Probate Litigation

May 23, 2012

Florida Appellate Court Adds New Requirement for Trust Contestants

The Fourth District Court of Appeals recently handed down a decision which may impose new requirements on probate plaintiffs who are challenging trusts. In Pasquale, Jr. v. Loving, et. al., the Court held that if a person is contesting a trust, the contestant must also contest the will if the trust is incorporated by reference into the will.

The plaintiffs filed a complaint with the probate court challenging trust documents that accompanied a last will and testament. The complaint did not address the last will and testament directly. The defendants moved to dismiss the complaint because the defendant’s argued that the plaintiff’s complaint did not attack the will, which was required since the trust was incorporated into the last will by reference. “In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will.” The probate court agreed with the defendant’s and dismissed the probate suit with prejudice.

The Fourth District Court of Appeals reversed the probate court’s ruling, even though the language of the appeal suggested that the Court agreed with the defendant’s reasoning. The Court held that a trust contestant is required to challenge the will if the trust is incorporated into the will by reference, but when the Court analyzed the facts of this case, it held that the complaint could be construed as challenging the will even though the precise language is missing.

January 30, 2012

Is Non Probate separate Property That Increases in Value During a Marriage Part of the Elective Share Calculation?

by David M. Goldman

The 2nd District Court of Appeals for Florida held in McDonald v Johnson that the increase in a company stock value that happened during the marriage can be used to determine the value of an elective share calculation. The lower court ruled that the surviving spouse had no right to discovery of a company’s financial information because the company stock was not subject to probate. The 2nd DCA found that Section 742.2155(6)(c) excluded non-martial assets as defined in Section 61.075. Because the increase in value of an asset that happens during a marriage is a martial asset, they concluded that the spouse was entitled to do discovery that was necessary to determine if it would be to her benefit to claim an elective share.

Section 732.2155(6) provides as follows:

Sections 732.201-732.2155 do not affect any interest in property held, as of the decedent’s death, in a trust, whether revocable or irrevocable, if:

(a) The property was an asset of the trust at all times between October 1, 1999, and the date of the decedent’s death;

January 4, 2012

Tortious Interference with an Expected Inheritance in Florida

by David M. Goldman

Often before the death, a spouse or someone else in control of assets attempts to rearrange the assets so that it will benefit them and in doing so it can interfere with the desires of the decedent.

In these situations, the prospective beneficiaries who have been damaged have the right to bring a cause of action against the person who manipulated the decedent’s assets.

Some examples of this type of activity include cashing out insurance policies, paying bills our of one account but not another, removing funds from one account and transferring them to another in which they are the beneficiary. Selling or disposing of assets that would go to one beneficiary and converting them to cash what is distributed in another manner.

December 22, 2011

How do I file a Claim Against a Florida Trust?

by David M. Goldman

In Florida, a creditor may open a probate to reach assets of a decedent which were kept in a trust. The trustee of a decedent’s trust is responsible to file a notice of trust with the probate court. If you are unsuccessful in having the trust pay the debts directly, you can open a probate on behalf of the estate, file your claims and are entitled to be reimbursed for the legal expenses related to the opening of the probate. See Florida Statute 736.05053. Remember that failure to file a claim within 2 years of the decedents death can waive your rights to file a claim in the probate court.

If you are owned money by a decedent and can not figure out how to file a claim, contact a Florida Estate Planning Lawyer to discuss your options.

September 9, 2011

Personal Represntative of Yale Student’s Estate Files Wrongful Death Lawsuit

by David M. Goldman

It is the PR’s job in a Florida Probate case to take actions to gather the assets and distribute them to the beneficiaries. When wrongful death claims are not assets subject to distribution under Florida Probate, it is the personal representative of an estate who pursues a Wrongful Death Claim in Florida or another state. The Jacksonville Wrongful Death Lawyer will often work directly with a Florida Estate Planning Lawyer to pursue the claim for the family and children of the decedent.

The Yale Daily News is reporting that

The estate of former pharmacology student Annie Le GRD ’13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harassment at the University “emboldened” her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale’s negligence.

While many states have broader statutes dealing with wrongful death claims, Florida limits which family members can have a claim and often when an elderly person dies, the adult children may not be able to file a claim.

July 5, 2011

Florida Trust Case When Asset Generates No Income

by David M. Goldman

A recent Florida appellate court decision, 2010 WL 4226204, came to the conclusion that if a trust only has a piece of real property as its sole asset and the trust documents provide an intent that the trust give 5% of its annual principal disbursements to the beneficiary, no monies needs to be paid to the beneficiary. However, as a substitute, the court ordered this trust to pay 5% of the interest in the principal asset to the beneficiary. The court ruled that this would be an “equivalent transfer of interest.”

What this may mean to you: If you find yourself as the beneficiary of a trust where the sole asset is a house or some other type of real property and you are expecting a disbursement from the trust, you may be entitled to a substitute payment in an interest in the house. On the other hand, if you are a trustee of a trust with no money to make disbursements, you may still have some options depending on the language of the trust. In either case, you should contact a Jacksonville Florida Trust lawyer who can look over the facts of your particular situation, and let you know the possible legal avenues you can pursue. Or, if you are further down the road leading to litigation, you can contact a Florida Trust Litigation attorney who can represent you in court.

February 25, 2011

“Do it yourself” Wills: Prepare According to Florida Law

by Patricia Davis

Preparing your will without the assistance of a Jacksonville Estate Planning Lawyer may cost your family future trouble and costs. Your Will must be clearly worded, otherwise, your intentions may be disputed by family members.

A Florida Will contest may result in a lengthy and expensive court battle, which is exactly what you did not intend for your surviving family. A Last Will and Testament must meet the requirements of the Florida Statutes. If your Florida Will is not signed and witnessed in the proper fashion, a Probate Judge may refuse to admit your will to Probate, resulting in your property being distributed as if you had no Will at all.

To avoid any challenge to your Florida Will, it is advisable that you consult with a Jacksonville Estate Planning Lawyer . An Attorney will prepare your Last Will and Testament according to your directions and supervise the execution (signing) of your Will to ensure that it is witnessed according to Florida Law.

February 22, 2011

Estate Planning and Criminal Defense Lawyer

by David M. Goldman

We often do not think of Criminal Defense in connection with Florida estate planning. We have a Jacksonville Criminal Defense Lawyer who has been helpful in dealing with crimes committed by fiduciary agents. Every month we get contacted by individuals who have had their parents or families life savings depleted because someone with a Power of Attorney or other fiduciary position thinks that they can treat the other persons funds as their own. Not only are we able to help represent the individuals who have lost the money, but we often represent other family members that have lost their inheritance because of the bad acts of others.

Often it is a difficult choice to decide whether to just go after recover of the money or to also package the information for the state to review for possible criminal charges. Florida has very strict laws when it comes to financial abuse of the elderly.

If you believe that a Power of Attorney or trustee or other person with a fiduciary responsibility has acted inappropriately, contact a Florida Estate Planning Lawyer or a Jacksonville Criminal Lawyer to discuss your situation. You may also review the Jacksonville Criminal Defense Lawyers Blog or more information on this and other financial crimes.

January 25, 2011

Probate Does Not Have to Be Deadly

by Patricia Davis

The ABA Journal recently reported an unusual case when an attorney’s client was targeted for murder by his own brother. The parents of the brothers passed away leaving an unexpected $20 million dollar estate. The brother’s were the sole heirs of the estate, but apparently sharing the money was not in the one brothers plan. He was arrested for putting a murder contract out on his younger brother.

Money does crazy things to people. A consulting with a Ponte Vedra Estate Planning Law Firm may offer numerous ways in which you can provide for your heirs, which may prevent them from receiving too large of an inheritance at one time. Discussing the benefits of preparing a Florida will or Florida trust can be an important tool for anyone leaving assets to children or other family members.

If you are a named beneficiary in someone’s will, or if you expect a conflict with other beneficiaries, a Ponte Vedra Probate Firm can guide you through the probate procedure and any adversarial proceedings which may arise.

September 7, 2010

When can Notice to the Creditors Be sent

by David M. Goldman

Creditors only have 90 days to file claims in a Florida Probate once notice has been published. For this reason it may be beneficial to publish notice as soon as possible. Unfortunately, you can only publish notice once a Personal Representative has been appointed. If there is a dispute about who will be the PR in a Florida Probate case the ability to publish notice to the creditors will not happen until the Florida Court appoints a Personal Representative.

Creditors claims are barred 90 days after publication or 2 years after the death of the decedent. If you have a question about a Florida Probate case or want to speak with a Jacksonville Probate Lawyer contact us by phone or email.