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Yearly Archives: 2021

Florida Next of Kin Law: what is an heir?

FAQs Mar 19, 2021
post about Florida Next of Kin Law: what is an heir?

Lots of family members, or kin, expect to inherit when family members die. That’s understandable in some instances. But the truth is that how much kin inherit from a Florida estate actually depends on whether there is a valid will or not. Kin, or heirs, inherit if there is no valid will. They inherit from an intestate estate. We previously provided commentary about INHERITANCE RIGHTS of kin. Candidly, the word “kin” is not really used in Florida probate law. So, Florida Next of Kin law can really be thought of as Florida Intestacy Law. Florida Inheritance Law A valid will will be “probated” under the Florida Probate Code. If there is no valid will, then the Florida resident is said to have died “intestate.” Intestacy simply means that there is no will. Or, no valid will. In that circumstance, the Florida Laws of Intestacy tell you who inherits and how much. To know how much you may inherit, read Florida Probate Code 732.101- 732.111. The Florida Probate Code uses the word “Heirs.” See Florida Probate Code 731.201 (20) for the definition of Heirs for Florida inheritance purposes. “Heirs” inherit from an intestate estate. The word “Heirs” is defined in the Florida Probate Code HERE. Heirs or heirs at law means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent. The word “kin” under Florida probate law, is really not used any more. What if there is a will […]


Arbitration Of Disputes in Florida

What We Do Mar 19, 2021
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Have you heard of arbitration of disputes in Florida? Would you give up your right to appear before a Judge in a public courtroom? Do you think being in front of a private arbitration panel is better? Well, we have written about Powers of Attorney and arbitration before. Now, we will consider a March 2021 3rd DCA case on arbitration. It is not a will or trust case, but it is worth reading. Why? Because it considers the issue of making third parties “go” to arbitration, who prefer to be in federal or state court. In this 3rd DCA case, a motion to compel arbitration was denied at the trial level. Another issue which trial courts deal with, with a pending motion to compel arbitration, is whether a stay should be entered. Finally, this legal commentary has some authority below regarding arbitration of will and trust disputes in Florida. Florida Arbitration Law Florida has its own Arbitration Code, Chapter 632. To read a March 10, 2021 3rd District Court of Appeal opinion on arbitration, CLICK HERE. The case of City of Miami v. Ortiz repeated a number of bedrock legal principles regarding arbitration in Florida. But what makes this recent Florida arbitration opinion interesting is that it discusses one of the “hot topics” of arbitration. Can you compel a non-signatory to arbitration? Let’s put that another way. Can you make someone who is suing you go to arbitration even when they don’t want arbitration, and they never signed any arbitration […]


Florida Proposal for Settlement Case 768.79

In the News Mar 18, 2021
post about Florida Proposal for Settlement Case 768.79

A unique, and, often misunderstood, Florida Law can get you attorneys fees under the right circumstances. We have previously written about Florida Statute 768.79 and Florida Rule of Procedure 1. 442. A recent, March 17, 2021, appellate opinion from the 2nd District Court of Appeal tells us more about what some lawyers call the “offer of judgment” statute. We have previously written about service of proposals for settlement. So called “Fee Shifting” statutes are common in Florida Probate and Trust matters. They are less common, almost non-existent, in tort cases. Ending Litigation or Creating More? The proposal for settlement statute was intended to limit litigation. But it causes a lot of motions to be filed and a lot of appeals to be taken. Want to read a recent 2nd DCA case about Florida proposal for settlement or offer of judgment? Then simply click on Arizone v. Homeowners Choice Property & Casualty Ins. Co., Inc. You also need to read Florida Rule of Civil Procedure 1.442. “A proposal for settlement can be an effective way to end a lawsuit” says Florida litigation attorney John Pankauski. He spends time preparing Florida proposals for settlement and reviewing them when they are sent to his clients. “They can also be an effective way to seek attorneys fees” Pankauski continues. That’s because Florida follows the “American Rule”. The American Rule says that each party pays their own attorneys unless there is a statute or a contract. “In many non-contract cases, a settlement proposal under the […]


Florida Quiet Title Action

What We Do Mar 18, 2021
post about Florida Quiet Title Action

What do Florida residents do when there is a real estate dispute over title? A March 12, 2021 2nd DCA opinion reminds us what a Florida Quiet Title Action is and what you need to prove. We have previously commented on Florida Homestead Litigation . Now, let’s talk about Florida Deeds that are confusing or contradictory. (For a FREE VIDEO on Florida Real Estate Litigation and the related issue of lis pendens, CLICK HERE.) Multiple Florida Deeds What do you do when there are multiple Florida Deeds? Well, first, ask yourself: will a Title Company issue a title policy? Many good Florida Real Estate Litigators consult with title companies to see if they would issue a policy. When Florida real estate is going to be sold, most buyers want a title policy. Insurance that supports what the buyer is buying is real. That the seller owns what she is claiming to own–and sell. And if the buyer is borrowing money to fund the purchase, most lenders absolutely require insurance on the title. A title policy. “Many times, we get calls from sellers who want to sell but have a title issue” says Palm Beach litigation attorney John Pankauski. “We have filed a number of quiet title or ‘dec’ actions recently.” Pankauski and his team of expert litigators often litigate over Florida Homestead and estates, but also quiet title actions and Florida deeds. Pankauski also recommends reading two Florida Chapters or sets of Statutes. He suggests reading Chapter 689 which deals […]


What is Undue Influence in Florida Wills and Trusts

FAQs Mar 15, 2021
post about What is Undue Influence in Florida Wills and Trusts

Undue influence is a serious topic for estate litigators. And, perhaps more so, for family members and heirs. Have you been dis-inherited by a last minute will? This Florida probate commentary will explain what undue influence is and point you to an important Florida Estate Law. If you want to see a FREE UNDUE INFLUENCE VIDEO by estate and trust litigation attorney John Pankauski, CLICK HERE. Voiding a Florida Will Based Upon Undue Influence A will that is caused by undue influence is void. Florida Probate Law makes that very clear. Read Fla. Stat. 732.5165. Likewise, a Florida Trust that is caused by it is also VOID. If you want to read more about Florida probate and trust law, you can read the Florida Probate Code and also the Florida Trust Code for free. Here, also, is a free link to the Florida Probate Rules. The Florida Probate Rules are different than Florida statutes. There is a special procedure to follow to have a will or trust declared void . “You have to file papers in the Probate Court to contest the will” says veteran estate litigation attorney John Pankauski. “For trusts, you have to file a separate civil lawsuit.” In some instances, like with a Pour Over Will, you have to do both. How Do You Define It? Undue influence is defined as a form of coercion, over-persuasion and force. It is not always the same. It can vary from perpetrator to perpetrator. Undue influence can also have different […]


How To Execute a Will in Florida

Probate Information Mar 15, 2021
post about How To Execute a Will in Florida

How do you execute a will in Florida? Put another way, what is required for a valid Florida will? To read about who may create a valid will in Florida, CLICK HERE. For more Florida probate perspective about signing a will in Florida, read below. How to Sign a Will in Florida A will should be signed only by intent & consent. That means that the persons signing the will should know it’s a will and wants to sign it. A will that is signed by undue influence is void. In fact, if the person signing the will does not know what she is doing, the will is also void. The will cannot be the product of fraud or any over-persuasion or force. That’s an important part of the will execution process. It must be free of anyone forcing or lying to the person signing the will. We also previously provided commentary about a will not being valid based on an insane delusion. A will that is not valid may be addressed in the Florida Probate Court by a Petition to Revoke Probate. To see a FREE VIDEO ON WILL CONTESTS in Florida, click the highlighted area. To read about what a POUR OVER WILL in Florida is, CLICK HERE. If a current will is not valid, what happens? “There may be prior wills that are valid, or the entire estate may go to heirs under the intestacy laws of Florida” says Pankauski . Executing a Florida Will: requirements and […]


Petition to Determine Heirs in Florida Probate

Our Attorneys Mar 14, 2021
post about Petition to Determine Heirs in Florida Probate

If a personal representative, or any other “interested” person, is unsure who the heirs are, what can you do? A Petition to Determine Heirs in Florida Probate may be filed. See Florida Probate Law 733.105. Sometimes there is a real need to determine the heirs. For example, the will may be ambiguous or confusing. There may be multiple children, with various spouses, some deceased children with grandchildren, and some adopted persons. A marriage may even be called into question. There may be no will !! So, there are 4 things which an heir to a Florida estate must read. Previously, we wrote about who inherits if there is no Florida will. Now, we’ll talk about the legal mechanism to get an answer for you. But, before we do. If you want to read about estate fights from a top notch Florida probate litigator, John Pankauski, read his book. Asking A Probate Court to Determine Heirs When There’s No Will There is a special Probate Rule for determining who inherits. Check out Florida Probate Rule 5.385. If there is no will, then the estate is said to be an “intestate” estate. That means that the heirs inherit under the laws of intestacy. Who is an Heir? “Heirs” or “heirs at law” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent. The intestate succession laws in Florida are found at Florida Probate Code 732.101-732.111. Click to read the definition […]


3 Month Time Limit to Contest Florida Will? (maybe you have more time)

Probate Information Mar 14, 2021
post about 3 Month Time Limit to Contest Florida Will? (maybe you have more time)

There is a time limit to contest a Florida will. This is sometimes referred to as the “3 month rule” by probate litigators. Knowing how long you have to contest the Florida will is crucial to evaluating your inheritance rights. We have provided Florida probate legal commentary previously. We even wrote about whether “prior” will beneficiaries have “legal standing” to contest a Florida will. (Beneficiaries under a prior will who are now cut out). Now, we will discuss your very short time frame to petition to revoke probate. If you did not object within 3 months, don’t despair. There may be chances to still file. Particularly if you did not receive a Notice of Administration. Understanding Probate Law Before You Contest the Will The Florida Probate Code is one of two things which a Florida estate beneficiary must understand. The other is the Florida Probate Rules. These rules and laws will guide you to understand how to protect your inheritance rights. For example, Florida Statute 732.501-732.526 lists just about everything you need to know about making a valid will in Florida. Florida Statute 733.109 talks about a petition to revoke probate. That’s the “official” court-filed document that objects to a will. 3 Months to Contest Florida Will Florida Statute. 733.212 sets forth the time limit to contest a Florida will. You can read that Florida probate law by clicking on THIS LINK. That probate statute says that you must object to the validity of the will within 3 months. 3 […]


Florida Trustee Fees — when are they too much?

What We Do Mar 14, 2021
post about Florida Trustee Fees — when are they too much?

When are Florida Trustee Fees too much? When are they “excessive”? We have previously written about Florida Trustee Compensation. In this legal commentary, Florida trust litigator John Pankauski will provide insight. We will consider the factors under Florida law. Trustee Compensation Factors to Consider in Florida The Florida Supreme Court has told us what factors to consider when it comes to Florida Trustee Fees. And trust expert lawyer John Pankauski has given us a roadmap. First, read the trust document! What does it say about compensation? If the Florida trust document says nothing about fees, then we know to follow the West Coast Hospital case factors. (See commentary below about the Robert Rauschenberg Foundation case.) If the trust document explains what the trustee fees should be, then read Florida Trust Code Section 736.108. The Florida Trust Code is a body of statutes created by the legislature for trustees and beneficiaries to follow. You can read it for free. Just CLICK HERE. In 1958, the Florida Supreme Court issued a trustee fee opinion. That trust case is called West Coast Hospital Association vs. Florida National Bank of Jacksonville. Want to know what trustee fee factors are to be considered? Check out this from the West Coast Hospital Case. Some of the factors to be considered for trustee fees in Florida are: amount of money in the trust; comparable fees for trustees in the community; success or failure of trustee at her job; whether unique or unusual skills which the trustee had […]


Florida Trustee Compensation — everything you need to know (almost)

FAQs Mar 14, 2021
post about Florida Trustee Compensation — everything you need to know (almost)

Are you the beneficiary of a Florida trust? And wonder if the Florida Trustee Compensation is too much? Welcome to your new club ! Virtually no beneficiary likes to pay their trustee compensation. And a lot think that their trustees take too much in trustee fees. But, a trustee is entitled to be compensated. So, what are the rules for Florida Trustee Compensation? There are 3 things which Florida Trust Beneficiaries need to read about trustee compensation. We have written before about trustee fees and trustee removal. Now, let’s focus a bit more on trustee compensation. Florida Trust Law on Trustee Compensation Florida trustees are ENTITLED to reasonable compensation. Florida Trust Code Statute 736.0708 tells you about reasonable compensation. But most experienced expert trust trial lawyers, like John Pankauski, will tell you that the devil is in the details. “Each trustee compensation case is so fact specific” says Pankauski. He should know. He tries cases involving trustee fees and trustee compensation. And if an estate is involved, that’s important, too. Many times, a person will have a POUR OVER WILL which leaves everything to their Revocable Trust. A Florida Revocable Trust may also be known as a Living Trust or a Revocable Living Trust. To see a FREE VIDEO about whether an amendment to a revocable trust is valid, click HERE. Trustee Compensation Appeals in Florida As a trust litigator who also handles Trust Appeals, John Pankauski knows that opinions from appeals courts are important. That’s why you should consider […]