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Yearly Archives: 2021

Florida Administrator Ad Litem + Conflicts of Interest

In the News Aug 8, 2021
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When should a Florida probate court appoint a Florida administrator ad litem? A recent Miami Dade Appeals Court case discusses this issue. If you are involved in a probate that involves conflicts of interest with the executor, read on. We have previously provided free, helpful FLORIDA PROBATE VIDEOS on similar topics, INCLUDING conflicts of interest in Estates. Estate Conflicts of Interest We all know that a personal representative runs the Florida estate. But what do you do if the personal representative has a conflict of interest? Generally a conflict of interest arises when the Florida Personal Representative’s duties to estate beneficiaries and family members conflicts with her own personal, or individual, interests. A common example is when the Personal Representative wants to buy an estate asset. She has a DUTY to get the best or highest price. But she, personally, may want to pay as little as possible. What do you do when there are MILLIONS in the estate? To read about an executor’s duties, click HERE. When that occurs, experienced probate litigation attorneys may ask the probate judge to appoint a Florida administrator ad litem. But what’s that role? Florida Administrator Ad Litem Role The Florida Probate Rules discuss the role of an estate administrator. It’s common to appoint one when there are conflicts of interest. Or, sometimes if you need a temporary person to run the estate. Additionally, one may be appropriate if there are “dueling” petitions for the appointment of a Personal Representative. After all, if everyone […]


Florida Power of Appointment

FAQs Jul 28, 2021
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A Florida Power of Appointment might mean that you inherit millions. Or not. Certain family members and heirs may be entitled to know about these odd “creatures” hidden in a Florida Trust Document. If you don’t inherit under a power of appointment, you may or may not have rights to find out WHY you did not inherit. One of the most frustrating things about them may be that your mom or dad has the right–the power!– to give you money or property. A January, 2021 case from Florida’s 1st District Court of Appeal discusses this legal topic. To learn more, read on. Where Can I Read More about Florida Power of Appointment? To read about Florida Power of Appointment, there are two places to start. First, start with Part 1 of Chapter 709 Florida Statues. Most people think of Chapter 709 as dealing with Powers of Attorney, like a durable power of attorney. That’s Part 2. Part 1 deals with Florida power of appointment. Second, did you know that someone with a power of appointment can bind other beneficiaries or even family members? Read a very specific part of the Florida Trust Code. Read 736.0302, Florida Statutes. This is super important. Why? Understanding the Basics A person who creates, or gives, or grants, a power of appointment is called the power creator. A power of appointment is the right, but not necessary an obligation, to give away property. To “appoint” certain property, or a property interest, to others. A person […]


Breach of Fiduciary Duty Florida

In the News Jul 28, 2021
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A January 2021 Florida appeals court opinion deals with breach of fiduciary duty Florida. If you are a beneficiary of an estate or trust, listen up. If your fiduciary is not behaving properly, you may be able to sue for breach of fiduciary duty. Against an estate executor or trustee. A January, 2021 case deals with breach in an important trust context. If a trustee’s bad acts are serious enough, they can be REMOVED as trustee. Knowing all your remedies as a beneficiary is key to your case. This can include getting your attorneys fees paid, SURCHARGING your trustee, making her account, getting her to return compensation and fees. But, beneficiaries be aware of very short STATUTES OF LIMITATIONS which may be only months-long. Breach of Duty by Trustees in Florida A trustee’s breach of their duties is serious business. First, trustees in Florida owe a lot of duties to their beneficiaries. Heck, read the Florida Trust Code to learn more about trustees and Florida trusts. A breach is like a broken promise. If damages are caused, the trustee can be liable for those damages, SURCHARGE and even your attorneys fees and costs. But you have to have STANDING to sue the trustee. You have to have some legal connection to the trust or the trust property. And before you run off and sue your trustee, consider this. If you lose, your trust share, or you, may have to pay the trustee’s attorneys fees. There are fee shifting laws in […]


Challenging a Trust Before Death

In the News Jul 26, 2021
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Can you object to a revocable trust before the trust creator dies? You are not supposed to under Florida law. There are two things every potential challenger MUST READ. If you are thinking of contesting a trust or challenging its validity, read on. We have previously provided Florida Trust Commentary on such things as trust validity, trust attacks and undue influence. Now, let’s focus on a September 9, 2020 4th DCA opinion. (for a link to FREE TRUST VIDEOS, click HERE) 2 Things You Must Read Before Attacking a Trust Challenging a trust before death? Not so fast !! So, let’s be clear. You can’t attack a revocable trust while the trust creator is alive. The person who creates the trust is called the “grantor” or “settlor.” The attorney who writes the trust, or who prepares the trust for the creator, is often referred to as the “drafting attorney.” The Florida Trust Code is the body of statutory law laying out trust laws. It is added to by precedent. Precedent are the written opinions of our appellate courts. Trial courts, and appellate courts, interpret the Florida Trust Code. Judges tell us what the law means and says. When trial judges make trust rulings, appellate court judges will tell us whether the trial judge was correct or not. When a trial judge is wrong, it is referred to as committing error. Now, read Florida Statute 736.0207. This statute is a provision in the Florida Trust Code. It says that you can’t […]


Guardianship Fees Florida — who can object?

In the News Jul 26, 2021
post about Guardianship Fees Florida — who can object?

Everyone has read about the Britnye Spears guardianship. In Florida, which has a healthy “golden years” population, guardianships are common. And so are the expenses. Who pays for the guardianship fees Florida. And how does a family member object? We have previously provided a number of Legal Videos on Florida Guardianship. Now let’s discuss a Florida Appeals court opinion from In Re: Guardianship of Martino. This 2nd District Court of Appeal opinion was handed down July 8, 2020. Florida Guardianship Law If you want to read about Florida guardianship law, consider reading Chapter 744, Florida Statutes. That’s the Florida Guardianship Code. It explains the intent of those laws. It also sets forth rights and obligations and procedures. A Florida guardianship starts with a court filed document. Typically, two of them. You file a Petition for Determination of Incapacity when you believe that someone is in need of assistance. When they can’t handle their own affairs. You also typically file a Petition for Appointment of Guardian. If the judge agrees with you that the “alleged incapacitated person” needs assistance, she will then turn to the issue of whether a guardian is needed. And who the guardian should be. Guardianship Fees Florida If a guardianship is created, pay attention. If you are involved in the guardianship, you will get a lot of information. The court appointed guardian is required to share information with you (if you are an “interested” person. That is, if you have “standing.” ) Read the Florida Guardianship Plan. […]


Probate Malpractice Florida

FAQs Jul 25, 2021
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Can you sue for probate malpractice Florida? Understanding WHO can sue is important. Perhaps more important is understanding WHAT you can sue for. What is PROBATE MALPRACTICE FLORIDA? And how do you exercise your rights when you have been damaged? Probate malpractice is very similar to, or may be described as, Estate Planning Malpractice. If you have been harmed in an estate or Florida probate, read on. Probate Mistakes, Wrongs and $$ Everyone is stuck with the probate process, right? I mean, Florida law says that when people die with property, you have to “jump through these hoops.” Why? ….Well, that’s the law ! The deceased Florida resident’s property has to be gathered properly. That’s what Florida probate lawyers call “marshal.” And then the deceased person’s debts need to be paid. IRS, last federal income taxes, the CPA, credit card bills, auto loan, pool cleaning, water bill, cable, FPL, HOA, etc. etc. And then, funeral expenses and the estate lawyers need to be paid. Yes, there are “expenses of administration.” And all of these get paid before a Florida beneficiary sees a dime of inheritance. Don’t like it? Sorry, folks. That’s the law!! And, what is left over, goes to the BENEFICIARIES! But, you have to be an “interested person” to sue. You have to be personally damaged. THAT’s who can sue for probate malpractice Florida. An interested person is generally defined as a beneficiary or a creditor of the estate. It can include certain children, spouses, and heirs. Now, […]


Estate Planning Malpractice Florida

FAQs Jul 25, 2021
post about Estate Planning Malpractice Florida

The rights of non-clients to sue your parents’ estate planning lawyer seem to be increasing. At least in Florida. A recent Florida Appeals Court opinion on estate planning malpractice Florida helps guide family members and heirs. This legal commentary will discuss whether you can sue your grandmother’s trust lawyer. Understanding Florida Malpractice Legal malpractice is a cause of action, or lawsuit, that is brought against a Florida lawyer. It is often referred to as professional negligence. A Florida lawyer commits malpractice when their standard of care, their services, or failure to provide services, fall(s) below the standard. What standard? The standard of a reasonable attorney in that particular geography. Providing bad legal services can be as simple as not telling your client that she has rights. Or a cause of action against someone. But, can a trust beneficiary, heir, son or daughter sue mom or dad’s attorney who wrote the wills and trusts? Estate Planning Malpractice Florida Many times, family members or adult sons and daughters want to sue mom or dad’s estate planning lawyer. But, many times, heirs are prevented from suing for estate planning malpractice Florida. Why? Three of the most common defenses to professional negligence include blowing the statute of limitations. You didn’t sue fast enough. The statute of limitations for legal malpractice is 2 years. Read Chapter 95.11 (4)(a), Florida Statutes. (To read about stopping or “suspending” or tolling that time period and the computation of time, read the entire CHAPTER.) And remember: a letter won’t […]


POA Theft in Florida

Probate Information May 31, 2021
post about POA Theft in Florida

POA theft in Florida is serious business. A Power of Attorney is a fiduciary. She is supposed to use the money for the principal’s care. The money does not belong to the POA. In most cases, a POA also cannot change the beneficiary of a bank account. Here’s what you need to know about Florida law if you have discovered POA theft. We have previously provided information about powers of attorney in Florida, financial exploitation, and even a FREE VIDEO. What you need to know about POA law.. In Florida, a power of attorney is a fiduciary. The person who is the power of attorney is often called the “attorney in fact.” She is supposed to act on behalf of her “principal.” The “principal” is the person who created the power of attorney. Or, think of it this way. The principal is the one who the POA works for. One easy example is the following. A wealthy woman named Nana has her probate lawyer draft a power of attorney. Nana’s power of attorney names Tommy as Nana’s “attorney in fact” or power of attorney. In this example, Nana is the principal. Tommy is the POA, or attorney in fact or “agent.” But even though the word “agent” is used to describe a POA, Tommy is a fiduciary. Here is a list of Tommy’s duties that he owes Nana: CLICK HERE FOR LIST OF DUTIES. That means that Tommy may use Nana’s money and property for Nana’s care, and Nana’s use. […]


Florida Trust Accounting–recent case sheds light on TRUST APPEALS

In the News May 9, 2021
post about Florida Trust Accounting–recent case sheds light on TRUST APPEALS

An April 29, 2021 appellate opinion sheds light on Florida Trust Accountings and final orders. Most Florida trustees know that you can give a six month “limitation notice” to a beneficiary. Most beneficiaries don’t really understand that you may only have 6 months to sue for breach of trust. This recent case discusses the “finality” of an order on a Florida Trust Accounting. That final order can’t be changed except under three very unique scenarios. Keep reading to learn more about trust appeals. (For a free legal video on trust accountings in the State of Florida, CLICK HERE.) Florida Trust Law on Beneficiary Rights — but watch the clock ! First and foremost, trust beneficiaries have a lot of rights in Florida. You can read all about those rights under the Florida Trust Code. That’s chapter 736 of Florida Statutes. To read about the obligations and duties of a Florida Trustee, read Trust Code Statutes 736.0801-736.0817. As a beneficiary, you have a right to know who your trustee is and to a complete copy of the trust document. That includes any amendments, restatements or changes. You can also obtain annual trust accountings. Florida Trust Accounting — no secrets ! To read about an estate accounting, you can simply click here. A trustee cannot operate or run the trust in secret. There needs to be full disclosure. But, trust beneficiaries can’t wait forever to exercise their rights. Sometimes you have 4 years to sue for a breach of trust. And sometimes […]


Florida Probate Code — secrets & essentials for family members, beneficiaries and even trustees

Probate Information Apr 19, 2021
post about Florida Probate Code — secrets & essentials for family members, beneficiaries and even trustees

Billions and billions of dollars flow through and around Florida probates. Many times the Florida resident uses a last will to leave inheritances. Sometimes, the will pours over into a revocable trust. Which is now irrevocable. To understand your rights, you need to understand the Florida Probate Code. Whether you are a trustee or a beneficiary who got cut out. Think of the probate code as two big volumes of laws. One tells you who inherits if there is no will. The other tells you all about probating a Florida will. For an easy-2-understand, Plain-English look at the Florida Probate Code, read below. For a free VIDEO library of insightful, free Florida Estate and Trust Topics, click HERE. The Basics The Florida Probate Code is made up of statutes. Florida laws. They are different than the Florida Probate Rules. And the rules of civil procedure. The probate code has a lot of definitions. It also tells you about starting a probate. Starting the administration process. Why is that important? Because that’s what the law says. When we die, there are all these special rules for dealing with the dead person’s money. And her creditors. And expenses of administration. Beneficiaries get paid last. When there is not enough money to give out, the probate code has laws for that, too. There are many, many rules for gifts or inheritances. Like, what if a piece of land is left to you in the will. But the land was sold 5 years ago. […]