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Florida Heirship

Probate Information Apr 10, 2021
post about Florida Heirship

Who inherits from a Florida estate if you are not sure if the deceased person is your parent? Well, Florida law permits you to ask a Probate Judge to determine if you are a child. Many times, after someone dies, adult children come to the estate and suggest that they are a child. They want to inherit or have LEGAL STANDING to Contest The Will. A child might inherit under a POUR OVER WILL, from an intestate estate, or even from a Florida Trust. We have written about a Petition to Determine Heirs before. Now, you can read an April 1, 2021 opinion from Florida’s 5th District Court of Appeal on Florida Heirship. And what it takes to establish paternity. (Hint: it takes more than having a person’s name on your birth certificate.) How to Inherit If There Is No Florida Will If there is no Florida will, we say that the Florida Probate is an INTESTATE ESTATE. You can read the Florida Probate Code laws on an Intestate Estate by clicking HERE. Heirs inherit when there is no will in Florida. We previously posted free Florida probate commentary on Heirs . That link includes a consideration of who is a Florida Heir? Florida Heirship Appeal: April 1, 2021 In this April 1, 2021 Florida Heirship appeal, a Personal Representative/ Appellant, won. His appeal victory caused a reversal of a summary judgment (probate court) ruling. The Probate Judge found an adult claiming to be a child was an “heir” and […]


What is a Qualified Beneficiary?

What We Do Apr 8, 2021
post about What is a Qualified Beneficiary?

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?

What We Do Apr 6, 2021
post about What is Breach of Trust in Florida?

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.


Florida Breach of Trust– what is it

What We Do Apr 6, 2021
post about Florida Breach of Trust– what is it

If you are a trustee or beneficiary of a Florida Trust, you have probably heard the words “breach of trust.” But what really is a Florida Breach of Trust? Well, we are going to answer that question in plain-English. We have previously provided FREE LEGAL TRUST COMMENTARY about breach of fiduciary duty, SUSPENDING A FLORIDA TRUSTEE and also REMOVING a Florida Trustee. Let’s explore this trust concept for Florida beneficiaries and trustees. Florida Trust Law The Florida Trust Code is a set of statutes. Chapter 736 will tell you “all” you need to know ’bout trusts in Fla. You can read it for free. Trustees may want to know about DEFENDING a breach lawsuit. The truth is that a breach of trust is a breach of fiduciary duty. To read a case which DEFINES what a breach of fiduciary duty is, CLICK HERE. This case also reveals that a breach of fiduciary duty action is different from a claim to an accounting. Trustees owe their beneficiaries lots of DUTIES. When a trustee falls short or “breaks” those duties, that’s a breach. When a trustee falls below the standard of care of a reasonable trustee, she can be liable to the trust for DAMAGES. Trust beneficiaries can click HERE to learn what remedies they have against their trustee. Here is a LIST of all the duties your trustee owes you. Trust Caselaw Appellate opinions are referred to as “caselaw.” Appellate courts review trial court orders. In Florida, most trials involving a […]


Florida Life Insurance Trusts

Probate Information Apr 5, 2021
post about Florida Life Insurance Trusts

Florida Life Insurance Trusts hold billions and billions of dollars. And with good reason. Most Floridians have some type of life insurance. And if you place the insurance into an irrevocable trust the correct way, it can be income and estate tax free. But, admittedly, there can be a lot of probate litigation of life insurance and trusts when the insured life dies. A March 31, 2021 opinion from the 4th District Court of Appeal tells us how to interpret, or read, insurance contracts when there is a disagreement. We have previously provided commentary on DIVORCE and LIFE INSURANCE. Now, let’s discuss policy construction or interpretation. For a free legal video of how to make a claim for life insurance money, CLICK HERE. Life Insurance’s Role Life insurance shifts the risk of loss to another — the insurance company. It is used by family law or divorce attorneys in Florida a lot. Many times, a divorcing couple have minor children. When they get divorced, often someone is getting life insurance for the minors. In the corporate or business context, Estate Planning Lawyers often see companies purchase life insurance. They want money if a key employee or executive dies. For family businesses, life insurance can create liquidity to pay estate taxes or expenses when a wealthy individual dies. But many times parties have a disagreement about a CHANGE OF BENEFICIARY to a policy. Many times former spouses or ex spouses fight over ENTITLEMENT to a life insurance contract after the death […]


Is a Trust Accounting Order Appealable?

FAQs Apr 4, 2021
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Trust beneficiaries want to know their rights. How much do they get from the trust? And trustees have an obligation to give their beneficiaries relevant information and annual accountings. So, what if a Florida Probate Judge orders the trustee to complete an accounting? What if the trustee does not want to do that right away? Is a trust accounting order appealable right now? A March 31, 2021 appellate opinion from Florida’s 3rd District Court of Appeal sheds light on trust appeals. We have previously provided solid, insightful Trust Law Commentary on BENEFICIARY RIGHTS, Removing a Florida Trustee, and even Suspending a Florida Trustee. Florida Trust Code Whether or not you can appeal a trust case order depends on two things. First, you need to understand Florida Trust Law. Florida Trust Law is found in the Florida Trust Code at Chapter 736. To watch some great FREE TRUST VIDEOS on beneficiary rights and getting information about your trust, CLICK HERE. The other thing you need to understand is the Florida Appellate Rules. Read the Florida Rules of Appellate Procedure. Focus on Fla. R. App. Proc. 9.170. That appellate rule creates opportunities and potential pitfalls. Some trust orders must be appealed within 30 days or you lose your right to have them reviewed later. If you miss the deadline, then the order you don’t like becomes a final, non-appealable order. But understanding whether or not you can appeal now can be less than clear. Florida Trust Accounting Appealable Now? In this March […]


What is an Heir in Florida Probates?

FAQs Apr 4, 2021
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What is an Heir in Florida Probates? Heirs inherit millions and millions of dollars from Florida Estates each year !! Heirs is a similar topic to NEXT OF KIN. The definition may just surprise you. Florida Probate Code Definition– understanding the legal definition of what is an heir in Florida probates The Florida Probate Code has a set of definitions. What is the definition of an Heir? “Heirs” or “heirs at law” means those persons, including the surviving spouse, who are entitled under the statutes of intestate succession to the property of a decedent An estate that has no will is called an intestate estate. Put another way: a probate of a Florida decedent that died without a will is called an intestacy. Property passes to Heirs by way of intestacy. The intestacy laws in the Florida Probate Code are found RIGHT HERE. Or, to phrase this another way: the statutes of intestate succession can be found by CLICKING HERE. Now, before we move, let’s focus on what is an heir in Florida Probates. Spouses are heirs !! Does it matter if the spouse of the decedent was only married for 10 seconds? No! 50 years? Nope. Does it matter if the surviving spouse, widow or widower was a nasty person? No. None of that matters. The only thing that matters is whether a spouse signed a PRENUPTIAL AGREEMENT or a POSTNUPTIAL AGREEMENT. If you think the marriage was the product of fraud, read THIS. To watch a great, FREE […]


Probate Foreclosure Case

Probate Information Apr 3, 2021
post about Probate Foreclosure Case

A March 31, 2001 appeal sheds light on heirs at law dealing with a foreclosure case. In Florida, lots of wealthy people die. Sometimes, for whatever reason, there is a foreclosure case. That’s not the end of the world. Heirs can still inherit. Remember. Foreclosure cases are only the lender saying “hey, I want to get paid.” Sometimes, because the homeowner is dead, mortgage payments are missed. That can innocently cause the property to go into foreclosure. That does NOT necessarily mean that the heirs lose the house. And it does NOT mean that the family loses all that money. To the contrary, if you have a good probate litigator. Many times, EXPERIENCED, TOUGH FLORIDA PROBATE LAWYERS can negotiate for you and work through the foreclosure. The goal is to try to get an inheritance for beneficiaries and family members. Yes, HEIRS can inherit. Anyway, read this Florida Appeals Court opinion about a motion for a continuance and a probate foreclosure case. Foreclosure Appeal The owner of the Florida residence died. He had a reverse mortgage on the property. The lender sued. The heirs responded. They mediated their case. They settled. There was actually no probate opened to clear the title. They wanted to open a Florida Probate. But here’s where the interesting part of this Probate Foreclosure Case is. No one continued the trial. This 2021 2nd District Court of Appeal opinion sheds light on seeking a continuance from a trial. You have to file a motion for a […]


Florida Power of Appointment Trust Case

Probate Information Mar 29, 2021
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A January 11, 2021 1st District Court of Appeal appellate opinion sheds light on Florida Power of Appointment Law. A power of appointment is a great power to give, or not give, money and property to others. But remember, an attorney reminds us that they can also be a power of dis-appointment. Many family members want to know what went wrong when they are not left trust money. This can cause trust lawsuits. The power has to be exercised properly, or they don’t work. Recent Caselaw from 1st DCA The 1st District Court of Appeal issued its opinion on January 11, 2021. The case is Ammeen v. Sjogren. This recent case dealt with two important Florida legal issues for probate and trusts. First, can someone who has a power of appointment bind others, even potential trust beneficiaries? This is an issue of REPRESENTATION. Second, who has standing to bring a trust lawsuit when there is a power of appointment? Florida Statutes The Florida Legislature has specific statutes on Florida Power of Appointment law. Fla. Stat. 709.02- 709.07 can be read for free by CLICKING THIS LINK. Chapter 709 of the Florida Statutes deals with Powers of Attorney and also Powers of Appointment. Don’t get them confused. Part I of Chapter 709 deals with Florida Power of Appointment Law. A Power of Appointment is a power given by someone typically called the “grantor” of the power. The one who can exercise the power is often called the “grantee” or “powerholder.” You […]


Florida Trust Contest

What We Do Mar 28, 2021
post about Florida Trust Contest

Are you involved in a Florida Trust Contest? Do you know how to set aside a Trust Document in Florida? Successor Trustees of a living trust are a “necessary” or “indispensable” party to a Trust Contest. Most family members or beneficiaries who got short-changed want to know what their rights are. If you are a beneficiary who was cut out, here are some things to understand. But first. If you would like to see a FREE TRUST CONTEST VIDEO, then CLICK THIS LINK. Trust Code in Florida Chapter 736 of the Florida Statutes is the Florida Trust Code. There is a specific Florida Trust Law on Trust Contests. You can read Fla. Stat. 736.0207 by CLICKING HERE. If you would like to read the entire Florida Trust Code, Chapter 736, CLICK HERE. We have previously discussed how to “go on the offense” for your Probate Case. While we won’t discuss strategy in this commentary, strategy is important. “But” says John Pankauski, “you first need to know the trust document and trust law cold.” How To Try a Trust Contest Case Remember that a challenge to a Florida trust is begun by filing a lawsuit. Why? Because Florida Trust Law 736.0201 says so. And, “Remember” says Trust Litigation Lawyer John Pankauski “that means you have a trial on your hands.” Pankauski knows a lot about Florida Trust Contests and Trust Trials. Just last November, he and his team of expert trust litigators & trust appeals attorneys had a week long Trust […]