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Category: Probate Information

Who Inherits in Florida?

Probate Information Oct 11, 2021
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This is your 1-stop-shop for learning who inherits in Florida. If you are wondering about an inheritance. Or are involved in a Florida probate. If there is a will challenge or fight over a joint account. Here are the 5 secrets to inheriting in Florida. The Rule of 2 There are 2 quick & simple rules for who inherits in Florida. This is your jumping off point for finding out if you get an inheritance. It all starts with whether or not there is a will. And not just any will, but a valid last will. Here’s your #1 secret. A valid last will governs all property that was owned by the decedent individually. A decedent is a Florida resident who is dead. If she owned property in her own, individual, name, it will pass under her last valid will. I’m not talking about assets owned in a revocable trust or in a joint account or a POD (“pay on death”). [ Those assets “go” according to the beneficiaries who are designated.] Since one can have multiple wills, only the last valid will rules. (Most wills revoke all prior wills.) And it has to be valid. No undue influence or duress or mistake or insane delusion. Want to read about wills in the Florida Probate Code? Click this FREE LINK which will take you to the Florida Probate Statutes section on wills. Now, the #2 secret? Intestacy. Dying Without a Will in Florida — heirs take it all ! Intestacy […]

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Mediated Settlement Agreement

Probate Information Oct 11, 2021
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A mediated settlement agreement is often used to “ink” a deal in a Florida probate or trust dispute. IF the parties settle. They are contracts. But how do you enforce your deal if the other side is not doing what they promised to do? We have previously written about mediation agreements. Now, let’s focus on how Florida law does not let people get out of signed deals. Why Mediation? If you are involved in a Florida estate or trust dispute, you are going to be ordered to attend a mediation before trial. It’s a serious settlement conference. So, take the mediation seriously. Be prepared and try to win. Who’s at the mediation? Typically you and your lawyers. The other side or sides, and their lawyers. And a mediator. Who is the mediator? The mediator is a neutral, objective third party who is there to try to broker peace. To discuss settlement. To foster compromise. Many retired judges mediate. Many experienced probate litigators are also asked to mediate disputes because of their vast experience and expertise. What is perhaps the #1 rule to a successful mediation? The parties have to want to settle. And any deal is typically reduced to a written contract. And everyone signs on the dotted line. Sometimes, there is a prevailing party attorneys fees provision. If you have to go back to court, the prevailing party can get reimbursed, from the other side, your attorneys fees and costs. Sometimes, mediated settlement agreements are subject to court approval. […]

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What is Aiding and Abetting a Breach of Fiduciary Duty?

In the News Oct 11, 2021
post about What is Aiding and Abetting a Breach of Fiduciary Duty?

Lots of trust beneficiaries know that you can sue your Florida trustee for breach of trust. But can you sue the trustee’s lawyers too? How about those that assist a trustee in doing bad things? A recent appellate opinion discusses what is aiding and abetting a breach of fiduciary duty. We have written about this topic before. To learn more, click HERE, and keep reading. Getting the Background: what it’s like to be trustee in the State of Florida Lots of family members and trust beneficiaries take issue with their trustee. Whether or not trustee criticism is justified depends on your case. And your trust. And your attitude. Candidly, not every trustee is necessarily bad. And a lot of beneficiaries don’t like the idea of asking a trustee for money. Let’s face it: most people want their inheritance “outright“….and not in a trust. But being a trustee is serious business. A Florida trustee is managing property of another for beneficiaries. She is a fiduciary who is supposed to place the interests of her beneficiaries above everyone else’s–including her own. And, in fairness to trust beneficiaries, the Florida trustee has a lot of duties they owe to beneficiaries. It’s all in the Florida Trust Code. Trustees are actually not required to serve as trustee. You can decline. Just because you are named in a trust document does not mean you have to be the trustee. Now, let’s get back to those duties a trustee owes its beneficiaries. If you breach, or […]

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Mediation Settlement Agreement in Florida Probates — how to read them

In the News Oct 10, 2021
post about Mediation Settlement Agreement in Florida Probates — how to read them

Mediation settlement agreements in Florida probates are intended to END your estate dispute. So, why is there so much litigation, and many appeals, over these documents? This free legal commentary will discuss a recent, 2021 case involving an estate settlement. In writing ! What do you do when a court order says one thing, and your settlement agreement says another? [ For those of you who have not attended mediation yet, get ready ! Retired judges say repeatedly that it’s your best chance to get an inheritance. Or end a fight–with a lot less risk than trial. To see a FREE FLORIDA PROBATE VIDEO on how to win at mediation, CLICK HERE. ] How To Read a Settlement Agreement In Florida probate disputes, judges will order the parties to attend a mediation. A mediation is a settlement conference. There is a neutral, third party facilitator, called a “mediator.” She will attempt to foster discussion and see if the parties want to settle. If a settlement is reached, it will be reduced to a written and signed settlement agreement. What happens if there is a dispute over the document? AFTER you settled ? How do you read a mediation settlement agreement ? Here are some bullet points: Read the plain language of the agreement. That’s the starting point. Don’t read too much into it. If the language is clear and unambiguous, then it says what it says and means what it means. Just because you and the other side to your […]

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How to Revoke Probate in Florida

FAQs Sep 12, 2021
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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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Probate Contingency Lawyer

FAQs Sep 8, 2021
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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 […]

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Petition to Revoke Probate Florida

Probate Information Sep 8, 2021
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A Petition to Revoke Probate Florida may be your only way to get an inheritance if it was taken from you improperly. If an invalid or suspicious will was presented to probate, you just might have a will contest on your hands. Do you know how to enforce your inheritance rights? Understanding the Probate Process The Florida Probate Process is, in once sense, straightforward. You gather all the deceased Florida resident’s assets, pay her last expenses and bills, and then distribute what’s left over to the beneficiaries. But determining beneficiaries may be more of a challenge than one believes. If there is no will, then the HEIRS inherit under what’s called “Intestacy.” If there is a valid will, then the property goes to the will beneficiaries. A Petition to Revoke Probate Florida is a court filed document in the probate court. (It’s explained in more detail below). If there are multiple wills, a court will determine which one is valid. In that case, the will signing becomes very important, as well as the person’s mental health. Finally, the facts and circumstances of how a will came to be signed are important. Was there undue influence or fraud? To see videos on will challenges and undue influence for free, CLICK HERE. Reading the Florida Probate Laws + Rules The good news is that you may learn a lot about the Florida Probate process quickly, easily and free of charge. Listen up Heirs, children, grandchildren and adopted kids ! The Florida intestacy […]

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Florida Will Contest

Our Firm Sep 7, 2021
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What is a Florida Will Contest and what do you need to know? To see a free Florida probate video about a will contest, CLICK HERE. To learn more, keep reading. An Introduction to Florida Will Contest A Florida will contest is a challenge to a will. It involves going to court, the probate court, and making a claim. This claim is often in the form of a court-filed document called a Petition. In that Petition, you set forth your case on why the will is not valid. That is your challenge. You challenge the validity of the will. Florida law lists a limited number of reasons why a will may not be valid. Understanding all of these legal avenues is key to your success. Gathering your evidence is key. Finally, knowing how to try this type of case is paramount. Unless you settle your will contest, it will go to trial. A probate judge will tell you whether a will is valid or not valid. If there are a number of wills in play, she will tell you which ones are valid, which are not valid, and which one controls. Are you ready? Affect of Fraud or Duress A will that is caused by Fraud or Duress is void. Undue influence is a kind of fraud. Many times, people question wills that are signed right before death. Or, when a new beneficiary magically appears in a will, and was never there before. If a person forced or pressured someone […]

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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 […]

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Florida 57.105 — getting attorneys fees damages from the other side

In the News Sep 6, 2021
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Lots of family members involved in a trust or will contest complain that what the other side is doing is baseless. A weird Florida statute gives you the chance to recover some of your attorneys fees as damages. To see how you may be able to get damages (in the form of attorneys fees) against your opponent (or their lawyer), read about Florida 57.105. Florida Statute 57.105– background So, we know that Florida law is generally made up of two things: statutes and caselaw. The legislature creates the laws which the governor signs. Our judges tell us what those statutes mean and how they operate. So, why would you refer to this law as “weird?”. Well, first of all, Florida 57.105 is one of those statutes that seems to create more litigation than it was intended to diminish. Second, it is often mis-understood and incorrectly applied. By the lawyers ! In fact, ask an experienced will or trust litigation lawyer. They will tell you that there are a lot of probate lawyers who say they go to court, but actually don’t try cases. And they often don’t completely understand this statute and when it is appropriate. Here is “everything” you may want to know about Florida 57.105 and even a recent case from the 3rd District Court of Appeal on this subject. 57.105 in easy-2-read, plain-English 57.105 is a Florida statute It provides that sanctions may be awarded against a party in a lawsuit for having a baseless, or frivolous […]

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