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Yearly Archives: 2021

How to Revoke Probate in Florida

FAQs Sep 12, 2021
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How to revoke probate in Florida may be the key to getting your inheritance. Regrettably, in some cases of undue influence and probate fraud, it’s your only option. If a probate was “opened“, you will need to take action if you want to preserve your rights. And fight back. Knowing where such a petition fits in with you trying to get your inheritance is key to your success. Understanding the Probate Process in Florida In Florida, when you die, there are special rules for what happens to your property. Specific procedures that need to be followed. For example, most beneficiaries don’t know that all creditors and estate (probate) expenses are paid first ! Before a beneficiary sees a dime ! First, your assets should be gathered. This process is also known as “marshalling” your assets. Non probate assets, so called “will substitutes” like joint accounts, generally go to the survivor. But not always. Knowing when such an asset should come back to probate is often heavily litigated. So much for “avoiding” probate with joint tenancy, right? Second, all debts of the decedent need to be paid. Mortgage? IRS? Borrowings; last electric bill; cable bill, etc. You get the point. Then expenses of administration need to be paid. Including the probate lawyer ! Court documents need to be filed in the probate court and interested persons need to receive notice. What if the will that is on file is wrong? What if the petition for administration was granted and you think […]

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Punitive Damages in Trust Cases

In the News Sep 12, 2021
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Every let-down trust beneficiary wants to know if you can get punitive damages in trust cases. The answer is “yes.” You can sue your trustee for punitive damages. ……… But you need to understand the procedure for seeking punitive damages + the basis for wanting them. Otherwise, an appellate court could dismiss your claim for punitive damages. This happened on September 10, 2021 in a Florida appellate opinion. For more information on punitive damages against a trustee, click HERE. For a free video, click HERE. Understanding Punitive Damages in Florida Trust Cases You can’t get punitive damages automatically in Florida. No matter how bad your trustee acted. You have to ask permission from the judge. You have to file a motion to amend your complaint. To now include a claim, or a “count,” for punitive damages. You can read the statute about pleading for punitive damages, which is Florida Statute 768.72. Then the judge will hold a hearing on this. And that’s when the work begins ! There’s 2 reasons for punitive damages: to punish a bad trustee and to deter future wrongdoing. But be mindful that seeking, let alone obtaining, them is not a layup. Go in with your eyes wide open. While seeking punitive damages can be one of the most powerful things an experienced trial attorney can do you for you, know this. Even if you get ’em. There are limitations and the damages can’t be excessive. That’s why many advise trust beneficiaries in Florida to get […]

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Trust Revocation Florida — which one is valid?

FAQs Sep 11, 2021
post about Trust Revocation Florida — which one is valid?

Florida residents LOVE their revocable trusts. And over time, they amend, revoke, re-publish and re-state the trust. Changing bits and pieces. And sometimes changing the whole trust. But what if one of those trust revocations is caused by undue influence? Can you set the trust revocation Florida aside? Even if it’s done by a written legal document? Yes you can! Read a couple of statutes and a recent case to learn all about this. To read about trust contests, click HERE. How Do you Revoke a Trust? Lots of family members and heirs get surprised when mom or dad die– and they read their revocable trust for the first time. Sometimes, revocable trusts are changed many times over the years. These changes are sometimes called amendments. If an entire trust is going to be re-published, it’s sometimes referred to as a restatement. And, of course, there are revocations. Most amendments or future changes to a revocable trust need to be in writing. Although you could destroy or revoke a trust by an act. Such as shredding or ripping up the trust in front of witnesses and saying ” I hereby revoke my trust.” That is perhaps the most common revocation by “act” or deed. But the more common way is to simply change the trust by a writing. Amend it. And when you amend it, you “revoke” a prior section of the trust, or the entire trust itself. And you replace it with the new section or provision or new […]

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Probate Contingency Lawyer

FAQs Sep 8, 2021
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A contingency fee may be your key to the probate court. (But, how do you find the right lawyer?) If the idea of large legal fees just to protect your inheritance is daunting, you are not alone. Many beneficiaries, heirs and family members seek out a probate contingency lawyer for will contests and trust lawsuits. Even just plain old probates —to look out for them, and protect their inheritance, in a Florida estate case. Admittedly, good ones are hard to find. And big firms won’t do contingent fees. You need to find a boutique expert who limits their practice to this area of the law. Here’s what you need to know now. (to read more about contingency fees, click THIS LINK ) Everyone’s Doing It “I get dozens of calls each quarter” says Probate Litigation Lawyer John Pankauski. “A lot of people are looking for a probate contingency lawyer. And they are the ones asking for a contingency fee.” But Pankauski admittedly doesn’t take over 90% of those calls who seek out his firm. He would rather be paid each month for his time, at his hourly rate — rather than take a case on a contingency. But he has that luxury. His firm has a robust practice handling litigations and appeals for wills, trusts, probates and estates, throughout Florida. His band of trial lawyers have found success in trials and even appeals. “I am very selective on what cases I’ll take on a contingency” he says. If you can […]

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Petition to Revoke Probate Florida

Probate Information Sep 8, 2021
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A Petition to Revoke Probate Florida may be your only way to get an inheritance if it was taken from you improperly. If an invalid or suspicious will was presented to probate, you just might have a will contest on your hands. Do you know how to enforce your inheritance rights? Understanding the Probate Process The Florida Probate Process is, in once sense, straightforward. You gather all the deceased Florida resident’s assets, pay her last expenses and bills, and then distribute what’s left over to the beneficiaries. But determining beneficiaries may be more of a challenge than one believes. If there is no will, then the HEIRS inherit under what’s called “Intestacy.” If there is a valid will, then the property goes to the will beneficiaries. A Petition to Revoke Probate Florida is a court filed document in the probate court. (It’s explained in more detail below). If there are multiple wills, a court will determine which one is valid. In that case, the will signing becomes very important, as well as the person’s mental health. Finally, the facts and circumstances of how a will came to be signed are important. Was there undue influence or fraud? To see videos on will challenges and undue influence for free, CLICK HERE. Reading the Florida Probate Laws + Rules The good news is that you may learn a lot about the Florida Probate process quickly, easily and free of charge. Listen up Heirs, children, grandchildren and adopted kids ! The Florida intestacy […]

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Florida Will Contest

Our Firm Sep 7, 2021
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What is a Florida Will Contest and what do you need to know? To see a free Florida probate video about a will contest, CLICK HERE. To learn more, keep reading. An Introduction to Florida Will Contest A Florida will contest is a challenge to a will. It involves going to court, the probate court, and making a claim. This claim is often in the form of a court-filed document called a Petition. In that Petition, you set forth your case on why the will is not valid. That is your challenge. You challenge the validity of the will. Florida law lists a limited number of reasons why a will may not be valid. Understanding all of these legal avenues is key to your success. Gathering your evidence is key. Finally, knowing how to try this type of case is paramount. Unless you settle your will contest, it will go to trial. A probate judge will tell you whether a will is valid or not valid. If there are a number of wills in play, she will tell you which ones are valid, which are not valid, and which one controls. Are you ready? Affect of Fraud or Duress A will that is caused by Fraud or Duress is void. Undue influence is a kind of fraud. Many times, people question wills that are signed right before death. Or, when a new beneficiary magically appears in a will, and was never there before. If a person forced or pressured someone […]

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Florida Arbitration — must I ?

In the News Sep 6, 2021
post about Florida Arbitration — must I ?

Florida arbitration or a trial in state or federal court? Seasoned trial attorneys reveal that arbitration is not necessarily all that it’s cracked up to be. While there may be some perceived advantages, can you really be compelled to arbitrate a matter? Let’s consider arbitration in light of a recent Florida appellate opinion. The Arbitration Code Chapter 682 of the Florida Statutes is the Florida Arbitration Code. Arbitration has been described as “private judging.” It’s a quasi-judicial proceeding in a private forum, as compared to a public state court or federal court. It is a forum to resolve a litigation. A lawsuit. Instead of a judge, you get an arbitrator. Sometimes you get a panel of three arbitrators. Who each charge you hundreds of dollars an hour for their services. Yes, that’s right ! Arbitration costs money ! Clauses in Contracts Many times, there are clauses in contracts, and even in wills and trusts, which mandate arbitration. In other words, if you have certain disputes, you cannot have that resolved in a Florida court. Often, there is a disagreement over whether a particular claim, or lawsuit, or dispute, is covered by the arbitration provision. Do you have to arbitrate a fraud claim? And if you start out in state court, if the proceedings keep going, did someone WAIVE the right to arbitrate? And who decides if a claim is “arbitrable” or not: a judge or an arbitrator? (For a brief September 8, 2021 3rd DCA appellate opinion on waiving the […]

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Will Signing Florida — how to sign a Florida will

FAQs Sep 6, 2021
post about Will Signing Florida — how to sign a Florida will

If the will signing Florida is not in the correct order, the will can be overturned. The process is important ! If the will signing “ceremony” is not correct, the Florida will is not valid. Here’s what you need to know if there is a will contest. Or someone objects to the will. To read more about a Florida will signing, click HERE. If you inherit under the will that is being attacked, how will you defend it? Why Do I Care About Witnesses and Order of Signatures? Good question ! So, you DO care if you are thinking about a WILL CHALLENGE. A will challenge is a filing, typically, a Petition, which contests a will. Think of it as a lawsuit to invalidate a will. Wills must be filed within 10 days (of the death of a Florida resident) by the one who has possession of the will. That person with the original will is called the custodian. If you get “notice” of a probate with a suspicious will, you have to take action. You may need to file an objection to the will. If you don’t take action, then that suspicious will can be “admitted” to probate and be given validity. But, what if you inherit under a will and it is attacked? How will you protect your inheritance? Here are some things to consider about how to sign a will in Florida. (This topic is so important that estate litigator John Pankauski gave a one hour, Florida […]

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Florida 57.105 — getting attorneys fees damages from the other side

In the News Sep 6, 2021
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Lots of family members involved in a trust or will contest complain that what the other side is doing is baseless. A weird Florida statute gives you the chance to recover some of your attorneys fees as damages. To see how you may be able to get damages (in the form of attorneys fees) against your opponent (or their lawyer), read about Florida 57.105. Florida Statute 57.105– background So, we know that Florida law is generally made up of two things: statutes and caselaw. The legislature creates the laws which the governor signs. Our judges tell us what those statutes mean and how they operate. So, why would you refer to this law as “weird?”. Well, first of all, Florida 57.105 is one of those statutes that seems to create more litigation than it was intended to diminish. Second, it is often mis-understood and incorrectly applied. By the lawyers ! In fact, ask an experienced will or trust litigation lawyer. They will tell you that there are a lot of probate lawyers who say they go to court, but actually don’t try cases. And they often don’t completely understand this statute and when it is appropriate. Here is “everything” you may want to know about Florida 57.105 and even a recent case from the 3rd District Court of Appeal on this subject. 57.105 in easy-2-read, plain-English 57.105 is a Florida statute It provides that sanctions may be awarded against a party in a lawsuit for having a baseless, or frivolous […]

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57.105 Florida Sanctions

In the News Sep 1, 2021
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57.105 Florida sanctions is a serious law. Heck, sanctions are serious. If you are faced with a “safe harbor” letter or notice, or a 57.105 motion, here are some things you may want to know. Sanctions in Florida Lawsuits A Florida trial judge has the inherent authority to punish, or sanction, bad conduct. In Florida, there is the inequitable conduct doctrine. For a trial judge to sanction someone, she needs to make very specific findings of fact in her order. Notice of an evidentiary hearing is required. The party who may be sanctioned or punished is entitled to notice and an opportunity to put on a defense. But beyond the inequitable conduct doctrine, there is a peculiar law, or statute, which permits a Florida judge to sanction a party to a lawsuit, and the party’s lawyers, for maintaining (and refusing to withdraw) a frivolous position. This may occur, for example, under Florida Statute 57.105 57.105 Florida’s Sanctions Statute On August 25, 2021, the 3rd District Court of Appeal issued its opinion in Viera v. In Re: Liptito, LLC. The 3rd DCA is the appellate court for Miami-Dade County. This opinion dealt with sanctions in the form of attorneys fees against an attorney. 57.105 is a statute that permits a party to obtain attorneys fees if the other side is doing something frivolous. Put another way, this law may be a path to get a lawsuit dismissed. That’s because the threat of being sanctioned sometimes compels a party or their counsel […]

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