Florida Probate Litigation Lawyer Blog

What Control Does a Personal Representative Have Over Assets Held in a Professional Association?

December 19, 2011 | by Admin

Many questions may arise when a person passes away and the person’s professional association holds some assets. The professional association may be a corporation, which is a separate legal entity from the person. In this case the personal representative will not have automatic entitlement to the business assets. This remains true even if the deceased person owns 100% of the corporation. For example if a person owns a successful corporation that operates throughout several South Florida counties and the owner passes away, his probate administration may be conducted in Broward County. The personal representative of the estate may wish to reach the corporation’s assets to satisfy the deceased person’s estate obligations. However, Florida courts have decided against letting a personal representative receive automatic control of the business or its assets.
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Fees For Guardianship Services

December 8, 2011 | by Bart Chepenik

Some residents of Miami-Dade or Broward County may currently serve as guardian for a ward or may become an appointed guardian in the future. A ward means a person for whom a guardian has been appointed. A person may need a guardian because they become incapacitated or because they are a minor. The responsibilities of a guardian will vary depending on the ward’s needs. A guardian is defined in the Florida Statutes Section 744.102 defines a guardian as a person who has been appointed by the court to act on behalf of a ward’s person or property, or both. A guardian for a ward can live close by or in a different location. For example, if a Miami-Dade County resident becomes incapacitated, their guardian may reside in the same county, in another county in Florida such as Palm Beach County, or even in another state.

Often after someone is appointed guardian they will have questions about their responsibilities and compensation. Florida Statute Section 744.108 specifically addresses the issue of fees for guardians. The statute allows for a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward. The court will take into account different factors including the time and labor required, the difficulty of the questions involved, the fee customarily charged in the area for similar services, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the guardian. The court will also consider the nature and length of the relationship with the incapacitated person, the experience, reputation, diligence, and the abilities of the person performing the service. Therefore it is highly important for a guardian to keep accurate records of costs associated with the guardianship responsibilities.
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Trustee Duties

November 15, 2011 | by Bart Chepenik

A trustee has many important duties. They have obligations to beneficiaries and to the trust. Their duties may be altered by the trust, by the creator of the trust or even by the beneficiaries. A trustee should be chosen carefully to ensure they can fulfill the purposes of the trust. According to the Florida Statutes section 736.0801, the trustee has the duty to administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the laws of Florida. A settlor (trust creator) may choose anyone they wish to serve as trustee. It could be a family member trustee located locally in Miami, Ft. Lauderdale, or West Palm Beach. A trustee could also be a corporate trustee located within Miami-Dade County, Broward County or somewhere else.

The trustee also has a duty of loyalty, required by the Florida Statutes section 736.0802. The trustee has to administer the trust solely in the interests of the beneficiaries. A conflict between the trustee’s fiduciary obligation to the beneficiary and the trustee’s own personal interests may make a transaction voidable by a beneficiary affected by a transaction. Some transactions which presume a conflict between a beneficiary and trustee involves situations when the transaction is entered into by the trustee with the trustee’s spouse, the trustee’s children, siblings, or parents.

For example, if a trustee sells $500,000 worth of trust assets to her husband at a lower price of $400,000 there is a potential for a conflict between the obligations the trustee owes to the beneficiary and the trustee’s own personal interests. The beneficiary has remedies available. However, if the transaction may have been authorized by the terms of the trust; approved by the court; or if the beneficiary does not commence a judicial proceeding in time, the beneficiary may loose the relief available to her. It is important that a beneficiary of a trust contact an attorney in this situation to see what relief is available to them. Even a transaction not concerning trust property may involve a conflict between personal and fiduciary interests if the transaction concerns an opportunity that properly belonging to the trust.
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Who Needs a Durable Power of Attorney?

November 10, 2011 | by Bart Chepenik

What if an accident or illness made it impossible to manage your financial affairs? Would your loved ones have to go to the Dade County or Broward County courthouse to get the authority to handle your affairs? No one likes to consider such grim possibilities, but the truth is that almost every family will eventually face this kind of difficulty. Durable powers of attorney can certainly make life easier for you and your family if times get tough.

Living Wills in Florida

October 24, 2011 | by Bart Chepenik

The living will is an important estate planning tool. Because this form of “will” is used while an individual is still alive (but no longer able to make decisions) it is dubbed the “living will.” The purpose of a living will is to allow you to make decisions about life support and directs others to implement your desires in that regard. Doctors in all parts of Florida, including Miami-Dade County and Broward County are familiar with these documents. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. A living will can be very specific or very general. More specific living wills may include information regarding an individual’s desire for such services such as pain relief, antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation. Living wills may need regular updating to ensure that the correct course of action can be chosen.

Living wills are needed because advances in medicine allow doctors to prolong and sustain life although the person will not recover from a persistent vegetative state. Some people would not desire to remain in that state while others would. The living will allows you to make the decision of whether life-prolonging medical or surgical procedures are to be continued, or withheld or withdrawn, as well as when artificial feeding and fluids are to be used or withheld. It allows you to express your wishes prior to being incapacitated. Your physicians or health care providers are directed by the living will to follow your instructions. You may change the living will prior to becoming incapacitated.
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What is the proper venue for probate proceedings?

August 24, 2011 | by ktlaw4

Various types of lawsuits have different requirements for venues. A venue deals with the locality of the lawsuit or where the lawsuit will be filed or commenced. Typically, the venue is a county or district and is chosen based on the subject matter of the case or the where the defendant resides. For instance, if there is a cause of action for a slip and fall occurring in Fort Lauderdale, Broward County, Florida will be the venue of the lawsuit.

In matters of probate administration, Florida Statute 733.101 lays out the possibilities for venues. It states that the venue shall be (a) in the county in this state where the decedent was domiciled. “Domicile” is defined in Florida Statute 731.201(13) as “a person’s usual place of dwelling and [domicile] shall be synonymous with residence.” Florida Statute 733.101 also gives two options if the decedent was not domiciled in Florida: a probate administration may commence in any county where the decedent’s property is located or if they have no property in Florida then in the county where any debtor of the decedent resides.

A short example can help explain these three paragraphs. James, John, and Chris were driving in a car on I-95 and get in a wreck. All three of them unfortunately pass away. James was a resident of Miami-Dade County and his domicile was there. John permanently lived in Georgia but had an apartment he rented out in Broward County as an investment. Chris lived in Michigan but bought and financed his Porsche through a dealership whose business operates through headquarters in Palm Beach County. James’ last will and testament will be admitted in Miami-Dade County since his domicile was in that county. John’s last will and testament will be admitted in Broward County if need be. Chris’ last will and testament will be admitted in Palm Beach County if need be.

Non-judicial Settlement Agreements for Trust Disputes in Florida

July 13, 2011 | by Bradley H. Trushin

No matter how good a person’s intention may have been in creating a trust, as with any matter involving money and property, disputes often occur. Beneficiaries in Fort Lauderdale may contest the actions of the Trustee located in Miami. As with other legal disputes, it is often desirable to resolve a dispute over a trust without dealing with the time, expense, and burdens of the court system. This is why Florida Statute section 736.0111 permits people to enter into non-judicial settlement agreements. A non-judicial settlement agreement allows people to resolve a dispute themselves, without the court, and then enter into a contract that lays out whatever agreement was reached. Then, if a future dispute arises about the trust, a court can step in and enforce the terms of the non-judicial settlement agreement.

Non-judicial settlement agreements can be used to resolve a wide variety of issues that often cause problems when dealing with a trust. For example, non-judicial settlement agreements can be used to resolve disputes over (1) how the wording of a trust should be interpreted, (2) a trustee’s report or accounting of the money or property in the trust, (3) whether to direct a trustee to take or not to take a certain action, (4) granting power to a trustee to take certain actions, (5) appointing or removing a trustee, and (6) determining a trustee’s compensation.

There are some things people should be aware of before entering into a non-judicial settlement agreement. Settlement agreements can only be valid if the terms of the agreement could have been approved by a court if the dispute had actually been filed in court. Also, a non-judicial settlement agreement will not be valid if it causes a result that is prohibited by the Florida Trust Code. For example, an agreement cannot modify or terminate a trust in a way or manner prohibited by the Trust Code. Because the Florida Trust Code is complex and because there is often a lot of money and/or valuable property at stake in a dispute over a trust, it is important that someone with experience helps negotiate and write a non-judicial settlement agreement or there is a risk that a settlement agreement will not be valid. If a settlement agreement is not valid, it will have absolutely no effect on a trust and the individuals affected by the trust. In other words, an invalid non-judicial settlement agreement is not worth the paper it is printed on.

Charitable Trusts in Florida

July 8, 2011 | by ktlaw4

In addition to utilizing a trust to provide for your family, you can also create a trust to benefit a charitable organization. To qualify as a charitable trust, the benefiting party must be a charity pursuant to section 501(c)(3) of the Internal Revenue Code. Naturally, such entity must operate solely for religious, educational, and other charitable purposes whereby zero net earnings of the entity benefit any private shareholder or individual. Because donations to charitable organizations are tax deductible, a charitable trust serves as an easy way to provide for a charitable cause and achieve tax benefits.

Florida law, as emulated in section 736.1210 of the Florida Probate Code, encourages the use of charitable trusts and works to preserve the intent of any individual that seeks to provide for a charitable beneficiary through a trust. This intent of the Florida legislature is carried out further by section 736.0405 of the Florida Probate Code, which states that if the trust itself does not name a specific charity as a beneficiary, a court may select a charitable purpose or beneficiary. Of course, the court must consider the settlor’s intent wherever applicable when determining which charity will benefit under the trust.

Instead of creating a trust solely for the benefit of a charitable organization, many individuals name charities as beneficiaries to the remainder of the trust’s assets after the interests of other beneficiaries have terminated. For example, a trust may provide for one’s children, during their lifetimes, with the residuary of the trust going to a charity upon the passing of the children. This form of a trust is considered a split interest trust, in that it serves a purpose in addition to providing for a charitable purpose. Trusts can also be created to benefit one or more private foundations as well.

Rules of Construction for Trusts and Impact of Florida Law

June 23, 2011 | by Bradley H. Trushin

In Florida, the intent of a settlor (the person who creates a trust) proves extremely important with respect to the handling of the trust’s assets. Florida Probate Code section 736.1101 states that “[t]he intent of the settlor as expressed in the terms of the trust controls the legal effect of the dispositions made in the trust.” Thus, according to Florida law, it is the intent “as expressed in the terms of the trust” that is the benchmark to follow. This can become an issue should any disputes arise regarding the rights of trust beneficiaries after the settlor has passed. Because the distribution of trust assets will follow the express terms of the trust itself, it is very important that the settlor clearly convey his or her intentions to the attorney who drafts the instrument. After all, once the settlor passes away, he or she can no longer amend the terms of the trust to more readily convey his or her intentions.

While the terms of a trust typically prevail over any requirement stated in the Florida Probate Code, there are a few exceptions whereby Florida law controls the construction of a trust. For instance, Florida Probate Code section 736.0105 requires that all trustees act “in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.” Thus, any power that purports to allow a trustee to act in any manner, regardless of whether it is in good faith or not, will be disregarded. Moreover, section 736.0105 also states that a trust cannot have a purpose that is unlawful or contrary to public policy. The requirement for a trust to be in accordance with public policy supports section 736.1104 of the Code, which states that a beneficiary who intentionally kills the settlor of the trust is not entitled to any trust interest if said beneficiary is convicted of murder under a court of law.

The Florida Probate Code will also govern a trust’s provisions in lieu of the settlor’s intent in the event of the settlor’s divorce. Section 736.1104 of the Code states that, unless the trust provides otherwise, any provision of a revocable trust that affects the settlor’s spouse becomes void should the spouses divorce. Clearly, this section of the Code demonstrates another way in which Florida law will step in and modify the terms of the Trust. As a matter of public policy, these situations are reasonable and likely have the effect of carrying out the settlor’s intent once he or she has passed.

Duties of a Personal Representative in Florida

June 17, 2011 | by Bradley H. Trushin

The appointed personal representative of a Florida resident’s estate, i.e. the individual placed in charge of distributing the assets of the estate, must abide by certain fiduciary duties that he or she owes to the beneficiaries (the individuals named to receive assets) of the estate. Suppose you are named a beneficiary of your recently deceased grandfather’s estate whose domiciliary was in Miami Beach. Under Florida law, the personal representative must abide by certain duties to ensure that you receive the assets that the estate leaves in your name. Florida Probate Code section 733.602 states that a personal representative has a duty “to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will…as expeditiously and efficiently as is consistent with the best interests of the estate.”

A personal representative necessarily enjoys broad powers to administer an estate of a decedent. Pursuant to Florida Probate Code section 733.608, the personal representative holds all of the “real and personal property of the decedent, except the protected homestead” and “the rents, income, issues, and profits” from any such property. The personal representative then uses these assets to pay specific devises (set amounts of gifts or money), the family allowance, any elective share, estate taxes, and other expenses incurred during the administration of the estate. Additionally, the personal representative distributes any assets to named beneficiaries of the will in accordance with the will’s terms.

Thus, a personal representative must take actions necessary, but in accordance with the law, to effectively administer a decedent’s estate. However, if you are a beneficiary of an estate and feel that the personal representative is not acting in the estate’s best interests, you may have some recourse. Under Florida Probate Code section 733.504, a personal representative may be removed for various reasons. The reasons provided for under the Code include, but are not limited to, the following: (1) a court determination that the personal representative is incapacitated, (2) physical or mental incapacity that renders the person unable to carry out his or her duties, (3) wasting or maladministration of the estate, (4) conviction of a felony, and (5) having conflicting or adverse interests against the estate that will interfere with its administration. Therefore, it is important for you, as an entitled beneficiary, to make sure that the personal representative is not in breach of any of his or her duties owed to you or any other beneficiary under the will.