Florida Probate Blog

ADDRESSING THE ISSUE OF CREDITOR CLAIMS FROM THE VIEWPOINT OF THE PERSONAL REPRESENTATIVE One of the significant issues a Personal Representative of an Estate needs to address is that of the claims against the Estate by creditors. To administer an estate in an orderly manner, the Personal Representative must ascertain what debts and claims are to be paid by the estate, because no assets should be distributed until the Personal Representative is certain that these debts and claims can be paid. Florida Statute 733.212 states that “the Personal Representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent or unliquidated.”  A diligent search must be undertaken, and such a  search depends on the familiarity of the Personal Representative with the decedent’s affairs. It should include a careful review of the defendant’s […]

Fla. Stat. § 732.518 provides that “[a]n action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.”  Essentially this means that interested persons cannot contest a will until after the death of the person who made the will.  But what if you know that your elderly family member or loved one has been taken advantage of by a caregiver and you want to protect him or her now? Fortunately, the Florida Legislature has provided a means of not only protecting vulnerable, elderly adults, but also punishing those who exploit them for personal gain.  Fla. Stat. § 415.1111 provides a civil cause of action against a caregiver or person who stands in a position of trust and abuses that trust through neglect, deception, or intimidation in order to defraud […]

Mental Inequality as a Factor in Undue Influence Lawsuits As most probate litigators will acknowledge, one of the primary arguments for revoking a Will is that it was procured through the undue influence of another.  Florida courts have defined “undue influence” as over-persuasion, duress, or coercion by one over the settlor of a Will to such a degree that the Will reflects the wishes of the undue influencer as opposed to the settlor.  A key component in assessing and determining the merits of an undue influence claim is whether there existed a substantial and cognizable inequality between the mental sharpness between the settlor of the Will and the alleged undue influencer.  Although medical and mental health records are often reviewed and submitted for evidence in such cases, this factor of ‘mental inequality’ is different than alleging that the settlor lacked testamentary capacity to execute such a Will in the first […]

Proving that a will was procured by the undue influence of another can sometimes be difficult.  Often, this type of conduct occurs in secret, away from the watchful eyes of family and loved ones and involves the victimization of an elderly, ill person at the hands of someone he or she trusts.  Florida law recognizes this realty and the legislature has provided a means by which plaintiffs may not only prove undue influence, but also shift the burden of proof so that that defendant must offer his own evidence. Fla. Stat. §733.107 provides that, when contesting the validity of a will, the burden of proof shifts.  First, the proponent of the will, i.e. the defendant, must establish that the will was properly executed.  If the defendant initially proves that the Will was signed and properly witnessed, then the burden to prove undue influence shifts to the plaintiff.  Fla. Stat. § […]

It has come to our attention that an individual claiming to be Attorney Adrian Thomas is contacting people around the country about buying and selling time shares.  This is a SCAM.  Do not give this individual any information about you or about your bank accounts.  The man calling leaves a message that he is “Attorney Adrian Thomas” calling about timeshares and leaves the following callback numbers:  321-200-0097, 321-250-6903, 321-250-9121.  Directions are sent to send money to the Dominican Republic via Western Union.   The matter has been reported to the Federal Bureau of Investigation and the Federal Trade Commission.  If you are contacted by someone claiming to be Attorney Adrian Thomas about a timeshare, please provide this office with the information so we can pass it along to the FBI. If you have lost money through this scam, please log on to www.ic3.gov to file a complaint with the FBI. Thank you to those of you who took the […]

Can a court consider extrinsic evidence when asked to modify a trust under the judicial modification statutes even if the trust instrument is unambiguous?  YES! Historically, common law rules of construction provided that the intent of a settlor of a trust should be ascertained from the “four corners” of the trust and that extrinsic evidence of the settlor’s intent should only be considered if there was an ambiguity in the trust instrument.  The effect of this common law rule was that a trustee or beneficiary seeking to modify the terms of the trust would only be permitted to do so if the court found that the trust, or a portion thereof, was ambiguous.  Absent ambiguity, the court was unable to consider any other evidence of the settlor’s intent and the beneficiaries were stuck with whatever the trust said on its face.  The old analysis changed when Florida adopted the Florida […]

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Florida Statute § 736.0406 Effect of fraud, duress, mistake, or undue influence.— If the creation, amendment, or restatement of a trust is procured by fraud, duress, mistake, or undue influence, the trust or any part so procured is void. The remainder of the trust not procured by such means is valid if the remainder is not invalid for other reasons. If the revocation of a trust, or any part thereof, is procured by fraud, duress, mistake, or undue influence, such revocation is void. In 2006, the Florida legislature passed into law the new Florida Trust Code. Of the numerous provisions codified into statute under Chapter 736, about 40% were found in prior Florida law, while roughly 60% were based on the Uniform Trust Code, a non-binding, model legal code utilized to form the basis for various state laws throughout the country.  Although comprehensive in scope, Chapter 736 does not purport to address […]

People create trusts for a variety of reasons.  Some create them for creditor protection.  Others create them because they are concerned about providing the beneficiaries with large sums of money all at once.  Although these reasons may be valid and appropriate at the time that the trust is created, what happens if that purpose is no longer in existence?  What if there is a substantial change of circumstances that causes the trust to be inconsistent with the settlor’s purposes (i.e. to benefit the beneficiaries)? Fla. Stat. 736.04113 states, in relevant part, as follows: Upon application of a trustee of a trust or any qualified beneficiary, a court at any time may modify the terms of a trust that is not then revocable in the manner provided in subsection (2) if: The purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impractical to fulfill; Because of […]

What rights does a divorced spouse have to inherit from a former spouse’s estate? Fla. Stat. § 732.703 became effective in 2012 and concerns beneficiary designations on life insurance policies, annuities, IRAs, 401ks and other employee benefit plans.  The statute is perceived as a legislative reaction to some decisional case law and also to the problem that surfaced when divorced clients never returned to their estate planning attorneys to revise their estate planning documents and beneficiary designations. The statute provides: § 732.703. Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death. (1)  As used in this section, unless the context requires otherwise, the term: (a)  “Asset,” when not modified by other words or phrases, means an asset described in subsection (3), except as provided in paragraph (4)(j). (b)  “Beneficiary” means any person designated in a governing instrument to receive an interest in an asset upon the death of […]