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Marital Trusts in Florida — full time employment

FAQs Aug 22, 2022
post about Marital Trusts in Florida — full time employment

Marital Trusts were once set up to provide for a spouse and their children. But times have changed. Find out why these trusts are often the subject of serious, and expensive, litigation. The full time employment act for probate litigators? We have previously written about trust lawsuits among a widow, or surviving spouse, and adult children. Now, let’s re-examine this Florida Legal Concept and consider why there is so much litigation — and what you can do. How Did We Get Here? OK, here’s the scenario which we are talking about. Mom or Dad have a few bucks and die. Their estate plan leaves money and property in a trust. For her or his surviving spouse for lifetime. If there’s anything left in the trust when spouse dies, it goes to Mom or Dad’s adult children. Back in the 80’s and 90’s, you could only leave about $600,000 free of the estate tax. Everything over that was taxed. The tax act of 1986 changed all that with the marital trust. If done properly, this type of trust would benefit your spouse and then go to the kids. You got a marital deduction and paid the tax when the 2nd spouse died. Sounded good , right? Fast forward to the 2000’s and 2020’s in Florida. Lots of people get divorced Many re-marry. Many 2nd spouses, or 3rd spouses, don’t like their new spouse’s children. And vice versa. So, why is everyone still creating a marital trust for people who don’t get […]

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Settlement Agreement Florida

In the News Aug 19, 2022
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Can you be bound by a settlement agreement Florida that you don’t sign? Generally, hell no. Here’s “all” you need to know about this trust legal topic in 3 minutes. We have previously written about deals that were struck at mediation. How to read them. And to enforce them. Now, let’s get to this new legal opinion. Mediation and Settlements Most people settle their cases. One reason is that probate judges in Florida require mediation before trial. Some judges require multiple mediations. Many times, those mediations end in a settlement agreement. Many times, the parties ask the court to approve a settlement agreement. And compel everyone to be bound by the terms of the settlement agreement. Everyone? Well, not really. A recent opinion from the Palm Beach Appeals Court, Florida’s 4th District Court of Appeal tells us more. Florida Settlement Agreement What if you did not sign the settlement agreement? But the agreement affects your rights? Let’s face it: settlement agreements are very common for estate beneficiary, will contests, and trust lawsuits. Or takes away some property or trust interests from you? You got a trust lawsuit ! But the good news is that a settlement agreement only binds the parties. If you did not sign, you are not bound. Now, there are exceptions. You could be bound indirectly. Such as if you are a share holder, a member in a Florida LLC, or a beneficiary of a Florida trust (where the trustee signs the settlement). But this is a […]

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Guardian Fees in Florida

In the News Aug 18, 2022
post about Guardian Fees in Florida

Where do you pay guardian fees from? What if there’s not enough money ?? An August 17, 2022 opinion reveals that an emergency temporary guardian may not use the Ward’s IRA to pay her fees and compensation. We have previously written about Florida Guardian Compensation before. Now, let’s consider the legal “tension” between two statutes. Guardian Compensation First of all, if you want to read about Florida guardianships, read the Florida Guardianship Code. Chapter 744 Florida Statutes. You can also read the Florida Probate Rules, which has rules for guardianships. They start at Part III, with Fla. Prob. R. 5.540. There are a number of cases about compensation and fees for THE LAWYER of a Florida Guardian. And there are different cases and opinions for Guardians (e.g. limited or plenary) vs. Emergency Temporary Guardians. For the statute of guardian fees, check out 744.108. But, what if the ward dies ? How does the guardian get paid? ETG Can’t Get to Ward’s IRAs if Family Fights The 1st District Court of Appeal issued an opinion on August 17, 2022. This opinion dealt with guardian fees. Specifically, whether the guardian could get paid from the Ward’s IRAs. No! (Absent family members permitting that. Or, I should say, absent the IRA beneficiary agreeing to that). You can read this Florida Emergency Temporary Guardian case. The name is Araguel v. Bryan. Family members wanted to get a guardianship over mom. The court did not appoint a family member. The probate court appointed a professional […]

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Forum Non Conveniens

In the News Aug 16, 2022
post about Forum Non Conveniens

Two recent Florida appeals court opinions provide guidance on transferring a lawsuit to another court. Maybe another state. When that other court would be more convenient. These opinions also examine the evidentiary obligation of the person making the motion. And, they consider the discretion of the court to transfer a case based upon the “interests of justice.” “Everything” you need to know about forum non conveniens in 3 minutes and 12 seconds. What is forum non conveniens? If the lawsuit was filed in a court that may be proper, BUT another court may be more “appropriate.” A defendant can file a motion that asks the court to move the case to a more convenient forum. That could be in another county or state. There is “tension” in the law . Between the preference of the party filing the lawsuit to select an appropriate forum. Yes, the plaintiff generally gets to select her venue among multiple proper ones. See Rule 1.060 (b). So, where’s the legal tension? Well, the defendant can ask for a more appropriate court room. In many instances, defendants can be sued in multiple counties in Florida. If the plaintiff files in a permitted courthouse, the defendant can still ask the court to move the case. And, the court has certain discretion in the interests of justice. That’s the legal tension. Note that this type of motion is different than a motion to dismiss for failure to state a cause of action. See Florida Statutes Chapter 47 on […]

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Attorney That Deals with Inheritance

FAQs Aug 7, 2022
post about Attorney That Deals with Inheritance

Do you really need a lawyer to explain your inheritance rights to you? Not necessarily. And, even if you do, you might not need that attorney for long, or for much work. Knowing whether you need inheritance counsel is one thing. But how do you interview and select an inheritance lawyer to your liking? 5 things to consider. Straight talk, straight from the horse’s mouth. Do you even need an attorney that deals with inheritance ? Let’s face it: not everyone needs an inheritance attorney. You just don’t. Lots of times, a trusted family member is handling the Florida Probate with a good estate lawyer who everyone trusts. There are probate rules which provide for information sharing and disclosure. You know what’s going on, when, and how things are getting done. There’s no will contest, no fighting. But, what if the trust is not there? What if the executor or personal representative is not telling you what’s going on in the probate? “Many family members are let down when the estate executor does not communicate, let alone hides information” says Probate Litigation Attorney John Pankauski. Pankauski tries to reassure prospective clients who may not be trustful of their executor. He lets them know that financial data, assets, money, and property will all be disclosed. Or, should be disclosed. He points you to all the rights which a Florida estate beneficiary has under the Probate Code. And all the duties which an executor is required to follow. But what happens when […]

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Summary Judgment in Florida

In the News Aug 6, 2022
post about Summary Judgment in Florida

Summary judgment has changed in Florida. Knowing the new rule is only part of it. You need to know how an order on summary judgment should be written. What it must say. An August, 2022 opinion helps you understand this. To view a free Legal Video on this very topic from a lawyer who actually handles this interesting legal topic, and similar matters, CLICK HERE. The Basics Summary judgment may indeed be a short cut to victory. It could avoid a trial. (Be sure to read Rule 1.510). After all, if there’s no need for a trial, why have one, right? SJ can be granted by a judge if there is no disputed issue of MATERIAL FACT. If there is a pure question of law, why not just have the judge tell you how she will rule? In other words, if the law is clear, you may be entitled to “judgment as a matter of law.” This shortcut can save you thousands of dollars in legal fees and months of time litigating. Want to read more? Update: for a 4th DCA opinion on a defective affidavit when summary judgment was sought, read the Gromann v Avatar case Recent Case In April of 2021, the Florida Supreme Court changed the summary judgment rule. One purpose was to make Florida’s rule more like the federal rule. With the new standard, it’s not enough for a court to rule. The court must rule correctly. If not, the ruling can be appealed at the […]

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Charging Lien Florida

FAQs Jul 31, 2022
post about Charging Lien Florida

Understanding a charging lien Florida shouldn’t be that difficult. There are only a handful of points which you need to know. But lawyers and clients struggle to understand this obscure Florida legal concept — and about paying legal fees. Here’s some guidance from the horse’s mouth! Perspective from one who has drafted, or written, charging liens, litigated them in trial, and handled those appeals. Understanding the Basics A charging lien Florida issue typically comes to the court when there is a “fee fight.” A disagreement between a client and a lawyer. ( Note that a charging lien is different than a retaining lien . ) It generally involves non-payment of compensation by a client, or former client, to a Florida lawyer. To see a free Florida Legal video on this topic, click HERE. Lawyers, many times incorrectly, file a notice of charging lien. Why? “Notice” is one requirement for asserting a valid charging lien Florida. But when does a lawyer have such a lien? (Back in 2017, attorney John Pankauski presented a Florida Bar-approved continuing legal education seminar on this topic.) Once notice is given, or filed, the lawyer can then move the court (by filing a motion) to perfect, or rule on, the validity of it. But what is a charging lien and what are the key points you need to know? 5 Things You Need to Know

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Inheritance Lawyers — 5 Traits to Look For in Florida

Our Attorneys Jul 30, 2022
post about Inheritance Lawyers — 5 Traits to Look For in Florida

Inheritance lawyers in Florida know a thing or two about the probate process + trusts. And, also, how many times an estate can drag on and on–and on and on! Knowing HOW MUCH you inherit, and WHEN you are supposed to get your money are important. Every estate executor in Florida has a lawyer. Who’s watching your back? Inheritance or Inheritance Fight? It should be easy enough, right? To get your inheritance. Who’s responsible when it takes so long to get what is yours? Do the lawyers slow it down? Or is there someone trying to steal your inheritance? I mean Florida has lots of folks with billions and billions, if not trillions, of dollars. You have a will, maybe a trust, and you get your inheritance, right? Well, the probate process does take time. There are rules and procedures. And if money is left in a trust, you have to deal with setting up the trust. And remember, the dead person’s creditors (e.g. IRS, Uncle Sam, credit card company, mortgage, pool cleaning, cable, etc) all need to be paid before the beneficiaries see a dime. That’s why a good inheritance lawyer may be needed. Below are 5 things you may want to look for in a good Florida inheritance lawyer. 5 Questions to Ask a Florida Inheritance Lawyer Are you experienced? Some Florida lawyers write wills but also do dog bites, car crashes and slip and falls or criminal defense. Is that who you want helping you on an […]

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Can a Power of Attorney Make Gifts?

FAQs Jul 16, 2022
post about Can a Power of Attorney Make Gifts?

In Florida, people have power-of-attorney documents as often as they have a will or a revocable trust. But mis-use of a “POA” causes concern. Many times, POAs take money or make gifts when they should not. So, can a Power of Attorney make gifts? To read about MISUSING a power of attorney, click this FREE LINK to Florida POA Law. Power of Attorney in Florida Let’s come out and say it : a power of attorney should not make gifts in Florida. There is even a special law about making gifts. Read Fla. Stat. 709.2202(1)(c) which prohibits making gifts ABSENT VERY SPECIFIC LANGUAGE AND PERMISSION. BUT, doesn’t every rule have exceptions. Here are some important bullet points for power of attorney law in Florida. (For a free legal video on UNDERSTANDING POWER OF ATTORNEY, click HERE.) A power of attorney is a fiduciary The person who “gives” or “creates” a power of attorney is called the “principal“ The POA is supposed to act in that person’s best interest The POA can and should spend the principal’s money — on the principal! The POA can use the power of attorney document to pay the principal’s bills The POA should not make gifts of the principal’s money unless the document specifically authorizes that The fiduciary should not make gifts of money or property to herself That’s called “self dealing” and is a “conflicted transaction” or a conflict of interest In unique or rare or limited circumstances, a principal might give the POA […]

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