A Florida breach of fiduciary duty is serious stuff. It can bring damages to beneficiaries or an estate or a trust. And a whole lot of trouble to a bad trustee or personal representative or POA. We have previously written about excessive compensation and removing or suspending a trustee. We have also written about this topic of FIDUCIARY DUTY before. Now, let’s lay it all out there in plain English. And from a standpoint that other Florida Legal Blogs may not take . What is a Fiduciary? Before we define Florida Breach of Fiduciary Duty, let’s make sure you have the background. First, a trustee owes DUTIES to her beneficiaries. Same for a PERSONAL REPRESENTATIVE. Trustees and personal representatives are fiduciaries. Fiduciaries are those who volunteer to perform certain tasks for others. I say “volunteer” because no one can be forced to serve others or be a fiduciary. Even if you are nominated or named in a will or trust. If you don’t want to serve, decline. Fiduciaries, most of the time, are entitled to reasonable compensation. A Power of Attorney, also called an attorney-in-fact, is also a fiduciary. Don’t be confused. Even though the Power of Attorney Law uses the word “agent”, a POA is a fiduciary. Standards of a Fiduciary There are certain “rules of the game.” Standards. If a personal representative or trustee acts badly or steals money or takes secret fees, they can be SURCHARGED. But civil theft is not necessary for a fiduciary to be […]

Regrettably, there are a lot of “contested” guardianships. Every day, it seems, Florida Probate Judges must make difficult decisions. Guardianships have a couple of purposes. First, they determine whether someone needs assistance and protection if they are incapacitated. An aging or afflicted Florida resident may seem fine on the outside. But they may not be able, in the eyes of a judge, to exercise all their rights. They, and their property, money, may need management + protection. Second, guardianships often confirm or appoint someone to take care of that person who is vulnerable. A guardian or a Power of Attorney, or maybe a trustee for just the property. Many times, family members “fight” over who will control mom or dad. And their money. We have previously provided commentary on FLORIDA GUARDIANSHIPS. Now, let’s focus on how to fight guardianship Florida. Understanding Guardianship Law There are 4 really important things that you can read for free to understand Florida guardianship law. And learn how to fight Florida Guardianship. First, read the Guardianship Code. Chapter 744 of the Florida Statutes sets forth the law of Florida Guardianship. It can explain the TYPES of guardianships. Many times, people will file a motion or petition for EMERGENCY TEMPORARY GUARDIAN. This often upsets family members who are not given “notice” of this until a judge enters an order. There are also “plenary” guardianships. Or guardianships over just the property. Or, just the person. One of the most important rules is to file an appearance in […]

What do you do if a Florida will is lost? Well, it’s possible to have that lost will probated. You need to know one statute, one rule and one case. We have previously written about Lost Wills before. Now, let’s re-visit this subject and talk about what steps you need to take. How do you probate a Lost Will Florida? The Rules for Lost Wills There is a statute on probating a lost will. The entire Florida Probate Code is online and may be read for free. Zero in on Fla. Stat. 733.207. First, you need to have STANDING to probate a lost will. That means that you need some connection to the probate or the will. If you are a beneficiary or a nominated personal representative under the lost will. That can create standing. Next, you need to reveal the terms of the lost will precisely. You have to “establish” the will in “full and precise” terms. This means that you need some certainty. If you have a copy, that is a great start. But, there’s a lot more to do. Grab your cellphone or start writing emails. You need to prove the contents by two disinterested witnesses. The exception is if you have a “correct copy”, then one witness is OK. Finally, read the Florida Probate Rules. There is a specific rule on lost wills. Read Rule 5.510. You need to file a proper Petition. Take These Steps for a Lost Will Florida There is a 2012 5th […]

Learn if a Florida estate contingency lawyer can assist you with an inheritance, will contest or probate. Lots of family members want help with Florida probates. Maybe they want to file a will contest or object to the will. Maybe there is already pending an INHERITANCE LAWSUIT. Perhaps it’s more simple. They want an inventory, accounting and someone to explain their Probate Rights to them in plain English. Regardless. But good & experienced probate litigators are hard to come by. And when you do find one that you click with, she or he can be expensive. Is there some way for a client to hire good legal counsel without shelling out thousands in billable hours? Some refer to a Florida Estate Contingency Fee as the keys to the courthouse door. Let’s examine what that is and its pro’s and con’s for probate matters. We have previously written about Probate Contingency Fees. 5 Tips to Finding an Estate Contingency Lawyer Here are 5 tips on trying to find a great Florida Probate Litigator on an Estate Contingency Fee. First, find someone with 20 years+ experience. Like doctors, good lawyers develop over time. The more years you practice, the more cases you try. Hopefully, they are getting a lot better along the way. And, after 20 years of an active probate litigation practice, hopefully they “have seen it all.” Or close to it. Second, find a litigator, not just some probate lawyer. Litigators are more apt to take your case on an […]

How do you ask your trustee for money? Let’s say that mom or dad or grandma set up a trust for you with $10 Million. You want money, right? So, how do you ask your trustee for money or trust funds? We have previously written about a TRUSTEE’S DISCRETION, when your trustee refuses to give you money. We have also commented on how to appeal a trustee’s decision to NOT give you money. Let’s focus on how to ask for money from your trustee. 5 Tips On How To Ask Your Trustee for Money First, understand the playing field. Read your trust document ! It will tell you the standards or the rules of the game. Like, how money may be distributed to you. Or how often. And for what purposes. If the trust says that you can request money for a residence, consider this. If you don’t have a job, I doubt your trustee will buy you a beach house in Nantucket. Or a ski chalet in Aspen. But, hey, maybe they will. 2nd, put it in writing. Emails are fine. 3rd, cite or refer to the part of the trust that makes you believe you can get money. Your trustee should be reading the trust, so you better know it, too. 4th, give an explanation. Help your trustee understand why you want or need the money. If you want a new car, why do you want to purchase a Tesla versus renting a less expensive vehicle? 5th and […]

Trust beneficiaries know that many Florida trusts give lots of DISCRETION to a trustee. That discretion may include giving trust money to you. Or not. What does a trust beneficiary do when they want to appeal a trustee’s decision? How is this done? Let’s assume that you asked a trustee for money. And she said “no!” 2 Things Every Trust Beneficiary Must Read So, there are 2 things which every trust beneficiary should understand. The Trust Document itself and the Florida Trust Code. You can also watch a FREE FLORIDA TRUST VIDEO on trust administration + beneficiary rights. The Trust Document itself is the legal document which creates the trust. It’s like a will. It will tell the trustee, who runs your trust, what to do with the money at every step of the way. That document also tells you how long the trust will last. Perhaps most importantly for a trust beneficiary, it tells you how to get money. Or, put another way. It tells the trustee under what circumstances money from the trust may be distributed to a beneficiary. Trust funds may be used for your benefit. Such as making distributions to your spouse or children if permissible. Or directly to your service providers. This can include paying your health insurance, auto payment, mortgage, or credit card bills. So, what do you do if you asked your trustee for money and they said “no” ? Here’s 5 steps on how to appeal your trustee’s decision 5 Steps Every […]

Florida trust beneficiaries have rights ! And if your Florida trustee is bad, or not giving you information. You can ask a Probate Court to surcharge. What is Florida Trustee surcharge and why is it so important to experienced trust litigators? Florida Trust Code The Florida Trust Code is a set of laws or statutes. They tell beneficiaries about their rights and trustees about their duties. Duties? Yes, under the trust document and Florida Trust Law. These laws will tell you a lot about judicial proceedings and rights and obligations. The Florida Trust Code is probably the single most important document to read besides the trust document itself. And, perhaps most important to beneficiaries. These laws tell you what you get if a trustee commits a BREACH OF TRUST. A breach of trust is a breach of fiduciary duty. What remedies does a beneficiary get? There’s a whole list RIGHT HERE. That’s Florida Statute 736.1001. What about damages? If you want to know about trustee damages, CLICK HERE. That’s Florida Statue 736.1002. But what is this trustee surcharge? Trustee Surcharge Explained Think of trustee surcharge as a personal fine against the trustee. She can’t use trust funds to pay the fine. She has to pay it personally. Individual trustee liability. That’s why you have to sue a trustee in their fiduciary capacity and their individual capacity. A surcharge action can be filed by a trust beneficiary. File a trust complaint under Florida Trust Code Statute 736.0201. You have to plead, […]

A probate contingency fee may be appropriate for certain family members and beneficiaries. But before you hire a lawyer for your Florida probate matter, consider the pro’s and con’s. Make sure you get your contract in writing and understand your rights and obligations. We have written about CONTINGENCY FEES in Florida before. Now, let’s focus on them in a probate case. Whether they make sense or not. For a FREE CONTINGENCY FEE VIDEO, click here. Such a compensation arrangement may be appropriate to help you get the legal representation you need to be heard in court. These type of fee arrangements may make sense for trust cases, inheritance lawsuits and probates. And I’m not talking just about a will contest. Every day, it seems that beneficiaries need legal representation to deal with their trustee or executor. And the Personal Representative. Does it make sense? When is a probate contingency fee appropriate and does it make sense? Well, many times family members want to OBJECT TO A WILL in Florida. But, they can’t afford a probate lawyer to handle their trial. After all, a will contest, for example, is a trial. And there’s lots of work that goes into preparing your case for trial. Witnesses to depose, hearings, research, discovery and gathering EVIDENCE. Many times, a family member or heir does not have thousands of dollars to pay for a probate trial. Or even to pay a retainer. Important Points That’s where a contingency fee may make sense. Here are some […]

Under Florida Trust Law, qualified beneficiaries have lots of rights. If you are the beneficiary of a Florida Trust, do you know what your rights are? Trustees also need to know what their duties to their beneficiaries are. After all, if a Trustee falls short, they commit a BREACH OF TRUST. We have provided solid free TRUST LEGAL COMMENTARY on beneficiary rights and trust disputes. Now, let’s answer the question what is a qualified beneficiary of a Florida Trust. For a free video on trust administration and beneficiary rights, click HERE. Defining Qualified Beneficiary The Florida Trust Code is found at Florida Statutes, Chapter 736. It has a set of definitions. Florida Statute 731.0103 (16) defines qualified beneficiary. To read about money and trust principal and income, click on Chapter 738, Florida Statutes. A “Qualified beneficiary” is defined as a beneficiary who is currently alive. And, on the date the beneficiary’s qualification is determined: (a) Is a distributee or permissible distributee of trust income or principal; (b) Would be a distributee or permissible distributee of trust income or principal if the interests of the distributees described in paragraph (a) terminated on that date without causing the trust to terminate; or (c) Would be a distributee or permissible distributee of trust income or principal if the trust terminated in accordance with its terms on that date. A distributee is someone to whom the trustee may give trust funds or money. Some distributees are mandatory distributees. An example of this is if the trust […]

What is breach of trust in Florida? We have previously written about breach of trust. Now, we’ll dig a bit deeper. Breaches are serious business for trustees and beneficiaries. Bad Florida Trustees Breach A breach of trust in Florida is a breach of fiduciary duty by a fiduciary. Fiduciaries can include trustees and personal representatives. Personal Representatives run estates. Trustees administer trusts. They both owe their beneficiaries serious duties. Fiduciary duties include such things as being loyal, prudent, acting in good faith and with impartiality. A breach of fiduciary duty is when a person owes another a fiduciary duty. And that fiduciary breaches, or breaks, her duties. The breach causes damage. The Florida Trust Code uses this phrase. But a breach of trust in Florida is a breach of fiduciary duty. A trustee who breaches can be ordered to return money to the trust like trustee compensation. Or damages and attorneys fees and costs. Calculating damages in a breach case is an important part of your litigation strategy. A bad trustee can also be ordered to pay a fine, also known as a surcharge. What Do Florida Appeals Courts Say Florida appellate courts interpret the law and the decisions of probate judges. They issue opinions. They tell us what the law means. To read an APPELLATE DECISION about this topic, for free, CLICK HERE.