Articles Posted in Probate Litigation

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

“Electronic wills are coming, whether lawyers like it or not,” blared a recent Forbes Magazine headline. The tone implies this is a definite “don’t like” for Florida estate lawyers. There is truth to this, but not for the reasons one might presume. Fort Lauderdale estate attorney

Electronic wills, or e-wills, are boilerplate legal documents purchased online, electronically signed and for a fraction of the cost of visiting an estate planning attorney. (These documents also exist for things like Florida power of attorney, health care power of attorney and even prenuptial agreements, but each is a separate discussion).

The presumption is estate attorneys may have their feathers ruffled that potential business is going to a bot. However, the real reason so many Florida estate attorneys are concerned about the prospect of widespread e-wills is their potential for serious error, abuse and fraud.

The worry is that this could lead to a substantial uptick in otherwise preventable Florida will contests (where the validity of a will is challenged on grounds like undue influence, fraud, lack of capacity or lack of formalities). Objectively by comparison, estate planning services are generally less expensive-time consuming.  Continue reading

Working hard your whole life, sacrificing, saving, investing wisely and also managing by acumen, sheer dumb luck or some combination to avoid pecuniary pitfalls that might otherwise have left you practically penniless, of course you want as much of your estate as possible to reach the people and causes that matter most to you. That means in part avoiding probate if you can and minimizing the tax hit your heirs will take on whatever gifts they inherit. Ensuring the most expedient possible estate transition usually involves (at minimum) some combination of a will and a revocable and/ or irrevocable trust.Fort Lauderdale probate lawyer

Occasionally our Fort Lauderdale probate attorneys are queried about a the prudence of early inheritance, also referred to as pre-death transfers and gifts prior to death. The short answer is: It really depends, but it can be very risky.

There are a number of factors to consider when weighing early inheritance as an option. Let’s say we’re talking about transfer of your Florida home. The reason we’ve heard most commonly cited for sharing or transferring the deed of a Florida residence to children or grandchildren before death is that heirs are then spared cumbersome estate taxes and potentially draining probate litigation. Perhaps, the homeowner thinks, they can safely bypass Florida estate planning altogether with this option. However, early inheritances really should be avoided least until you’ve discussed it at-length privately with your own estate planning attorney. Get a second opinion if you still aren’t convinced. Because while savings for an heir could prove worth it, the elderly benefactor may be taking a major risk. Sometimes, even the most loyal, honest heirs can end up making a mess of things, even unintentionally.  Continue reading

For decades, native Floridians commented on how it seemed “everyone” was moving to South Florida. Recent data lends some truth to that. As Palm Beach probate attorneys, we encourage those who are relocating to Florida from across state lines to consider meeting with a local probate lawyer to review important estate planning documents, such as wills, revocable living wills and durable powers of attorney.Palm Beach probate attorney

As the new year kicks off, it’s a great time for all Floridians – but especially those who moved to Florida in 2018 or within the last couple years – to review their important documents, ensure personal representatives and powers of attorney are up-to-date and that wills and trusts reflect your true intentions and align with Florida law.

An analysis of U.S. Census data by the National Association of Realtors found the No. 1 most common migration pattern in the U.S. was New Yorkers moving to Florida – some 33,400 between 2011 and 2016. Another 16,400 moved from New Jersey, 12,500 from Pennsylvania, nearly 9,000 from Michigan and about 7,800 each from Ohio and Illinois. Many are lured not just by Florida’s beautiful beaches, but also the low personal income tax rate. It’s the most popular destination for people from northern East Coast and Midwest states.  Continue reading

An increasingly common issue sprouting up in Fort Lauderdale probate litigation is prenuptial agreements. These agreements, also sometimes referred to as premarital agreements, are those made by couples prior to marriage that concern the ownership of respective assets should the marriage fail. However, Florida probate lawyers know they can also include virtually any right or interest in any present or existing property rights – including stipulations such as alterations of an existing will. As long as there is nothing in the contract that violates the law or affects the right of child support, the parties can pretty much contract for anything they want. Florida undue influence lawyer

The American Academy of Matrimonial Lawyers reported that in a national survey, more than 60 percent of top family law attorneys have seen an increase in the total number of prenuptial agreement requests over the last three years, many saying millennial newlyweds were a significant driver of the uptick, though older generations too are securing these agreements, particularly in second or subsequent marriages. The reason for the latter, the AAML noted, was because older couples have more assets to protect.

A recent Florida probate case involving a prenuptial agreement was weighed by Florida’s Fourth District Court of Appeal. The spat was between decedent’s son and his wife over the way the estate was administered.  Continue reading

Many people may have mixed emotions when they receive word about the death of an ex-spouse, but they generally don’t expect to end up embroiled in probate. This can occur, though, when there are loose ends on finances, assets and property. Ideally, Miami probate lawyers know these matters would be cleanly settled years earlier in the divorce agreement, but sometimes, depending on the circumstances, it’s not possible for former spouses to entirely extricate themselves financially when the marriage dissolves. Miami probate lawyers

This was the case before a Florida probate court and later Florida’s Third District Court of Appeals, which was tasked settling issues that arose when a former wife and the estate of her recently-deceased (but long-time divorced) ex-husband disputed financial claims and rights to a residence in which they had both been long-time co-tenants. Both the estate and surviving ex-wife consulted with Miami probate lawyers to help them duke out the details.

Per court records, here’s what happened:

More than four decades ago, when the pair were still married, they purchased a property in Miami-Dade County and resided there together as husband-and-wife. Then, in 1986, the husband moved out of the residence, and the wife continued to live there. The marriage wasn’t legally dissolved until 10 years later, in 1996. The husband never moved back into the home, though he did occasionally come by for mail. But otherwise from that date until husband’s death in January 2010 in the Haitian earthquake, the exes held title as “tenants in common,” each having a 50 percent undivided interest in the property, though wife had exclusive occupancy. (In 2005 the wife’s mother also moved in, becoming a second occupant.) Continue reading

When a person dies and there is more than one will, it can come as a surprise to family. No matter which side you’re on, you will need to discuss your options with a Florida probate lawyer. A careful investigation will be necessary to determine whether a will contest is appropriate. It may be that one of the wills produced has a clear claim, or it may be necessary to initiate probate litigation to assert the validity of one will over another. Fort Lauderdale probate lawyer

Many people understand the importance of updating their will and other estate planning documents when important life events occur, such as when there is a marriage, birth, death or major falling out or formation of new romantic ties. Wills can be updated and recipients of certain assets can be modified. That’s why it’s not unheard of to have two or more versions of the same will. The problem with having numerous wills is that it can ultimately result in the assets of the testator (creator of the will) not being distributed according to his or her desires. A Fort Lauderdale probate lawyer can explain in more detail, but generally, the courts will seize on the most recent version of the will. Ideally, all copies of the previous version of the will would be destroyed and the updated version should distributed to all concerned so there is no confusion. Of course, real life is rarely so tidy, and Florida will contests are fairly common.

These were the facts of the case in a matter before Florida’s 4th District Court of Appeal, though the exact issue before the court was whether a plaintiff’s claim should be dismissed for a technical defect. (This is another reason you should have a Fort Lauderdale probate lawyer on board – to ensure you don’t miss any key filing deadlines and that all claims are properly pleaded.) Continue reading

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