Can you object to a revocable trust before the trust creator dies? You are not supposed to under Florida law. There are two things every potential challenger MUST READ. If you are thinking of contesting a trust or challenging its validity, read on. We have previously provided Florida Trust Commentary on such things as trust validity, trust attacks and undue influence. Now, let’s focus on a September 9, 2020 4th DCA opinion. (for a link to FREE TRUST VIDEOS, click HERE) 2 Things You Must Read Before Attacking a Trust Challenging a trust before death? Not so fast !! So, let’s be clear. You can’t attack a revocable trust while the trust creator is alive. The person who creates the trust is called the “grantor” or “settlor.” The attorney who writes the trust, or who prepares the trust for the creator, is often referred to as the “drafting attorney.” The Florida Trust Code is the body of statutory law laying out trust laws. It is added to by precedent. Precedent are the written opinions of our appellate courts. Trial courts, and appellate courts, interpret the Florida Trust Code. Judges tell us what the law means and says. When trial judges make trust rulings, appellate court judges will tell us whether the trial judge was correct or not. When a trial judge is wrong, it is referred to as committing error. Now, read Florida Statute 736.0207. This statute is a provision in the Florida Trust Code. It says that you can’t […]

Everyone has read about the Britnye Spears guardianship. In Florida, which has a healthy “golden years” population, guardianships are common. And so are the expenses. Who pays for the guardianship fees Florida. And how does a family member object? We have previously provided a number of Legal Videos on Florida Guardianship. Now let’s discuss a Florida Appeals court opinion from In Re: Guardianship of Martino. This 2nd District Court of Appeal opinion was handed down July 8, 2020. Florida Guardianship Law If you want to read about Florida guardianship law, consider reading Chapter 744, Florida Statutes. That’s the Florida Guardianship Code. It explains the intent of those laws. It also sets forth rights and obligations and procedures. A Florida guardianship starts with a court filed document. Typically, two of them. You file a Petition for Determination of Incapacity when you believe that someone is in need of assistance. When they can’t handle their own affairs. You also typically file a Petition for Appointment of Guardian. If the judge agrees with you that the “alleged incapacitated person” needs assistance, she will then turn to the issue of whether a guardian is needed. And who the guardian should be. Guardianship Fees Florida If a guardianship is created, pay attention. If you are involved in the guardianship, you will get a lot of information. The court appointed guardian is required to share information with you (if you are an “interested” person. That is, if you have “standing.” ) Read the Florida Guardianship Plan. […]

Can you sue for probate malpractice Florida? Understanding WHO can sue is important. Perhaps more important is understanding WHAT you can sue for. What is PROBATE MALPRACTICE FLORIDA? And how do you exercise your rights when you have been damaged? Probate malpractice is very similar to, or may be described as, Estate Planning Malpractice. If you have been harmed in an estate or Florida probate, read on. Probate Mistakes, Wrongs and $$ Everyone is stuck with the probate process, right? I mean, Florida law says that when people die with property, you have to “jump through these hoops.” Why? ….Well, that’s the law ! The deceased Florida resident’s property has to be gathered properly. That’s what Florida probate lawyers call “marshal.” And then the deceased person’s debts need to be paid. IRS, last federal income taxes, the CPA, credit card bills, auto loan, pool cleaning, water bill, cable, FPL, HOA, etc. etc. And then, funeral expenses and the estate lawyers need to be paid. Yes, there are “expenses of administration.” And all of these get paid before a Florida beneficiary sees a dime of inheritance. Don’t like it? Sorry, folks. That’s the law!! And, what is left over, goes to the BENEFICIARIES! But, you have to be an “interested person” to sue. You have to be personally damaged. THAT’s who can sue for probate malpractice Florida. An interested person is generally defined as a beneficiary or a creditor of the estate. It can include certain children, spouses, and heirs. Now, […]

The rights of non-clients to sue your parents’ estate planning lawyer seem to be increasing. At least in Florida. A recent Florida Appeals Court opinion on estate planning malpractice Florida helps guide family members and heirs. This legal commentary will discuss whether you can sue your grandmother’s trust lawyer. Understanding Florida Malpractice Legal malpractice is a cause of action, or lawsuit, that is brought against a Florida lawyer. It is often referred to as professional negligence. A Florida lawyer commits malpractice when their standard of care, their services, or failure to provide services, fall(s) below the standard. What standard? The standard of a reasonable attorney in that particular geography. Providing bad legal services can be as simple as not telling your client that she has rights. Or a cause of action against someone. But, can a trust beneficiary, heir, son or daughter sue mom or dad’s attorney who wrote the wills and trusts? Estate Planning Malpractice Florida Many times, family members or adult sons and daughters want to sue mom or dad’s estate planning lawyer. But, many times, heirs are prevented from suing for estate planning malpractice Florida. Why? Three of the most common defenses to professional negligence include blowing the statute of limitations. You didn’t sue fast enough. The statute of limitations for legal malpractice is 2 years. Read Chapter 95.11 (4)(a), Florida Statutes. (To read about stopping or “suspending” or tolling that time period and the computation of time, read the entire CHAPTER.) And remember: a letter won’t […]

POA theft in Florida is serious business. A Power of Attorney is a fiduciary. She is supposed to use the money for the principal’s care. The money does not belong to the POA. In most cases, a POA also cannot change the beneficiary of a bank account. Here’s what you need to know about Florida law if you have discovered POA theft. We have previously provided information about powers of attorney in Florida, financial exploitation, and even a FREE VIDEO. What you need to know about POA law.. In Florida, a power of attorney is a fiduciary. The person who is the power of attorney is often called the “attorney in fact.” She is supposed to act on behalf of her “principal.” The “principal” is the person who created the power of attorney. Or, think of it this way. The principal is the one who the POA works for. One easy example is the following. A wealthy woman named Nana has her probate lawyer draft a power of attorney. Nana’s power of attorney names Tommy as Nana’s “attorney in fact” or power of attorney. In this example, Nana is the principal. Tommy is the POA, or attorney in fact or “agent.” But even though the word “agent” is used to describe a POA, Tommy is a fiduciary. Here is a list of Tommy’s duties that he owes Nana: CLICK HERE FOR LIST OF DUTIES. That means that Tommy may use Nana’s money and property for Nana’s care, and Nana’s use. […]

An April 29, 2021 appellate opinion sheds light on Florida Trust Accountings and final orders. Most Florida trustees know that you can give a six month “limitation notice” to a beneficiary. Most beneficiaries don’t really understand that you may only have 6 months to sue for breach of trust. This recent case discusses the “finality” of an order on a Florida Trust Accounting. That final order can’t be changed except under three very unique scenarios. Keep reading to learn more about trust appeals. (For a free legal video on trust accountings in the State of Florida, CLICK HERE.) Florida Trust Law on Beneficiary Rights — but watch the clock ! First and foremost, trust beneficiaries have a lot of rights in Florida. You can read all about those rights under the Florida Trust Code. That’s chapter 736 of Florida Statutes. To read about the obligations and duties of a Florida Trustee, read Trust Code Statutes 736.0801-736.0817. As a beneficiary, you have a right to know who your trustee is and to a complete copy of the trust document. That includes any amendments, restatements or changes. You can also obtain annual trust accountings. Florida Trust Accounting — no secrets ! To read about an estate accounting, you can simply click here. A trustee cannot operate or run the trust in secret. There needs to be full disclosure. But, trust beneficiaries can’t wait forever to exercise their rights. Sometimes you have 4 years to sue for a breach of trust. And sometimes […]

The Florida Trust Code is a set of statutes. It sets the groundwork for all Florida trust matters. Everything from the trustee-beneficiary relationship. Creating and ending trusts. And, of course, judicial proceedings like lawsuits and removal actions. To get a plain-English background of this body of Florida law, keep reading. We will point you to the most important parts of the trust code. Whether you are a beneficiary, trustee, or adult child of a beneficiary or trust creator. And, yes, if you got cut out of a trust, there’s information for you, as well. If you would like to see a number of focused, informative Florida Trust & Probate Videos for free. Click HERE for an outstanding video library on important Florida estate and trust legal topics. Now, let’s show you what to read in the trust code, and we’ll name specific statutes for your to read. This is “user-friendly”. There is a link to more information on the part we are writing about, so you can read or learn more on a particular topic if you want. The Background First, you should know the background. The Florida Trust Code is a set of statutes. These statutes are found at Florida Statutes Chapter 736. The trust code is similar to the Florida Probate Code and the Florida Guardianship Code. How? They set forth what our legislature wants you to know about those particular topics. Why mention them? Because they can all interconnect. If you have a guardianship of a wealth […]

Challenge a Will Florida is a plain-English Florida probate commentary. Get some thoughts about a will challenge. Maybe you are a family member who got cut out of a last minute will. Or, a beneficiary under a prior will that was changed just before death. We have previously posted a FREE WILL CONTEST VIDEO for heirs to view. Now, if you have been dis-inherited or have questions about a last minute will change, keep reading. (To learn about a probate contingency fee, CLICK HERE.) Start with the Basics Challenging a will in Florida typically means that you object to the validity of a will. You believe a will is not valid. To contest the will, to challenge it, you need to go to Probate Court. Why? Well, most people are simply not going to agree to set aside a will if you ask them politely. So, you have to file a Petition in the Probate Court for the county where the person was a resident. If there is no probate proceeding, that means you have to open up a probate. That’s done by filing a petition for administration. You will tell the court whether you believe there was a valid prior will or no valid will at all. When there is a valid prior will, you have to file it or offer it up. If you have a valid will that was lost or destroyed, that’s a different petition. Remember that where there is no valid will, heirs inherit under […]

If you are a trustee, have you been sued? If you have been sued by one of your trust beneficiaries, you betta know your Florida trustee defenses. Why? Here’s the background that you NEED to understand. Start with the Basics A lot of people become a successor trustee in Florida. Some of you are well -intentioned, decent people, but ……you know nothing about running a trust. Admittedly, you are in way over your head. And when you were asked to RESIGN, you just can’t give up the power. You say that you want to adhere to “so-and-so’s” wishes or intent. That’s OK. You mean well. Stay tuned…we’ll get through this. Many times, a Florida resident will have a POUR OVER WILL that leaves everything to a revocable trust when they die. And when that Florida resident dies, there needs to be a successor trustee for that revocable trust. Which is now IRrevocable. Being a trustee is serious business. And if you have been sued by a trust beneficiary, you should know all your Florida Trustee Defenses. Let’s talk about helping defend a Florida Trustee. Florida Trustee Defenses First, look at the trust document. The trust itself may do two things. It may change the normal standard of liability for a trustee when you make a mistake. The trust document, for example, may say that you are only liable for “intentional or reckless acts.” That’s actually good for you. It alters the standard of care that ordinarily you face in Florida […]

Beneficiaries of Florida trusts have a lot of rights ! And, let’s face it, trustees have a lot of duties which they owe to their beneficiaries. A trustee agrees to, volunteers to, be loyal and prudent with their beneficiaries. No secret fees or self dealing. No stealing or civil theft. So, what does a beneficiary do when they learn that their trustee is acting badly? You could ask a Probate Court judge to suspend the trustee. Or you could sue for damages. But, many beneficiaries want Florida removal of trustee. Let’s see how this is done, in plain-English. Steps to Removing Your Florida Trustee There are two ways to remove a trustee without a judge and a trust lawsuit. Removing a trustee can start with a letter asking the trustee to resign. To step down. But, does that really work? I guess the next question that you have to ask yourself is. How long are you going to give the trustee to decide? Most trustees don’t want to resign. If that happens, and there’s no trustee resignation, then you are left with removal. Removal can be done if permitted by the trust document. Sometimes, Florida trusts have specific removal provisions. For example. A majority of the beneficiaries might be able to remove a trustee. Or, sometimes it says that you need the consent or agreement of all trust beneficiaries. Let’s say that your Florida trust document does not have removal language . Now what? Florida Trust Code Well, before you […]