Are you suing a trustee individually? Most trust beneficiaries want to know what their rights are when a trustee behaves badly. We have previously written about REMOVING A TRUSTEE and SUSPENDING A TRUSTEE. When should you sue a trustee both individually and as trustee of a trust in Florida? Suing a person who happens to be serving as a trustee is different than suing that person in his or her capacity as trustee. If a Florida Probate Court surcharges your trustee or finds there are damages, that trustee may have to pay personally and not from trust funds. Florida Trustee Duties Under the Florida Trust Code, a trustee has the following duties: Duty to Administer the Trust in good faith and accordance with its purposes and the Florida trust code. Duty of Loyalty. A trustee cannot engage in self dealing for its own advantage of profit, it must be loyal to the trust and beneficiaries. The trustee violates the duty of loyalty any time a transaction is entered for the trustee’s own advantage or benefit. These are general voidable by the court.  Duty of Prudence. The trustee must administer the trust as a prudent person would after considering the purpose of the trust, its terms, what the circumstances of the trust and market are etc. The trustee also cannot incur unreasonable expenses. Duty of Special Skills means that a trustee with special skills will be held responsible to utilize those skills. For example, if a person serves as a trustee who is a lawyer or accountant, that person will be held to a […]

Are you involved in a Miami guardianship proceeding? Florida Adult Guardianships seem to be on the rise. Many family members not only file for guardianship for a mother or father. They also sometimes fight over who will be in charge. Probate Judges always appoint a lawyer to represent the person who is the subject of a guardianship. But what if you want a different lawyer? We have provided thoughtful free commentary on Florida Guardianship Law, as well as the Netflix show I Care A Lot and even Britney Spears. Now, let’s talk about Florida Adult Guardianships in Miami. After all, Guardianships are not just for minors. Miami Guardianships At Pankauski Lazarus, we handle many guardianship cases throughout Florida. When we refer to “guardianships”, we are talking about guardianships over adults, not minors. Commonly, children of the elderly file a guardianship to protect their mom or dad. Maybe they are suffering from dementia or Alzheimers. Or, sometimes it’s more subtle. They are just slowing down. And they need some help. And, their property needs some management and protection. To read about financial exploitation or elder abuse, CLICK HERE. To see a FREE VIDEO on financial exploitation of the elderly, CLICK THIS LINK. Furthermore, certain disabled or injured adults may benefit from a guardianship if they are incompetent and unable to take care of themselves. Occasionally, parents of adult children may file a Florida guardianships if the adult child is unable to handle his or her needs. Florida guardianship lawyers know that guardianship […]

When will a Miami trial court grant an injunction? To be entitled to an injunction in Florida, what must be proven? When do you need to hire a Florida lawyer to assist you with an injunction? When is a stalking injunction necessary in Florida? How can I obtain a stalking injunction in Miami? Miami Stalking Injunctions According to Florida Statute 784.048(2), stalking occurs when a person “willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. You may wonder what the definition of “harass” is according to the Florida Statutes. To harass means to “engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” §784.048(1)(a), Fla. Stat. If someone is stalking you in Florida, you may wish to file an injunction. Probate lawyers and business attorneys know that disputes over money and inheritances can often get pretty heated. Sometimes, although the parties are supposed to be fighting in court, a party decides to stalk or harass the other party. This is usually when a stalking injunction is considered. In addition to stalking injunctions, temporary injunctions to freeze bank accounts or protect assets are often filed during Miami inheritance lawsuits. Stalking Injunctions in Florida Shannon v. Smith, a July 23 2019 First DCA opinion, is a great case to read as it discusses and defines both stalking and cyberstalking. Here, an alleged victim petitioned for temporary stalking injunction against a neighbor. The neighbor appealed. After reviewing the evidence, which […]

Do you want to contest a Miami will or inheritance? Family members have questions. That’s understandable. But before you can launch a Will Contest or an Undue Influence case, do you have legal standing? Are you an interested person under Florida Probate or Trust Law? You need to have some legal connection to launch Miami Inheritance Lawsuits. We previously provided legal commentary about Inheritance Theft. Now, let’s discuss being an interested person. Who is an “Interested Person”? Florida Probate Code Section 731.201(23) provides the following definition: “Interested person” means any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved. Note in Miami Inheritance Lawsuits, an “interested person” is NOT the same as a “person of interest”. The latter term is one which law enforcement uses. We are talking about inheritances and Florida Probates and Trusts. Not criminal law. Miami probate lawyers know that an interested person interested, in a Florida probate case, has greater rights than others. For instance, an interested person has a right to request information regarding the inventory and accounting of the Miami estate. This is information that is kept confidential from the general public. Only an interested person has standing (a legal right to be involved) in Miami probate court proceedings. An interested person can object to various pleadings and intervene in the Miami probate proceeding. For example, interested persons can object to the qualifications of the Florida personal representative, the validity of the Florida will, or the venue/jurisdiction of the court handling the Florida probate. It’s clear that the beneficiary of a Miami […]

There are Billions of dollars in Florida trusts. Defending the Florida Trustee is serious business. Almost monthly, Pankauski Lazarus offers Continuing Legal Education (CLE) webinars, which are approved by the Florida Bar. All CLE webinars are sponsored by Pankauski Lazarus and FREE to Florida Bar members. All Florida lawyers are welcome to attend. Pankauski Lazarus exclusively represents clients in matters involving disputes, trials and appeals surrounding Florida estates, business, wills and probate litigation. Therefore, if you are a Florida probate, guardianship or estate planning lawyer, many of the webinar topics may relate to your Florida practice. SAVE THE DATE: Friday, November 13, 2020, 1:00 p.m.-1:50 p.m. Pankauski Lazarus PLLC will be offering a FREE, 1 credit hour CLE on Defending the Florida Trustee- how to properly plead affirmative defenses, led by managing partner John Pankauski.  Mr. Pankauski literally wrote the book on trusts. You can purchase his Pankauski’s Trustees’ Guide on Amazon. WHERE: Online via Zoom. REGISTRATION REQUIRED: To register for this CLE webinar, click here. Once registered, you will receive an email with the link to join the webinar.  If you have any questions, or need more information, please email Amanda@phflorida.com.

Are you a surviving spouse involved in an inheritance dispute in Miami, Florida? Has your wife or husband recently passed away leaving a house or condo behind? Florida provides surviving spouse inheritance rights that are greater and more valuable than in other areas. Part of a good estate lawyer’s job is to get a widow or widower all they are entitled to. But, if you are a family member, do you know the limitations? We haver previously provided important Florida Inheritance legal commentary on spousal rights. Do you know your inheritance rights and by when you must take action? Are you already involved in inheritance litigation where an appeal may end up being filed? More Than You Can Imagine Miami lawyers know that surviving spouses have important inheritance rights. However, often times, probate battles between the decedent’s children from another marriage and the surviving spouse arise. Therefore, it’s important to have a Miami litigator on your side to help you get your inheritance. Also, Miami probate attorneys know that some inheritance lawsuits, including those regarding inheritance rights, can lead to an appeal. If you disagree with a final judgment or order, you may be able to file an appeal. On the other hand, if you win a case, the other side may appeal. Therefore, it’s important to anticipate the possibility of having to hire an experienced Miami appellate attorney. How Do You Begin to Hire Serious Inheritance Lawyers? If you are in the process of hiring a Miami appellate firm, […]

Does a surviving spouse have rights when it comes to inheritances? Yes ! Those inheritance rights can be worth billions of dollars in Florida ! No exaggeration. A wife or a husband can, at first, be dis-inherited. But, if you did not sign a prenup, you can claim your inheritance. Sometimes, the window of time is very short. We have previously provided solid Florida law commentary on inheritances and personal financial data. After all, you need to know where your inheritance is coming from. We also blogged about a surviving spouse’s rights. What happens if my husband doesn’t include me in his Florida will or trust? What happens to my wife’s homestead property now that she has passed away? Can my husband’s adult children take away the house that I live in just because it was only in my husband’s name? Florida Surviving Spouse Rights In Florida, surviving spouses have inheritance rights to property of a deceased spouse.  In fact, there are statutory minimum benefits to ensure that surviving family members are provided for, regardless of the decedent’s intent.  What are these benefits? Homestead, elective share, and family allowances are three of the main inheritance rights of surviving spouses in Florida. Are there exceptions? As with almost every Florida law, there are exceptions. If a surviving spouse waived his or her inheritance rights in a prenuptial or other agreement, he or she may be out of luck. However, it never hurts to consult with a Florida probate lawyer to make sure that the inheritance rights or homestead […]

What do Miami divorces have to do with probate matters? What does a divorce have to do with inheritances? Should I have a prenuptial agreement drafted by a Miami attorney? Why should I spend the money to get a prenup when I love my future wife and want to be with her forever? What do Miami Beach probate litigators need to know about prenups and inheritances? If you inherit money during your marriage, is it automatically considered a marital asset? Miami Prenups and Inheritances Did you know that a prenup can protect your inheritance from your spouse in the case of death or divorce? In a prenup, a person can specify how to divide up the marital property. In addition, it can help to ensure that inheritances and certain accounts are not deemed marital assets during a divorce proceeding. Marital Assets in Florida Florida’s equitable distribution statute explains what is to be considered marital assets and what is to be considered nonmarital assets in a Florida divorce. The statute provides the following in part: (a) 1. “Marital assets and liabilities” include: a. Assets acquired and liabilities incurred during the marriage, individually by either spouse or jointly by them. b. The enhancement in value and appreciation of nonmarital assets resulting either from efforts of either party during the marriage or from contribution to or expenditure thereon of marital funds or other forms of marital assets, or both. c. Interspousal gifts during the marriage. Is a bank account acquired prior to marriage a marital asset? Is a Miami trust fund inherited by one spouse during […]

Are you thinking about contesting a Florida will? Whether you can file Florida Will Contests may depend on whether or not you were in a prior will. If you were cut out by a later will, understand how to object to the will. For more on “legal standing” or the ability to object, read on. Need a contingency fee probate litigator? Contesting a Florida Will If you are looking to contest a will in Miami or Fort Lauderdale, you should consider consulting with a Florida probate litigator. Florida probate lawyers, like the lawyers at Pankauski Lazarus, can evaluate your matter to determine whether or not there are facts that may lead to a successful will contest. Both Florida estate planning attorneys and trust litigators know that there are many reasons a will may be contested. One of the main reasons a Florida will could be challenged is if the testator, the person who signed the will, did not have “testamentary capacity” to sign a will in Florida. According to Florida law, what is “testamentary capacity”? Testamentary Capacity, Competency and Florida Will Contests If a will was signed with the signer did not have “capacity”, the will is void. Put another way, if the will-signer was not competent, then the will needs to be objected to, to overturn it. Failure to object timely means an otherwise invalid will may be admitted to probate. There are four main components to show testamentary capacity (sometimes called “sufficient mental capacity”) in Florida: understanding that he or she is creating […]

What is a reasonably ascertainable creditor in a Florida probate proceeding? How does a creditor give the personal representative of a Florida estate notice of his or her claim? What does the personal representative have to do to properly determine creditors? What happens if a creditor files a claim against a West Palm beach estate after the claim period? Florida Estate Proceedings: Notice to Creditors If you are serving as the personal representative of a Florida estate, you will have to comply with Florida Statute, section 733.2121. Therefore, as personal representative, you must properly publish Notice to Creditors and make a diligent search to determine creditors. To ensure that the Notice to Creditors is properly published, it is important to read the relevant statute in its entirety and to consult with your Florida probate attorney. Furthermore, in any probate matter, it is very important to know filing deadlines. Under Florida Statute 733.702(1), creditors must file any statements of claim against a decedent’s estate within three months of the first publication of the notice to creditors or within thirty days of being served with it, whichever is later. Any claim not filed within that time is barred unless the court grants an extension.733.702(3), Florida Statutes(2012). Extensions can be granted “upon ground of fraud, estoppel, or insufficient notice of the claims period.” Florida courts take deadlines very seriously. If you believe that you have a creditor claim against a Florida estate, you should begin interviewing estate lawyers and get your claim filed immediately. If you […]