and non-lawyers.  Blogs dealing with probate and trust issues are not designed to legal advice concerning estates, probate, guardianship or trust litigation issues, but are intended as a general introduction to the specific area of concern. Our previous blogs include topics dealing with: Probate Litigation Estate Litigation Trust Litigation Guardianship Litigation Wrongful Death Litigation Undue Influence Lack of Mental Capacity Probate Administration Probate for Resident Aliens / Non-US Citizens Ancillary Probate Matters Elective Share Option Power of Attorney Will Contests Breach of Fiduciary Duty/ Heir & Beneficiary Rights If you would like to subscribe to our Florida Probate Blog, you can input your email address under “subscribe” or click on the RSS feed button.

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CREDITORS AND SOLVENCY IN THE PROBATE PROCESS

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

Let’s say your father passed away with $200,000 in his estate and you are the only heir.  If your father had owed money on the date of his death, the estate would be obligated to satisfy that creditor prior to you obtaining your inheritance.  Florida law provides that a devise (distribution) owed to a beneficiary is subject to charges for debts, expenses, and taxes.  In our example, if the creditor claim was for $100,000, it would be paid first, and you would then inherit the $100,000 remaining in the estate.  However, what if your father only had $90,000 on the date of his death, yet still had the $100,000 creditor?  Unfortunately, your father’s estate would be insolvent and your inheritance may be completely wiped out.  Now suppose that the person who owes the estate is a child who convinced his father to make a quick change to his last will […]

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Florida Homestead Law

Written by on Jun 3, 2011| Posted in: General

Florida Homestead Law Update On October 1, 2010, Florida Statute 732.401(2) was added to update Florida Homestead law, as least partially in response to the escalating insurance and property tax rates in recent years. Under the old Florida Homestead law, if a decedent did not devise his  homestead property pursuant to the requirements of the Florida Constitution and was survived by a spouse and at least one lineal descendant, then the surviving spouse would receive only a life estate with the remainder passing to the descendant(s). A life estate might sound great, but it comes with many financial responsibilities, including: property taxes, insurance, special assessments (if applicable), mortgage interest, etc.  Furthermore, if the remainder beneficiaries refused to agree to sell the property, there was not much recourse for the surviving spouse. The new Florida Homestead law allows a surviving spouse to elect to receive a tenant-in-common, one-half interest in the decedent’s […]

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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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Adoption and Inheritance

Written by on May 3, 2011| Posted in: General

Adoption:  Inheriting From Both Sets of Parents.  Can You Really Have It Both Ways? Every year, thousands of orphaned children are adopted by foster families nation-wide.  Most of them lead normal lives with their adoptive families, not giving much thought about their natural parents.  After all, in most cases, the adoptive family is the only family they ever knew.  Now, for just a moment imagine that you are one of those children.  You live in Oregon where you were born (out of wedlock), adopted and raised; and you just discovered the shocking reality that your natural father never knew of your existence because your natural mother withheld the news of your birth from him resulting in your adoption without his consent.  Suddenly, the pre-conceptions you had about your real father (that he abandoned you) have vanished and are now replaced with questions about what would have been.  Then, you set […]

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Abuse of Power of Attorney

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

Power of Attorney Abuse is on the Rise. A power of attorney is a document that transfers legal authority to another person. The person granting the power of attorney is called a principal who gives another, known as the attorney-in-fact, the written legal authority to make decisions on a specific, narrow or broad range of topics. The potential for wrong doing exists in the power of attorney relationship through fraud, theft, improper transfers, self-dealing, improper gifting and retitled accounts and beneficiaries. Power of attorney holders can change beneficiary designations and account titles so the heirs are left with little to no inheritance. A power of attorney can also be abused when dealing with life insurance, annuities, bank accounts, joint accounts or pay on death accounts. Typically, an attorney-in-fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the power of attorney. An attorney-in-fact, however, […]

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Florida Wrongful Death and Probate

Written by on Apr 4, 2011| Posted in: General

Wrongful Death Suits during the Florida Probate Process In many probate cases that come to our office, we discover that the decedent died under somewhat unusual circumstances (medical malpractice, automobile accident, etc.) that may give rise to a wrongful death law suit.  Sometimes the filing of a wrongful death suit may be warranted during the pendency of the Florida probate process.  For example, we recently had been representing a client for relatively standard estate administration.  During this administration, a hospital filed a claim against the estate for an exorbitant fee for the one day of medical services they provided to the decedent who died while at this hospital.  After requesting and reviewing the itemized medical bill and records, we uncovered that the decedent died during a routine medical procedure, possibly due to the negligent act of the medical provider.  In order to bring a wrongful death suit, you must show […]

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Best Florida Probate Attorney

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

Who is the Best Florida Probate Attorney? A friend recently asked, “who is the best Florida probate attorney?”  While there are certainly some preeminent attorneys practicing in the area, the concept of “best” is subjective.  The question would be better phrased as “which probate attorney would best meet my needs?” When interviewing a lawyer to determine whether he or she can represent you in a estate, the best gauge of whether you are hiring the best probate attorney for you is to look at the level of education, length of time as a lawyer and the area of legal concentration.  The last is perhaps the most important factor of all when deciding which probate lawyer is best for you.  For example, not long ago a lawyer on the other side of a case was representing his client in a Will contest and my firm was defending.  The lawyer on the other side was struggling with […]

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