In Florida, when a person passes with with property, whether tangible, intangible, or real property, conflict often arise as to what is estate property and what is not. This often leads to litigation. Some examples that may lead to litigation include:
Power of Attorney (POA): When a fiduciary relationship exists, the fiduciary is under a duty to act for the benefit of the beneficiary only as to matters within the scope of the fiduciary relationship. If the POA acts in a self-serving way while the decedent is alive, the estate may sue the POA to attempt to recoup money that would have otherwise gone to the estate. If you believe a POA acted in a self-serving way, or are being accused of breaching a fiduciary duty as a POA, you should contact an experienced probation litigation lawyer.
New Will Created Before Death: Creating a new will or updating a will close to death is not unusual. However, when this is done and a previous beneficiary is excluded in the new will, it give rise to possible litigation based on lack of capacity and undue influence by the new beneficiaries. These actions can prove difficult to prove. Whether you have been cut out of a will or are accused of undue influence or an attempt to invalidate a will, you should consult with an experienced probate litigation lawyer.
Transfer of Property Before Death: When property is transferred shortly before death, changing the estate plan of the beneficiary, it may give rise to accusations of lack of capacity and undue influence by the new beneficiaries. These actions can prove difficult to prove. Whether you have been cut out of a will or are accused of undue influence or an attempt to invalidate a will, you should consult with an experienced probate litigation lawyer.
Payable on Death Designation on Accounts: Creating Payable on Death Beneficiaries (POD) for bank and investment accounts is an effective way to avoid the necessity of those accounts to pass through probate. However, when such designations are created or changed shortly before death, the actions and give rise to litigation and accusations of lack of capacity and undue influence by the new beneficiaries. If you have been effected by a late in life change of payable on death designations, contact an experienced probate litigation lawyer.
Civil Theft: Civil Theft is a cause of action based on Section 772.11, Florida Statutes (2012), the statutory basis for this cause of action. It is different from other actions related to probate litigation in that it has strict pleading requirements, requires the pleading and proof of theft with felonious intent to steal, and must be proven by clear and convincing evidence, as opposed to mere by preponderance of evidence. Pleading civil theft can be a bad idea. The standard is higher than other civil causes of action and if unsuccessful, a plaintiff may be liable for attorney's fees for the opposing party even if successful on other causes of action. Before pleading civil theft, make sure you discuss the pros and cons with an experienced probate litigation lawyer.
Conversion: A conversion occurs when a person who has a right to possession of property demands its return and the demand is not or cannot be met. However a demand and refusal are unnecessary were it would be futile and the act preventing a return results in a depriving of possession and, thus equates to a conversion. Conversion is similar to Civil Theft, except that the burden is lower, the plaintiff does not have to prove criminal intent, and the pleading requirements are not as strict.