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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

4th DCA: Beneficiary loses - again - in third trial against her trustee

Posted on May 23, 2008
Parker 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, 2008
In 2006 I predicted the federal estate tax would ultimately NOT be repealed, but that it would be frozen at 2009 levels: $3.5 million exemption ($7 million for couples), at a top rate of 45 percent [click here].Post 2006 developments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, 2008
Click 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, 2008
In 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...

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Ray Charles' children battle over his legacy: Say trusts set up to handle the singer's affairs have been mismanaged.

Posted on May 13, 2008
Michael 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, 2008
American 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, 2008
John 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, 2008
Julia 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, 2008
5th 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, 2008
Texas 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, 2008
Ohio 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, 2008
American 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, 2008
Cleare 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, 2008
Fleck 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, 2008
Daniel 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, 2008
In 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, 2008
2d 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, 2008
Bud 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, 2008
Chaffin 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, 2008
The 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, 2008
Clemons 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, 2008
Brooks 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, 2008
Mark 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, 2008
Perry 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

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, 2008
Young 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, 2008
4th 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, 2008
The 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, 2008
This 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, 2008
RBC 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...

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