Trust Estates and Guardianship Litigator
No matter how thoroughly a person prepares their Estate Plan, the truism that families fight is most true when the family is dealing with an incapacitating condition of a family member or the death of a family member. During these times, the participants in such disputes are not limited to family members, but can include a group of persons called an Interested Person.
An Interested Person is defined to include a broad spectrum of interests which may provide someone with rights in an Estate. These include, but are not limited to include, Heir’s at Law a/k/a Intestate Beneficiary’s, a Beneficiary under a Prior or Former Last Will and Testament or a Personal Representative under a Prior or Former Last Will and Testament. Persons with whom the Testator/Testatrix had entered into a contract regarding the disposition of their property, including the Beneficiaries under an agreement to make a mutual Last Will and Testament may be an Interested Person with rights in an Estate.
When there are disputes during these times, it often results in Court proceedings which can involve Probate (Estate) Litigation, Trust Litigation, and Incapacity/Guardianship Litigation. The cause of the dispute may be genuine, imagined, created for purposes of financial gain, or created for the sole purpose of inflicting pain on another family member.
Whatever the cause, representation by an Attorney with experience in this particular area of the law should be considered when there is a contest over a Last Will and Testament, a contest over a Trust, or a contest over an Incapacity Proceeding or Guardianship of a family member or the Alleged Incapacitated Person themselves.
The Attorney’s at the law offices of David Howard Goldberg, P.L. have over 37 years of experience representing the interests of all types of claims in or to an Estate, Trust, Incapacity Proceeding, or Guardianship in the Trial and Appellate Courts of Florida. They are keenly aware of both the legal and personal issues which can be anticipated when family members are unable to co-exist amicably or when a third person interjects themselves into the proceedings. As a law firm with experience with drafting Estate Planning Documents and the Administration of Guardianships, Trusts, and Estates; the Attorneys at the law offices of David Howard Goldberg, P.L. are able to understand an issue from more than a dispute view toward the problem. They are able to see a solution and understand the procedural, tax, and drafting issues related to solving legal disputes whether at trial or by settlement.
In lawsuits related to Estates, we have represented the interests of Beneficiaries, Personal Representatives, Curators, Ad Litem’s or other Court Appointed Administrators, Creditors or Claimants in or against an Estate, and other Interested Persons.
In lawsuits related to Trusts, we have represented the interests of the Settlor, Beneficiaries, and Trustees.
In lawsuits related to Incapacity Proceedings or Guardianships, we have represented the interests of persons seeking a declaration of Incapacity for another and have also defended the Alleged Incapacitated Person against claims seeking an adjudication of Incapacity. We have represented Temporary, Limited and Plenary Guardians or other Court Appointed Administrators, Creditors or Claimants in or against a Guardianship, and other Interested Persons both for claims made against others in their capacity as Guardian and alleging wrongdoing by the Guardian.
Will Contests
Having a valid Last Will and Testament ensures that the maker’s (Testator or Testatrix) wishes regarding who will receive their assets and in what amounts upon their passing are memorialized in an enforceable manner.
However, family members or other Interested Persons may challenge the validity of a Last Will and Testament based upon various claims, including but not limited to, the Last Will and Testament was not executed properly, the Last Will and Testament was the result of Undue Influence, the Testator or Testatrix suffered from a Lack of Testamentary Capacity at the time the Will was signed, or the Testator or Testatrix suffered from an Insane Delusion at the time the Will was signed.
A claim that the Last Will and Testament was not executed properly is based on an allegation that the Execution (signing) of the Last Will and Testament was not conducted in accordance with the strict formalities which must be followed during the Execution and witnessing of the document.
A claim that the Last Will and Testament was the result of the exercise of Undue Influence is based on an allegation that the contents of the entire Last Will and Testament, or merely part of the Last Will and Testament were the result of another person’s Fraud, Duress, or Undue Influence. This is based on allegations that include the Testator/Testatrix made decisions which were reflected in the Last Will and Testament as a consequence of their reliance on a third party’s knowingly false representations of material facts.
Further claims may be based on an allegation that the Last Will and Testament when it was signed was not the voluntary act of the Testator/Testatrix’s own mind or free will. Instead, it is alleged that the Last Will and Testament was the result of another person, who was in a confidential relationship with the maker and who received a substantial benefit under the Last Will and Testament, imposing their wishes on the Testator/Testatrix by controlling the mind of the maker through persuasion, pressure or other outside influence.
A claim that the maker of the Last Will and Testament did not have Testamentary Capacity at the time the Last Will and Testament was executed, is based on an allegation that at the time the Last Will and Testament was executed, the Testator/Testatrix did not possess the ability to understand generally the nature and extent of their property, their relationship to those who would be the natural objects of their bounty or property, and the practical effect of the Last Will and Testament.
A claim that the Last Will and Testament makes distributions or does not make distributions to persons as the consequence of the Testator/Testatrix suffering from an Insane Delusion is based on an allegation that the Last Will and Testament or any part of it was the result of the Testator/Testatrix suffering from a condition of the mind that caused the Testator/Testatrix to reach a mistaken conclusion, which has no basis in fact despite substantial evidence to the contrary being available to them and having been rejected.
The consequences of a successful challenge to all or part of a Last Will and Testament, include the possibility that the division of Estate assets may be determined by the Intestacy law.
Failure to have made provision for various claims of a spouse, such as a spouse’s Elective Share, can result in a claim being filed against the Estate which can result in litigation.
Challenges in a probate proceeding are not limited challenges to the validity of the Last Will and Testament. Without a Last Will and Testament, the decisions regarding who will be appointed Personal Representative will be decided in most part by the preference rules governing the priority of appointment of a Personal Representative in an Intestate Estate. If unfriendly family members or family members who would not be the appropriate person to appoint have equal priority with those family members the Decedent would have wanted to name, litigation can be the result regarding issues of the qualification of persons claiming equal priority and preference in appointment.
Beneficiaries, Creditors, and other Interested Persons may file an action challenging the propriety of the appointment of the Personal Representative named in the Will or their qualifications to serve in that fiduciary position.
Another possible action against the Personal Representative which may pursued is for Breach of Fiduciary Duty. Such an action can be brought for the failure of the Personal Representative to perform their fiduciary duties, for the unintentional improper performance of any fiduciary duty owed by the Personal Representative to a Beneficiary Creditor, or other Interested Persons, and for the intentional improper performance of any fiduciary duty owed by the Personal Representative to a Beneficiary Creditor, or other Interested Persons are also possible.
Creditors can file claims with the Estate which may result in a legal action against the Estate if the claim is objected to by the Personal Representative.
In Florida, very special laws exist for the benefit of a homeowner’s heirs. These laws are called “Homestead Laws” and involve highly complex constitutional, statutory, and case law issues which are apart and separate from the Homestead property tax issue. These benefits can be and often are lost due to improper planning. When a dispute arises over the Homestead, as a law firm with experience with both drafting Estate Planning Documents, the Administration of Guardianships, Trusts, and Estates, and Trial and Appellate experience, the Attorneys at the law offices of David Howard Goldberg, P.L. have planned for complex issues regarding the Homestead property and litigated issues regarding disputes relating to the Decedent’s Homestead property in both the Trial and Appellate Courts. We are able to understand the issue from more than a dispute view toward the problem. We are able to see a solution and understand the procedural, tax, and drafting issues related to solving legal disputes whether at trial or by settlement.
In both Testate or Intestate probate proceedings, Court intervention can be required during the marshalling of the Decedent’s assets regarding various issues, for example, disputes over the ownership of property or statutorily provided exemptions and rights to property such as the Homestead. During the determinization of the Decedent’s debts, issues regarding Claims filed in the Estate can result in litigation separate from the actual Estate Administration. Disputes as to a Petition To Determine Beneficiaries and the actual interests of each person is often the subject of litigation.
Trust Contests
Another commonly used Estate Planning method is to establish a Trust. A Settlor is the person who creates the Trust. A Trust is a document that creates a legal entity (Trust) which is managed by a person called a Trustee for the benefit of the Beneficiaries who are the person(s) for whom the assets of the Trust are to be used.
Family members or other Interested Persons may challenge the validity of a Trust, based upon various claims including, but not limited to: The Trust was not executed properly, the Trust was the result of Undue Influence, or the Settlor did not have Capacity to Create a Trust at the time the Trust was signed.
A claim that the Trust was not executed correctly is based on an allegation that the signing of the document failed to conform with the strict rules governing the procedures regarding the Execution (signing) of the Trust and the witnessing of the document.
A claim that the Trust was the result of the exercise of Undue Influence is based on an allegation that the contents of the entire Trust or merely part of the Trust were the result of another person’s Fraud, Duress, or Undue Influence. This is based on allegations that include false representations of material facts, known to be false by the maker of the representations, which are relied on by the maker of the Trust, and as a result someone suffered damages.
Further claims may be based on an allegation that the Trust was not the result of the Settlor’s own mind or free will. Instead, it is alleged that the Trust when it was signed was not the voluntary act of the Settlor, but was the result of another person who was in a confidential relationship with the Settlor imposing their wishes on the Settlor by controlling the mind of the Settlor through persuasion, pressure or other outside influence. Finally, it is alleged that person who was in a confidential relationship with the Settlor received a substantial benefit under the Trust.
A claim that the Settlor of the Trust did not have Capacity to Create a Trust at the time the Trust was executed is based on an allegation that at the time the Trust was executed the Settlor did not possess capacity to execute a Trust.
Challenges to a Trust are not limited to the validity of the document.
Beneficiaries and other Interested Persons may file an action against the Trustee for Breach of Fiduciary Duty. Such an action can be brought for the failure of the Trustee to perform their fiduciary duties, for the improper performance without intent of any fiduciary duty owed by the Trustee to a Beneficiary, and for the improper performance with intent of any fiduciary duty owed by the Trustee to a Beneficiary.
Guardianship Issues
Modern medicine has prolonged our chronological lifetimes, and as a result, concerns arise relating to long-term issues relating to medical decisions in addition to the management and preservation of assets to provide during these years.
A Guardianship is a Court-created and overseen, continuing proceeding wherein a person (Guardian) is appointed, after a determination that another person is Incapacitated due to infirmity, to manage their person/and or property. The incapacitated individual, after being so determined by a Court, is called the Ward (person from whom the Court removes rights to manage their person and property).
The Courts of Florida upon the petition of an Interested Person may appoint a Guardian for a person who, because of cognitive (mental) or physical deterioration or catastrophe due to accident or injury, can no longer manage their daily physical needs or manage their assets.
If a concerned person believes that another adult is incapacitated and in need of Guardianship, they may file a Petition To Determine Incapacity with the appropriate Court to commence proceedings in which the Court will, subject to legal standards, determine the capacity of that person. A copy of this Petition To Determine Incapacity will be given to the potential Ward, court appointed or private legal counsel for the potential Ward, and next of kin of the potential Ward. Within five days of this Petition To Determine Incapacity being filed, the Court must appoint an Examining Committee. An Examining Committee is a panel of three experts who are appointed by the Court, and the Examining Committee is responsible for examining the Alleged Incapacitated Person and filing a report of their findings. This report will make a recommendation of whether the person should be determined partially, fully, or not incapacitated. In order to place an adult under Guardianship, an incapacity hearing must be held.
In an incapacity hearing the potential Ward, is represented by his or her own legal counsel, and any Interested Person can offer evidence of the Ward’s capacity or incapacity. The Court will then determine whether to declare the person Incapacitated.
Once an adult has been declared Incapacitated, then a Guardianship proceeding will take place to determine who should be appointed as the Guardian or if Less Restrictive Alternatives to Guardianship have been previously prepared through proper Estate Planning. An Interested Person may apply to be appointed Guardian and should be represented by an attorney during the Guardianship proceedings.
A Guardian may be appointed over the person only, the person’s property only, or both. The Guardian, once appointed, is responsible for the Ward’s well-being. In the case of property, the Guardian has a fiduciary duty to the Ward, and thus must file annual accounting of financial transactions and acquire permission from the court to access the Ward’s money.
Initatiting Guardianship Proceedings.
Guardianship proceedings in Miami can be a simple or complex proceeding depending on whether there is family disharmony or whether the Alleged Incapacitated Person chooses to contest the allegations in the Petition To Determine Incapacity.
If a Guardianship is established, the costs of the attorney representing the Petitioner for Incapacity and the Ward may be paid from the Ward’s assets.