1-561-514-0900 FREE CONSULTATION

Getting Trial Orders Right — saving time and money on appeal

Uncategorized Sep 18, 2013

When an appellate court reviews a ruling of a trial court, it looks for a number of things. One important issue is whether the trial court considered, or did not, consider, certain evidence, testimony, documents, etc. We call that competent substantial evidence. If the appellate court is unsure what the trial court based its ruling on, it will send the case back down to the trial court. So, at the trial court, take the time to prepare a ruling that sets forth findings of fact and conclusions of law, and explains what the trial court relied on. Otherwise, clients am be spending extra time and money.

READ MORE

Gifts and Beneficiary Changes Before Death: what if you die after but before………….?

Uncategorized Sep 16, 2013

In Florida, what happens if you want to change the beneficiary of, say, a life insurance policy, and you die just after you complete the paperwork?  Let’s say that you complete the paperwork and US Mail it in to the company on a Monday and you die on a Tuesday?  Or, consider that you make a gift of privately held shares of stock, say, in a family business…… You sign the transfer documents and they are scanned and emailed to the secretary of the company. But before the company makes the changes on the company’s books, you die.  

READ MORE

Taking $ From Florida Bank Accounts: is it conversion or ok?

Uncategorized Sep 10, 2013

Bank account litigation in Florida has become almost a sub-specialty within the practice of law.  People litigate about what type of account was created: was it a joint account with a right of survivorship?  Was it a convenience account that “goes” to the estate of the Florida bank account owner?  Was it opened in the name of a Florida trust which means that it doesn’t become part of the estate of the owner when the Florida owner dies, but rather it is part of the Florida trust property.  And what about all those names on the bank account statement? The ones that appear on the first page next the name of the person who opened or created the Florida bank account…… What property rights do those individuals have to the Florida bank account, if any? 

READ MORE

Florida Guardianships: rules of evidence and examining committee reports

Uncategorized Sep 9, 2013

Florida has a number of retirees, and its elder community is large.  As we live longer as a society, there is a great likelihood that we will become incapacitated, or incompetent, before we pass away.  When that happens, documents like powers of attorney, living wills, health care proxies, and other “health care” documents which designate someone to make medical or health care decisions can become very important. When those documents are not present, it may be necessary to have a guardianship.  (Admittedly, even when you do have POAs and health care docs, families “fight” over who will make personal and financial decisions for someone.) 

READ MORE

Trust Officers and the Attorney Client Privilege in Florida

Uncategorized Sep 6, 2013

When there is a lawsuit involving a will, a trust or an estate, you are dealing with a fiduciary, such as a trustee.   In Florida, we have a statute that protects communications between clients and their lawyers:  the attorney client privilege statute.  In the context of a trustee, Florida also has two statutes which address this issue: they say that the attorney client privilege protects communications between a trustee and the trustee’s attorney (in other words, the beneficiaries, whose trust funds are paying for that trustee’s attorney, can’t see or discover those communications.)

READ MORE

Pankauski’s Testimony Leads to Jury Verdict and Punitive Damages

Uncategorized Sep 6, 2013

Probate and trust attorney John Pankauski testified this past Tuesday for the plainitff in the case of Morrissey v. Siew, which dealt with issues of defamatory statements or postings on the internet.  Pankauski, who built a probate and trust litigation practice in West Palm Beach, testified to the importance of one’s reputation when providing legal services.  He also testified as to the harm that may come to attorneys who are the victims of persons who write or post defamatory statements on the internet.   The jury found for the plaintiff and also awarded punitive damages. Pankauski is also the co-author (with Robert Connor and Larry Steckman) of  three legal articles on punitive damages in Florida, which were published by the Florida Bar.

READ MORE

Trustees Cannot Take Secret Trustee Fees

Uncategorized Sep 5, 2013

Should a trustee who sells a trust asset for $10 Million be entitled to a $1,000,000 trustee fee?  No.  Particularly if that fee is not disclosed to the beneficiaries.  A recent Miami case, decided on August 13, 2013, reveals little tolerance for trustees behaving badly. Bad acts: not providing accountings, not properly valuing trust assets, taking inconsistent or contradictory factual positions, failing to disclose a million dollar trustee “fee” to beneficiaries  and improperly paying trust funds to the trustee’s own law firm in the form of attorneys fees.   In Florida, trustees, like most states, are held to high standards. Trustees who fail in their fiduciary duties will be removed and fined, or surcharged, with damages.  No secret fees. No un-disclosed fees. No unreasonable (high) fees.     Advocate hard. Litigate smart.

READ MORE

Attacking a Florida Trust Before You Accept Benefits: the estoppel rule

Uncategorized Sep 4, 2013

Suppose that a loved one passes away and they leave you, say, $10,000, under a Florida will or from a Florida trust.   Should you take that $10,000 if you believe that the will or trust is invalid and you want to attack it?  Are you able to take the $10,000 on a Monday, and then, say, on a Tuesday, file a probate lawsuit to declare the will or trust void, saying that it was obtained by undue influence?  In Florida, beneficiaries of a will or a trust should not accept the benefits of a trust or a will prior to then attacking the trust’s or will’s validity. 

READ MORE