Florida law sets forth strict deadlines to file lawsuits against Trustees or Personal Representatives for Breach. There are short deadlines to Objection to Annual Accountings. There are extremely short deadlines to contest the validity of a Will or Trust. If you miss the deadlines to file the lawsuit, you will be forever barred. Thus, it is critical to contact to Horton Law Group, P.A. to meet with a qualified member of our team.
Trust Contest Statute of Limitations Statute
- The time as provided in chapter 95; or
- Six months after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.
Filing Deadline for a Will Contest
- Florida law provides a very strict filing deadline for will challenges (generally 90 days after the notice of administration has been filed). Florida Statute §733.212 outlines the process and deadlines for the filing of objections to a will, stating:
“Any interested person on whom a copy of the notice of administration is served must object to the validity of the will, the qualifications of the personal representative, the venue, or the jurisdiction of the court by filing a petition or other pleading requesting relief in accordance with the Florida Probate Rules on or before the date that is three months after the date of service of a copy of the notice of administration on the objecting person, or those objections are forever barred.”
- The deadline for contesting a Will can be further limited depending on the type of notice you are served with. The deadline may be as little as 20 days from receipt of notice. Thus, it is imperative that you contact the Horton Law Group, P.A. immediately if you are considering filing a Will Contest
Filing Deadline to Object to a Trust Accounting
- Objections to a final trust accounting may be filed by any interested party who has not filed a waiver or consent, and, to be considered by the court, any such objections must be filed with the court and served on the original fiduciary within 60 days after a copy of the final trust accounting and notice of the filing of the final trust accounting have been sent to such interested person.
Filing Deadline to Object to a Probate Accounting
Pursuant to the Florida Rules of Probate Procedure, Rule 5.401 an interested person has 30 days to object to a Final Accounting and Petition for Discharge within thirty (30) days after service of the documents.
Will and Trust Contest Litigation
Irrevocable Trusts can be contested as to their validity. For a trust to be valid, the settlor must have the capacity to create the trust and must have the intent to do so. Florida Statute 736.0402. As well, the trust’s purpose must be lawful, consistent with public policy and possible to achieve. Florida Statute 736.0404. Also, like a Will contest, a trust can be challenged under the notion that it was created under fraud, duress, mistake or undue influence. Any portion of the Will or Trust found by a court to be procured by fraud, duress, mistake or undue influence will be deemed Void under the Law.
Trust Modification Actions
Under the Florida Trust Code, a Trust can be modified in various circumstances.
Florida Statute 736.04113 allows a trust to be modified when not inconsistent with the settlor’s intent. However, this is only allowed where the purposes of the trust have been fulfilled or have become illegal, impossible, wasteful, or impracticable to fulfill; circumstances not anticipated by the settlor, compliance with the terms of the trust would defeat or substantially impair the accomplishment of a material purpose of the trust; or a material purpose of the trust no longer exists. But under this statute, the court has the power to amend or change the terms of the trust or prohibit the trustee from performing acts.
Florida Statute 736.04115 allows judicial modification where such modification is in the best interest of the beneficiaries. Under this statute, a trust can be modified in similar ways to 736.04113, discussed above. Under this statute, it is the best interest of the beneficiaries that is the controlling criteria for modification. Consequently, it is possible for 736.04115 to be used to modify a trust in a manner that is inconsistent with the settlor’s intent.
It is also possible to modify a trust by nonjudicial means. Under Florida Statute 736.0412, a qualifying trust may be modified in any of the ways described previously upon the unanimous agreement of the trustee and all qualified beneficiaries. However, 736.0410(2) allows any beneficiary to commence a judicial proceeding to have a court review a proposed nonjudicial modification.
There are other methods of modifying and terminating a trust. For instance, uneconomic trusts (those with under $50,000 in assets of where the cost of administration cannot justify the continuance of the trust) can be modified or terminated under Florida Statute 736.0414. As well, 716.0416 allows modification to achieve a settler’s tax objectives. As well, under the common law and statutes of Florida, a trust can be reformed for any mistakes (i.e. a scrivener’s error). 736.0415; In re Estate of Robinson, 720 So. 2d 540 (Fla. 4th DCA 1998). But the above mentioned means of modification constitute the most commonly used methods of trust reformation.
Breach of Fiduciary Duty Litigation
A person designated as a Trustee of the Trust owes a fiduciary duty to all of the beneficiaries. A Persona Representative of an Estate owes a fiduciary duty to all of the beneficiaries. An Executor of the Will owes a fiduciary duty to all of the beneficiaries.
A breach of fiduciary duty occurs when the fiduciary (the trustee or personal representative or executor) acts in an unreasonable way.
Examples of Breach include:
- Embezzlement of estate funds
- Comingling estate funds with their own
- Self-Dealing
- Excessive Fees
- Failure to account for estate assets
- Failure to invest estate assets
- Failure to keep the beneficiaries informed
- Treating one beneficiary differently, or worse, then the others
- Failure to make timely distributions
- Failure to administer the trust
- Failure to pay the decedent’s debts of which result in a lawsuit against the estate
- Breach of contract
- Fraud
- Theft
- Engaging in exploitation of an elder or disabled person
Breach of fiduciary duty cases are usually filed by a beneficiary to seek damages for the fiduciary to make the estate whole again. In addition, removal proceedings, are usually initiated against the fiduciary to have them removed from serving as the fiduciary of the estate. If the court finds the fiduciaries breaches of fiduciary duty resulted in a financial gain to that fiduciary by improper means, the court can “surcharge” the fiduciary, or make that person pay the estate back by using her or her own personal funds to do so.
Removal Proceedings
Fiduciaries can generally be removed by the beneficiaries if they fail to fulfill those duties adequately. Florida Statute 733.504 provides a list of causes to remove a personal representative.
These reasons include:
- Adjudication that the personal representative is incapacitated
- Physical or mental incapacity rendering the personal representative incapable of the discharge of his/her duties
- Failure to comply with any order of the court, unless the order has been superseded on appeal
- Failure to account for the sale of property or to produce and exhibit the assets of the estate when so required
- Wasting or maladministration of the estate
- Failure to give bond or security for any purpose
- Conviction of a felony
- Insolvency of, or the appointment of a receiver or liquidator, for any corporate personal representative
- Holding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. This cause of removal shall not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or exemptions, as provided elsewhere in this code
- Revocation of the probate of the decedent’s will that authorized or designated the appointment of the personal representative
- Removal of domicile in Florida, if domicile was a requirement of initial appointment
- The personal representative was qualified to act at the time of appointment but is not now entitled to appointment
The list above applies to personal representative of an estate. The list for removal of a Trustee is similar in nature.
Power of Attorney Fraud Litigation
A power of attorney is a document that allows you to give someone else the power to make legal and financial decisions on your behalf. There are three types of power of attorney. First, there is the plain old power of attorney. This type of document is effective upon you singing it. It terminates upon incapacity. The second type is a durable power of attorney that becomes effective upon you singing it but it remains in effective even after you become incapacitated. The third is the springing power of attorney that only becomes effective when and if the principal becomes incapacitated. Florida does not recognize springing power of attorney. Thus, once you sign your power of attorney, it becomes effective immediately.
This should cause alarm. With a power of attorney document, your agent is able to make unfettered legal and financial decisions on your behalf. Under Florida law, the relationship between you and your agent is a fiduciary relationship. This means that your agent owes you certain duties. Under Florida Statute 709.2114, an agent owes the following duties to the principal:
- The agent may not act contrary to the principal’s reasonable expectations
- The agent must act in good faith
- The agent may not act contrary to the principal’s best interests
- The agent must attempt to preserve the principal’s estate plan, to the extent actually known to the agent
- The agent may not delegate authority to a third-party
- The agent must keep record of all receipts, disbursement, and transactions made on behalf of the principal
- The agent must create and maintain an accurate inventory each time the agent accesses the principal’s safe-deposit box
- The agent shall act loyally for the sole benefit of the principal
- The agent shall act so as not to create a conflict of interest
- The agent shall act with care, competence, and diligence
- The agent shall cooperate with a person who has authority to make health care decisions for the principal
Should an agent violate any of these duties, under 709.2117, the agent is personally liable to the principal or the principals successor in interest to (1) restore the value of the principal’s property to what it would have been had the violation not occurred and (2) reimburse the principal or the principal’s successors in interest for the attorney’s fees and costs paid from the principal’s funds on the agent’s behalf in defense of the agent’s actions.
Who is a principal’s “successor in interest”? Any beneficiary of the principal’s estate can pursue litigation against a power of attorney for breach of fiduciary duty if that agent caused damaged to the principle’s estate of which you are a beneficiary of.
If you feel that you or someone you love has been a victim or an agent’s breach of fiduciary duty. Which usually comes in the form of self-dealing, excessive fees, failure to invest, fraud or mismanagement of assets, please call the Horton Law Group, P.A. today for a free 30-minute consultation.
Exploitation of an Elderly or Disabled Person Litigation
Florida has powerful laws to protect the elderly and the disabled from exploitation and abuse. In fact, Florida has two laws that create a cause of action against individuals who financially exploit or hurt our loved ones. Not only is exploitation of the elderly or disabled a crime in Florida, but there are also civil remedies available to those who are injured.
Florida Statute 415.1111 and Florida Statute 825.103 are known as the Exploitation of the Elderly or Disabled Adults Protection Laws.
Florida Chapter 825, Statute 825.2013 provides criminal penalties for those who financially exploit or harm Florida’s elderly persons or disabled persons. Florida Statute 825.2013 provides in pertinent part:
(1) “Exploitation of an elderly person or disabled adult” means:
(a) Knowingly obtaining or using, or endeavoring to obtain or use, an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who:
- Stands in a position of trust and confidence with the elderly person or disabled adult; or
- Has a business relationship with the elderly person or disabled adult;
(b) Obtaining or using, endeavoring to obtain or use, or conspiring with another to obtain or use an elderly person’s or disabled adult’s funds, assets, or property with the intent to temporarily or permanently deprive the elderly person or disabled adult of the use, benefit, or possession of the funds, assets, or property, or to benefit someone other than the elderly person or disabled adult, by a person who knows or reasonably should know that the elderly person or disabled adult lacks the capacity to consent;
(c) Breach of a fiduciary duty to an elderly person or disabled adult by the person’s guardian, trustee who is an individual, or agent under a power of attorney which results in an unauthorized appropriation, sale, or transfer of property. An unauthorized appropriation under this paragraph occurs when the elderly person or disabled adult does not receive the reasonably equivalent financial value in goods or services, or when the fiduciary violates any of these duties:
- For agents appointed under a power of attorney under chapter 709:
- Committing fraud in obtaining their appointments;
- Abusing their powers;
- Wasting, embezzling, or intentionally mismanaging the assets of the principal or beneficiary; or
- Acting contrary to the principal’s sole benefit or best interest; or
- Committing fraud in obtaining their appointments;
- For guardians and trustees who are individuals and who are appointed under chapter 736 or chapter 744:
- Committing fraud in obtaining their appointments;
- Abusing their powers; or
- Wasting, embezzling, or intentionally mismanaging the assets of the ward or beneficiary of the trust;
(d) Misappropriating, misusing, or transferring without authorization money belonging to an elderly person or disabled adult from an account in which the elderly person or disabled adult placed the funds, owned the funds, and was the sole contributor or payee of the funds before the misappropriation, misuse, or unauthorized transfer. This paragraph only applies to the following types of accounts:
- Personal accounts;
- Joint accounts created with the intent that only the elderly person or disabled adult enjoys all rights, interests, and claims to moneys deposited into such account; or
- Convenience accounts created in accordance with s. 655.80; or
(e) Intentionally or negligently failing to effectively use an elderly person’s or disabled adult’s income and assets for the necessities required for that person’s support and maintenance, by a caregiver or a person who stands in a position of trust and confidence with the elderly person or disabled adult.
(2) Any inter vivos transfer of money or property valued in excess of $10,000 at the time of the transfer, whether in a single transaction or multiple transactions, by a person aged 65 or older to a nonrelative whom the transferor knew for fewer than 2 years before the first transfer and for which the transferor did not receive the reasonably equivalent financial value in goods or services creates a permissive presumption that the transfer was the result of exploitation.
(a) This subsection applies regardless of whether the transfer or transfers are denoted by the parties as a gift or loan, except that it does not apply to a valid loan evidenced in writing that includes definite repayment dates. However, if repayment of any such loan is in default, in whole or in part, for more than 65 days, the presumption of this subsection applies.
(b) This subsection does not apply to:
- Persons who are in the business of making loans.
- Bonafide charitable donations to nonprofit organizations that qualify for tax exempt status under the Internal Revenue Code.
(c) In a criminal case to which this subsection applies, if the trial is by jury, jurors shall be instructed that they may, but are not required to, draw an inference of exploitation upon proof beyond a reasonable doubt of the facts listed in this subsection. The presumption of this subsection imposes no burden of proof on the defendant.
(3)(a) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $50,000 or more, the offender commits a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(b) If the funds, assets, or property involved in the exploitation of the elderly person or disabled adult is valued at $10,000 or more, but less than $50,000, the offender commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) If the funds, assets, or property involved in the exploitation of an elderly person or disabled adult is valued at less than $10,000, the offender commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(4) If a person is charged with financial exploitation of an elderly person or disabled adult that involves the taking of or loss of property valued at more than $5,000 and property belonging to a victim is seized from the defendant pursuant to a search warrant, the court shall hold an evidentiary hearing and determine, by a preponderance of the evidence, whether the defendant unlawfully obtained the victim’s property. If the court finds that the property was unlawfully obtained, the court may order it returned to the victim for restitution purposes before trial on the charge. This determination is inadmissible in evidence at trial on the charge and does not give rise to any inference that the defendant has committed an offense under this section.
In addition to the criminal statutes for exploitation of the elderly and disabled, there is a sister statute to provides victims, in the form of damages.
Florida Statute 415.111 provides in pertinent part:
A vulnerable adult who has been abused, neglected, or exploited as specified in this chapter has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.
Who can file a lawsuit under 415.1111?
Litigation under Florida Statute 415.111 can be pursued by may by:
- the vulnerable adult
- the vulnerable adult’s guardian
- by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian
- by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation.
Should you prevail, the court can award you actual damages and punitive damages for any deprivation of or infringement on the rights of a vulnerable adult under Florida Statute 415.1111. In addition, the statute provides for the recovery of your emotional distress damages and attorney fees in certain cases. Also, it should be noted, that under Florida Statute 772.11, which is known as the civil theft statute, provides the civil remedy under Florida Statute 825.03. Damages under the civil theft statute are three times the amount of damages you suffered as a result of the exploitation.
How do I know if someone I love is being exploited or abused?
Here is a list of some classic signs that may mean you or someone you love is a victim of abuse or exploitation.
- A financial agent (an agent for power of attorney, trustee, guardian, caregiver or some other third party) is taking large amounts of money from your account. Of which the money cannot be accounted for.
- Monies are being transferred excessively from one account to another, so it is impossible to trace
- Assets are being commingled
- The financial agent is paying himself or herself excessive fees or reimbursing himself or herself for expensive travel costs or reimbursements.
- There are missing checks, or forged checks
- The credit card bills are becoming abnormally high
- There is a change in title on your bank accounts or title to your real property or designation of beneficiary accounts.
If you or someone you know believe you are a victim of financial exploitation, please call the Horton Law Group, P.A. immediately to schedule your free 30-minute consultation.
Fraudulent Transfer of Assets
A fraudulent transfer occurs when a person fraudulently tries to convey debt to conceal it from creditors. Chapter 726 of Florida Statutes defines what a fraudulent transfer is, what the creditor remedies are, and goes over the exact procedure under the statutes that a creditor must follow to unwind a fraudulent transfer. The intent of the debtor to defraud a creditor is a crucial element for the court to determine. If it is determined that the funds were moved without malicious intent or for a reasonable reason, it will have deemed to have been done not fraudulently.
Florida law gives creditors specific remedies for fraudulent debt transfers. However, a debtor’s liability to a creditor does not increase because the debtor made a fraudulent transfer. A creditor may not recover its attorney’s fees for pursuing a fraudulent transfer remedy. Generally, the statute of limitations for a fraudulent conveyance in Florida is four years. When the creditor is the government, the statutes is six years. And the Internal Revenue Service has ten years from the tax assessment date to contest a taxpayer’s asset transfers.
Courts have held that a fraudulent transfer to avoid creditors’ claims is not criminal fraud and, as such, there is no criminal liability. A debtor will not face jailtime or criminal charges. However, a myriad of civil remedies is available to you if you have bene harmed by a fraudulent transfer.
A good attorney uses the law as a tool to maneuver through the legal process delivering you the best outcome possible. The attorneys at the Horton Law Group have years of experience. We know the details that can make a difference. We believe in our clients and fight to get the best possible outcome.
Why Hire the Horton Law Group, P.A?
The principal partner at the Horton Law Group, P.A., Attorney Sommer C. Horton, has been litigating estate cases for 20 years. She is an experienced and aggressive estate litigator. She is highly regarded for her creativeness, strategic judgment and her uncanny ability to deliver persuasive legal arguments in the courtroom. She has a tremendous skill for being an aggressive advocate for her clients, while being one who understands and appreciates how trying litigation can be, thus, she is extremely sensitive to her clients’ needs.
Ms. Horton is passionate about the law and believes in seeking justice for her clients in an ethical and economic manner. Ms. Horton fights for each and every one of her clients – every step of the way. Ms. Horton will spend time with you to make sure you understand the law, understand your rights and she will draft your estate plans for you so that you and your family are protected. In addition, she can assist you with your business planning, estate planning and asset protection needs too.
The Horton Law Group, P.A. is a boutique civil litigation law firm that only takes on a limited number of cases so that personal attention can be given to every client. Make the right call – schedule a free 30-minute consultation with Ms. Horton. You can make an appointment by calling 561-299-0018 or emailing [email protected].
