Articles Posted in Probate Litigation

Florida probate law pretty clearly establishes the right of children to inherit a portion (or all) of a parent’s estate when he or she dies without a will (intestate estate). Further, Chapter 732 of Florida Statutes doesn’t make any distinction indicating a child born out-of-wedlock is any less entitled to an inheritance than one born to parents who are married. However, in a case where it is the father who has passed and the child was born out-of-wedlock, paternity must be established in order for that child to receive that inheritance.probate litigation

Generally, there are two ways this happens:

  • A court order, typically following some type of biological testing.
  • A signed acknowledgment by the father while he was alive.

A recent Florida case raised an interesting question that could be applicable to future probate litigation cases involving intestate estate where paternity is disputed. The Florida Supreme Court recently weighed in on the question of whether one can establish paternity when someone else is already presumed so by law. Continue reading

No one would dare question the late Aretha Franklin’s claim to the Queen of Soul title. However, claims to the estate she left behind may be a bit more difficult to establish. That’s because the “Rolling in the Deep” singer died without leaving a will. probate litigation lawyer

Legally, this is referred to as intestate property. In Florida, we has a statutorily established intestate succession procedure, as outlined in Chapter 732 of Florida Statutes. It’s basically a default guideline for how ones property can lawfully be distributed when someone either dies without a will or whose will has been deemed improperly devised. An individual’s right to the estate and in what proportion is specified based on his or her relationship to the decedent, as well as those of other claimant. It’s important to point out that Florida intestacy could be either partial or whole, depending on whether a person’s will is non-existent/ invalid OR whether only some portions were generated/ validated.

There are a lot of scenarios outlined in an effort to make the process as streamlined as possible. However, if you are a claimant in an intestate property case, it’s wise to have a Fort Lauderdale probate attorney who can help you navigate it with more ease and ensure you receive your fair share. Florida probate litigation laws are lengthy and complex and/ or subjective in several areas, so it’s best to have someone advocating for you in proving your claim is best aligned with your loved one’s wishes.  Continue reading

Family inheritance is slated to be a major legal battlefield in the coming years, as it is estimated approximately $30 trillion will be inherited over the course of the next 30 years. Inevitably, that’s going to mean descendants – children and grandchildren – will be squabbling over their fair share by contesting Florida wills.Florida will contest

What Drives a Florida Will Contest?

While there are those who may feel unjustly entitled, another catalyst setting the stage for significant fights over inheritance is the fact that many adult children and grandchildren have not been able to save sufficiently for their own retirement. Some may have been living under the assumption that an inheritance will fund their retirement, while others, thanks to stagnant wages and student loan debt, have simply not been able to scrounge enough together to live beyond paycheck-to-paycheck. Also contributing is the fact that those who were raised between the 1960s and 1990s are increasingly having to take on caretaking responsibilities of dependent parents, which can also sap their financial resources.

Elder adults may wish to help ward off some of these conflicts by having frank discussions with their children and grandchildren about what is available and the plans for distribution. Exact dollar amounts and an itemized breakdown aren’t necessary, but it’s important to make your wishes clear. Continue reading

The Florida court system allows for professional guardians to be appointed for those who are “incapacitated.” As defined by Florida law, a person who is incapacitated is an adult who has been determined by a court to lack the mental capacity to manage at least some of his/ her property or to meet at least some essential health and safety requirements on their own. It’s a process that is outlined in Chapter 44 of Florida StatutesFlorida guardianship attorney

As noted by the Florida Bar, any adult can petition the court to decide the incapacity of another person, establishing their case with factual information. As the case proceeds, the court will appoint a three-member committee (typically two doctors and some other expert, depending on the nature of the case). There is usually some type of examination of physical health and mental health as well as an assessment of one’s ability to function. The person alleged to be incapacitated will have an attorney appointed to represent them during these proceedings (though they are free to hire their own, if they choose). After analysis, the panel will submit their own report of findings to the court.

If two of three panel members conclude the individual isn’t incapacitated at all, the judge has to dismiss the petition. However, if the majority finds the person can’t exercise certain rights on their own, the court will schedule another hearing to determine whether the individual is partially or totally incapacitated. At the end of those proceedings, a guardian will be appointed at another hearing, unless there is some other alternative that is less restrictive.  Continue reading

It is an unfortunate reality that some people have no qualms using undue influence for the purpose of obtaining “gifts” from an individual who is elderly, ill or weak. Our Florida probate attorneys have seen these cases arise most frequently in cases involving nursing home residents, elderly parents or ailing grandparents. Those who allege “undue influence” (which is a specific charge in probate litigation) are usually surviving loved ones doing so with the intention of challenging the validity of a lost loved one’s will, trust or inter vivos transfer (transfer of property made during one’s lifetime).probate litigation

Proving undue influence is not a simple matter or low bar. One has to prove that the victim’s mind was “so controlled or affected by persuasion or pressure, artful or fraudulent contrivances or by the insidious influences of persons in close confidential relations” that he or she isn’t knowingly or voluntarily acting of their own accord, but instead carrying out the will of someone else. This was outlined in the precedential 1925 Florida Supreme Court case of Peacock v. Dubois.

In most cases, it is the plaintiff asserting undue influence who typically has the burden of poof. Prior to 1971, the burden of proof in these cases was reached with enough evidence to raise the undue influence presumption, at which point the proof burden shifted to the defendant, who then had to prove it didn’t occur. Then there was the key Florida Supreme Court case of Carpenter v. Carpenter, justices ruled that even the establishment of an undue influence presumption didn’t shift the proof burden to the defendant, at least as it pertained to will contests. About a decade later, the court decided the same rule in cases alleging inter vivos transfers. Continue reading

In an ideal world, our loved one will have written a valid last will and testament, and when he or she dies, the family will know where that will is and also know who was selected to executor of the estate.  The person chosen to be the executor (sometimes called an executrix if that person is a woman, or an estate administrator, or personal representative depending upon the state in which the will was drafted) will go the probate court and open an estate.

Broward Probate Lawyer The executor of the estate will inventory the estate and make an accounting of all debts and assets and provide notice to anyone who is listed in the will as a beneficiary, and also issue notice to all creditors who may still be owed money by the decedent at the time of his or her death. In many cases, the debt will be written off when the person’s whose name it was died, but in some cases, a creditor will still have a right to file a claim with the estate and collect money from the estate. Continue reading

Being left out of the will of a parent, grandparent or other loved one can sting emotionally, but you might not be completely without legal options. It’s important to discuss the circumstances with an experienced Fort Lauderdale probate lawyer who can help walk you through the possibilities. contest a will

Although sometimes there is little expectation of an inheritance due to long-term erosion of the relationship, for many adult children and grandchildren, the news can come as something of a shock. The decision of whether to take action is a difficult one and will probably depend at least partially on what the odds are you’ll be successful in obtaining an equal share or at least a fairly-negotiated settlement with the named heirs.

There are a number of ways you may be able to challenge if you are left out of a will, all of which are time-sensitive so getting a probate lawyer involved as soon as possible is an imperative. Continue reading

Probate courts in Florida have substantial amount of discretion when it comes to the decision of whether to re-open an estate that was previously closed. In most cases, a probate estate is reopened when new assets are discovered that weren’t discovered at the time the original estate was administered.probate attorney

There is a provision of Florida law, F.S. 733.903, that expressly allows this process, called “subsequent administration.” It states that a “final settlement” of and estate and the discharge of the personal representative does not prevent further administration of the estate. However, the law also states that an order of discharge won’t be revoked on the basis of a newly discovered will or later will.

However, if such action is going to be taken, it’s very important to consult with an experienced Fort Lauderdale probate attorney. Continue reading

A South Florida attorney has filed three lawsuits in Palm Beach County against his siblings – one trust, one probate and one tort – and another in Broward Circuit Court – alleging his siblings committed fraud in influencing their elderly mother to alter her previous estate plan and give them millions of dollars in gifts over the course of her life. In addition to his siblings, he named a brokerage firm (which had frozen all accounts from the estate), as it held accounts for both the family-owned real estate companies and his siblings. undue influence probate

The siblings’ father reportedly left behind a real estate of fortune of more than $100 million. By coercing their mother, plaintiff alleges, the siblings engaged in something called undue influence.

Undue influence happens when someone close to the person who has or is making a will manipulates or pressures that person to alter that will in some legally significant way. We see a lot of examples of undue influence in cases against caretakers, close family members, nurses, agents – even attorneys. These cases often are tough to build because we must show whether the alterations or transfers were consistent with the person’s previous statements of intent (verbal or written). The court will want to see whether the person who wrote the will (the testator) truly intended to make those chances that unfairly impacted the plaintiff. It would be their right to do so, and it’s still important to note that even if there is some evidence showing the person was susceptible to undue influence, we still need to show the actions were not the true intention or free will of the testator.  Continue reading

Some people consider estate taxes enemy No. 1 when it comes to their inheritance. However, what’s much more likely to become problematic is family conflict. These aren’t necessarily new issues, but they are becoming more prevalent as increasingly more American families are blended, life expectancy has stretched and baby boomers are aging into their golden years.probate litigation attorney

A recent poll by TD Wealth revealed 44 percent of attorneys, accountants and trust officers in Florida indicated family conflicts were the biggest snag when it comes to estate planning. Part of the problem is people have unrealistic expectations. While most expect to inherit more than $100,000, Ameriprise Financial reports most people receive less than that. Almost 7 in 10 of those expecting an inheritence were never told how much they should expect, which led to substantial confusion and conflict.

Another issue is people increasingly have multiple ex-spouses, one or both my have children from prior unions and one spouse may be much younger than the other. These are fact patterns we know have the potential to lead to trouble. Such is the case in probate litigation conflict in Indiana that the state supreme court in Indiana has just agreed to consider. In Gittings v. Deal, an adult woman claims she was removed from her father’s estate by her stepmother, and subsequently her stepbrother raked in more than $3 million in profits on property she claims they should have shared.  Continue reading

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