Articles Posted in Probate Litigation

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

If you are estranged from a parent and he or she does, can you expect an inheritance? The answer is: Not automatically. probate litigation attorney

Just because one is the biological child of a decedent does not necessarily in and of itself entitle that child rights to stake a claim on their mother or father’s estate.

No one is under any legal option to leave adult children – or anyone else – anything from their estate. Minor children are handled differently under the law, as the state recognizes they are entitled to a certain degree of support that might otherwise have been given had the decedent lived. But there is no guarantee of the same kind of expectation for children over the age of 18.

This is where an experienced probate litigation attorney should be called in, to examine whether there was a will or trust and if so, what the language of that document indicates. If these documents exist but there is no specific mention of a child – estranged or otherwise – or indication the parent intended to leave that person out of the will, that child may have the basis to pursue probate litigation to plausibly assert the conceivable allegation that the parent simply “forgot” about them.  Continue reading

There are copious amounts of information available online about do-it-yourself estate planning. But just because you can doesn’t mean you should, the same way it’s always a bad idea to represent yourself in court – even if you’re an attorney. This is not a leaky shower repair you may be able to amble your way through – this is your financial future, and the best means you have of keeping yourself and your loved ones out of probate litigation. probate litigation attorney

Although reason it’s better to have something than nothing at all (64 percent of Americans don’t have a will – 55 percent of those being parents), the fact is if you are not experienced in handling these types of complex legal matters and anticipating certain contingencies, you may end up creating even more of a mess. Far too many people underestimate the complexity of their estate. It goes beyond simply divvying up the contents of a bank account. Everything – from identifying an executor or trustee to updating your beneficiary lists to gifting money to minors – all of these things require careful consideration.

Drafting your estate plan should come only after a well-thought-out estate and financial plan. If all you do is “fill-in-the-blanks,” that is not reflective of such a process. Further, one size does not fit all, and you also need to be sure that the document you have completed meets all the requirements for what is valid in your state. For instance, F.S. 732.502 requires two witnesses to properly execute a will in Florida, while Pennsylvania requires three. Further, these witnesses must sign in the presence of the testator and each other, which generally requires a self-proving affidavit. Usually, it’s the drafting attorney who signs these affidavits in your presence, but if you do-it-yourself on the internet, you won’t have this option. Continue reading

The Pew Research Center reported last year that a record 61 million Americans live in multi-generational households. That’s nearly one-fifth of the population. This means finances of aging parents, grandparents and adult children and grandchildren are sometimes intertwined. This does not necessarily mean that upon a loved one’s passing that debts will automatically be transferred to relatives, even those you live with. However, probate litigation attorneys in Fort Lauderdale recognize many people don’t fully understand the debts for which they may be responsible, and which they are not.probate litigation

In general, no person is responsible for the debts of another while the debtor is alive – or dead. There are exceptions to this, though. For instance, spouses are often held accountable for each other’s medical debts in life. Relatives who co-sign or are also listed on loans may be responsible – that goes for student loans, car payments, mortgages, credit cards, etc. In death, a debtor’s outstanding obligations typically become the responsibility of “the estate.” The estate consists of all property, savings and debts. The process is much easier if there is a living trust in place, but if not, probate is the process of sorting through how those debts will be paid off and how property will be transferred to living beneficiaries.

To protect their inheritance, family members may need to start dealing with debts before probate has officially opened. That means keeping current on those administrative bills (i.e., mortgage, HOA fees, property taxes, utility bills, storage fees, etc.) until the probate estate is opened, and sometimes until the estate closes. Then there are the “final bills,” which can include income taxes, cell phones bills, credit card bills and retirement accounts. Beneficiaries of an estate probably should not pay out these final bills until the personal estate representative/ executor has settled the estate. A probate litigation attorney can help you sort through the details and determine the best way to protect your inheritance while still ensuring the estate meets its obligations. Continue reading

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