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Category: FAQs

Probate Appeals Attorneys Fees

FAQs Oct 10, 2021
post about Probate Appeals Attorneys Fees

An October, 2021 probate appellate opinion reminds you about probate appeals. Can you get attorneys fees for a probate appeal? Sure ! But don’t ask the appellate court. Here is your key to getting probate appeals attorneys fees in Florida. This is particularly important if you are involved in a will contest or an undue influence case. 3 Things You Need to Read OK, so you are involved in a probate appeal. Hopefully, you had an appellate specialist at your trial. That way, you are prepared for any potential appeal. Whether you lose or win. Remember: if you WIN, the other side can appeal. One issue that you have to consider is: are you going to file a cross-appeal? And, remember, the worst time to think about an appeal is AFTER your probate trial. You need to think about an appeal BEFORE (and at) your estate trial. But, I’m sure that your Florida probate lawyer already explained all of this to you, right? So, you need to read three things when considering Probate Appeals Attorneys Fees. First, read the Florida Probate Code and determine what statute you are going to seek fees under. In Florida, we follow the “American rule”. You only get attorneys fees if you have a statute or a contract. That’s right, you can’t just “ask for” fees. You need authority. [ Hint: start by reading 733.106 and 733.609 depending on your case. ] 2nd, read the Florida Rules of Appellate Procedure so you know how to […]


How to Revoke Probate in Florida

FAQs Sep 12, 2021
post about How to Revoke Probate in Florida

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 […]


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 […]


Probate Contingency Lawyer

FAQs Sep 8, 2021
post about Probate Contingency Lawyer

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 […]


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 […]


Affirmative Defenses Florida — what you need to know

FAQs Sep 1, 2021
post about Affirmative Defenses Florida — what you need to know

Being an aggressive litigator is what a lot of clients want. But you also need to know how to play defense. In football, when a team is up by only a few points and has the ball. You have to decide: do you go for it, or punt and “trust your defense?” Well, understanding affirmative defenses is an often overlooked part of probate and trust litigation. We think affirmative defenses Florida are so important that we gave a Florida Bar-approved continuing legal education seminar on this very topic. Now, let’s talk a bit about this subject, and a recent case. Admitting Facts but Avoiding Liability When you are served with a lawsuit, you receive a copy of the complaint. To start a lawsuit, a complaint is filed. When you receive a copy of the complaint, you have 20 days to respond. You can read more about timetables and how a case proceeds by reading the Florida Rules of Civil Procedure. Check out Florida Rule of Civil Procedure 1.140 When you “answer” the complaint, you may raise affirmative defenses Florida. Affirmative defenses are not simple denials. Affirmative defenses are the type of “yea, but…..” defenses. Think of them this way: even if the allegations or accusations in the complaint are true, you still win ! Examples of common affirmative defenses include statute of limitations and accord & satisfaction. Failure to properly raise affirmative defenses means that you waive those defenses. 4th DCA Opinion on Affirmative Defenses Florida — must read On […]


Will Challenge Florida

FAQs Aug 31, 2021
post about Will Challenge Florida

There are a number of ways to handle a will challenge Florida. These depend on the facts of your particular case. However, how you approach your probate lawsuit depends upon your STRATEGY. Whether you are claiming a will is invalid based upon an insane delusion, dementia or undue influence, read on. What is a Will Challenge Florida? A will challenge Florida is an attempt to have a will declared void. Or invalid. In some instances, you are challenging only a part of the will. Such as a provision that leaves a specific asset to a particular beneficiary. Or, the “residue”, or “residuary” clause that changes who gets everything else in the end. A challenge may also be thought of, or described as, a Will Contest. A will may be valid if it was not executed OR signed properly. If you don’t have two witnesses who sign in the presence of the person– and each other, who also sign in everyone’s presence– the will is not valid. Sometimes you simply start with the basics of a will challenge. Was the will signed correctly? To read a Florida appellate court opinion about will signings, click HERE. If the person who “signed” the will did not know what was going on, the will is not valid. Probate litigators call this lacking the requisite testamentary capacity. It does not mean that a guardianship was created. A Florida resident who signs a will must know, in general terms, what she is doing. Does she know […]


Florida Will Signing

FAQs Aug 31, 2021
post about Florida Will Signing

If a Florida will was not signed properly–or not signed by the person and witnesses in the proper order– it is not valid. What do you need to know about a Florida will signing? Well, many heirs and family members often have questions about a will challenge. Knowing how to make a claim is super important. In some cases, you may have less than 3 months to object to a will. Let’s talk about the legal requirements for a valid Florida will signing. For a free video on objecting to a will, CLICK HERE. Florida Legal Requirements For a will to be valid in Florida, most probate lawyers know the rules. Here they are in a nutshell: The person must sign the will in front of two witnesses, who likewise sign the will in front of the person and each other. The will must be signed at the end. And that’s it ! Or, you could simply read Florida Probate Statute 732.502. That law is the law for how to sign a will. (For a free Florida probate video on over-turning a will, click HERE.) Don’t Forget the Self-Proving Affidavit But, how do you prove that this was done? Well, most probate lawyers have a self proving affidavit. Florida Probate Law 732.503 even gives you the form. The self proving affidavit includes a statement from the notary that the person and the witnesses actually signed the will in the notary’s presence. What’s the big deal with the Florida self-proving affidavit? […]


Will Forgery Florida — what you need to know

FAQs Aug 30, 2021
post about Will Forgery Florida — what you need to know

Do you believe a will was forged? Or a signature to the will was? If so, you may only have a limited time to act. How will you exercise your rights or make your claim? To view a FREE WILL FORGERY FLORIDA video, click HERE. To learn more about this topic, including an important appellate opinion on Florida forgery law, keep reading. Appellate Case On September 6, 2017, Florida’s 3rd District Court of Appeal issued an important opinion. While it is not a will or trust case, it tells you “all” you need to know about forgery in Florida. Bennet v. Mortgage Electronic Registration Services, Inc. goes into depth explaining this topic. But wait, there’s more! If you want to read a will case that explains and discusses the requirements for signing and witnessing a will, click HERE. The case of Jordan v. Fehr is from the 1st District Court of Appeal. It is a 2005 appellate opinion dealing with a will appeal. Will Forgery Florida If a will is not executed with the formalities required by the Florida Probate Code, it is not valid. And any document such as a will or trust which is forged is not valid. When someone comes forth with a will, how do you know the signature is valid? Well, usually you have witnesses and a notary and a self-proving affidavit. But, you have to tell the court what is the product of a forgery. Is the signature of the now deceased Florida resident […]


Federal Court Interpleader– will you get the insurance money?

FAQs Aug 29, 2021
post about Federal Court Interpleader– will you get the insurance money?

Did you get served with a federal court interpleader suit? Somebody, most probably a financial company, wants to put money into the court registry. Insurance proceeds? Annuity? Bank account? Whether you inherit or can make a claim may depend on how you act and handle this unique type of lawsuit. To understand what this is all about, keep reading. For free Florida legal commentary on interpleader law in general, check it out by CLICKING HERE. What is Federal Court Interpleader? Interpleader is an action where someone with property wants to get rid of it. And avoid any liability. Or avoid spending more time or money dealing with “who gets it.” Interpleader actions are filed in both Florida state courts and also Federal Courts. In Florida, literally millions and millions of dollars are subject of interpleader actions. Insurance policy proceeds, IRAs, bank accounts, annuities, financial accounts. You name it. It’s common that a life insurance or annuity company or bank is holding a lot of money. And there may be competing claims. In other words, there’s a question of who inherits it. And potential litigation. What does the “stakeholder” do? State and federal law permit the life insurance death proceeds or the annuity to be deposited into the federal court registry. The stakeholder wants to be discharged or relieved of liability. The money is left there to be resolved by those who make a claim to it. But your claim needs to be based upon the law and filed properly with […]