Common Questions About Florida Law

Estate plans often intend to establish a legacy, and make the task of settling an estate easier for grieving loved ones. However, estate-related disputes and contests are anything but uncommon, and often attempt to unravel carefully crafted estate planning. Most commonly, a beneficiary or heir may believe they are entitled to a greater share of an estate, or they may feel that a seemingly untimely amendment to a will is fraudulent.

While mediation and careful deliberation can bring a peaceful end to many disagreements, some claims demand a more intensive approach. When heirs and beneficiaries cannot resolve their differences, they may be forced to take their case to court.

The Role of a Florida Estate Litigation Lawyer in Probate Estate Contests

A estate litigation lawyer is an attorney who has experience creating estate plans and resolving conflicts between heirs, beneficiaries, and other interested parties. During a probate estate contest, an attorney can help parties understand their legal rights and work toward an out-of-court settlement.

Under most circumstances, a probate estate litigation attorney works with or for the estate’s  personal representative. The personal representative, known as the "executor" in many states, is the individual responsible for initiating the probate estate, collecting the estate’s assets, and distributing inheritances.

An experienced Florida probate estate litigation attorney could help the personal representative:

• Verify or validate estate documents
• Interpret a will
• Resolve disputes between beneficiaries
• Adjudicate suspicious or unreasonable creditor claims
• Manage estate assets and investments

However, a Florida probate estate attorney could also advocate the interests of a beneficiary by:

• Arbitrating disagreements about the use of estate funds
• Filing a claim challenging the allotment of an inheritance
• Helping beneficiaries secure assets to which they are legally entitled

Since Florida’s probate process is a deadline-driven and time-sensitive process, heirs, beneficiaries and personal representatives may need the assistance of an experienced probate estate litigation lawyer to protect their best interests while ensuring continued compliance with state law.

When to Consider Contacting an Estate Litigation Lawyer

A Florida estate litigation lawyer could help heirs, beneficiaries, and personal representatives resolve contests including, but not limited to, the following:

Will Contests

Florida law presumes that most adults of sound mind have the legal capacity to execute a will and make other estate planning-related decisions. However, a will is only valid if it meets certain requirements. For example, a will must be:

• Made in writing
• Created by a person of sound mind, meaning they understand the purpose of a will, the nature of their relationship with heirs and beneficiaries, and their estate assets
• Signed by the testator in the presence of at least two witnesses

If a will is not properly executed, or contains ambiguous clauses, a beneficiary could claim that the will is invalid and cannot be admitted to probate. 

Guardianship and Conservatorship Disputes

Guardianships can protect the financial and legal interests of a person who lacks the capacity to make decisions for and of their own accord. While these arrangements are broadly intended to ensure that a vulnerable minor or mentally incapacitated adult is afforded the resources necessary to sustain themselves, they are not always consensual or uncontested.

Trust Administration Claims

The establishment of a revocable living trust or irrevocable trust allows grantors to condition inheritances, which are often distributed without the need for formal probate. However, a trust only serves its intended purpose when it is fairly and competently administered.

If a trustee or beneficiary believes that a trust is being mismanaged, then they could initiate a claim against the trust or its trustees.

Trust Dissolution Claims

If a trust exhausts its resources or can no longer fulfill its intent, then then the trust’s continued possession of trust-controlled assets could prove detrimental to its beneficiaries.

Breach of Fiduciary Duty Lawsuits

Estate representatives and trustees have a fiduciary duty to act in the best interests of the estate or in the best interests of the trust, respectively.

When an personal representative or trustee makes unreasonable decisions—perhaps by wastefully investing assets or by trying to use an estate’s assets for their own, personal purposes—they could breach their fiduciary duty, prompting a challenge from beneficiaries who believe that they are not receiving the inheritance that they are entitled to.

A well-considered estate plan can establish a long-lasting legacy. For many Floridians, this means bequeathing gifts to children, friends, and family. However, estate assets can also be leveraged for the greater good, used to uplift communities and fund preferred charities.

The Advantages of Charitable Giving

Philanthropists are often motivated by a strong sense of personal responsibility, whether to a particular church, community, or social cause. A charitable estate plan can, in a great many ways, fulfill a deep-seated desire to leave the world a better place.

However, the benefits of charitable giving extend far beyond a grantor’s personal sentiments. The federal government, in fact, actively encourages philanthropy by providing critical tax breaks to Floridians willing to share their life’s work with individuals and organizations in need of assistance. A charitable gift could:

• Provide an opportunity to establish a generous legacy
• Alleviate your personal tax burden
• Reduce federal estate taxes for designated beneficiaries

Including a charity, or charities, in your estate plan does not have to be difficult. However, simply listing a preferred organization in your will may not be the best way to establish a legacy.

How Estate Planning Can Help Establish a Generous Legacy

Florida law affords Sunshine State residents the right to make informed decisions about the distribution of their estate assets. You could include a charity in your estate plan by:

Bequeathing Lifetime Gifts

If you choose to donate to charity while you are still alive, you may be able to avail significant income tax deductions.

However, deductions are limited and require careful planning, and you may need to contact an attorney and tax professional to ensure that you are making the best use of your assets.

Leaving Money to a Charity in Your Florida Will

A last will and testament is a legal document that specifies how you would like your estate assets to be distributed upon your death. Simply designating a charity as a beneficiary to your will is among the easiest ways to establish a charitable legacy.

While writing a will is less time-consuming than establishing a charitable lead or remainder trust, any assets bequeathed through a Florida will are subject to probate. During probate, any interested parties—including disinherited beneficiaries, and even creditors—could contest the terms of your will. Even if a will contest is unsuccessful, it could deplete your estate’s resources, leaving little for your intended heirs. Working with a good attorney will help reduce or eliminate the possibility of litigation, and you may want to consider creating a revocable living trust to avoid probate.

Contributing a Charitable Rollover in Your Individual Retirement Account

A charitable IRA rollover, or qualified charitable distribution, allows certain donors to exclude retirement investment assets from their taxable income. These rollovers can also help retirees reach their required minimum distribution amount. 

Establishing a Charitable Trust

A charity can be the beneficiary of a revocable living trust or an irrevocable trust. Trusts offer several critical advantages, as they can benefit heirs and charities alike. The two most common types of charity-specific trusts include:

• Charitable remainder trusts. A charitable remainder trust, or CRT, makes distributions to two sets of beneficiaries: a lifetime income beneficiary, which could be yourself or a family member, and the named charity, which receives the trust’s remaining principal upon the grantor’s death. Charitable remainder trusts are not subject to capital gains taxes or estate taxes, and can be used to claim income tax deductions while the settlor is still alive.
• Charitable lead trusts. Charitable lead trusts, or CLTs, provide similar tax benefits to CRTs. However, charitable lead trusts provide periodic income payments to the charity, with the remaining principal bequeathed to the grantor’s heirs after a set period of time or upon their death. A charitable lead trust can be used to support a philanthropic organization while ensuring that a surviving spouse, children, or other loved ones receive a significant inheritance.

Estate challenges are common; however, contesting a will is rarely straightforward. While you do not need an attorney to petition the court to strike, amend, or reconsider a will, a probate litigation lawyer could help you build the compelling case needed to overcome Florida’s high standard for challenging a will.

Filing a Will Contest Can Be Complicated

Florida Limits Who Can File a Will Challenge

Anyone can file a probate lawsuit in Florida, provided that they have standing to challenge the estate. Petitioners can prove standing by demonstrating that the estate’s improper administration could harm their interests. People who have an interest in an estate are called “interested parties,” and generally include the beneficiaries of the will in question, disinherited beneficiaries, and creditors.

Other interested parties could include the following:

• The beneficiaries of a previous will
• Persons who would have been beneficiaries under state intestacy law (heirs-at-law)
• Guardians of interested minors

State Law Requires Contests to Meet a High Standard

An interested party may only file a will contest if they have reason to believe that the will does not accurately reflect the intent of the testator. To succeed, you must prove one of the following:

• The will was not executed in compliance with state law
• The testator lacked the mental capacity to write, sign, or execute a will
• The will was the result of fraud, duress, or undue influence
• The testator or witness's signatures were forged

Florida law presumes that most adults have the legal capacity to make their own estate planning decisions. The individual submitting the will to the court does have the burden of establishing prima facie the will's formal execution and attestation. This, however, is often as simple as presenting the court with a will that, on its face, meets the minimum execution requirements. 

Petitioners thereafter contesting the will bear the much more difficult burden of proving the will is invalid due to one of the aforementioned reasons. If you believe that a loved one’s will may be invalid, you will need to gather the evidence needed to persuade the court. This could include:

• Copies of a previous will
• Samples of the decedent’s signature
• Testimony from witnesses or a handwriting expert
• Documentation and testimony from medical experts and caregivers 

Even if a petitioner can prove that they have grounds to challenge the will, proceedings can be long, drawn out, and contingent on narrow interpretations of very technical laws.

How a Florida Probate Litigation Attorney Can Help

A Florida probate litigation attorney can help you understand and prepare for the complex task of challenging a will. Depending on the circumstances of your claim, your lawyer could:

Investigate Your Claim

Probate claims can have unexpected outcomes, and many contests never go all the way to trial. During your initial consultation with a Florida will contest attorney, you will have the opportunity to discuss your case. After hearing your side of the story, your lawyer will weigh the evidence and help you evaluate your options. 

If you have a viable case, your attorney will help you further investigate, collecting the evidence needed to prevail in negotiations or in court.

File the Right Paperwork at the Right Times

Contested probate proceedings often take time to resolve, and are a deadline-driven processes. Claimants must file their complaint within the state statute of limitations and the Florida probate rules, respond to court requests timely, and comply with the estate during discovery.

Since probate contests are a type of lawsuit, missing a deadline—even a minor deadline—could result in your case being dismissed.

Fight for Your Rights

Your attorney will aggressively advocate for your best interests, whether in negotiations with the estate or before a Florida probate judge. Your attorney will carefully navigate the many pitfalls that are inevitable in a contested probate proceeding, and present you with your options as the case evolves. 

Often, the best resolutions occur before trial and could include an out-of-court settlement with the estate, or arbitration overseen by an impartial third party. However, if the estate is unwilling to negotiate in good faith, we will take the evidence collected and fight for your rights before the court.

Contact a Florida Probate Litigation Attorney Today

Contesting a will is a big decision, but you cannot afford to wait. If you take too long to contact an experienced Florida probate attorney, the statute of limitations on your claim could lapse.

Please send DeLoach, Hofstra & Cavonis, PA, a message online or call us at 727-397-5571 to schedule your initial consultation as soon as possible.

Upon the death of the creator of a trust, most trusts will become irrevocable. An irrevocable trust is a long-term commitment, and if established in accordance with state law, its' terms generally cannot be modified. However, if certain conditions have been met, a trust’s qualified beneficiaries can move to have the trust terminated.

Terminating an Irrevocable Trust in Florida

Under Florida law, many irrevocable trusts can be terminated with or without court approval. An irrevocable trust can be terminated without court approval, known as a "non-judicial" termination, when the trustee and all qualified beneficiaries agree to terminate the trust. Note, however, that this only applies to most trusts created after January 1, 2001. For trusts created before that date, judicial intervention is usually required. 

For trusts that require judicial involvement to terminate, the court, either of its' own volition, or by petition of a trustee of qualified beneficiary, may terminate the trust for a variety of reasons.

The Grounds to Terminate an Irrevocable Trust

When court approval is required, there are several grounds by which qualified beneficiaries may petition to terminate a trust, namely:

• The purposes of the trust have been fulfilled, or the trust's material purpose no longer exists.
• The trust is no longer in compliance with state law.
• The trust’s administration or conditions are impractical or impossible to carry out. 
• Continued compliance with the terms of the trust would defy the settlor’s original intent.

Additionally, qualified trust beneficiaries can petition the court to terminate a trust if and when they have cause to believe that the trust is not being properly administered. A trust could be terminated if:

• The trust’s administration is not economical. Smaller trusts holding less than $50,000 in assets can be termed “uneconomical” if the value of the trust’s assets cannot justify the costs of administration. This may also apply to trusts holding more assets if the value of the trust property is generally insufficient to justify the cost of administration.
• The trust was not established in accordance with state law. If a trust was created under improper circumstances—such as undue influence, fraud, or duress—the trust could be terminated.
• The trust has been impacted by a merger. Under certain circumstances, a trust may be merged with another trust. When trust assets are transferred into another trust, the original entity may be dissolved if it no longer serves its intended purpose.

Finally, when legal and equitable interests of the trust merge, i.e. the only assets owned by the trust are also owned by the individual acting as the sole trustee and beneficiary, the trust can be terminated. 

Alternatives to Terminating a Trust

Terminating a trust can be time-consuming. However, beneficiaries often have options beyond taking a trust to court.

If a trust’s beneficiaries have pressing questions about a trust’s administration or assets, they may pursue:

• A settlement agreement. Trust disputes can typically be resolved through binding, non-judicial settlement agreements. During a settlement negotiation, beneficiaries and trustees work to identify fair and equitable solutions. A settlement could afford heirs more control over their legacy while ensuring that the trust’s assets are not wasted in litigation.
• Trust modification. While trusts are usually established in good faith, a trust may not have clearly defined terms and conditions. If a qualified beneficiary believes that a trust is not fulfilling its intended purpose, they could request that the trust be modified to better reflect the settlor’s intent or better comply with changing circumstances.
• Trust reformation. Any interested party, including qualified beneficiaries, may request that the trust be reformed if its terms do not honor the deceased settlor’s intent. However, trust reformations are typically only approved under certain circumstances. For example, a trust may be reformed if the trust’s conditions contained typos, mistakes, or ambiguous language.
• A reappointment. Trustees can be removed for a variety of reasons. If a trustee has breached their fiduciary duty, failed to effectively administer the trust, or otherwise abrogated their responsibilities, the qualified beneficiaries could ask the court to appoint another trustee.

Trust disputes can often be settled out of court. However, interested parties seeking to modify a trust must typically have standing to request any significant changes to the trust and its provisions. Gathering the evidence needed to change a trust’s terms or administration can be time-consuming, especially if the amendment would impact other beneficiaries.

Contact a Florida Trust Attorney Today

An irrevocable trust is a powerful estate planning tool. Under competent administration, a trust could protect a family for generations. However, when trusts are not run in accordance with the settlor’s intent, heirs can be deprived of their inheritance and forced to turn to the court for relief.

You should never be forced to accept trust mismanagement. Please send DeLoach, Hofstra & Cavonis, P.A., a message online or call us at 727-397-5571 to speak to a probate litigation attorney and schedule your initial consultation.

For many pet parents, a beloved dog, cat, or other animal not only demands but deserves the same care and affection as any other family member. However, many pet owners worry about what might happen to their four-legged family if they pass away unexpectedly. While Florida law affords pet parents the estate planning strategies needed to provide for their furry friends, some conventional strategies have critical limitations.

How Florida Estate Planning Provides for Pets 

The Sunshine State did not always provide pet owners with the legal resources needed to accommodate a family pet within a conventional estate plan. This is because Florida, like most other states, considers pets the property of their owners. Since pets are categorized as a form of personal, individually-owned property, they do not enjoy the same inheritance rights as human beings. Nevertheless, pet owners have a wide variety of options to protect their pets—even after death. A pet owner could:

• Include their pet in a will. A pet cannot inherit estate assets. However, a testator could still include their pet in a will by bequeathing the pet to a named heir or beneficiary. Unfortunately, this strategy could fail if the heir is unable or unwilling to take on the responsibility of adding another four-legged member to their family. You can also name who you want to your pet to go to as part of a "separate writing" as well,
• Accommodate their pet in a trust. A will or a revocable living trust could include provisions or requests for the continued care of household pets. A simple example of pet planning is a bequst to a trusted person to use to help your pet.
  • Example: I give the sum of $5,000 to my serving Trustee to use these funds to find a new home for any pets I own at the time of my death. My Trustee shall, in sole discretion, have the ability to pay all costs associated with my pet(s) from this bequest.
• Fund a dedicated pet trust. Upon your death, a pet trust can be established for the sole and specific purpose of maintaining a pet after the original owner’s death. The pet trust is discussed below.

Florida Pet Trusts

A pet trust is typically a fund of money set aside to help your pet upon your death.Pet trusts can send, receive, and manage assets, including the following:

• The pets are to be transferred to the trust’s care after the grantor’s death
• Pet care equipment and accessories, such as the pet’s favorite toys or any necessary medical supplies
• The money needed to cover the pet’s reasonably anticipated expenses

Florida law explicitly allows a pet trust to continue providing for a pet’s best interests until the pet passes away.

Pet Trusts Create a Legal Obligation to Maintain the Pet’s Best Interests

A pet trust allows the grantor to designate a successor trustee to care for their pet after they have passed away. In Florida, a successor trustee has a legal obligation to honor the terms of your trust and use trust funds exclusively for your pet’s maintenance.

When you establish your pet trust, you could enhance your successor trustee’s accountability by:

• Listing the pets included in the trust
• Naming a caretaker or caretakers
• Detailing the nature and quantity of assets left for the pets
• Describing how the pet should be cared for
• Appointing an attorney or other representative to enforce the terms of the trust
• Explaining how any residual or remaining funds should be used after the pet passes away

Once a pet trust has been established and the successor trustee appointed, the trustee has a legal duty—known as a fiduciary duty—to use trust funds responsibly and reasonably. If the successor trustee levies excessive personal charges, they could be held liable for misconduct in a Florida civil court.

Use our Firm for your Pet Trust

We have a long history of supporting animal charities and working with pet trusts. Attorney Rep DeLoach was on the board of SPCA Tampa Bay for over 6 years and has worked in depth on pet trust planning for over 20 years.

Contact a Florida Probate Attorney to Establish or Enforce a Sunshine State Pet Trust

Pet trusts can be difficult to establish and enforce without the right assistance. DeLoah, Hofstra & Cavonis, P.A., has years of experience helping Floridians build their legacies and protect their families' best interests. Please send us a message online or call us at 727-397-5571 to schedule your initial consultation.

Related Links: Common Estate Planning Mistakes You Can Avoid How a Living Trust Could Help You, and Your Family, Avoid Florida Probate   How Trustees and Beneficiaries End Up in Trust Litigation in Florida

 

Probate can be incredibly stressful for estate executors, known in Florida as "personal representatives", whose responsibilities range from filing time-sensitive paperwork to inventorying the entirety of a decedent’s remaining possessions. However, settling disputes among heirs and ensuring that creditors receive outstanding debts could seem an especially arduous undertaking. If the deceased person left behind assets of uncertain value, executors may have to seek an appraisal to ensure that the estate is divided fairly and in accordance with Florida state law.

The Different Types of Property in Florida Probate

Personal representatives are typically responsible for the administration of the following types of property:

• Real property
• Tangible personal property (such as household items)
• Intangible personal property (such as bank accounts)
• Intellectual property

Certain types of property, such as real property and tangible personal property, may require appraisals. However, real properties are relatively simple to appraise, insofar as they are customarily appraised at their fair-market value at the time of the decedent’s death.

Tangible personal property, in contrast, may pose additional challenges for personal representatives, as its fair-market value or intrinsic properties may be difficult to gauge, especially when considering beneficiaries oft-divergent interests.

Tangible Personal Property in Probate

The Florida Probate Code offers no single definition of what could be considered tangible personal property. In estate law, tangible personal property, or TPP, refers to physical assets that exist in the real world and can be relocated.

The following types of assets could be considered tangible personal property:

• Motor vehicles, including cars, motorcycles, and motor homes
• Furniture
• Electronics
• Household appliances
• Jewelry and artwork
• Personal collections, such as coin collections, postage stamp collections, and model train collections

Under certain, limited circumstances, even a family pet could be considered tangible personal property during probate and estate administration.

How to Appraise Tangible Personal Property

Tangible personal property can usually be appraised using any one of the following three methods for assessing fair market value:

1. The Market Approach. The market approach determines the value of assets based on comparable sale prices for the same type or class of assets. In general, the market approach uses readily-available data to assess how much an item of comparable age and condition would be worth on the open market.
2. The Income Approach. If an asset generates a profit, then its fair market value could be assessed by calculating how much income the asset produces and could be reasonably expected to produce in the future.
3. The Cost Approach. Some rare or irreplaceable items can be appraised using the cost method, which determines an asset’s fair market value based on how much it would cost to reproduce, replicate, or replace an item. The cost approach may be used to appraise assets that are no longer produced, manufactured, or in common use.

Most tangible personal property, such as motor vehicles, electronics, and furniture, can be appraised using the market approach. Oftentimes, executors only need to run a comprehensive set of internet searches to estimate an asset’s value.

However, comparably complex assets—such as a revenue-earning real property—may require a professional evaluation.

When You Might Require an Appraisal

Certain types of rare, collectible, or complex assets may not have any clear-cut or easily calculable market value.

In general, you may need an appraisal for the following categories of assets:

• Real properties
• Collectibles
• Jewelry
• Artwork

Any jewelry or artwork that has an appraised or probable value of $50,000 or more should be assessed by a qualified professional, as it may be subject to additional review by the Internal Revenue Service’s Art Advisory Panel.

Contact a Probate Attorney Today

Ensuring that estate assets are properly appraised and assigned a fair market value is critical to avoiding conflict between heirs, creditors, and other interested parties. DeLoach, Hofstra & Cavonis, P.A., has been helping Floridians navigate the complexities of probate since 1976. If you need assistance executing or administering a Sunshine State estate, please send us a message online or call us at 727-397-5571 to speak to a legal professional and schedule your initial consultation as soon as possible.

Related Links: Gathering Probate Assets How Can I Dispose of Personal Property in an Estate Plan?   When Am I Able to Act as the Executor for an Estate?

 

Florida probate can be a tedious undertaking. However, probate—time-consuming as it may be—serves several critical purposes. When probate is initiated, the estate’s personal representative must account for the deceased person’s assets, notify creditors of the death, and inform beneficiaries of their rights in the estate. Ordinarily, the personal representative’s responsibilities, while taxing, are straightforward and fairly predictable. Unfortunately, complications may arise if the personal representative cannot locate the decedent’s heirs.

Florida’s Formal Notice Requirements

Probate is the multi-step process of formally settling a deceased person’s estate. For most families, probate involves the following formalities:

• The deceased person’s personal representative files a petition to initiate probate in the county where the decedent resided.
• The personal representative sends formal notice of the probate proceedings to the deceased person’s surviving spouse, named beneficiaries or heirs, and others as enumerated by Florida Statute.
• After sending notice, the personal representative must gather and inventory the decedent’s assets.
• Once assets have been marshalled, the personal representative may pay the estate’s creditors and disburse inheritances.

However, the relative linearity of probate may be complicated by the absence of named beneficiaries or heirs. Florida law explicitly requires that beneficiaries or heirs be served formal notice of probate through any of the following means:

• Sending a copy of the petition to the beneficiary’s last known address using a delivery service that requires a signature upon receipt.
• Sending a copy of the petition to the beneficiary’s attorney.
• Send a copy to the beneficiary’s guardian or caretaker, if the beneficiary is underage or incapacitated.
• Send a copy as otherwise provided by the rules of Formal Notice. 

If the beneficiary cannot be located, or does not respond to the notice of probate, the personal representative and their attorney may be required to proactively search for the beneficiary.

Addressing the Absence of a Beneficiary 

If the personal representative cannot locate a beneficiary, they may be able to serve notice of probate by publishing a notice in a local newspaper or other media outlet. However, before the personal representative may publish a notice in a newspaper, they must receive the court’s permission. Under most circumstances, the court will only grant permission if it has been provided an “affidavit of diligent inquiry.” The purpose of this affidavit is to ensure that the personal representative made a good-faith effort to locate the beneficiary.

If the beneficiary fails to respond to the notice, then the personal representative may be able to take the following actions:

• Petition the court to recognize the beneficiary as legally deceased, if there is reasonable cause to believe that the beneficiary has passed away.
• Petition the court to appoint a Guardian Ad Litem who can "stand in the shoes" of the beneficiary. 
• Petition the court for a preliminary distribution of the remaining assets to other beneficiaries.
• Place the beneficiary's assets in a trust for a pre-determined period of time.

If the beneficiary’s assets are placed in a trust, the estate’s other beneficiaries may petition the court to release and redistribute the assets after the pre-determined period of time has elapsed.

In a worst-case scenario—such as when the decedent died intestate and has no locatable beneficiaries or heirs—the remaining assets may “escheat” to Florida, becoming property of the state. Unclaimed assets will be transferred to the control of the Florida Chief Financial Officer and placed in the State School Fund.

Should the funds remain unclaimed for a period of 10 or more years, they will escheat to the state and be used for public educational purposes.

Contact an Attorney Today

When a Floridian passes away, their estate plan forms the basis of their legacy. If you have been appointed as an estate executor and cannot locate a missing heir, DeLoach Hofstra & Cavonis, P.A., could assist you in protecting a loved one’s last wishes. Please send us a message online or call us at 727-397-5571 to schedule your initial consultation as soon as possible.

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Family businesses are often passed from one generation to the next. However, promising a profitable enterprise to loved ones is not without risk—a risk that owners often try to mitigate by transferring their business interest to a trust. While a trust-based succession could spare heirs the rigors of Florida probate, beneficiaries may find themselves at the mercy of an untrustworthy, incompetent, or otherwise negligent trustee.

Trust-Based Business Successions

An unfortunate percentage of family-owned businesses perish within a generation.

Since succession can complicate an enterprise’s day-to-day operations, forward-thinking entrepreneurs may create comprehensive estate plans to accommodate their financial interests. Trusts—legal vessels that can own, maintain, and redistribute a variety of tangible and intangible assets—are often used to facilitate the intergenerational transfer of wealth.

Business owners would generally be advised to establish a revocable living trust. Small business owners may elect to fund a revocable living trust, which allows its founder—the settlor—to retain control over the trust’s assets while they are still alive. Once the settlor passes away, their designated successor trustee will manage the trust on their behalf, delegate roles, and distribute inheritances.

Challenging the Conditions of a Trust

Anyone seeking to challenge the terms of a trust must be able to establish that they have the standing to file a trust contest. In legal parlance, “standing” refers to a petitioner’s capacity to file a lawsuit or other claim. Under Florida law, qualified trust beneficiaries typically have the requisite standing to contest a trust.

However, a beneficiary cannot challenge a trust simply because they believe they were unfairly deprived of an inheritance. A trust could be contested if an heir believes that:

• The trust is invalid. Florida laws require that trust documents be signed by the trustor and at least two impartial witnesses. If a trust was not properly executed, then its existence could be challenged. However, beneficiaries should exercise some caution when contesting the validity of a trust. If the court finds that the trust is not valid, then its assets could be redistributed in a manner that does not favor the heirs.
• The trustor was subject to undue influence. If the trustor was coerced or fraudulently induced to make certain estate planning decisions, then the trust—or elements thereof—could be found invalid by a Florida court.
• The trustor lacked the legal capacity to make estate planning decisions. Florida law requires that the trustor have the mental capacity to understand not only that they are forming a trust but how the formation of the trust will affect their assets and heirs.

Since trust contests are a form of probate litigation—or lawsuit—they should be considered with care and initiated only after consulting an experienced Florida probate litigation attorney.

Challenging the Decisions of a Trustee

The successor trustee appointed to manage the trust after the grantor’s death is considered a fiduciary. In other words, they have a moral and legal obligation to act in the trust’s best interest. If a trustee is negligent, self-serving, or otherwise incompetent, they could breach their “fiduciary duty” and be subject to removal. 

A trust contest could remove a trustee if the trustee has breached their fiduciary duty by:

• Failing to properly manage the trust’s assets
• Failing to protect the trust’s interests
• Misusing the trust’s assets to better themselves or their loved ones

Trustees have other obligations that go beyond the administration of the trust—they must keep a detailed accounting of the trust’s expenses and actions and provide records to beneficiaries upon request.

When trustees fail to fulfill their duties, whether by creating a conflict of interest or depriving an heir of a deserved inheritance, they could be removed from their position by the court.

Contact an Experienced Probate Litigation Attorney Today

If you believe that the execution of an invalid trust or a trustee’s misconduct has deprived you of your right to inherit a Florida business, please send DeLoach Hofstra & Cavonis, PA, a message online or call us at 727-397-5571 to speak to an attorney and schedule your initial consultation as soon as possible.

Related Links: How an Attorney Can Help Settle a Living Trust What Are My Rights as the Beneficiary of a Florida Trust? What Should I Do Upon My Loved One’s Death?

 

Probate administration is the rigorous and often time-consuming process of dissolving an estate. While probate can be emotionally exhausting, it is often a relatively straightforward affair. However, the disbursement of inheritances could be significantly disrupted if a named beneficiary or heir passes away before probate is complete.

What Happens When a Beneficiary Passes Away Before Receiving an Inheritance

If the heir to an estate passes away before receiving their inheritance, then the gifted assets will remain with the heir's own probate estate.

Under ordinary circumstances, a living testator could simply amend or re-write their will to reflect the beneficiary’s death. However, complications could arise if the testator is already deceased. But if the heirs survives the testator, even for a day, the heir's own inheritance now must be paid to the heir's probate estate for distribution under the terms thereof.

The Perils of Probate for Payable-on-Death Accounts (PODs)

Certain assets—such as bank accounts, investment retirement accounts, and 401(k)s—are typically excluded from probate if and when they include a so-called “beneficiary designation.” If an account has a beneficiary designation, the account’s assets are transferrable to the named heir upon the original account holder’s death.

Unfortunately, these otherwise non-probatable assets could be subject to probate administration if the beneficiary dies before probate administration is complete. In a worst-case scenario, this could lead to a favored heir losing their rights to an inheritance, with the court instead ordering that the assets be distributed in accordance with the state’s intestate succession law.

Contact an Attorney Today

An intestate succession could endanger the decedent’s legacy and deprive worthy heirs of their inheritance. If you, or a loved one, are struggling to make sense of Florida’s complicated probate proceedings, please send DeLoach, Hofstra & Cavonis, PA, a message online or call us at 727-777-6842 to schedule your initial consultation.

Related Links: Florida Estate Planning Checklist How Can I Make Sure My Wishes Are Followed After I Die? The Difference Between Irrevocable and Revocable Living Trusts in Florida

 

When parents make estate plans, they can often think of no better person to distribute their assets and disburse inheritances than a beloved child. However, the process of settling a Florida estate can be difficult. Even when an executor, known as the personal representative in Florida, strives to do their best, they may make mistakes or overlook important details that threaten other beneficiaries’ interests.

When Siblings Can’t Agree on Estate Decisions 

Acting as personal representative is a big responsibility, and there are a littany of reasons a sibling may be disqualified from serving in such a capacity. Unfortunately, even if qualified to act in such a capacity, when adult children are empowered to make decisions that could affect their own inheritances, they may be tempted to abuse their positions for self-gain. 

Even if the personal representative does not violate their fiduciary duty to advocate the estate’s best interests, or is otherwise disqualified from acting in such a role, they might not be suited for the role for various reasons.

For example:

• A sibling might believe they understand their parents’ last wishes better than their brothers and sisters.
• The personal representative might not treat other beneficiaries with the respect they deserve.
• The personal representative might mismanage their parent’s assets, losing money on investments that should have been passed on to their beneficiaries.
• They might try to increase the size of their own inheritance by withholding critical information or misappropriating valuable assets.

If you, or a loved one, feel that your sibling is not responsibly managing a beloved parent’s estate, you could file a petition to have them removed from their position. However, before taking such a drastic step, you could explore alternatives for a more amicable resolution.

Challenging a Personal Representative’s Competency in Florida Probate

If you believe that your sibling has failed to competently manage your parent’s estate, you could challenge their authority by requesting:

• An explanation of inventory asset values. The personal representative is required to file an inventory detailing and valuing all assets in the probate estate. Upon written request, certain beneficiaries can obtain an explanation of how the assets were valued, and if a formal appraisal was obtained. This can be useful in determining whether assets are being intentionally under or overvalued in a manner that may be advantageous to the personal representative.
• Mediation. Mediation is an out-of-court alternative to probate litigation. In mediation, the beneficiaries will have the opportunity to speak with their sibling, discuss their feelings, and ask a trained professional—the mediator—to propose a fair solution to any outstanding disagreements.
• Removal. The court of its' own volition can remove a personal representative. Otherwise, only “interested persons” can petition the court to remove the personal representative. In Florida, “interested persons” can include the estate’s beneficiaries, heirs, and creditors, as well as other parties. However, since the Sunshine State’s probate courts strive to respect the decedent’s last wishes, they may be reluctant to remove the personal representative without compelling evidence of misconduct.

How to Petition the Court to Remove a Personal Representative

Once you have established that you have the proper standing to petition for the personal representative’s removal, you may:

• Collect evidence of the personal representative’s alleged misconduct. This could include both documentary evidence and eyewitness testimony.
• File a Petition for Removal in the court where probate proceedings are underway.
• Attend court-ordered hearings if necessary. 
• Discuss options for a potential out-of-court settlement.
• Prepare for trial if mediation or another amicable resolution is not possible.

However, seeking the removal of a personal representative could pose a significant risk to the estate’s finances. Typically, the personal representative has the right to use the estate’s resources to defend themselves—and their decisions—in court. Even if you have a compelling claim, your sibling could still exhaust the estate’s assets in litigation.

Contact an Experienced Probate Litigation Attorney Today

Challenging a sibling’s position as a personal representative could prove difficult, especially if they are unwilling to accommodate their family’s feelings and alter their behavior. However, since probate litigation is a high-stakes undertaking, you need to be prepared for the possibility of your brother or sister putting up stiff resistance—potentially at the cost of your own inheritance.

Before filing a Petition for Removal, speak to an experienced probate litigation attorney to explore your options. Please send DeLoach, Hofstra & Cavonis P.A. a message online with our contact form or call 727-777-6842 today to schedule your consultation.

Related Links: Navigating Florida’s Probate Process What Are My Rights as a Beneficiary of a Florida Trust? What Happens if Someone Dies Without a Will in Florida?

 

A testamentary trust is trust created in someone's last will and testament. While many trusts are established during the grantor’s (creator's) lifetime, a testamentary trust goes into effect only upon death. 

Understanding Florida Trusts

A trust is a special sort of fiduciary relationship, in which the grantor (i.e, trust creator) grants another party—known as the trustee—the right and duty to hold property for the benefit of a third party. Trusts can receive and retain ownership of almost any sort of asset, including but not limited to:

• Homes
• Real property
• Motor vehicles
• Cash accounts
• Investment portfolios
• Firearms
• Artwork

In estate planning, trusts are often used to:

• Avoid probate. If a Florida resident passes away without a trust, their assets will usually be subject to probate, the time-consuming process whereby a court oversees the payment of the estate’s debts and the distribution of assets from the estate to heirs and beneficiaries.
• Exercise control over assets. Some trusts allow for the trustor to transfer assets into the trust’s possession while they are still alive, allowing them to retain partial or total control over the assets until they pass away.
• Protect privacy. Probate proceedings take place in court, which means they become part of the public record. Since most trust transactions take place behind closed doors, a trust can help protect heirs’ privacy.

However, unlike conventional living trusts, testamentary trusts are still subject to probate.

Testamentary Trusts

People often believe that wills and trusts are mutually exclusive. However, the testamentary trust provides something of a common ground between these two popular estate planning instruments.

Specifically, Florida law allows for living persons to sanction the creation of a trust in their last will and testament. If done correctly, the will allots certain assets to the trust’s care. Once the trustor passes away, the designated assets are transferred to the trust.

People sometimes create testamentary trusts because:

• Testamentary trusts seem simple. People may establish testamentary trusts because they seem simple. After all: the trust is established by the will, allowing the grantor to create a trust without drawing up separate documents.
• Testamentary trusts are controllable.  Although conventional living trusts still allow the trustor to retain rights of access to any assets they transfer to the trust, they still necessitate a change in ownership. However, testamentary trusts allow the grantor to keep assets titled in their own name.

Why Testamentary Trusts Can Be Problematic

Since testamentary trusts are created by the provisions of a will, a probate is needed to admit the will to probate. In Florida, probate is the process that:

• Recognizes a will and establishes its validity
• Accounts for the entirety of the estate’s asset
• Pays the deceased person’s remaining debts
• Oversees the distribution of assets in accordance with the terms of the will, if any exists

Under most circumstances, probate is overseen by the court and carried out by a personal representative (or executor) named in the will. However, probate can present unexpected challenges—for the executor, and for heirs—if the deceased person sought to establish a testamentary trust. This is because the trust necessitates a second level of administration above and beyond probate.

If the grantor’s last will and testament was not recently revised, or was written without the assistance of an estate planning attorney, the personal representative may struggle to complete the transfer of assets into the trust’s care, especially if the deceased person did not clearly explain the conditions of the trust or nominate presumptive trustees.

When to Use Testamentary Trusts

We typically use testamentary trusts in more simple estate planning situations, such as where someone wants to leave assets to a minor beneficiary.  Here, the trust would typically say "I give my assets to my child/children." If, however, this child is under a certain age (like 25), then his or her share is held by someone trustworthy until that child reaches an older age. This trust is known as a testamentary trust as it only comes about once the testator dies.

Contact an Attorney Today

If your loved one’s will includes a testamentary trust, DeLoach Hofstra & Cavonis P.A. could help you navigate the complexities of Florida probate to receive a hassle-free inheritance. Please send us a message online or call us at 727-777-6842 to schedule your consultation as soon as possible.

Related Links: Could My Loved One's Estate Go Through Simplified Probate? What Is the Difference Between a Will and a Trust? Why You May Need an Attorney Upon Your Loved One's Death

 

It’s possible that your probate notice signals inheritance, but it’s not a guarantee. Each state’s probate laws require certain parties to be notified when a person passes away. In Florida, the personal representative of a deceased person’s estate is required to issue an official Notice of Administration to all beneficiaries. 

Who Must Be Sent a Notice of Administration in Florida?

Florida clearly distinguishes between heirs (surviving family members) and beneficiaries (those who stand to inherit). Of the two groups, only beneficiaries must be notified of probate proceedings. Not all heirs are entitled to a Notice of Administration—and those who are notified are not necessarily going to inherit anything.

A Notice of Administration generally needs to be issued to:

• The surviving spouse of the person who passed away 
• Beneficiaries named in the deceased person’s will
• Beneficiaries of a person who died without a will
• Any interested party potentially entitled to property from the estate

Why Did I Get a Notice of Probate?

Personal representatives are not required to state the reason why each person is notified in the official Notice of Administration. As a result, you may not know precisely why you were notified of a loved one’s probate until the proceedings have begun. The four categories above encompass a wide range of circumstances, so it’s best to get your questions answered by a Florida probate attorney to see what the future holds.

For example, you should receive a Notice of Administration if you are:

• A named beneficiary. If your loved one died with a will, the representative must notify all people named as beneficiaries. This can include the deceased’s family, friends, acquaintances, charitable organizations, and anyone else to whom the deceased left property. The personal representative must make every attempt to contact named beneficiaries and heirs-at-law, including posting a notice in local newspapers.
• An heir-at-law. If a person dies without a will (intestate), the law outlines a specific order in which their close relatives inherit their property. If your loved one died intestate, their property would pass to their spouses, children, grandchildren, the deceased’s parents, and finally the decedent's siblings. If none of the heirs-at-law are still living, then other descendants may have a claim to the estate. We have the rules of intestacy on this page of our website.
• The trustee or beneficiary of a trust. If the person who passed away created a revocable living trust, those named successor trustees or beneficiaries of those funds should be notified of estate administration.
• The parent or guardian of a minor. If one of the deceased’s beneficiaries is under 18 years old, the minor’s natural parent, custodian, or appointed guardian must be given notice of probate. In addition, any person named as the deceased minor child’s new legal guardian must be notified. Learn more about Florida guardianships here.
• Legally within your rights to object to a provision of the will. An interested party is someone who has the legal standing to challenge the terms of a will and assert their rights to an inheritance. If you’re an interested party, you have the right to receive an inventory and accounting of the estate assets, a copy of the will or trust, and statements of payments to creditors.
• Disinherited by the will. If you have been intentionally disinherited, you should still be notified of administration so that you have a chance to object during probate proceedings. Notification is vital in these situations because of the time limit to challenge a will.

Let Our Probate Attorneys Explain Your Options

If you’ve been issued a Notice of Administration, you have a limited window of time to challenge the will's validity. For this reason, it’s a good idea to consult with a probate attorney at DeLoach, Hofstra & Cavonis, P.A. to understand your rights. Contact us today to set up a consultation and get answers to your questions, or read through our free book, Navigating the Florida Probate Process, to learn from our years of experience helping relatives through estate administration.

Related Links: How Long Does the Probate Process Take in Florida? What Is the Difference Between a Will and a Trust? What Should I Do First Upon My Loved One's Death?

 

There are several reasons why beneficiaries, heirs, and family members disagree with how a trust is administered. One of the most critical rights beneficiaries have is the ability to challenge the trustee’s actions in court proceedings or through estate litigation.

Beneficiary Rights Under the Florida Trust Code

In legal matters, there’s a difference between an heir and a beneficiary. An heir is a relative or next of kin who stands to inherit after a family member passes away without a will. A beneficiary is a named party in a legal document (such as a will or trust) who has a right to receive a deceased person’s property. There are several tiers of beneficiaries to a trust, the most senior being a qualified beneficiary.

Under the Florida Trust Code, beneficiaries of a trust have the right to expect certain actions and behaviors of the trustee, including:

• Proper administration of the trust according to the document instructions and Florida law. The trust document should clearly state the testator’s intentions and which state’s laws apply to the provisions. If there’s no mention of the governing location, courts may determine jurisdiction based on where the trust was created or where the testator lived at the time of its creation.
• Acting solely for the interests of the beneficiaries. The trustee must place the interests of the trust beneficiaries above all others, including their own.
• Performing all duties in good faith. Everything a trustee does in administering a trust should be done to the best of their ability and without self-dealing and conflicts of interest.
• Impartiality. Florida law requires trustees to treat all beneficiaries the same, showing no preference or applying different standards among beneficiaries.
• Protection and defense of the trust. Trustees should take steps to defend claims made against trust property or enforce claims of the trust, such as using trust funds to secure an asset for the trust or filing lawsuits against someone to defend the trust in court. It also includes dealing with former trustees and collecting trust property and records from prior trustees.
• Prudent use and investment of trust assets. There are strict rules for the holding, investing, and spending of trust assets. Trust property such as cash, stocks, bonds, and real estate, should be held and titled in the name of the trust. There must be no commingling of the trust property with the trustee’s own. Any expenses incurred by the trustee should be limited, reasonable, and documented. You also have a right to object to any professionals paid using trust money, such as brokers, accountants, realtors, or other third parties employed by the trust.
• Timely communication and distribution. Trustees should not hold distributions or inheritances for any longer or any reason than legally necessary. All trust distributions should be made as soon as outstanding issues are resolved. If a beneficiary makes a request regarding the trust, the trustee should respond with a decision and a clear reason for the decision in a reasonable period.
• Providing relevant information about the trust. Florida law requires trustees to keep qualified beneficiaries reasonably informed of the trust and its administration. This includes providing a complete copy of the trust document (including amendments) and an annual accounting showing all trust gains, losses, and distributions. 

If You Suspect Mishandling of a Trust, We Can Help

A trustee is considered a trusted agent, or fiduciary, to the heirs. This title carries legal responsibilities and consequences, including being held personally liable for breach of duty. If your trustee has engaged in self-dealing or has conflicts of interest, these transactions could be voided, and your trustee may be removed.

At DeLoach, Hofstra & Cavonis, P.A., we have helped clients across Florida with various estate litigation matters. To learn more about your case, please call us at (727) 397-5571 or use our quick contact form so we can discuss all of your options under the law.

Related Links: How Trustees and Beneficiaries End Up in Trust Litigation in Florida What You Should Know Before Going Through Estate Litigation in Florida What Should I Do First Upon My Loved One's Death?

 

Language that may be interpreted in different ways by different people can cause confusion, but in a last will and testament, it can also lead to costly estate litigation. When a certain word, phrase, or provision of a will could be taken in two or more different ways, there’s a strict process for determining the creator’s intent.

How Courts Decide the Meaning of Ambiguities in a Will

Unlike contesting a will in Florida, there’s no need to declare the entire will invalid if there’s an ambiguity in the document. Instead, the probate court will make a ruling on the intended meaning based on the deceased’s other provisions and overall disposition.

The court will have to determine:

• Whether an ambiguity exists. A will is not necessarily ambiguous just because two opposing parties interpret the will differently. The court will have to examine the document to determine whether the language in the will could be interpreted multiple ways. If the court finds that the creator’s intent can be determined as a matter of law, it will rule that no ambiguity exists and no additional evidence will be admitted.
• What type of ambiguity exists. There are two kinds of ambiguities in these proceedings: patent and latent. A patent ambiguity is apparent on its face, or an easily identifiable error—for example, a will that leaves assets to the “grandchild” when there are multiple grandchildren. A latent ambiguity happens when the words of the will could be applied in multiple ways. For example, a will that leaves “all of mother’s possessions” to one heir, but leaves “mother’s engagement ring” to another heir. 
• How to reconcile inconsistent provisions. Even if an error exists in a single clause, the court will assess the document as a whole to determine the creator’s true intent. If the court cannot make a determination, it may allow both parties to submit outside evidence (such as the deceased’s personal letters or diary) to resolve the matter.

If you believe there is a mistake in your relative’s will, the Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis are standing by to explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

Related Links: Requirements for a Last Will and Testament to Be Legally Valid in Florida What Is Trust Litigation? Which Family Members Have Grounds for Contesting a Will?

 

Ill or elderly people are at high risk of being taken advantage of by scammers, petty thieves, or even those closest to them. Sometimes, an individual may manipulate a senior into changing their will, rerouting assets to the individual instead of the senior's proper heirs. When this happens, relatives may contest the will in probate court after a senior's death in order to have the will ruled invalid.

What Is Undue Influence?

Physical or mental incapacity can make a loved one extremely susceptible to elder exploitation. If someone unethically pressures a senior into changing their will for personal gain, the will can be contested based on undue influence.

In general, a successful undue influence case proves that:

• The will left property in an unexpected way. This usually means that close family members have been cut out of the will to the benefit of another party. As you may imagine, it can be difficult to prove what your loved one’s wishes are after their death. Correspondence from your loved one referring to certain items (such as “when you have my engagement ring,” or “I want that house to stay in the family”) or similar testimony can help prove true intent.
• The influencer had a confidential relationship with your loved one. Anyone who has close contact with a senior could build a bond of trust to exert influence, such as a former spouse, distant relative, or a caretaker. Testimony from doctors, lawyers, relatives, and others can be helpful in demonstrating the nature of the relationship between the influencer and the deceased.
• Your loved one was in a vulnerable position. In many cases, a loved one may be suffering from dementia or other condition that impairs their mental capacity. An influencer may further alienate a victim by preventing other family members from visiting or lying to nursing home staff.
• The influencer improperly benefited from the will. Not all influences qualify as improper influences. An attorney may suggest certain changes to a will for the benefit of the heirs, and a spouse might push a dying loved one to alter an out-of-date will. The court will have to decide whether the influence caused an unfair distribution of assets.

If you suspect your departed relative was pressured to change their will, Florida estate litigation attorneys at DeLoach, Hofstra & Cavonis can explain your legal options. Simply fill out the quick contact form on this page to set up a consultation and get answers to your questions.

Related Links: Requirements for a Last Will and Testament to Be Legally Valid in Florida What Happens If You Die Without a Will in Florida? What Should I Do First Upon My Loved One's Death?