Florida Probate Litigation Lawyer Blog

The Rights of the Alleged Incapacitated Person

May 15, 2013 | by Bart Chepenik

The path to a guardianship begins with a petition to determine incapacity. Next, there is an examination of the alleged incapacitated person by a three-person examining committee. Finally, there is a hearing on the matter where there must be clear and convincing evidence that the alleged incapacitated person is in fact incapacitated and that their rights should be removed.

The process of obtaining a court appointed guardianship is not easy. Courts view the removal of a person’s rights as a final option and do not grant guardianships without conducting a thorough review and exhausting all other options. The court places an extremely high value on protecting the alleged incapacitated person and their rights. A person alleged to be incapacitated is entitled to procedural due process in determining incapacity. According to Florida Statute, an alleged incapacitated person has the right to:

(1) Remain silent and refuse to testify at the hearing. The person may not be held in contempt of court or otherwise penalized for refusing to testify. Refusal to testify may not be used as evidence of incapacity; (2) Testify; (3) Present evidence; (4) Call witnesses; (5) Confront and cross-examine all witnesses; and (6) Have the hearing open or closed as she or he may choose. Fla. Stat. § 744.1095.
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Removing a Non-Tenant from Estate-Owned Property

May 8, 2013 | by Bart Chepenik

What happens when someone is illegally living in estate owned property and will not leave? Easy. Evict them. Right? Yes, if the person is a tenant of the property and the estate is the landlord. Eviction actions arise out of disputes between landlords and tenants and can be filed in both county and circuit courts. However, what happens in situations where the person occupying the estate-owned property is not a tenant of the estate? In these cases, ejectment is the proper cause of action. So, where and how does a person bring an ejectment claim to recover estate-owned property? In such situations, circuit court is the proper venue. This can include probate courts, whose general duty is to settle estates. While there is nothing expressly disqualifying a probate court, as a circuit court, from hearing an ejectment claim, if the a probate court cannot adequately administer justice, the claim must be heard in a circuit court of general jurisdiction.
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Examining Committee – Rights in Guardianship Cases

May 1, 2013 | by Bart Chepenik

When the mental faculties of a person come into question, the court can be petitioned to implement a guardianship. Courts, generally, view this as a last resort when there is no viable alternative. Guardianships can be limited in their scope or plenary. Part of the guardianship processes is an examination of the alleged incapacitated person by a three-person examining committee. Questions often arise about the rights and duties of the examining committee in the examination of an alleged incapacitated person. Under the Florida guardianship statutes, before depriving an individual of all of his or her civil and legal rights, “the individual must be incapable of exercising his rights at all, whether wisely or otherwise.” Losh v. McKinley, 86 So. 3d 1150, 1153 (Fla. 3d DCA 2012)(quoting McJunkin v. McJunkin, 896 So.2d 962, 963 (Fla. 2d DCA 2005)). Florida Statute Section 744.331(3) outlines the rights and duties of the examining committee in determining incapacity. There are rights related to the examination and report conducted and issued by the examining committee as well as the hearing on the matter.
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The Procedure for Appointing a Legal Guardian

April 24, 2013 | by Bart Chepenik

When a ward is incapable of taking care of his or her own interests, a court usually appoints a “guardian” to take care of that individual. A guardian may be appointed when a person experiences mental incapacity or a disability. A court may also appoint a guardian for a minor child in the event that the child’s natural guardian(s) are unable to serve as legal guardians of the child. But, what is the process that the court goes through when choosing a guardian? Who is qualified to be a guardian? Florida statutes and case law provide answers to many of the questions that come up when a court needs to select a guardian.

The basic qualifications for any guardian are (1) that he or she is 18 years or older and (2) that he or she is a resident of Florida. Fla. Stat. § 744.309. However, the resident requirement does have some flexibility built in and several exceptions do apply. See Fla. Stat. § 744.309(2).
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Disclaiming an Inheritance

April 17, 2013 | by Bart Chepenik

A person may want to disclaim an inheritance or gift in order to maximize gift and estate tax exclusions, or simply because he or she does not want the property and/or the resulting tax burden. A disclaimer is a refusal to accept an interest in the power over property, including a power of appointment. Fla. Stat. § 739.102. A person can disclaim property or an interest in property in whole or in part, and may make the disclaimer conditional or unconditional. Through the use of a disclaimer, beneficiaries may take a retrospective look at the decedent’s estate plan, and determine whether, based on current circumstances, there is a more advisable way to distribute assets.
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Litigation Over Trust Accountings

April 10, 2013 | by Bart Chepenik

Florida law mandates that a trustee keep the qualified beneficiaries of a trust reasonably informed of the trust and its administration. Fla. Stat. § 736.0813. This imposes a duty on the trustee to provide a trust accounting annually to each qualified beneficiary of an irrevocable trust. A trust accounting is required to include information regarding significant transactions affecting the trust administration during the accounting period, compensation paid to the trustee, gains and losses realized during the accounting period, and, to the extent feasible, the value of trust assets, among other things. Fla. Stat. § 736.08135. If the trustee fails to provide annual accountings to the qualified beneficiaries, the qualified beneficiaries may have a breach of trust action against the trustee. Fla. Stat. § 736.1001. However, if the trustee has provided the qualified beneficiaries with a trust disclosure document (including an accounting), then there may be a statute of limitations that affects the qualified beneficiaries’ claim against the trustee. If the trustee has provided an accounting, and the qualified beneficiary believes he has a cause of action based on that accounting, then the qualified beneficiary must make an objection within 6 months. Fla. Stat. § 736.1008.
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Who is an Heir under Florida Law?

April 2, 2013 | by Bart Chepenik

When a decedent passes away, individuals who are named in the decedent’s will are entitled to receive property as it is specifically devised in the will. Moreover, when a decedent dies in possession of property that is not devised in his or her will, that property passes through intestacy (i.e., outside of the will). But, who is entitled to receive that property? Who is considered an “heir?” How does one find out if he or she is an heir or beneficiary?

Under Florida law, “heirs” or “heirs at law” are those persons who are entitled to the estate of a decedent under the statutes of intestate succession. Fla. Stat. § 731.201(20). In Synder v. Davis, the Supreme Court of Florida interpreted the term “heirs” in Article X of the Florida Constitution to include not just family members who would take property at the death of the decedent, but also those who could take under intestacy statutes. Effectively, the Florida Supreme Court interpreted the word “heirs” broadly to include all potential takers under the intestacy statutes.
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A Lesson from Sir Peter Ustinov: The Importance of Maintaining a Current Will

March 27, 2013 | by Bart Chepenik

Sir Peter Ustinov, a famous English actor, columnist, and UNICEF Ambassador, passed away on March 28, 2004. Despite the fact that he died nearly 10 years ago, his estate still has not been settled. Sir Ustinov had been married three times, and had four children at the time of his death. He was estimated to be worth tens of millions of dollars. Sir Ustinov’s most recent will at the time of his death was 36 years old and written in pencil. Because the will was so outdated, the Swiss court that has jurisdiction over Sir Ustinov’s estate ruled that he died intestate. As a result, under Swiss law, his estate would pass to his widow. Since the decision that Sir Ustinov died intestate, there has been a battle over his estate. Specifically, Sir Ustinov’s son, (who was the heavily favored heir in the hand-written will that was rejected by the Swiss court), contends that Sir Ustinov set up trusts that held most of his assets (and whose whereabouts are known only by two retired Swiss lawyers) that should pass to Sir Ustinov’s children. This battle has resulted in the parties amassing a large bill for attorneys’ fees and is suspected to have eaten away most of Sir Ustinov’s once vast estate. Sir Ustinov’s son-in-law has stated that due to the costs of the litigation, there is little left to fight over. The son who is pushing the litigation recently admitted that he is nearing bankruptcy as a result of the legal fees he has incurred. Even an English High Court Judge has stated that she is appalled by the money that the family has spent fighting over the estate.
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Refusing to Appoint a Named Personal Representative

March 19, 2013 | by Bart Chepenik

The administration of an estate is never as simple as it seems, even when there is a will. Often, issues arise with the Personal Representative of the estate, such as a dispute over who the Personal Representative should be or a question of the Personal Representative’s actions or ability to administer the estate. In situations where a named Personal Representative is either unqualified to represent the estate under Florida Statute Section 733.301 or is unfit to represent the estate because they have an adverse interest or are mishandling estate assets, there are ways to remove the Personal Representative and appoint a successor. However, what happens in a situation where courts find that neither party is fit to be the Personal Representative of an estate?

Curators are appointed by probate courts when there is a problem with the Personal Representative of an estate. The curator is an independent third party who administers the estate. The use of a curator arises most often when a decedent dies intestate and there is a conflict over who should serve as the Personal Representative of the estate or when the Personal Representative of the estate is unfit to perform their duties. Most often, issues surrounding the appointment of a curator arise in the context of a decedent that passes away without a will. However, problems can also arise when there is a will that specifically names a Personal Representative of an estate, but an interested party seeks to have a curator appointed instead.
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Settlement in Guardianship Litigation

March 13, 2013 | by Bart Chepenik

Children worry about their elderly parents, particularly when the parents begin new relationships. Children may be particularly worried when their parent gives or loans money to a new significant other. This sometimes leads to children seeking to have a parent declared incapacitated, thereby preventing the parent from having control of his or her financial affairs. This was the case in Jasser v. Saadeh, 97 So.3d 241 (Fla. 4th DCA 2012). In that case, Mr. Saadeh, an 80-year-old-man, loaned money to a new girlfriend that he met after the death of his wife. When his children found out, they sought to have their father declared incapacitated. After the children filed for a determination of incapacity, a settlement agreement was reached, in which Mr. Saadeh signed a trust agreement that put his belongings into an irrevocable trust, for which he was the sole lifetime beneficiary, with his children as the remainder beneficiaries. Mr. Saadeh was told that if he signed the document, the proceedings would be over. However, after the settlement order was entered into, and based on reports that Mr. Saadeh was not in fact incapacitated, the court questioned whether the settlement was valid. Mr. Saadeh retained counsel and contested the formation of the trust. The court ultimately found that the trust was void, and Mr. Saadeh’s assets were returned to him.
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