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Florida Divorce Litigation, Probate Lawsuits, and Homestead Properties

Uncategorized Apr 29, 2019
post about Florida Divorce Litigation, Probate Lawsuits, and Homestead Properties

What does the Florida Constitution tell us about homestead property in Florida? What is the Florida Constitution’s homestead exemption? Why would a West Palm Beach divorce lawyer need to be familiar with the homestead laws in Florida? Should your Florida probate attorney know about homestead exemptions and exceptions? What do the Florida homestead laws have to do with inheritance or divorce? Florida lawyers know that there are many probate and family law cases that involve a homestead property. Disputes regarding this property frequently arise. For example, in a probate case, beneficiaries of the decedent’s estate could be fighting over homestead property. Therefore, you should choose a trust and estates lawyer who knows what the Florida Constitution has to say about homestead. A good example of a divorce case that involves a homestead property is Luis de Diego v. Barrios. In this April 24, 2019 Third DCA opinion, a former husband and a former wife were involved in litigation over the former husband’s homestead property. Was it proper to subject his Florida homestead property to an equitable lien? To read the entire opinion, click here.

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Florida Homestead Property: When Can Homestead Property be Subjected to Equitable Liens?

Uncategorized Apr 29, 2019
post about Florida Homestead Property: When Can Homestead Property be Subjected to Equitable Liens?

Can your Florida homestead property be subjected to equitable liens? Can a final judgment force someone to sell his or her Florida homestead property? What does The Florida Constitution say about homestead property and equitable liens? If you are dealing with a Florida lawsuit involving homestead property, you may want to read an April 24, 2019 Third DCA opinion, Luis de Diego v. Barrios. Here, the appellate opinion explains that The Florida Constitution provides that homestead “shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon.” However, there is an exception. Homestead property MAY be subject to equitable liens ” where fraud, reprehensible or egregious conduct is demonstrated.” To read the entire opinion click here. To interview a trial attorney regarding a homestead issue in Florida, call (561)514-0900 ext.101.

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Can an Equitable Lien be Imposed on Homestead Property in Florida?

Uncategorized Apr 29, 2019

What is homestead property in Florida? What should probate lawyers and divorce attorneys know about homestead laws in Florida? Can an equitable lien be imposed on someone’s homestead property? Can someone be forced to sell their homestead property? An April 24, 2019 Third DCA opinion, Luis de Diego v. Barrios, discusses these issues. Although this is a Florida divorce case, not a probate case, probate lawyers frequently encounter lawsuits involving homestead property. Here, in a Final Judgment of Dissolution of Marriage, the court found that the house the parties lived in while married, although solely in former husband’s named and purchased before the marriage, was marital property. Therefore, it awarded the former wife half of the value of the home, which was to be paid by former husband within ninety days of the judgment. About a year later, the wife filed an action because the former husband had not paid her the money for the house. The trial court entered an order requiring the former husband to pay what the wife was owed within five days, or refinance or sell the home in order to pay her. The husband appealed arguing that he didn’t have the resources to pay the former wife, and that the “trial court lacked the authority to render the sale or refinancing of the marital home, as it would improperly modify the property rights set forth in the Final Judgment and violate the Florida Constitution’s homestead exemption.” What did the appellate court decide? To read the […]

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Florida Trust Law: When Are the Testamentary Aspects of a Revocable Trust Invalid?

Uncategorized Apr 29, 2019
post about Florida Trust Law: When Are the Testamentary Aspects of a Revocable Trust Invalid?

As stated in a 2017 Second DCA opinion, Kelly v. Lindenau, the testamentary aspects of a revocable trust in Florida are invalid “unless the trust document is executed by the settlor of the trust with the same formalities as are required from the execution of a will. In other words, in order for a Florida revocable trust to be valid, it must be executed with the same formalities as a Florida will. What are these requirements? Where can I learn more about what is required to create a valid Florida revocable trust? How can an estate planning lawyer help me to insure that the trust I have created is valid? If you are looking to create a Florida trust or will, you should read Florida Statute 732.502. This statute provides the formalities that are required for the proper execution of a will or revocable trust in Florida. For example, wills and trusts must be signed by two attesting witnesses. In Kelly v. Lindenau, the trust amendment in question was only signed by one witness. Was the trust amendment deemed valid by the Florida courts? To read the entire opinion, click here. To interview a trust lawyer, cal (561)514-090 ext. 101.

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Continental Breakfast in Honor of Retired Justice Barbara Pariente

Uncategorized Apr 26, 2019
post about Continental Breakfast in Honor of Retired Justice Barbara Pariente

Palm Beach appeals court Justice Barbara Pariente has retired, and The Fourth DCA Historical Society is hosting a Continental Breakfast on May 10, 2019 at 8:15 a.m. in honor of her. Judge Pariente admirably served on the 4th District Court of Appeal (DCA) for Florida, which hears appeals for Palm Beach, Martin and Broward Counties. Everyone at Pankauski Hauser PLLC, in West Palm Beach, Florida, wishes Judge Pariente a fun and happy retirement. Pankauski Hauser has an active appellate practice in Palm Beach and throughout Florida, handling appeals for probate, trust, guardianship, estate, business and divorce matters. Robert Hauser, esq. of Pankauski Hauser is Board Certified by the Florida Bar in Appellate Law. For a free consultation with an experienced appellate attorney, call (561)514-0900 ext.101.

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Florida Will Execution Formalities vs. Florida Trust Execution Formalities

Uncategorized Apr 26, 2019
post about Florida Will Execution Formalities vs. Florida Trust Execution Formalities

What is required to execute a valid will in Florida? What is required to execute a valid West Palm Beach trust? When it comes to executing trust documents or Florida wills, how do the formalities that are required differ? A 2017 Second DCA opinion, Kelly v. Lindenau, answers these questions. Florida probate lawyers know that, in Florida, the execution formalities for a will and a revocable trust are the same. According to Florida Statute 736.0403(2)(b), revocable trusts or trust amendments “are invalid unless the trust document is executed by the settlor of the trust with the same formalities as are required for the execution of a will.” What does this mean? What are the formalities required for the execution of a Florida will? Florida statute 732.502 tells you exactly what the requirements are. To read this statute, click here. One of those requirements is that a will, and therefore a trust or trust amendment, must be signed by two witnesses. In Kelly v. Lindenau, this was not done. Was the trust amendment still considered to be valid? Click here to read the entire appellate opinion.

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How Many Witnesses Must Sign a Florida Trust in Order for the Trust to be Valid?

Uncategorized Apr 26, 2019
post about How Many Witnesses Must Sign a Florida Trust in Order for the Trust to be Valid?

What formalities are required for the execution of a valid trust in Florida? What remedies do you have if you are the beneficiary of a West Palm Beach trust that was not executed properly? How can a Florida trust lawyer help you to succeed in your trust battles? When should you hire a trust litigation lawyer to assist you in your West Palm Beach trust matter? A 2017 Second DCA opinion is a good example of trust litigation that may occur due to the improper execution of a Florida trust or Florida trust amendment. This case discusses what is required for the execution of a valid trust or trust amendment in Florida. In Florida, a trust or trust amendment must be executed by the settlor, or creator of the trust, with the same formalities that are required to create a valid Florida will. These formalities include the requirement that a will or trust must be signed in the presence of two attesting witnesses. Furthermore, “those two attesting witnesses must themselves sign the will in the presence of the settlor and of each other.” This option also explains that strict compliance with these formalities is required in order for a trust document or amendment to be valid. To read the entire opinion, click here. For a free consultation with an experienced wills and trusts attorney in Florida, call (561)514-0900 ext.101.

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Florida Trust Law: Is Constructive Trust a Proper Remedy for Error in Execution of a Trust?

Uncategorized Apr 26, 2019
post about Florida Trust Law: Is Constructive Trust a Proper Remedy for Error in Execution of a Trust?

What is the proper remedy for error in execution of a Florida trust? What can you do if a trust was improperly executed at the time it was created? What if a Florida trust doesn’t have two witness signatures? Is there a proper remedy for error in execution of a trust? If you are involved in trust litigation, you may wish to read a May 17,2017 Second DCA opinion, Kelly v. Lindenau. This Florida trust case regarded a trust amendment that was not signed by a second witness. Therefore, it was not properly executed as required by Florida trust law. When the successor trustee brought action against the trust beneficiary seeking declaration as to the validity of the amendment, the purported beneficiary filed a counterclaim seeking reformation of the trust amendment. The beneficiary sought to correct the amendment’s improper execution under the statute permitting reformation of mistakes and constructive trust. The trial court granted the beneficiary’s counterclaim but the appellate court reversed and remanded. The Florida appellate court held that “[1] amendment’s improper execution could not be corrected under statute permitting reformation of mistakes, and [2] constructive trust was improper remedy for error in execution. To read the entire case, click here. To interview a West Palm Beach trust lawyer, free of charge, call (561)514-0900 ext. 101.

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Florida Estate Lawsuits: Depository For Estate Assets

Uncategorized Apr 24, 2019
post about Florida Estate Lawsuits: Depository For Estate Assets

A January 9, 2019 Fourth DCA opinion, Goodstein v. Goodstein, is a good example of a Florida inheritance dispute between the beneficiaries of an estate and the personal representative. Here, the personal representative appeals a non-final order granting the beneficiaries’ petition to designate a trust company as a depository for estate assets. What is a restricted depository? When is one necessary in a Florida probate? What are the circumstances that provide support for a restricted depository? What should my probate lawyer know about these issues? 

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Do My Mom and Dad Need Orlando Guardianships?

Uncategorized Apr 24, 2019
post about Do My Mom and Dad Need Orlando Guardianships?

What is a guardianship? When is a guardianship necessary? Can an Orlando guardianship help to protect my mother who has dementia? Guardianships are not the only means of helping an incapacitated person in the State of Florida. In fact, Florida Guardianship Law actually requires the use of the least restrictive alternative to protect persons incapable of caring for themselves and managing their financial affairs whenever possible. What does this mean? What is an acceptable less restrictive alternative to a guardianship?

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