What is a power of appointment Florida and do trust beneficiaries ALWAYS get an accounting? A 2021 case from Florida, and one statute, tell us more. What is a power of appointment? A power of appointment is a right, or authority, or a power, to give someone property. Usually trust property — what’s in the trust To appoint the property to another. Or estate probate like in a probate, under a will. This also means that–and this is IMPORTANT– the “holder” of the power can NOT give you property. Yup! These powers are typically “flexible” in the sense that you can give property among a few beneficiaries or a class of family members. Just who can inherit or who “gets” the power is up to the person whose property it is. Like a wealthy grandmother who creates a trust. Or a successful corporate executive mother who dies with a will. Most common example What’s the most common example of a power of appointment? Let’s say that mom leaves a trust that benefits your sister for her life At your sister’s death, the trust says: “Upon [sister’s] death, Sister has the power to appoint the trust to her siblings or issue.” That means that Sister can “give” the trust to her descendants or to you (or other siblings.) How to read the trust + what to look for Here is a laundry list of these that you will want to know: Who created the trust? Who created the power? Who holds […]

Do you know what you are doing? If you are a trustee of a Florida trust, or a beneficiary, do you know how to handle a trust lawsuit? Let’s explain the three “major,” or basic, types. Want to learn the background first? Want to learn the “backbone” of a Florida trust lawsuit? (If not, that’s OK!….go to the last section of this Florida Trust Legal Commentary). If you want to better understand your trust lawsuit, consider reviewing these resources: Florida Trust Code — a list of Florida statutes dealing with trusts, trustees and beneficiaries. Trust Beneficiary Rights — bene’s have a lot more rights than they may realize, including a right to know what the trustee is doing with every dime ! Do you know how to ask for accountings and relevant information? Trustee’s Duties— a trustee is a fiduciary who has a big job. She can’t self-deal, hide the ball, refuse to disclose, or operate the trust in secret. But, trustees are entitled to a great defense if a trust bene sues them with a baseless lawsuit. Defending a trustee will eat up trust money, so everyone needs to be careful and cautious. 10 Steps to Family Trustee Excellence — this is an easy-2-read, plain English book that you can read in one sitting. It is great for both beneficiaries and trustees. 3 Types of a Trust Lawsuit Now, some trust litigators may disagree that trust lawsuits can be broken down into only 3 categories. No argument here. You […]

Involved in a Florida Trust Lawsuit? Here are 5 basic tips to try to get on the road to victory. For information on a trust contest, click that link. (For a short legal video on a trust contest or trust challenge, click THIS LINK.) 5 Things to Read Right Now OK, before we get into the topic of a Florida trust lawsuit, let’s give you 5 things which you can read for free (almost) right now. These should help you understand this topic much better. First, consider reading the Florida Trust Code. Chapter 736 of the Florida Statutes. These laws set forth the starting point to understanding a Florida Trust Lawsuit. They tell you the rights which beneficiaries have and the duties of your trustee. (For a short video on a trustee who breaches her duty, click HERE.) In fact there is a whole section just on the Office of the Trustee. (For a short video on trust accountings, click HERE). Second, if you want to read about a trust contest, you can click on that link. Remember, a trust contest typically objects to the validity of the trust. Or part of it. Like an amendment or a specific provision. Many times, people will attempt to have a trust , or amendment, declared invalid or void. For any number of reasons like undue influence. Third, read the Florida Rules Of Civil Procedure. Why? Because a Florida trust lawsuit has rules ! You need to know what to do, how to […]

Can you stop litigation in its tracks by getting judgment on the pleadings? Let’s say that you are sued. Can you file a motion to dismiss or another motion to end the lawsuit? We have previously suggested that some lawsuits can be ended quickly under limited circumstances. To learn more, click here. Once the lawsuit is “answered” If you have been sued, you must file a response within 20 days of being served. Check out the Florida Rules of Civil Procedure. You can file an answer, or a motion to dismiss. Once you have answered the complaint, then we can focus on the legal issues. You may ask the court not to have a trial, but to rule as a matter of law. Two options are a motion for summary judgment and a motion for judgment on the pleadings. Two recent cases on judgment on the pleadings. The 3rd District Court of Appeal is the appellate court for Miami-Dade County. On August 24, 2022, the 3rd DCA issued two opinions dealing with this legal topic that you can read for free. One is Kraus v. Kraus. The other is Nix v. The Office of the Commissioner of Baseball. If the court looks at the complaint and the answer, and any attachments, you may not need a trial. If you file a motion directed to that, it will focus the judge’s attention just on the “pleadings”. You win if you are “entitled to judgment as a matter of law.” What does […]

When must a lawsuit go to arbitration or stay in federal or state court? Take a close look at the arbitration provision in your document. Sometimes, only SOME claims go to arbitration. Consider a recent case which discusses this very issue. (To read more about whether you have to go to arbitration, click HERE.) Why Florida arbitration? What is arbitration and why is there an arbitration provision in my document? Think of arbitration as private judging. A forum for the resolution of a dispute. Instead of going to court, the parties to an arbitration agreement go to a private, non-public proceeding. Arbitration. Instead of a judge in a robe, you have arbitrators. Either one single arbitrator. Or a panel (e.g. 3 ) arbitrators. Instead of a judgment, you get an “award”. Arbitration can be had by the agreement of the parties. Often, there is an arbitration provision in documents like contracts. Or a power of attorney. If you sign the contract with such a provision, you are agreeing to at least some arbitration. Or, arbitration of at least some of the claims brought by you or another party to the contract. In Florida, there is a statute in the Florida Probate Code which acknowledges that you can have an arbitration provision in a will or a trust. See Fla. Stat. 731.401. To read more about Florida probate and trust litigators who have handled this issue, click here. Why only some? Because some arbitrations provisions may have a “carve out”. What’s […]

What is a notice of trust? Learn the two types, who is entitled to this, and what you should look out for if you are a beneficiary. To see a short video on this topic, CLICK HERE. What’s the big deal? A trustee is required to tell her beneficiaries that she is a trustee. A trustee should send a writing to a Florida trust beneficiary within 60 days. This is the first notice of trust which we will discuss. You can also read the Florida Trust Code Statute 736.0813(1). What’s the purpose of this document? It tells the beneficiaries: The existence of the trust. That there is a trust which you are a beneficiary of. It identifies the trustee with an address. That way you know who is in charge of your money and who to contact. Why would you contact your trustee? To ask for money, accountings and other relevant information about YOUR trust. Annual accountings. It also tells you that you are entitled to a complete copy of your trust agreement. Just ask the trustee. What other relevant information might a trust beneficiary want? How about… Financial statements. Copies of sale documents for real estate that is sold. A list of all trust assets How much compensation the trustee is taking from your trust. Beneficiaries have a lot of RIGHTS. Trustees owe you a lot of DUTIES. Notice of Trust in Probate Court When the creator, or “grantor”, of a trust dies and the trust becomes irrevocable, there […]

When do you really need an inheritance lawyer in Florida? Well, let’s first understand what one is. Then, we can discuss the most common times that people hire one. Finally, we’ll close by considering 6 factors to consider when you are interviewing one. What is an inheritance lawyer? An inheritance lawyer in Florida is one who can assist, counsel, guide or litigate legal matters for you. About what? Well, not everything. Involving inheritances. Property, property rights or money which you may get when someone passes away. Or… when a prior property interest ends. Like if you inherit a trust. OK…so…when? Under what circumstances? The most common are two areas of Florida law. Estates and probates. And Trusts. One may be a counselor. Informing and educating you about, for example, the probate process. Or how trusts work in Florida. Advising you on fiduciary fees, administration of an estate or trust. Giving you straight-talk and easy-to-understand explanations about what you are supposed to inherit and when. One may be an advocate. This advocate role of an inheritance lawyer will take a stand for you. Argue in court. File papers for you. And, also explain what court-filed documents are, what they mean, and how they affect you. An advocate is biased ! For you ! Most people want someone on their side. Or, one can be a probate litigator. You know, the type that isn’t afraid to “get dirty”. Who actually tries cases and handles appeals. They typically limit their practice to disputes […]

Marital Trusts were once set up to provide for a spouse and their children. But times have changed. Find out why these trusts are often the subject of serious, and expensive, litigation. The full time employment act for probate litigators? We have previously written about trust lawsuits among a widow, or surviving spouse, and adult children. Now, let’s re-examine this Florida Legal Concept and consider why there is so much litigation — and what you can do. How Did We Get Here? OK, here’s the scenario which we are talking about. Mom or Dad have a few bucks and die. Their estate plan leaves money and property in a trust. For her or his surviving spouse for lifetime. If there’s anything left in the trust when spouse dies, it goes to Mom or Dad’s adult children. Back in the 80’s and 90’s, you could only leave about $600,000 free of the estate tax. Everything over that was taxed. The tax act of 1986 changed all that with the marital trust. If done properly, this type of trust would benefit your spouse and then go to the kids. You got a marital deduction and paid the tax when the 2nd spouse died. Sounded good , right? Fast forward to the 2000’s and 2020’s in Florida. Lots of people get divorced Many re-marry. Many 2nd spouses, or 3rd spouses, don’t like their new spouse’s children. And vice versa. So, why is everyone still creating a marital trust for people who don’t get […]

Can you be bound by a settlement agreement Florida that you don’t sign? Generally, hell no. Here’s “all” you need to know about this trust legal topic in 3 minutes. We have previously written about deals that were struck at mediation. How to read them. And to enforce them. Now, let’s get to this new legal opinion. Mediation and Settlements Most people settle their cases. One reason is that probate judges in Florida require mediation before trial. Some judges require multiple mediations. Many times, those mediations end in a settlement agreement. Many times, the parties ask the court to approve a settlement agreement. And compel everyone to be bound by the terms of the settlement agreement. Everyone? Well, not really. A recent opinion from the Palm Beach Appeals Court, Florida’s 4th District Court of Appeal tells us more. Florida Settlement Agreement What if you did not sign the settlement agreement? But the agreement affects your rights? Let’s face it: settlement agreements are very common for estate beneficiary, will contests, and trust lawsuits. Or takes away some property or trust interests from you? You got a trust lawsuit ! But the good news is that a settlement agreement only binds the parties. If you did not sign, you are not bound. Now, there are exceptions. You could be bound indirectly. Such as if you are a share holder, a member in a Florida LLC, or a beneficiary of a Florida trust (where the trustee signs the settlement). But this is a […]

Where do you pay guardian fees from? What if there’s not enough money ?? An August 17, 2022 opinion reveals that an emergency temporary guardian may not use the Ward’s IRA to pay her fees and compensation. We have previously written about Florida Guardian Compensation before. Now, let’s consider the legal “tension” between two statutes. Guardian Compensation First of all, if you want to read about Florida guardianships, read the Florida Guardianship Code. Chapter 744 Florida Statutes. You can also read the Florida Probate Rules, which has rules for guardianships. They start at Part III, with Fla. Prob. R. 5.540. There are a number of cases about compensation and fees for THE LAWYER of a Florida Guardian. And there are different cases and opinions for Guardians (e.g. limited or plenary) vs. Emergency Temporary Guardians. For the statute of guardian fees, check out 744.108. But, what if the ward dies ? How does the guardian get paid? ETG Can’t Get to Ward’s IRAs if Family Fights The 1st District Court of Appeal issued an opinion on August 17, 2022. This opinion dealt with guardian fees. Specifically, whether the guardian could get paid from the Ward’s IRAs. No! (Absent family members permitting that. Or, I should say, absent the IRA beneficiary agreeing to that). You can read this Florida Emergency Temporary Guardian case. The name is Araguel v. Bryan. Family members wanted to get a guardianship over mom. The court did not appoint a family member. The probate court appointed a professional […]