Civil Litigation

I. Civil Litigation

A. General Liability

The Civil Litigation Attorneys at the Law Office of Fausto A. Rosales, P.A. have vast experience handling all types of liability claims, including but not limited to car accidents, slip and falls, negligent security, for individuals and all types of businesses. We have experience representing the interests of individuals, condominium/apartment buildings, shopping malls, retailers, restaurants, hotels, and contractors at construction sites. The group has extensive experience litigating these disputes in federal and state courts, as well as in mediation and arbitration.

B. Construction Claims

The Civil Litigation Attorneys at the Law Office of Fausto A. Rosales, P.A. have experience representing owners, developers, contractors, and design professionals in disputes arising from design and construction agreements, including construction defect and delay claims, construction liens, and warranty claims. This includes a wide variety of construction-related matters, from contract negotiation to litigation.

II. Probate

The Miami Probate Attorneys at the Law Office of Fausto Rosales, P.A. have extensive experience in probate matters. The need for probate arises when an individual passes away owning assets, whether or not there is a Will. Some people plan to avoid probate. Trusts (link to estate planning/trusts page) and similar instruments can help the post-death transfer of property without the need of probate. However, if no such instruments are in place, or if there are assets in the deceased’s name at the time of death that need to be transferred (either according to a Will (link) or under the laws of intestacy), a probate case is likely necessary. Probate is a court-supervised proceeding that identifies and facilities the transfer those assets, among other things. Depending on the circumstances, there are different types of probate cases.

A. Probate Administration

1. Formal Administration

Formal Probate Administration is required when a decedent has been dead for two years or less and when the value of the probate estate exceeds $75,000. This process can take anywhere from 4-6 months, or longer depending on the nature of the assets in question, whether there is any litigation within the probate case, whether claims are filed against the estate, and whether assets are being sold from the estate, among other things. Once a personal representative is appointed, the assets are compiled and claims against the estate, if any, are satisfied. Then, the personal representative can distribute the remaining assets to the beneficiaries of the estate. Beneficiaries are determined by a Will, or, if there is no Will, then under the laws of intestacy. Florida law dictates the order of heirs. After distribution, the personal representative may petition the court to discharge them from that position and complete the probate case.

2. Summary Administration

According to Fla. Stat. §735.201, Summary Administration is available:

in a testate estate (an estate in which the decedent had a will), the will does not direct administration;
the value of the entire probate estate in Florida, less the value of exempt property, does not exceed $75,000 OR the decedent has been dead for more than 2 years.

The logic behind the 2-year mark is that Florida law limits creditors to 2 years in which they are permitted to file claims against an estate. After that, with limited exceptions, those claims are barred forever.

3. Disposition of Personal Property Without Administration

As indicated in the title, this is not “administration” of an estate. This type of procedure is available when someone dies leaving only certain exempt personal property (i.e., a personal automobile and certain furniture) and that property does not exceed in value the sum of funeral expenses (up to $6,000) and reasonable medical expenses in the last 60 days of illness.

If you or someone you know is unsure whether Probate is necessary, or the type of probate proceeding necessary after a loved one passes away, the Probate Attorneys at the Law Office of Fausto A. Rosales, P.A. can explain these proceedings in more detail and help you determine the next steps in your situation.

B. Probate Litigation

Sometimes Probate is not so straightforward. Unfortunately, the Probate Attorneys at the Law Office of Fausto A. Rosales have seen a number of cases that hit stumbling blocks along the way, causing litigation. Some examples of these scenarios include, but are not limited to creditors’ claims, Trust/Will Contests (i.e., a challenge to the validity of a Will being admitted to Probate), allegations of undue influence or fraud, disputes over entitlement of certain property in an estate, or when the acting personal representative is not properly managing the estate. These situations lead to, often times, contentious litigation. If you or someone you know anticipates litigation in an estate they are involved in, or if there are questions regarding your rights or protecting your interests with respect to an estate, the experienced Probate Attorneys from the Law Office of Fausto A. Rosales, P.A. are willing and able to discuss your situation.

III. Guardianship

When an individual is no longer able to care for themselves or their property and assets, or if a minor child is set to receive an inheritance from the estate of a deceased parent or relative, a guardianship may be necessary. An individual may also voluntarily submit to a guardianship. In a guardianship, the court appoints a guardian to manage the personal affairs and/or property of the incapacitated individual or minor. The guardianship proceeding, from commencement to termination, is court-supervised.

A. Guardianship Administration

Once appointed, the court-appointed guardian has several duties with which he or she must comply. This includes yearly reports and accountings, in addition to acting in the best interest of the incapacitated individual at all times. Understandably, the guardian(s) are held to a very high standard in how they handle this responsibility. It is mandatory under Florida law for a guardian to be represented by counsel. The Guardianship Attorneys at the Law Office of Fausto A. Rosales, P.A. have experience in helping court-appointed guardians navigate this tedious but rewarding responsibility and making sure the guardians are compliant throughout the process.

B. Guardianship Litigation

Guardianships are not immune to disputes. Some examples of guardianship litigation include:

Whether the alleged incapacitated person is actually incapacitated (and to what extent there is incapacity);
A dispute as to who should be appointed guardian;
A dispute when the guardian is not fulfilling his or her legal duties to the Ward or when the Ward is not being properly cared for

The Guardianship Attorneys at the Law Office of Fausto A. Rosales, P.A. are familiar with these scenarios and the intricacies of guardianship law. If you believe a loved one is being wronged in a guardianship proceeding, or if you believe you or someone you know ought to be a guardian over someone else, contact our office to speak with one of our experienced guardianship attorneys.

C. Guardianships of Minors

Minors cannot inherit property or receive funds in excess of $15,000. If this happens, and there is no trust in place to hold the minor’s property until they turn 18 (you can read about trusts here (link), then a guardianship of the property is necessary. Florida law requires certain settlement amounts to be approved by the court. Moreover, certain settlement amounts require the appointment of a guardian ad litem to help protect the minor’s interests.

In addition, if a minor’s parents are deceased or unable to care for the minor, a guardian of the person may be necessary. The guardian will help the minor with everyday personal affairs, such as medical care and general welfare.

The Guardianship attorneys at The Law Office of Fausto A. Rosales, P.A. are experienced in this area of the law and have helped numerous guardians navigate this tedious area of the law.

IV. Wills, Trusts, and Estate Planning

A. Wills

The most common estate planning instrument is the Last Will and Testament. This instrument is the springboard for the rest of a solid estate plan. This document, when properly executed, provides instructions on how a person’s debts and assets are handled and distributed, respectively, after death. The Will also nominates the person the testator (the person that creates the Will) desires to have in charge of any Probate proceeding and the powers that person has. This person is called a Personal Representative. Understandably, this document has significant legal power and must be done correctly. Additionally, the Will should be reviewed periodically to ensure the provisions match the person’s life circumstances. For instance, the way in which a person wants their assets distributed may change upon marriage, divorce, or after children. The Estate Planning Attorneys at the Law Office of Fausto A. Rosales, P.A. have drafted numerous Wills for clients in a variety of life circumstances. This experience allows them to help customize creative and effective Wills for each client to maximize and realize the client’s desires and to avoid litigation down the road. If you do not have a Will, or if you are not sure whether your Will is properly updated to match your circumstances, please feel free to give us a call to discuss.

B. Trusts

Trust instruments are versatile and sometimes help avoid probate altogether. A trust is typically used if a person wishes to place their assets in a vehicle that allows them and/or someone else to manage those assets (known as the “trustee”) while still being able to use those assets for the trust creator’s (known as “grantor” or “settlor”) benefit. For instance, if a person has several properties in a trust, the trust holds title to the property but the grantor is able to manage the properties and use the income for his or her benefit. However, if the person is no longer able to manage the properties in the trust, a successor trustee can be named. That person may step in to continue to manage the trust properties in accordance with the trust documents. If the grantor dies, trusts typically allow for distribution of property from the trust to the trust beneficiaries without the need of a Probate proceeding.

Creating a trust is especially helpful if the grantor(s) has/have assets and minor children. Since minors cannot inherit property, parents or family members with young children can plan for the minor to receive expected inheritance through a trust as opposed to outright to the minor, which would likely cause the assets end up in a guardianship.

The experienced Trust and Estate Planning Attorneys at the Law Office of Fausto A. Rosales, P.A. have drafted numerous trusts of all shapes and sizes. Trusts can be narrow or broad in their purpose. Give us a call to discuss if a trust is right for you and your family as part of your estate plan.

C. Power of Attorney

A power of attorney is a powerful document that allows one person (the attorney-in-fact) to act on someone else’s behalf (the principal). The powers conferred can be narrow or a limited purpose, such as a sale of a home or asset. On the other hand, the powers conferred can be nearly all-encompassing, in which the attorney-in-fact may act completely on the principal’s behalf. Some power of attorney documents also incorporate medical surrogate authority, which allows someone to make medical decisions on someone else’s behalf. Florida allows for a variety of power of attorney documents. The experienced Trust and Estate Planning Attorneys at the Law Office of Fausto A. Rosales, P.A. have drafted numerous power of attorney documents for various occasions. Give us a call to discuss whether a power of attorney is suitable for your estate plan.

D. Living Will/Healthcare Surrogate

Florida law recognizes the right of a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures and to designate another individual to make treatment decisions if the person becomes unable to make his or her own decisions. Additionally, Florida law does not require you to be incapacitated to elect a health care surrogate to make your decisions.

An advance directive is a written statement about how you want medical decisions made should you not be able to make them yourself.  Some people make advance directives when they are diagnosed with a life-threatening illness.  Others put their wishes into writing while they are healthy, often as part of their estate planning. The experienced Trust and Estate Planning Attorneys at the Law Office of Fausto A. Rosales, P.A. have experience walking clients through this difficult part of the estate planning process. Give us a call to discuss whether a living will and/or healthcare surrogate designation is suitable for your estate plan.