Articles Posted in Probate Litigation

Hollywood theatrics have most people convinced there is some type of formal “reading of the will” in which all concerned parties gather around the desk of a wills and trust attorney’s desk to hear what each has been bequeathed.Fort Lauderdale wills and trusts lawyer

In reality, there isn’t any legal mandate requiring said records to be read aloud. Rather, what happens is a Florida wills and trusts attorney will review these records to ascertain who is entitled by law to receive a copy of the trust – and who probably should be sent a copy even if state law doesn’t require it.

Trusts aren’t considered public record, and thus trustees may deny a contesting party’s request to review certain records. However, that decision could be challenged in court, particularly when those documents are central to the basis of the will contest.

In plain English: If the named trustee refuses to produce copies of the will and documents pertaining to the trust, you can take it to a judge. Continue reading

After several attempts to upload electronic wills in Florida, a measure approving them has passed and will go into effect Jan. 1, 2020.electronic will lawyer

HB 409 amended numerous sections of the state probate code pertaining to wills.  Florida’s e-will law:

  • Redefines the term “will” to conform to the changes made in the act;
  • Exempts e-wills from provisions that govern revocation of wills and codicils;
  • Lays out the manner by which e-wills and codicils can be revoked;
  • Defining e-wills and establishing how it has to be executed;
  • Outlining the requirements and duties necessary to serving as a qualified custodian of an electronic will.

Undoubtedly, there will be concerns about vulnerable adults, and it will be imperative for Floridians to contact an experienced probate litigation attorney regarding their rights and responsibilities where electronic wills are concerned. Continue reading

A dispute between aunt-nephew over the validity of their father-grandfather’s half-signed will has resulted in a Florida appellate court ruling affirming state law mandating wills strictly adhere to all statutory requirements – or else they’ll likely be deemed invalid. The case underscores a point of critical importance when planning your estate: Have an estate planning lawyer help you. Otherwise, you may leave loved ones with little choice but to pursue probate litigation.probate litigation lawyer

There are a lot of areas of state law that allow a fair amount of judicial discretion. Florida will execution is one area where judges don’t have a lot of wiggle room.

Wills that do not strictly comply with Fla. Stat. § 732.502(1) or other provisions of that statute will likely be deemed void. There has been ample case law on this issue because disputes have arisen on almost every detail:

  • “Can a will be signed with a mark rather than a signature?” (Yes.)
  • “Does the testator’s signature need to be on every single page of the will?” (No.)
  • “Does it matter in which order the witnesses sign the will?” (No.)

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You may have already had concerns that someone you know was exploiting an elder relative financially while they were alive. Now that they are gone, it may now be confirmed or you are just now beginning to grasp the full scope of it. Fort Lauderdale probate litigation lawyers know this happens more often than you might think. Florida probate litigation lawyer

The AARP reports roughly 3.5 percent of all older adults suffer some form of financial exploitation (actual numbers likely higher as not all cases are reported) costing more than $2 billion annually. (The Elder Financial Protection Network puts it at closer to 10 percent.)

It’s worth consulting with a probate attorney, even if you don’t plan on hiring one. It’s essential because your time to legally act and contest a will is very brief, so it’s best to preserve your challenge to a will early on if there is any chance you might do so. In the case of elder financial exploitation prior to death, your attorney will most likely assert some form of undue influence as grounds for contesting a will. Continue reading

Sometimes family relationships don’t always go the way we hoped. Although the emotional fallout of this can be messy enough, Fort Lauderdale estate lawyers know it can get even dicier when it comes to the question of inheritance – or disinheritance. Fort Lauderdale disinheritance lawyer

The fact of a biological tie is not necessarily a guarantee that one will be entitled to an inheritance in Florida. The first question will be whether the decedent had a will.

As noted in Part 1 of Chapter 732 of Florida Statutes on Wills and Succession, if a person dies intestate (with no will), biological children are among the first in line to collect an inheritance, aside from one’s surviving spouse.

Florida Inheritance Rights of a Biological/Adopted Child: Limited

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What happens if someone dies in Florida without a will? Fort Lauderdale probate litigation lawyer

A recent survey by the AARP revealed 60 percent of American adults do not have a will and are not planning for the end of their lives. Some of this is dictated by age. For instance, among those between ages 53 and 71, roughly 58 percent do have estate-planning documents. Among those older than 72, more than 80 percent have a will. Although most Americans live past the age of 40, there is never a guarantee.

That’s why our Fort Lauderdale probate attorneys want to stress the importance of a will for everyone over the age of 18 – even if you don’t think it’s not necessary because you’re married and assume all of it will go automatically to either your spouse or children.

The process of probate itself can consume a portion of those assets, and disputes that arise between potential heirs certainly will too. Continue reading

When it comes to the Florida probate litigation statute of limitations, one might generally presume reading F.S. Ch. 95 that they have about four years to file a case. However, as our Fort Lauderdale probate litigation attorneys can explain, trust cases in particular almost always follow something called equitable law.undue influence probate litigation

Equitable strives for equal, but in the case of some breach of trust cases, our Fort Lauderdale probate litigation attorneys have seen this mean as little as 6 months… Or it could mean you have as many as 40 years.

In the case of undue influence, however (which is the most common grounds for a Florida will contest), your limitations period again is usually four years. At most, however, it can be up to 12 years. This is thanks to something called the “delayed discovery doctrine.” Continue reading

Absent the assistance of an experienced Fort Lauderdale special needs trust attorney, your dependents with special needs will be at the mercy of the state to ascertain their eligibility for public assistance benefits as well as their entitlement to your estate. Fort Lauderdale special needs trust attorney

If you have a child – minor or adult – who is physically or mentally impaired and therefore cannot earn an income and be self-sufficient, it is in their best interest for you to establish for them a special needs trust. This ensures they will receive Supplemental Security Income (SSI), SSDI, Medicaid, Medicare and other support programs when you die and are no longer able to provide daily care and support.

It is imperative to discuss these elements with a South Florida estate attorney because the reality is, if you – with the best of intentions – leave your child with more than a certain amount of assets, either in your will or through a trust – you might inadvertently disqualify him or her from eligibility to receive public benefits. If you have a substantial estate to allow your special needs child or loved one to live comfortably – and also cover medically necessary treatment – this may result in your child ending up in a difficult situation. As our Fort Lauderdale probate litigation attorneys can explain, even a relatively small inheritance from you could result in your adult child becoming ineligible to receive government benefits that may otherwise better cover their needs.  Continue reading

Our Fort Lauderderdale probate lawyers are occasionally asked by individuals whether they are too late to contest a will or take action if an estate was mistakenly or fraudulently administered. The answer will depend on the exact circumstances of the situation, but know that the time window for asserting a challenge is typically very short.conversation-300x300

In many cases, to contest a will in Florida, you will have just three months (90 days) from the time you receive a document called a “Notice of Administration.” This document is most often served on surviving spouses, beneficiaries trustees (if there is a trust) or those who may be entitled to exempt property under state law. This is outlined in F.S. 733.212(3). Failure to file an objection within that three month window means those claims will thereafter be forever barred. This usually applies to cases pertaining to will contests challenging the validity on the basis of lacking mental capacity or undue influence.

Further, all objections to a will’s validity – for any reason – must be filed no later than one year of the entry of an order of final discharge of the personal representative or one year after service of notice of administration. The only circumstances under which this timeline can be extended is if you assert misconduct, fraud or misrepresentation.  Continue reading

Not every estate of every decedent in Florida is going to wind up in probate court. As Fort Lauderdale probate attorneys can explain, it’s only when an estate gets somehow “stuck” in the process that administration through probate becomes necessary. One of the most common reasons an estate ends up in probate? The decedent never paid bothered to designate a beneficiary on basic banking and retirement accounts. If a person dies and no beneficiary is named or the form wasn’t updated to reflect new beneficiaries, that estate will likely need to go through probate if the contents are going to be appropriately released to heirs. Fort Lauderdale probate lawyers

Most people assume that any kind of estate planning solely involves the creation of wills and trusts and that probate litigation involves parties warring over who-gets-what. However, a fair amount of cases that wind up in probate involve some type of bank account or retirement account that didn’t list any designated beneficiary. Determining who has access to those accounts can be dicey.

A designated beneficiary on one of these forms is critical because not a will or even a court order will trump it. The accounts will be distributed according to the decedent’s designated beneficiary form.  Continue reading

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