Trust Litigation

April 4, 2010

Do the heirs have a right to see a will?

Yes, heirs have a right to see the will and to know everything about the assets and distributions. Yes, some personal effects can be distributed before the “will closes” or the probate is closed.

Florida probate laws include many protections for the beneficiaries of a probate estate. If you are a beneficiary under a Florida Will and there are assets that were required go through probate, you should have received some notifications.

You should require that the Custodian of the will deposit it with the court. If they refuse, they can be ordered to by the court and are subject to reimbursement of your legal fees.

March 10, 2010

Commercial Property foreclosure and Certificate of Authority

by David M. Goldman

Florida Commercial Foreclosure Case Law Update
Recently a Florida Court ruled that a Certificate of Authority is not required for a borrower to foreclose of a commercial property.

Summary –Mortgage foreclosure — Commercial property — No merit to borrowers’ argument that national bank’s failure to obtain and hold a “certificate of authority” from Florida Department of State precluded bank from transacting business in Florida, including securing, collecting, and enforcing debts, mortgages, and security interests — State cannot require a national bank to register or file as a “foreign corporation” in order to maintain a lawsuit in a state court — Statute prohibiting foreign corporation from transacting business in state until it obtains certificate of authority is expressly preempted as applied to all national banking associations — Borrowers’ contention that factual issues exist as to amounts owed is without merit where borrowers at no time offered a contrary calculation of monies owed, but merely contended, by way of affidavit in opposition to bank’s motion for summary judgment, that they do not owe the amounts alleged by the bank — Order entering final summary judgment against each mortgagor and against guarantor was appropriate.

35 Fla. L. Weekly D557a
For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.
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September 8, 2009

Jacksonville Probate Court Information

by David M. Goldman

Jacksonville Probate court is located in Duval County. All Jacksonville Probate cases are handled by Judge Dearing. Jacksonville does not have any unusual probate fees.

The Duval County Courthouse is located at:

330 E. Bay St.

August 12, 2009

Mandatory Arbitration Clause in Florida Trusts is valid per Florida Statute 731.401

by David M. Goldman

Trust Arbitration Clauses are common in Florida. In many states, they are not always enforced but Florida passed a law a few years ago that makes them enforceable in Trusts.

Florida Statute 731.041 Arbitration of disputes.

(1) A provision in a will or trust requiring the arbitration of disputes, other than disputes of the validity of all or a part of a will or trust, between or among the beneficiaries and a fiduciary under the will or trust, or any combination of such persons or entities, is enforceable.

(2) Unless otherwise specified in the will or trust, a will or trust provision requiring arbitration shall be presumed to require binding arbitration under Florida Statute 44.104.

May 12, 2009

Power of Attorney Dangers – License to Steal

by David M. Goldman

A couple was recently charged with theft and elder abuse for taking money from their elderly parents, under authority of a power of attorney to pay for personal expenses. These included vacations, plane tickets, lodging and meals. Matthew D. Gardner an Iowa Estate Planning Lawyer wrote about this case and the increasing frequency of elder abuse in the past year.

A Power of Attorney grants the agent (attorney-in-fact) broad powers to act in the best interest of he person. Often agents who accept this power do not understand that the money is not theirs to use as their own but the authority grants the agent the power to act in the other person’s best interest.

If you suspect that someone is misusing the Power of Attorney granted to them, report the information immediately to the local police who will be able to properly investigate the case. If you have been affected by this misuse you may have a claim against the agent for the harm they have caused you and should Contact a Florida Estate Planning Lawyer

May 4, 2009

Abuse of Florida Durable Power of Attorney

by David M. Goldman

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.

April 22, 2009

Helmsley estate: $136M to charity, $1M to dogs

by David M. Goldman

Helmsey’s estate made 53 charitable grants this week. Most of the money was given to hospitals and for medical research. Only 1 Million was given to 10 animal and dog charities equally. These donations came after a New York judge ruled that the trustees for the Helmsley Charitable trust has the sole authority to decide which charities would benefit from the trust.

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?)

February 2, 2009

Trustee’s Duty to Disclose

by David M. Goldman

Gerry Beyer has an article on a Trustee’s Duty to Disclose and the rise in Surcharge Litigation. Dana G. Fitzsimons Jr. recently published an article – Navigating the Trustee’s Duty to Disclose, Prob. & Prop., Jan/Feb 2009, at 40.

If you are managing wealth for your children, this should be a concern for you. As a Florida Trustee, it is important to avoid potential liability to your children.

December 4, 2008

Trust Litigation

by David M. Goldman

Florida Trust Litigation involves disputes between beneficiaries or potential beneficiaries of assets in ones estate or trusts (a Trust Contest). Trust litigation in Florida is most often centered around Mistakes in Execution, Undue Influence, or Lack of Capacity.

If you feel that there are problems with a Florida Trust and would like your options reviewed by a Florida Trust Litigation Lawyer, please Contact Florida Trust Attorney