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Category: FAQs

Do Co Trustees Have to Act Jointly?

FAQs Jul 23, 2022
post about Do Co Trustees Have to Act Jointly?

Trust disputes can get ugly between beneficiaries and their trustees. But what if there are multiple trustees of your Florida trust who don’t agree? Do Co Trustees have to act jointly? Read below for the answer. If you would like to see a FREE FLORIDA TRUST VIDEO on trust lawsuits’ secrets, click that link. Florida Trust Suits and Disputes The Florida Revocable Trust is almost as popular as the will. A Florida Will often “pours over” into a revocable trust. The revocable trust becomes irrevocable upon the creator’s death. (To read more about what a revocable trust, is click HERE.) Many Floridians use a revocable trust to leave inheritances, real estate and money for loved ones. When you create a trust, you have to name a trustee. (To read how to create a Florida Trust, consider glancing at Florida Trust Code Law 736.0401). Sometimes, the trust creator names multiple trustees. But what if the co trustees don’t get along? Do co trustees have to act jointly? (To see an easy-to-follow Florida Trust Legal Video on trust challenges, simply click HERE.) When Co Trustees Don’t Agree When co trustees don’t agree, how do they run the trust? First, Co Trustees should get along, cooperate and work together. (To read about a trustee’s duties, check out Florida Trust Code Law 736.0801- 736.0817. ) Read the trust document. Most trust documents will give the trustees instructions on how to act . A trust document might say that the co trustees MUST act unanimously. […]

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Can a Power of Attorney Make Gifts?

FAQs Jul 16, 2022
post about Can a Power of Attorney Make Gifts?

In Florida, people have power-of-attorney documents as often as they have a will or a revocable trust. But mis-use of a “POA” causes concern. Many times, POAs take money or make gifts when they should not. So, can a Power of Attorney make gifts? To read about MISUSING a power of attorney, click this FREE LINK to Florida POA Law. Power of Attorney in Florida Let’s come out and say it : a power of attorney should not make gifts in Florida. There is even a special law about making gifts. Read Fla. Stat. 709.2202(1)(c) which prohibits making gifts ABSENT VERY SPECIFIC LANGUAGE AND PERMISSION. BUT, doesn’t every rule have exceptions. Here are some important bullet points for power of attorney law in Florida. (For a free legal video on UNDERSTANDING POWER OF ATTORNEY, click HERE.) A power of attorney is a fiduciary The person who “gives” or “creates” a power of attorney is called the “principal“ The POA is supposed to act in that person’s best interest The POA can and should spend the principal’s money — on the principal! The POA can use the power of attorney document to pay the principal’s bills The POA should not make gifts of the principal’s money unless the document specifically authorizes that The fiduciary should not make gifts of money or property to herself That’s called “self dealing” and is a “conflicted transaction” or a conflict of interest In unique or rare or limited circumstances, a principal might give the POA […]

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How Long is an Emergency Temporary Guardianship?

FAQs Jul 16, 2022
post about How Long is an Emergency Temporary Guardianship?

A Florida Emergency Temporary Guardianship should only last 90 days. BUT, there are special rules. There is much written about Florida Guardianship Lawyers and what litigators refer to as CONTESTED GUARDIANSHIPS. (Click that last tab for free legal videos). To learn more about ETGs, keep reading. Florida Guardianship Law Want to learn more about Florida Guardianship Law? Start with Florida Laws Chapter 744. That’s the Florida Guardianship Code. Those are statutes which tell the judges, the court, and the litigants, and their lawyers, how things run. Do you know the difference between a “mental health” case and “guardianship” or “GA” case? Do you know why you need two cases for a guardianship? (Yes, asking the court to rule that mom or dad is not competent is different than, but related to, asking a probate judge to appoint you as guardian.) Don’t forget to read the Florida Probate Code which has special rules for all probate matters. This includes estates and probates and guardianships. Finally, where is your guardianship located? Courts in Florida are divided up into judicial circuits. Judicial circuits in Florida have divisions. Each Florida Judicial Circuit has a probate division. The probate division handles guardianships. There may be more than one judge assigned to handle guardianships. That means there can be 2 or 3 divisions that your guardianship may get assigned to. Be sure to check out the Administrative Orders & local rules for your judicial circuit as well as a judge’s set of “judicial instructions.” Most can […]

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Estate Claims in Florida — how to deal with them

FAQs Dec 2, 2021
post about Estate Claims in Florida — how to deal with them

Many times, you have to make a claim in a Florida probate or estate to get your money. That’s if you are considered a “creditor.” On the other hand… Often, if you are beneficiary or an executor, you have to deal with those creditors and estate claims. Should you pay them? Are they valid? You can OBJECT to those claims if appropriate. This Florida Probate Commentary will deal with estate claims. To read more about making a claim, you can click HERE. Now, let’s find out quickly and concisely what you need to know. Estate Claims — what are they and how do I get paid? Estate claims are claims made against a deceased Florida resident. They are sometimes referred to as creditors claims. Why? If you are owed something from a dead person, you are her creditor. A creditor’s rights and status are different than those of a BENEFICIARY. Since the Florida resident (who owes you something ) is now dead, you have to make your claim against her estate. What is an estate claim? Think of a claim as an assertion of a right. It may be a right to get re-paid, like from a loan you made to the dead person. Or it may be a right to buy certain property. Think real estate or an interest in a Florida LLC when a member dies. How do I do make my claim? File Your Claim ! If you are owed any money from someone who died, you […]

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Undue Influence Lawyer Florida

FAQs Nov 18, 2021
post about Undue Influence Lawyer Florida

Need an undue influence lawyer Florida? Understanding this legal concept can assist in finding an experienced attorney for your will contest or trust contest. To see a free video on undue influence, you can click HERE. To read more about undue influence, click HERE. Now, let’s discuss this topic in light of a November 17, 2021 opinion from the Miami-Dade Appellate Court. What is Undue Influence? Undue influence is a form of fraud that can cause a will or trust to be void. If someone caused a will or trust to be signed by undue influence, it’s void. Undue influence is over-pursuasion, force, coercion. Pressure. When that pressure or force or influence is so great, the “undue-influencer’s” desire and intent replace the victim’s. To read more about this legal topic, click HERE. To read about the warning signs of undue influence, click this FREE Florida probate legal commentary. Recent Appellate Opinion Undue Influence Lawyer Florida On November 17, 2021, the 3rd District Court of Appeal issues its opinion in the case of In Re: Estate of Tien. You can read that opinion for free . That case dealt with related issues involving a challenge to the will, a voluntary dismissal and a caveat.

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What is a Revocable Trust Florida?

FAQs Nov 7, 2021
post about What is a Revocable Trust Florida?

Millions and billions of dollars pass through revocable trusts in Florida to beneficiaries, family members, in-laws and even outlaws. But many people mis-understand what a revocable trust is. This is your easy-2-understand guide. We have previously written about these estate planning documents, or entities (click HERE to read more). Now, let’s go a bit deeper. What is a Revocable Trust Florida? Background — why do I care? You need to know about revocable trusts for 2 main reasons. First, everyone in Florida has them ! (Mostly everyone !!). They work just like a will….sort of ! They are part of a Florida resident’s estate plan. They can work with a pourover will and also a power of attorney. Most of the time, someone has a will that leaves most everything to their revocable trust. Then, the revocable trust gathers assets and administers those assets according to the trust document. The trust document may, for example, distribute everything right then and there. Or, keep money in trust for years and years to come. (Some beneficiaries may never get a dime. And some may not see any money for decades unless you modify the trust. Want to modify a trust? Start by reading this law. ) What else do I need to know about what is a revocable trust Florida? What is a revocable trust ? Second, that’s how a lot of inheritances are left or created. Through one of these trusts. While most of the time a lawyer writes a trust. […]

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Disqualifying an Attorney in Florida — in a nutshell

FAQs Nov 7, 2021
post about Disqualifying an Attorney in Florida — in a nutshell

Even though attorneys are often the brunt of jokes, they do serious work. And are held to high ethical standards. They owe duties of loyalty to clients. As they should, right? And they should be disqualified if they are presented with a conflict of interest. This Florida legal commentary will discuss disqualifying an attorney in Florida. Including a November 3, 2021 appellate opinion. (We have previously discussed this subject HERE and HERE.) Even if you are a FORMER client, you have rights. Ethical Duties of Florida Lawyers Lawyers in Florida are held to high ethical standards. Lawyers owe clients a duty of loyalty. The Florida Bar has an Ethics Hotline that consumers and attorneys can call. You can review, search, and read, for free, Florida Bar Ethics Opinions online. A lawyer must always act in the best interest of her client. And while a lawyer is not required to be perfect, she must always seek to put the client first. That’s what a fiduciary does. You place your client’s interest over everyone else’s, including your own. And when your interests as a lawyer conflict or collide with a client’s, the lawyer must disclose that conflict. In most instances, the lawyer must also end the representation. Although, some conflicts may be knowingly (and voluntarily) approved of, or consented to, by the client. To read more about ethical duties of Florida lawyers, read the Rules Regulating The Florida Bar. Focus on Chapter 4 Rules of Professional Conduct. Disqualifying an Attorney in Florida […]

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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 […]

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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 […]

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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 […]

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