1-561-514-0900 FREE CONSULTATION

Category: In the News

Florida Power of Appointment

FAQs Jul 28, 2021
post about Florida Power of Appointment

A Florida Power of Appointment might mean that you inherit millions. Or not. Certain family members and heirs may be entitled to know about these odd “creatures” hidden in a Florida Trust Document. If you don’t inherit under a power of appointment, you may or may not have rights to find out WHY you did not inherit. One of the most frustrating things about them may be that your mom or dad has the right–the power!– to give you money or property. A January, 2021 case from Florida’s 1st District Court of Appeal discusses this legal topic. To learn more, read on. Where Can I Read More about Florida Power of Appointment? To read about Florida Power of Appointment, there are two places to start. First, start with Part 1 of Chapter 709 Florida Statues. Most people think of Chapter 709 as dealing with Powers of Attorney, like a durable power of attorney. That’s Part 2. Part 1 deals with Florida power of appointment. Second, did you know that someone with a power of appointment can bind other beneficiaries or even family members? Read a very specific part of the Florida Trust Code. Read 736.0302, Florida Statutes. This is super important. Why? Understanding the Basics A person who creates, or gives, or grants, a power of appointment is called the power creator. A power of appointment is the right, but not necessary an obligation, to give away property. To “appoint” certain property, or a property interest, to others. A person […]

READ MORE

Breach of Fiduciary Duty Florida

In the News Jul 28, 2021
post about Breach of Fiduciary Duty Florida

A January 2021 Florida appeals court opinion deals with breach of fiduciary duty Florida. If you are a beneficiary of an estate or trust, listen up. If your fiduciary is not behaving properly, you may be able to sue for breach of fiduciary duty. Against an estate executor or trustee. A January, 2021 case deals with breach in an important trust context. If a trustee’s bad acts are serious enough, they can be REMOVED as trustee. Knowing all your remedies as a beneficiary is key to your case. This can include getting your attorneys fees paid, SURCHARGING your trustee, making her account, getting her to return compensation and fees. But, beneficiaries be aware of very short STATUTES OF LIMITATIONS which may be only months-long. Breach of Duty by Trustees in Florida A trustee’s breach of their duties is serious business. First, trustees in Florida owe a lot of duties to their beneficiaries. Heck, read the Florida Trust Code to learn more about trustees and Florida trusts. A breach is like a broken promise. If damages are caused, the trustee can be liable for those damages, SURCHARGE and even your attorneys fees and costs. But you have to have STANDING to sue the trustee. You have to have some legal connection to the trust or the trust property. And before you run off and sue your trustee, consider this. If you lose, your trust share, or you, may have to pay the trustee’s attorneys fees. There are fee shifting laws in […]

READ MORE

Challenging a Trust Before Death

In the News Jul 26, 2021
post about Challenging a Trust Before Death

Can you object to a revocable trust before the trust creator dies? You are not supposed to under Florida law. There are two things every potential challenger MUST READ. If you are thinking of contesting a trust or challenging its validity, read on. We have previously provided Florida Trust Commentary on such things as trust validity, trust attacks and undue influence. Now, let’s focus on a September 9, 2020 4th DCA opinion. (for a link to FREE TRUST VIDEOS, click HERE) 2 Things You Must Read Before Attacking a Trust Challenging a trust before death? Not so fast !! So, let’s be clear. You can’t attack a revocable trust while the trust creator is alive. The person who creates the trust is called the “grantor” or “settlor.” The attorney who writes the trust, or who prepares the trust for the creator, is often referred to as the “drafting attorney.” The Florida Trust Code is the body of statutory law laying out trust laws. It is added to by precedent. Precedent are the written opinions of our appellate courts. Trial courts, and appellate courts, interpret the Florida Trust Code. Judges tell us what the law means and says. When trial judges make trust rulings, appellate court judges will tell us whether the trial judge was correct or not. When a trial judge is wrong, it is referred to as committing error. Now, read Florida Statute 736.0207. This statute is a provision in the Florida Trust Code. It says that you can’t […]

READ MORE

Guardianship Fees Florida — who can object?

In the News Jul 26, 2021
post about Guardianship Fees Florida — who can object?

Everyone has read about the Britnye Spears guardianship. In Florida, which has a healthy “golden years” population, guardianships are common. And so are the expenses. Who pays for the guardianship fees Florida. And how does a family member object? We have previously provided a number of Legal Videos on Florida Guardianship. Now let’s discuss a Florida Appeals court opinion from In Re: Guardianship of Martino. This 2nd District Court of Appeal opinion was handed down July 8, 2020. Florida Guardianship Law If you want to read about Florida guardianship law, consider reading Chapter 744, Florida Statutes. That’s the Florida Guardianship Code. It explains the intent of those laws. It also sets forth rights and obligations and procedures. A Florida guardianship starts with a court filed document. Typically, two of them. You file a Petition for Determination of Incapacity when you believe that someone is in need of assistance. When they can’t handle their own affairs. You also typically file a Petition for Appointment of Guardian. If the judge agrees with you that the “alleged incapacitated person” needs assistance, she will then turn to the issue of whether a guardian is needed. And who the guardian should be. Guardianship Fees Florida If a guardianship is created, pay attention. If you are involved in the guardianship, you will get a lot of information. The court appointed guardian is required to share information with you (if you are an “interested” person. That is, if you have “standing.” ) Read the Florida Guardianship Plan. […]

READ MORE

Estate Planning Malpractice Florida

FAQs Jul 25, 2021
post about Estate Planning Malpractice Florida

The rights of non-clients to sue your parents’ estate planning lawyer seem to be increasing. At least in Florida. A recent Florida Appeals Court opinion on estate planning malpractice Florida helps guide family members and heirs. This legal commentary will discuss whether you can sue your grandmother’s trust lawyer. Understanding Florida Malpractice Legal malpractice is a cause of action, or lawsuit, that is brought against a Florida lawyer. It is often referred to as professional negligence. A Florida lawyer commits malpractice when their standard of care, their services, or failure to provide services, fall(s) below the standard. What standard? The standard of a reasonable attorney in that particular geography. Providing bad legal services can be as simple as not telling your client that she has rights. Or a cause of action against someone. But, can a trust beneficiary, heir, son or daughter sue mom or dad’s attorney who wrote the wills and trusts? Estate Planning Malpractice Florida Many times, family members or adult sons and daughters want to sue mom or dad’s estate planning lawyer. But, many times, heirs are prevented from suing for estate planning malpractice Florida. Why? Three of the most common defenses to professional negligence include blowing the statute of limitations. You didn’t sue fast enough. The statute of limitations for legal malpractice is 2 years. Read Chapter 95.11 (4)(a), Florida Statutes. (To read about stopping or “suspending” or tolling that time period and the computation of time, read the entire CHAPTER.) And remember: a letter won’t […]

READ MORE

Florida Trust Accountings–recent case sheds light on TRUST APPEALS

In the News May 9, 2021
post about Florida Trust Accountings–recent case sheds light on TRUST APPEALS

An April 29, 2021 appellate opinion sheds light on Florida Trust Accountings and final orders. Most Florida trustees know that you can give a six month “limitation notice” to a beneficiary. Most beneficiaries don’t really understand that you may only have 6 months to sue for breach of trust. This recent case discusses the “finality” of an order on a Florida Trust Accounting. That final order can’t be changed except under three very unique scenarios. Keep reading to learn more about trust appeals. (For a free legal video on trust accountings in the State of Florida, CLICK HERE.) Florida Trust Law on Beneficiary Rights — but watch the clock ! First and foremost, trust beneficiaries have a lot of rights in Florida. You can read all about those rights under the Florida Trust Code. That’s chapter 736 of Florida Statutes. To read about the obligations and duties of a Florida Trustee, read Trust Code Statutes 736.0801-736.0817. As a beneficiary, you have a right to know who your trustee is and to a complete copy of the trust document. That includes any amendments, restatements or changes. You can also obtain annual trust accountings. A trustee cannot operate or run the trust in secret. There needs to be full disclosure. But, trust beneficiaries can’t wait forever to exercise their rights. Sometimes you have 4 years to sue for a breach of trust. And sometimes only 6 months. If you are involved in a court case, any order from a judge may have […]

READ MORE

Florida Lawyer Disqualification + Conflict of Interest

In the News Mar 28, 2021
post about Florida Lawyer Disqualification + Conflict of Interest

Filing a motion with the court to disqualify your opposing counsel is serious stuff. A March 26, 2021 opinion from the 5th District Court of Appeal, Florida, sheds light on this. We have previously discussed ATTORNEY CONFLICT OF INTEREST before. Now, let’s get an update. Lawyers and Ethical Duties The Florida Bar imposes many ethical duties on lawyers. They can be found HERE. Check out Chapter 4 on Professional Conduct. Not only is a lawyer required to be loyal to clients, and work hard, but you should avoid conflicts of interest. A Florida lawyer who is “adverse” to an existing client may be disqualified from that case. After all, a Florida attorney is not supposed to be adverse to, or against, an existing client. In other words, lawyers don’t sue clients. Or take a position that hurts a client. Now, this does NOT mean that a lawyer has to do everything a client wants. We are not talking about a sincere fundamental disagreement on a case, for example. In many situations, a Florida attorney is also prohibited from being adverse, or against, many former clients. A March 26, 2021 Florida Lawyer Disqualification opinion was issued by the 5th District Court of Appeal. To read this opinion CLICK HERE. This DCA case also speaks about lawyers’ conflicts of interest. Florida Probates + Florida Lawyer Disqualification We have previously written about Florida probate matters and Florida Lawyer Disqualification . And there has been good legal commentary on CONFLICTS OF INTEREST. Perhaps one […]

READ MORE

Restrictive Covenants in Florida Contracts

In the News Mar 24, 2021
post about Restrictive Covenants in Florida Contracts

Restrictive covenants in Florida contracts were front and center on March 17, 2021. The 4th DCA issued its opinion regarding a Broward County real estate commission dispute. If you are involved in Florida contract litigation , is your restrictive covenant valid or void? Restrictive Covenants in Florida Florida sells a lot of real estate. Houses, condos, warehouses are built, renovated and sold, and re-sold, hundreds of times. And while aspects of contract law are pretty clear in Florida, people may know less about restrictive covenants. Restrictive covenants are serious promises or limitations which one party agrees to. They may involve land or something very personal like services. Florida Restrictive Covenants can be thought of as rights which are granted to another. What if agree with everyone in your housing development not to build higher than 3 stories? In real estate law, sometimes that is referred to as a restriction that “runs with the land.” It can be passed down to future owners. It supposedly benefits your neighbors and it burdens your land or house. In the employment context, many of you know about non-competes. Non-competes are typically found in employment contracts. They restrict an employee from doing certain things, typically when they leave employment. Such as soliciting or accepting business from your former company’s clients when you leave. Or from working in the same field. Most of those restrictions in a Florida non-compete need to be reasonable as to duration (time) and geography (location). But what about a Florida real […]

READ MORE

Florida Proposal for Settlement Case 768.79

In the News Mar 18, 2021
post about Florida Proposal for Settlement Case 768.79

A unique, and, often misunderstood, Florida Law can get you attorneys fees under the right circumstances. We have previously written about Florida Statute 768.79 and Florida Rule of Procedure 1. 442. A recent, March 17, 2021, appellate opinion from the 2nd District Court of Appeal tells us more about what some lawyers call the “offer of judgment” statute. We have previously written about service of proposals for settlement. So called “Fee Shifting” statutes are common in Florida Probate and Trust matters. They are less common, almost non-existent, in tort cases. Ending Litigation or Creating More? The proposal for settlement statute was intended to limit litigation. But it causes a lot of motions to be filed and a lot of appeals to be taken. Want to read a recent 2nd DCA case about Florida proposal for settlement or offer of judgment? Then simply click on Arizone v. Homeowners Choice Property & Casualty Ins. Co., Inc. You also need to read Florida Rule of Civil Procedure 1.442. “A proposal for settlement can be an effective way to end a lawsuit” says Florida litigation attorney John Pankauski. He spends time preparing Florida proposals for settlement and reviewing them when they are sent to his clients. “They can also be an effective way to seek attorneys fees” Pankauski continues. That’s because Florida follows the “American Rule”. The American Rule says that each party pays their own attorneys unless there is a statute or a contract. “In many non-contract cases, a settlement proposal under the […]

READ MORE

Florida Temporary Injunction

In the News Mar 11, 2021
post about Florida Temporary Injunction

A March 5, 2021 decision from the 2nd District Court of Appeal sheds light on Florida temporary injunctions. We have provided solid Florida legal commentary about injunctions before. Why now? Read on ! 4 Requirements How do you win a temporary injunction? There are generally four requirements that you must show or prove. Here they are: (1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest. “We have filed and also defended motions for temporary injunctions” says Trust + Estate Litigation Lawyer John Pankauski. “We are very familiar with Rule 1.610 and the caselaw. We know what is required to win.” Florida Temporary Injunctions for Estates and Trusts Be sure to read Florida Rule of Civil Procedure 1.610. Following that rule is key to obtaining an injunction. Many estate beneficiaries and family members want probate assets frozen! Many believe, whether correctly, or incorrectly, that estate money may be mis-spent, taken or squandered. What about Florida trusts? Under the Florida Trust Code, trust beneficiaries know that a judge can freeze a Florida trust. A “freeze” is a Florida temporary injunction. Want to read more about what a Florida Trust Judge can do? Consider reading 736.0201 and also 736.1001 of the Florida Trust Code. Or read this new opinion about Florida temporary injunctions. What You Need to Know! Why do so many estate and trust beneficiaries want to know about Florida temporary injunctions? […]

READ MORE