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 […]

A Florida TOD account is supposed to transfer the account, typically a bank or financial account, to the surviving owner. If transfer on death is so “easy”, why are so many family members and executors having a probate dispute over them? The owners are generally those whose names appear on the account title. That’s why probate litigation law firms issue subpoenas under Florida Rule of Civil Procedure 1.350 to attempt to obtain complete bank records. But, it is possible that the named beneficiary of the account does NOT inherit. To learn how a transfer on death account for a Florida bank account can go to probate or the estate, read on. What is a Florida Convenience Account? A Florida Convenience account is one of those things that is not what it says it is, jokes John Pankauski, Managing Partner of Pankauski Lazarus PLLC, an expert probate litigation law firm. And Pankauski should know. After all, unlike most “probate” lawyers, he has actually won bank account trials and also handles TOD and pay on death appeals. You can read more about convenience accounts at Fla. Stat. 655.80, which can cause a probate court to ignore the survivorship feature of the Florida TOD account, and give it to the estate, where it can be subject to creditors and expenses of administration. (See Fla. Stat. 733.707 for the schedule of payment of expenses of administration and creditors claims, including attorneys fees). Florida TOD Bank Account Trials “Be cautious” warns Pankauski, about challenging an […]

Wondering how Miami probate lawyers are helping clients in 2021 during the pandemic? Not to worry. While in-person appearances are rare in the Miami Dade probate court today, Miami probate lawyers may attend court hearings from their office. All they need to do is Zoom ! Florida Probate Courts Adjust to Law In a Pandemic Probate courts in Florida are probably some of the busiest in the nation ! After all, Florida is a large state, filled with wealthy residents. People continue to retire and move to the Sunshine State. Not only do Florida probate courts handle estates of deceased residents, but they also handle trust lawsuits and guardianships. Lots of work. So, you may be wondering how work can get done on a Florida estate or trust during the Covid-19 pandemic. Well, Florida courts, including the Miami probate court, have adjusted very well, and very quickly. One way that Miami probate lawyers have continued to help their clients with estates, probates and trusts is by attending hearings by Zoom. Yes, even though most probate courts have limited in-person appearances, many probate court judges in Miami Dade County permit hearings via Zoom— a videoconference, online platform that permits hearings, testimony, witnesses and the presentation of documents and other evidence. For free Miami Dade probate forms, click here: Zoom Video Conferences in Miami Probates And while Miami probate lawyers are content to attend court hearings via their computer, probate litigators are still going to court for in-person trials. “I had two, […]

Are involved in a Miami lawsuit ? Did you hear the word “contempt” or “sanctions“? Not a good thing. A recent 3rd District Court of Appeal opinion from January 13, 2021 deals with civil contempt. It reminds all Miami trial lawyers about this sensitive subject. If you were found in contempt, one question which you have no doubt asked your Miami litigation law firm is: “Can I appeal this order of contempt?” Florida Civil Contempt Has an order of civil contempt been filed against you in a Miami lawsuit? If so, have you spoken to a Florida appellate attorney about seeking a writ of certiorari before Florida’s 3rd District Court of Appeal? A writ of certiorari is a “request” by a litigant, non-party, or party, asking the appeals court to review a trial court’s order. A recent, January 13, 2021 opinion from the appeals court for Miami-Dade deals with contempt. It reminds us of one important tenet of Florida law. Most Miami business litigators know this. “A party cannot be held in contempt for non-compliance with a court order if there party did not have the present ability to comply with the court order.” This quote is from the case of Children’s Home Society of Florida v. K.W., et al. You can read the entire opinion here: What is Contempt? A trial judge may enter an order of contempt for parties that don’t comply with court orders. Sanctions in a Miami lawsuit are a related but different concept of punishment. […]

What is attorney client privilege? What does attorney- client privilege have to do with a Florida trust lawsuit? A trustee may have a different “privilege” than the “executor” of the trust creator’s estate. What should I know about ACP if I am involved in a Florida Trust Lawsuit? Can the other side request documents directly from my Florida trust lawyer? Can a Florida trial court compel my probate law firm to disclose records of a trust or estate? These are all issues which John Pankauski and his team of trust experts deal with each week. Attorney Client Privilege and Estate Planning Files Disputes regarding this matter may occur during a Florida trust or probate lawsuit. This is because, during inheritance litigation, trust beneficiaries, and other party’s to the lawsuit, usually have their Florida lawyer conduct extensive discovery. To read about serving as trustee of a Family Trust, consider this. Pankauski wrote the book on it. Pankauski’s Trustee’s Guide: 10 Steps to Family Trustee Excellence. During discovery, a party to a trust lawsuit may request the disclosure of financial documents. Or your mom or dad’s estate planning file. After all, don’t you want to see what they were talking to people about ? And you probably want to see notes on their estate plan. A party may also try to request other documents from the law firm that represents the trustee or opposing party. This may include email communications, internal notes about the case, etc. Can a Florida law firm just […]

Every year, widows, widowers and surviving spouses inherit billions from Florida probates. Florida Surviving Spouse rights are very valuable for Florida estates. But most don’t want to leave money on the table. And you should know exactly how much you are entitled to. After all, the three most valuable rights a spouse has to a Florida estate are straightforward. First, Florida Homestead. Second, intestate share. Third Elective Share. Has your wife or husband recently passed away in Florida? Are you a surviving spouse? To read more FREE FLORIDA PROBATE COMMENTARY about rights of a surviving spouse, CLICK HERE. If you are the surviving spouse in an inheritance dispute in Florida, you may want to read Florida Statute 732.401 and a March 15, 2019 Second DCA opinion, Samad v. Pla. Don’t Sit on Your Inheritance Rights Florida law does not help those who sit on their rights. Florida Estate Law helps those who speak up and who EXERCISE their rights. Silence is often not a friend to surviving spouses’ inheritance rights. Florida probate lawyers know that surviving spouses in Florida have many inheritance rights. However, it is important to act on those rights, and act quickly. John Pankauski, managing law partner at Pankauski Lazarus, always reminds prospective and current clients that the law doesn’t reward those who sit on their rights! In Florida probate proceedings, there are many deadlines that must be met. For example, surviving spouses must make certain elections within a certain time frame. In addition, objections or filings […]

Does a surviving spouse have rights when it comes to inheritances? Yes ! Those inheritance rights can be worth billions of dollars in Florida ! No exaggeration. A wife or a husband can, at first, be dis-inherited. But, if you did not sign a prenup, you can claim your inheritance. Sometimes, the window of time is very short. We have previously provided solid Florida law commentary on inheritances and personal financial data. After all, you need to know where your inheritance is coming from. We also blogged about a surviving spouse’s rights. What happens if my husband doesn’t include me in his Florida will or trust? What happens to my wife’s homestead property now that she has passed away? Can my husband’s adult children take away the house that I live in just because it was only in my husband’s name? Florida Surviving Spouse Rights In Florida, surviving spouses have inheritance rights to property of a deceased spouse.  In fact, there are statutory minimum benefits to ensure that surviving family members are provided for, regardless of the decedent’s intent.  What are these benefits? Homestead, elective share, and family allowances are three of the main inheritance rights of surviving spouses in Florida. Are there exceptions? As with almost every Florida law, there are exceptions. If a surviving spouse waived his or her inheritance rights in a prenuptial or other agreement, he or she may be out of luck. However, it never hurts to consult with a Florida probate lawyer to make sure that the inheritance rights or homestead […]

Are you thinking about contesting a Florida will? Whether you can file Florida Will Contests may depend on whether or not you were in a prior will. If you were cut out by a later will, understand how to object to the will. For more on “legal standing” or the ability to object, read on. Need a contingency fee probate litigator? Contesting a Florida Will If you are looking to contest a will in Miami or Fort Lauderdale, you should consider consulting with a Florida probate litigator. Florida probate lawyers, like the lawyers at Pankauski Lazarus, can evaluate your matter to determine whether or not there are facts that may lead to a successful will contest. Both Florida estate planning attorneys and trust litigators know that there are many reasons a will may be contested. One of the main reasons a Florida will could be challenged is if the testator, the person who signed the will, did not have “testamentary capacity” to sign a will in Florida. According to Florida law, what is “testamentary capacity”? Testamentary Capacity, Competency and Florida Will Contests If a will was signed with the signer did not have “capacity”, the will is void. Put another way, if the will-signer was not competent, then the will needs to be objected to, to overturn it. Failure to object timely means an otherwise invalid will may be admitted to probate. There are four main components to show testamentary capacity (sometimes called “sufficient mental capacity”) in Florida: understanding that he or she is creating […]