The Florida Trust Code is a set of statutes. It sets the groundwork for all Florida trust matters. Everything from the trustee-beneficiary relationship. Creating and ending trusts. And, of course, judicial proceedings like lawsuits and removal actions. To get a plain-English background of this body of Florida law, keep reading. We will point you to the most important parts of the trust code. Whether you are a beneficiary, trustee, or adult child of a beneficiary or trust creator. And, yes, if you got cut out of a trust, there’s information for you, as well. If you would like to see a number of focused, informative Florida Trust & Probate Videos for free. Click HERE for an outstanding video library on important Florida estate and trust legal topics. Now, let’s show you what to read in the trust code, and we’ll name specific statutes for your to read. This is “user-friendly”. There is a link to more information on the part we are writing about, so you can read or learn more on a particular topic if you want. The Background First, you should know the background. The Florida Trust Code is a set of statutes. These statutes are found at Florida Statutes Chapter 736. The trust code is similar to the Florida Probate Code and the Florida Guardianship Code. How? They set forth what our legislature wants you to know about those particular topics. Why mention them? Because they can all interconnect. If you have a guardianship of a wealth […]

Challenge a Will Florida is a plain-English Florida probate commentary. Get some thoughts about a will challenge. Maybe you are a family member who got cut out of a last minute will. Or, a beneficiary under a prior will that was changed just before death. We have previously posted a FREE WILL CONTEST VIDEO for heirs to view. Now, if you have been dis-inherited or have questions about a last minute will change, keep reading. (To learn about a probate contingency fee, CLICK HERE.) Start with the Basics Challenging a will in Florida typically means that you object to the validity of a will. You believe a will is not valid. To contest the will, to challenge it, you need to go to Probate Court. Why? Well, most people are simply not going to agree to set aside a will if you ask them politely. So, you have to file a Petition in the Probate Court for the county where the person was a resident. If there is no probate proceeding, that means you have to open up a probate. That’s done by filing a petition for administration. You will tell the court whether you believe there was a valid prior will or no valid will at all. When there is a valid prior will, you have to file it or offer it up. If you have a valid will that was lost or destroyed, that’s a different petition. Remember that where there is no valid will, heirs inherit under […]

If you are a trustee, have you been sued? If you have been sued by one of your trust beneficiaries, you betta know your Florida trustee defenses. Why? Here’s the background that you NEED to understand. Start with the Basics A lot of people become a successor trustee in Florida. Some of you are well -intentioned, decent people, but ……you know nothing about running a trust. Admittedly, you are in way over your head. And when you were asked to RESIGN, you just can’t give up the power. You say that you want to adhere to “so-and-so’s” wishes or intent. That’s OK. You mean well. Stay tuned…we’ll get through this. Many times, a Florida resident will have a POUR OVER WILL that leaves everything to a revocable trust when they die. And when that Florida resident dies, there needs to be a successor trustee for that revocable trust. Which is now IRrevocable. Being a trustee is serious business. And if you have been sued by a trust beneficiary, you should know all your Florida Trustee Defenses. Let’s talk about helping defend a Florida Trustee. Florida Trustee Defenses First, look at the trust document. The trust itself may do two things. It may change the normal standard of liability for a trustee when you make a mistake. The trust document, for example, may say that you are only liable for “intentional or reckless acts.” That’s actually good for you. It alters the standard of care that ordinarily you face in Florida […]

To watch a FREE VIDEO about a Florida Trust Challenge, CLICK HERE. Trust lawsuits in Florida seem to be on the rise. That could be because Florida residents use POUR OVER WILLS that leave their money to a trust. Increasingly, these days wills are, in many ways, “just “a method to transfer property to a trust. Many times, a trust is the real entity that leaves inheritances. You may have a probate or an estate, but the REAL money is in the trust. Admittedly, beneficiaries can be concerned. After all, who is being put in charge of YOUR inheritance and millions of dollars? To read about a Florida Trustee Being Sued for Breach of Fiduciary Duty, CLICK HERE. To learn more about a Florida Trust Challenge, keep reading. Oh yes, here’s a tip. If you have a pour over will and there is a probate. Objecting to just the will may not be enough. You may have to file a second lawsuit. A Florida Trust Challenge. Defining a Trust Challenge “A Florida Trust Challenge is typically an attack on the validity of the trust” says Florida Trust Litigator John Pankauski. The attack can be on the entire trust, or just a part of it, like a specific inheritance. Sometimes, family members or beneficiaries file a challenge to who is going to be the trustee or successor trustee. To read about REMOVING A TRUSTEE or SUSPENDING A TRUSTEE, click on those links. But a trust challenge is often synonymous with a […]

Beneficiaries of Florida trusts have a lot of rights ! And, let’s face it, trustees have a lot of duties which they owe to their beneficiaries. A trustee agrees to, volunteers to, be loyal and prudent with their beneficiaries. No secret fees or self dealing. No stealing or civil theft. So, what does a beneficiary do when they learn that their trustee is acting badly? You could ask a Probate Court judge to suspend the trustee. Or you could sue for damages. But, many beneficiaries want Florida removal of trustee. Let’s see how this is done, in plain-English. Steps to Removing Your Florida Trustee There are two ways to remove a trustee without a judge and a trust lawsuit. Removing a trustee can start with a letter asking the trustee to resign. To step down. But, does that really work? I guess the next question that you have to ask yourself is. How long are you going to give the trustee to decide? Most trustees don’t want to resign. If that happens, and there’s no trustee resignation, then you are left with removal. Removal can be done if permitted by the trust document. Sometimes, Florida trusts have specific removal provisions. For example. A majority of the beneficiaries might be able to remove a trustee. Or, sometimes it says that you need the consent or agreement of all trust beneficiaries. Let’s say that your Florida trust document does not have removal language . Now what? Florida Trust Code Well, before you […]

A Florida breach of fiduciary duty is serious stuff. It can bring damages to beneficiaries or an estate or a trust. And a whole lot of trouble to a bad trustee or personal representative or POA. We have previously written about excessive compensation and removing or suspending a trustee. We have also written about this topic of FIDUCIARY DUTY before. Now, let’s lay it all out there in plain English. And from a standpoint that other Florida Legal Blogs may not take . What is a Fiduciary? Before we define Florida Breach of Fiduciary Duty, let’s make sure you have the background. First, a trustee owes DUTIES to her beneficiaries. Same for a PERSONAL REPRESENTATIVE. Trustees and personal representatives are fiduciaries. Fiduciaries are those who volunteer to perform certain tasks for others. I say “volunteer” because no one can be forced to serve others or be a fiduciary. Even if you are nominated or named in a will or trust. If you don’t want to serve, decline. Fiduciaries, most of the time, are entitled to reasonable compensation. A Power of Attorney, also called an attorney-in-fact, is also a fiduciary. Don’t be confused. Even though the Power of Attorney Law uses the word “agent”, a POA is a fiduciary. Standards of a Fiduciary There are certain “rules of the game.” Standards. If a personal representative or trustee acts badly or steals money or takes secret fees, they can be SURCHARGED. But civil theft is not necessary for a fiduciary to be […]

Trust beneficiaries have a lot of rights under Florida law. That’s because Florida Trustees owe a lot of duties to their beneficiaries. Sometimes, beneficiaries don’t trust their trustee. Sometimes, beneficiaries think the trustee is stealing from the trust. When they are not. There is often confusion about the trustee “owning” property. Let’s discuss and explain in Plain-English does a trustee own the property? We have previously commented on REMOVING a trustee, a trust SURCHARGE and also beneficiary RIGHTS. Now, let’s focus on ownership of trust property. Trust Property + Bank Accounts A trustee holds “legal” title to trust property. That has also been described as “record” title. Usually in the context of trust owned real estate. But who really owns trust property? The beneficiaries may think that they do. And of course, the trustee is the one in charge. A trustee is the record owner. Her name should appear on any deeds to trust-owned real estate. And Bank Accounts or financial accounts. It’s proper to identify the title of “trustee,” and to identify the trust by its name and date, in the title on the account, or the deed. An example of this is: “Jane Smith, IV, Trustee of the Emma Smith Trust, dated October 1, 1967.” That tells the world that the trustee does not own the bank account or real estate individually or personally. Sometimes, new beneficiaries freak out. “The trustee is putting her name on the deed!” they complain. Or, ” The trustee is taking the bank […]

There are two things you need to read to grasp Florida Estate Laws. There are also some other rules and authority which you may want to read. But let’s focus on these two important bodies of law for now. Would you like to read more about Florida Probate, Pour Over Wills, or Guardianship? Then you can click those words. If really want to read more, here is a link for FREE FLORIDA LEGAL COMMENTARY. If you still want to read more about probate law in Florida, watch a host of excellent FREE FLORIDA ESTATE VIDEOS. Florida Probate Code To understand Florida Estate Laws, begin with the Florida Probate Code. The Florida Probate Code is contained in Florida Statutes. Chapters 731-735. Those laws will tell you who may participate in a probate, how to open a probate and what must be done. There are laws in there about inventories, and rights and duties. There is also a definition section that helps explain important terms. Like what an “interested person” is. And how a Personal Representative should be acting. Most family members, beneficiaries and heirs like this because their rights are explained. But what if you are trying to exercise your rights in a Florida Probate. Don’t you need to know the procedures? Florida Probate Rules While the probate code is important, don’t forget about the Florida Probate Rules. Those rules set forth procedures and guidelines for getting stuff done in a Florida estate proceeding. The rules talk about petitions and hearings […]

Regrettably, there are a lot of “contested” guardianships. Every day, it seems, Florida Probate Judges must make difficult decisions. Guardianships have a couple of purposes. First, they determine whether someone needs assistance and protection if they are incapacitated. An aging or afflicted Florida resident may seem fine on the outside. But they may not be able, in the eyes of a judge, to exercise all their rights. They, and their property, money, may need management + protection. Second, guardianships often confirm or appoint someone to take care of that person who is vulnerable. A guardian or a Power of Attorney, or maybe a trustee for just the property. Many times, family members “fight” over who will control mom or dad. And their money. We have previously provided commentary on FLORIDA GUARDIANSHIPS. Now, let’s focus on how to fight guardianship Florida. Understanding Guardianship Law There are 4 really important things that you can read for free to understand Florida guardianship law. And learn how to fight Florida Guardianship. First, read the Guardianship Code. Chapter 744 of the Florida Statutes sets forth the law of Florida Guardianship. It can explain the TYPES of guardianships. Many times, people will file a motion or petition for EMERGENCY TEMPORARY GUARDIAN. This often upsets family members who are not given “notice” of this until a judge enters an order. There are also “plenary” guardianships. Or guardianships over just the property. Or, just the person. One of the most important rules is to file an appearance in […]

Lost wills are gone forever, right? Not so fast. How in the world can you probate a will if it is lost or destroyed? Well, believe it or not, there is a mechanism for Florida probates to do just that. But the rules are tricky and you need to jump through all the hoops. We have previously provided steps, tips and rules for probating a Lost Will Florida. Now, let’s go one step further. Here’s what you need to know in plain-English about a Lost or Destroyed Will Florida. Step by Step Most people don’t believe that you can have a will that was lost or destroyed admitted to probate. But you can. You have to first understand the rules and procedure. Next, you have to get in touch with disinterested witnesses about the will. Finally, you have to “prove it up” so to speak. What does that mean? It means that you have to reveal the terms of the trust. With precision. It today’s world with emails, .pdf’s, electronic copies and scanners, that is not as hard as it may sound. After all, doesn’t everybody scan and save documents? Truth be told, proving up a lost or destroyed will Florida is a lot more challenging than, for example, a contract. But that’s what great probate lawyers in Florida are for, right? Oh yes, don’t forget about the presumption. In Florida Probate Law, there is a presumption that the will was destroyed. If the will was last in the possession […]