A guardianship is a legal proceeding in the circuit courts of Florida in which aguardian is appointed to exercise the legal rights of an incapacitated person and is governed by Chapter 744, Florida Statutes. To be appointed as a guardian you need to file a petition with the Court and the Court must find that guardianship is appropriate. Importantly in Florida a guardian must be represented by an attorney.

If a probate court does not give an adequate remedy there are alternatives such as civil court. A variety of remedies are available but the most common plead in Florida is tortious interference of inheritance or expectancy. A recent case in New Jersey highlights what you need to know before you pursue a remedy outside of the probate courts.

There are many kinds of trusts, especially in Florida.  There are express trusts, charitable trusts, revocable trusts just to name a few.  What is an express trust?  Anyone involved in a Florida express trust may want to read this recent, February 3, 2014 Florida appeals court decision on trusts.

Any Palm Beach Probate Attorney can tell you that the Probate Courts are underfunded, and that means lengthy space between hearings, over worked judges and sometimes-unsatisfactory results. The thing to remember is that Florida Courts are less like the DMV and more like the Post Office. I say this because, there is a private alternative if you are unsatisfied, specifically alternative dispute resolution. Given the fact that Florida does not give jury trials for contested probate and trust proceedings, these cases may lend themselves very well to switching to a private forum, the arbitration room. 

Marriage alters inheritance, social security benefits, and so many other important rights so do not mistake co-habitation for a “common law marriage” it could cost you! If you are not married to your long term partner and have commingled funds and accumulated assets you risk losing those assets to their heirs in intestacy if you lack a will. When you are married your spouse has a vested right in your estate that a long-term partner simply does not have as a matter of law. In fact the idea that long term cohabitation forms a legal marriage is largely a misnomer.

Decanting lets trustees re-write irrevocable trust agreements by figuratively pouring the assets from an old trust into a new one. Under Florida’s decanting statute, an “absolute” power to invade principal means a power that’s not limited to specific or ascertainable purposes, such as health, education, maintenance, and support (“HEMS”), whether or not the term “absolute” is used. So a Florida individual working with an irrevocable trust agreement that needs tinkered with the trust can simply be re-written under Fla. Stat. 736.04117.

If you die without a will in Florida, your assets will go to your closest relatives under state “intestate succession” laws. While a last will and testament serves as your individual instructions to the probate court, intestate rules are the gap fillers or default rules. In other words if your will is silent to an area or you have no will these are the rules that  the Court will utilize.

After someone passes away may their estate have standing (the right to bring an action) to sue under an employer liability policy for breach of contract? The Florida Supreme Court recently answered this as certified question. In the case of Morales v. Zenith Ins. Co., 2014 WL 6836320 (Fla. Dec. 4, 2014) the Supreme Court answered in the affirmative. Remember your rights to sue do not extinguish after you die but they are severely limited by several Florida and Federal statutes which hem in the rights of an estate and its representatives in comparison to the rights of a natural person. Last December the Supreme Court of Florida dealt a victory to litigious estate’s everywhere.

In Florida probate, personal representatives of estates, guardians, and trustees are all fiduciaries and therefore must act within the highest legal and ethical standards or face exposure to personal financial liability in breach of fiduciary duty lawsuits.

Guardianship is an expansive and flexible remedy in Florida that can serve a variety of purposes. Two things tend to spur aFlorida guardianship, a person may be judged incapacitated or a minor may receive assets in excess of $15,000. An incapacity hearing is typically actually two hearings. The first hearing will be focused on whether or not the person is incapacitated while the second is where the court will appoint a guardian.