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How to Get Rid of Bad Trustees or Personal Representatives by Alex Douglas

How to Get Rid of Bad Trustees or Personal Representatives by Alex Douglas

If you are a beneficiary of a trust or estate and you have a trustee or a personal representative that it’s not doing a good job you may be able to remove him or her under Florida law. A personal representative and trustee called fiduciaries have an obligation to diligently and fairly administer the estate or trust according to Florida law. A fiduciary cannot self-deal, nor favor one beneficiary over another. As a beneficiary of a trust, the trustee must give you an accounting at least once a year of the trust assets. If you are not being reasonably informed of what’s going on, you should do something to enforce your rights so that you can have the information you need to understand what’s going on in the estate administration or the trust administration. Also, if the trustee in the trust administration is not fulfilling their fiduciary duties and has committed a serious breach fiduciary duty, you are entitled to seek their removal under Florida law. The trust code also allows you to seek recovery of your attorneys’ fees either from the trust or from the trustee individually.

If you are a personal representative, trustee, or a beneficiary, and you’re having a legal issue ShuffieldLowman has a very experienced fiduciary litigation department that can help you. We will work very hard to try to solve your legal problem.

 

The Importance of Revisiting Standard Construction Contracts by Jim Washburn

The Importance of Revisiting Standard Construction Contracts by Jim Washburn

Over the last few years there has been a significant increase in the amount of construction activity in Florida. And you have these developers who are typically entering in a construction contracts that are proposed by their general contractor clients and often times those forms unfairly shift the risks that can arise on a project to the owner. And these owners are strongly advised to have an expert in construction law review these construction contracts to modify them to more equitably allocate the risk between the parties. Even if the parties are using a standard AIA document. They are still advised to review and modify them in order to make sure that they comply with Florida law (Florida statutes) and to address project specific issues. For example, in the AIA documents the indemnity provisions are arguably enforceable under Florida Statute § 725.06.

Another result of the increase of construction activity in Florida is that you have premier subcontracting trades being able to be more selective in which projects they are going to work on. As a result, they are pushing back on the more onerous provisions that are in they are standard subcontract forms with the general contractors. They’re able to use their long history of high-quality work to leverage better terms in those standard subcontract agreements. Conversely, general contractors now are unable to always use their first choice of a subcontractor and as a result they are sometimes forced to use a lower quality sub to the greater likelihood of defaulting on a project. And these general contractors are strongly advised to revisit their own standard subcontract forms to make sure that they protect themselves against such a default.

The goal of a well-crafted construction contract is not just to win a fight if one arises on a project. But, rather to avoid the flight altogether, because the party have already discussed the issues and agreed on how to allocate the risk of these various contingencies.


 

Tips for Enforcing or Defeating a Non Compete Keith Hesse

Tips for Enforcing or Defeating a Non Compete Keith Hesse

Non-competition agreements or non-competes are becoming more and more common. Many employees are being asked or even required to sign them and numerous employees are doing so. There are good reasons for this. From the employer side, they provide protection for their investment of their employee that they have hired, trained, and developed who wants to jump ship and work against them for a direct competitor. For an employee a non-compete can have devastating consequences. It can actually preclude them from working in their chosen occupation and local for a significant period of time. As a result there’s a lot of information, and frankly misinformation out there about non-competes. You may hear for example that they are not enforceable in this state because Florida is a right to work state. Those are two entirely different concepts. Non-competes are enforceable in the state of Florida. In fact, there is a specific statue that addresses them and there is a lot of case law that interprets and applies that statute.

However, based on the facts and circumstances of each case, that does not mean that the non-compete is always enforceable or enforceable to the full extent of the terms in the document. The very first issue to look at is whether that noncompete is actually signed by the employee. If it is not, it is not in enforceable. There really is no substitute for professional advice on a non-compete, preferably before it is signed. For example, the document maybe entitled noncompetition agreement, but it may actually allow the employee to work for a competitor but just not to solicit customers or clients or disclose information of the previous employer.

 

Choosing a Fiduciary for Your Estate Planning Documents by Alex Douglas

Choosing a Fiduciary for Your Estate Planning Documents by Alex Douglas

One of the most important decisions you will be making when you do your estate planning is who do you want to be in charge of your estate or your trust. This person is called a fiduciary. If you’re doing a will, it will be a personal representative. If you’re doing a trust, it will be a trustee. These people administer your affairs after you’re gone.

If you’re considering putting a child in charge of your estate or your trust, or more than one child, consider this: especially where you want two of your children working together. If they were unable to work together during your lifetime, it is very unlikely they will be able to work together after you are gone. There is no magic to this after you are passing and in fact, it could lead to unnecessary litigation between two co- person representatives or two co-trustees that can just eat up your hard-earned money. If you believe there’s any chance that your children may not be able to work together, or if you believe the child that you want to administer your estate or trust is going to be railroaded by the other children or might not be able to stand up to the other children, consider a trusted friend or even a bank to act as your fiduciary. It could be the best decision you ever made because again you’re not setting your child or children up for failure you are avoiding unnecessary potential legal fees and litigation.