Practice Areas

Probate Litigation

Trust Litigation

Challenge the validity of a trust. A trust can be challenged on the grounds of undue influence, lack of proper execution formalities, lack of capacity, insane delusion, and fraud.
Failure to make proper and timely distributions. The trustee is required to follow the terms of the trust instrument by making distributions to the proper beneficiaries and in the proper amounts. The trustee should also make timely distributions as well, instead of improperly retaining trust corpus.

Improper investments. The trustee, as a fiduciary, is required to make prudent investments of the trust. Under the Prudent Investor Act, trustees are normally required to diversify the trust, make appropriate and suitable investments, and not take unnecessary risk with the trust investments.

Self dealing. A trustee should not normally engage in transactions between the trustee and the trust, unless certain procedures are followed. Trustees that enrich themselves at the expense of the trust can be subject to surcharge in Florida trust litigation.

Excessive trustee compensation. The Florida Trust Code and Florida caselaw restrict trustee compensation to that of reasonable compensation. Trustees that pay themselves excessive compensation can be subject to surcharge in trust litigation.
Attorney fee disputes. The attorney fees that a trustee charges can always be challenged, whether the fees are charged in regular administration of a trust or in trust litigation.

Interpreting ambiguous trust provisions. Unfortunately, not all trusts are models of clarity. In some instances, the terms of the trust will have to be interpreted, sometimes through litigation over the terms of the trust.

Improper gifts from trusts and excessive distributions from a trust. There have been examples of trusts where the trustees will make gifts of the trust to third persons (or themselves) while the settlor of the trust is still alive. During the lifetime of the settlor, the trustee typically owes a fiduciary duty to the settlor of the trust only. At the death of the settlor, however, any beneficiary of the trust can take action to redress any breach of fiduciary duty that may have taken place prior to the death of the settlor. Depending on the extent of the gifting from the trust, the trust litigation can be monumental.

Trust Reformation. A trust can be reformed if it does not reflect the trust intentions of the Settlor, typically because of mistake. Mr. Skatoff has experience in trust reformation actions.
Oral Trusts and Missing Trust Documents. A trust can be litigated even though the trust instrument is missing. It is possible to create an oral trust, and such trusts can be litigated as well.
Standing. The issue of standing – who has the right to pursue the remedy in question – is often litigated.

Guardianship Litigation

Incapacity Proceedings. Under Florida law, when a petition for incapacity is filed, the guardianship court will appoint a three member panel to examine the alleged incapacitated person. Typically the persons appointed include a medical doctor in the area of psychiatry, a psychologist, and a lay person. If two of the three persons find the alleged incapacitated person to be incapacitated, the guardianship court will have a hearing on incapacity. The guardianship court will appoint an attorney to represent the alleged incapacitated person. The alleged incapacitated person has the right to hire their own attorney to defend against the incapacity proceeding.
Steps can be taken to avoid or minimize the chances of a guardianship being imposed.
Appointment of Guardian. If the guardianship court finds the person to be incapacitated, the court will determine whether a guardianship is needed. The court is required to determine whether there is a “less restrictive alternative” to a guardianship. For example, if the incapacitated person already has their assets in a trust, and also has a health care directive in place along with a durable power of attorney, the court might not appoint a guardian.
Choice of Guardian. If the court finds that the appointment of a guardian is necessary, the guardianship court will appoint a guardian. If one able family member applies for the position, that person is likely appointed. If more than one person applies, the guardianship court will hold an evidentiary hearing to determine the most appropriate person to appoint. In such disputes, there are often allegations of financial abuse and self dealing directed towards each of the family members. In extreme cases of family disfunction, the guardianship judge may appoint a professional guardian.
Guardianship Accounting. A Florida guardian is required to file an annual accounting of the guardianship finances. Many guardians struggle to properly and accurately report their activities, and some engage in acts of self dealing and theft from guardianship accounts. A family member or the court can pursue the improper acts of a guardian. The guardianship court can also appoint a court monitor to determine whether the guardian is properly carrying out the duties required of the guardian.
Removal of Florida Guardian. If a Florida guardian has performed poorly, the court on its own ar at the request of a family member can hold a hearing to determine whether the guardian should be removed. Grounds for removal include lack of proper care of the ward, financial self dealing, theft, lack of proper accountings, and lack of compliance with court orders.
Request for Authority to Act. Guardians are empowered, on their own, to engage in the day to day care and maintenance of the ward. If the guardian wants or needs to do something else, permission from the guardianship court is often required. For example, the guardian will need permission to sell the real estate of the ward and to enter into contracts. Importantly, permission is required to file a lawsuit on behalf of the ward. These actions can be challenged if appropriate.
Taking Control of a Trust. Guardianship can allow the guardian to take control of the ward’s revocable trust if necessary, by replacing the trustee.