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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

Challenging Inter Vivos Transfers Procured by Undue Influence: Factors to Consider

Posted on February 26, 2008
Coral 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, 2008
Our 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, 2008
2d 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, 2008
In 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...

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4th DCA: Surviving spouse trapped by life estate she cannot afford

Posted on February 16, 2008
Schneberger 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, 2008
3d 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, 2008
Sarasota 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, 2008
McKoy 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, 2008
Barrett 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, 2008
UPDATE: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, 2008
Nasser 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, 2008
4th 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, 2008
In 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, 2008
Wheeler 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, 2008
Can 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, 2008
Fernandez-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, 2008
Raborn 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, 2008
5th 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, 2008
Macier 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, 2008
Knight 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, 2008
US 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, 2008
Chames 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, 2008
FL 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, 2008
3d 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, 2008
Click 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, 2008
In 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, 2008
An 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, 2007
In 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, 2007
Griem 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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