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Yearly Archives: 2013

Pankauski Chosen ABA Vice Chair of Litigation Ethics & Malpractice Group

Uncategorized Aug 29, 2013

Florida trial attorney John Pankauski, a member of the Probate and Fiduciary Litigation Committee of the ABA Real Property, Trust & Estate Law Section, was recently chosen as the Vice-Chair of the Litigation, Ethics & Malpractice Group. Pankauski is a trial lawyer with the Pankauski Law Firm PLLC in Florida, and restricts his practice to trials and disputes involving probate, wills, trusts, estates and contested guardianships.

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Interpreting Florida Trusts: What do you do when people read the trust differently?

Uncategorized Aug 29, 2013

How can two (or more people) read a trust document and believe it says completely different things?  It happens all the time.  Trust beneficiaries interpret the trust document one way, and other beneficiaries, or the trustee, interpret it another way……even in the face of so-called “clear” trust language.   When this happens, a way to resolve the difference is to file a declaratory judgment action (“dec action”) and ask a judge to read the trust document and tell everyone what it says.  If the trust document is clear and un-ambiguous, the court may be able to rule without the necessity of a trial.

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Avoiding a Trust Trial in Florida: how to save thousands of dollars and still win

Uncategorized Aug 29, 2013

When Florida trust beneficiaries and trustees disagree on what a trust document says or means, ask a Florida court to interpret it.  Get the trust document in front of the Florida judge, in the probate division, and if the trust language is clear and un-ambiguous, consider filing a motion for summary judgment.  The interpretation of a trust, or a will, is a pure quesiton of law.  The summary judgment motion may be the perfect way to resolve the issue of what the trust document says or means.  And if you do it right, or soon enough, you can literally save thousands of dollars in attorneys fees and costs for your client, as compared to preparing for and attending a trial.   Advocate hard.  Litigate smart.

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Inheritances: “Fair” does not mean “equal”

Uncategorized Aug 28, 2013

When preparing a will or a trust, many times the creator (the client) wants to treat beneficiaries equally.   Take, for example, a mother or father with three chidren.  “I want my estate to go in three equal shares, to each of my children.  That’s the fair thing ” the client says.  But “equal” is not always “fair”.  And “fair” does not always mean “equal.”  Consider a loving, doting child who assists the parent with everything from shopping to household chores and who shares holidays together.  Contrast that child with a sibling who is distant, both geographically and on a personal basis, from parent.  Is it “fair” that the doting child receive an “equal” share as the child who has no interest in the parent’s life?

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Florida Litigation: Dismissing a Case Based Upon Forum Non Conveniens

Uncategorized Jun 26, 2013

A person who files a lawsuit typically gets to choose the “venue”…which court hears the case.  Great deference is given to the plaintiff to determine if she wants to sue the defendants where the cause of action acrued or where the defendants reside or do business.  If a lawsuit is filed in the “wrong” state or court, it may be dimissed if there is a more convenient or “better” forum.  The Florida Supreme Court recently discussed the legal concept of “forum non conveniens” in the Cortez v. Palace Resorts case.  Although it is not final  yet, it is instructive.  Email michelle@pankauskilawfirm.com for a copy of the opinion.

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New Florida Law: Estate Planning, Trusts, Estates

Uncategorized Jun 24, 2013

Florida Governor Rick Scott signed Senate Bill 492 on June 17, 2013, which makes new law for issues involving estate planning, trusts and estates.   Among other things, a gift to a lawyer under a will drafted by that lawyer is void.   The new law also provides guidance on personal jurisdiction in trust lawsuits, service of process issues and rules for filing a caveat or estate tax return . For a copy, email michelle@pankauskilawfirm.com.

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Florida Powers of Attorney: Demand for Guardianship May be Frivolous

Uncategorized Jun 23, 2013

A valid Florida power of attorney must be recognized, or accepted, by third parties.  Chapter 709 of Florida’s statutes deals  with powers of attorney and tells us what third parties should do when presented with a valid Florida power of attorney.  Failure to recognize a valid power of attorney may be frivolous and fees may be awarded against a third party that fails to honor the POA without contesting the validity of it.  See the (not final) case of Maximiliana Albelo v. Southern Oak Ins. Co from the January term of Florida’s 3rd District Court of Appeal, opinion filed February 6, 2013.

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Florida Trusts and the Merger Doctrine

Uncategorized Jun 18, 2013

If the trustee of a Florida trust is also the sole, only, beneficiary, does the Florida trust come to an end?  Does the legal title, which the trustee holds to trust property, merge with the equitable interest of the beneficiary?  Has the settlor’s (or trust creator’s) intent been satisfied?  See Hansen v Bothe 10 So.3d 213 (Florida, 2nd DCA, 2009).

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