1-561-514-0900 FREE CONSULTATION

Category: In the News

How to Object to the Will in Florida

In the News Nov 28, 2022
post about How to Object to the Will in Florida

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 […]

READ MORE

Power of Appointment Florida

In the News Nov 20, 2022
post about Power of Appointment Florida

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 […]

READ MORE

Judgment on the Pleadings

In the News Aug 25, 2022
post about Judgment on the Pleadings

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 […]

READ MORE

Settlement Agreement Florida

In the News Aug 19, 2022
post about Settlement Agreement Florida

Can you be bound by a settlement agreement Florida that you don’t sign? Generally, hell no. Here’s “all” you need to know about this trust legal topic in 3 minutes. We have previously written about deals that were struck at mediation. How to read them. And to enforce them. Now, let’s get to this new legal opinion. Mediation and Settlements Most people settle their cases. One reason is that probate judges in Florida require mediation before trial. Some judges require multiple mediations. Many times, those mediations end in a settlement agreement. Many times, the parties ask the court to approve a settlement agreement. And compel everyone to be bound by the terms of the settlement agreement. Everyone? Well, not really. A recent opinion from the Palm Beach Appeals Court, Florida’s 4th District Court of Appeal tells us more. Florida Settlement Agreement What if you did not sign the settlement agreement? But the agreement affects your rights? Let’s face it: settlement agreements are very common for estate beneficiary, will contests, and trust lawsuits. Or takes away some property or trust interests from you? You got a trust lawsuit ! But the good news is that a settlement agreement only binds the parties. If you did not sign, you are not bound. Now, there are exceptions. You could be bound indirectly. Such as if you are a share holder, a member in a Florida LLC, or a beneficiary of a Florida trust (where the trustee signs the settlement). But this is a […]

READ MORE

Guardian Fees in Florida

In the News Aug 18, 2022
post about Guardian Fees in Florida

Where do you pay guardian fees from? What if there’s not enough money ?? An August 17, 2022 opinion reveals that an emergency temporary guardian may not use the Ward’s IRA to pay her fees and compensation. We have previously written about Florida Guardian Compensation before. Now, let’s consider the legal “tension” between two statutes. Guardian Compensation First of all, if you want to read about Florida guardianships, read the Florida Guardianship Code. Chapter 744 Florida Statutes. You can also read the Florida Probate Rules, which has rules for guardianships. They start at Part III, with Fla. Prob. R. 5.540. There are a number of cases about compensation and fees for THE LAWYER of a Florida Guardian. And there are different cases and opinions for Guardians (e.g. limited or plenary) vs. Emergency Temporary Guardians. For the statute of guardian fees, check out 744.108. But, what if the ward dies ? How does the guardian get paid? ETG Can’t Get to Ward’s IRAs if Family Fights The 1st District Court of Appeal issued an opinion on August 17, 2022. This opinion dealt with guardian fees. Specifically, whether the guardian could get paid from the Ward’s IRAs. No! (Absent family members permitting that. Or, I should say, absent the IRA beneficiary agreeing to that). You can read this Florida Emergency Temporary Guardian case. The name is Araguel v. Bryan. Family members wanted to get a guardianship over mom. The court did not appoint a family member. The probate court appointed a professional […]

READ MORE

Forum Non Conveniens

In the News Aug 16, 2022
post about Forum Non Conveniens

Two recent Florida appeals court opinions provide guidance on transferring a lawsuit to another court. Maybe another state. When that other court would be more convenient. These opinions also examine the evidentiary obligation of the person making the motion. And, they consider the discretion of the court to transfer a case based upon the “interests of justice.” “Everything” you need to know about forum non conveniens in 3 minutes and 12 seconds. What is forum non conveniens? If the lawsuit was filed in a court that may be proper, BUT another court may be more “appropriate.” A defendant can file a motion that asks the court to move the case to a more convenient forum. That could be in another county or state. There is “tension” in the law . Between the preference of the party filing the lawsuit to select an appropriate forum. Yes, the plaintiff generally gets to select her venue among multiple proper ones. See Rule 1.060 (b). So, where’s the legal tension? Well, the defendant can ask for a more appropriate court room. In many instances, defendants can be sued in multiple counties in Florida. If the plaintiff files in a permitted courthouse, the defendant can still ask the court to move the case. And, the court has certain discretion in the interests of justice. That’s the legal tension. Note that this type of motion is different than a motion to dismiss for failure to state a cause of action. See Florida Statutes Chapter 47 on […]

READ MORE

Summary Judgment in Florida

In the News Aug 6, 2022
post about Summary Judgment in Florida

Summary judgment has changed in Florida. Knowing the new rule is only part of it. You need to know how an order on summary judgment should be written. What it must say. An August, 2022 opinion helps you understand this. To view a free Legal Video on this very topic from a lawyer who actually handles this interesting legal topic, and similar matters, CLICK HERE. The Basics Summary judgment may indeed be a short cut to victory. It could avoid a trial. (Be sure to read Rule 1.510). After all, if there’s no need for a trial, why have one, right? SJ can be granted by a judge if there is no disputed issue of MATERIAL FACT. If there is a pure question of law, why not just have the judge tell you how she will rule? In other words, if the law is clear, you may be entitled to “judgment as a matter of law.” This shortcut can save you thousands of dollars in legal fees and months of time litigating. Want to read more? Update: for a 4th DCA opinion on a defective affidavit when summary judgment was sought, read the Gromann v Avatar case Recent Case In April of 2021, the Florida Supreme Court changed the summary judgment rule. One purpose was to make Florida’s rule more like the federal rule. With the new standard, it’s not enough for a court to rule. The court must rule correctly. If not, the ruling can be appealed at the […]

READ MORE

Florida Guardianship Lawyer — what you can learn from a recent case

In the News Dec 19, 2021
post about Florida Guardianship Lawyer — what you can learn from a recent case

Finding a good Florida guardianship lawyer should not be hard. There are, after all, dozens of so called “elder law” attorneys and “guardianship attorneys.” But if you are in a “fight” or a contested guardianship, don’t you need firepower? A guardianship trial attorney? A December 15, 2021 case lets you get up to speed very quickly on some of the most important legal principles. To see a number of FREE FLORIDA GUARDIANSHIP VIDEOS, simply click those words. What You Need to Read How can you learn the basic “legal stuff” about guardianships quickly? There are four things to read. The Florida Guardianship Code. Chapter 744 of the Florida Statutes is our Guardianship Code. That is an excellent place to start. It sets for the basic legal concepts, some procedural time frames and legal rights. Second, consider reading the Florida Probate Rules. Why? Because there are special rules for guardianships. See Part III to the Rules. I know that everyone has see the Netflix film, I Care a Lot, or have read about the Britney Spears guardianship. But in Florida, you might consider taking your cues from serious, experienced guardianship trial attorneys. Read Florida Appellate Opinions. These are written legal opinions from our District Courts of Appeal. There is a December 15, 2021 opinion from the 3rd District Court of Appeal. That court handles appeals for Miami-Dade County. Let’s see what we can learn from their opinion in the In Re: Guardianship of Ash. Florida Guardianship Lawyer — do I really […]

READ MORE

Estate Objections in Florida

In the News Dec 1, 2021
post about Estate Objections in Florida

Sometimes, to exercise your rights in a Florida probate, you have to file estate objections. This is particularly true with a surviving spouse . Why? Because a spouse has a lot of legal rights and options in a probate. Elections to make–or not make. What about compensation and attorneys fees? Yup, someone might object to them. A November 24, 2021 case discusses when one has standing in a Florida estate or probate to object. Estate Objections What’s to object to? Things like: compensation of the Personal Representative, fees, costs and how the estate is being administered or how property is being managed. You have to object to an estate inventory before the estate is closed. But for other matters, you may have to object much sooner. Compensation of the executor (personal representative) Attorneys fees Determination of beneficiaries Costs incurred or estate money spent Elective share elections Family allowance Estate property inventory Probate accounting Statements of claim Creditors claims and more……………….. ! How Can I Learn More (What Do I Need to Read Right Now) ? The Florida Probate Code is the set of statutes or laws which govern estates. Estates are those legal proceedings or entities which are created when a Florida resident dies. The person in charge of a Florida estate is the “Personal Representative.” What does she do? A personal representative of a Florida probate does a lot ! They: gather assets, pay creditors, pay estate administration expenses, deal with any issues like litigation or payment of final […]

READ MORE

Statute of NonClaim — creditors claims in Florida Estates

In the News Nov 30, 2021
post about Statute of NonClaim — creditors claims in Florida Estates

If you are owed anything from a dead person in Florida, file a statement of claim absolutely no later than 2 years after the date of death. Wow, that’s an earful. A November 24, 2021 Florida Appellate Opinion on estate claims reminds us about Florida’s Statute of Nonclaim. And why you need to file a statement of claim ASAP in a Florida probate. To read more about creditors claims in Florida estates or probates, you can click HERE. Claims in a Florida Probate If you are owed anything from someone who dies, you need to open a probate. And make your claim ! If a probate is opened, that saves you a step! Now, you need to file a timely statement of claim. (If you don’t want to open a probate, consider filing a CAVEAT. But be careful of the 2 years time frame.) If you lent money to a person who is now deceased, break out the loan agreement. It probably has a provision on what to do if the borrower dies. But money lent or loans are just one example of a claim that must be filed in a probate in Florida. If you have rights under a prenup, a contract, or an operating agreement, like a Florida LLC, you need to file a statement of claim. And the law limits how much time you have to do that. If you don’t file your claim properly and timely, you are out of luck. For a free Florida probate […]

READ MORE