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Trust & Probate Litigation

The Mavrick Law Firm represents clients in guardianship, trust, probate, breach of fiduciary duty and related litigation.

How Fiduciary Duty Cases Are Handled

Under Florida law, a fiduciary duty can exist when a person places trust or confidence in another as to a transaction or financial matter. Trustees, guardians, and personal representatives of estates are fiduciaries. They must subordinate their interests to the persons they represent. They are held to the highest legal and ethical behavior. Failure to abide by their fiduciary duties can lead to personal financial liability in court.

Beneficiaries, heirs, and wards can sue for breach of fiduciary duties in various factual contexts. Self-dealing is a classic example of breach of fiduciary duty. When the trustee, personal representative, or guardian engages in transactions that benefits him or her personally or his or her family or friends, it will raise red flags as to breach of fiduciary duty. Excessive compensation paid by the personal representative, trustee, or guardian is a breach of fiduciary duty. Theft or other misappropriation or dissipation of assets entrusted to the trustee, personal representative, or guardian also will establish breach of a fiduciary duty. Improper investment decisions also can establish breach of a fiduciary duty by a guardian, trustee, or personal representative.

The Mavrick Law Firm listens carefully to the client to determine what is needed to properly represent the client. The Mavrick Law Firm reviews the critical case documents such as the will, trust, or advance care directives. It is critical for the attorney to carefully review the relevant documents in a timely manner. Under Florida law, the fiduciary must establish that his or her actions complied with the will, trust, or related document and the legal duties under Florida law. Fiduciaries will argue that various defenses insulate them from liability. The Mavrick Law Firm evaluates various defenses that fiduciaries can raise. Those defenses include equitable defenses and defenses arising from the wording of the relevant legal documents. It is also very important for clients to timely assert their legal rights. Statutes of limitations or the wording of trust documents can bar otherwise valid claims. For example, the wording of trust documents can bar otherwise actionable claims against trustees for their improper behavior unless the beneficiary objects within a predetermined accounting period. It is critical that beneficiaries get legal advice so they can timely assert their legal rights. In addition, trust documents sometimes impose limits on the trustee’s liability for improper acts that were not intentional.

How Guardianship Litigation Is Handled

A guardianship is a legal proceeding in which a court appoints a guardian to exercise legal rights and powers of an incapacitated person, also known as a ward. Courts appoint guardians to act on behalf of a ward or a ward’s property, or both. Generally, a guardian has the power to exercise those rights that have been removed from the ward.

A “plenary guardian” has the authority to exercise all delegable rights and powers of the ward. A plenary guardian will generally be appointed after the court has found that the ward lacks the capacity to perform all of the tasks necessary to care for his or her person or property. Guardians for minors, for example, usually exercise the powers of a plenary guardian. In contrast, “limited guardians” exercise only those legal rights and powers specifically designate by a court’s order. A limited guardian will be appointed after the court has found that the ward lacks the capacity to do some, but not all, of the tasks necessary to care for his or her person or property, or after the person has voluntarily petitioned for appointment of limited guardianship.

Florida law permits a guardian, with court approval, to (1) create or amend revocable trusts or create irrevocable trusts of property of the ward’s estate, which may extend beyond the disability or life of the ward in connection with estate, gift, income, or other tax planning or in connection with estate planning; (2) make gifts of the ward’s property to family members for estate and income tax purposes; (3) disclaim a devise or gift that the ward would otherwise receive; and (4) enter contracts in the ward’s best interest.

Because of the expense and intrusion of a formal guardian, courts will only appoint a guardian when no other lesser intrusion on the privacy of the ward will accomplish the purpose of protecting the ward’s interests. Courts also must reserve to the ward the right to make decisions in all matters commensurate with the ward’s ability to do so. However, Florida law sometimes requires the appointment of a guardian. If, for example, a minor inherits or receives a gift worth more than $15,000, the court must appoint a legal guardian.

Guardians have extensive power over the ward or the ward’s assets. Because of this, claims involving a guardian overreaching his or her power to act on behalf of the ward can sometimes arise. For example, while a guardian may create revocable and irrevocable trusts of the ward’s property with court approval, the guardian may not do so if the result would change the ultimate beneficiaries of the ward’s estate. A ward can also sue a guardian for breach of fiduciary duties.

Probate Litigation

The Mavrick Law Firm is equipped to handle all aspects of probate litigation and provides vigorous and efficient advocacy for our clients.

Probate is the process by which a person’s estate is administered after death. Probate litigation occurs when disputes regarding the decedent’s estate are formalized in adversarial legal proceedings. Probate litigation generally arises when someone contests some aspect of the decedent’s will or the distribution of the decedent’s assets. Other aspects of probate litigation include removal of guardians or personal representatives, a surviving spouse’s claim of an elective share, and disputes about asset ownership.

Generally, to challenge the validity of a will or to bring a claim against the decedent’s estate, an interested person has either 3 months from the date that he or she received a notice of administration from the personal representative of the decedent’s estate or 30 days after service of a notice to creditors. If, however, the interested person receives formal notice of the probate before the will has been admitted to probate, the time to file a challenge to the will is reduced to 20 days from service of formal notice.

A will is ineffective until it has been admitted to probate. The validity of a will, however, can be contested on various grounds including lack of capacity of the person who made the will, undue influence, duress, or the will’s failure to comply with formalities required under Florida law. A will can be contested in whole or in part. For example, if the will has a provision precluding a beneficiary from contesting the will, that provision is unenforceable under Florida law. The whole will, however, is not thereby rendered invalid. Probate litigation can also involve disputes over the meaning of the will’s terms particularly when some term in the will is vague.

When a person dies without leaving a will, his or her assets will be distributed by intestate succession in accordance with Florida law. The intestate distribution of the decedent’s property depends on many factors including whether the decedent is survived by a spouse or lineal descendants.

Trust & Probate articles:

  • Dependent Relative Revocation: The Doctrine of Reviving Revoked Wills
  • Using a Will to Forgive Debt
  • Spendthrift Trusts and Discretionary Trusts: Protecting Trust Assets from Creditors
  • Properly Drafting a Will: True Intent vs. Intent Stated in the Will
  • Florida Court Holds that the Renunciation Rule Does Not Apply to Self-Settled Trusts
  • Properly Drafting a Will to Devise Trust Assets
  • Recent Developments Regarding Holographic Wills Under Florida Law