Skip to main content
Tag

Litigation

Beware of Coronavirus Related Scams in Florida

By Elder Law, Long-Term Care

The IRS is warning taxpayers to be on the lookout for scams related the Coronavirus, or COVID-19, which can lead to tax-related fraud and identity theft. The IRS and its Criminal Investigation Division have seen a new wave of phishing schemes against taxpayers.  Senior citizens are among the most vulnerable to these scams and should be especially careful during this time.

In its press release, the IRS reminded taxpayers that the IRS is never going to call you asking to verify or provide your financial information so you can get an economic impact payment or refund faster.  Taxpayers should watch out for emails, text messages, websites, and social media attempts that appear to be from the IRS and request money or personal information. If you receive an email that appears to be coming from the IRS, do not open it or click on attachments or links. You should go to the IRS official website, www.IRS.gov for the most up-to-date information.

The IRS also provides the following items to keep in mind, in order to protect yourself and your loved ones:

  • Scammers may emphasize the words “stimulus check” or “stimulus payment.” The official term is economic impact payment.
  • Scammers may ask the taxpayer to sign over the economic impact payment check to them.
  • Scammers may ask by phone, email, text, or social media for verification of personal and/or banking information, saying that the information is needed to receive or speed up their economic impact payment.
  • Scammers may suggest that they can get a tax refund or economic impact payment faster by working on the taxpayer’s behalf. This scam could be conducted by social media or even in person.
  • Scammers may mail the taxpayer a bogus check, perhaps in an odd amount, then tell the taxpayer to call a number or verify information online in order to cash it.

 

Taxpayers who receive unsolicited emails, text messages, or social media attempts to gather information that appear to be from the IRS should forward it to [email protected].

Fred Jacobs is a Florida Board Certified Tax Lawyer and Sean Byrne is an elder law litigator.  Contact Fred or Sean at Bach, Jacobs & Byrne, P.A. if you or a senior you know has been the target of elder exploitation or needs assistance with tax matters. Call (941) 906-1231 to schedule an appointment.

June 9, 2020
Love0

What constitutes a breach of fiduciary duty?

By Estate Planning, Probate

A fiduciary is an individual who has a duty to act in the best interests of another. There are many kinds of fiduciary relationships, but some of the most common are guardian-ward relationships, trustee-beneficiary relationships, and agent-principal relationships.

There is no one method by which a fiduciary duty may arise: certainly, a fiduciary relationship may be established explicitly, by contract, for example. But a fiduciary relationship can also be legally binding if it is established implicitly, without formal documents. Court cases surrounding breaches of fiduciary duties often hinge on the question of whether there existed a fiduciary relationship to have been breached in the first place.

With a Trust, the trustee acts as the fiduciary to the beneficiaries of the Trust, whereas in a probate, the personal representative of the estate acts as the fiduciary to the heirs of the estate. If you are Personal Representative or Trustee and are being accused of breaching your fiduciary duties, contact the trust and estate litigators of Bach, Jacobs & Byrne, P.A. to discuss your defense. Call us at (941) 906-1231 to set up a consultation.

May 2, 2019
Love0

How can I remove a trustee from a Florida Trust?

By Estate Planning

There are various grounds for removing someone as trustee of a Florida Trust. The Florida Trust Code recognizes the following as legally-valid reasons to remove a trustee:

-The trustee has committed a serious breach of the Trust

-Lack of cooperation among co-trustees that substantially impairs the administration of the Trust

-The trustee is unfit, unwilling, or persistently fails to administer the Trust effectively

-There has been a substantial change of circumstances, or removal is requested by all of the qualified beneficiaries

Sometimes, there are Trust provisions which allow for the removal of a trustee by a majority vote of the beneficiaries. If this is not the case, in order to remove a trustee, it can be necessary to file a removal action and attend an evidentiary hearing where evidence of the trustee’s unlawful actions must be presented. Attorney Sean Byrne of Bach, Jacobs & Byrne, P.A. is a trust and estate litigator who can advise and represent you in trust litigation, including the removal of a trustee. Call (941) 906-1231 to set up a consultation.

April 22, 2019
Love0

What is an “incontestability provision” in an insurance policy?

By Asset Protection Planning, Elder Law, Estate Planning, Medicaid Planning, Medicare

Florida Statute §627.455 states:

Every insurance contract shall provide that the policy shall be incontestable after it has been in force during the lifetime of the insured for a period of 2 years from its date of issue except for nonpayment of premiums and except, at the option of the insurer, as to provisions relative to benefits in event of disability and as to provisions which grant additional insurance specifically against death by accident or accidental means.

The incontestability provision is thus the clause included in Florida life insurance policies which limits the time during which the insurer can challenge the validity of the policy to 2 years. Whether the challenge to the policy is based on alleged application fraud or an inability to enforce the policy, all claims must be filed within the 2-year period – or else, the claim is barred.

This provision has its origins in the mid-19th century, when insurance companies began including incontestability provisions to combat the perception that insurance companies would refuse to honor their policies over minor mistakes in a person’s life insurance application. Florida required the inclusion of incontestability provisions by law in 1955.

There is a possible exception to incontestability provisions: imposter fraud. Imposter fraud refers to the impersonation of a life insurance application by someone else during the medical examination of the application process – this type of fraud can be exempt from the incontestability provision.

To review your end-of-life and estate plan documents with experienced and dedicated estate and elder law attorneys, schedule an appointment with Bach, Jacobs & Byrne, P.A. at (941) 906-1231 today.

 

April 18, 2019
Love0

Can a Will be contested while the testator is still living?

By Elder Law, Estate Planning, Probate

No, in Florida a Will cannot be challenged while the testator is still alive. The Florida Probate Code states clearly: “An action to contest the validity of all or part of a will or the revocation of all or part of a will may not be commenced before the death of the testator.” However, if one suspects undue influence or fraud in the creation of a Will, one can certainly gather facts and evidence in preparation for future litigation if and when the time comes.

After a person’s death, the personal representative serves a Notice of Administration on the estate’s beneficiaries. For 90 days after this notice is served, beneficiaries can contest the Will.

A Will can be challenged for, among other reasons, errors in execution, fraud, lack of testamentary capacity, or presence of undue influence. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced probate litigators and estate attorneys who can advise you about your case. Call us at (941) 906-1231 to set up an appointment.

April 12, 2019
Love0

How can I file a wrongful death claim?

By Elder Law, Probate

Florida Statute §768.19 states:

When the death of a person is caused by the wrongful act, negligence, default, or breach of contract or warranty of any person, and the event would have entitled the person injured to maintain an action and recover damages if death had not ensued, the person that would have been liable in damages if death had not ensued shall be liable for damages as specified in this act notwithstanding the death of the person injured.

A wrongful death lawsuit may be filed by the personal representative of the decedent’s estate within four years of his/her death. Any spouse, child, parent, or dependent blood relative of the decedent may ask the personal representative to file the wrongful death claim on their behalf. Examples of incidents that can result in wrongful death include:

-Automobile accidents

-Medical malpractice

-Defective products

-Workplace accidents

-Intentional criminal actions

Typically, wrongful death cases are pursued by personal injury attorneys. However, because of the probate aspects of such cases, retention of a probate attorney is also necessary. If you are a personal representative of an estate, or if you believe your loved one has recently been the victim of wrongful death, the attorneys at Bach, Jacobs & Byrne, P.A. are skilled probate litigators and elder law attorneys who can assist you with the commencement of a probate proceeding to pursue a lawsuit due to wrongful death. Call (941) 906-1231 to schedule an appointment.

March 7, 2019
Love0

What constitutes undue influence in a Will or Trust contest?

By Estate Planning, Probate

The Florida Supreme Court case which has set the standard for determining undue influence in Will disputes is the seminal case of In re: Estate of Carpenter, 253 So.2d 697 (Fla. 1971), which held that: “It is established in Florida that if a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises.”

In terms of proving that that a beneficiary was active in procuring the Will, the Carpenter court lists seven criteria which may be used in doing so:

  1. The beneficiary was present at the execution of the Will
  2. The beneficiary was present on occasions when the testator expressed a desire to make a Will
  3. The beneficiary recommended that an attorney draw the Will
  4. The beneficiary knew the contents of the Will prior to execution
  5. The beneficiary gave preparation instructions to the attorney drawing the Will
  6. The beneficiary secured the witnesses to the Will
  7. The beneficiary kept the Will in his/her possession after execution

The attorneys at Bach, Jacobs & Byrne, P.A. are trained Trust and estate litigators and elder law attorneys. If you think the Will or Trust of a loved one has been impacted by undue influence, call us today at (941) 906-1231 to set up an appointment to discuss your case.

January 18, 2019
Love0

When can trust and estate litigation occur?

By Guardianship, Probate

Though most matters in probate court go unchallenged, certain situations can arise which necessitate probate, trust, or guardianship litigation. Some common such scenarios include, but are not limited to, the following:

-A will is challenged due to a question of the competence of the testator

-There is a dispute over the way a will/trust is worded or structured

-The installation of a guardianship is being contested

-A trustee is attempting to modify or terminate a trust

-A beneficiary is suing a fiduciary for a breach of their duty in administering the probate or trust

If you are in a situation involving probate, trust, or guardianship litigation, call the lawyers at Bach, Jacobs & Byrne, P.A. at (941) 906-1231 to set up an appointment to discuss your options.

November 19, 2018
Love0

Can a guardianship proceeding be contested?

By Guardianship

Yes: any interested person can contest the appointment of a guardian for a given ward, just as any interested person can petition the court to declare that ward incapacitated and in need of a guardian.

The process of determining the capacity of the ward begins with a petition for incapacity, which initiates the appointment of a three-person committee to examine the ward. This committee is made up of at least one psychiatrist or physician and two other health care professionals. Should the majority of the committee members find the ward to be of sufficient capacity, the guardianship proceeding will stop; however, if the majority finds the ward to be incapacitated, the proceeding will continue.

What follows is a final evidentiary hearing on the ward’s incapacity. Here, any person contesting the incapacity of the ward is permitted to present evidence and witnesses to the court. If the alleged incapacitated person is still found to be incapacitated, the guardianship hearing comes next. Florida practice is to pursue lesser restrictive alternatives short of full-fledged guardianship first – but, if a guardian is eventually appointed, the right to appeal remains open. Even after a guardianship is in place, any interested person, including the ward, may file a suggestion of capacity, which could ultimately result in the termination of the guardianship should the court find the ward to have restored capacity. The attorneys at Bach, Jacobs & Byrne, P.A. are experienced guardianship litigators and can represent parties to a contested Florida guardianship.

November 13, 2018
Love0

How can probate litigation be avoided?

By Estate Planning, Probate

Depending on the situation, there are steps that you can take to mitigate and even avoid the stresses of probate litigation.

In probate cases, advance communication can make the process of probate administration easier on all parties involved. Family members may sit down before the death of a loved one and have a conversation about the distribution of assets.

Open and honest communication can help proactively avoid litigation over disputes between fiduciaries and conflicts between beneficiaries and fiduciaries, as well. Having your estate plan documents in order is also important. For help creating your will or trust or to review your existing documents, please call (941) 906-1231 to set up an appointment with the lawyers at Bach, Jacobs & Byrne, P.A.

September 28, 2018
Love0