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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

September 14, 2009 90-Minute National Teleconference: Tax Issues in Trust and Probate Litigation

Posted on August 28, 2009
Tax 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, 2009
Boulis 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, 2009
Aguilar 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, 2009
Rust 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...

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Trusts & estates lawyers as expert witnesses: Judge says YES in Astor trial

Posted on July 26, 2009
The 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, 2009
Lanning 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, 2009
Zoldan 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, 2009
Celebrities 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, 2009
Glantz 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, 2009
Undue 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, 2009
Geary 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, 2009
Herrilka 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, 2009
MacIntyre, 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, 2009
John 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, 2009
In 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, 2009
The 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, 2009
Here'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, 2009
U.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, 2009
The 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, 2009
Probate 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, 2009
Blake 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, 2009
Bayview 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, 2009
Probate 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, 2009
Hansen 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, 2009
A 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, 2009
Juega 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, 2009
A 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, 2009
Here 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, 2009
Brigham 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, 2009
Accounting 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...

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