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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.
By Juan C. Antúnez

Post Frequency: 1.6/day

Last Entry: July 12, 2010 at 20:48:56

3d DCA on when you're entitled to statutory attorney's fees in power-of-attorney litigation

Posted on July 12, 2010
Bessard v. Bessard, --- So.3d ----, 2010 WL 1875627 (Fla. 3d DCA May 12, 2010) Durable powers of attorney (POAs) are an integral part of modern estate planning. The prevalence of POAs means they come up with some frequency in estate-related litigation [click here]...

In will-construction dispute, 5th DCA says NO to stepmother's attempted disinheritance of former husband's children

Posted on July 06, 2010
Timmons v. Ingraham, --- So.3d ----, 2010 WL 2217637 (Fla. 5th DCA Jun 04, 2010) As reported here by the WSJ, "When it comes to blended families, estate planning can be a special kind of hell." A corollary to that observation: blended families are always at risk for probate litigation...

Florida Supreme Court says NO to charging-order protection for single member LLCs

Posted on July 01, 2010
Olmstead v. F.T.C., --- So.3d ----, 2010 WL 2518106 (Fla. Jun 24, 2010) Limited liability companies or "LLCs" have long been touted as the ultimate entity for investors and business owners alike: combining the best asset protection qualities and tax benefits of corporations and partnerships into a single hybrid entity...

3d DCA on when questioning from the bench goes too far in guardianship trials

Posted on June 14, 2010
Fernandez v. Guardianship of Fernandez, --- So.3d ----, 2010 WL 2178831 (Fla. 3d DCA Jun 02, 2010) Contested guardianship proceedings are bench trials, which means the same person is both your fact finder and lawgiver: the judge. As explained in When the Judge Is the Jury, there are real advantages to bench trials: 'And one of the biggest advantages over the traditional courtroom is that the lawyers get to ‘read the jury' all through the case...

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2d DCA says NO to class-action creditor claims under Florida's Probate Code

Posted on June 07, 2010
Baillargeon v. Sewell, --- So.3d ----, 2010 WL 1727842 (Fla. 2d DCA Apr 30, 2010) As a probate lawyer, you're often the low man on the totem pole in cases involving large, complex matters. The firm representing the estate on the civil litigation side of the case could be (and often is) a large firm with hundreds of lawyers on the payroll, staffing your particular matter with a team of high-powered litigators...

1st DCA certifies conflict with 3d DCA: 3-month statue of limiations applies to PR disqualification motions

Posted on May 27, 2010
Hill v. Davis, --- So.3d ----, 2010 WL 1347314 (Fla. 1st DCA March 31, 2010) In civil litigation you usually have years to file your complaint: most statue of limitations periods fall within a range of 2 to 6 years. Not surprisingly, most civil litigators assume the same rules apply to probate litigation...

Interview with a Probate Lawyer: Steve L. Zimmerman

Posted on May 18, 2010
Steve L. Zimmerman of Zimmerman, Zimmerman & Miceli, P.A., in Pompano Beach, Florida, was on the winning side of Yawt v. Carlisle, --- So.3d ----, 2010 WL 1879697 (Fla. 4th DCA May 12, 2010), a case I wrote about here involving when a new complaint has to be filed in on-going trust litigation...

4th DCA on when you have to file a new complaint in trust litigation

Posted on May 16, 2010
Yawt v. Carlisle, --- So.3d ----, 2010 WL 1879697 (Fla. 4th DCA May 12, 2010) In probate proceedings you don't need to file a new complaint every time you want your probate judge to rule on some new issue. Why? Because probate is an in rem proceeding where the Florida Rules of Civil Procedure generally don't apply...

1st DCA: Just because a couple "acts married" doesn't mean they're legally married

Posted on May 13, 2010
Hall v. Maal, --- So.3d ----, 2010 WL 1212794 (Fla. 1st DCA March 30, 2010) Just because someone says they were married to the decedent, doesn't make it so. In contested probate proceedings you simply can't take this fact for granted; the economic implications are too big...

4th DCA: Florida's asset protection shield for spendthrift trusts survives creditor attack: emerges stronger than ever

Posted on May 08, 2010
Miller v. Kresser, --- So.3d ----, 2010 WL 1779899 (Fla. 4th DCA May 05, 2010) Multigenerational spendthrift trusts - often referred to as "dynasty trusts" - are fast becoming the cornerstone of modern estate planning. This is not some esoteric issue of interest only to tax lawyers: it's big business...

Creditor Protection Denied for Florida Debtor's Inherited IRA

Posted on May 07, 2010
Kentucky and Florida estate planning lawyer/blogger C. Carter Ruml recently wrote an interesting summary of Robertson v. Deeb, 16 So.3d 936 (Fl. Dist. Ct. App. 2 Dist. 2009), a pro-creditor decision that pokes a hole in Florida's well-earned reputation as an asset-protection haven...

11th Cir: Personal Representative liable for over $50,000 in taxes and penalties on cash the estate never received

Posted on May 03, 2010
United States v. Guyton, Jr., 2010 WL 1172428 (11th Cir. March 26, 2010) In this case a father sold his McAlpin, Florida poultry farm in January of 2000 and died six months later. Before his death dad deposited the sales proceeds in a joint account held with his son "Blake...

2d DCA: Ethics violation = undue influence = attorney and paralegal forfeit $7.2 million bequest

Posted on April 19, 2010
Carey v. Rocke, 18 So.3d 1266 (Fla. 2d DCA October 23, 2009) I first wrote about this case here when it hit the papers in 2008. According to newspaper accounts this will contest revolved around allegations of undue influence and related attorney ethics violations...

Who's Charging What for Trust Services?

Posted on April 06, 2010
If you're an estate planner, it's not unusual to get asked if the fees being proposed by trust company "X" are reasonable. We usually have a sense of what the going rate is in our market, but it's mostly a "guesstimate." So I was glad to see an excellent piece of market research published on The Trust Advisor Blog...

2d DCA to Florida philanthropists: don't waste your time suing charities in the absence of a written trust or gift agreement

Posted on April 05, 2010
Foundation For Developmentally Disabled, Inc. v. Step By Step Early Childhood Educ. And Therapy Center, Inc., --- So.3d ----, 2010 WL 1135901 (Fla. 2d DCA Mar 26, 2010) In the 1980's Florida philanthropist Edwin H. Bower made large charitable donations to the Foundation for the Developmentally Disabled, Inc...

Interview with a Probate Lawyer: Amy B. Beller

Posted on March 25, 2010
Amy B. Beller of Beller Smith, P.L., in Boca Raton, Florida, was on the winning side of Pajares v. Donahue, --- So.3d ----, 2010 WL 934101 (Fla. 4th DCA Mar 17, 2010), an interesting case I wrote about here involving the enforceability of will devising homestead property (always a tricky issue)...

The 4th DCA construes will properly devising Florida homestead

Posted on March 23, 2010
Pajares v. Donahue, --- So.3d ----, 2010 WL 934101 (Fla. 4th DCA Mar 17, 2010) A will provision devising Florida homestead property is valid ONLY if BOTH elements of the following two-part test are satisfied: The homestead was subject to devise. In other words, the restrictions on the devise of homestead contained in Sect...

9th Circuit: No Oil Millions for Anna Nicole Smith's Estate

Posted on March 22, 2010
In this latest opinion from the 9th Circuit, the spotlight turns once again on the record-shattering trust-and-estates litigation the late Anna Nicole Smith a/k/a Vickie Lynn Marshall (she died in 2007) and and her former step-son, E. Pierce Marshall (he died in 2006), waged over the vast estate of her former husband, J...

Betting on the U.S.

Posted on March 16, 2010
This is a bit off topic, but I recently came across a Goldman Sachs research report entitled Take Stock of America that deserves wider attention than your standard market analysis piece. The report is all about why the smart money's riding on the U.S...

Ignoring ultra-short limitations periods: great way to waive objections to final accountings in probate

Posted on March 10, 2010
Thomas v. Thomas, --- So.3d ----, 2010 WL 391833 (Fla. 5th DCA Feb 05, 2010) There are certain key milestones in a probate proceeding where Florida's probate rules build in ultra-short limitations periods designed to bring disputes to a head quickly or forever bar them...

Another personal injury lawyer forfeits trial court win by blowing probate creditor deadline

Posted on March 08, 2010
Grainger v. Wald, --- So.3d ----, 2010 WL 479862 (Fla. 1st DCA Feb 12, 2010) The linked-to opinion is yet another example of yet another plaintiffs lawyer seeing his trial-court win go up in smoke because he blew a deadline in probate court. The last time I wrote about this problem was a med-mal case [click here]...

DNA testing in probate and trust litigation: 2d DCA explains how to do it right

Posted on February 28, 2010
Doe v. Suntrust Bank, --- So.3d ----, 2010 WL 323031 (Fla. 2d DCA Jan 29, 2010) Sometimes courts will ignore DNA test results as a matter of law [click here, here]. And then there are those cases where who wins or loses can turn on a DNA test. Not surprisingly, if the estate is being litigated and a DNA test could help one side win, the other side may not voluntarily hand over a DNA sample...

"No fee for you!" Out-of-state lawyer forfeits million-dollar payday in trust litigation

Posted on February 21, 2010
Morrison v. West, --- So.3d ----, 2010 WL 532792 (Fla. 4th DCA Feb 17, 2010) The linked-to opinion above is the last gasp of bitter litigation swirling around the $100 million estate of Palm Beach socialite Pedro Morrison, who died in 2003 [click here, here]...

UK insurance giant Lloyd's of London stymied by strategic use of Florida's 2-year non-claim statute

Posted on February 18, 2010
In re Estate of Harrison, Slip Copy, 2010 WL 503077 (Bankr.M.D.Fla. Jan 29, 2010) An overarching theme of Florida's probate code is the tension between basic due-process rights on the one hand and Florida's strong public policy favoring the speedy administration of estates on the other...

WSJ: The Unseen Victims of No Estate Tax

Posted on February 15, 2010
Here's something you don't see every day: an acknowledgment by a credible source usually not associated with the "liberal media" (Rupert Murdoch's the WSJ) reporting that repeal of the estate tax is not a free ride, there are consequences: taxes will be shifted from a wealthier segment of the U...

Everything you ever wanted to know about drafting opinion letters involving Florida trusts (+ great forms!). What else could you ask for?

Posted on February 12, 2010
If you're like most trusts-and-estates lawyers, you don't work at a big firm. Which means you can't walk down the hallway and ask one of your partners for a good set of forms when someone wants to hire you to provide a legal opinion on some trust-related issue (as opposed to a tax opinion)...

2d DCA: Employing beneficiaries as service providers to boost access to trust funds

Posted on February 08, 2010
Burgess v. Prince, --- So.3d ----, 2010 WL 199422 (Fla. 2d DCA Jan. 22, 2010) Access to trust funds is usually a zero-sum game: If I pay trust funds to one party, there's less money for everyone else. We usually think of this problem in terms of conflicting claims between trust beneficiaries: if I pay $$ to beneficiary "A," there's less $$ for beneficiary "B...

Florida's Statutory Fix: Race To Clean Up Congress' Estate Tax Mess

Posted on February 04, 2010
As reported by Forbes in States Race To Clean Up Congress' Estate Tax Mess, several states - including Florida - aren't waiting around for Congress to get its act together on the estate tax front. While Congress dilly dallies, the states are racing to come to the aid of families whose estate plans have been thrown into disarray by the Jan...

5th DCA: Will voluntary financial disclosure - if inaccurate or fraudulent - invalidate a prenuptial agreement dealing solely with inheritance rights?

Posted on February 02, 2010
Foster v. Estate of Gomes, --- So.3d ----, 2010 WL 322170 (Fla. 5th DCA Jan. 29, 2010) Prenuptial agreements limiting themselves solely to spousal inheritance rights are governed by F.S. § 732.702. All other prenuptial agreements are governed by the more burdensome requirements of Florida's Premarital Agreement Act, found at F...

3d DCA: Can "buyer's remorse" get a probate litigant out of a settlement agreement?

Posted on February 01, 2010
Rachid v. Perez, --- So.3d ----, 2010 WL 173776 (Fla. 3d DCA Jan 20, 2010) We've all been there: you've been locked in mediation for hours and an unreasonable/ irrational litigant refuses to settle, even if - given the risks and benefits - it's plain to everyone that he ought to accept the settlement offer on the table...

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