Taxation & Estate Planning
Florida Probate Litigation Blog 
Posts probate-related appellate decisions in Florida and links to news stories and blog posts about probate law.
Post Frequency: 0.8/day Last Entry: November 16, 2009 at 19:15:30 Recent Entries: 255
By Juan C. Antúnez
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4th DCA: Can a probate judge boot a recalcitrant cotenant out of homestead property?
Posted on November 16, 2009Buettner v. Fass, --- So.3d ----, 2009 WL 3446478 (Fla. 4th DCA Oct 28, 2009) Why??!!, your clients will ask, do you have to start a new partition action in front of a new judge to adjudicate an existing dispute involving a decedent's homestead property if everything else the decedent owned is already subject to the probate judge's authority? And your answer will be: "Hey, if it made sense, it wouldn't be homestead...
3d DCA: Is Florida's slayer statute equivalent to a forfeiture statute, awarding all of a killer's property to the estate of the victim?
Posted on November 08, 2009LoCascio v. Sharpe, --- So.3d ----, 2009 WL 3448111 (Fla.App. 3 Dist. Oct 28, 2009) Silvia Locascio's brutally beaten corpse was found in her home (pictured below) on October 30, 2001. Eventually her husband and brother-in-law were found guilty of her murder - based in large part on the testimony of the couple's only son...
Georgia's 'Slayer Statute' Doesn't Bar Lawyers From Keeping Fees Paid by Executrix, Judges Rule
Posted on November 06, 2009A year ago things looked pretty bleak for attorney Ben Kuehne here in Miami and a couple of Georgia lawyers who were arrested and apparently spent a night in jail after their client was forced to forfeit estate assets under Georgia's Slayer Statute [click here]...
Georgia's 'Slayer Statute' Doesn't BaLawyers From Keeping Fees Paid by Executrix, Judges Rule
Posted on November 06, 2009A year ago things looked pretty bleak for attorney Ben Kuehne here in Miami and a couple of Georgia lawyers who were arrested and apparently spent a night in jail after their client was forced to forfeit estate assets under Georgia's Slayer Statute [click here]...
Bankr.S.D.Fla: Judgment against former trustee NOT dischargeable in bankruptcy
Posted on October 30, 2009In re Barrett, Slip Copy, 2009 WL 2448153 (Bankr. S.D.Fla. Aug 06, 2009) The ultimate ace in the hole for any debtor is bankruptcy. But the bankruptcy card isn't full proof. Last year a Florida bankruptcy judge ruled that a probate judge's money judgment against a former personal representative was NOT dischargeable under Bankruptcy Code Section 523(a)(4) because the state court judgment was the product of the PR's 'fraud or defalcation while acting in a fiduciary capacity...
4th DCA: Spousal Joint Ownership: Legal Presumptions vs. Antenuptial Agreements: Who Wins?
Posted on October 25, 2009Turchin v. Turchin, --- So.3d ----, 2009 WL 2871564 (Fla. 4th DCA Sep 09, 2009) If I buy an investment property with my own pre-marital funds but jointly title the property with my wife, what was my intent? Did I intend to gift a 1/2 interest in the property to her, or did I put her name on the deed for convenience purposes only? Especially when the person who put up all the money is dead, it's next to impossible to establish with certainty what exactly were his intentions when the deed was signed...
Minimizing a Personal Representative's Personal Liability to Pay Taxes
Posted on October 19, 2009I've recently been lecturing on tax issues in play in probate and trust litigation [click here]. After giving this lecture a couple of times I noticed a pattern: the single tax question most probate lawyers were concerned with was how to limit a personal representative's personal tax-exposure risk, which is inherent to all probate administrations...
3d DCA: Will Construction Litigation as Morality Play
Posted on October 12, 2009Chin v. Estate of Chin, --- So.3d ----, 2009 WL 2382326 (Fla. 3d DCA Aug 05, 2009) Will construction litigation is supposed to be all about figuring out what the dry words on a piece of paper called a "will" are supposed to mean. We can't ask the testator what the words mean, he's dead...
Brooke Astor's Son Guilty in Scheme to Defraud Her
Posted on October 09, 2009A bitter chapter in the litigation swirling around Brooke Astor and her estate - worth more than $180 million when she died two years ago - came to a close this week when Anthony Marshall was found guilty on criminal charges that he defrauded his mother and stole tens of millions of dollars from her as she suffered from Alzheimer's disease in the twilight of her life...
Illinois Supreme Court upholds "Jewish Clause"
Posted on October 06, 2009I previously wrote here about the so-called 'Jewish Clause' at the heart of an Illinois probate battle that's received a good amount of national attention. The first time around an intermediate appellate court ruled the clause was not enforceable...
3d DCA: Can you decide a virtual adoption claim before you fully litigate a related will contest?
Posted on October 04, 2009McMullen v. Bennis, --- So.3d ----, 2009 WL 2837426 (Fla. 3d DCA Sep 2, 2009) In the linked-to case a will was being contested by a party claiming a stake to the estate as a "virtually adopted" heir. (For an excellent explanation of what the virtual adoption doctrine is and how it works, see Virtual Adoption: Not Just for Netizens [click here])...
Virtual Adoption: Not Just for Netizens
Posted on October 03, 2009Brian R. Dolan and Joel M. Commerford have just published an interesting article entitled Virtual Adoption: Not Just for Netizens. Virtual adoption's one of those probate doctrines that most people don't know about, but it can be very useful in the right circumstances...
US 11th Cir: Does a disinherited heir have standing to sue for estate planning malpractice?
Posted on September 21, 2009Littell v. Law Firm Of Trinkle, Moody, Swanson, Byrd and Colton, 2009 WL 2749666 (11th Cir.(Fla.) Sep 01, 2009) The linked-to opinion is the culmination of litigation involving a "Joint Trust" created by a husband and wife in 1992 that has played itself out in two different courts for over 8 years...
2d DCA: Determining a trust settlor's "blood descendants": The lessons of legal history vs. DNA testing
Posted on September 14, 2009Doe v. Doe, --- So.3d ----, 2009 WL 2841190 (Fla. 2d DCA Sep 04, 2009) As DNA testing becomes evermore widespread, Florida probate judges and practitioners alike can expect they'll have to grapple with its implications with greater frequency. For example, does DNA testing trump a prior paternity adjudication for purposes of intestate succession? In a 2007 opinion (Glover v...
LAST CALL: Monday, September 14, 2009 90-Minute National Teleconference: Tax Issues in Trust and Probate Litigation
Posted on September 13, 2009Tax issues loom large in trusts & estates litigation, especially when the estate tax is in play. So on Monday, September 14, 2009, I'll be teaching a 90-Minute National Teleconference entitled Tax Issues in Trust and Probate Litigation. In this seminar I'll examine how an awareness of the tax issues lurking in the background of almost every contested proceeding can be leveraged to maximum advantage for all concerned...
What does your average probate courtoom look and feel like?
Posted on September 07, 2009If you've never been in a probate courtroom, you might expect to walk in and see a judge sitting on a raised dais wearing a black rob. In real life (at least in Miami-Dade and Broward County Florida) your average probate courtroom is a good-sized office (otherwise known as the judge's "chambers") with everyone - including the judge - wearing a business suit and sitting around a long rectangular conference-room table...
September 14, 2009 90-Minute National Teleconference: Tax Issues in Trust and Probate Litigation
Posted on August 28, 2009Tax issues loom large in trusts & estates litigation, especially when the estate tax is at play. So on September 14, 2009 I'll be teaching a 90-Minute National Teleconference entitled Tax Issues in Trust and Probate Litigation. In this seminar I'll examine how an awareness of the tax issues lurking in the background of almost every contested proceeding can be leveraged to maximum advantage for all concerned...
4th DCA: When does a surviving spouse's "elective share" take an estate-tax hit?
Posted on August 24, 2009Boulis v. Blackburn, --- So.3d ----, 2009 WL 2382358 (Fla. 4th DCA Aug 05, 2009) The decedent at the heart of this probate battle, Konstantinos "Gus" Boulis, was a Greek immigrant and self-made millionaire who had started as a dishwasher in Canada and ended up in Florida, where he built an empire of restaurants, hotels and cruise ships used for offshore casino gambling...
2d DCA: Do you have to both "file" and "serve" to beat the 3-month limitations period for will contests?
Posted on August 05, 2009Aguilar v. Aguilar, --- So.3d ----, 2009 WL 2169133 (Fla. 2d DCA Jul 22, 2009) If you're going to contest a will one of the first questions you have to ask yourself is "am I too late?" If the will you want to contest has already been admitted to probate and your client's been served with a "notice of administration," F...
4th DCA: An order simply "granting" a summary judgment motion isn't worth the paper it's written on
Posted on July 27, 2009Rust v. Brown, --- So.3d ----, 2009 WL 2031288 (Fla. 4th DCA Jul 15, 2009) It's not unusual for courts to enter orders simply "granting" a summary judgment motion. Which may be gratifying to the winning side, but technically speaking, the order is meaningless...
Trusts & estates lawyers as expert witnesses: Judge says YES in Astor trial
Posted on July 26, 2009The esoteric tax and property-law issues at play in most will contests or contested probate proceedings are so complex that it's become common practice in Florida to use experienced trusts and estates lawyers as expert witnesses in these trials. But is it really proper to call a lawyer-expert to explain a body of law (no matter how complex) to the judge? Isn't the judge supposed to "know" the law? And if there's any explaining to do, isn't that what counsel for the parties is supposed to do? That was the question the trial judge was asked to rule upon recently in the trial of Anthony Marshall, the son of the philanthropist Brooke Astor...
1st DCA: Is Florida's 3% annual homestead property tax cap constitutional?
Posted on July 19, 2009Lanning v. Pilcher, --- So.3d ----, 2009 WL 1941210 (Fla. 1st DCA Jul 08, 2009) The 'Save Our Homes' (SOH) amendment to Florida's constitution sets a 3% maximum limit on annual valuation increases of homestead property for ad valorem tax purposes...
3d DCA: How to value FLPs in probate litigation: "fair value" vs. "fair market vaue"
Posted on July 06, 2009Zoldan v. Zohlman, --- So.3d ----, 2009 WL 1310995 (Fla. 3d DCA May 13, 2009) In this case "husband" sued his second wife's estate on undue influence grounds trying to get out of a post-nuptial agreement he signed obligating him to leave a share of his $40 million estate to second wife's daughter...
Michael Jackson's Estate: Economic Stimulus Package for Lawyers
Posted on June 30, 2009Celebrities loom large in the world of probate litigation for two primary reasons. First, they've often lead messy lives, which means their estates are magnets for litigation [click here]. Second, these estates often revolve around huge fortunes that actually get bigger over time...
4th DCA: How far can you cut attorney fees before it's an abuse of discretion?
Posted on June 26, 2009Glantz and Glantz, P.A. v. Chinchilla, --- So.3d ----, 2009 WL 1531644 (Fla. 4th DCA June 3, 2009) An appellate court won't reverse a probate judge's ruling cutting attorneys fees unless there's been an "abuse of discretion." In other words, if reasonable minds could disagree on how the court should have ruled, then the appellate court must affirm the trial court's ruling ...
Make It an Even 10: Courts Rely on More Than the Seven Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust
Posted on June 25, 2009Undue influence is one of the mainstays of probate litigation and a frequent topic of discussion on this blog [click here, here, here]. Probate lawyers need to know this area of the law cold. Orlando litigator David P. Hathaway tackled the issue from an interesting perspective in a June 2009 Florida Bar Journal article entitled Make It an Even 10: Courts Rely on More Than the Seven Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust...
4th DCA: When can a probate judge shift the winning side's attorney's fees against one of the estate's beneficiaries for wrongful conduct, bad faith, or frivolousness?
Posted on June 20, 2009Geary v. Butzel Long, P.C., --- So.3d ----, 2009 WL 1606034 (Fla. 4th DCA Jun 10, 2009) In the commercial litigation context F.S. § 57.105 is a powerful tool for curbing abusive litigation tactics: if you engage in bad faith or frivolous litigation, not only will you eventually lose, you'll also end up paying the other side's legal fees...
4th DCA says NO to lien on homestead property to pay curator's attorney's fees
Posted on June 07, 2009Herrilka v. Yates, --- So.3d ----, 2009 WL 1531772 (Fla. 4th DCA June 03, 2009) Homestead property is something probate lawyers deal with in almost every estate-administration proceeding, but it's NOT a probate asset. This disconnect is a source of never-ending client consternation and attorney heartburn...
4th DCA: Can you challenge a settlor's removal of funds from her own revocable trust on undue influence grounds?
Posted on May 31, 2009MacIntyre, ex rel. Wedrall Trust v. Wedell, --- So.3d ----, 2009 WL 1393375 (Fla. 4th DCA May 20, 2009) In Florida National Bank of Palm Beach County v. Genova, 460 So.2d 895 (Fla.1984), the Florida Supreme Court held that - as a matter of law - you can't challenge a settlor's removal of funds from her revocable trust on undue influence grounds...
Interview with a Probate Lawyer: John G. Grimsley
Posted on May 29, 2009John G. Grimsley of Grimsley Marker & Iseley, P.A., in Jacksonville, Florida, was on the winning side of Taylor v. Taylor, --- So.2d ----, 2009 WL 186155 (Fla. 1st DCA Jan 28, 2009), a case involving the enforceability of a premarital agreement waiving a widow's marital rights under F...
The Jewish Clause
Posted on May 25, 2009In Estate of Feinberg, 383 Ill. App. 3d 992 (1st Dist. June 30, 2008), an Illinois appellate court ruled a testator could NOT disinherit his grandchildren for marrying non-Jews. Here's how the case was summarized in this piece in the Chicago Jewish News: When Max Feinberg was in dental school in the 1920s and '30s, he was one of only a handful of Jews in his class and was subjected to anti-Semitic slurs...
Florida Bankers Association proposes new legislation: risk management for insurance-trust trustees
Posted on May 22, 2009The Florida Bankers Association prepared this white paper proposing new legislation to be titled 'Prudent Investor Rule Not to Apply,' aimed at relieving trustees of Irrevocable Life Insurance Trusts (ILITs) from a duty to determine whether decisions made by settlors in the selection of life insurance companies, particular types of life insurance policies, and the continuing payment of policy premiums from funds provided by settlors, are appropriate investments and in the best interest of their beneficiaries...
California appellate court weighs in on the limits of estate planning malpractice liability
Posted on May 20, 2009Here's one of those facts of life most probate lawyers learn early on their careers: testators aren't always 100% honest when describing their intentions to potential beneficiaries. For example, just because a client tells his second wife (or girlfriend) she'll be taken care of in his will ...
M.D.Fla.: Limitations periods applicable to estate creditors don't apply to the IRS
Posted on May 15, 2009U.S. v. Guyton, Slip Copy, 2009 WL 1308431 (M.D.Fla. May 08, 2009) The IRS is the "über" creditor of any probate estate. Why? Two reasons. First, the personal representative (PR) is personally liable for any of the decedent's unpaid taxes to the extent the PR pays any debts due by the decedent before paying the decedent's tax liability...
Astor trial as example of probate litigation morphing into criminal prosecution
Posted on May 14, 2009The Manhattan district attorney's office's elder abuse unit is prosecuting Anthony Marshall (the only son of Brooke Astor, a grande dame of New York society who died in August 2005 at 105 leaving an estate valued at $132 million, in addition to a $60 million trust) of exerting undue influence upon his mother when she was diminished by Alzheimer's disease to persuade her to sign a codicil to her 2002 will that made Marshall the outright heir of her residuary estate instead of having it pass ultimately to charities...
Interview with a Probate Lawyer: Stephen P. Heuston
Posted on May 11, 2009Probate litigator Stephen P. Heuston of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., in Melbourne, Florida, was on the winning side of Belanger v. Salvation Army, 2009 WL 223884 (11th Cir.(Fla.) Feb 02, 2009), a high-profile case that received a good amount of press (and I wrote about here and here)...
3d DCA on when a probate judge can be disqualified for being biased
Posted on May 08, 2009Blake v. Waks, --- So.3d ----, 2009 WL 1212242 (Fla. 3d DCA May 06, 2009) (NO. 3D09-980) One of the defining characteristics of probate litigation is that cases are always decided by judges: no juries here. So if you're afraid you wont get a fair hearing because a judge says or does something demonstrating bias against you, you're entitled to request that he disqualify himself...
4th DCA: Do you have to live in a house for it to be your homestead?
Posted on May 05, 2009Bayview Loan Servicing, LLC v. Giblin, --- So.3d ----, 2009 WL 1139236 (Fla. 4th DCA Apr 29, 2009) Here are the key facts of this case: Decedent and Nivia Giblin were married in 1959. They had a daughter together. In 1981 they separated but never divorced...
Interview with a Probate Lawyer: Norman A. Fleisher
Posted on May 04, 2009Probate litigator Norman A. Fleisher of Gutter Chaves Josepher Rubin Forman Fleisher P.A. in Boca Raton, Florida, was on the winning side of Hernandez v. Gil, a hard-fought case that wound up before the 3d DCA on three different occasions, resulting in a PCA and two fascinating written opinions I wrote about here and here...
2d DCA explains Florida's trust-merger doctrine
Posted on April 28, 2009Hansen v. Bothe, --- So.3d ----, 2009 WL 1066296 (Fla. 2d DCA Apr 22, 2009) In the linked-to opinion the decedent's sole "intestate" heir, his mother, was pitted against her son's ex-wife and the 9 remainder beneficiaries of his revocable trust...
Protecting Brando Legacy, Trustees You Can't Refuse
Posted on April 22, 2009A celebrity's best earning years may come long after he or she passes away, as reported by Forbes in its annual Top-Earning Dead Celebrities list. The NY Times reported on one estate that's trying to join the Forbes list in Protecting Brando Legacy, Trustees You Can't Refuse...
3d DCA reverses itself on standing of discharged foreign executor to sue in Florida
Posted on April 20, 2009Juega ex rel. Estate of Davidson v. Davidson, --- So.2d ----, 2009 WL 321564 (Fla. 3d DCA Feb 11, 2009) The basic rule in Florida is that a representative party need not have standing if (1) that party has authority to act on behalf of the real party in interest and if (2) the real party in interest has standing...
Foreign Trusts Allege N.Y. Lawyer 'Shamelessly Looted' Millions From Bank Accounts
Posted on April 17, 2009A trustee's duty to inform and report to beneficiaries is fundamental to the trust relationship. When that system breaks down, things can go bad really fast, a point that comes up again and again every time the press reports on some trustee getting caught stealing trust funds...
2007 Probate Court Filing Statistics
Posted on April 09, 2009Here are the 2007 stat's for the probate courts in Dade, Broward and Palm Beach county. You can find all of this data here and download numbers for your local probate court here. My chart only reports on the "cases filed" figures; click here, here and here for all the details...
3d DCA: Are land trusts subject to the Florida Trust Code's conflict-of-interest rules?
Posted on April 04, 2009Brigham v. Brigham, --- So.2d ----, 2009 WL 454492 (Fla. 3d DCA Feb 25, 2009) This case has already had a huge impact on Florida's trust-law landscape. When the 3d DCA first weighed in on this case in 2006, it upheld a trial court ruling cutting the trustees off from trust assets to pay for their legal-defense [click here]...
Things That May Surprise You About Florida's Principal and Income Act and Related Accounting Law, Part II
Posted on April 02, 2009Accounting concepts are dull in the abstract, it's only in application to a real live set of facts that they become interesting. Ask the folks at Enron/Arthur Anderson if they think accounting is boring?! And ask your clients if they think accounting is boring the next time you double a trust's income distribution or deliver a huge tax savings based on nothing other than a working knowledge of Florida's fiduciary accounting principals? (P...
Baucus Bill Includes Estate Tax Section
Posted on March 29, 2009As reported here, Sen. Max Baucus has introduced a bill in the Senate that would make the 2009 estate tax level permanent and reunify the estate and gift taxes. Nothing surprising here, but it's worth noting that his bill would also would allow portability of the exemption for spouses...
5th DCA: How do you litigate examining committee findings?
Posted on March 26, 2009Levine v. Levine, --- So.2d ----, 2009 WL 482260 (Fla. 5th DCA Feb 27, 2009) Whether or not an adult is in fact legally "incapacitated" is often the crux of the case in contested guardianship proceedings. The fact finders that are supposed to answer that question are the members of the examining committee appointed by the probate judge pursuant to F...
Persuading a Cold Judge
Posted on March 23, 2009A defining characteristic of probate litigation is that your cases are decided by judges, no jury trials here. If your judge is prepared and understands the facts and law of your case, all is well. But when your judge is not prepared, or simply doesn't "get" it, he's what Denver, Colorado litigator Peter Bornstein refers to as a "cold" judge in Persuading a Cold Judge, an excellent article just published in the ABA's Litigation magazine...
Florida needs to adopt the Adult Guardianship and Protective Proceedings Jurisdiction Act
Posted on March 17, 2009The Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (UAGPPJA) addresses a problem that needs fixing in Florida: interstate jurisdiction controversies involving adult guardianship proceedings. As I've written before, due to our highly mobile popluation (especially with respect to retiring seniors) inter-state forum shopping in contested guardianship proceedings is a growing problem [click here]...
2d DCA: How to amend a joint revocable trust
Posted on March 15, 2009Provost v. Justin, --- So.2d ----, 2009 WL 484633 (Fla. 2d DCA Feb 27, 2009) When Florida adopted its version of the Uniform Trust Code in 2007 [click here], it modernized and sometimes dramatically changed our prior body of trust law. One of the fundamental changes was a reversal of the presumption regarding revocability of trusts: the presumption used to be a trust is NOT revocable; F...
Latest twist in bizarre litigation over Wilson (Chuck) Lucom's $50 million estate
Posted on March 12, 2009When eccentric millionaire Wilson (Chuck) Lucom died in 2006 at 88, he left as much as $50 million in his will for poor children's charities in Panama. It's reportedly the largest private gift ever made in that country. Unfortunately, Panama's poor may never see a dime of Lucom's estate, which has been locked in litigation in both Panama and Florida since his death...
3d DCA: How to litigate ownership of "bearer" shares in probate
Posted on March 11, 2009Griem v. Becker, --- So.2d ----, 2009 WL 454517 (Fla. 3d DCA Feb 25, 2009) My assumption regarding "bearer" shares in offshore companies is that they're sold to people who are up to no good (probably trying to cheat on their taxes), and I'm not the only one who feels that way [click here]...
1st DCA: Not all probate orders are appealable
Posted on March 09, 2009Edelstein v. Beagell, --- So.2d ----, 2009 WL 500913 (Fla. 1st DCA Feb 27, 2009) Not all probate orders are created equal. Some are appealable, and some aren't. The controlling rule is broadly stated in Florida Rule of Appellate Procedure 9.110(a)(2) as follows: (a) Applicability...
5th DCA: What's it mean to be in someone's "presence" when witnessing a will?
Posted on March 09, 2009Price v. Abate, --- So.2d ----, 2009 WL 559908 (Fla. 5th DCA Mar 06, 2009) In the linked-to case the 5th DCA broke new ground. The parties were litigating what the word "presence" means for purposes of witnessing a will under F.S. 732.502(1)(c): Witnesses' signatures...
4th DCA: How broad is a trustee's privilege waiver when claiming the "advice of counsel defense"?
Posted on March 04, 2009Bankr.M.D.Fla: Probate judgment against former PR not dischargeable in bankruptcy
Posted on February 28, 2009Things That May Surprise You About Florida's Principal and Income Act and Related Accounting Law, Part I
Posted on February 27, 2009M.D.Fla: What to do when your bank pays out trust funds to the wrong guy?
Posted on February 26, 2009Fintak v. Wachovia Bank, N.A., Slip Copy, 2009 WL 413599 (M.D.Fla. Feb 18, 2009) Say you have a trust that owns two CDs that together are worth a little over $200,000 and Wachovia pays them out to one of your three co-trustees . . . and he runs off with the loot...
4th DCA: Court says NO to family in contested guardianship proceeding
Posted on February 20, 2009Morris v. Knight, --- So.2d ----, 2009 WL 321586 (Fla. 4th DCA Feb 11, 2009) Trial Judge's Power in Guardianship Proceedings: Florida probate judges get a huge amount of deference when deciding whom to appoint as guardian. So if your client is on the losing end of an order appointing someone else guardian, an appeal is probably a waste of money...
AARP Research Report: "Power of Attorney Abuse: What States Can Do About It"
Posted on February 17, 2009Texas probate litigator J. Michael Young wrote here on his Texas Probate Litigation Blog about a recently published AARP research piece entitled Power of Attorney Abuse: What States Can Do About It. Here's an excerpt: The primary goal of this report is to inform state legislators, policymakers, practitioners, and advocates about the [Uniform Power of Attorney Act (UPOAA), click here]...
3d DCA: Getting paid for defending against an assisted-suicide/Slayer Statute claim . . . but hands off the homestead
Posted on February 15, 2009Estate of Shefner v. Shefner-Holden, --- So.2d ----, 2009 WL 322153 (Fla. 3d DCA Feb 11, 2009) When is probate litigation a compensable "service" to the estate? There were two issues at play in the linked-to opinion. One was whether the PR's were entitled to payment of their attorneys fees after successfully defending against a claim that F...
Tough times making even probate practice riskier
Posted on February 12, 2009Chicago-area probate lawyer Joel A. Schoenmeyer wrote here on his Death and Taxes Blog about an interesting article out of Canada discussing why even probate lawyers will feel the heat as our economy continues its downward spiral: Tough times making even probate practice riskier...
2d DCA: Does a trust beneficiary have a mandatory right to intervene in litigation involving her trust?
Posted on February 12, 2009Crescenze v. Bothe, --- So.2d ----, 2009 WL 284858 (Fla. 2d DCA Feb 04, 2009) Trust beneficiaries can avoid being sidelined in litigation involving their trusts by moving to "intervene" in the case under Civ.P. Rule 1.230. Here's what the rule says: Anyone claiming an interest in pending litigation may at any time be permitted to assert a right by intervention, but the intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding, unless otherwise ordered by the court in its discretion...
Congressional white papers examining the U.S. Federal estate and gift tax system
Posted on February 09, 2009I don't know of a better way to quickly get your arms around the hot-button issues driving today's estate-tax planning world [and current reform proposals, click here] than the three white papers listed below, all of which were prepared and published by the Joint Committee on Taxation, a nonpartisan committee of the United States Congress...
5th DCA: It's official, probate litigators now have something new to worry about: the 30-day deadline applicable to motions for attorney-fees under Civ. Pro. Rule 1.525
Posted on February 06, 2009Hays v. Lawrence, --- So.2d ----, 2009 WL 211048 (Fla. 5th DCA Jan 30, 2009) The probate bar has been mulling over the question of if, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing fee motions in civil litigation, applies to contested probate and trust proceedings...
11th Cir: Salvation Army wins its POD case
Posted on February 04, 2009Belanger v. Salvation Army, 2009 WL 223884 (11th Cir.(Fla.) Feb 02, 2009) The Salvation Army has been enmeshed in litigation since 2007 over approximately $105,000 it received from a pay-on-death account [click here]. At issue was whether a corporation, such as the Salvation Army, could be the beneficiary of a pay-on-death bank account under Florida law...
1st DCA: How specific does a premarital agreement have to be to defeat a surviving spouse's claims?
Posted on February 01, 2009Taylor v. Taylor, --- So.2d ----, 2009 WL 186155 (Fla. 1st DCA Jan 28, 2009) I wrote here in 2006 about an "ambiguous" premarital agreement that the 3d DCA held was a valid waiver of a widow's marital rights under F.S. § 732.702. Here's the clause at the center of the 3d DCA case: "It is [husband's] intent that, in the event of his death, all of his separate property be given to his children, STEVEN M...
The Cutler En Banc Opinion: Is the Third DCA Eroding the Protection Afforded to Heirs Who Are to Receive Devises of Florida Homestead?
Posted on January 29, 2009The Winter 2009 edition of ActionLine contains a short article entitled The Cutler En Banc Opinion: Is the Third DCA Eroding the Protection Afforded to Heirs Who Are to Receive Devises of Florida Homestead? by Melbourne probate attorney Charlie Nash...
Tax Results of Settling Disputes Involving Marital-Deduction (QTIP) Trusts
Posted on January 26, 2009A "QTIP trust" allows a person's estate to receive a 100% estate-tax marital deduction for assets left in trust for a surviving spouse for life, with the remainder of the trust assets going to the settlor's children (or other heirs) once the surviving spouse passes away [click here]...
1st DCA: power of attorney authorized execution of binding arbitration agreement
Posted on January 18, 2009Five Points Health Care, Ltd. v. Mallory, --- So.2d ----, 2008 WL 5411834 (Fla. 1st DCA Dec 31, 2008) Under Florida law an attorney-in-fact's authority is limited solely to actions "specifically enumerated in the durable power of attorney." F...
L'Affaire Madoff: what trustees and other fiduciaries need to be thinking about
Posted on January 15, 2009At this year's Heckerling conference in Florida one of the speakers asked a conference room of (I'd guess) over a thousand trusts-and-estates attorneys/CPAs from across the country how many of them had clients affected by the Madoff scandal: easily 9 out of 10 raised their hands...
WSJ: Obama Plans to Keep Estate Tax
Posted on January 12, 2009Win, lose or draw, I think all sides can agree that finality on the estate-tax front would be a welcomed development. And the wait may be coming to an end. The WSJ reported today in Obama Plans to Keep Estate Tax that the new administration has concluded "that if they don't act now, it will be politically harder to go ahead with their plan to resurrect the estate tax once it has disappeared [in 2010]...
3d DCA: Post-mediation litigation triggered by settlement agreement's fuzzy release clause
Posted on January 03, 2009Sandra O'Neill v. Scher, --- So.2d ----, 2008 WL 5352183 (Fla. 3d DCA Dec 24, 2008) In the linked-to opinion the parties executed a settlement agreement supposedly putting an end to their litigation involving contested probate claims. The settlement agreement contained the following release language: 3...
2d DCA: Trust-litigation venue statute wont get you to Canada
Posted on December 20, 2008Hunt v. Hooper, --- So.2d ----, 2008 WL 5191505 (Fla. 2d DCA Dec 12, 2008) As I've written before, Florida is the largest recipient of state-to-state migration in the U.S. [click here]. This fact has all sorts of implications for trusts-and-estates matters...
2d DCA: Trust-litigation venue statute won't get you to Canada
Posted on December 20, 2008Hunt v. Hooper, --- So.2d ----, 2008 WL 5191505 (Fla. 2d DCA Dec 12, 2008) As I've written before, Florida is the largest recipient of state-to-state migration in the U.S. [click here]. This fact has all sorts of implications for trusts-and-estates matters...
3d DCA lectures probate litigator on ethics
Posted on December 17, 2008pa href="http://www.flprobatelitigation.com/uploads/file/3D08-0005.pdf"Hernandez v. Gil/a, --- So.2d ----, 2008 WL 5156623 (Fla. 3d DCA Dec 10, 2008)/p pYou know you're having a bad day when the 3d DCA writes an opinion for no other reason than to lecture you on your ethical duties...
Princeton Agrees to $90 Million Settlement of Suit Alleging Misuse of Endowment
Posted on December 12, 2008When I first wrote about this case in 2006 [click here], I saw it as a prime example of public relations as litigation tool. (Check out the litigants' dueling websites: here, here). Well, fast forward two years, the Princeton suit settled on the eve of trial...
Jury rejects $17M legal estate-planning malpractice claim against Orrick
Posted on December 11, 2008I previously wrote about this case from the perspective of how conflicts of interests can kill you as an estate planner if (a) you're not aware of the issues and (b) you fail to take appropriate precautions [click here]. As a follow up to that post, it seems that the estate planner at the center of this particular drama dodged the bullet (for now)...
4th DCA: So what's a specific bequest?
Posted on December 05, 2008Babcock v. Estate of Babcock, --- So.2d ----, 2008 WL 4863088 (Fla. 4th DCA Nov 12, 2008) Any probate lawyer worth his or her salt will tell you that reading a person's will is often just the tip of the iceberg. You don't really know how to administer an estate unless you take the decedent's will and run it through Florida's probate code to see what comes out the other end...
4th DCA: Order denying motion to strike petition for administration for lack of standing is NOT an appealable probate order
Posted on November 29, 2008Klingensmith v. Ferd and Gladys Alpert Jewish Family of Palm Beach County, Inc., --- So.2d ----, 2008 WL 4922917 (Fla. 4th DCA Nov 19, 2008) In probate proceedings your standing to participate in any aspect of the administration of the estate depends on whether or not you're an "interested person" of the estate, as that term is defined by F...
S.D.Fla. judge says "enough already!" to vexatious trusts-and-estates litigant
Posted on November 22, 2008Barash v. Kates, --- F.Supp.2d ----, 2008 WL 4922787 (S.D.Fla. Jun 25, 2008) Serial litigation by vexatious litigants in trusts-and-estates proceedings and how courts go about dealing with them has been a frequent topic on this blog [click here, here, here]...
Probate and Trust Litigation Committee - Appellate Rule Project
Posted on November 21, 2008Whether certain probate-related orders are or are not subject to appeal is a topic that comes up with some frequency on this blog [click here]. In an effort to add greater certainty to this area of the law, the Probate and Trust Litigation Committee has been working on an appellate rule project...
IRS private letter ruling documents creative lawyering by Florida probate litigators
Posted on November 20, 2008Veteran Florida probate litigator Amy Beller was kind enough to direct me to Private Letter Ruling 200844010, in which the IRS ruled that if you split a single marital trust into five separate sub-trusts and then terminate just one of those sub-trusts, IRC § 2519 would be triggered only with respect to the terminated sub-trust...
4th DCA: Failure to plead claim for attorney's fees = waiver of claim
Posted on November 16, 2008Wintter & Associates, P.A. v. Kanowsky, --- So.2d ----, 2008 WL 4643358 (Fla. 4th DCA Oct 22, 2008) If all you're asking a probate court to do is exercise its in rem jurisdiction over the assets of a trust by awarding you your attorney's fees from trust assets, then you don't have to plead this claim up front and can ask for these fees at any time by filing a motion under F...
3d DCA: Why knowing the difference between in rem and personal jurisdiction matters in probate proceedings
Posted on November 14, 2008Brindle v. Brindle, --- So.2d ----, 2008 WL 4722746 (Fla. 3d DCA Oct 29, 2008) Sometimes it pays to step back and review the basics, like the difference between in rem jurisdiction and in personam jurisdiction in probate proceedings, or the finality of settlement agreements no matter what courtroom you happen to be in...
Trial begins in multimillion dollar estate-planning malpractice claim against Orrick, Herrington & Sutcliffe
Posted on November 10, 2008As a matter of law, an ethics violation isn't the same as committing malpractice, but as a practical matter, the two are almost always interconnected. For me, the significance of this fact is that ethics rules can be your best friend. They help you identify future landmines before they blow up on you and take protective measures...
4th DCA: If you're the successor trustee of a revocable trust whose settlor is alive but mentally incapacitated, do you owe any duties to the remainder beneficiaries?
Posted on November 01, 2008Brundage v. Bank of America, Trustee, --- So.2d ----, 2008 WL 4722970 (Fla. 4th DCA Oct 29, 2008) Incapacitated Settlor of Revocable Trust Florida's Trust Code is clear, while a trust is revocable, the duties of the trustee are owed exclusively to the settlor [F...
2d DCA: Does Civ Pro Rule 1.525 (Motions for Costs and Attorneys' Fees) apply to trust proceedings?
Posted on October 30, 2008Donkersloot v. Donkersloot, --- So.2d ----, 2008 WL 4647415 (Fla. 2d DCA Oct 22, 2008) Civil Procedure Rule 1.525 governs the mechanics of attorney's fee motions in general commercial litigation. Here's what the rule says: Any party seeking a judgment taxing costs, attorneys' fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal...
5th DCA: Why a de novo appellate standard of review can be your best friend in trust-construction litigation
Posted on October 25, 2008Brown v. Miller, --- So.2d ----, 2008 WL 4600940 (Fla. 5th DCA Oct 17, 2008) In trust construction litigation the litigants are asking the judge to read the trust agreement and tell them what it means. In this type of litigation you often have the choice of allowing the court to rule on the trust agreement without taking any evidence or pressing for a trial on the merits...
4th DCA says NO to compulsory medical examination of 88-year old man caught up in someone else's litigation
Posted on October 19, 2008Urbanek v. Hopkins, --- So.2d ----, 2008 WL 4489266 (Fla. 4th DCA Oct 08, 2008) What this case is really about is good lawyering. Miami probate litigator David H. Goldberg was hired to represent an 88-year old man suffering from Parkinson's disease who had the misfortune of getting sucked into trust litigation he didn't start and wasn't a party to...
4th DCA: What's it mean to have "rendered services to an estate" when seeking attorneys fees in probate litigation?
Posted on October 15, 2008Duncombe v. Adderly, --- So.2d ----, 2008 WL 4489234 (Fla. 4th DCA Oct 08, 2008) If a beneficiary of an estate wants to get his attorney's fees paid with assets of the estate, the statute he'll have to hang his hat on is F.S. 733.106(3), which provides as follows: (3) Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate...
Can you compel a trust beneficiary to arbitrate a claim based on an arbitration agreement he never signed, but his trustee did?
Posted on October 13, 2008Eichler v. Leshner, Slip Copy, 2008 WL 4459029 (M.D.Fla. Sep 29, 2008) In the linked-to case the beneficiary of a trust tried to sue the trust's investment manager for having "failed to properly invest trust assets." The defendant's filed a motion to compel arbitration based on an arbitration clause contained in the account agreement signed by the trustee...
4th DCA: "fabled twins of speculation and conjecture" aren't enough to validate a lost will
Posted on October 08, 2008Balboni v. LaRocque, --- So.2d ----, 2008 WL 4414240 (Fla. 4th DCA Oct 01, 2008 The absence of supporting evidence is a recurring theme when it comes to appellate reversals in probate litigation [click here]. In this case the issue was whether the proponents of a lost will had overcome the presumption that the will was intentionally destroyed...
Another probate judge gets reversed for failing to appoint the testator's nominated PR
Posted on October 04, 2008McCormick v. McCormick, --- So.2d ----, 2008 WL 4377136 (Fla. 1st DCA Sep 29, 2008) Florida probate judges are given a great deal of latitude when making calls on how an estate should be administered. But there's one estate-administration issue over which their authority is severely limited: whether or not to appoint the personal representative nominated in a decedent's will...
2d DCA: Arbitration agreement upheld based on broad grant of authority in decedent's power of attorney
Posted on September 30, 2008Jaylene, Inc. v. Moots, --- So.2d ----, 2008 WL 4181140 (Fla. 2d DCA Sep 12, 2008) It's not uncommon for intermediate-level appellate courts to disagree with each each other, that's why we have supreme courts. But here's something you don't see every day: the 2d DCA disagreeing with itself by ruling two different ways on the same issue within a single 12-month period...
Wisconsin appeals court: Slayer Statute does not bar relatives who assist in father's suicide from inheriting his estate
Posted on September 26, 2008Understanding how to conceptually "frame" a case, both factually and legally, is half the battle in litigation. So even if an appellate decision from another state isn't binding precedent in Florida, the way in which the case is framed by the appellate court can be instructive for Florida lawyers...
If your trust company goes bust, are your trust funds in danger?
Posted on September 24, 2008According to a WSJ article entitled Trusts Require Attention During Market Turmoil, there's no need to worry if you open the paper one day and read your trust company's going down in a ball of flames. The good news is that trust assets managed by a corporate fiduciary such as Merrill Lynch & Co...
Palm Beach County, FL probate court and San Francisco, CA state court battle over control of $90 million art collection
Posted on September 20, 2008Probate litigation has a way of spawning jurisdictional disputes that make your toughest law-school exam seem like a walk in the park. Click here, here and here for recent examples. These jurisdictional battles rarely become mano-a-mano contests between competing judges, but that's what seems to be happening in a case reported on in a San Francisco Chronicle article entitled Inheritance fight imperils de Young tribal art...
3d DCA reverses itself, homestead property may be sold to pay adminisration expenses
Posted on September 17, 2008Cutler v. Cutler, --- So.2d ----, 2008 WL 4057751(Fla. 3d DCA Sep 03, 2008) When I first wrote about this case the 3d DCA upheld a probate court order refusing to apportion any probate expenses to a devise of freely-devisable homestead property under the “inuring clause” of Article X, section 4(b) of the Florida Constitution, effectively frustrating the testator's clearly expressed testamentary intent [click here]...
Estate Plans With Reins: Directed Trusts Allow Pinpoint Control of an Asset
Posted on September 17, 2008Florida recently adopted it's own version of a "directed trusts" statute [click here]. And if you take a look at the agenda for the upcoming Florida Bar Trust Law Committee meeting [click here], you'll see we're not done tinkering with that statute just yet...
Trust Law Committee Meeting Reports/White Papers
Posted on September 16, 2008Click here for a PDF copy of the Agenda and related Reports/White Papers for the upcoming meeting of the Florida Bar's Trust Law Committee at the Ritz-Carlton in Key Biscayne this coming Friday, September 19th, at 2 p.m. These materials are an excellent way to keep up on the latest developments involving Florida's Trust Code that could affect you, your firm or your clients...
Probate and Trust Litigation Committee Meeting Reports/White Papers
Posted on September 15, 2008Click here for a PDF copy of the Agenda and related Reports/White Papers for the upcoming meeting of the Florida Bar's Probate & Trust Litigation Committee at the Ritz Carlton in Key Biscayne on Friday, September 19 from 10 a.m. to 12 noon. Any questions/comments regarding the meeting and the linked-to materials should be directed to the committee chair: William ("Bill") T...
Probate lawyers arrested for representing client disinherited by Georgia's Slayer Statute
Posted on September 07, 2008If you practice in South Florida you've probably heard about the the indictment of Ben Kuehne, a former president of the Dade County Bar Association, former president of the Miami chapter of the Florida Association of Criminal Defense Lawyers and member of the Florida Bar Board of Governors...
What lawyers and trustees need to know about Florida's new "Directed Trusts" statute
Posted on September 03, 2008I've been a fan of the "directed trusts" idea from the time it was first talked up in the press [click here], through to its recent adoption here in Florida [click here]. Whether you make a living drafting trusts as a lawyer or administering them as a trustee, you should get to know this important new statute, and a great way to do that is to read Directed Trusts: The Statutory Approaches to Authority and Liability, written by two of Miami's very own trusts-and-estates stars, Greenberg Traurig associate Mary Clarke and shareholder Diana S...
Son of wanted Nazi wants him declared dead
Posted on August 29, 2008As I've written before, under Florida law you don't need to actually produce a dead body to have someone declared dead [click here]. If someone's missing for over 5 years or there's direct or circumstantial evidence of death, under F.S. 731.103 a court can enter an order declaring that person dead...
Will contest casts a shadow on a prominent St. Petersburg estate-planning lawyer who stands to gain millions
Posted on August 26, 2008Tampa probate litigator Russell R. Winer was kind enough to point me to an interesting will-contest story in the St. Petersburg Times by staff writer Chris Tisch entitled A will casts a shadow on a prominent lawyer who stands to gain millions. When I read the linked-to story two points jumped out at me...
Why Do Lawyers Lie? One Word: Narcissism
Posted on August 22, 2008As a self confessed trusts-and-estates “law geek”, I obviously believe courts (and thus litigants) are guided by the rule of law. But I’ve also been around long enough to have a healthy respect for the “legal realism” school of thought: all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections...
Probate litigation UK style: where there's a will there's a war
Posted on August 21, 2008I've written before about the upswing in trusts-and-estates litigation in this country [click here]. Now it's the U.K.'s turn. An article in the Telegraph entitled Inheritance disputes: where there's a will there's a war, reported on factors fueling increased probate litigation in the U...
Can guardianship litigation preempt a will contest?
Posted on August 19, 2008In Florida the law is clear: you can't contest a will until after the testator dies. F.S. 732.518. But that doesn't necessarily mean you can't preempt a will contest before the testator dies. For example, suppose you're working with an older client with diminishing capacity whose will is sure to be contested...
George Washington on Arbitration of Probate Disputes
Posted on August 16, 2008For no reason other than I find this bit of historical/T&E crossover trivia interesting, here's a copy of the arbitration clause contained in George Washington's will: But having endeavoured to be plain, and explicit in all Devises--even at the expence of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if, contrary to expectation, the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the Devises to be consonant with law, My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants--each having the choice of one--and the third by those two...
3d DCA: Probate court reversed for improperly dismissing a petition to probate a lost or destroyed will
Posted on August 15, 2008LaCalle v. Barquin, --- So.2d ----, 2008 WL 3358300 (Fla. 3d DCA Aug 13, 2008) Sometimes even when you're right, you still lose (yet another example of the risks inherent to litigation). In the linked-to case the 3d DCA reversed a probate court order dismissing a properly filed petition to establish and probate a lost will...
4th DCA: Spotty evidentiary record = reversal of trust beneficiary's attorney's fee award
Posted on August 03, 2008Demello ex rel. Jerome Adams Trust, Irene V. Adams Trust v. Buckman, --- So.2d ----, 2008 WL 2906652 (Fla. 4th DCA Jul 30, 2008) In the linked-to case the beneficiary of a trust successfully sued her trustee for breach of trust. As a result of this win the trial court awarded her attorneys' fees and costs...
New legislation: Payment of trustee attorneys' fees when defending breach of duty claims; trustees have new affirmative notice obligations
Posted on August 01, 2008Payment of trustee attorneys' fees when defending breach-of-duty claims has been a hot topic over the last few years due to appellate decisions out of the 3rd and 4th DCA's that were decidedly non-trustee friendly [click here, here]. The Florida Bankers Association swung into action, proposing new legislation that would make it more difficult to cut off a trustee's access to trust funds when defending against a breach-of-duty claim...
Did Florida's new trust code weaken existing creditor protections for Florida irrevocable trusts?
Posted on July 25, 2008Dynasty trusts are a huge growth industry [click here], and one of the main selling points for these trusts are their creditor-protection properties. When Florida adopted its version of the Uniform Trust Code in 2007 some questioned whether Florida's existing spendthrift-trust protections had been watered down...
2d DCA: What probate lawyers should know about fee disputes under Florida's Wrongful Death Act
Posted on July 22, 2008Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, --- So.2d ----, 2008 WL 2668801 (Fla. 2d DCA Jul 09, 2008) Ever wonder why your friendly neighborhood plaintiff's lawyer gets a bit tense when he hires you to get his client appointed personal representative ...
Probate and Trust Litigation Committee Meeting Reports/White Papers
Posted on July 21, 2008Click here for a PDF copy of the Agenda and related Reports/White Papers for the upcoming meeting of the Florida Bar's Probate & Trust Litigation Committee on Thursday, July 24, 2008 from 3:00 p.m. to 5 p.m. at the Breakers in Palm Beach County. These materials are an excellent way to keep up on the latest probate-related developments that could affect you, your firm or your clients...
5th DCA: Can you enforce a California constructive-trust judgment against a Florida homestead?
Posted on July 18, 2008Hirchert v. Hirchert Family Trust, --- So.2d ----, 2008 WL 2695897 (Fla. 5th DCA Jul 11, 2008) California constructive-trust judgment: This case started in California where, after a two-day bench trial, the trial court found that a California trustee had breached his fiduciary duties by wrongfully withdrawing trust funds, which were then used to buy a house for himself and his wife in California...
How Pennsylvania officials and an inept trustee board of directors screwed poor kids out of $1 billion by stopping the sale of candy-maker Hershey Company
Posted on July 15, 2008Jonathan Klick of the Florida State University College of Law and Robert H. Sitkoff of Harvard Law School just published an outstanding article entitled Agency Costs, Charitable Trusts, and Corporate Control: Evidence from Hershey's Kiss-Off. What this article does well is "crunch the numbers" to answer the sort of open-ended question trusts-and-estates litigators face all the time: Is a particular investment strategy in the "best interests" of the trust's beneficiaries? Crunching the Numbers: Being non-math types, lawyers and judges often shy away from the type of quantitative, objectively-verifiable, empirical analyses employed in this article...
3d DCA: "Constructive trust": tool for recovering probate assets when the doors of the probate courthouse are closed to you
Posted on July 14, 2008Klem v. Espejo-Norton, --- So.2d ----, 2008 WL 2511276 (Fla. 3d DCA Jun 25, 2008) What do you do if an heir shows up after the probate proceeding has been closed? You can try to reopen the estate under F.S. 733.903. But what if that doesn't work, then what? The 3d DCA answers that question in this case by first suggesting that the plaintiff pursue a "constructive trust" theory, then explaining the quasi in rem jurisdictional basis for this type of claim...
5th DCA: Appellate court cuts winning side's fees
Posted on July 10, 2008Hoegh v. Estate of Johnson, --- So.2d ----, 2008 WL 2605068 (Fla.App. 5 Dist. Jul 03, 2008) In this case there's no question whom the courts considered to be the villain of the story. According to the trial court Hoegh, the appellant and pro se litigant, attempted to "perpetrate a fraud on the court" by knowingly seeking to have a forged will admitted to probate...
S.D.Fla: Trust litigation bounced from federal court: federal trial courts lack jurisdiction to review final judgments of state courts
Posted on July 10, 2008Staup v. Wachovia Bank, N.A., Slip Copy, 2008 WL 2598005 (S.D.Fla. Jun 27, 2008) The substantive issue in this case is pretty simple: if you lose in state court, you don't get another bite at the apple by simply re-filing your same case in federal court...
4th DCA: When a joint bank account is created with the funds of one person, there is a presumption of a gift to the other person which may be rebutted only by clear and convincing evidence to the contrary
Posted on July 07, 2008Julia v. Russo, --- So.2d ----, 2008 WL 2596324 (Fla. 4th DCA Jul 02, 2008) The 4th DCA reversed itself on an important point involving joint bank accounts, withdrawing this opinion and replacing it with the linked-to opinion above. The issue on rehearing was a simple evidentiary burden-shifting question: If a decedent funded a bank account 100% with his own funds, then put his girlfriend's name on the account, does the girlfriend have to prove the decedent intended to make a gift to her of a 50% interest in the account, or does the decedent's estate have to prove that the decedent did NOT intended to make this gift? The first time around, relying on two divorce cases to resolve this probate dispute (??!!), the 4th DCA said girlfriend bore the burden of proof...
Lawyer's Checklist: Assessment of Testamentary Capacity and Vulnerability to Undue Influence
Posted on July 04, 2008If you're representing a plaintiff in an undue-influence or testamentary-capacity case, one of your first challenges is mapping out the questions you'll be asking when you depose the lawyer who drafted the will or trust being challenged...
1st DCA: Pending action to partition a joint tenancy with right of survivorship does NOT survive one joint tenant's death
Posted on July 03, 2008Mercurio v. Headrick, --- So.2d ----, 2008 WL 2434193 (Fla. 1st DCA Jun 18, 2008) The finality of death is the sort of thing most people can figure out pretty much on their own. Unfortunately, once you walk into the alternate reality of litigation, just because your opponent is dead doesn't mean your case is over...
3d DCA: Genuine issues of material fact existed as to whether petitioners were legitimate heirs of decedent, precluding summary judgment
Posted on July 02, 2008Berkow v. Isaevna, --- So.2d ----, 2008 WL 2511272 (Fla. 3d DCA Jun 25, 2008) Lest we forget, the 3d DCA reminds us all once again that a summary judgment hearing isn't a trial. The Appellants, Counter-Petitioners in a dispute over an estate that has escheated to the State of Florida, appeal an order that denied their motion for summary judgment, granted the Appellees/Petitioners final summary judgment, and awarded Petitioners the escheated funds...
Tobias Brothers, Widow Make Last-Minute Settlement Deal
Posted on June 16, 2008A last-minute settlement deal means the widow of drowned hedge fund millionaire Seth Tobias will avoid a trial. As reported here, here, lawyers for Filomena Tobias and Seth Tobias' brothers Friday night made a confidential deal avoiding a week-long trial expected to receive national attention and provide an inside look into a life of money, sex and drugs...
3d DCA: Trustee, acting solely in her capacity as trustee, has standing to bring a trust reformation action
Posted on June 14, 2008Reid v. Judea, --- So.2d ----, 2008 WL 2356814 (Fla. 3d DCA Jun 11, 2008) The linked-to opinion is interesting on several levels. 1. First, for reasons not explained, the probate court in this case denied a motion to disqualify trial counsel who was also submitting evidence in his capacity as drafter of the contested trust agreement...
Kelley's Homestead Paradigm
Posted on June 13, 2008Coral Gables trusts-and-estates attorney Eric Virgil recently posted a PDF copy of Kelley's Homestead Paradigm on the list service for the RPPTL section of the Dade County Bar Association. This handy chart was developed by one of the deans of Florida probate law, Rohan Kelley, and is exactly the type of resource I like to post on this blog for future reference.
Study Reveals Ultra-High-Net-Worth Family Businesses Are Not Implementing Succession Plans and Asset Protection Strategies
Posted on June 12, 2008File this under business development for all you trusts-and-estates planners out there. A new study sponsored by U.S. Trust, Bank of America Private Wealth Management finds that the majority of owners of ultra-high-net-worth family businesses are leaving their professional and personal interests vulnerable through inadequate business succession, asset protection and estate planning...
Bill Murray's Pre-nup: Florida Adopts the Uniform Premarital Agreement Act
Posted on June 06, 2008Slate recently reported here on Bill Murray's brewing divorce. From a practitioner's standpoint I was especially interested to find excerpts of original source documents - including Murray's prenuptial agreement - reproduced in the Slate post...
Florida Bar Real Property Probate and Trust Law Section Fellowship Applications
Posted on June 02, 2008The Florida Bar Real Property Probate and Trust Law Section has developed a new Fellowship program aimed at encouraging junior attorneys (i.e., under age 36) to become involved in the Section. Breaking into this niche ain't easy, so anything the Section can do along these lines is a good thing...
Heath Ledger's Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father's Will, Might Have a Claim to Everything
Posted on May 30, 2008Law professors Joanna Grossman and Mitchell Gans, both of Hofstra University, published an interesting two-part article dissecting the outcome of Heath Ledger's untimely death from a probate point of view. Entitled Heath Ledger's Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father's Will, Might Have a Claim to Everything, the article is worthwhile reading for all probate practitioners because it provides a useful outline for thinking about any estate involving a pretermitted child...
2d DCA: How to contest jurisdiction in probate proceedings
Posted on May 28, 2008Hall v. Tungett, --- So.2d ----, 2008 WL 2065802 (Fla. 2d DCA May 16, 2008) Jurisdictional issues in probate proceedings are a source of recurring confusion for litigants and courts alike. If the court is proceeding based on its in rem jurisdiction, then under F...
4th DCA: Beneficiary loses - again - in third trial against her trustee
Posted on May 23, 2008Parker v. Shullman, --- So.2d ----, 2008 WL 2038046 (Fla. 4th DCA May 14, 2008) The linked-to opinion should be read by every trust beneficiary contemplating a lawsuit against his or her trustee. Not only is the beneficiary usually at a disadvantage in terms of litigation financing (the trustee can use trust assets to pay litigation costs, the beneficiary has to pay these costs out of pocket), courts will often give an enormous amount of deference to trustees, forgiving them small "technical" mistakes and erring on their side even when the trustee's actions are questionable or down right vindictive...
Adults Worldwide Say "Tax the Rich!"
Posted on May 22, 2008In 2006 I predicted the federal estate tax would ultimately NOT be repealed, but that it would be frozen at 2009 levels: $3.5 million exemption ($7 million for couples), at a top rate of 45 percent [click here].Post 2006 developments have only confirmed my initial estate tax predictions...
Probate and Trust Litigation Committee Meeting in Bonita Springs on May
Posted on May 19, 2008Click here for a PDF copy of the Agenda and related Reports/White Papers for the Probate and Trust Litigation Committee Meeting in Bonita Springs on May 22, 2008. I found the following legislative items especially interesting: Corporate trustees should be happy with the new legislation being proposed in House Bill 435 [Agenda ITEM 2]...
2d DCA: Your own testimony can be the sole basis for reducing your fees
Posted on May 18, 2008In re Guardianship of Shell, --- So.2d ----, 2008 WL 1757211 (Fla. 2d DCA Apr 18, 2008) When it comes to guardianship cases the court is not simply adjudicating a dispute, it is the party with ultimate/primary authority to determine, in its discretion, what is in the "best interests" of the ward...
Ray Charles' children battle over his legacy: Say trusts set up to handle the singer's affairs have been mismanaged.
Posted on May 13, 2008Michael A. Hiltzik of the Los Angeles Times published an excellent article reporting on the probate and trust litigation swirling around Ray Charles' $75+ million estate: Ray Charles' children battle over his legacy. This estate is so discombobulated you could probably pick it apart from an estate planning perspective in a dozen different ways...
3d DCA: What's your burden of proof when seeking to reestablish a lost insurance policy?
Posted on May 09, 2008American Home Assur. Co. v. Junger, --- So.2d ----, 2008 WL 1958615 (Fla. 3d DCA May 07, 2008) It's not unusual for probate lawyers to have to figure out what to do when a lost deed or contract needs to be reestablished for some reason...
Anticipating the Audit Call: Thinking About Controversy at the Planning Stage
Posted on May 08, 2008John W. Porter and Stephanie Loomis-Price of Baker Botts LLP in Texas and Charles E. Hodges II of Chamberlain, Hrdlicka, White, Williams & Martin in Georgia published a useful article entitled: Anticipating the Audit Call: Thinking About Controversy at the Planning Stage, Prob...
4th DCA: If girlfriend shoots and kills boyfriend, does she get to keep the jointly titled accounts?
Posted on May 03, 2008Julia v. Russo, --- So.2d ----, 2008 WL 1883905 (Fla. 4th DCA Apr 30, 2008) Jointly titled bank accounts are often the source of much confusion . . . and litigation . . . once one of the title holders dies. A classic example of this type of litigation is when an elderly parent puts a child's name on an account for convenience purposes and then that child does something unexpected by mom or dad ...
Notice of new probate-related FL opinions: Commentary to follow:
Posted on May 01, 20085th DCA: Killinger v. Guardianship of Grable, --- So.2d ----, 2008 WL 1827520 (Fla. 5th DCA Apr 25, 2008) (Discovery Disputes in Guardianship Litigation) 4th DCA: Julia v. Russo, --- So.2d ----, 2008 WL 1883905 (Fla. 4th DCA Apr 30, 2008) (Jointly Titled Bank Accounts)
Hunt vs. Hunt: The Fight Inside Dallas' Wealthiest Families
Posted on April 30, 2008Texas probate litigator J. Michael Young reported here in his Texas Probate Litigation Blog on a high profile case involving two Texas trusts worth upwards of $4 billion entitled: Hunt vs. Hunt: The Fight Inside Dallas' Wealthiest Families. The family drama swirling around this litigation makes for interesting reading, but it also distracts from what is conceptually a pretty simple conflict-of-interests case...
The NY Times on Firing Corporate Trustees
Posted on April 25, 2008Ohio trusts-and-estates attorney Michael D. Bonasera reported here in his The Ohio Trust & Estate Blog on a NY Times article he spotted entitled: Breaking Up Is Hard to Do. According to the NY Times, trust beneficiaries are growing increasingly dissatisfied with their corporate trustees:Dissatisfaction with trustees — particularly corporate trustees rather than individuals — has been growing over the last five years, those experts say...
M.D.FLA: Florida slayer statute applies even if murder conviction is being appealed
Posted on April 23, 2008American United Life Ins. Co. v. Barber, Slip Copy, 2008 WL 1766916 (M.D.Fla. Apr 15, 2008) Justin Barber was convicted in 2006 of murdering his 27 year old wife to collect on a $2.3 million life insurance policy. In an opinion I first wrote about last year [click here], the 1st DCA upheld a trial court order applying F...
S.D.FLA: How to plead federal diversity jurisdiction in cases involving personal representatives of probate estates
Posted on April 22, 2008Cleare v. EA Management Services, Inc., Slip Copy, 2008 WL 1711533 (S.D.Fla. Apr 10, 2008) The linked-to case does a nice job of explaining the pleading requirements for establishing diversity jurisdiction in a case involving a personal representative...
2d DCA: Trustee doesn't have to pay interest on funds wrongfully retained in trust
Posted on April 20, 2008Fleck v. Fleck, --- So.2d ----, 2008 WL 818814 (Fla. 2d DCA Mar 28, 2008) The linked-to opinion is the second time the trial court's been reversed on appeal in this case (ouch!!). The first time around the trust beneficiary won on appeal when the 2d DCA reversed the trial court for improperly construing a trust instrument [click here for my blog post on that appeal]...
Disbarred NY Lawyer Sentenced After Admitting to Stealing From Grandparents Trust Fund
Posted on April 19, 2008Daniel Wise of the New York Law Journal reports in Disbarred Lawyer Sentenced After Admitting to Stealing From Grandparents on yet another case involving the theft of estate funds by the person who was supposed to be the estate's primary protector. Here's the linked-to report in its entirety:A disbarred Westchester County, N...
2d DCA: PR can't pay off a mortgage on specifically-devised property unless the will says so
Posted on April 11, 2008In re Estate of Woodward, --- So.2d ----, 2008 WL 942044 (Fla. 2d DCA Apr 09, 2008) A basic rule under Florida's probate code is that specifically-devised property is inherited subject to any existing mortgages or other encumbrances unless the decedent's will specifically directs otherwise...
Notice of new probate-related FL opinions: Commentary to follow:
Posted on April 10, 20082d DCA: Fleck v. Fleck, --- So.2d ----, 2008 WL 818814 (Fla. 2d DCA Mar 28, 2008) 2d DCA: In re Estate of Woodward, --- So.2d ----, 2008 WL 942044 (Fla. 2d DCA Apr 09, 2008) (Mortgaged Property)
Attorney Unlicensed in Florida Still Awarded $1 Million in Fees in Messy Probate Case
Posted on April 06, 2008Bud Newman of the Daily Business Review reported in Attorney Unlicensed in Florida Still Awarded $1 Million in Fees in Messy Probate Case on a case I first wrote about last year [click here]. Here's an excerpt:A Palm Beach Circuit judge has awarded a North Carolina attorney $1 million in fees for representing a wealthy Palm Beach, Fla...
5th DCA: Probate court doesn't have jurisdiction over a trustee just because he happens to be in the room during a contested probate proceeding
Posted on March 29, 2008Chaffin v. Overstreet, --- So.2d ----, 2008 WL 678664 (Fla. 5th DCA Mar 14, 2008)In contested probate proceedings involving larger estates things can quickly get messy from a jurisdictional and civil procedure perspective because people don't order their lives into nice neat categories labled "probate" and "non-probate" assets...
Kansas man seeking parental rights to children conceived with sperm he donated is taking his case to the U.S. Supreme Court
Posted on March 22, 2008The Associated Press just reported in Sperm Donor Case Heads for U.S. Supreme Court that a Topeka, Kan., man seeking parental rights to children conceived with sperm he donated is petitioning the U.S. Supreme Court to take his case. For those of you who like your news served up on TV, [click here] for a local-news piece reporting on the same story...
1st DCA: Why do-it-yourself estate planning can lead to unintended consequences for homestead property
Posted on March 22, 2008Clemons v. Thornton, --- So.2d ----, 2008 WL 624863 (Fla. 1st DCA Mar 10, 2008) When an appellate opinion comes along dissecting a discombobulated homestead deed and explaining "who" gets "what" when the dust settles, it's gold because it's like getting the answers to your final exam in advance...
4th DCA: Probate court's discretion to vacate a prior pro hac vice order is NOT absolute
Posted on March 18, 2008Brooks v. AMP Services Ltd., --- So.2d ----, 2008 WL 373423(Fla. 4th DCA Feb 13, 2008) At issue in the linked-to case was whether a probate court could vacate its prior order granting a NY attorney's pro hac vice motion for purely technical reasons that had nothing to do with intentional misconduct by the NY attorney and in no way adversely impacted that administration of justice here in Florida...
N.Y. High Court Finds Adopted-Out Child Has No Claim to Jell-O Fortune
Posted on March 14, 2008Mark Fass of the New York Law Journal reported in N.Y. High Court Finds Adopted-Out Child Has No Claim to Jell-O Fortune on an interesting case determining the inheritance rights of a woman given up for adoption by her birth mother. I've written about this case before [click here]...
What to do when a will violates the terms of a divorce settlement agreement
Posted on March 12, 2008Perry v. Perry, --- So.2d ----, 2008 WL 588901 (Fla. 4th DCA Mar 05, 2008) 4th DCA Judge Gary M. Farmer penned a thoughtful concurring opinion in this case dissecting the following question: When a decedent's will violates the terms of his divorce settlement agreement, as incorporated into a final judgment of divorce, what recourse do the rightful beneficiaries of the estate have? Judge Farmer's analysis of this question provides an excellent road map for probate counsel to follow if ever presented with a similar set of facts...
4th DCA: What to do when a will violates the terms of a divorce settlement agreement
Posted on March 12, 2008Perry v. Perry, --- So.2d ----, 2008 WL 588901 (Fla. 4th DCA Mar 05, 2008) 4th DCA Judge Gary M. Farmer penned a thoughtful concurring opinion in this case dissecting the following question: When a decedent's will violates the terms of his divorce settlement agreement, as incorporated into a final judgment of divorce, what recourse do the rightful beneficiaries of the estate have? Judge Farmer's analysis of this question provides an excellent road map for probate counsel to follow if ever presented with a similar set of facts...
4th DCA: PR can't have it both ways when suing trustee over promissory note gone bad: PR must elect her remedy
Posted on March 09, 2008Young v. Kurlansik, --- So.2d ----, 2008 WL 508427 (Fla. 4th DCA Feb 27, 2008) The trustee of a decedent's revocable trust and the personal representative of the decedent's estate are inextricably linked because the PR has a claim on all assets of the revocable trust needed to pay probate administration expenses...
Notice of new probate-related FL opinion: Commentary to follow:
Posted on March 07, 20084th DCA: Perry v. Perry, --- So.2d ----, 2008 WL 588901 (Fla. 4th DCA Mar 05, 2008) (Breach of Contract to Make Will)
Should Florida adopt new legislation giving heirs standing to challenge a deathbed marriage on the grounds of fraud, duress or undue influence?
Posted on March 06, 2008The materials distributed for the last meeting of the Florida Bar's Probate & Trust Litigation Committee included a subcommittee report entitled Collateral Attack on the Validity of A Marriage after Death Based Upon Undue Influence [click here then scroll down to AGENDA ITEM 6]...
Should probate litigants "opt out" of the public court system?
Posted on March 03, 2008This letter from Miami-Dade County Chief Judge Joseph Farina was recently emailed to Miami-Dade County attorneys asking us to get involved in the political process revolving around looming budget cuts. According to Judge Farina:The judicial branch was recently advised that due to the State of Florida's budgetary deficit totaling approximately 4 billion dollars, the State Courts' budget would have to be reduced by more than 16 million dollars by June 30, 2008...
2d DCA: Once the presumption arises, the undue influence issue cannot be determined in a summary judgment proceeding
Posted on March 02, 2008RBC Ministries v. Tompkins, --- So.2d ----, 2008 WL 398821 (Fla. 2d DCA Feb 15, 2008)How a will contest is framed can make all the difference in the world. If the will is being challenged on undue influence grounds, you can forget ending the case at a summary judgment hearing once the "presumption" of undue influence is established...
Challenging Inter Vivos Transfers Procured by Undue Influence: Factors to Consider
Posted on February 26, 2008Coral Gables attorney Patrick J. Lannon just published in interesting article in this month's Florida Bar Journal entitled Challenging Inter Vivos Transfers Procured by Undue Influence: Factors to Consider. The article is well researched and good stuff to keep on file...
1st & 4th DCAs on managing the vexatious pro se litigant in probate litigation
Posted on February 24, 2008Our court system relies in large part on voluntary compliance with the "rules of the game." In contested probate/trust proceedings litigants can (and are expected to) vigorously compete with each other, but the system collapses in on itself if it turns into a mud-slinging free for all...
Notice of new probate-related FL opinion: Commentary to follow:
Posted on February 18, 20082d DCA: RBC Ministries v. Tompkins, --- So.2d ----, 2008 WL 398821 (Fla. 2d DCA Feb 15, 2008) (Undue Influence Claims/ Summary Judgment)
3d DCA: Does secretarial oversight = "excusable neglect" for blowing a deadline date in probate?
Posted on February 17, 2008In re Estate of Cummins, --- So.2d ----, 2008 WL 373414 (Fla. 3d DCA Feb 13, 2008) Florida Probate Rule 5.401(d) requires a party objecting to a personal representative's petition for discharge or final accounting to serve notice of hearing on the objections within 90 days of the date the objection is filed...
4th DCA: Surviving spouse trapped by life estate she cannot afford
Posted on February 16, 2008Schneberger v. Schneberger, --- So.2d ----, 2008 WL 373243(Fla. 4th DCA Feb 13, 2008) The linked-to case is the latest example of the lopped-sided unfairness resulting from how current Florida law treats life estates in homes. Ft. Lauderdale attorney Jeffrey A...
Notice of new probate-related FL opinions: Commentary to follow:
Posted on February 14, 20083d DCA: In re Estate of Cummins, --- So.2d ----, 2008 WL 373414 (Fla. 3d DCA Feb 13, 2008) (extending deadline dates in probate) 4th DCA: Schneberger v. Schneberger, --- So.2d ----, 2008 WL 373243(Fla. 4th DCA Feb 13, 2008) (Homestead/life estate litigation) 4th DCA: Brooks v...
Office of Tax Analysis of the Treasury Dept. has published a paper titled "The Federal Gift Tax: History, Law, and Economics."
Posted on February 11, 2008Sarasota attorney Barry F. Spivey, who also chairs the Florida Bar's Trust Law Committee, circulated the following email and link to the Treasury Department's recently published white paper on the U.S. gift tax. If tax planning is a part of your estate planning practice, this paper is probably a must read...
2d DCA: When can you successfully void a deed on summary judgment?
Posted on February 11, 2008McKoy v. DeSilvio, --- So.2d ----, 2008 WL 343255 (Fla. 2d DCA Feb 08, 2008) Inheritance disputes usually play themselves out in one of three forums: [1] trust litigation, [2] probate litigation and [3] real property litigation. The linked-to case provides solid guidance on the real-property-litigation front by addressing two frequently-litigated points involving contested deeds: What counts as valid consideration? One way to challenge a deed is on lack-of-consideration grounds: it's an indicator of undue influence or lack of capacity...
4th DCA: Dealing with pro se litigants in trust litigation: when to say NO to a motion to amend
Posted on February 09, 2008Barrett v. Barrett, --- So.2d ----, 2008 WL 239032 (Fla. 4th DCA Jan 30, 2008) Pro se (self-represented) litigants are not sensitive to the sanctions normally applied to counsel for bringing frivolous actions, and indigent litigants are not sensitive to fee-shifting or fines...
Federal Grand Jury Issues Subpoenas for Criminal Investigation by IRS' Major Fraud Division Regarding Estate Tax Return
Posted on February 06, 2008UPDATE:This is a first, I just received a demand letter from a firm in California requesting that I "remove [this] posting from [my] blog forthwith." [Click here for copy of demand letter]. Apparently, I "should" have known that the original story was pulled by the Orange County Business Journal...
4th DCA: Cost awards in probate litigation
Posted on February 05, 2008Nasser v. Nasser, --- So.2d ----, 2008 WL 239073 (Fla. 4th DCA Jan 30, 2008)Fees and costs. Attorneys say those words all the time, and we can all agree on what we mean by the word "fees," even when we don't agree on the amount of fees; what's usually much less clear is what mean by the word "costs" for purposes of a costs order...
Notice of new probate/trust related FL opinions: Commentary to follow:
Posted on January 31, 20084th DCA: Barrett v. Barrett, --- So.2d ----, 2008 WL 239032 (Fla. 4th DCA Jan 30, 2008) 4th DCA: Nasser v. Nasser, --- So.2d ----, 2008 WL 239073 (Fla. 4th DCA Jan 30, 2008)
2d DCA: Arbitration agreement fails if power of attorney did not expressly authorize it
Posted on January 30, 2008In re Estate of McKibbin, --- So.2d ----, 2008 WL 161322 (Fla. 2d DCA Jan 18, 2008) This case is yet another example of the distinction between the agency-law principals governing power-of-attorney disputes, versus the fiduciary-law principals governing trustee and personal-representative disputes...
5th DCA: Nominated personal representative under prior will has standing to challenge last will
Posted on January 28, 2008Wheeler v. Powers, --- So.2d ----, 2008 WL 160881 (Fla. 5th DCA Jan 18, 2008) Standing: In Florida whether or not you have standing to litigate a probate dispute depends on whether or not you're an "interested person," as defined by F.S...
MISS LILLIAN PELKEY'S PETTICOAT
Posted on January 25, 2008Can a person be disqualified from benefiting under a will because he or she was one of the attesting witness? In Florida the answer is clearly NO, witnesses are NOT disqualified: 732.504 Who may witness.--(1) Any person competent to be a witness may act as a witness to a will...
5th DCA: Motion to strike does not qualify as an "objection" to creditor's claim
Posted on January 23, 2008Fernandez-Fox v. Estate Of Lindsay, --- So.2d ----, 2008 WL 160920 (Fla. 5th DCA Jan 18, 2008) This case is an example of what NOT to do. When a creditor filed a claim against this estate the personal representative moved to strike the claim rather than simply objecting to it in accordance with F...
FL SCT: Florida's land-trust law survives bankruptcy challenge
Posted on January 21, 2008Raborn v. Menotte, --- So.2d ----, 2008 WL 90037 (Fla. Jan 10, 2008) The linked-to Florida Supreme Court opinion is the latest chapter in a bankruptcy proceeding that's been ongoing since 2001, has been the subject of numerous appeals in the federal-court system, and single-handedly resulted in a 2004 amendment to F...
Notice of new probate related FL opinions: Commentary to follow:
Posted on January 21, 20085th DCA: Wheeler v. Powers, --- So.2d ----, 2008 WL 160881 (Fla. 5th DCA Jan 18, 2008) (Standing to Revoke Probate) 5th DCA: Fernandez-Fox v. Estate Of Lindsay, --- So.2d ----, 2008 WL 160920 (Fla. 5th DCA Jan 18, 2008) (Deadlines to File Independent Actions) 2d DCA: In re Estate of McKibbin, --- So...
3d DCA: Court says YES to order reopening estate
Posted on January 20, 2008Macier v. Estate of Giamportone, --- So.2d ----, 2008 WL 80199 (Fla. 3d DCA Jan 09, 2008) Sometimes new assets are discovered after probate proceedings are completed and it becomes necessary to "reopen" an estate. Examples include stocks, bonds, real estate holdings or cash...
US SCT: Supreme Court rules that general stock picking advice is subject to 2 percent-of-AGI floor but specialized fiduciary advice is fully deductible
Posted on January 19, 2008Knight v. C.I.R. , --- S.Ct. ----, 2008 WL 140749 (U.S. Jan 16, 2008) In an opinion that will have significant implications for every estate or trust paying U.S. income taxes, the Supreme Court has just ruled on the level of deductibility Internal Revenue Code Section 67(e)(1) permits for trust investment advisory fees (IAFs)...
Notice of new trust-law related US S.Ct. opinion: Commentary to follow:
Posted on January 17, 2008US S.Ct.: Knight v. C.I.R. , --- S.Ct. ----, 2008 WL 140749 (U.S. Jan 16, 2008) (Income tax deductions for trusts and estates)
FL SCT: "The homestead exemption protects not only the debtor, but also the debtor's family and the State"
Posted on January 14, 2008Chames v. DeMayo, --- So.2d ----, 2007 WL 4440212 (Fla. Dec 20, 2007) Within the probate context there are two aspects of Florida's constitutional homestead protections that loom large: the debtor protections found in sections 4(a) and (b) of article 10 of the Florida Constitution; and the limitations on devise found in section 4(c) of article 10...
Notice of new trust-law related FL opinion: Commentary to follow:
Posted on January 14, 2008FL SCT: Raborn v. Menotte, --- So.2d ----, 2008 WL 90037 (Fla. Jan 10, 2008)
Notice of new probate related FL opinion: Commentary to follow:
Posted on January 10, 20083d DCA: Macier v. Estate of Giamportone, --- So.2d ----, 2008 WL 80199 (Fla. 3d DCA Jan 09, 2008)
Probate and Trust Litigation Committee Meeting Reports/White Papers
Posted on January 07, 2008Click here for a PDF copy of the Agenda and related Reports/White Papers for the upcoming meeting of the Florida Bar's Probate & Trust Litigation Committee. These materials are an excellent way to keep up on the latest probate-related developments that could affect you, your firm or your clients...
2d DCA: What to do when competing guardianship petitions are filed in different states
Posted on January 05, 2008In re Guardianship of Morrison, --- So.2d ----, 2007 WL 4180873 (Fla. 2d DCA Nov 28, 2007) Inter-state forum shopping in contested guardianship proceedings is a growing problem [click here]. So knowing what to do in a case involving parallel guardianship proceedings in different states with concurrent jurisdiction is useful for Florida probate litigators...
N.Y. Court Suspends Lawyer Accused of Taking Money From Judge's Guardianship Estate Funds
Posted on January 03, 2008An article written by Anthony Lin of the New York Law Journal entitled N.Y. Court Suspends Lawyer Accused of Taking Money From Judge's Estate underscores the wisdom of building systemic, structural safeguards against malfeasance into ALL guardianship proceedings...
2d DCA: Incompetency adjudication based upon 6-month old examination report is reversible error
Posted on December 31, 2007In re Commitment of Reilly, --- So.2d ----, 2007 WL 4270584 (Fla. 2d DCA Dec 07, 2007) As I've written about before [click here], an adjudication of incompetency must be based upon current evidence. Evidence that is months old by the time a judge gets around to ruling is of little value - and will probably end up getting you reversed on appeal...
3d DCA: Skipping hearing on contested petition to determine heirs is reversible error
Posted on December 28, 2007Griem v. Becker, --- So.2d ----, 2007 WL 4482171 (Fla. 3d DCA Dec 26, 2007) In the linked-to case the trial court first entered an order in favor of one side on a petition to determine heirs because the opposition failed to file a timely response...
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What is comparative negligence and strict liability in tort law?
A. comparative negligence
B. seller sells to buyer
B. defense of ...
Can collection agency call me for my mother debt that she never had?
Get an Attorney - quickly. Do not talk to the collection people. Do not tell the...
How can I get my parents away from my bulling brother?
First of all, if you are paying your lawyer, you should not be on the back burne...
Can I legally stop my kids grandmother from harassing me?
Hello and thank you for your question.
You need to file for a Civil Harass...
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