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Yearly Archives: 2022

Probate Inventory — what you need to know

Probate Information Dec 5, 2022
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A probate inventory in Florida is not only required. It’s important. Here are 10 things which you need to know if you are a beneficiary, family member, “inheritor” or personal representative. Who knows, maybe you inherit more than meets the eye. What do I need to know? If you are a beneficiary or an “interested person” in a Florida probate, you WANT to know what’s in the estate. (For more on what an interested person is, click that link, or here.) The most common or “easiest” way to do this is to read the probate inventory. The executor or personal representative is required by law to provide an inventory. In fact, she must “verify” it. This means that what she files is based upon her best knowledge. She swears to it. If there is anything missing, or mis-leading, file your objections. Probate Inventory First, an inventory is required by law. See 733.604 of the Probate Code Second, it has to contain a description of property and a value as of the date of death. That means that you don’t have to list every single item of clothing or furniture, but you have to give the reader some idea of what’s there. Third, you can supplement, improve or amend the inventory. This is done when you want to correct something or if new assets are found. Fourth, the inventory is confidential. That means that you won’t see it online when you do a case search at the clerk’s website. You have […]

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Estate Accounting

Probate Information Dec 4, 2022
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Where’s your money? Who’s got your inheritance & what happened to all the property? You need an estate accounting. For a Free Florida Accounting Legal Video on this topic, click that link. Otherwise, keep reading to learn more about your rights and what you can do to claim your inheritance. Where’s the money? “They are not telling me anything about my parent’s estate!” Do you know how many family members complain about the probate process? Many times, adult children are entitled to inherit a big part of the estate. But, there’s no information. Someone is either not communicating something, or maybe hiding something. While this discussion is not about probate fraud, you should know what your rights are and how to exercise them. After all, it’s YOUR inheritance, right? The truth is that you don’t have to wait. Either to get information or to start the probate process. If your family member died, you can “open a probate” and find the assets. You don’t have to wait for others to act. Even if there is a will naming someone else as “executor.” Many times, the person named to run the estate sits on their hands. They don’t file the will nor open probate. That’s not fair to beneficiaries or family members. So,……open probate yourself. But, follow the rules ! You have to give notice to certain people. Whether there is a will or not. (If there’s no will, heirs inherit under an “intestate” estate). There is a straightforward procedure for […]

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Estate Inventory for Florida Probates

Probate Information Dec 3, 2022
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Where’s the money? Lots of family members, heirs and beneficiaries want to know more about the estate inventory in Florida probates. Here’s all you need to know in 1 minute and 55 seconds. (For more about this topic, you can click HERE to read free Florida probate commentary with no sign-up.) What’s in the Florida estate? Everyone wants to know “where’s the money?! ” Well, if a Florida probate is opened up, the Personal Representative is required to file an estate inventory. Florida Probate Rule 5.340 requires that an inventory be filed. When? Within 60 days of the court issuing “letters of administration.” (Letters is actually a single court document signed by a judge that gives the executor, or Personal Representative, the power to act.) Amendments, and updates to a Florida estate inventory are expected. Getting what’s yours So, what do you do if no inventory was filed? You file a motion with the probate judge. What does the motion say? It asks the judge to compel the executor to file an inventory forthwith. (see below, too) What do I do if there are missing assets? “You need to do two things” says probate litigation attorney John Pankauski. “File a motion to compel or file a Petition for Return of Probate Assets.” To read more about Florida probate inventories, you can read two things. Florida Probate Code statute 733.604. This will give you a quick introduction to this topic. This is the law, or statute, on inventories. Next, you can […]

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How to Object to the Will in Florida

In the News Nov 28, 2022
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There are short time frames in Florida probate court to object to a will. Or to contest the validity of a will. But, what’s the difference between “objecting” and asking questions? A recent Palm Beach appeals court case discusses this issue. (To read about ESTATE OBJECTIONS, click that link.) How to exercise your rights If you want to object to a Florida will, you need to get to probate court. And file a petition. It might be a petition that objects to the will. (To know what you need to do, click HERE.) When you object to a will, you are calling into question its validity. Many times, a will will be set aside if it was caused by undue influence, lack of “mental capacity” or an insane delusion. Those wills can be void. Get in the game But how do you exercise your rights? File a petition in the probate court. What if there is no probate? (Open one !) Well, how do you know there’s even a valid will? After all, you are supposed to file a will with the clerk of the county of the residence of the dead person. And not all wills are filed. Sometimes, people are convinced there is a will, but there is none. In that case, the HEIRS INHERIT IT ALL. If there’s no probate, open one up. Give notice. File a petition and make your claim. But……………be careful of the 3 month window. Are you limited to 3 months? You may […]

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Trust Contingency Lawyer

Our Firm Nov 20, 2022
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What is a Trust Contingency Lawyer and can she help you with your Florida Trust Case? Understanding a contingency fee in your Florida Trust Case A contingency fee is where the client pays the lawyer a % of their Recovery. If there even is a Recovery. A Recovery is a jury verdict, a judgment or a settlement. No Recovery. No Fee. To read more, click HERE. Is a contingency fee right for you? We have written about the pro’s and con’s of contingency fees in the past. You need to understand the risks and rewards. In the Florida Trust context, the trustee has trust money to use to hire lawyers. How does a beneficiary compete? There are a handful of select trust litigation lawyers who do take a select number of cases on a contingency fee. How do you know if you are getting a good one? How to find a trust contingency lawyer in Florida. Fist of all, contingency fees are governed by the Florida Bar Rules. Those rules regulate what lawyers can charge. 2nd, consider trying to find a firm that SPECIALIZES in trust litigation. They should know The Florida Trust Code and also the Florida Evidence Code. After all, you need to be prepared for your trust trial. 3rd, they should actually try cases and handle appeals. Be wary of so called “trust lawyers” who say they go to court. Ask them: how many trials they have had in the last year? Or during Covid. And don’t […]

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Power of Appointment Florida

In the News Nov 20, 2022
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What is a power of appointment Florida and do trust beneficiaries ALWAYS get an accounting? A 2021 case from Florida, and one statute, tell us more. What is a power of appointment? A power of appointment is a right, or authority, or a power, to give someone property. Usually trust property — what’s in the trust To appoint the property to another. Or estate probate like in a probate, under a will. This also means that–and this is IMPORTANT– the “holder” of the power can NOT give you property. Yup! These powers are typically “flexible” in the sense that you can give property among a few beneficiaries or a class of family members. Just who can inherit or who “gets” the power is up to the person whose property it is. Like a wealthy grandmother who creates a trust. Or a successful corporate executive mother who dies with a will. Most common example What’s the most common example of a power of appointment? Let’s say that mom leaves a trust that benefits your sister for her life At your sister’s death, the trust says: “Upon [sister’s] death, Sister has the power to appoint the trust to her siblings or issue.” That means that Sister can “give” the trust to her descendants or to you (or other siblings.) How to read the trust + what to look for Here is a laundry list of these that you will want to know: Who created the trust? Who created the power? Who holds […]

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Trust Lawsuit — the basics

What We Do Aug 26, 2022
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Do you know what you are doing? If you are a trustee of a Florida trust, or a beneficiary, do you know how to handle a trust lawsuit? Let’s explain the three “major,” or basic, types. Want to learn the background first? Want to learn the “backbone” of a Florida trust lawsuit? (If not, that’s OK!….go to the last section of this Florida Trust Legal Commentary). If you want to better understand your trust lawsuit, consider reviewing these resources: Florida Trust Code — a list of Florida statutes dealing with trusts, trustees and beneficiaries. Trust Beneficiary Rights — bene’s have a lot more rights than they may realize, including a right to know what the trustee is doing with every dime ! Do you know how to ask for accountings and relevant information? Trustee’s Duties— a trustee is a fiduciary who has a big job. She can’t self-deal, hide the ball, refuse to disclose, or operate the trust in secret. But, trustees are entitled to a great defense if a trust bene sues them with a baseless lawsuit. Defending a trustee will eat up trust money, so everyone needs to be careful and cautious. 10 Steps to Family Trustee Excellence — this is an easy-2-read, plain English book that you can read in one sitting. It is great for both beneficiaries and trustees. 3 Types of a Trust Lawsuit Now, some trust litigators may disagree that trust lawsuits can be broken down into only 3 categories. No argument here. You […]

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Florida Trust Lawsuit

What We Do Aug 26, 2022
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Involved in a Florida Trust Lawsuit? Here are 5 basic tips to try to get on the road to victory. For information on a trust contest, click that link. (For a short legal video on a trust contest or trust challenge, click THIS LINK.) 5 Things to Read Right Now OK, before we get into the topic of a Florida trust lawsuit, let’s give you 5 things which you can read for free (almost) right now. These should help you understand this topic much better. First, consider reading the Florida Trust Code. Chapter 736 of the Florida Statutes. These laws set forth the starting point to understanding a Florida Trust Lawsuit. They tell you the rights which beneficiaries have and the duties of your trustee. (For a short video on a trustee who breaches her duty, click HERE.) In fact there is a whole section just on the Office of the Trustee. (For a short video on trust accountings, click HERE). Second, if you want to read about a trust contest, you can click on that link. Remember, a trust contest typically objects to the validity of the trust. Or part of it. Like an amendment or a specific provision. Many times, people will attempt to have a trust , or amendment, declared invalid or void. For any number of reasons like undue influence. Third, read the Florida Rules Of Civil Procedure. Why? Because a Florida trust lawsuit has rules ! You need to know what to do, how to […]

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Judgment on the Pleadings

In the News Aug 25, 2022
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Can you stop litigation in its tracks by getting judgment on the pleadings? Let’s say that you are sued. Can you file a motion to dismiss or another motion to end the lawsuit? We have previously suggested that some lawsuits can be ended quickly under limited circumstances. To learn more, click here. Once the lawsuit is “answered” If you have been sued, you must file a response within 20 days of being served. Check out the Florida Rules of Civil Procedure. You can file an answer, or a motion to dismiss. Once you have answered the complaint, then we can focus on the legal issues. You may ask the court not to have a trial, but to rule as a matter of law. Two options are a motion for summary judgment and a motion for judgment on the pleadings. Two recent cases on judgment on the pleadings. The 3rd District Court of Appeal is the appellate court for Miami-Dade County. On August 24, 2022, the 3rd DCA issued two opinions dealing with this legal topic that you can read for free. One is Kraus v. Kraus. The other is Nix v. The Office of the Commissioner of Baseball. If the court looks at the complaint and the answer, and any attachments, you may not need a trial. If you file a motion directed to that, it will focus the judge’s attention just on the “pleadings”. You win if you are “entitled to judgment as a matter of law.” What does […]

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Florida Arbitration

What We Do Aug 24, 2022
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When must a lawsuit go to arbitration or stay in federal or state court? Take a close look at the arbitration provision in your document. Sometimes, only SOME claims go to arbitration. Consider a recent case which discusses this very issue. (To read more about whether you have to go to arbitration, click HERE.) Why Florida arbitration? What is arbitration and why is there an arbitration provision in my document? Think of arbitration as private judging. A forum for the resolution of a dispute. Instead of going to court, the parties to an arbitration agreement go to a private, non-public proceeding. Arbitration. Instead of a judge in a robe, you have arbitrators. Either one single arbitrator. Or a panel (e.g. 3 ) arbitrators. Instead of a judgment, you get an “award”. Arbitration can be had by the agreement of the parties. Often, there is an arbitration provision in documents like contracts. Or a power of attorney. If you sign the contract with such a provision, you are agreeing to at least some arbitration. Or, arbitration of at least some of the claims brought by you or another party to the contract. In Florida, there is a statute in the Florida Probate Code which acknowledges that you can have an arbitration provision in a will or a trust. See Fla. Stat. 731.401. To read more about Florida probate and trust litigators who have handled this issue, click here. Why only some? Because some arbitrations provisions may have a “carve out”. What’s […]

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