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Florida Probate, Trust and Estate Blog

Surviving Spouse Rights in Florida

Florida law grants surviving spouses a number of important rights and benefits.  It is imperative that a surviving spouse retain counsel with significant experience in the Florida probate process.

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Florida Attorney for Emergency Temporary Guardian Owes Duty of Care to Temporary Ward

Even though under Florida law there is no lawyer-client relationship between an alleged incapacitated person (AIP) who is a temporary ward and the lawyer for the emergency temporary guardian (ETG), the lawyer for the emergency temporary guardian owes the temporary ward a duty of care and can be sued for malpractice.  

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Duty of Emergency Temporary Guardian (ETG) in Florida to File a Lawsuit

When can an Emergency Temporary Guardian (ETG) file a lawsuit?  When does the statute of limitations start to run in a guardianship?   In the recent decision of Barrier v. JFK Medical Center Ltd. P’ship, No. 4d13-3041 (Fla. 3d DCA June 17, 2015), the temporary nature of emergency temporary guardian appointment does not impose a legal duty on the emergency temporary guardian to protect the ward’s interest in a medical malpractice action.  The emergency temporary guardianship must enumerate all powers even where the emergency temporary guardian is given plenary power.

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Abuse of Discretion to Award Attorneys’ Fees in Guardianship Action Absent A Finding of Bad Faith Conduct

A Court has the inherent authority to award attorneys’ fees and costs as a sanction against a litigant.  However, a court that chooses to do so must make an express finding of bad faith conduct.

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Florida Remedies for Joint Account Theft

A growing area of inheritance litigation is sibling feuds over bank accounts jointly titled in the names of a decedent's children.  In a common fact pattern, one sibling absconds with the account after the parent's death and refuses to share the account with the other joint account owners. Fortunately, Florida law provides a remedy to the joint account holders who are victimized by this conduct.   

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Governor Signs Florida Guardianship Overhaul Bill Into Law (HB 5)

Florida Governor Rick Scott today signed into law a bill (HB 5) which significantly changes Florida guardianship law.  The Act explicitly amends the text of seventeen Florida Statutes and creates two new statutes altogether. 

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Power of Attorney Not Authorized for Self Dealing

A power of attorney is a legal document is a legal document delegating authority from one person to another.  Recently, the Supreme Court of South Dakota provided yet another example of how important the language contained within this document truly is. Studt v. Black Hills Federal Credit Union, 2015 SD 33.  While a power of attorney has many uses and legal effects, certain powers, if desired, must be expressly spelled-out.

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2015 Amendments to Florida Probate Code and Florida Trust Code

The Florida Probate Code and the Florida Trust Code govern the administration of estates and trusts under Florida law.  These codes establish the mechanisms and procedures for the collection and subsequent distribution of assets to the beneficiaries of wills and trusts.  The legislature recently amended the Probate Code and the Trust Code concerning the following areas: attorney fees and costs; personal representatives; and the notice of administration.

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Trust Can Be Reformed to Add Beneficiaries

Can a trust be reformed to add beneficiaries where the trust as originally drafted fails to include any beneficiaries?  According to a recent Florida trust case, yes, the trust can be reformed to add a residual beneficiary clause. 

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Waiver and Consent in Estate and Probate Administration

Probate—the process by which an estate is administered—is fraught with obscure and complex rules which must be followed in a precise manner in order to ultimately distribute assets to the intended beneficiaries.

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