Practice Areas

The Law Offfice of William Christopher Anderson represents beneficiaries, charities or potential heirs in the following probate and estate planning areas:

·         Will Contests

·         Last Will and Testament Disputes

·         Estate Administration

·         Trust Administration

·         Trust Litigation

·         Trust Reformation/Construction

·         Trust Contests

·         Probate

·         Probate Litigation

·         Undue Influence Claims

·         Lack of Mental Capacity (Testamentary Capacity)

·         Guardianships and Conservatorships

·         Removal of Personal Representative

Trust, Estate and Probate Disputes

The Law Office of William Christopher Anderson will provide aggressive and experienced counsel in representing both beneficiaries and fiduciaries such as conservators, guardians, executors and trustees in disputes involving trusts and estates.

Probate-related Issues

Will Contests (or Last Will and Testament Disputes) representing both executors who have a fiduciary duty to defend a Last Will and Testament filed for Probate and heirs who feel they have been unfairly omitted from a Last Will and Testament.

For those heirs who feel they have been unfairly omitted from a Last Will and Testament, challenging the validity of a Last Will and Testament in Florida can be done on many grounds. One of the most direct ways to attack a Last Will and Testament is to prove that it was not properly signed by the testator (the person who made his or her Last Will and Testament). A Last Will and Testament can be admitted into Probate and accepted by the court even though it was executed improperly. It is a serious mistake to assume a Last Will and Testament that appears to be signed correctly actually complies with Florida law. In fact, the burden of proof is initially on the person challenging the Last Will and Testament to prove that it was not signed in accordance with Florida law. Florida Statute Section 732.502 requires that a Last Will and Testament be in writing, that it is signed at the end by the Testator (or by another person at the testator's direction) and that the testator signs the Last Will and Testament in the presence of two witnesses. One critical factor is that the witnesses sign the Last Will and Testament in the presence of each other. To prove whether a Last Will and Testament was improperly signed requires skilled and careful cross-examination of the witnesses who were present at the time of the signing of the Last Will and Testament.

The major grounds for contesting the validity of a Last Will and Testament are:

Undue Influence claims challenge whether the testator made the Last Will and Testament freely without being coerced by someone. An undue influence lawsuit relates to whether the decedent made his or her Last Will and Testament without being coerced by another person or persons. For example, a family member, friend, long-time employee, or acquaintance might pressure a frail, elderly person to leave most or all of his or her assets to that person while excluding children, relatives and others who should receive the inheritance. Undue influence occurs when a person is compelled to perform an act (signing of a Last Will and Testament) as a result of improper pressure exerted upon him or her.

Lack of Mental Capacity / Testamentary Capacity claims are based on the testator's lack of mental capacity and are the most common types of testamentary challenges. Testamentary capacity typically requires that a testator have sufficient mental acuity to understand (a) the amount and nature of his or her property, (b) the family members and loved ones who would ordinarily receive such property by Last Will and Testament, and (c) how his or her Last Will and Testament disposes of such property. Simply because an individual has a form of mental illness or disease does not mean that he or she automatically lacks the requisite mental capacity to make a Last Will and Testament. Competency to execute a Last Will and Testament generally means that the Testator understood the nature and extent of his assets and knew the natural objects of his bounty (his family). While it may seem that the Testator (the person who signed the Last Will and Testament) was incompetent or that the Last Will and Testament was the product of fraud, undue influence or overreaching, Lack of Mental Capacity or Incompetence is typically proven by medical records, irrational conduct of the Decedent and the testimony of those who observed the Decedent at the time the Last Will and Testament was executed.

Estate Litigation

Estate litigation exists when a person dies and a lawsuit needs to be filed on behalf of the decedent or the decedent's heirs. It may or may not involve contesting a Last Will and Testament or a Revocable Trust. Estate litigation may include opening an estate to file a wrongful death lawsuit against a nursing home, airline, automobile driver, railway or any other person or entity responsible for the death of an individual. While estate litigation can also include probate litigation, Last Will and Testament contests and trust litigation, in certain situations there are no heirs, family members or beneficiaries who are at odds over what the decedent did with his or her Last Will and Testament or trust; instead, for example, the estate litigation may be a lawsuit against a life insurance company that is refusing to honor the terms of a $1,000,000 life insurance policy because the insured committed suicide.

Trust Litigation

Trust litigation is similar to a Last Will and Testament contest. An individual may use a revocable Trust, rather than a Last Will and Testament, to provide for the final distribution of his or her assets upon death. Like a Last Will and Testament, the validity of a Trust may be contested using the same grounds to contest a Last Will and Testament. Many people and non-estate lawyers are unaware that in Florida a Trust must be signed with the same formalities as a will. Furthermore, Florida law changed several years ago to require a spouse to gift a specific amount of his or her estate to the surviving spouse. Older Trusts and Trusts from other states may violate Florida law causing Trust litigation.

Trust Reformation/Construction

Lawyers can make mistakes preparing trusts or draft trusts that have unclear language. Florida law has a specific statute which allows a Trust to be revised (reformed), even after the testator's death, if the provisions of the law are met. A Trust can be reformed to correct seemingly glaring mistakes so long as you can prove the testator's intent.

Likewise, when attorneys write documents that have unclear, ambiguous or confusing Trust language, or when lawyers botch issues regarding trustee appointments and resignations; trustee's powers and duties; whether money must be held in Trusts or distributed outright; the identity of the beneficiaries; the termination date of the Trust; or whether to divide Trust assets into separate Trusts for different beneficiaries, the law allows a judge to solve these problems even after the death of the person who created the Trust.

Trust Contests

Trust Contests arise when the validity of a revocable or irrevocable trust is challenged. A trust contest may include a construction proceeding where one or more parties seek court interpretation and adjudication of the language in the document. This occurs where the Trust document is unclear or contradictory regarding the identity of beneficiaries, the allocation of estate and/or income taxes, the interests of lifetime beneficiaries as opposed to remainder beneficiaries, and the operation of distributive property provisions.

Probate/Estate Administration/Trust Administration:

FIDUCIARY -- In Florida, the executor of a Last Will and Testament is referred to as a personal representative. A personal representative is responsible for the administration of a decedent's probate estate. A trustee is the fiduciary responsible for implementing the terms of a Trust. According to the Internal Revenue Service, an executor is the person responsible for preparing and filing the United States Estate Tax Return and Fiduciary Tax returns. Regardless of the terminology used and the specific duties, a trustee, executor and/or personal representative is responsible for the administration of a decedent's estate.

PROBATE -- Probate is the court-administered process of distributing assets that did not have a predetermined beneficiary and that were registered in the decedent's sole name. Even if there are no assets subject to probate, the original Last Will and Testament and a death certificate need to be filed with the probate court. If a Trust was created during the decedent's lifetime, then we also need to file a Notice of Trust with the court.

ESTATE-TAX REPORTING -- Federal - If the decedent's gross estate exceeds the applicable credit against federal estate tax ($2,000,000 in 2007) , then a United States Estate Tax Return, form 706, must be filed with the Internal Revenue Service. It is due 9 months after the decedent's date of death.

Florida - If a federal estate tax return is due, then a copy of it should be filed with the Florida Department of Revenue. If no federal return is due, then an affidavit of no estate tax due should be recorded against the legal description of any Florida real estate. This is done to ensure clear title when the property is eventually sold.

ESTATE VALUATION -- To value a decedent's gross estate, we must determine the nature and the fair market value of the assets owned at death and/or on the alternate valuation date, which is six months from date of death. The Internal Revenue Code broadly defines someone's assets, so everything from clothing to stock portfolios is included.

The obvious assets are cash accounts, stocks, bonds, limited partnerships, and real estate. The less obvious assets are life insurance proceeds (regardless of the beneficiary, if the policy was owned by the decedent), joint accounts, and tangible personal property.

INCOME TAX REPORTING -- Federal - A final 1040 for the decedent is due for the year of death. Also, a form 1041 will be filed for the decedent's trust estate which will be due for the period of the date of death to the end of the year, and then annually thereafter until the close of the trust estate. Ongoing 1041s will be required for Marital and Credit Shelter Trusts, if created under the terms of the decedent's revocable trust.

Florida - There is no Florida income tax but the executor of the decedent's estate should consult with an accountant to determine whether an intangibles tax is due.

TIME FRAME -- Generally, when a federal estate tax return is due, the tax reporting in connection with the estate administration process takes approximately two years from date of death. If no federal return is due, the time frame is greatly reduced.

Guardianships and Conservatorships

WHAT IS A GUARDIANSHIP?

A guardianship is a legal proceeding in the circuit courts of Florida in which a guardian is appointed to exercise the legal rights of an incapacitated person.

WHAT IS A GUARDIAN?

A guardian is an individual, or institution such as a bank trust department, appointed by the court to care for an incapacitated person-called a "ward"-or [to care for] for the ward's assets.

HOW IS A PERSON DETERMINED TO BE INCAPACITATED?

Any adult may file a petition to determine another person's incapacity, setting forth the facts upon which they base their belief that the person is incapacitated. The court then appoints a committee of two professionals, usually physicians, and a lay person to examine the person and report its findings to the court. The court also appoints an attorney to represent the person alleged to be incapacitated. If the examining committee concludes that the alleged incapacitated person is not incapacitated, the court will dismiss the petition. If the examining committee finds the person to be incapable of exercising certain rights, however, the court schedules a hearing to determine whether the person is totally or partially incapacitated. A guardian is usually appointed at the end of the incapacity hearing.

WHO MAY SERVE AS GUARDIAN?

Any adult resident of Florida can serve as a guardian. A close relative of the ward who does not live in Florida may also serve as a guardian. Persons who have been convicted of a felony, or who are incapable of carrying out the duties of a guardian, cannot be appointed. Institutions such as a bank trust department, a nonprofit religious or charitable corporation, or a public guardian, can be appointed guardian, but a bank trust department may only act as guardian of the property. The court gives consideration to the wishes expressed by the incapacitated person in a written declaration of pre-need guardian or at the hearing.

WHAT DOES A GUARDIAN DO?

A guardian who is given authority over any property of the ward shall inventory the property, invest it prudently, use it for the ward's support, and account for it by filing detailed annual reports with the court. In addition, the guardian must obtain court approval for certain financial transactions. The guardian of the ward's person may exercise those rights that have been removed from the ward and delegated to the guardian, such as providing medical, mental and personal care services and determining the place and kind of residential setting best suited for the ward. The guardian of the person must also present to the court every year a detailed plan for the ward's care.

IS A GUARDIAN ACCOUNTABLE?

Yes. Guardians must be represented by an attorney who will serve as "attorney of record." Guardians are usually required to furnish a bond and may be required to complete a court-approved training program. The Clerk of the Court reviews all annual reports of guardians of the person and property and presents them to the court for approval. A guardian who does not properly carry out his or her responsibilities may be removed.

IS GUARDIANSHIP PERMANENT?

Not necessarily. If a person recovers in whole or part from the condition that caused him or her to be incapacitated, the court will have the ward reexamined and can restore some or all of the person's rights.

IS GUARDIANSHIP THE ONLY MEANS OF HELPING AN INCAPACITATED PERSON?

No. Florida law requires the use of less restrictive alternatives to protect persons incapable of caring for themselves and managing their financial affairs whenever possible. If a person creates an advance health care directive and a durable power of attorney or revocable living trust while competent, he or she may not require a guardian in the event of incapacity.

WHAT ABOUT GUARDIANS FOR MINORS?

A child's parents are the child's natural guardians and in general may act for the child. In circumstances where the parents die or become incapacitated, or if a child receives an inheritance or proceeds of a lawsuit or insurance policy exceeding $15,000, the court must appoint a guardian. Both parents or a surviving parent may make and file with the Clerk of the Court a written declaration naming a guardian of the child's person or property to serve if both parents die or become incapacitated. A guardian may also be designated in a will in which the child is a beneficiary.

Removal of Personal Representative

Florida law provides that a personal representative may be removed and the letters revoked for any of the following causes, and the removal shall be in addition to any penalties prescribed by law:

1.   Adjudication of incompetency.

2.   Physical or mental incapacity rendering the personal representative incapable of the

      discharge of his or her duties.

3.   Failure to comply with any order of the court, unless the order has been superseded on

      appeal.

4.   Failure to account for the sale of property or to produce and exhibit the assets of the estate

      when so required.

5.   Wasting or maladministration of the estate.

6.   Failure to give bond or security for any purpose.

7.   Conviction of a felony.

8.   Insolvency of, or the appointment of a receiver or liquidator for, any corporate personal

      representative.

9.   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.

10. Revocation of the probate of the decedent's will that authorized or designated the

      appointment of the personal representative.

11. Removal of domicile from Florida, if domicile was a requirement of initial appointment.