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Inheritances: “Fair” does not mean “equal”

Uncategorized Aug 28, 2013

When preparing a will or a trust, many times the creator (the client) wants to treat beneficiaries equally.   Take, for example, a mother or father with three chidren.  “I want my estate to go in three equal shares, to each of my children.  That’s the fair thing ” the client says.  But “equal” is not always “fair”.  And “fair” does not always mean “equal.”  Consider a loving, doting child who assists the parent with everything from shopping to household chores and who shares holidays together.  Contrast that child with a sibling who is distant, both geographically and on a personal basis, from parent.  Is it “fair” that the doting child receive an “equal” share as the child who has no interest in the parent’s life?

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Florida Litigation: Dismissing a Case Based Upon Forum Non Conveniens

Uncategorized Jun 26, 2013

A person who files a lawsuit typically gets to choose the “venue”…which court hears the case.  Great deference is given to the plaintiff to determine if she wants to sue the defendants where the cause of action acrued or where the defendants reside or do business.  If a lawsuit is filed in the “wrong” state or court, it may be dimissed if there is a more convenient or “better” forum.  The Florida Supreme Court recently discussed the legal concept of “forum non conveniens” in the Cortez v. Palace Resorts case.  Although it is not final  yet, it is instructive.  Email michelle@pankauskilawfirm.com for a copy of the opinion.

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New Florida Law: Estate Planning, Trusts, Estates

Uncategorized Jun 24, 2013

Florida Governor Rick Scott signed Senate Bill 492 on June 17, 2013, which makes new law for issues involving estate planning, trusts and estates.   Among other things, a gift to a lawyer under a will drafted by that lawyer is void.   The new law also provides guidance on personal jurisdiction in trust lawsuits, service of process issues and rules for filing a caveat or estate tax return . For a copy, email michelle@pankauskilawfirm.com.

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Florida Powers of Attorney: Demand for Guardianship May be Frivolous

Uncategorized Jun 23, 2013

A valid Florida power of attorney must be recognized, or accepted, by third parties.  Chapter 709 of Florida’s statutes deals  with powers of attorney and tells us what third parties should do when presented with a valid Florida power of attorney.  Failure to recognize a valid power of attorney may be frivolous and fees may be awarded against a third party that fails to honor the POA without contesting the validity of it.  See the (not final) case of Maximiliana Albelo v. Southern Oak Ins. Co from the January term of Florida’s 3rd District Court of Appeal, opinion filed February 6, 2013.

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Florida Trusts and the Merger Doctrine

Uncategorized Jun 18, 2013

If the trustee of a Florida trust is also the sole, only, beneficiary, does the Florida trust come to an end?  Does the legal title, which the trustee holds to trust property, merge with the equitable interest of the beneficiary?  Has the settlor’s (or trust creator’s) intent been satisfied?  See Hansen v Bothe 10 So.3d 213 (Florida, 2nd DCA, 2009).

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Attacking and Over-turning a Florida Will: What About the Prior Wills ?

Uncategorized Jun 17, 2013

If one seeks to over-turn a will, such as if the maker of the will lacked testamentary capacity, or if the will was the product of undue influence, one must consider other (prior) wills.  If one is successful in attacking and also over-turning a will, the question becomes:  what about prior wills?  Are there valid prior wills, and, if so, are they “revived” or given effect?  This depends on who has standing, what has been alleged and the doctrine of dependent relative revocation.

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Having Transcripts of Court Hearings and Reviewing Court Orders

Uncategorized Jun 16, 2013

Most litigators insist on having a court reporter present at all court hearings, even the “simple” hearings.   This makes sense since the cost is relatively small and it provides a record of what was said by whom, and what transpired. Seasoned litigators will tell you that some hearings end up dealing with issues not even set for that particular hearing: all the more reason to have a transcript.   It is not uncommon for court’s orders to be reviewed months or even a year or more later, when memories can fade and issues have been “resolved.”  Reviewing court orders, or the interpreting one, may be aided by a hearing transcript which dealt with that order.  If a court wishes to read beyond the plain language of its order, they are probably going to start at pertinent hearing transcripts.  Have a court reporter with you in court: even for the “agreed” matters and “simple” issues.

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Florida Law on Durable Power of Attorney : Update and Recent Changes

Uncategorized Jun 14, 2013

At the end of May, 2013, Florida Governor Rick Scott signed a new law which makes certain changes to Florida’s power of attorney statutes, which is contained in Chapter 709  of the Florida Statutes.  Among other things, the changes for Florida powers of attorney expand on how third parties (e.g. brokers) may deal with POAs and how attorneys fees may be awarded in disputes involving POAs.

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