client portal
  • 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

Doctrine of Dependent Relative Revocation

Written by on Sep 30, 2010| Posted in: General

When a person (testator) makes a last will and testament, it is customary that the will contain language that the new will revokes any and all prior wills signed by the testator.   The Uniform Probate Code holds that a new will can revoke prior wills even though it contains no other provisions stating that prior wills have been revoked.  If a person signs a new last will which revoked all prior wills, and destroyed all prior wills by burning, cancelling, tearing or obliterating them, then all prior wills would be deemed revoked.  Should a person die and the newly signed will was missing with no copies to be found, then the testator would be deemed to die intestate, or without a will. On the other hand, if a person dies, and the most recently signed last will and testament is found to be invalid for any reason, such as undue […]

read more

Convenience Account or Inter Vivos Gift?

Written by on Aug 15, 2010| Posted in: General

A LESSON IN TRUST… We often come across cases in which a Will or a Trust leaves assets equally to all of the Decedent’s children. However, at the time of death, most of the Decedent’s assets are held in joint accounts with only one of the children named as a joint owner, thereby entitling only one child to the entire account as the remaining joint owner and avoiding the equal distribution that the parent planned through his or her Will and/or Trust. Unfortunately, the account title tends to control, despite the understanding that the child receiving the account as joint owner had been placed on the account for convenience purposes only to help mom or dad pay bills, as needed; not to receive all of the assets upon their death. Parents believe their children would never cut out their siblings but this is sadly not always the case.

read more

Can Step Children Inherit Property in Florida?

Written by on Aug 10, 2010| Posted in: General

A recent case from the 5th District answers the question of when, and under what circumstances, can step children take an inheritance and disinherit lineal descendants.  See Timmons v Timmons  35 Fla.L.Weekly D1264 (Fla. 5th DCA Case No. 08-4103).  When Frank died in 1999, he was married to Myrtle and had two adopted children from a previous marriage.  Myrtle had four children, none of which was ever adopted by Frank.  Frank created two trusts, a family trust and a marital trust.   Myrtle was the sole income beneficiary of the trusts during her lifetime, and upon her death, the marital trust was to pour over into the family trust.  The marital trust provided that upon Myrtle’s death, the trust’s remaining principal would pour over into the family trust and be distributed in accordance with the terms of the family trust.  The family trust provided that upon Myrtle’s death, the trust assets were […]

read more

Elective Share Contribution Obstacles

Written by on Jul 29, 2010| Posted in: Probate Litigation

While election and determination of elective share may not pose a problem, enforcing contribution from beneficiaries can. Under the Florida Probate Code, when a person’s spouse dies, the surviving spouse has the right to take an elective share pursuant to Florida Statute § 732.201.  An elective share is essentially Florida’s way of insuring that some money or property is left to the surviving husband or wife. The elective share estate includes not only probate assets but many assets which are designed to pass outside the probate estate.  Pursuant to Fla. Stat. § 732.2065, the elective share is equal to 30% of the elective estate.  A significant amount of litigation occurs regarding the elective share. 

read more

Notice to Creditors

Written by on Jul 6, 2010| Posted in: General

DETAILS ON NOTICE TO CREDITORS IN FLORIDA PROBATE ESTATES             The Personal Representative of an Estate must promptly publish a Notice to Creditors pursuant to Florida Statute 733.2121.  The Notice should contain the following: 1)    The name of the decedent; 2)    The file number of the estate; 3)    The designation and address of the Court in which the case has been filed; 4)    The name and address of the Personal Representative of the Estate; 5)    The name and address of the Personal Representative’s attorney; and 6)    The date of the first publication. 

read more

More than a Merely Perfunctory Matter

Written by on Jun 21, 2010| Posted in: General

Fourth District Reverses $1.6M Jury Verdict Because Lawyer Failed to Substitute Decedent’s Estate as a Party Litigation presents lots of surprises and traps for the unwary.  The consequences of failing to follow a seemingly-routine procedure can sometimes lead to horrific consequences.  An example of one of the plain and simple rules of litigation is that if a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party.  The motion must be made within 90 days or the action shall be dismissed as to the deceased party. The purpose of this rule is to facilitate the rights of persons having lawful claims against estates being preserved, so that otherwise meritorious actions will not be lost When counsel files a suggestion of death, opposing […]

read more

Power of Attorney

Written by on May 19, 2010| Posted in: General

How Much Power Does a Power of Attorney Really Give? As probate and trust litigation attorneys, day in and day out, we deal with claims for undue influence, lack of testamentary capacity, and improper execution of testamentary documents.  However, one issue that comes up periodically but often overlooked, is the breach of fiduciary duty by an attorney-in-fact by improperly using a power of attorney.  Often, a power of attorney is used to the detriment of the principal, and by extension the principal’s heirs.  It is standard practice for estate planning lawyers to recommend and prepare a durable power of attorney as part of a client’s estate planning package, as it is important for a mechanism to be in place so the principal’s family can manage his/her financial affairs in the event the principal becomes incapacitated.

read more

Being of unsound mind…

Written by on Apr 15, 2010| Posted in: Guardianship Litigation

Your mother’s incompetent to handle any of her affairs…but she can sign a new Will cutting you out! An interesting and potentially very difficult element arises in last will and testament contests when the testator has been declared incompetent.  Even though the lawyers in our firm focus their practice on the probate litigation and trust litigation issues,  we recently dealt with a difficult set of circumstances in a will dispute that underscored the importance of being able to prove the decedent’s mental capacity at the time of her signing her estate planning documents.  In this matter the decedent/testator had been appointed a plenary guardian, meaning her rights had been taken away and given to a guardian.  Our client had been separated from her family (all of whom resided out of state) and a recent friend had petitioned the Court for appointment of a guardian, which the Court approved.  While under […]

read more

ELDERLY EXPLOITATION vs CIVIL THEFT

Written by on Mar 1, 2010| Posted in: Estate Litigation

DISTINGUISHING DAMAGES SOUGHT BY FIDUCIARIES AND INDIVIDUALS UNDER FLORIDA STATUTES §415.1111 and §772.11 When trying to decide between which cause of action to file against a person who has committed financial exploitation against or theft from a vulnerable or disabled adult, one must first establish who has been damaged, the vulnerable or disabled adult themselves, or an individual with an expectancy in inheritance or other interest expected from the vulnerable or disabled adult, and whose expectancy or interest was lost or diminished as a result of the exploitation or theft against the vulnerable adult. Pursuant to Fla. Stat. §415.1111, “A vulnerable adult who has been abused, neglected, or exploited . . . has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” [reproduced below] The action may only be brought by the vulnerable adult, or that person’s guardian, by […]

read more

Substituted Parties

Written by on Feb 24, 2010| Posted in: Estate Litigation

What Happens When a Party Dies During a Lawsuit? One of the hotly-contested issues among Florida probate lawyers in the context of inheritance lawsuits involving beneficiaries of wills and trusts is whether and to what extent appellate courts have jurisdiction over orders entered in Florida lawsuits involving last wills and testaments and lawsuits involving Florida trusts, trustees and beneficiaries.  Generally, Florida Rule of Appellate Procedure 9.110, which governs “Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases,” applies to proceedings that seek review of orders in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”   The dissenting opinion in one recent case in the First District Court of Appeals in Florida dealt with the issue of whether the  a court’s determination of whether notice of was properly served […]

read more
Page 6 of 12 First...345678910...Last

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

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