What are our Areas of Practice?

Family Law/Divorce

Family Law and Divorce

Florida is a no-fault state when it comes to divorce. This means if you or your spouse decide to legally end the marriage, it will be ended. How you and your family handle the ending of your marriage impacts not only the present, but also your entire future.

Divorce is second only to the death of a loved one in its emotional and psychological impact. When not handled properly, divorce can be even worse. Financial pressures, concerns about children, and related complications of divorce exacerbate that impact.

Our goal is to help you through this difficult time. In so doing, it is our approach to minimize the emotional damage, to maximize the preservation of your marital assets, and to allow you to enjoy financial security following your divorce.

To achieve that goal, it is necessary to work together to prepare your case for either settlement or trial. Cases are settled because the other side knows that you will be well represented at trial. However, there is no need to deplete your assets and income in avoidable and unnecessary litigation. The overwhelming majority of our cases reach a satisfactory settlement, but we are no strangers to the courtroom and have tried countless divorce and paternity cases.

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Dissolution of Marriage

Our practice is largely concentrated in the representation of clients that have significant net worth and substantial income, individually or through their spouse in Clearwater, St. Petersburg, and the Tampa Bay area. As a result, we have a great deal of experience in handling complex divorce litigation.

Over the years, we’ve developed excellent associations with the top financial experts within the Tampa Bay area. That means that we have both the ability to obtain the best experts for you and the knowledge to handle those experts in a manner that is cost efficient. You also have the benefit that the other side’s expert will know of us and is highly likely to have a reasonably positive impression of your attorney.

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Pre-Divorce Planning

Consulting with your divorce lawyer and receiving advice about the divorce process prior to filing is almost always beneficial. Areas of complexity exist that are not apparent to most parties prior to being a litigant in the divorce process.

These areas include the timing of business valuations, protection of nonmarital assets, the ramifications of commingling, the imputation of income to a non-earning or under-earning spouse, children considerations, and the like.

If it appears that divorce is likely to be in your future, you may well wish to properly position yourself rather than just being reactive in the litigation. Our job is to introduce you to that process.

Part of that planning effort is to identify such existing documentation as may support your position. Where documentation is lacking or non-existent, pre-divorce planning may allow you the opportunity to properly create and document that evidence. Cases are usually won by the party that is best prepared from an evidentiary standpoint.

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Collaborative Divorce

If Collaborative Law is a mystery to you, you are not alone. Collaborative Law is a relatively new model by which attorneys and other professionals act solely as resolution specialists in your family law case. Unlike traditional divorce or paternity cases where the spouses or parents are pitted against each other, Collaborative Law is a team-oriented process that focuses on reaching an agreement satisfactory to all parties, while keeping the best interests of any minor children at the forefront of the team’s focus.

In practical terms, this means that each spouse or parent retains their own separate attorney that focuses on the specific goals of their client and to counsel each client through the process. Other neutral professionals are hired to facilitate information gathering and problem solving among the clients and other team members.

The following are just some of the benefits of utilizing the collaborative process over traditional litigation:

• You and the other spouse or parent control the process and make any final determinations on your terms, rather than leaving it up to a judge who only hears bits and pieces of your unique situation;

• All discussions, negotiations, and documents are kept confidential between all of the collaborative team members, while any filings in court are matters of public record.

• Any children are shielded from the adversarial system that necessarily arises in litigation;

• Joint experts are hired to keep both parties informed so that they can reach an agreement that is mutually beneficial and seems fair to both sides, rather than spending time and money associated with engaging competing experts.

While there are several benefits to the collaborative process, Collaborative Law is not suitable for all divorce or other family law cases, and the attorneys at Greene & Greene will take the time to assess your unique situation to determine the best process for you based on their extensive experience handling both traditional family law litigation, as well as collaborative divorces.

If you need assistance with collaborative divorces, paternity suits, or other family law matters, please contact our office, as our attorneys have extensive experience in Collaborative Law and Collaborative Divorce in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and the surrounding West Florida areas. All attorneys at Greene & Greene have attended both the basic and advanced training for collaborative law. Attorney Lee Greene is a member and past director of the Tampa Bay Academy of Collaborative Professionals and Attorneys Billy Greene and Megan Greene are members of the Next Generation Divorce collaborative practice group.

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Paternity Actions

A unique set of rights and responsibilities arises when one becomes a parent, and establishing paternity has important legal ramifications. A paternity action can be brought by either a father or mother who are not married to establish the paternity of a child, as well as the rights and obligations of each party concerning that child. Although every paternity action is unique and factually complex, paternity actions are usually brought to establish a timesharing plan for the child (formerly referred to as child custody), as well as child support between the parties. Paternity actions can also be brought to determine the identity of the biological father if this is in dispute. Once the Court determines the identity of the legal father, either by DNA evidence or by voluntary acknowledgement, certain rights and obligations attach to that title.

In most circumstances, the legal father has the right to timesharing with the child, and paternity actions resolve disputes over any timesharing schedule. Paternity actions also involve disputes over child support as parents have a legal duty to support their children, and the state of Florida requires the use of statutory child support guidelines to ensure that children are adequately provided for, especially when one parent has more financial means than the other.

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Child Custody and Timesharing

Child custody, or “timesharing,” as the Florida Statutes now refer to it, is often one of the most important issues to parents who are going through a divorce, or in the case of unmarried parents, a paternity action. The Court will determine child custody based on the child’s best interest. Several factors weigh in on this determination, including fitness as a parent, historical parental roles, stability and safety of the home, and the desire that the child build and keep a relationship with both parents. In the great majority of cases, there will be shared parental responsibility where both parents remain meaningfully involved with the child. In a very small percentage of cases, a Court will award sole parental responsibility because one parent has acted in a way that manifests a lack of capability to act in the best interest of the child.

Florida law is largely protective of children. Florida law recognizes that, under shared parental responsibility, both parents have rights and responsibilities with their children and share in major decision-making. Neither parent has the right, and hopefully not the opportunity, to use the children as a weapon or for revenge purposes.

If at all possible, you and the other parent should determine what happens with the children, timesharing and otherwise. If not, the Court will decide. Should the Court have to decide, a Judge can appoint an evaluator to advise the Court on children matters. These evaluators are sensitive to the potential and actual harm children encounter when their parents divorce, as are our Judges. Children may not go to depositions and will not be in a courtroom, absent extremely compelling reasons.

Our firm has positive relationships within the mental health community to both meet your children’s counseling needs and, where necessary, to obtain expert testimony on disputed matters.

We will work with you in the best interest of your children, whether it involves custodial matters, child support, parenting plans, timesharing, or geographic considerations. To learn more about parenting plans and mental health professionals, please visit our informative topic panel to the left.

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Parenting Plan

During family law matters and divorce involving minor children, the parties will develop a parenting plan, which is a document that states essential information for successful co-parenting, such as a timesharing schedule, transportation, vacations, and communication with the minor children. While this may seem like a simple task to accomplish, many parents cannot initially agree on a parenting plan and require the assistance of other professionals, such as mental health professionals, to facilitate the development of a parenting plan that is in the best interest of the child. If the parties cannot agree on a parenting plan, the Court will make a determination that it believes is in the best interest of the child.

Our firm will work closely with you to develop an agreeable parenting plan. Moreover, we have established long-term relationships with mental health professionals in the community that have assisted in numerous complex cases involving children, and can help you develop a parenting plan that is suitable to both parties.

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Child Support

If parents are divorced or separate if unmarried, Florida statutorily imposes guidelines for child support payments based upon the parents’ combined actual or imputed income, the amount of overnights a child spends with each parent, and the specific needs of a child. Under certain conditions, the Court can vary from these guidelines. Child support normally ends when your child reaches the age of 18, or graduates high school, whichever is later, absent mental or physical dependency. Florida law does not incorporate the expenses of college into a child support determination, although the parents can agree to bind themselves to this expense. Child support remains modifiable throughout the eligibility of the child, based upon a substantial change of circumstance.

Our firm has significant experience in handling the determination of child support, as well as modification of a child support award based on changes in income or other substantial changes.

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Alimony

In Florida, several types of alimony are available if you are the potentially receiving spouse and must be considered if you are the potential payor during divorce. They are temporary, transitional, bridge the gap, lump sum, rehabilitative, and permanent alimony. The Court can also order no alimony at all, or a combination of the various types of alimony listed. Alimony determinations are largely driven by the need of one spouse, and the ability to pay by the other, as well as the length of marriage and the respective earnings of each party.

The Court may consider other various factors when determining alimony, such as the parties’ earning ability, age, health, education, and standard of living during the marriage. The Court may even impute income to one or both spouses if he or she is unemployed or underemployed. The determination of alimony is not an exact science, and the Court will consider the various factors as a whole and apply them to each specific situation without following a bright line rule.

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Equitable Distribution

Equitable Distribution refers to the division of marital assets between spouses as a result of a divorce. First, the Court identifies the marital vs. non-marital property of each party. If your spouse does not agree that your property is non-marital, it is your burden to prove that fact. Second, the Court must identify and value the marital property. Marital property includes all of the assets and liabilities that are not characterized as non-marital.

Under Florida law, there is a presumption that marital property should be distributed equally, no matter who generated the income or made the investment that created the asset or debt. However, there are situations where the Court will grant unequal distribution based on a finding that it is not equitable or fair to equally divide marital assets. Unequal distribution cases are relatively rare and require very specific evidence and/or fact patterns to justify the unequal distribution. Our firm has significant experience in this complex arena.

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Marital vs. Non-Marital Property

During a divorce, determining which assets and liabilities are marital and non-marital is an essential step for the Court to equitably distribute assets and liabilities among the parties. Only marital property is divided, and non-marital (or separate) property is kept by the owner spouse. Generally, assets and liabilities created or incurred during the marriage are marital property unless they are specifically established to as non-marital assets and liabilities. There are several other factors to take into consideration when determining marital vs. non-marital property, such as commingling of funds, gifts, appreciation of separate property, inheritances, and the existence of a prenuptial or postnuptial agreement that might dictate the division of property.

There are numerous intricacies in determining marital vs. non-martial property, and the attorneys at Greene & Greene are experienced in handling division of property for even the most complex situations.

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Business Valuations

If you or your spouse own a business, determining its value for equitable distribution purposes can be a difficult and tedious, yet necessary task. Often, if parties to a divorce have a business interest, it is the main asset, and thus its valuation is extremely important in a divorce. In order to value a business, experts are usually retained to determine the best approach for valuation and to testify at Court about his or her opinion. These experts often review the business’s financial records, assets, liabilities, and take into account other factors such as a business’s reputation or good will.

Once the business is valued, the Court usually does not split interest in the business between the two parties of the divorce, as the goal is to have a clean break after the divorce. Rather, the Court will usually award interest to one party, and then offset that award by giving the other party additional assets.

If you need assistance with business valuations, divorce, paternity suits, or other family law matters, please contact our office, as our attorneys have extensive experience in valuation disputes during divorce in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and the surrounding West Florida areas.

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Mediation

Simply put, mediation works. Should you be in a traditional representation case, the Court will require mediation, with very rare exceptions, before you can have any meaningful hearings. The Court will also require mediation prior to the trial itself.

Having been extensively involved as a mediator over the last two decades in the area of family law himself, attorney Lee Greene is extremely familiar and comfortable with handling mediations. Our firm’s approach to mediation is the same as the approach we take to hearings or trials. It is the old Boy Scout motto of “Be Prepared.” We will work together to assure that the mediator has a thorough understanding of your case and your objectives. We will have identified, with you, areas of possible compromise and other opportunities to increase the probabilities for settlement.

With that in mind, it is important to stress that there is no pressure on you to settle matters in the mediation. Rather, we use this as an opportunity to achieve your goals.

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Marital Settlement Agreement

A Marital Settlement Agreement is a final agreement between parties who have dissolved their marriage and usually includes provisions that divide property, set amounts for alimony and child support, and determines all issues related to any minor children, usually through the attachment of an agreed upon parenting plan. The Marital Settlement Agreement is the ultimate goal that each collaborative case strives to achieve through every team meeting. One distinction of collaborative divorce is that the collaborative process focuses more on arriving at a settlement that is suitable to both parties, rather than the parties signing an agreement to simply end lengthy and costly litigation.

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Modification and Supportive Relationships

After your divorce is final, sometimes several years post-divorce, disputes can emerge regarding increases or reductions in alimony and/or child support, custodial changes, parenting plan changes, relocation plans, and modifications of timesharing. The standard for modifying alimony or child support is a substantial change in circumstances, which can be shown by a significant increase or decrease in income (ability to pay), or need. Note that equitable distribution determinations are not modifiable after the divorce is finalized.

Additionally, when a party receiving alimony enters into a supportive relationship, this is usually grounds for modification or termination of payment of alimony if it can be proven. A supportive relationship exists when the alimony recipient cohabits with someone that is not a family member, and who is financially supporting them. Alimony is intended to provide support for an ex-spouse who was financially dependent on the other during the marriage, and the purpose of this law is to terminate that ongoing spousal support since the ex-spouse is now receiving support elsewhere.

The attorneys at Greene & Greene have handled several modification actions, and are experienced in assessing your unique situation to determine if a modification action is appropriate for you

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Prenuptial Agreement

Coming soon!

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Postnuptial Agreement

Coming soon!

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Probate/Trust Litigation and Administration

Probate and Trust Litigation

Will Contests and related Probate (Estate) and Trust Litigation in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and surrounding West Florida areas.

Greene & Greene is your destination for contested matters regarding wills, estates, trusts and similar inheritance disputes. Some of these litigated matters include: will contests, trust contests, undue influence claims, lack of mental capacity claims, beneficiary rights, validity of wills or trusts, abuse of power of attorneys, improper transfer-on-death designations, construing ambiguous wills, spousal share election under the elective share statute, creditor claims, breach of fiduciary duty by the personal representative or trustee, removal of the personal representative or trustee, excessive fiduciary fees, improper accountings and recovery of estate and trust assets, among others.

Our firm primarily represents clients within the St. Petersburg, Clearwater, Tampa and Sarasota areas, but we are willing to travel elsewhere should the need arise.

For more information regarding your probate (estate), trust or inheritance dispute, please schedule any consultation as needed. Please keep in mind there are various time limitations relating to these disputes, so do not delay in educating yourself and advancing your rights.

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Will Contest

Will Contests and related Probate (Estate) and Trust Litigation in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and surrounding West Florida areas.

A Florida will contest is the filing of a formal objection to the validity of a last will and testament. The basis for the invalidity may vary, but the common assertion is that the last will and testament being offered to probate does not accurately reflect the true intent of their person making the will, otherwise known as the testator or testatrix. A Florida will contest is an adversarial proceeding pursuant to Florida Probate Rule 5.025.

The grounds for invalidating a will include execution formalities, lack of testamentary capacity, undue influence, mistake, fraud and duress.

In regards to execution formalities, the initial consideration in determining whether a last will and testament is valid is to inquire whether the will was executed in accordance with Florida law. Pursuant to Florida Statute § 732.502, all wills must be in writing, signed by the testator or another at the testator’s direction, and the execution of the will must be acknowledged by two attesting witnesses, who sign in the presence of one another.

The most common grounds for a will contest are undue influence and lack of testamentary capacity, or a combination thereof. These topics are discussed in more detail in their own topic panels within the topic bar on the left.

Lastly, there are various time limitations associated with filing a will contest. Prospective beneficiaries, or removed beneficiaries, are often approached by other family members and requested to sign paperwork they do not fully understand. It is of the utmost importance that potential proponents of a will contest not sign these documents, as they might be waiving their ability to present such a claim.

If you are considering a will contest, please contact an attorney immediately to ensure you are not waiving any rights or failing to assert your claims in a timely manner. Our attorneys routinely deal with these type of estate disputes in the courts of St. Petersburg, Clearwater, Tampa, Sarasota and the surrounding West Florida areas.

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Trust Contest

Trust Contests and related Probate (Estate) and Trust Litigation in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and surrounding West Florida areas.

Quite similar to will contests, a Florida trust contest is the filing of a formal objection to the validity of the trust instrument. The basis for the invalidity may vary, but the common assertion is that the trust instrument does not accurately reflect the true intent of the person making the trust, otherwise known as the grantor.

The grounds for invalidating a trust are the same as a last will and testament, which includes execution formalities, lack of testamentary capacity, undue influence, mistake, fraud and duress. The most common grounds for a trust contest are undue influence and lack of testamentary capacity, or a combination thereof. These topics are discussed in more detail in their own topic panels within the topic bar on the left.

The biggest difference between will contests and trust contests is the forum in which the dispute is heard. Will contests are adversarial proceedings advanced within the administration of a pending probate estate; alternatively, a trust contest is an independent action which needs to be pled separately. Due to persons utilizing both wills and trusts within their estate plans, it is quite common for both a will contest and a trust contest to co-exist during a dispute, and often the same judge will be hearing both disputes, however it very important that potential clients know that the actions are separate and must be advanced accordingly.

Moreover, trust contests are not limited to actions seeking to set aside a trust for incapacity and/or undue influence. Often successor trustees, who are validly appointed, abuse their role or fail to meet their obligations to the beneficiaries pursuant to the trust. This can lead to various different actions which aim to limit the financial damage caused by unscrupulous trustees, recover those damages, and often remove the trustee due to their inappropriate actions.

Lastly, much like will contests, there are various time limitations associated with filing a trust contest. Prospective beneficiaries, or removed beneficiaries, are often approached by other family members and requested to sign paperwork they do not fully understand. It is of the utmost importance that potential proponents of a trust contest not sign these documents, as they might be waiving their ability to present such a claim.

If you are considering a trust contest, please contact an attorney immediately to ensure you are not waiving any rights or failing to assert your claims in a timely manner. Our attorneys routinely deal with these type of trust disputes in the courts of St. Petersburg, Clearwater, Tampa, Sarasota and the surrounding West Florida areas.

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Fiduciary Litigation

A fiduciary relationship arises when an individual is responsible for managing and protecting property for another individual or entity. When an individual acts as a personal representative of an estate, a guardian, a trustee, or holds a power of attorney, they are acting as fiduciaries. A fiduciary relationship involves specific duties, and fiduciaries are held to very high ethical and legal standards in carrying out these duties under Florida law. Such duties include distributing assets of an estate or trust in accordance with a decedent’s wishes, using their authority for the best interest of all interested parties, making sound financial decisions, avoiding conflicts of interest, and acting in good faith at all times.

A breach of a fiduciary duty occurs when the fiduciary is not acting in the best interest of the principal, which is the person depending on the fiduciary or “agent” to carry out acts as directed or in their best interest. Unfortunately, many fiduciaries do not fully understand their duties and obligations to the principal, and even worse, sometimes abuse their position for individual financial gain. Fiduciaries can violate their duties by failing to account, making improper investments, charging excessive fees, entering into business relationships that constitute self-dealing or otherwise creating a conflict of interest, or even misappropriating trust assets. When these violations occur, it is up to the beneficiaries to hold the fiduciary accountable for their actions.

To prevail on a claim for breach of fiduciary duty, the beneficiary must merely show that: (1) a fiduciary relationship exists, (2) a breach of that duty occurred, and (3) the beneficiary or beneficiaries were damaged by the breach. If successful, there are several remedies available to the beneficiary, which include, but are not limited to, compelling an accounting, surcharging the trustee for excessive fees, recovering trust and/or estate assets, removing the trustee or personal representative from their office, and even receiving a money judgment against the fiduciary for any malfeasance.

For more information regarding fiduciary litigation or a breach of fiduciary duty, please schedule any consultation as needed. Please keep in mind there are various time limitations relating to these disputes, so do not delay in educating yourself and advancing your rights.

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Breach of Fiduciary Duty

In Florida, trustees and personal representatives (executors) are fiduciaries who owe a duty to a trust or estate, respectively, along with the beneficiaries thereunder. These fiduciaries, whether they are trustees or personal representatives, must maintain the highest duty of care in administering their respective duties.

The duties the trustee or fiduciary owes to the beneficiaries include the duty of loyalty, the duty of impartiality, the duty to prudently administer the estate, the duty to account, and the duty to act in good faith, among others. While there are various ways a trustee can violate his or her obligations, the basic principal is that a trustee must act within the best interest of the trust and its beneficiaries, rather than taking actions which serve merely to benefit the fiduciary.

Unfortunately, many non-professional trustees (and sometimes even professional trustees) do not fully understand their duties and obligations to the beneficiaries, and even worse, sometimes these trustees abuse their position for individual financial gain. Trustees can violate their duties by failing to account, making improper investments, charging excessive fees, entering into business relationships that constitute self-dealing or otherwise creating a conflict of interest, or even misappropriating trust assets. When these violations occur, it is up to you, the beneficiary, to hold the trustee or personal representative accountable for their actions.

To prevail on a claim for breach of fiduciary duty, the beneficiary must merely show that: (1) a fiduciary relationship exists, (2) a breach of that duty occurred, and (3) the beneficiary or beneficiaries were damaged by the breach. If successful, there are several remedies available to the beneficiary, which include, but are not limited to, compelling an accounting, surcharging the trustee for excessive fees, recovering trust and/or estate assets, removing the trustee or personal representative from their office, and even receiving a money judgment against the fiduciary for any malfeasance.

If you have concerns about potential breaches in regards to a trust or estate, please contact our office, as our attorneys routinely deal with trust and estate litigation within the courts of St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and the surrounding West Florida areas.

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Undue Influence

Undue influence is a cause of action used to challenge the validity of a last will and testament, trust or related testamentary instrument. Generally, undue influence occurs when a third-person exerts their influence on the person making a will or trust to the extent that the testamentary document reflects the intent of the undue influencer, rather than the testator.

The susceptibility to undue influence is often greatly heightened in the latter years of one’s life, where certain elder diseases and related infirmities of old age cause the individual to become increasingly depending on third parties. This dependence can often be manipulated, and taken advantage of, by opportunistic third parties who have their own financial interest in mind. Quite often, elderly persons with weakened physical and/or cognitive abilities have a desire to please those around them, and the mere mention of drafting a will or trust could lead the elderly adult into executing an instrument they would not have otherwise thought to prepare themselves.

One of the chief evidentiary issues with undue influence claims is that most all of the inappropriate acts occur in the privacy of the elderly person’s home, when only the undue influencer and the victim are present; and since these contests occur after the victim has passed away, only the undue influencer remains available to testify. The State of Florida acknowledged this issue by enacting Florida Statute 733.107, which implemented a presumption of undue influence, known as the “Carpenter Presumption” if certain factors are shown. The three factors that must be shown are that the undue influencer:

1. maintained a confidential relationship with the testator;
2. stands to be a substantial beneficiary under the will or trust; and
3. were active in procuring the will or trust.

The first two prongs are generally relatively easy to meet. The “active procurement” prong, however, is where your case will be won or lost. In determining whether active procurement was present, the Florida Supreme Court listed seven non-exclusive factors that should be considered by trial courts in determining whether active procurement exists. They include:

1. presence of the beneficiary at execution of the will or trust;
2. presence of the beneficiary on occasions where the testator expressed a desire to make a will or trust;
3. recommendations by the beneficiary of an attorney to draft the will or trust;
4. knowledge of the contents of the will or trust prior to execution;
5. giving of instructions from the beneficiary to the drafting attorney;
6. securing witnesses to the will or trust by the beneficiary; and
7. safekeeping the will or trust after execution.

This list is non-exclusive and a claimant need not show all seven factors to prevail. This is simply a listing of possible factors considered by the Court, and the existence of any of these factors could lead to the presumption.

This presumption, however, is a rebuttable one. Once the presumption is established, the burden shifts to the proponent of the challenged will or trust to prove to the Court that the challenged instrument was not the produce of undue influence.

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Lack of Mental Capacity

One of the most common reasons for setting aside a last will and testament, or a trust instrument, is that the person allegedly signing the will or trust lacked the mental capacity to reasonably understand the document they were executing. Being of sound mind is required to execute a will or trust and is simply stated as “testamentary capacity”.

The requisite “testamentary capacity” needed to execute a will or trust is defined as having the ability to generally understand: (1) the nature and extent of one’s property, (2) the relationship of those who would be the natural objects of the testator’s bounty (heirs), and (3) the practical effect of the will or trust.

Testamentary capacity of a testator is presumed, therefore the burden to prove a testator lacks capacity falls on the person challenging the will or trust. The evidence needed to support a claim for lack of capacity usually comes in the form of medical records and/or testimony, along with the testimony of those who spent time with the testator near the date of execution.

Several diseases and related infirmities of old age can lead to diminished capacity, the most common of which is Alzheimer’s-related dementia. Many elderly persons suffer from the onset of early dementia, but learn to mask their disease by depending on others. These elderly persons are highly susceptible to outside influences, especially when these third parties assisting them have ulterior motives.

Moreover, a person challenging a will or trust need not show full incapacity in order to advance their claim. The mere existence of “diminished capacity”, coupled with an overreaching third party (commonly a family member, nurse or neighbor) who unduly influences the elderly person, may give rise to the will or trust being determined invalid.

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Transfer/Payable on Death Designations

One of the lesser-known estate planning tools is the utilization of transfer-on-death designations, or sometimes called payable-on-death designations. Quite often, elderly adults will place a family member or close friend on their financial accounts as a joint owner or as a transfer-on-death beneficiary. While these steps are usually taken as a convenience to the elderly person to assist with managing their finances, these designations have a drastic effect on the individual’s estate plan.

Assets jointly owned at a banking institution, or accounts with transfer-on-death designees, pass outside of probate (estate). Therefore, the owner’s last will and testament and/or trust documents will have no bearing on how these assets pass. This fact is commonly misunderstood by the banking customers.

Moreover, since the establishment of these accounts and transfer-on-death designations take place without the proper formalities of executing a will or trust, and without the presence of a licensed attorney, these setting are often the most ripe for exploitation and undue influence. For an individual with bad intentions, there is no easier setting to take advantage of a confused or dependent elderly adult.

Potential clients too often believe that these monies are a “lost cause” because they are not part of the administration of the Decedent’s estate or trust, and are typically disbursed to the “beneficiary” or joint owner shortly after the death. This is simply not true. Florida law has evolved to protection the rightful beneficiaries under these precise circumstances. Potential claimants can seek to set aside these improper designations and even obtain money judgments for assets already removed.

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Tortious Interference

Tortious Interference and related Probate (Estate) and Trust Litigation in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and surrounding West Florida areas.

Quite similar to undue influence claims, a cause of action for tortious interference with an expectancy acts as a remedy for a wrongfully or fraudulently removed beneficiary. The primary difference between undue influence claims and tortious interference claims is that the former is an action in equity, while the latter is an action at law.

Actions in equity, like undue influence claims, seek a judicial declaration from the court. For example, an undue influence action, petitioners are typically seeking a declaration from the court that the subject will or trust is invalid as being the product of undue influence. In contrast, tortious interference claims (action at law) are filed directly against the alleged tortfeasor, or undue influencer, and seek specific money damages.

While the two actions on their face may appear to be synonymous, they can be used to achieve different purposes and can be more strategically used under certain circumstances. To better illustrate the differing effects between the two causes of action, imagine a scenario in which a wrongfully removed beneficiary challenged a will or trust, but the monies which comprised the will or trust had already been wrongfully distributed by the undue influencer. Under this scenario, a declaration from the court that the will or trust was invalid would be an inadequate remedy for the wrongfully removed beneficiary as no money remains within the subject will or trust. In this situation, a client would be better served by filing an action for tortious interference, demanding a money judgment directly against the tortfeasor (the undue influencer).

Another key difference is that actions for tortious interference entitle the claimant to a jury, while actions for undue influence do not.

Lastly, Florida courts have expressed a preference that actions be determined in equity, with the alternative tort only be allowed in circumstances in which no adequate, alternative remedy exists. That being said, there are various circumstances that render an ordinary declaratory action inadequate. It is quite common for claimants to assert causes of action for both undue influence and tortious interference, and wait to elect which option to pursue until such time that additional information can be obtained through discovery.

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Removal of Personal Representative/Trustee

Removal of Personal Representative and related Probate (Estate) and Trust Litigation in St. Petersburg, Clearwater, Tampa, Sarasota, Pinellas County, and surrounding West Florida areas.

Under Florida law, a personal representative of an estate may be removed for several different reasons. A personal representative is a fiduciary of the estate, meaning that they have certain duties to administer the estate faithfully and in accordance with the wishes of the decedent. If the personal representative is not acting in accordance with the fiduciary duties required, Florida law has procedures in place to remove that person. The most common reasons for removal of a personal representative are as follows:

• Physical or mental incapacity.
• Failing to comply with a court order or to account for the sale of property.
• Waste or maladministration of the estate.
• Conviction of a felony.
• Insolvency.
• Conflict of interest.
• Failing to provide a bond or security for any purpose.

To remove a personal representative, an interested person (meaning a beneficiary or potential beneficiary of an estate) must petition the court to do so based on one of the foregoing reasons.

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Probate Administration

The term “probate” refers to the court-supervised process of identifying, managing, and distributing certain assets of a deceased person, or “decedent.” Generally, probate administration involves reviewing the Last Will and Testament of the decedent, if any, appointing a personal representative to act as a fiduciary, identifying the probate assets, paying creditors and other fees, such as personal representative fees, and ultimately distributing property to beneficiaries.

If a decedent has a Last Will and Testament, it will usually designate a person to act as the personal representative for probate administration. However, even if this is the case, that person has no authority to act for the estate until the court enters an order appointing them as personal representative and issues Letters of Administration, which may be conditioned upon the posting of a bond to ensure that the personal representative fulfills his or her duties. In the event that a Last Will and Testament does not exist, or does not name a personal representative, a family member is usually given priority to serve as personal representative. Once a personal representative is appointed, that person has authority to pay creditors, gather probate assets, pay federal and estate taxes, and distribute property to any beneficiaries.

Because probate administration requires the filing of multiple documents with the court and because a personal representative could potentially be liable to any beneficiaries for mismanagement of the estate, it is recommended that the personal representative seek assistance from an attorney to guide this process.

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Probate Accounting

When a personal representative is appointed to administer a probate estate, one of his or her primary duties is to keep the estate beneficiaries reasonably informed about the financial dealings of the estate. This is accomplished at several levels.

Within 60 days of the issuance of the personal representative’s letters of administration, the personal representative is required to file an estate inventory. The inventory contains a listing of initial estate assets with approximate values of said assets. The inventory also contains certain notices to the beneficiaries as to their rights for additional information regarding how the inventory, and values, were comprised. It is not uncommon for the inventory to be amended once additional information is obtained.

In addition to the inventory, personal representatives are required to prepare and issue fiduciary accountings to the beneficiaries prior to their discharge and the closure of the estate. Upon request, the court can also order interim accountings, which are most commonly granted for estates that are administered for extended periods of time. These accountings provide opportunities for the beneficiaries to review the financial dealings of the estate, and file objections to the accounting, if necessary.

It is also important to note that many personal representatives (also known as “executors” in other states) will request that beneficiaries sign waivers to these type of accountings. These waivers are often provided to beneficiaries early in the probate process at a time when the parties are still grieving and less concerned with the legal documents being placed in front of them. It is critical for clients to know the importance and effect of these waivers, as a beneficiary may be waiving the right to challenge certain actions taken by the personal representative without all the necessary facts to make an informed decision.

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Trust Administration

Unlike probate administration, trust administration is not a court-supervised process, but rather refers to a trustee’s management and distribution of trust property according to the terms of the trust agreement for the benefit of the beneficiaries after the settlor (i.e., the person who created the trust) has passed away. Generally, a trustee must fulfill certain responsibilities and fiduciary duties, and depending on the terms of the trust agreement, these powers and duties may include:

• Gathering and holding trust property
• Distributing income to beneficiaries of the trust
• Paying legitimate creditors
• Making important tax decisions
• Maintaining records of all transactions
• Providing accountings to beneficiaries of the trust

It is important to note that a trustee acts in a fiduciary capacity, and must follow a strict standard of care when performing trust functions. Therefore, it is highly recommended that any trustee or successor trustee seek out the assistance of qualified professionals to assist them in their duties.

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Trust Accounting

One of the most common complaints by trust beneficiaries is that the trustee fails to keep the rest of the beneficiaries reasonably informed regarding trust dealings and administration. This often occurs when a parent trustee passes away, leaving a successor family member in charge who is either unqualified or unwilling to serve as successor trustee, or in the worst circumstances, a family member who uses their appointment to exploit the trust for personal gain. In either event, the primary remedy for beneficiaries is to ask the court to compel an accounting if one has not been voluntary issued, and if malfeasance is present, file an objection to said accounting.

In Florida, trustees are required to issue accountings at least annually, and must also issue an accounting if they are closing the trust or resigning as trustee. These accountings are required unless waived. Once an accounting is received, beneficiaries may only have six months to challenge the contents of the accounting. If an objection is not filed, the beneficiary may have waived any right to challenge the action of the trustee for the time period referenced in the accounting. Trustees are required to inform beneficiaries of this six-month limitation, but these disclosures are often in fine print and on the last page of a voluminous amount of documents.

In addition to trust accountings, qualified trust beneficiaries are entitled to receive additional information from trustees, which includes the right to review the trust instrument itself, notice of changes in trusteeship, contact information for the trustee, contact information for any attorneys representing the trustee, relevant information about the current assets and liabilities of the trust, and any other information reasonably necessary for the beneficiary to protect their rights.

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Estate Planning

All too often, people find themselves in a crisis or life-threatening situation and either hurrying to gather important estate planning documents, or really regretting not doing so sooner. It is important to be prepared and execute estate planning documents well in advance to avoid having the state determine how your assets are distributed. Almost every individual has a strong opinion of the disposition of his or her assets upon death, and these desires should be put into writing in advance.

Estate Planning can range from a simple process to a very complicated process with complex tax implications. Greene & Greene can assist in any estate planning needs, including assisting clients in determining which estate planning documents are appropriate for each client’s unique situation, such as a Last Will and Testament, various types of Trusts, a Power of Attorney, a Health Care Surrogate, a Preneed Guardian, a Living Will, a Prenuptial or Postnuptial Agreement, and Transfer-on-Death/Payable-on-Death Designations.

• Last Will and Testament: A Last Will and Testament is a written document that distributes certain assets to named beneficiaries upon your death and designates a personal representative to assist in this distribution after satisfying any debts or expenses. A Will can also serve to designate a guardian for any minor children or any property bequeathed to such minor children. Certain assets are not governed by a Will if they already have specified beneficiaries, such as payable on death accounts, transfer on death accounts, joint and survivorship accounts, jointly owned property, life estates, pension/retirement plans, or insurance beneficiaries.

  A Will is a necessary document to ensure that you have control over your assets upon death. Should you die without a Will (or “intestate”), the laws of the state where you reside determine the distribution of your assets. Additionally, each state differs in its requirements for a valid Will. Therefore, simply using a form from the internet, which may save you money initially, can lead to unexpected financial and emotional hardship in the future if the Will is later determined to be invalid.

• Trust: A trust is a document that establishes how assets are managed during one’s lifetime and how remaining assets are distributed after death. The most common type of trust is a revocable trust, which means that the trust can be modified or terminated by a competent grantor during his or her lifetime. The grantor can either serve as the trustee, or a person, bank, or trust company can be appointed, and is responsible for the management and investment of the trust assets, which can usually be withdrawn by the grantor at any time, depending on the terms of the trust agreement. In the event of the grantor’s death, the trustee must pay all claims and taxes, and then distribute the trust assets to beneficiaries according to the terms of the agreement without going through the process of probate.

  One of the main advantages of creating a trust is to avoid probate administration upon death, as the trustee has immediate authority, as well as a duty, to manage and distribute trust assets, and does not need to be appointed or approved by a court. Sometimes it is necessary to have a “pour over” will that transfers any probate assets to the trust after death to completely avoid the probate process.

• Power of Attorney: Generally, a Power of Attorney is a written document executed by a “principal” that designates a person to act as an attorney-in-fact, or an “agent,” and is authorized to perform certain actions on behalf of the principal during the principal’s life. In the event of the principal’s death, a Power of Attorney becomes invalid. The most common type of Powers of Attorney is the Durable Power of Attorney, which remains legally valid if the principal becomes incapacitated as long as it was executed in accordance with Florida law.

• Health Care Surrogate: A Health Care Surrogate Designation is a document in which you designate an individual to have access to your health care records, make medical decisions, and provide informed consent on your behalf in the event that you are incapacitated and unable to make such decisions for yourself. A Health Care Surrogate Designation is an essential estate planning document, and is usually executed in conjunction with a Last Will and Testament, a Durable Power of Attorney, and a Living Will.

• Preneed Guardian: In the event that a person becomes incapacitated, it may be necessary to appoint a guardian to oversee personal and financial affairs of that person. A preneed guardian designation allows a competent adult to appoint a guardian of their choosing prior to becoming incapacitated. Similar to a will, a written declaration appointing a preneed guardian must be signed in the presence of two attesting witnesses. A preneed guardian designation creates a presumption that the person designated therein shall serve as guardian unless such person is found to be unqualified by a court to do so. People typically do not anticipate becoming incapacitated, and therefore, this important designation is not often used, leading to potential future litigation over who should serve as guardian.

• Living Will: A Living Will is a health care advance directive that declares a person’s desires for medical care in the event of terminal illness or in the event that one cannot make such decisions for him or herself, such as permanent unconsciousness. It is a “living” will because it goes into effect during your lifetime, and not at death. Although a living will is commonly used when a person is diagnosed with a life-threatening illness, it is also used as part of the estate planning process so that people who may be making medical decisions for you in the future are aware of your desires if you are unable to express them later.

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Partition

Partitions refer to a severance of ownership interests between concurrent owners of a property. The right to partition is ordinarily available as a matter of general right to any person who has a present ownership in land. Partitions are not typically affected by homestead protections and are not derived from any required contractual rights.

Any co-owner can request that a court partition a property. Partition actions often occur after a parent passes, leaving a property to be owned by multiple beneficiaries. If the co-owners cannot agree what to do with the property, partition is often the only option to allow a co-owner to gain their share of the property’s value.

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