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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

Billionaire's Will Sparks Family Feud: Spousal Undue Influence?

Posted on January 27, 2010
The WSJ's Wealth Report Blog posted here on litigation swirling around the trust/estate of billionaire mall magnate Mel Simon. What I found especially interesting was the implication of possible undue influence by his surviving spouse, Bren Simon...

Just out: International Succession

Posted on January 25, 2010
I recently worked with one of my partners, Michele A. Maracini, on drafting the "Florida Chapter" of the newly released International Succession, published by Oxford University Press [click here]. I'm of course biased, but I'm proud of the final product and think it's the kind of international resource more and more U...

3d DCA: When will an appellate court reverse a probate judge on a pure fact question?

Posted on January 19, 2010
Estate of Madrigal v. Madrigal, --- So.3d ----, 2009 WL 4061747 (Fla. 3d DCA Nov 25, 2009) I recently wrote here about the "Undue Influence Worksheet," a tool for probate litigators and their clients to organize their thinking and zero in on the key evidence determining the outcome of their undue influence case...

If I'm a reasonably ascertainable creditor and the estate didn't give me notice, do I get a free pass for filing a late claim?

Posted on January 11, 2010
Morgenthau v. Estate of Andzel, --- So.3d ----, 2009 WL 5151741 (Fla. 1st DCA Dec 31, 2009) I recently wrote here about Florida's ultra-short deadlines for filing creditor claims against probate estates and how they can be unforgiving traps for the unwary...

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Florida Bar Real Property Probate and Trust Law Section is now accepting applications for the 2010 Fellowship class

Posted on January 11, 2010
The Florida Bar Real Property Probate and Trust Law Section is now accepting applications for the 2010 Fellowship class. The RPPTL Section Fellowship program, created in 2007, awards up to 4 fellowships to exceptional Florida attorneys interested in our practice areas...

Powerful tool for probate litigators: Undue Influence Worksheet

Posted on January 07, 2010
The law governing undue influence claims in Florida is a frequent topic of discussion on this blog [click here, here, here, here]. But for those of us in the trenches, we know clever legal arguments rarely carry the day; these cases are won and lost on the strength of your evidence...

1st DCA: Trap for the Unwary: Florida's ultra-short limitations periods for probate creditor claims

Posted on December 31, 2009
Mack v. Perri, --- So.3d ----, (Fla. 1st DCA Dec 22, 2009) Plaintiffs suing estates often fail to realize that they're really litigating their claims in two separate courts in front of two separate judges: The trial court adjudicating their lawsuit (this is where the estate's liability is established); and The probate court administering the decedent's probate estate (this is where you go to collect if you win in the trial court)...

"The Will: Family Secrets Revealed": Death is only the beginning of new cable series

Posted on December 30, 2009
Celebrity probate litigation is never boring, which explains why there's always lots of good stuff out there to write about [click here, here, here], and why a new probate blog out of Michigan, The Probate Lawyer Blog, by author and probate litigator Andrew Mayoras, is all about celebrity probate litigation, all the time [click here]...

Probate Litigators Need to Know about the New IRS Regulations under Section 2053 Governing Estate Tax Deductions for Administration Expenses and Claims Against Estates

Posted on December 24, 2009
At a top current rate of 45%, the federal estate tax automatically makes the IRS the single largest creditor for most large estates. If the estate tax is looming in the background, it's imperative that every decision made by the parties and their lawyers with respect to how they characterize and prosecute their trust/probate claims be considered against this backdrop...

3dDCA: Default judgements as discovery sanction in probate litigation

Posted on December 21, 2009
Buroz-Henriquez v. De Buroz, --- So.3d ----, 2009 WL 3271354 (Fla. 3d DCA Oct 14, 2009) It's not unusual in probate litigation for parties to underestimate the importance of complying with discovery deadlines. However, this frustrating fact of life is also an opportunity: I recently won a case simply by obtaining an ex parte order compelling a recalcitrant will-challenger to respond to my pending discovery requests...

4th DCA: What's an "estui que trust" and can it sue my trustee client?!

Posted on December 14, 2009
Wells v. Wells, --- So.3d ----, 2009 WL 2949277 (Fla. 4th DCA Sep 16, 2009) Florida's declaratory-judgment act (F.S. Chapter 86) is based on the Uniform Declaratory Judgment Act, which was finalized almost a hundred years ago in 1922 [click here]. The early 20th Century vintage of this statute explains why it uses archaic phrases rooted in medieval English jurisprudence, like cestui que trust, when the "Plain English" version of the phrase: "trust beneficiary", would do just as well (for more on the post-1970s "Plain English Movement" click here)...

4th DCA: What's a "cestui que trust" and can it sue my trustee client?!

4th DCA: Can a life tenant/trustee be held personally liable for damages?

Posted on December 07, 2009
Vaughn v. Boerckel, --- So.3d ----, 2009 WL 3364856 (Fla. 4th DCA Oct 21, 2009) This is the second time the running trust-and-estate litigation between the decedent's widow (his second wife) and his children and grandchildren from his first marriage has gone to the 4th DCA...

Maximizing trustee litigation defenses built into Florida's Trust Code

Posted on December 02, 2009
Florida's adoption of the Uniform Trust Code in 2007 [click here] was good news for all sorts of reasons. One primary benefit was the UTC's beefed up litigation defenses for trustees. Two of those defenses are the subject of an interesting article just published in the ABA's Probate & Property Magazine by Arizona trusts-and-estates litigator Kevin J...

2d DCA: Can estate creditors strike sweetheart side deals that cut out the PR?

Posted on November 23, 2009
Copeland v. Buswell, --- So.3d ----, 2009 WL 2243701 (Fla. 2d DCA Jul 29, 2009) Under Florida law the personal representative is the central figure in all things having to do with the probate estate. No matter how inconvenient that fact may be, you can't ignore the PR in the hopes of cutting a better deal for yourself...

4th DCA: Can a probate judge boot a recalcitrant cotenant out of homestead property?

Posted on November 16, 2009
Buettner 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, 2009
LoCascio 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, 2009
A 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, 2009
In 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, 2009
Turchin 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, 2009
I'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, 2009
Chin 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, 2009
A 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, 2009
I 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, 2009
McMullen 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, 2009
Brian 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, 2009
Littell 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, 2009
Doe 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, 2009
Tax 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, 2009
If 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...

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