Contested Guardianship, Probate, Trusts, and Fiduciary Litigation

BaskinFleece is a trusts and estates law firm centrally located in Pinellas County, just minutes from the courthouses in St. Petersburg, Clearwater and Tampa. The firm primarily deals with controversies involving estates, trusts, wills and guardianships in Tampa, St. Petersburg and Clearwater. BaskinFleece routinely deals with estate planning and litigation matters, including issues concerning the validity of wills and trusts, breach of fiduciary duty, lack of capacity, spousal rights, creditors’ rights and anything related to wills, trusts and guardianships.

BaskinFleece – Areas of Litigation:

Probate LitigationProbate and Estates Probate litigation encompasses all forms of contested matters arising in a probate matter. Some of the contested issues in Florida probate law resulting in litigation, include the validity of the decedent’s last will and testament; construing the terms of an ambiguous will; spousal share election under the elective share statute; pretermitted spouse and child issues; excessive fiduciary or attorneys’ fees; creditor claims; breach of fiduciary duty by the personal representative; improper accountings; recovery of estate assets and a plethora of other potential issues involving wills and trusts.

Trust LitigationTrusts – Many of the same contested issues in a probate estate also exist in trust matters. The main difference is that an independent civil action needs to be filed in order to invoke the jurisdiction of the court and have summonses issued to the Defendants. As Florida trust administration is not court supervised, it is up to the beneficiaries, rather than the probate judge, to make sure the trustee is discharging his duties in accordance with the trust terms and with the law. For the most part the only way a beneficiary can review what the trustee has done is through the annual accounting which the trustee must provide each qualified beneficiary every year. If the accounting is not provided, the trustee has breached his fiduciary duty to keep beneficiaries informed, which could result in litigation. There are many other fiduciary duties imposed upon a trustee which, if violated, subject the trustee to removal, surcharge or other remedies imposed by the courts. Our lawyers have handled a variety of wills and trust litigation in the courts of Tampa, St. Petersburg, Clearwater and throughout Florida.

Fiduciary Litigation in ClearwaterFiduciary – Fiduciary litigation usually involves actions with trustees, personal representatives and agents holding a power of attorney for a principal. A fiduciary is a position of trust held to the highest standard of care. A fiduciary has many duties including the duty of loyalty and a duty of impartiality in the administration of wills. A fiduciary is prohibited from putting his own personal interest ahead of the person to whom he owes a duty. Fiduciary litigation in Florida can also arise in many other contexts including business relationships, partnership relationships and any other manner in which a fiduciary relationship is established.

Guardianship LitigationContested Guardianship – BaskinFleece handles all aspects of contested guardianship litigation in Clearwater, St. Petersburg, Tampa, Pinellas County and throughout the state of Florida. Contested guardianships are those which involve either the establishment of a guardianship or situations where the alleged incapacitated person may not in fact be incapacitated, or reasonable alternatives to a guardianship exist. Litigation; many cases are filed to prevent the exploitation or further exploitation of an individual, often a loved one, by someone who has taken over the financial, medical and social affairs of an individual who is incapacitated and unable to resist the undue influence of others. The Order Determining Incapacity may result in the loss of substantial Civil Rights, including the right to vote; to determine one’s own medical treatment; to handle one’s own financial affairs; to make a will, change a will, gift or disposition of property; to determine one’s own residence; and to travel unsupervised, to name but a few. The filing of a guardianship, while unfortunate, is often the only means to stop the financial exploitation and wrest control away from the exploiter, who can be a stranger, but may also be a neighbor, caregiver, friend, or even a family member.

In all matters, the client is and remains the firm’s main focus. Aspects of litigation such as cost, emotional impact and timeliness are all important to the client, and the firm strives for an end result which leaves the client feeling that justice was accomplished in an efficient and effective manner. For help or answers to litigation related questions, you can contact BaskinFleece at 727.572.4545.

How Is a Personal Representative Compensated?

Randall D. Baskin

Attorney Randall D. Baskin

Pursuant to Florida Statute § 733.617, a personal representative is entitled to a commission payable from the estate assets, without order of the Court, as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate assets and the income earned by the estate during administration. A commission computed on the compensable value of the estate is presumed to be reasonable compensation for a personal representative in formal administration as follows:

1) At a rate of 3 percent for the first $1 million;

2) At a rate of 2.5 percent for all above $1 million and not exceeding $5 million;

3) At the rate of 2 percent for all above $5 million and not exceeding $10 million;

4) At the rate of 1.5 percent for all above $10 million.

Tampa lawyersIn addition to the previously described commission, a personal representative shall be allowed further compensation as is reasonable for any extraordinary services performed.

For additional information, please contact BaskinFleece at 727.572.4545

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

What Does a Personal Representative Do?

Personal Representative

A personal representative is a fiduciary appointed by the judge to be in charge of the administration of a decedent’s estate. In Florida, the term “personal representative” is used instead of such terms as executor, executrix, administrator and administratrix. A personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will, if any, and the Florida Probate Code, as expeditiously and efficiently as is consistent with the best interests of the estate.

More specifically, a personal representative must:

  • Identify, gather, value and safeguard the decedent’s probate assets;
  • Publish a “Notice to Creditors” in a local newspaper in order to give notice to potential claimants to file any claims against the estate in the manner required by law;
  • Serve a “Notice of Administration” to provide information about the probate estate administration and notice of the procedures required to be followed by those having any objection to the administration of the decedent’s probate estate;
  • Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify these creditors of the time by which their claims must be filed;
  • Object to improper claims, and defend suits brought on such claims;
  • Pay valid claims;
  • File tax returns and pay any taxes properly due;
  • Employ professionals to assist in the administration of the probate estate, for example, attorneys, certified public accountants, appraisers and investment advisers;
  • Pay expenses of administering the probate estate;
  • Pay statutory amounts to the decedent’s surviving spouse or family;
  • Distribute probate assets to beneficiaries;
  • Close the probate estate.
Randall D. Baskin

Attorney Randall D. Baskin

A personal representative is authorized to hire an attorney to assist with the administration of the estate and is not required to use their own funds for any costs associated the administration of the decedent’s estate.

For additional information, please contact BaskinFleece at 727.572.4545.

 

This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

Digital Assets Part 1: Estates – Who’s in Control and the Consequences

In Part 1 of Digital Assets I cover who’s in control of digital assets such as Facebook, online photos, Pay Pal, iTunes and how to be protected. The short video below discusses complying with the Florida Fiduciary Access to Digital Assets Act (FFADAA) to avoid liability issues – and what the Personal Representative, Power of Attorney, Trustee and Guardian can and can’t do.

This new digital act applies to estate planning documents created before and after July 1, 2016, even if digital assets were not referenced in the estate planning.

 

When does a trust terminate and the assets distributed to the beneficiaries?

BaskinFleece lawyer Jay Fleece

By Attorney Jay Fleece

In Florida, a common estate planning scenario is for someone to create a revocable trust, sometimes referred to as a “Living Trust” and place all or most of his or her assets into the trust. The Settlor, the one setting up the trust, is typically named the initial trustee and deals with the trust property in the same fashion as if the assets were still owned by and in the name of the Settlor, with the absolute right to amend or revoke the trust and without having to account to any beneficiary.

Upon the death of the Settlor, everything changes. As the Settlor can no longer amend the trust, it becomes “irrevocable” at which time the beneficiaries named in the trust become established or vested.

Living TrustMany of these “Living Trusts” are set up to provide that upon the death of the Settlor the trust terminates and distribution is made of the trust assets to the named beneficiaries, similar to a will, but without court supervision.

Before anything can be done with the assets in a Living Trust which terminates after the death of the Settlor, a successor trustee must assume the trusteeship of the trust. Typically, the Settlor has identified and nominated someone – someone highly trusted – to be the successor trustee to take over the trust upon the Settlor’s death. Many times, a Trust Company is named as the successor trustee. The nominated successor trustee should immediately engage an attorney to guide him or her through administering a trust.

Trustee has 60 days

The Florida Trust Code then requires that a successor trustee, within 60 days after finding out that a formerly revocable trust has become irrevocable (which usually means within 60 days of the Settlor’s death), to give notice to the beneficiaries of the trust’s existence, the identity of the Settlor or Settlors, the right to request a copy of the trust instrument and the right to accountings under that section of the Code.[i]

Once the successor trustee is in place to discharge the duties as trustee, are the assets then immediately distributed to the beneficiaries named in the trust? The answer is usually no even though the successor trustee is under a fiduciary duty to make distribution when the trust terminates.

Trustee an TrustThe termination date of a trust means the time at which it becomes the duty of the trustee to wind up administration of the trust. “The period for winding up the trust refers to the period after the termination date and before trust administration ends by complete distribution of the trust estate”.[ii]

Following a trust’s termination date, the trustee has a duty within a reasonable time to distribute the trust property to the persons entitled to it, and to make preliminary distributions as appropriate within the windup period.[iii]  The Florida Trust Code provides that the successor trustee shall proceed expeditiously to distribute the trust property to the persons entitled to the property, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.[iv]  The Code also provides that on termination of the trust, the successor trustee continues to possess the powers appropriate to wind up the administration of the trust and distribute the trust property to the persons entitled to the property, subject to the right of the trustee to retain a reasonable reserve for the payment of debts, expenses, and taxes.[v]  Many practioners refer to this period between the Settlor’s death and final distribution as the “windup” period, or the “windup” trust.

The common law is clear that a successor trustee’s powers and duties do not end on the trust’s termination but continues for a reasonable amount of time to wind up the administration of the trust prior to making distribution in a manner consistent with the purposes of the trust and the interests of the beneficiaries.[vi]

Living trust wind up periodWhat is a reasonable amount of time to wind-up the administration of a trust and make distribution? This question has no clear answer as each case is different depending on the assets held in the trust, whether those assets are easily valued and distributable and determining and satisfying any trust obligations including any tax liabilities. Each trust would be judged by the facts unique to its administration. There should be a legitimate reason for the trustee to have a long “windup” period, other than wanting to collect additional fees and remain in control of the trust assets. On the trust’s termination, the assets belong to the beneficiaries only subject to the “windup” period.

As part of the wind-up process, the successor trustee should provide a final accounting which should include a plan of distribution for any undistributed assets shown on the final accounting.[vii] The successor trustee cannot be held liable for not making distributions before the expiration of the six-month limitation period within which beneficiaries can challenge the final accounting, provided the beneficiary receives a limitations notice with the final accounting. The beneficiaries can always waive the six-month period by approving the accounting and releasing the successor trustee from liability as providing a final accounting is the only mechanism available to the trustee to determine and limit liability. As an alternative, the trustee may request judicial approval of the accounting but this procedure would invariably take longer than six months and be an unnecessary expense to the trust.

When these “Living Trusts” terminate upon the Settlor’s death, a successor trustee whoTrust in Tampa and St. Petersburg fails to distribute assets and bring the trust administration to a conclusion in a timely fashion after the death of the Settlor has committed a breach of fiduciary duty and can be held accountable.[viii]

The breach of the fiduciary duty to timely make distribution is usually not done in isolation but typically involves other breaches committed by the successor trustee, including failing to provide an annual accounting and either mismanaging the trust assets or using those assets for his or her own benefit.


[i] Fla. Stat. §736.0813(1)(b).
[ii] 89 Restatement of The Law on Trusts 3d, comment b.
[iii] 89 Restatement of The Law on Trusts 3d, comment (e).
[iv] Fla. Stat. §736.0817
[v] Fla. Stat. §736.0816(25)
[vi] Restatement of the Law Third, Trusts §89; Bogert’s The Law of Trusts and Trustees §1010.
[vii] Fla. Stat. §736.08135(2)(f)
[viii] DeBello v. Buckman, 916 So.2d 882 (Fla. 4DCA 2005)


This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

Probate Ensures the Decedent’s Estate Debts Are Paid

probate oversees the paying of estate debtsOne of the primary purposes of probate is to ensure that the decedent’s estate debts are paid in an orderly fashion. The personal representative must use diligent efforts to give actual notice of the probate proceeding to “known or reasonably ascertainable” creditors. This gives the creditors an opportunity to file claims in the Lawyer for estate planningdecedent’s probate estate, if any. Creditors who receive notice of the probate administration generally have three months to file a claim with the clerk of the circuit court. The personal representative, or any other interested persons, may file an objection to the statement of claim. If an objection is filed, the creditor must file a separate independent lawsuit to pursue the claim. A claimant who files a claim in the probate proceeding must be treated fairly as a person interested in the probate estate until the claim has been paid, or until the claim is determined to be invalid.

The legitimate debts of the decedent, specifically including proper claims, taxes, and expenses of the administration of the decedent’s probate estate, must be paid before making distributions from the will to the decedent’s beneficiaries.

Paying creditors of a will before distributing fundsThe court will require the personal representative to file a report to advise of any claims filed in the probate estate, and will not permit the probate estate to be closed unless those claims have been paid or otherwise disposed of.

For help or answers to estate-related questions, you can contact BaskinFleece at 727.572.4545.

 
This blog is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.

How the Personal Representative and Others are Compensated

The personal representative, the attorney, and other professionals whose services may be required in administering the probate estate (such as appraisers and accountants), are entitled by law to reasonable compensation.

estate law and personal representative

Estate expenses: The personal representative’s compensation is usually determined in one of these five ways:

1. as set forth in the will; 

2. as set forth in a contract between the personal representative and the decedent;

3. as agreed among the personal representative and the persons who will bear the impact of the personal representative’s compensation;

4. the amount presumed to be reasonable as calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or 

 

5. as determined by the judge.

The fee for the attorney for the personal representative is usually determined in one of three ways: 1. as agreed among the attorney, the personal representative, and the persons who bear the impact of the fee; 2. the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to by any of the beneficiaries; or 3. as determined by the judge.

For help with a will, estate planning and personal representative related questions, you can contact BaskinFleece at 727.572.4545.

Some of the content of this information is courtesy of The Florida Bar and represents general legal advice. Because the law is continually changing, some provisions in this blog may be out of date. It is always best to consult an attorney about your legal rights and responsibilities in your particular case.