Probate, Estate, Trust and Guardianship Litigation

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The Merriman Law Firm, P.L.L.C.
9200 Estero Park Commons Blvd, Ste 4
Estero, Florida 33928

Telephone: 239.390.1133
Facsimile: 239.390.1140
E-Mail: reception@merriman-law.com

The Perspective

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The Validity of Testamentary Instruments

Probate, Estate and Trust Litigation comes in various shapes and sizes.  Initially, litigation may ensure as to the validity of a testamentary instrument, including a last will and testament, a revocable living trust, a beneficiary designation form on a life insurance policy, retirement account, or payable on death bank account.  Litigation may also ensure as to the validity of a signature card at of a bank or brokerage account.

When the validity of a testamentary instrument is the subject of litigation, the issues typically involve questions of the capacity of the testator (the person who created the will) or the settlor (the person who created or funded the trust), whether subject will or trust instrument was the product of undue influence exerted by a person the testator or settlor, or whether the instrument was the result of fraud, duress, or coercion upon the testator or settlor.

At The Merriman Law Firm, P.L.L.C., we have experience prosecuting and defending will contests and trusts contests and litigating issues related to the validity of beneficiary designation forms and signature cards.  Robin D. Merriman II, J.D., LL.M., B.C.S., has litigated issues involving testamentary capacity, undue influence, fraud, duress, and coercion.

Breaches of Fiduciary Duty By Personal Representatives, Trustees, Guardians and Attorneys-In-Fact

At times, the validity of the testamentary instruments may not be in dispute, but the management of the estate or trust may be the subject of litigation.  Proceedings to remove or surcharge a personal representative of an estate or trustee of a trust for a purported breach of fiduciary duty are commonly brought where a beneficiary has significant concern with the management of the subject estate or trust.  Proceedings can be brought against attorneys-in-fact (agents under a durable power of attorney) for breaches of fiduciary duties regarding transactions that occurred prior to the death of the decedent.  In guardianship proceedings, interested persons may bring actions to remove and surcharge a guardian for a purported breach of fiduciary duty.  Robin D. Merriman II, J.D., LL.M., B.C.S. has experience prosecuting and defending each of these types of litigation cases.

Rights of the Surviving Spouse and Marital Agreements

In Florida, surviving spouses of deceased individuals have various rights, which may include, but are not limited to, homestead rights, elective share rights, pretermitted spouse rights, the right to serve as personal representative of a spouse’s intestate estate, the right to an intestate share of an intestate estate, the right to a family allowance, and the right to exempt property.  Litigation regarding the rights of a surviving spouse typically develops where a surviving spouse is alleged to have executed a prenuptial or postnuptial agreement waiving his or her rights to some or all rights of a surviving spouse under Florida law.  Robin D. Merriman II, J.D., has experience litigating various issues relating the rights of a surviving spouse, the validity of a marriage, and the validity of prenuptial and postnuptial agreements.

Incapacity and Guardianship Litigation

Guardianship and incapacity proceedings operate simultaneously with one another, with the appointment of a guardian being dependent upon the findings of the court in the incapacity proceeding.  In proceedings to determine incapacity, the court determines whether, and to what extent, an alleged incapacited person lacks capacity regarding their “property” and their “person.”  If the alleged incapacited person has some level of incapacity, the court will evaluate whether the alleged incapacitated person has advanced directives in place, such that a guardianship is not necessary.  If so, no guardian is appointed.  If not, the court will consider the expressed wishes of the ward (or the ward’s family, if the ward is unable to express such wishes) and the qualifications of the proposed guardian and will appoint a guardian commensurate with the incapacities previously found by the court.

Litigation ensues in guardianship and incapacity proceedings in various situations.  The capacity of the alleged incapacitated person may be disputed.  The validity or sufficiency of advanced directives may also be an issue in dispute.  Interested persons may also dispute the person who they believe should be appointed as the guardian of the “ward.”  Finally, as noted above, interested persons may also seek to remove and surcharge a guardian where that guardian has purportedly breached a fiduciary duty or is otherwise not carrying out his or her duties as guardian in accordance with Florida law.  In each of these situations, Robin D. Merriman II, J.D., LL.M., B.C.S., has experience litigating these issues.

Trust Modifications and Terminations

Florida law authorizes the modification and termination of trusts for various reasons.  A trust may be modified or terminated when the purposes of the trust have been fulfilled or have become illegal, wasteful, or impracticable to fulfill; because of 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.  Under certain circumstances, a trust may also be modified when judicial modification is in the best interests of the beneficiaries.  Other methods for modifying and terminating a trust also exist.  Robin D. Merriman II, J.D., LL.M., B.C.S., has successfully used the applicable provisions of the Florida Trust Code to modify and terminate various trusts and has experience in these types of matters.

Creditor Claim Issues

If you are a creditor of an estate or of a decedent, there are various requirements that must be satisfied for you to recover from the estate of a decedent.  Numerous pitfalls exist for those persons or entities or personal representatives who are unfamiliar with the creditor claim process.  Robin D. Merriman II, J.D., LL.M., B.C.S., has litigated creditor claim issues both at the trial court and on appeal.

Robin D. Merriman II, J.D., LL.M., B.C.S., has been certified by The Florida Bar as an Expert in Wills, Trusts and Estates.  If you receive a copy of a notice (e.g. “Formal Notice”) and you believe that an objection is warranted, it will likely be advisable for you to seek professional representation from an attorney who understands the complexities of litigating in this area of law.