Wills and probate

Lost or Destroyed Will? It can be contested in probate court.

Lost or Destroyed Willwill cannot dispose of any of the decedent’s property until it is admitted to probate.

Lost or destroyed will? In order for a will to be admitted to probate, it must be executed in accordance with the formalities required by Florida law. The testator must sign his will at the end in the presence of two attesting witnesses. The attesting witnesses must sign in the presence of each other and in the presence of the testator. If the testator attaches a self-proof of will, the will may be admitted to probate without further proof. Without a self-proof of will, an oath of one of the attesting witnesses may be required before the will is admitted to probate.

Lost or Destroyed WillUpon the testator’s death, if a will, executed by the testator and kept in their possession, cannot be found, there is a presumption, absent other evidence, that it was destroyed with the intention of revoking it. However, this presumption may be overcome and the will may be admitted to probate if an interested person is able to establish the full and precise terms of the lost or destroyed will. The content of the lost or destroyed will be proven with a correct copy of the will and the testimony of one disinterested witness. Without a correct copy, the content may be established through the testimony of two disinterested witnesses.

TO SCHEDULE AN APPOINTMENT WITH JAY FLEECE:  

PHONE: 727-471-5868   JFLEECE@LEGACYPROTECTIONLAWYERS.COM  

Probate and Trust Administration Challenges

Attorney Jay Fleece handles all aspects of probate and trust administration – and litigation.

Trust AdministrationTrust administration is that process whereby assets and cash which were funded into a revocable or irrevocable trust during the decedent’s lifetime or “poured into the trust after his or her passing”, are marshaled/gathered and made ready for distribution to the beneficiaries named in the trust. Trust administration also requires the filing of a notice of trust with the probate court and is the process whereby creditors are paid, and after all state and federal tax returns are filed and all creditors and other administrative expenses are paid, the trustee makes a final distribution of the trust assets and cash. The process is similar to Florida probate administration, but there is no circuit judge supervising the administration, nor is a fiduciary bond usually posted, and many times it can be accomplished more efficiently, and thereby cheaper and faster, than a full probate administration. The key is to have an honest trustee, otherwise, litigation may ensue.

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.

St. Petersburg Lawyer Jay Fleece deals with litigationSt. Petersburg attorney Jay Fleece handles cases from the pre-suit stages, including mediation, all the way through trial, both jury and non-jury, and even at the appellate level, if necessary. The main focus of the firm in dealing with all controversies is the client. 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.

To schedule an appointment with Jay Fleece:  

Phone: 727-471-5868   jfleece@legacyprotectionlawyers.com 

Trust estate litigation

Trust estate litigation: breach of fiduciary duty

Many of the same contested issues in a probate estate also exist in trust estate litigation matters.

Trust estate litigationThe 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 trust estate litigation, and the trustee is held liable.

Duty to Account: A trustee has broad discretion in dealing with trust property, subject to the duty of loyalty, a duty of impartiality and the other fiduciary duties imposed on the trustee. The trustee operates with very little oversight by anyone over the trust’s assets. The trustee is not Trust estate litigation and the trustee's responsibilityunder court supervision unless the court’s jurisdiction is invoked and is only accountable to the beneficiaries of the trust. Practically the only time a beneficiary can review what the trustee has done and have an opportunity to challenge those actions is when the trustee provides an accounting to the beneficiary, if not it is the grounds for trust estate litigation.

As the equitable owner of the trust property, the beneficiary has a vested interest in the management and administration of the trust and has an enforceable right to an accounting from a trustee. Furthermore, because the trustee has a fiduciary obligation to the beneficiary, the beneficiary must be accurately informed as to what the trust property consists and how it is being managed. The beneficiary must be accurately informed about the administration of the trust in order to hold the trustee to the proper standard of care and honesty and to enforce his [the beneficiary’s] rights in the trust.

Trust estate litigation accountingA trustee has a duty to maintain clear, complete and accurate books and records regarding the trust administration and at reasonable intervals must provide beneficiaries with reports or accounting. It is important for the trustee to keep accurate records so that the beneficiary can tell whether the trustee has acted with prudence, loyalty, and impartiality and whether the costs of administration have been reasonable and appropriate.

To schedule an appointment with Jay Fleece:  

Phone: 727-471-5868   jfleece@legacyprotectionlawyers.com  

Attorney Jay Fleece Is Featured in 24th Edition of Best Lawyers in America©

Jay Fleece lawyer

Joseph W. “Jay” Fleece, III

St. Petersburg lawyer, Jay Fleece, a partner with Legacy Protection Lawyers, was selected by his peers for inclusion in Best Lawyers in America 2018 in the field of Trusts and Estates Litigation. Best Litigation Lawyer Tampa Bay areaBest Lawyers® is based on an exhaustive peer-review evaluation. This year, 7.4 million votes were analyzed, resulting in the inclusion of more than 58,000 lawyers in the 24th edition. Lawyers are not required nor allowed to pay a fee to be listed. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

To schedule an appointment with a Jay Fleece, call (727) 471-5868, and click here for more information about Legacy Protection Lawyers.

Best Lawyers: “Recognition by Best Lawyers is based entirely on peer review. Our methodology is designed to capture, as accurately as possible, the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area.

Best Lawyers employs a sophisticated, conscientious, rational, and transparent survey process designed to elicit meaningful and substantive evaluations of the quality of legal services. Our belief has always been that the quality of a peer review survey is directly related to the quality of the voters.”