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: Probate Litigation

Probate Litigation

Written by on Jul 13, 2011| Posted in: Probate Litigation

While most probate litigation involves challenging and defending wills and trusts, a recent case I handled dealt with the absence of an original will.  Florida probate law provides that when an original will that is known to have existed  cannot be located after the death of the testator there is a presumption that the testator destroyed the will with the intent to revoke it.  In other words, the law is presuming that a last will and testament is important enough to be kept in a safe place so it can be discovered after death.  However, in our firm’s case, the decedent was believed to have kept the original in his safe deposit box yet shortly after his death many potential intestate heirs had access to the safe.  An intestate heir is an heir who exists only when there is no last will and testament.  In our case, the decedent’s children from his first wife […]

read more

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 […]

read more

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 […]

read more

Florida Probate Litigation

Written by on Mar 29, 2011| Posted in: Probate Litigation

What is Probate Litigation? In Florida, probate litigation is one of the most hotly-contested areas of the law; here, surviving family members use the judicial system to correct an array of injustices. Probate is the legal process by which a person’s debts are paid and assets owned by the decedent are distributed upon death. Probate litigation frequently arises in the context of a Will contest.  When a decedent has created a Last Will and Testament and it is offered for probate, Florida law grants creditors and heirs various rights, privileges and limitations that must be strictly followed. Usually, Florida probate litigation is first considered by a client when they receive a Notice of Administration alerting them that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred. Probate litigation is the broad concept of challenging the contents of the Last Will […]

read more

Undue Influence Florida

Written by on Mar 27, 2011| Posted in: Probate Litigation

New tricks for an old dog? As the seminal case of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), turns 40 years old, a review of the holding is warranted to see if whether it is withstanding the test of time.  To prove undue influence in Florida, a will or trust contestant must show that the decedent was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust.  Often in undue influence actions, the first and second items are stipulated to, as it is appropriate that a substantial beneficiary may have a confidential relationship with a decedent. While not exhaustive, the Florida Supreme Court provided seven criteria in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971) in determining undue influence: 1) presence of the […]

read more

Lack of Capacity – Will Contest Florida

Written by on Mar 24, 2011| Posted in: Probate Litigation

What does it mean to have lack of mental capacity or lack of testamentary capacity? Lack of Mental Capacity or Lack of Testamentary Capacity claims are based on the testator’s lack of mental capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator has sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and Testament generally means that the Testator understood the nature and extent of his assets […]

read more

Florida Undue Influence Claim

Written by on Mar 23, 2011| Posted in: Probate Litigation

What is “undue influence?” Undue Influence claims challenge whether the testator made the Last Will and Testament freely and without being coerced by someone. An undue influence lawsuit relates to whether the decedent made his or her Last Will and Testament without being coerced by another person or persons. For example, a family member, friend, long-time employee, or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that person while excluding children, relatives and others who should receive the inheritance. Undue influence occurs when a person is compelled to perform an act (signing of a Last Will and Testament) as a result of improper pressure exerted upon him or her.

read more

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 […]

read more

Lineal Descendants?

Written by on Jan 12, 2011| Posted in: Probate Litigation

Are step-children considered “lineal descendants” of the decedent? A Florida appellate court recently held that the term “lineal descendants” does NOT include stepchildren.  Timmons v. Ingrahm, 36 So.3d 861 (Fla.Dist.Ct.App.2010). In the Timmons case, the decedent’s Will defined the term “children” to include the decedent’s adopted children and the children of his spouse, whom he had never adopted.  The Will went on to create two trusts – a marital trust and a family trust.  The surviving spouse had the right to withdraw principal from the marital trust (subject to some limitations) during her lifetime and upon her death all of the trust property was to be added to the family trust and distributed to the decedent’s children (as defined above).  Unfortunately, the decedent also gave his spouse a limited power of appointment over the family trust allowing her to appoint the trust property to the decedent’s “living lineal descendants.”  Naturally, […]

read more

Florida Probate Litigation

Written by on Jan 12, 2011| Posted in: Probate Litigation

What is probate litigation?  The word probate is an odd one, coming from the Latin word “probatus” which means “to prove.”  Originally, probate was the process to prove a Last Will and Testament of the decedent.  However, probate courts have expanded their jurisdiction to include guardianship and trust law, too.  So “probate litigation” encompasses guardianship, probate, and trust disputes My firm has handled hundreds of probate litigation cases over the past ten years.  With that experience, we have learned that in a probate litigation case the facts are always the same in a general sense, but have infinite variety as to the particulars. There is always an elderly person, usually alone, and a predatory relative, friend, or caretaker who takes advantage of the loneliness and dependency of old age. Probate litigation (remember that means estate, guardianship, and trust litigation) is a rapidly-developing area of the law in Florida. The large elderly population has created […]

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