Probate Litigation

May 4, 2009

Abuse of Florida Durable Power of Attorney

Recently we have begun seeing more cases involving agents who abuse their power of attorney in order to benefit themselves.

Most people do not realize that once they have become an agent for an individual, their duty is to act in the best interest of the individual and not for their own benefit. Sometimes agents make gifts to themselves or change the way bank or stock accounts are title so that the become the beneficiary upon the death of the individual. These actions are violations of the agents fiduciary duty and self dealing. Often what is done interferes with someone’s right to an expectancy as a beneficiary or owner of an account.

In addition to creating liability to the beneficiary or the decedent’s estate, in Florida such actions can also create criminal liability under Florida’s Elder Abuse Statutes. If you have been accused of actions like these it is important to coordinate your defense with a Jacksonville Criminal Defense Lawyer who is familiar with Florida Abuse of the Elderly.

March 4, 2009

Reducing Florida Estate and Trust Litigation

by David M. Goldman

Jonathan G. Blattmachr, a partner at Milbank, Tweed, Hadley & McCoy LLP, has published “Reducing Estate and Trust Litigation Through Disclosure, In Terrorem Clauses, Mediation and Arbitration” in the Cardozo Journal of Conflict Resolution, 9 Cardozo J. Conflict Resol. 237 (2008).

He suggests six methods to reduce litigation.

1. Advise Inheritors of Inheritance Plans. Especially when children of the decedent are treated unequally, will contests and litigation arise from disappointed feelings of entitlement. Telling the children ahead of time what their shares will be may avoid a later dispute. Blattmachr even suggests that one could enter into a contract (for consideration) with such a person that he or she will not object to the validity of the document. (Of course, as Blattmachr says, “advising a child that he or she will not receive an equal share may have adverse effects even if it prevents litigation after death.” You think?)

January 14, 2009

Do you have an interesting experience with a will?

by David M. Goldman

The Wills, Trusts, and Estates Prof Blog had a posting from someone looking for interesting WIll issues. I thought some of my readers may be interested in contacting this person.

Hello,

I’m a researcher working on a documentary series about people’s first-hand experiences with a family will. The project is being produced for a major US broadcaster.

January 11, 2009

Admitting a Lost Will

by David M. Goldman

Professor Gerry Beyer, author of the WIlls, Trust & Estates Professor Blog wrote an article where a Texas court admitted a copy of a will which gave most of the assets to the decedents sister instead of the children. The will had been seen shortly before the decedents death and many people had access to it. Normally, if a will was last seen in the decedents possession and cannot be found the Florida Will is presumed to have been revoked by the decedent. But his presumption can be overcome as it was in this Texas case.

January 5, 2009

Florida Probate Fees

by David M. Goldman

Under Florida Law, the fees for a probate must be reasonable. Many lawyers charge the statutory rates of approximately 3% of the estate. This fee schedule is only a guideline and is not necessarily reasonable. In addition, we have seen probate fees that include the percentage on non probate assets like a homestead. This is clearly not permitted under the statutes and case law. If you would like a quote on a Florida Probate Contact a Florida Probate Lawyer.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

December 15, 2008

Florida Probate: Am I entitled to an inventory and accounting.

by David M. Goldman

In Florida if you are a beneficiary a potential heir, you are entitled to an inventory and accounting. As An Atlanta Georgia Estate Planning Lawyer wrote in their article AS A BENEFICIARY OR HEIR OF A GEORGIA PROBATE ESTATE, YOU ARE ENTITLED TO AN INVENTORY AND ACCOUNTING IN GEORGIA PROBATE COURT – REMEMBER, “POSSESSION IS NINE-TENTHS OF THE LAW”, SO ACT QUICKLY AND WITH KNOWLEDGE, it is important to act fast.

It is often frustrating for beneficiaries that this doesn’t happen quickly or automatically. Often beneficiaries only receive these documents after a Florida Probate Attorney makes a formal request for them.

If you have not received an inventory or accounting relating to a Florida Probate Contact a Florida Probate Lawyer

December 2, 2008

Elective Share Litigation

by David M. Goldman

In Florida, a surviving spouse is usually entitled to take an elective share of their spouse’s estate. This is to prevent one spouse from disinheriting the other. Unless there is a valid Prenuptial or Post Nuptial agreement in place, the surviving spouse is entitled to take 30% of the spouses entire elective estate.

Florida Statute § 732.2035 describes what property is included in the elective share of the decedent’s estate.

There are time requirements on filing for an elective share and failure to timely file may result in waiver of this option. To evaluate the effects of electing a Florida Elective Share, Contact a Florida Estate Planning Lawyer who is familiar with Florida Elective Share Litigation.

October 13, 2008

Factors for Undue Influence in a Florida Will and Inter Vivos Transfers

by David M. Goldman

In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court stated to raise the presumption of undue influence, a plaintiff must show a confidential relationship between the donor and the donee and active procurement of the gift. Because courts have found that a confidential relationship exists in most relationships, the real issue comes down to active procurement of the gift. Recently Patrick Lannon wrote a summary of case law on the topic for the Florida Bar journal. Carpenter gives a list of seven factors of active procurement of a will, the:

1) presence of the beneficiary at the execution of the will;

2) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;

3) recommendation by the beneficiary of an attorney to draw the will;

June 4, 2007

Clay County Courthouse, Orange Park, Middleburg, Keystone Heights, Florida

by David M. Goldman

Orange Park Estate Planning Lawyer, Middleburg Estate Planning Lawyer, and Keystone Heights Estate Planning Lawyer David Goldman works with clients in Northeast Florida including Orange Park, Clay County Florida. Orange Park is located in Clay County. Orange park. The Clay county courts have additional branch offices located in Keystone Heights, and Middleburg Florida Clay County borders Duval County which is where Jacksonville Fl is located. Jacksonville is the largest city in the state of Florida and the largest contiguous city in the United States. Jacksonville is located about 25 miles south of Georgia. Jacksonville is in the First Coast region of north east Florida and the St. johns River runs through the center of the city. The current courthouse is located in three locations which are listed below.

Clay County Court House

Orange Park Location

May 4, 2007

Duval County, Florida Court, Courthouse Duval, FL

by David M. Goldman

Florida Estate Planning Lawyers in Jacksonville Florida. Jacksonville is located in Duval County. Jacksonville is the largest city in the state of Florida and the largest contiguous city in the United States. Jacksonville is located about 25 miles south of Georgia. Jacksonville is in the First Coast region of north east Florida and the St. johns River runs through the center of the city. In 1822 Jacksonville was renamed after Andrew Jackson, who was the first military governor of the Florida Territory and the 7th President of the United states. Duval county is surrounded by St. Johns County, Nassau, and Clay County. The current courthouse is located on the banks of the St. Johns River and its address is.

Duval County Court House 330 East Bay Street, Room 103 Jacksonville, FL 32202 904-391-6700

The 1901 burned down the original court house pictured below.