Articles Tagged with probate litigation

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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

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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

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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

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If you’re interested in filing a will contest in Florida, you do not have an unlimited period of time. The statute of limitations on will contests caps the amount of time in which you have to contact a Florida probate attorney and file any disputes as it relates to a will. Florida probate lawyer

This is the case with most legal issues in Florida, though the time at which your clock starts ticking may depend on a number of factors.

Unlike claims for things like personal injury or wrongful death, you have months – not years – in which to raise concerns.  Continue reading

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In Florida, a living trust (also known as an inter vivos trust) is one probably your best option if you want your estate to avoid probate after you die. Why does that matter? As our South Florida living trust attorneys can explain, it means more of your assets – the things you worked hard for during your life, the things you want to see preserved and passed on – will not only go straight to the individuals you want to see in receipt, less will go to court fees and the state of Florida.probate lawyer

In general, a trust is an agreement entered into by the person who creates the trust (settlor or grantor or trustmaker) and the beneficiaries of that trust (i.e., those who benefit from it). That contract will determine what happens to the assets contained in the estate when you die. A living trust allows for one not only to make plans for an estate to avoid probate (and save a great deal on legal expenses), as well as allow you to map out a plan for disability, preserve Medicaid benefits and lower estate taxes.

The most common type is called a revocable living trust, and it’s created during one’s lifetime (rather than upon the trustmaker’s death), and can be revoked by the trustmaker at any point, rather than one that is established and cannot be undone. Revocable living trusts are often the preferred way to transfer assets in states like Florida where we know probate is both time-consuming and incredibly costly.  Continue reading

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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

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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

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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 Statutes. Florida 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

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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

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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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