A Florida power of attorney grants an agent the legal authority to take certain actions on behalf of a principal. This creates a fiduciary relationship. So even where a power of attorney grants broad authority, the agent must still adhere to certain basic legal and ethical standards. For example, the agent cannot use their position to enrich themselves through self-dealing–i.e., transferring the principal’s assets to themselves. Criminal Charges Over Alleged Abuse of Dementia Patient An agent acting under a Florida power of attorney is a fiduciary who must act in the sole interest of the princ ..read more

One of the cardinal rules of wills in Florida is that they must be in writing. Florida probate courts will not recognize or admit an oral will. Not only must a valid will be in writing, it must also be personally signed by the testator (or someone signing at the testator’s direction) in the presence of at least two witnesses. But what about trusts? It turns out that it is possible to create a valid oral or non-written trust. Florida Statutes 735.0407 expressly recognizes such trusts. The statute provides that with certain exceptions, “a trust need not be evidenced by a trust instrument but the ..read more

The process of administering a Florida probate estate begins with the filing of a petition with the circuit court for the judicial circuit where the decedent–the person who died–resided at the time of their death. In most cases, the petitioner is the person who is either nominated to serve as personal representative of the decedent’s estate in their will, or if there is no will, the person entitled to serve as administrator of the estate under Florida’s intestacy laws. But what if that person does not file a petition in a timely manner? Could another family member–or even a creditor of the dec ..read more

An oft-cited benefit of creating a revocable trust is the “privacy” it affords over a traditional will. The reasoning goes something like this: When a will is filed for probate in Florida, it becomes a matter of public record. Indeed, the probate proceeding itself is public, so anyone can learn the contents of the will. A trust, in contrast, does not need to be filed with the probate court and therefore may remain private. But are trusts really private? In most cases, they are for all intent and purposes. There are, however, some important caveats to keep in mind. Real Estate Transactions Revo ..read more

There are many ways for a person to transfer their property upon death without probate. Two of the more common methods used in Florida estate planning are revocable trusts and enhanced life estate deeds. And while these two methods share some characteristics, they are in fact different legal procedures with their own respective benefits and drawbacks. “Lady Bird” Deeds Enhanced life estate deeds–commonly referred to as “Lady Bird” deeds–is a non-probate method of transferring real estate. A life estate grants someone, usually the property owner, the right to continue living on the premises unt ..read more

One of the more common points of confusion when it comes to administering a deceased person’s property is the legal distinction between probate and non-probate assets. Generally speaking, a probate asset is one that passes according to the terms of the deceased owner’s last will and testament; or they had no will, then as provided by Florida’s intestacy (inheritance) laws. Non-probate assets, in contrast, typically transfer to a new owner upon the original owner’s death without passing through their estate. For example, if you have a bank account that is titled “payable on death” to your daugh ..read more

If you are married at the time of your death, your spouse has certain inheritance rights under Florida law. Specifically, Section 733.201 of the Florida Statutes grants the surviving spouse “the right to a share of the elective estate of the decedent.” There is often confusion surrounding the elective share, however, and how it is and is not applied in a given probate case. Without offering any specific legal advice, here are some common questions we get about Florida’s elective share rules. Who is allowed to claim an elective share? Only a surviving spouse can claim an elective share. It does ..read more

The Florida Constitution provides broad protections for a person’s primary residence or “homestead.” This protection takes a number of forms. One of them is actually a restriction on the devise of the homestead property. Basically, if the owner is survived by a spouse or a minor child, they cannot leave the homestead property to someone else in their will. If there is no surviving spouse or minor child, however, the owner is free to dispose of the property as they wish. Florida Courts Reject Disinherited Son’s Attempt to Insert Himself in Probate of Father’s Estate The Florida Third District C ..read more

Estate and trust litigation is generally quite complex. These are highly specialized areas of Florida law. So it makes sense that if you become involved in such litigation, you would want to work with a qualified attorney. The last thing you want to do is represent yourself. While you can act pro se in a legal matter, doing so rarely goes well for the person who acts as their own attorney. Among other things, non-attorneys are often unaware of the various legal requirements to even have a case decided by a particular court. Federal Judge Dismisses “Apparent Attempt” to Challenge Florida Probat ..read more

It is fairly common for people creating a revocable trust to name a family member as their successor trustee. This can lead to some confusion over the successor trustee’s role, particularly if they are also a beneficiary of the trust. In some cases, the trustee may confuse their rights as a beneficiary with their responsibilities as the trustee, which in turn can lead to allegations of breach of fiduciary duty. Daughter Charged for Living Rent-Free in Home Owned by Mother’s Trust Consider this recent Florida trust case, Kersey v. Abraham. The parties in this case are a brother and sister. The ..read more