Florida Probate Blog

 Remedies Available in Florida Courts Tortious interference with an inheritance is a relatively new but widely recognized tort that is currently accepted in Florida and half of the United States.  Many other states have reported cases from their state Supreme Court or appellate level addressing the tort, but declining to determine whether it is recognized.  Clearly, the trend is moving toward national acceptance and recognition of the tort. The importance of availability of the tort cannot be understated.  It serves many purposes, especially in Florida, where elderly and vulnerable adults are preyed upon by unscrupulous persons seeking to financially exploit Florida’s elderly citizens.    The tort provides a remedy in the form of money, a civil remedy, to a person who believes that another has wrongfully interfered with an inheritance.  The remedy is awarded by the civil court, not the probate court, and the money award is paid by the person […]

“The trust of the innocent is the liar’s most useful tool.”  Stephen King Our firm is contacted by many trust beneficiaries who have never received a trust accounting, and they are not aware of the fiduciary duties the Trustee of the trust has to the trust beneficiaries.  Often, the trust beneficiaries place faith and trust in the Trustee to administer the Trust in accordance with the law and what is morally correct.  They are surprised to find that the Trustee of a Trust has specific fiduciary duties to all of the beneficiaries of the trust, which include, but are not limited to the following: 1)     Under Florida law, a trustee has a duty to administer the trust in good faith, in accordance with the terms and purposes of the trust, and in the interests of the beneficiaries pursuant to Fla. Stat. § 736.0801. 2)    The Trustee owes the trust beneficiaries a […]

In the Florida Probate Code, the legislature has taken into account the various attorney’s fees and costs incurred during an estate or trust proceeding, including when there are contested matters and allegations of breach of fiduciary duty.  No attorney can guarantee that your attorney’s fees will be paid from the other side; however, there are several statutes that allow a petitioner to seek such financial relief. Fla. Stat. 733.106 states, in relevant part, as follows: (1)   In all probate proceedings costs may be awarded in chancery actions …. (3)   Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate. (4)   When costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid. Fla. Stat. 733.609 states, in relevant part, as follows: (1)    A personal representative’s fiduciary duty is the […]

Client’s often call Adrian Philip Thomas, P.A. to ask “how do I contest a Will?”  There are specific grounds and legal reasons needed to challenge a Will in Florida and a skilled Florida probate lawyer can provide guidance. First, the Will should be scrutinized to see if it was properly executed, witnessed and notarized.  In Florida, there are very specific laws regarding the formality of how a Will is signed.  It must be signed by the Testator and witnessed by two witnesses in the same room and the same time who actually witness the Testator executing the Will.  Each witness must sign in the presence of the other, and then the Will needs to be notarized. Second, under Florida law, the Testator is required to have the appropriate mental capacity to sign the Will.  This would include the Testator understanding the nature and value of his assets, who should inherit […]

If an individual elects not to execute a Last Will and Testament, then Florida law makes provisions for distribution of his assets at death.  One area where this is of particular note is Florida’s Simultaneous Death Law, found in Florida Statute § 732.601.  The Simultaneous Death Law is triggered when two (or more) people die and there is insufficient evidence that that the persons have died other than simultaneously.  This is common in fatal accidents, where it is not readily known which individual died first.  This can be important when it comes to determining the ownership of joint accounts (passes to survivor but who was survivor?), determining the correct beneficiary of a life insurance policy, or who takes under a Last Will and Testament. Under Florida Statute 732.601(1), “[w]hen title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property […]

When there are concerns that a loved-one may have limited mental capacity, it may be appropriate to petition the Court for implementation of a guardianship.  However, courts view guardianships as a last resort, and they will not usually grant them if there is a sufficient less restrictive alternative to guardianship.  Examples of these less restrictive alternatives would be a power of attorney, a healthcare surrogate, and/or a trust. Nevertheless, there are times when courts have to intervene and initiate a guardianship.  Once a petition to determine incapacity is filed, the court orders that three (3) examining committee members assess the alleged incapacitated person’s mental health and they provide recommendations to the court as to whether or not they believe that a guardianship should be initiated by the court. However, there has been some recent case law that may shed some light as to how strictly the court should consider these […]

A Fort Lauderdale Probate Litigation Lawyer may represent clients in connection with disputes arising over a Last Will & Testament.  There are several grounds for contesting a decedent’s Last Will & Testament, including: mistake in execution, undue influence, and lack of testamentary capacity.  In addition to Will contests, probate litigation may involve:  Will construction (interpreting the meaning of a Will), determination of heirs, elective share, breach of fiduciary duty, removal of fiduciary, surcharge (making a fiduciary pay back losses caused by his/her conduct), and accounting.  Each of these topics is discussed in greater detail at our website.  Just follow the links at the top of this page.   The Fort Lauderdale Probate Litigation Lawyers at Adrian Philip Thomas, P.A. represent clients in connection with all probate litigation matters, both prosecuting and defending.  If you or someone you know needs to consult with a Fort Lauderdale Probate Litigation Lawyer, call toll free […]

In trust litigation a dispute between a beneficiary and the trustee of a trust is not uncommon.  Florida law provides that a trustee of an irrevocable trust has a duty to inform and account to a qualified beneficiary pursuant to Fla. Stat. 736.0813.  However, what happens where a qualified beneficiary has never received an accounting and then seeks redress in Court for the actions of a trustee years later? The Third District Court of Appeal recently considered such a matter in Taplin v. Taplin, 88 So. 2d 344 (Fla. 3d DCA 2012).    In Taplin, the trial court dismissed a second amended complaint with prejudice filed by a qualified beneficiary against the Co-Trustees of a trust.  The complaint had sought an accounting, breach of trust removal of trustees and surcharge.  The dismissal was based upon failure to object within the six-month limitation period provided by Florida law (at that time Florida Statute […]

Under Florida law, prior to the appointment of a permanent guardian but after the filing of a petition to determine incapacity, a probate court may appoint an emergency temporary guardian (“ETG”) for the person and/or property of an alleged incapacitated person. Before the appointment of an ETG, the court must specifically find that there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired, which would be sufficient grounds for the appointment of an ETG of the person. Likewise, if the court determines that the person’s property is in danger being wasted, misappropriated or lost, then an ETG of the property may be appointed. Until recently, there was no clear guidance as to what effect the appointment of an ETG had upon the ability of the alleged incapacitated person to make changes to his or her estate planning, particularly in […]

A Power of Attorney is a writing that grants authority to someone to act in the place of the principal, whether or not the term “power of attorney” is actually used in that writing.  It is often used as an estate planning tool to avoid a guardianship proceeding should the person granting the power of attorney become incapacitated. The “agent” or person given the authority to act for a principal under a power of attorney can be designated as an agent, attorney-in-fact- or otherwise, and includes an original agent, co-agent and successor agent.  Fla. Stat. 709.2102 The agent named in a Power of Attorney may be any natural person who is eighteen years of age or older and of sound mind. In the alternative, a designated agent given a power of attorney may also be a financial institution having trust powers and a place of business in Florida and authorized […]