A March 31, 2001 appeal sheds light on heirs at law dealing with a foreclosure case. In Florida, lots of wealthy people die. Sometimes, for whatever reason, there is a foreclosure case. That’s not the end of the world. Heirs can still inherit. Remember. Foreclosure cases are only the lender saying “hey, I want to get paid.” Sometimes, because the homeowner is dead, mortgage payments are missed. That can innocently cause the property to go into foreclosure. That does NOT necessarily mean that the heirs lose the house. And it does NOT mean that the family loses all that money. To the contrary, if you have a good probate litigator. Many times, EXPERIENCED, TOUGH FLORIDA PROBATE LAWYERS can negotiate for you and work through the foreclosure. The goal is to try to get an inheritance for beneficiaries and family members. Yes, HEIRS can inherit. Anyway, read this Florida Appeals Court opinion about a motion for a continuance and a probate foreclosure case. Foreclosure Appeal The owner of the Florida residence died. He had a reverse mortgage on the property. The lender sued. The heirs responded. They mediated their case. They settled. There was actually no probate opened to clear the title. They wanted to open a Florida Probate. But here’s where the interesting part of this Probate Foreclosure Case is. No one continued the trial. This 2021 2nd District Court of Appeal opinion sheds light on seeking a continuance from a trial. You have to file a motion for a […]

A January 11, 2021 1st District Court of Appeal appellate opinion sheds light on Florida Power of Appointment Law. A power of appointment is a great power to give, or not give, money and property to others. But remember, an attorney reminds us that they can also be a power of dis-appointment. Many family members want to know what went wrong when they are not left trust money. This can cause trust lawsuits. The power has to be exercised properly, or they don’t work. Recent Caselaw from 1st DCA The 1st District Court of Appeal issued its opinion on January 11, 2021. The case is Ammeen v. Sjogren. This recent case dealt with two important Florida legal issues for probate and trusts. First, can someone who has a power of appointment bind others, even potential trust beneficiaries? This is an issue of REPRESENTATION. Second, who has standing to bring a trust lawsuit when there is a power of appointment? Florida Statutes The Florida Legislature has specific statutes on Florida Power of Appointment law. Fla. Stat. 709.02- 709.07 can be read for free by CLICKING THIS LINK. Chapter 709 of the Florida Statutes deals with Powers of Attorney and also Powers of Appointment. Don’t get them confused. Part I of Chapter 709 deals with Florida Power of Appointment Law. A Power of Appointment is a power given by someone typically called the “grantor” of the power. The one who can exercise the power is often called the “grantee” or “powerholder.” You […]

If someone helped a fiduciary breach their fiduciary duty, is that someone responsible, too? A March 24, 2021 appeal from Florida’s 3rd District Court of Appeal discusses aiding and abetting a breach of fiduciary duty in Florida. We have previously commented on Breach of Fiduciary Duty under Florida law. Now, let’s consider this new case. Miami Dade Appeals Court Decision The Miami Dade Appeals Court, the 3rd DCA, issued its opinion in Grape Leaf Capital, Inc. v. Lafontant. In that case, a Personal Representative of a Florida estate was alleged to have received a loan. The “executor” was alleged to have entered into a loan agreement in exchange for proceeds to be recovered from a wrongful death case. In Florida, a wrongful death case is brought on behalf of the estate. The court-appointed Personal Representative of the Florida Probate is the plaintiff. (For a September 15, 2021 4th District Court of Appeal opinion involving this legal topic, click HERE.) Miami Dade Probate In this recent appeal case, some lawyers were alleged to have “substantially assisted” the personal representative breaching her fiduciary duty. A breach of fiduciary duty exists when you have the following. A duty owed to someone, a breach of a duty that causes damage. So, what does aiding and abetting a breach of fiduciary duty mean? A cause of action, or lawsuit, for aiding and abetting a breach of fiduciary duty is comprised of 4 things or elements. First, you need to have a fiduciary duty. Second, a […]

What does it mean to contest a will in Florida? Many heirs may feel a sense of entitlement to inherit from a Florida Probate. Florida has a strong public policy that permits residents to dispose of their property as they see fit. These two “forces” can collide. Like when a wealthy Palm Beacher dis-inherits her only daughter. Many family members from out of state want to know about contesting a will in Florida. We have previously provided Florida Legal Commentary on the 3 Month Time Limit to contest a will. Free Probate Videos To see a FREE FLORIDA PROBATE VIDEO about overturning a will based on fraud, CLICK HERE. For a free video on Understanding a Will Contest, CLICK HERE. That video discusses contesting a Florida will. Videos are often quickly educational, and easy to view. But the truth is that you probably learn the most from Florida Probate Laws. These laws are found in the Florida Statutes, called the Florida Probate Code. And the rules of the game are found in the Florida Probate Rules. Probate Court in Florida In Florida, there is a Probate Court that administers estates. Contesting a will in Florida will take place in a probate court. A probate is “opened” in the county of the deceased Florida resident. If a Petition for Administration was filed, you should “answer” it. “Also consider filing a counter petition to exercise your rights” suggests Will Contest Attorney John Pankauski. “If there is no probate, open one up” says […]

How do you execute a will in Florida? Put another way, what is required for a valid Florida will? To read about who may create a valid will in Florida, CLICK HERE. For more Florida probate perspective about signing a will in Florida, read below. How to Sign a Will in Florida A will should be signed only by intent & consent. That means that the persons signing the will should know it’s a will and wants to sign it. A will that is signed by undue influence is void. In fact, if the person signing the will does not know what she is doing, the will is also void. The will cannot be the product of fraud or any over-persuasion or force. That’s an important part of the will execution process. It must be free of anyone forcing or lying to the person signing the will. We also previously provided commentary about a will not being valid based on an insane delusion. A will that is not valid may be addressed in the Florida Probate Court by a Petition to Revoke Probate. To see a FREE VIDEO ON WILL CONTESTS in Florida, click the highlighted area. To read about what a POUR OVER WILL in Florida is, CLICK HERE. If a current will is not valid, what happens? “There may be prior wills that are valid, or the entire estate may go to heirs under the intestacy laws of Florida” says Pankauski . Executing a Florida Will: requirements and […]

There is a time limit to contest a Florida will. This is sometimes referred to as the “3 month rule” by probate litigators. Knowing how long you have to contest the Florida will is crucial to evaluating your inheritance rights. We have provided Florida probate legal commentary previously. We even wrote about whether “prior” will beneficiaries have “legal standing” to contest a Florida will. (Beneficiaries under a prior will who are now cut out). Now, we will discuss your very short time frame to petition to revoke probate. If you did not object within 3 months, don’t despair. There may be chances to still file. Particularly if you did not receive a Notice of Administration. Understanding Probate Law Before You Contest the Will The Florida Probate Code is one of two things which a Florida estate beneficiary must understand. The other is the Florida Probate Rules. These rules and laws will guide you to understand how to protect your inheritance rights. For example, Florida Statute 732.501-732.526 lists just about everything you need to know about making a valid will in Florida. Florida Statute 733.109 talks about a petition to revoke probate. That’s the “official” court-filed document that objects to a will. 3 Months to Contest Florida Will Florida Statute. 733.212 sets forth the time limit to contest a Florida will. You can read that Florida probate law by clicking on THIS LINK. That probate statute says that you must object to the validity of the will within 3 months. 3 […]

Many family members are appointed as a successor trustee of a Florida Trust. Is it worth it? Should you decline to serve? Or, if you are already serving as trustee, should you resign? We have previously provided numerous FREE FLORIDA TRUST videos and other written commentary. We have even provide professional webinars on defending trustees, which were approved by the Florida Bar. Now, let’s discuss why you may want to resign as Florida trustee. 5 Reasons To Resign as Florida Trustee Why? Why in the world would someone want to take on the job of being a trustee? It’s work! A Florida trustee has to communicate with her beneficiaries. And I’m not talking about responding to emails only. You have to provide relevant information in a timely manner. And a Florida trustee has to provide annual accountings. To read more about Florida Trust Law for free, click on THIS LINK. To read about signing a trustee declination, CLICK THIS LINK. Time. Secondly, do you have the time to devote to investing trust assets, understanding the trust document? And, of course completing the annual accountings? A bad trustee ignores her beneficiaries. A good trustee follows Florida Trust Law and responds adequately within the proper time frame. Understanding how you do this is important. Being upfront with yourself is also important. “I can’t tell you how many clients were hell-bent on being trustee” says trust litigator John Pankauski. “And then the fighting starts and they want out.” To read Pankauski’s book on […]

What is a pour over will in Florida? You may have heard about wills and trusts and revocable trusts. What in the world is a pour over will? Here is everything you need to know about pour over wills (almost !) Read on for free legal links and videos. There is also a word of caution for heirs and family members if you are involved with a revocable trust, too. Get perspective from top notch will litigator, John Pankauski. Pankauski leads an elite group of trial lawyers and appellate attorneys. He used to write wills and now he only litigates them. Florida Pour Over Wills “A pour over will is a will that leaves almost everything to one’s revocable trust” says Pankauski. He should know. Pankauski graduated from the prestigious Graduate Program at the University of Miami School of Law. In 1993, he received his LL.M. or Masters of Law. Pankauski was actually writing pour over wills since the early 90’s. Most wills have a basic, limited amount of information. Who do you want running your estate? (that’s called a Personal Representative in Florida) Who gets your “stuff”? (that usually means tangible personal property like household effects, and jewelry and furniture). To read, for free, the Florida Probate Rules, click HERE. Pour Over Wills & Revocable Trusts Then, most pour over wills leave everything to the person’s revocable trust. The revocable trust then distributes the estate. Or, sometimes the property stays in trust and is distributed over a number of […]

Many heirs and family members know the term “undue influence.” Especially if they did not get an inheritance ! We have written about undue influence before. (To watch a free undue influence video, from top-notch estate litigator John Pankauski, click HERE). But not as many people know about “insane delusion.” How do you set aside a will based on an insane delusion? Well, there is one statute and two cases that you can read, for free. These will help you understand this concept to void a Florida will. Voiding a Florida Will A will that is improperly signed is void. A Florida will may be void if the will was caused by undue influence or an insane delusion. The person who presents the invalid will has the initial burden to prove that it was done properly. Florida estate lawyers call this the “burden” to prove “due execution.” To start, read the Probate Code in Florida. Then, focus on Chapter 732 to learn about the Florida laws about wills. If a will is on file with the Florida Probate Court, is it valid? If you honestly believe that it was not valid, then you need to attack the will by filing a petition to revoke probate. Why? Insane Delusion Voids Will If a will was the product of bad acts or improper procedures, it’s not valid. Read 732.5165 of the Florida Probate Laws. That’s the law that says a will is not valid if it was caused by undue influence or […]

So, what if two spouses co-own real estate as “husband and wife” or “as spouses”? Does that create a presumption of a Florida tenancy by the entireties with a right of survivorship? And what about personal property like gold or Rolexes or other valuable assets? If two spouses in Florida take title to personal property, is there a presumption of a right of survivorship such as tenants by the entireties? Consider reading two, maybe three, Florida cases to learn all you need to know (almost !) about tenancy by the entireties. We have previously provided legal commentary on Florida joint bank accounts, now read about real estate in Florida and husbands, wives and spouses. Valuable Survivorship Rights for Florida Wives, Husbands So, there is a lot to know about tenancies in common and joint tenancies. A co-tenant owns a percentage or part of the whole. This is typically based upon their contribution of the purchase price. Sometimes, it’s by agreement of the co-tenants. If a co-tenant dies, his or her share “goes” to their estate. BUT, a joint tenancy creates a survivorship feature, automatically by operation of law. In Florida, the status of a wife or husband, a spouse, is special. You get special rights ! And I’m not necessarily talking about homestead rights, or elective share. If two spouses take real estate in Florida as “husband and wife”, it creates a special ownership. There is a legal presumption that the Florida deed creates a tenancy by entireties. This is […]