Florida Probate Litigation Lawyer Blog

Spoliation of Evidence

May 29, 2026 | by Chepenik Trushin LLP

Spoliation of evidence is the failure to preserve evidence, either negligently or intentionally, that is materially relevant to an anticipated or pending lawsuit. To determine whether a party has engaged in spoliation and what remedies the non-spoliating party is entitled to, courts evaluate three factors: “(1) whether the evidence existed at one time, (2) whether the spoliator had a duty to preserve the evidence, and (3) whether the evidence was critical to an opposing party being able to prove its prima facie case or defense.” See Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2026). In a recent trust/probate litigation case in Florida’s Sixth Judicial Circuit, John Shoemaker, et al. v. Stephanie Lyons Mucciano, et al., Case No. 23-008831, available on the Pinellas County Clerk of Court website, the Plaintiffs were found to have engaged in spoliation of evidence, and one of the Plaintiffs, John Shoemaker, was also found to have intentionally withheld evidence in violation of a court order.

In Shoemaker v. Mucciano, the Plaintiffs, John Shoemaker, Kathy Johnson, James Shoemaker, and Rodney Shoemaker, alleged that Chepenik Trushin LLP’s client, Defendant Stephanie Mucciano, unduly influenced Kerry Shoemaker (who was Stephanie’s life partner and the Plaintiffs’ father) to effectuate three transactions during a time period Plaintiffs claimed that Kerry had substantially diminished capacity or lacked capacity. Pursuant to the January 16, 2026 Final Judgment [Docket Entry 949], the judge rejected all of the Plaintiffs’ claims, denied all relief sought by Plaintiffs, and entered judgment in favor of Stephanie on a counterclaim. The judge did “not find credible Plaintiffs’ contentions that Kerry had capacity problems, that Stephanie isolated Kerry from friends and family, or that Stephanie unduly influenced Kerry.” The judge further found that “the transactions Kerry engaged in to benefit Stephanie were the result of Kerry’s love and affection for Stephanie and his desire to take care of her, both during his life and after his death.” The Court also sanctioned the Plaintiffs for spoliating evidence and imposed harsher sanctions on one of the Plaintiffs, John Shoemaker, for intentionally withholding critical evidence.

Prior to the trial, a special magistrate was appointed by the judge to address discovery disputes. One of those disputes involved Stephanie’s claim that the Plaintiffs had spoliated their text messages with Kerry. In the magistrate’s August 4, 2025 Report and Recommendations to the judge [Docket Entry 383], the magistrate applied the factors from Golden Yachts, Inc. v. Hall and found that “Plaintiffs have engaged in spoliation of evidence because (1) text messages between John and Kerry, James and Kerry, and Rodney and Kerry existed, (2) Plaintiffs duty to preserve evidence (including text messages with Kerry) began at least by February 2022, and (3) the text messages are critical to Defendant’s ability to defend against Plaintiff’s claims of undue influence and incapacity.”

Ancillary Administration in Florida: What Happens When a Non-Resident Dies Owning Florida Property

May 28, 2026 | by Chepenik Trushin LLP

When a loved one who lived in another state passes away, families often assume that the probate proceeding in the decedent’s home state takes care of everything the decedent owned, wherever the property happened to be located. In many cases, this assumption is wrong. Each state applies its own law to property located within that state, so when a non-resident dies owning assets in Florida, a separate, secondary probate proceeding called an “ancillary administration” is often required to address the Florida assets. Understanding when ancillary administration is required, how it works, and how it can sometimes be avoided is essential for any non-resident owning Florida assets, and for the families they leave behind.

Ancillary administration is the secondary probate proceeding required in Florida when a non-resident of Florida dies owning Florida property in their own name. The “primary” or “domiciliary” probate is opened in the decedent’s home state and addresses the decedent’s property owned there, and often any “intangible” assets, such as bank accounts, the decedent may have held in other states. The Florida ancillary probate runs alongside the domiciliary administration and addresses the Florida property, including any real property located in Florida and “tangible personal property,” such as vehicles, boats, furniture, etc. that may be located in Florida. The most common type of property addressed through a Florida ancillary probate administration is real estate, whether that be a vacation home, an investment property, or simply a piece of land.

Take a simple example. Suppose Janet, a lifelong resident of Ohio, passes away owning a condominium in Miami titled solely in her own name. Janet has a valid Last Will and Testament, and her family promptly opens a domiciliary probate administration in Ohio. Even though a court in Ohio would have full authority to administer Janet’s Ohio assets, and potentially intangible assets located in other jurisdictions, it would have no authority to administer the Miami condo. To properly administer the Miami condo, the family would need to open an ancillary probate administration in Miami-Dade County, Florida and have a personal representative (what Florida calls an “executor” or “administrator”) appointed in Florida to deal with the condo. The result is two probate proceedings in two states running at the same time, with two sets of court filings (and two sets of legal fees), all before Janet’s beneficiaries can take clean title to the Miami condo.

Planning for Incapacity: Advance Directives vs. Guardianship

February 25, 2026 | by Chepenik Trushin LLP

When a loved one becomes incapacitated and can no longer manage their affairs, families often assume they can simply step in to help. However, legal authority to fully take control of a loved one’s personal and financial affairs does not arise automatically upon their incapacitation. Without proper advance planning, particularly through a durable power of attorney, families may be forced into a court-supervised guardianship, which can be emotionally taxing and financially draining. Understanding the differences between (1) planning in advance for your own potential incapacity and (2) a court-supervised guardianship helps elucidate why planning ahead is so important.

In Florida, guardianship law is governed, in part, by Chapter 744, Florida Statutes. A guardianship may be established only after a court determines that a person lacks capacity to exercise some or all of their rights and that no lesser restrictive alternative (such as the existence of a trust with an appointed trustee to manage the person’s financial affairs, or the existence of a durable power of attorney authorizing someone to act on another’s behalf in the event of their incapacity) is sufficient to properly protect their interests. For example, guardianship may become necessary when no one holds a valid durable power of attorney for a now-incapaciated person, and family members disagree about decision-making authority or there are concerns about exploitation or mismanagement of their loved one’s affairs. Florida courts may appoint a limited guardian, who can only exercise certain rights, or a plenary guardian, who is empowered to take any (legal) action on behalf of the incapaciated person.

Guardianship ultimately places decision-making authority under court supervision. A guardian’s powers are defined by court order, and the guardian must seek approval for certain actions. While guardianship may provide oversight and protection, it also limits flexibility and privacy, and guardianship proceedings often cost many tens of thousands of dollars, particularly if they are contested.

Probate vs. Non-Probate Assets

January 9, 2026 | by Chepenik Trushin LLP

Understanding the difference between those assets which must pass through probate and those which pass outside the probate process is essential for the proper administration of a person’s estate. Probate is the legal process by which the court oversees the marshalling of a decedent’s assets, the distribution of those assets to the decedent’s beneficiaries or heirs-at-law, and payment of any valid debts and taxes of the decedent. When a person dies with a valid Last Will and Testament (i.e., a Will executed in conformity with Florida’s “Will Act Formalities”), the court “admits” the Will to probate and authorizes distribution of any assets subject to probate to the beneficiaries identified in the Will. When a person dies without a valid Last Will and Testament, the court follows Florida’s laws of intestate (i.e., without a Will) succession and authorizes distribution of any assets subject to probate to the decedent’s heirs-at-law, which, depending on various factors, may include a surviving spouse, children, parents, siblings, etc.

Whether a probate administration is testate or intestate, a key question is always: “What assets are actually subject to probate”? In other words, what assets must be disclosed to the court and ultimately administered by the court for distribution to either the beneficiaries or heirs-at-law? In simple terms, any assets that a person dies owning solely in their own name upon their death are considered “probate assets,” or assets that must be administered by the court for distribution to the beneficiaries or heirs. For example, if a person dies owning a bank account titled solely in their own name, that is not designated as payable on death to any other person, that account must go through probate. Similarly, if someone owns an investment property (i.e., a property that is not their homestead under Florida law) in their own name on their date of death, and there are no joint owners or other interest-holders on the deed, that property likewise must go through the probate process.

However, with a strong estate plan, it is often possible to bypass the need for probate entirely. Again, those assets owned by a person solely in their own name upon their date of death must go through the probate process. But there are ways to title assets, or otherwise designate beneficiaries on those assets, in order to keep those assets out of probate. For instance, assets owned jointly with a right of survivorship do not need to go through probate upon the death of the first-to-die co-owner. As an example, if brother and sister Steven and Linda are listed as cotenants with rights of survivorship on the deed to an investment property they own together, then upon the death of Steve, his interest in the property would automatically pass to Linda the moment he dies. His interest in the property would automatically transfer to Linda by operation of his death, and there would be no need for his interest in the property to go through probate. Similarly, it is possible to designate a pay-on-death beneficiary on many types of assets, such as bank accounts and retirement accounts, such that those assets immediately pass to the designated beneficiary or beneficiaries upon a person’s death without the need to go through probate. As an example, let’s say Steve has a checking account titled in his own name with $100,000 in it, with Linda designated on the account as Steve’s pay-on-death beneficiary. Immediately upon Steve’s death, Linda has a right to claim the funds, without the account going through probate. Had Steve not designated Linda on the account as a pay-on-death beneficiary, the account otherwise would have needed to go through probate. Another common method of keeping assets out of probate is by titling them in the name of a revocable or irrevocable trust. Again, only those assets owned in someone’s own name upon their death are subject to probate; any assets properly titled to someone’s trust upon their death do NOT need to go through probate, and instead will be administered in accordance with the terms of the applicable trust.

Special Needs Trusts & Choosing the Right Trustee: Lessons Learned from a Recent Fraud Prosecution Case

October 16, 2025 | by Chepenik Trushin LLP

On June 23, 2025, an indictment was unsealed which charged two Florida men, employees at The Center for Special Needs Trust Administration, with participating in a fraudulent scheme to steal over $100 million from their employer nonprofit organization that managed funds for people with special needs and disabilities. It was alleged that over a 15-year period, the defendants worked together to take money from special needs clients and use it as their personal funds. The head of the Justice Department’s Criminal Division described the crime as “stealing $100 million dollars meant for the most vulnerable members of our society to enrich themselves.”

This case highlights two important issues: the use of special needs trusts for the benefit of disabled individuals, and the importance of choosing the right person or persons to manage such a trust.

A special needs trust is established to hold funds for the benefit of people with special needs and disabilities. These trusts are created in a manner that allows the beneficiary to remain eligible for government benefits, like Supplemental Security Income and Medicaid. This type of trust is able to help individuals with disabilities meet their particular needs, create more comfortable lives, and serve as a safety net in the event they need access to additional funds.

Evolving Estate Planning Needs for Small Business Owners

June 27, 2025 | by Chepenik Trushin LLP

Family-owned businesses collectively create about half of US jobs and make up about 40 percent of the US economy. While family-owned businesses collectively form an economic leviathan, each small business and its owner face distinct needs and circumstances. Some may grow into multi-million-dollar enterprises, while others remain small but reliable. In both cases, and everything in between, small business owners need an estate plan to make sure that the wealth they fought so hard to build does not get lost after death.

Small business owners are savvy. They often know enough to incorporate and to hire a tax professional to help them comply with their tax obligations. Yet many business owners don’t consider the importance of estate planning or when they should work with an attorney to create an estate plan.

For an unmarried entrepreneur with no children and a new business, estate planning could be simple and may, if circumstances warrant, involve only the preparation of a will. But simple does not necessarily mean easy, and even in these “simple” cases it is still prudent to contact a Miami estate planning attorney to make sure that one’s will meets Florida’s legal requirements for a valid will.

Using AI to Craft Legal Arguments

May 23, 2025 | by Chepenik Trushin LLP

Artificial intelligence (“AI”) is a great tool to assist people with a variety of tasks. For example, AI can create grocery lists and corresponding recipes, offer advice for difficult situations, or even draft an email to a colleague. But can AI do the work of an attorney?

In the Matter of Phylliscita Ismay Samuel, the court had to address a lawyer’s careless use of AI in a contested probate proceeding. In this case, a decedent executed a purported prior will in 2012. In 2014, the decedent was the subject of a guardianship proceeding where she was adjudicated incapacitated and the court appointed Samuel as her guardian. Thereafter, the decedent executed the purported 2014 will which was challenged and became the subject of this case. The party challenging the will, Osborne, sought summary judgement and dismissal of Samuel’s petition and denial of the propounded 2014 instrument, alleging that the decedent lacked capacity at the time of execution, and that the instrument was procured by fraud, duress and undue influence by Samuel and others.

While attempting to challenge the will, Osborne faced a huge problem with his case. Osborne’s attorney submitted documents which contained fictional and/or erroneous citations because he relied on generative AI to draft these documents. In other words, the AI which Osborne’s attorney used had “hallucinated” or made up the cases relied on in the legal arguments made to the court.

Reversible Error: Cases where Insufficient Attorney’s Fees Awards were Remanded on Appeal

April 25, 2025 | by Chepenik Trushin LLP

In reviewing a trial court’s award of reasonable attorney’s fees for the prevailing party, appellate courts must look to the record to determine if “there is competent substantial evidence which supports the trial court’s order under the totality of the circumstances.” Raza v. Deutsche Bank Nat’l Tr. Co., 100 So. 3d 121, 126 (Fla. 2d DCA 2012). While the amount of fees awarded is subject to a trial court’s discretion, appellate courts still may assess whether trial courts abused that discretion in determining the amount of fees owed to the prevailing party. In some instances, this leads to trial courts being reversed on appeal for awarding significantly less than the amount requested by the party seeking attorney’s fees.

For example, in Biscayne Roofing Co. v. Palmetto Fairway Condo. Ass’n, the Third District Court of Appeal found error in the amount of attorney’s fees awarded by the trial court. In the court below, unrebutted expert testimony called for a fee award between $19,000 and $25,000, but the trial court awarded only $10,000. The appellate court found that the $10,000 award was not supported by the record and constituted an abuse of the trial court’s discretion. The appellate court remanded the fee issue to the trial court for a redetermination of the amount of attorney’s fees owed consistent with its order. 418 So. 2d 1109, 1110-11 (Fla. 3d DCA 1982).

Further, in Autorico, Inc. v. Gov’t Empls. Ins. Co., the Third District Court of Appeal held that the trial court erroneously awarded attorney’s fees based on a contingency fee agreement and not the amount it found reasonable. In the court below, the plaintiff insurer was awarded a judgment against defendant automobile seller for selling a defective automobile to the insured that caught fire after being driven 10 miles. Plaintiff filed a motion to recover its attorney’s fees on the basis that Defendant had asserted frivolous defenses, thereby entitling Plaintiff to its reasonable attorney’s fees. The trial court granted the motion and found that the reasonable attorney’s fees incurred were $2,150.00, but awarded only $833.33 in accordance with the contingency fee contract between Plaintiff and its attorney. The appellate court reversed and held that it was error for the trial court to base the fee award on the contingency fee contract rather than the reasonable amount of fees it had found to be incurred, as the court was not bound by the contingency fee contract in awarding a reasonable fee. The appellate court remanded with directions to enter an attorney’s fee award of $2,150.00. 398 So. 2d 485, 486-88 (Fla. 3d DCA 1981).

Contingency Fee Multipliers

March 24, 2025 | by Chepenik Trushin LLP

In Florida Patient’s Compensation Fund v. Rowe, the seminal 1985 case in Florida on prevailing party attorney’s fees, the Florida Supreme Court affirmed that when computing a reasonable attorney’s fee for the prevailing party in a case involving a contingency fee agreement, a significant factor to consider in the calculation is the contingency risk factor, or “multiplier.” In Rowe, the Court discussed the need for lawyers to offer services on a contingency basis in order to provide litigants with increased access to the court system and the service of attorneys, as well as the burden this places on attorneys who may only get paid if their client ultimately prevails in the litigation. The Rowe Court held that, upon calculating a preliminary “lodestar” award of attorney’s fees for the prevailing party (i.e., the reasonable hours expended on the litigation multiplied by a reasonable hourly rate for the services provided), Florida courts are authorized to enhance that lodestar by a multiplier of 1.5 to 3, depending on the prevailing party’s likelihood of success at the outset of the case. For example, if a court were to calculate a lodestar of $100,000.00 in reasonable attorney’s fees in a case involving a contingency fee agreement, Rowe would authorize the court to multiply that amount by 1.5 to 3 (resulting in a potential fee award of anywhere between $150,000.00 and $300,000.00). Specifically, the Rowe Court held that when success is more likely than not at the outset of litigation, the multiplier should be 1.5; when the likelihood of success is approximately even at the outset, the multiplier should be 2; and when success was unlikely at the time the case was initiated, the multiplier should be between 2.5 to 3.

A few years later, after the United States Supreme Court effectively eliminated the use of the contingency multiplier in Federal matters, the Florida Supreme Court reexamined its decision in Rowe. In Standard Guaranty Ins. Co., v. Quanstrom, the Florida Supreme Court modified the computation of the contingency fee multiplier. The Court placed attorney’s fees cases into three broad categories: (1) public policy enforcement cases, (2) tort and contract claims, and (3) family law, eminent domain, and trusts and estates matters. In the public policy category, the Florida Supreme Court agreed with the United States Supreme Court that the twelve factors set forth in Johnson v. Georgia Highway Express, should be utilized to determine a reasonable attorney’s fee. Second, in the tort and contract claims category, the court reaffirmed the factors set forth in Rowe and considered additional factors in determining whether to apply a multiplier: “(1) whether the relevant market requires a contingency fee multiplier to obtain competence counsel; (2) whether the attorney was able to mitigate the risk of nonpayment in any way; and (3) whether any of the factors set forth in Rowe are applicable, especially the amount involved, the results obtained, and the type of fee arrangement between the attorney and his client.” The Court reasoned that a multiplier is still a useful tool which can help assist trial courts in determining reasonable fees when risk of nonpayment is established, though modified the multiplier factor established in Rowe to allow a multiplier of the calculated lodestar from 1.0 to 2.5 (replacing the previous standard of 1.5 to 3.0). However, in the family law, eminent domain, and trusts and estates category, the Court held that multipliers are generally not justified.

In 2017, the Florida Supreme Court again addressed the utilization of multipliers in Joyce v. Federated Nat’l Ins. Co. The Court made clear that the use of contingency fee multipliers is not limited to “rare” or “exceptional” circumstances, a position that had been taken by some lower state courts. However, in 2023, the Florida Statutes were amended at F.S. 57.104 to state that “there is a strong presumption that a lodestar fee is sufficient and reasonable. This presumption may be overcome only in a rare and exceptional circumstances with evidence that competent counsel could not otherwise be retained.” Thus, while a multiplier is still available under Florida law, the circumstances in which a court may apply a multiplier are now substantially constrained.

Does the losing side have to pay my attorney’s fees?

March 4, 2025 | by Chepenik Trushin LLP

Broadly speaking, there are two approaches to the payment of the winning, or “prevailing,” party’s attorney’s fees at the conclusion of litigation. In some countries outside the United States, courts follow the “English Rule” for determining who is responsible for paying the prevailing party’s attorney’s fees, where the losing party typically pays the prevailing party’s attorney’s fees as a matter of course. In contrast, the “American Rule” for attorney’s fees provides that each party is generally responsible for paying their own attorney’s fees, regardless of the outcome of the case. However, Florida recognizes exceptions to the American Rule, such that the losing party in a lawsuit may be required to pay the prevailing party’s attorney’s fees – namely, when a statute or contract expressly entitles the prevailing party to recover its attorney’s fees from the losing party in the event of litigation. In such instances, Florida law requires that the fee to be recovered from the losing party be reasonable, and a body of case law has been developed governing the calculation of a reasonable attorney’s fee for the prevailing party.

In Florida, the basic model for determining reasonable attorney’s fees primarily follows the federal “lodestar” approach. This method involves accounting for several criteria and calculating the total number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate to produce the “lodestar” amount. The court may then adjust this lodestar amount based on factors such as the contingency risk and the results obtained.

In determining reasonable attorney fees, Florida courts consider the following criteria: