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Category: In the News

Florida Appellate Lawyer

In the News Sep 14, 2023
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Knowing when to file a notice of appeal, or a motion for rehearing can be confusing. A recent case tells you not to wait when dealing with non-final orders. Your Florida appellate lawyer should know when to avoid motions and also how you can use them to your advantage. ( Very important: there are special rules for probate appeals. ) Final and Non-Final Orders When handling a matter a trial, the best time to consider an appeal is before your trial begins. Not after the judgment is entered. Are you ready for an appeal if you win? And, maybe more importantly, are you ready for an appeal if you lose? Can you anticipate issues which may be challenging? Like what issues? Evidentiary issues. Hearsay. Even jurisdictional issues. Most people know that you have 30 days for your Florida appellate lawyer to file an appeal. (There are unique and special rules for appealing rulings on attorneys fees.) What does that mean? Florida Appellate Lawyer An appeal is initiated under the Florida Rules of Appellate Procedure. A notice of appeal must filed in the trial court. Pay the filing fee at the District Court of Appeal and with the trial court’s clerk. Start to get the record sent up to the DCA. This means that you need everything in the court docket, and used by the judge, which addresses, or deals with, what you believe is error. This may be more than just the court-filed documents. So, if there was a hearing […]


Lis Pendens Florida — everything you need to know (well….almost)

In the News Sep 4, 2023

Dealing with a Lis Pendens Florida? Need to preserve your rights? Read a new opinion on this Florida Real Estate Legal topic to learn just about all you need to know . For a free legal video on this subject you can also CLICK HERE. (no one will ask you for your name or any data or information) A lis pendens Florida may be needed to assert your rights to real estate. #lispendensflorida Real Estate Litigation in Florida There are a lot of disputes regarding Florida real estate. Sometimes, a closing does not go as planned. The buyer and the seller have a disagreement after signing the purchase and sale contract. Which shouldn’t happen, right? After all, that’s why you put things in writing in the first place. But, sometimes a real estate contract just doesn’t address certain issues or rights. But, more often then not, lots of probate disputes involve real estate. Especially homestead. Especially when someone like an heir or a personal representative of an estate is trying to sell the real estate quickly. Maybe they did not give you notice. Maybe it’s really supposed to be YOUR real estate. And when you are “fighting” about homestead litigation or real estate litigation, everyone wants to know about a lis pendens. Lis Pendens Florida To read about the statute in Florida, click: Florida Statute 48.23. To read a new 3rd DCA opinion on this subject, click here. Scroll to case 23-1180 dated 8/30/2023. Here is a list of “bullet […]


Fiduciary Duty Florida

In the News Aug 10, 2023
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A recent appellate opinion helps you understand what is fiduciary duty Florida. While common in Florida probate and trust cases, this one was about a contract. Who owes you a fiduciary duty Florida? There are three important “legal actors” who you need to know about when considering fiduciary duty Florida. First, there are those who are so-called “official” fiduciaries. Like Trustees, Personal Representatives or executors of estates. And powers of attorney, also called an attorney-in-fact. Those legal actors are, by definition, fiduciaries. They have agreed to serve, and owe duties of loyalty to their principal or beneficiaries. The law is clear. And there can be a LOT of fiduciary duties. They also agree to put the interests of those who they have agreed to serve above their own. There are a LOT of duties for a trustee. Same for a Personal Representative or executor of a Florida probate or estate. A POA = same thing. (even though the Florida laws call a POA an “agent.”) Who else owes you those duties? Working hard…… The 2nd group? Those who are not “per se” fiduciaries, may become one. How? If they accept a role of serving another. If they are given trust and confidence, and they accept that, and act on it. They then owe a duty. Or maybe multiple duties. And, if they screw up, they can be sued for breach or even surcharge. To read free Florida legal blogs about breach, click here. Contracts = no duty But most contractual […]


Right of First Refusal Florida

FAQs Jul 22, 2023
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A lot of real estate changes hands in Florida. A recent case deals with a right of first refusal Florida. If you are a tenant, or have a ROFR via a contract, you need to read that case. Florida Real Estate So, there is a LOT of interest in Florida real estate. Vacant land, office towers, apartment complexes and plain old homesteads and residences can change hands multiple times over the years. (But….remember…. ROFRs are NOT for just real estate.) Many times, a tenant may have a right of first refusal Florida. This gives the tenant a right to purchase a particular property upon certain terms when the seller intends to accept an offer from another. Many times, though, a right of first refusal Florida is not found in a lease. But in a private contract. A deal. Because a potential buyer wants to know if the seller is going to sell. But this property right places obligations on the seller or owner of the real estate. She needs to give notice, and proper notice, to the person who has, or holds, the ROFR. Failure to follow the ROFR can get the owner/seller into legal trouble. A recent case from Florida’s 4th District Court of Appeal discusses this very issue. But, first, let’s get some bullet-point-advice from a Florida trial attorney who handles lots of clients, litigation and appeals over homestead, real estate and plain old Florida real estate. Florida Right of First Refusal


Florida Trust Accounting

In the News Jan 28, 2023
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Who gets to see the books? And who has legal standing in a trust matter to get a Florida trust accounting? The answers may surprise you. Who gets a Florida trust accounting? Just as “not everyone” can participate in a Florida probate, you have to be connected to participate in a trust. (To read more about the probate process, click here.) What?… Who gets a Florida trust accounting is limited to qualified beneficiaries. What’s a qualified beneficiary? Well, think of it as one who can get trust money right now, or who may get it when another beneficiary’s interest ceases. (Like, for example, if your mom or dad die, you might inherit their share of the trust. You don’t get money now, but you will get it in the future if there’s any trust money left. You and mom or dad in this example are qualified beneficiaries. And entitled to an accounting each year). A qualified beneficiary is defined in the Florida Trust Code at 736.0103(19). Want to learn more? Read this…. Read Florida Trust Code Chapter 736. It will tell you all about Trust Law in Florida and explain beneficiary rights and trustee obligations or duties. For more information about legal standing in a trust contest, read the Cruz case. This 5th District Court of Appeal opinion dealt with adult children who challenged their father’s revocable trust. This case also dealt with a limitations notice. (To learn about standing in a Florida probate, you can read this for free […]


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 […]


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 […]


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 […]


Settlement Agreement Florida

In the News Aug 19, 2022
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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 […]


Guardian Fees in Florida

In the News Aug 18, 2022
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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 […]