A March 5, 2021 decision from the 2nd District Court of Appeal sheds light on Florida temporary injunctions. We have provided solid Florida legal commentary about injunctions before. Why now? Read on ! 4 Requirements How do you win a temporary injunction? There are generally four requirements that you must show or prove. Here they are: (1) a likelihood of irreparable harm; (2) unavailability of an adequate legal remedy; (3) a substantial likelihood of succeeding on the merits; and (4) considerations of the public interest. “We have filed and also defended motions for temporary injunctions” says Trust + Estate Litigation Lawyer John Pankauski. “We are very familiar with Rule 1.610 and the caselaw. We know what is required to win.” Florida Temporary Injunctions for Estates and Trusts Be sure to read Florida Rule of Civil Procedure 1.610. Following that rule is key to obtaining an injunction. Many estate beneficiaries and family members want probate assets frozen! Many believe, whether correctly, or incorrectly, that estate money may be mis-spent, taken or squandered. What about Florida trusts? Under the Florida Trust Code, trust beneficiaries know that a judge can freeze a Florida trust. A “freeze” is a Florida temporary injunction. Want to read more about what a Florida Trust Judge can do? Consider reading 736.0201 and also 736.1001 of the Florida Trust Code. Or read this new opinion about Florida temporary injunctions. What You Need to Know! Why do so many estate and trust beneficiaries want to know about Florida temporary injunctions? […]

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 […]

Are those text messages that everyone sends and receives “discoverable” in your Florida litigation? In 2021, text message admissibility is important ! Maybe…………..maybe not! Whether those text messages in Florida lawsuits can be admitted into evidence is an entirely different question! Afterall, once your trial lawyer gets over the “relevance” hurdle, she has to lay a foundation and get those out-of-court statements in over an anticipated/expected “hearsay!” objection from your opposing counsel. A recent case from Florida’s 4th District Court of Appeal discusses text messages in Florida lawsuits, as well as Florida evidence and the authentication and admissibility of data and documents. Florida Evidence & Text Messages Has your Florida probate lawyer asked you about e-discovery? Maybe she told you to preserve all evidence and to retain all laptops, iPhones, cell phones, iPads, tablets, computers, text messages and emails. Oh, yes, she probably also told you to suspend any “self deleting” mechanisms on your electronic devices. Oh, yes, and I’m sure he instructed you not to delete any communications and documents, either. After all, you don’t want to lose any of that data which you are going to be COMPELLED to produce in your Florida lawsuit. Very good ! Great start! Now, let’s say that the other side to your Florida litigation has text messages to use against you. One question which I know your lawyer has asked you is about text message admissibility: Are your text messages admissible in your Florida lawsuit? A recent, September, 2020, Florida appellate opinion […]

Two recent opinions from Florida appellate courts tell you everything you need to know about Fraud on the Court in Florida (almost !). Although we have provided free commentary + legal videos on this issue before, these two new opinions are helpful & instructive. What is Fraud on the Court? Fraud on the court “occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of act or unfairly hampering the presentation of the opposing party’s claim or defense.” That quote is from the Florida Appeals Court in Palm Beach, also known as the Fourth District Court of Appeal. That case was Amato v. Intindola, 854 So. 2d 812, 814 (Fla. 4th DCA 2003) (quoting Cox v. Burke, 706 So. 2d 43, 46 (Fla. 5th DCA 1998)). Want to read more about Fraud on the Court from the 4th DCA? Check out this January 6, 2021 opinion in the case of Gleman vs. MWH Americas, Inc. The Gleman opinion also discusses what a sham pleading is under Florida Rule of Civil Procedure 1.150. What Can A Florida Court Do ? A Florida Court has the discretion to dismiss a party’s pleadings based upon fraudulent conduct. Cherubino v. Fenstersheib and Fox, P.A., 925 So. 2d 1066, 1068 (Fla. 4th DCA, 2006). “A trial court possesses the discretion to dismiss a complaint [or strike a […]

In Florida, guardianship business is booming — for good or for ill. Every week, perhaps every day, family members are asking a Florida Probate Court to declare an adult “incapacitated” or “incompetent“, remove or limit their rights and powers to act alone, and appoint a Guardian. Many times, a guardianship means that you limit access to one’s money !! We have written about “contested” Florida guardianships before, where family members duel over controlling a parent or their purse. Now, Netflix has a popular and new 2021 comedy, crime thriller called “I Care a Lot.” Will this popular streaming movie shed light on financial exploitation and financial abuse? Although it’s fiction, I Care a Lot is getting a lot of attention from people involved in Florida guardianships. I Care a Lot + Guardianships Florida guardianship law is found in Florida Statutes Chapter 744. This explains the entire Florida guardianship process. How do you start a guardianship? (file a petition). What if there is a Power of Attorney (consider lesser restrictive alternatives to a guardianship). “There’s actually two cases you need to start a Florida guardianship” says guardianship litigator John Pankauski. “You file a mental health case which suggests that a Florida resident is not competent and needs some protection and assistance” says Pankauski. “Then, who is going to provide that protection and assistance? You need a guardianship matter.” Pankauski should know. He leads a boutique law firm in Palm Beach which restricts its practice to so-called “probate litigation” which typically means […]

Were you supposed to inherit a Florida TOD account from a bank or financial company? Is the probate executor making a claim to your Florida TOD account? This recent federal case on Florida TOD accounts may prove helpful to understanding your rights. If you still have questions, be sure to find a litigation law firm that has experience trying TOD and pay on death cases, as well as handling TOD appeals. Federal Case Sheds Light on Florida TOD Accounts + Federal Court While most Florida probate lawyers only practice in state court, there are some expert probate litigators who also handle federal court cases in Florida. Just ask John Pankauski, Managing Member of the boutique firm Pankauski Lazarus PLLC. “We have a federal court trial in March of 2021 in the Middle District of Florida . 2020 was very busy for us in Federal Court in Florida. We had a few matters in the USDC Southern District of Florida.” Pankauski should know. After all, TOD accounts and pay on death bank accounts are a unique area of the law. “Look out for so called ‘probate’ lawyers who say they go to court, but who actually never try a case” warns Pankauski. “Don’t get me wrong. Mediation and settlement may make a lot of sense, but they are not for everyone.” he continues. “There are a lot of Florida probate lawyers who just want you to settle everything.” Well, needless to say, that’s not him. Florida TOD Accounts + Federal Court […]

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 […]

What does TOD mean to heirs, family members and Florida probate beneficiaries? Transfer on death accounts are a way that Florida residents pass millions & millions of dollars, automatically, without probate. Sometimes ! We have previously written about this pay on death will-substitute and posted a number of Free TOD and Pay on Death Videos . Hopefully those help you understand beneficiary rights and inheritance rights for such Florida accounts. In short, TOD means “transfer on death” and generally gives the other name on the bank account 100% ownership when the other (or first) owner dies. Something so easy has never created more lawsuits about Florida bank accounts, both in federal and state court. If you think you are entitled to a bank account, consider reading three things that will tell you (almost !) all you want to know about these accounts. Everything You Want to Know About TOD Bank Accounts in Florida To learn all about such accounts in Florida, consider reading three things. First read the Florida TOD Law which tells you about pay on death accounts and bank accounts when there are two or more names. You may also hear the term “totten trust” or “POD” or pay-on-death. That’s Florida Statutes 655.78- 655.825. Second, there are two good appellate opinions from Florida’s appeals courts which will tell you a lot. Consider reading Keul v. Hodges Blvd Presbyterian Church, a 2015 Florida appeals court case from Florida’s First District Court of Appeal. Finally, consider reading the case of […]

Jeffrey Epstein was back in the news in 2021. This time, the focus was on a unique and sophisticated estate planning technique called a GRAT. We had previously provided insight on Jeffrey Epstein’s estate and potential creditors of the now deceased Palm Beach resident. So, what is a GRAT? Why are Florida families and trustees litigating about these Florida trusts? What is a Florida GRAT? What is a Florida GRAT? GRAT is short for Grantor Retained Annuity Trust. “It’s a fantastic, low risk estate planning technique that can literally save millions, even billions, in estate taxes if done correctly” says Palm Beach trust litigator John Pankauski. And Pankauski should know. After all, he was reading the IRS federal regulations on GRATs back in the early 90’s and writing them for wealthy clients over 20 years ago. Today, he doesn’t write or draft GRATs. He and the handful of expert litigators at his firm now only litigate and handle appeals for GRATs. Jeffrey Epstein GRATs With a GRAT, the creator, or settlor of a special trust irrevocably transfers property to her trustee. The grantor of the GRAT retains, or keeps, an annuity stream for a fixed term–such as a number of years. With a properly drafted or written GRAT, the savings can be amazing. But you also need the right family asset and a good appraiser. Why do these things matter? Because the amount that is transferred (or “gifted”) for federal gift tax (or estate tax) purposes can be very small […]

The conservatorship of Britney Spears is in the news again. You may have read some of our blogs on Britney Spears and Florida guardianships in the past. After all, Pankauski Lazarus is one of the few boutique litigation law firms that restricts its practice to Florida guardianship trials. Let’s discuss a very recent update on the guardianship of Britney Spears, first reported in the New York Times. ( February 9, 2021: Britney Spears Conservatorship Case Heads Back to Court). Why do Florida families care about the Britney Spears Guardianship? What if Britney Spears Guardianship Was in Florida? Some states refer to an adult guardianship as a “conservatorship.” In Florida, most probate divisions of the Circuit Courts exclusively handle all guardianships. And, remember, Florida guardianships are not just for minors or those people who are under 18. “For good or for ill, guardianship lawsuits have increased in the 25+ years that I’ve been admitted to practice law in Florida.” says John Pankauski, Managing Member of Pankauski Lazarus, a boutique guardianship and probate litigation law firm. Well if the Britney Spears Guardianship was in Florida and not California, the Florida Guardianship Code would apply. Changing Your Guardian in the Guardianship Court In Florida, the “guardianship court” is actually the Probate Division of the judicial circuit where the alleged incapacitated person, or “ward”, resides. Probate courts have exclusive jurisdiction over Florida estates, Florida guardianships and most of the time Florida trusts. In the case of the Britney Spears Guardianship, Ms. Spears wants to […]