Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

By Juan C. Antúnez of Stokes McMillan Antúnez P.A.

3d DCA: Should we assume most paternity actions in probate are now time barred?

Posted in Practice & Procedure

Rose v. Sonson,  — So.3d —-, 2016 WL 4651350 (Fla. 3d DCA September 07, 2016)


Norman Rockwell loved the idea of having the “all-American” boy descend from a pirate and his stolen Spanish princess, though it troubled his friend and therapist Erik Erikson. “Do you think you ought to start off the family with him, a cutthroat, a barbarian?” Erikson asked. Rockwell experimented with changing the pirate to a Puritan, then a buccaneer, but finally returned to the original. “Everybody,” he said, “had a horse thief or two in his family.”

Inheritance litigation often turns on a person’s claimed “status” as a family member. Past examples include challenges to a person’s claimed status as a descendant: for example, are you a pretermitted child (click here), or an adopted adult (click herehere), or an adopted-away child (click here), or a descendant by blood (click here), or a posthumously conceived child (click here); or challenges to a person’s claimed status as a parent: for example, are you a “legally” recognized father (click here); or challenges to a person’s claimed status as a spouse: for example, are you “legally” married (click herehere).

In most of these cases a claimant doesn’t have to litigate his or her status until after someone dies. Which means your statute of limitations clock doesn’t start ticking until the moment of death. Not so with paternity actions.

Paternity litigation is different:

If a man dies without a will (intestate), any children he had while married are automatically considered his heirs, entitled to an intestate share of his estate as determined by F.S. 732.103. Not so with out-of-wedlock children. Those heirs have to prosecute paternity actions if they want a share of the estate.

So can you prosecute a paternity action after the alleged father dies? Yes, but only if the claim’s not time barred. And as explained below, the 3d DCA’s ruling in this case means most paternity actions are going to be time barred.

F.S. 95.11(3)(b) imposes a 4-year statute of limitations for paternity actions, starting as of the date the putative child turns 18. This makes sense if all we’re worried about is establishing paternity to enforce a father’s economic support obligations for his minor children. A statute-of-limitations clock that starts running when a putative child turns 18 makes a lot less sense if we’re talking about inheritance litigation, when the “child” at issue is almost always a middle aged adult.

So does F.S. 95.11(3)(b) apply to probate proceedings? In In re Estate of Smith, 685 So.2d 1206 (Fla.1996), the Florida Supreme Court said YES, it does. Was that the end of the story? NO. In 2009 the Smith ruling was overturned by statute with an amendment to F.S. 732.108(2), which said F.S. 95.11 does NOT apply to paternity actions in probate proceedings.

So was that the end of the story? NO. Why? Because until now we’ve never had an appellate court address the following question: was the 2009 change to F.S. 732.108(2)(b) retroactive (thus reviving all previously time-barred paternity claims in probate), or did it only apply prospectively (thus preserving the status quo for all probate paternity claims time barred as of 2009)? How the 3d DCA answered this question potentially impacts every intestate estate in Florida. So yeah, this case is big deal.

Case Study:

In this case a man was born out of wedlock in 1964. His alleged biological father died intestate 48 years later in 2012. The claimant turned 18 in 1982. Under F.S. 95.11(3)(b) he had 4 years to bring suit to establish paternity. In other words, his paternity action was time barred in 1986 — 26 years before his father died and his status as an intestate heir became relevant for inheritance purposes.

The claimant argued his paternity action was revived by the 2009 change to F.S. 732.108(2), which said F.S. 95.11 does NOT apply to paternity actions in probate proceedings. Trial court said NO, and the 3d DCA agreed. Here’s why:

We . . . agree with the trial court that . . . the putative child’s paternity claim following [the decedent’s] death in 2012 is time barred because more than four years has passed since [the claimant] attained majority in 1982. . . . This is because the Florida Legislature did not make the amendment to section 732.108(2)(b) retroactive in its application and applying the 2009 amendment to that provision would not have affected the outcome in any event. This is so because by the time the 2009 amendment to section 732.108(2)(b) took effect to eliminate the limitations bar previously imposed by section 95.11(3)(b), [the putative child’s paternity claim] had long since expired, and as noted in Smith, “[o]nce a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant.” Id. at 1210; see also Wiley v. Roof, 641 So.2d 66, 68 (Fla.1994) (“Once the defense of the statute of limitations has accrued, it is protected as a property interest just as the plaintiff’s right to commence an action is a valid and protected property interest…. Florida’s statute of limitations, section 95.011, bars all action unless commenced within designated times…. Once an action is barred, a property right to be free from a claim has accrued.”).

Thus, while section 732.108(2)(b) as amended in 2009 provided relief to similarly situated individuals with existing causes of action by eliminating the four year statute of limitations imposed by section 95.11(3)(b) on paternity determinations in probate proceedings to determine intestate succession going forward, this amendment provides no relief to those such as [the claimant in this case] whose claims had already expired by the time the amendment became law. See Smith, 685 So.2d at 1210 (“[T]he 1986 amendment [to section 95.11(3)(b) to extend the limitations period for bringing paternity actions] provides Scruggs no solace because even under its terms her claim had long since expired.”); Wiley, 641 So.2d at 68 (“The Legislature has the power to increase a prescribed period of limitation and to make it applicable to existing causes of action provided the change in law is effective before the cause of action is extinguished by the force of a pre-existing statute.”) (quoting Walter Denson & Son v. Nelson, 88 So.2d 120, 122 (Fla.1956) (emphasis supplied))).

Do the math; assume most paternity actions in probate are now time barred:

Under F.S. 95.11(3)(b), the 4-year statute of limitations period for paternity actions starts running when a putative child turns 18, which means he or she has until age 22 to file suit. So if you were age 22 or older in 2009 (or 29+ in 2016) you’re forever time barred from adjudicating paternity in a Florida probate proceeding. That’s 65% of Florida’s population (see here). I’m guessing this outcome’s going to come as a big surprise to most probate lawyers. You’ve been warned!

Juan Antúnez to speak on Conflict Resolution and Ethics: A Summary of Mediator Ethics Advisory Committee (MEAC) Opinions for 2015 and 2014

Posted in Mediation & Arbitration

conflict-resolution1The Florida Supreme Court’s Mediator Ethics Advisory Committee (MEAC) has been issuing formal advisory ethics opinions to certified and court-appointed mediators since 1994. MEAC opinions deal with mediation-related ethics questions governed primarily by Florida’s Rules for Certified and Court-Appointed Mediators.

After 20 years in the trenches, I’m convinced one of the best risk-management tools available to practicing lawyers are our ethics rules. Not because we need someone to tell us it’s a bad idea to lie, steal or cheat; but because we need someone to point out the pitfalls that are NOT self-evident. As former Secretary of Defense Donald Rumsfeld famously put it, it’s the “unknown, unknowns” you need to worry about.

Which is why MEAC opinions are a valuable resource more of us should be aware of. To that end I’m giving a presentation at the Dade County Bar Association’s Probate and Guardianship Committee lunch for Thursday, September 8, 2016 on the MEAC opinions published in 2014 (see here) and 2015 (see here). If you’re able to attend, you should. It’ll be time well spent. Click here for event/registration details and here for my outline.

S.D. Fla: In case of first impression, federal judge rules on constitutionality of Florida’s new trust-specific long arm statute

Posted in Practice & Procedure

Abromats v. Abromats, 2016 WL 4366480 (S.D. Fla. August 16, 2016)

multi-stateIf you’re a trusts and estates litigator in Florida, sooner or later you’re going to be involved in some kind of multi-jurisdictional case. This fact-of-life lead to the adoption in 2013 of F.S. 736.0202, Florida’s long-arm statute specially tailored for trust litigation (see here).

But just because a Florida statute says you can drag a non-resident into a Florida courtroom doesn’t make it so. If our statute violates the Fourteenth Amendment’s Due Process Clause, the non-resident defendant gets a pass. What’s interesting about this case is it’s the first to put F.S. 736.0202 to the constitutional due process test.

Case Study:

This case involves a revocable trust created by a parent while residing in Florida. From that trust she made distributions to a son who lives in Wyoming. After her death this son was sued in Florida by his brother, who accused him of undue influence in connection with a trust amendment that reinstated him as a beneficiary of their mother’s trust. Here’s how the lawsuit was summarized by the court:

[Plaintiff’s] Complaint seeks to declare null and void the “September Amendments,”[FN 2] which reinstated [Defendant] as a beneficiary entitled to Trust funds. . . . The Complaint also seeks approval of an Accounting, which by its nature, encompasses the distributions [Defendant] admits he received.

[FN 2:] The September Amendments were those that [the trust settlor] made with the input of [the Defendant], apparently while [the Defendant] visited Florida for that very purpose.

Under subsection (2)(a)(8) of F.S. 736.0202, our statute says you’ve submitted yourself to the personal jurisdiction of a Florida court if you cash a check sent to you by a trust administered in Florida, which is what happened in this case. Here’s the relevant statutory text:


(a) Any trustee, trust beneficiary, or other person, whether or not a citizen or resident of this state, who personally or through an agent does any of the following acts related to a trust, submits to the jurisdiction of the courts of this state involving that trust:

. . .

8. Accepts a distribution from a trust having its principal place of administration in this state with respect to any matter involving the distribution.

It’s the law, but is it constitutional?

So according to our statute, a man living in Wyoming can get sued in Florida even if the only contact he’s ever had with our fair state is cashing a check from a Florida trust. But is that the end of the story? NO. The statute’s got to pass constitutional muster.

When a state passes a specialized long-arm statute, like we did in 2013, a three-part due process test gets triggered if the statute’s challenged on constitutional grounds. The three-part test examines:

(1) whether the plaintiff’s claims ‘arise out of or relate to’ at least one of the defendant’s contacts with the forum; (2) whether the nonresident defendant ‘purposefully availed’ himself of the privilege of conducting activities within the forum state, thus invoking the benefit of the forum state’s laws; and (3) whether the exercise of personal jurisdiction comports with ‘traditional notions of fair play and substantial justice.'” Louis Vuitton Malletier, S.A., 736 F.3d at 1355 (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 472-73, 474-75 (1985); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 413-14 (1984); Int’l Shoe Co., 326 U.S. at 316; Oldfield v. Pueblo De Bahia Lora, S.A., 558 F.3d 1210, 1220-21 (11th Cir. 2009); Sculptchair, Inc. v. Century Arts, Ltd., 94 F.3d 623, 630-31 (11th Cir. 1996)). Put another way, a “nonresident generally must have ‘certain minimum contacts . . . such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.'” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014) (quoting International Shoe Co., 326 U.S. at 316 (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

So did F.S. 736.0202 pass its first constitutional challenge? YES. But the primary reason wasn’t because Wyoming brother actually did anything in Florida. Instead, the court focused on the trust’s connections to Florida.

Not surprisingly, mom (who’d lived in Florida since 1972) hired a Florida lawyer to draft her revocable trust which — surprise! — was governed by Florida law and administered by a Florida trustee. Also not surprising mom’s trust account was held by a Florida bank. What did Wyoming brother do to get himself sued in Florida? Cash mom’s Florida trust-account checks:

[T]he Court finds that the distributions [Defendant] accepted from the Trust establish the requisite minimum contacts, as they are sufficiently “related to” the instant cause of action and the forum. Furthermore, by accepting distributions from the Trust administered from Florida, with the assistance of Florida-based professionals, from funds based in Florida accounts, and with the understanding that Florida law governed, [Defendant] unquestionably “purposefully availed [himself] of forum benefits” and made it such that he “could reasonably anticipate being haled into court” in Florida.

As to the third prong of the due-process test — “fair play and substantial justice” — here again the court ruled against Wyoming brother’s due process challenge. In reaching its conclusion the court pointed to a slew of procedural wrangling the parties had engaged in for the last ten months involving multiple lawsuits filed in New York and Florida. Did that really matter? I’m guessing it didn’t.

The center of gravity for this case was always Florida, and the fact that the Defendant lived over a thousand miles away in Wyoming wasn’t going to change that.

After ten months, the Court believes that it is in the best position to efficiently and effectively resolve the disputes at issue. Moreover, many of the professionals, evidentiary documents, and other discovery matters are present in this forum, making it convenient. Counter-Defendant Baxter is domiciled in South Florida, as was [the Settlor] at the time of the alleged “undue influence.” Finally, the Court finds that Florida, the forum state, has a strong interest in resolving this matter, as [the Settlor] lived, settled the Trust, and passed away in Florida, Florida law governs the Trust, the Accounting occurred in Florida, and the Trust is administered from the forum.

What’s the takeaway?

If a trust is created and administered in Florida, the gravitational pull of a Florida courtroom to adjudicate any dispute involving that trust is going to be significant — perhaps insurmountable, especially under F.S. 736.0202’s new and very expansive long-arm test. This was the statute’s first constitutional challenge by a non-resident trust beneficiary. I expect we’ll see more. In the meantime the safe bet for any beneficiary of a Florida trust is to assume you’ll have to show up in a Florida courtroom if your trust gets litigated — and it doesn’t matter where on the planet you happened to have been living when mom’s trust-account check hit your mailbox years earlier.

What “Hamilton” can teach trusts and estates lawyers about framing their cases

Posted in Musings on the Practice of Law

Illustration by Lars Leetaru

I’m a huge Hamilton fan. To me the musical represents everything that makes this country great. But why do I feel that way? Contrary to the show’s portrayal of Hamilton as a “scrappy and hungry” man of the people, in reality he was an elitist who disdained the lower classes, feared democratic politics, and loathed the egalitarian tendencies of the revolutionary era in which he lived (see here).

And yet, I still love the show. Why? Because Lin-Manuel Miranda brilliantly “reframed” the Hamilton story in a way that’s perfect for the particular moment in history we’re experiencing today.

There’s a lesson to be had here for trusts and estates lawyers. How a story’s “framed” is critical in any kind of estate litigation. The pleadings and evidence in a typical Will contest read like a script from Days of Our Lives. The star of the show is usually the testator, often painted in surrealistic black and white terms by the contestant as a senile, diseased, mentally unbalanced victim, the equivalent of Shakespeare’s King Lear. On the other hand the proponent draws the testator as a wily, crafty senior citizen motivated by moral indignation to refuse to enable the bad conduct of relatives.

Both story lines can be compelling, which means the side that best frames its side of the case starting from the very first day in court usually has the advantage. As any veteran litigator will tell you, once a particular narrative takes hold in a judge’s mind dislodging it is practically impossible.

In this month’s ABA Journal there’s a great article that uses Hamilton as an example of how lawyers can “frame” the facts of their cases to present winning story lines. The article’s entitled What ‘Hamilton’ teaches lawyers about framing a story and it’s written by Philip N. Meyer, a professor at the Vermont Law School and the author of Storytelling for Lawyers. The article’s a must read for trusts and estates lawyers. Here’s an excerpt:

While reading the closing arguments collected in the excellent Greatest Closing Arguments books by Michael S. Lief and H. Mitchell Caldwell, I realized that trial lawyers, especially in these high-profile closing arguments in historical and spectacular trials, are akin to Miranda in Hamilton. These often theatrical closing arguments “adapt” other stories, sampling from personal anecdotes, and cultural, historical and biblical narratives. Stories-within-stories are nested like Russian dolls, one encased within the form of the next, often framed by a thematic meta-story.

2016 legislative news: Florida real estate = Florida law; elective share claims (they’re floors, not ceilings); attorney’s fees in breach of trust cases

Posted in Probate & Guardianship Statutes

florida-legislature-2016In terms of legislation, the big news for 2016 was Florida’s adoption of the Revised Uniform Fiduciary Access to Digital Assets Act, which I wrote about here. But that’s not all that happened in 2016. There was also an interesting legislative tweak involving cremated ashes and probate proceeding tucked into a funeral-home industry bill, which I wrote about here.

And last but not least there’s Senate Bill No. 540, the vehicle used to pass the remaining legislative changes that should be of interest to most probate lawyers. As usual, the bill’s legislative Staff Analysis is a good place to start if you’re trying to figure out what it’s intended goals are. See here, here. Here’s my take on what happened in this bill.

Florida real estate = Florida law:

“No choice-of-law rule has earlier vintage, or greater longevity, than the rule that issues directly pertaining to real property are governed by the law of the situs of the property. The situs rule as applied in Florida dates back to the nineteenth century and has been reaffirmed by courts throughout the twentieth century.” Michael S. Finch, Choice-of-law and Property, 26 Stetson L. Rev. 257 (1996). Well, this old rule’s being codified in new F.S. 731.1055, which provides as follows:

The validity and effect of a disposition, whether intestate or testate, of real property in this state shall be determined by Florida law.

Elective share claims: they’re floors, not ceilings:

Most probate lawyers (including me) thought our existing elective-share statute was clear. If a surviving spouse files an elective share claim, she’s not giving up any property rights under the decedent’s Will. In other words, an elective share claim sets a floor, not a ceiling, on the amount of assets a surviving spouse should receive from an estate. Here’s the backstory on this very important point:

“Under the prior elective share laws, election by the surviving spouse effectively terminated all right to inherit under the will of the deceased spouse or to participate in distribution of intestate property. After payment of the elective share, the remaining assets were distributed as though the electing spouse had predeceased the decedent. F.S. 732.211 (1998). This is not the case under the current statutes. In 2001, the legislature amended F.S. 732.2105 to delete the language which provided that, after the election, ‘the balance of the elective estate … shall be administered as though the surviving spouse had predeceased the decedent.’ See F.S. 732.2105 (2001); Staff Analysis for HB 137, Council for Smarter Government (April 3, 2001). Accordingly, under the current elective share laws, the effect of an election is to simply set a floor on the amount the spouse receives from the decedent’s assets.”

See PPC Florida Bar Continuing Legal Education Materials 7-1, ELECTIVE SHARE.

Well, apparently what’s clear to a bunch of probate lawyers isn’t always so clear to your friendly neighborhood probate judge. So F.S. 732.201 was amended to add a new sentence hopefully making it even clearer that filing an elective share claim sets a floor, not a ceiling, on the amount of assets a surviving spouse should receive from an estate. In other words, filing an elective share claim doesn’t mean you’re forfeiting your rights under an otherwise valid Will, or that you’re in some way challenging/electing “against” an otherwise valid Will, or that you’re in any other way giving up any other rights you may have as a surviving spouse. The new text is italicized:

The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent as provided in this part, to be designated the elective share. The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.

Attorney’s fees in breach of trust cases:

Payment of trustee attorneys’ fees when defending breach-of-trust claims has been a hot topic for years (see here, here). The rules covering this scenario are found in F.S. 736.0802(10), which was last overhauled in 2008 (see here).

But a trustee’s attorney’s fees are always a flashpoint in trust litigation, which means this statute gets tested all the time. And over the last few years it’s become clear the 2008 changes didn’t go far enough. Here’s an excerpt from this Florida Bar white paper, summarizing the problems lawyers and judges trying to implement the statute have encountered over the last few years:

“[T]he current statute lacks clarity, and thus fails to provide direction to lawyers and the court, with respect to a number of issues.

  1. It lacks clarity regarding the circumstances under which the limitations imposed by the statute are triggered.
  2. It lacks clarity regarding which categories of attorney’s fees and costs are subject to the limitations.
  3. It lacks clarity regarding the circumstances under which the trustee must serve notice of an intention to pay attorney’s fees and costs from trust assets and the consequences, if any, of paying such attorney’s fees and costs from trust assets prior to serving notice.
  4. It literally and unconditionally mandates that qualified beneficiaries seek a court order to prohibit a trustee from using trust assets to pay attorney’s fees and costs even when a trustee has no intention of doing so.
  5. It lacks clarity regarding whether a trustee may use trust assets to pay its attorney’s fees and costs upon a final determination in its favor by the trial court or whether the trustee must wait until a final determination by the appellate court.
  6. And it lacks clarity regarding what type of showing is required to preclude a trustee from using trust assets to pay its attorney’s fees and costs, and regarding the type of evidence that may be used to make or to rebut such a showing.”

This year’s overhaul of F.S. 736.0802(10) is supposed to fix all of these problems. We’ll see. Regardless, if you’re a practitioner you’ll want to hold on to this list. A lot of really smart people put a lot of time and energy into compiling it. So it’s the best roadmap available for all of the possible pitfalls you might encounter as you work your way through this challenging statute. Even if the 2016 changes don’t accomplish everything they’re intended to do, you at least know what to be on the lookout for.

And if you’re a litigator one change should be of particular interest. A trial court can block a trustee’s access to trust funds to pay his lawyers if “it finds a reasonable basis to conclude that there has been a breach of trust.” Now keep in mind all of this happens pre-trial. So what kind of “evidence” is a trial judge supposed to rely on? Previously, the answer to that question wasn’t clear. The statute’s been amended to now provide as follows:

The movant may show that such reasonable basis exists, and the trustee may rebut any such showing by presenting affidavits, answers to interrogatories, admissions, depositions, and any evidence otherwise admissible under the Florida Evidence Code.

In other words, according to the Florida Bar’s white paper, “the categories of evidence permitted are ‘summary judgment evidence’ (as defined in Florida Rule of Civil Procedure 1.510(c))” as well as “live witness testimony.” Sounds like a trial to me.

2016 legislative news: A person’s ashes are not assets of his probate estate

Posted in Probate & Guardianship Statutes

Cremated remains are not property, as defined in s. 731.201(32), and are not subject to partition for purposes of distribution under s. 733.814.

In 2014 the 4th DCA grappled with a tragic case I wrote about here involving a dispute between two divorced parents over the disposition of their deceased son’s cremated remains. The father hoped to split his son’s ashes 50/50 with his ex-wife by arguing they’re assets of his son’s probate estate, and thus subject to equal partition. The 4th DCA ruled against him in Wilson v. Wilson based on centuries of common law.

Appellate decisions are fine, but life’s a whole lot easier when a rule’s plainly stated in a statute, which is what finally happened. Effective July 1, 2016 the common-law rule on ashes not being probate property was codified in new F.S. 497.607(2) as follows:

Cremated remains are not property, as defined in s. 731.201(32), and are not subject to partition for purposes of distribution under s. 733.814. A division of cremated remains requires the consent of the legally authorized person who approved the cremation or, if the legally authorized person is the decedent, the next legally authorized person pursuant to s. 497.005(43). A dispute regarding the division of cremated remains shall be resolved by a court of competent jurisdiction.

This was one small change incorporated into a wide-ranging bill that revamped much of Ch. 497, which governs Florida’s funeral home industry. For a comprehensive summary of all of those changes you’ll want to read the bill’s Legislative Staff Analysis.

By the way, the statute’s last sentence should jump out to probate litigators.

A dispute regarding the division of cremated remains shall be resolved by a court of competent jurisdiction.

What this sentence is telling us is that the old rules regarding litigation over remains haven’t changed. If there’s a dispute, a person’s ashes will be disposed of according to his intent, as established by clear and convincing evidence (see here).

3d DCA: Can the 500-year-old “relation back” doctrine be used to block today’s $4 million probate creditor claim?

Posted in Creditors' Claims, Practice & Procedure

Richard v. Richard,  — So.3d —-, 2016 WL 2340787 (Fla. 3d DCA May 04, 2016)


The “relation back” doctrine enjoys virtually unanimous application throughout the fifty states, and dates back, by some accounts, more than 500 years. See generally, Relation back of letters testamentary or of administration, 26 A.L.R. 1359 (1923).

Just because someone’s Will says you’re their personal representative (PR) doesn’t make it so. First, you’re not a PR until a judge says you are. Second, you don’t have to take the job; you can always say no. And if something goes wrong in the interim, you’re not on the hook; you have zero fiduciary duties to anyone until after a court appoints you PR (see here).

What’s the “relation back” doctrine?

But what if the testator’s died and something needs to get done before a judge gets around to appointing a PR? Say a bill needs to get paid before the power’s shut off, or a house needs to get sold before a sale contract’s breached, or a lawsuit needs to get filed before a limitations period is blown. What then? Think “relation back” doctrine. Under this doctrine anything you do on behalf of an estate gets validated after the fact once you’re appointed PR (see here).

Getting stuff done during the gap period between the day a person dies and the day his PR gets appointed is a problem that’s been around for a long time, and the relation back doctrine is a fix that’s been around just as long. According to the 3d DCA:

The relation back doctrine enjoys virtually unanimous application throughout the fifty states, and dates back, by some accounts, more than 500 years. See generally, Relation back of letters testamentary or of administration, 26 A.L.R. 1359 (1923).

The doctrine’s codified in section 3-701 of the Uniform Probate Code, which in 1974 was adopted almost verbatim as section F.S. 733.601 of Florida’s Probate Code. The Florida statute currently provides as follows:

Time of accrual of duties and powers.—The duties and powers of a personal representative commence upon appointment. The powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment. A personal representative may ratify and accept acts on behalf of the estate done by others when the acts would have been proper for a personal representative.

Note the difference between the first and second sentence of the statute. A PR’s “duties” kick in once he’s appointed (first sentence), but his “powers” relate back prior to his appointment (second sentence). This distinction’s at the core of the 3d DCA’s ruling in this case.

Case Study:

In this case a $4 million creditor claim was filed against an estate over three months after the “notice to creditors” was first published, which means the claim was time barred under F.S. 733.702. But what if the notice to creditors wasn’t validly published? Then the time-bar defense vanishes, and the $4 million claim springs back to life. So was it valid? Claimant said NO; because under F.S. 733.2121 only a PR can validly publish a notice to creditors, and the order appointing the PR in this case was entered one day after the notice was first published.

But what about the relation back doctrine? Claimant argued it didn’t apply because publishing a notice to creditors is a “duty” — not a “power” — and duties only kick in after the PR’s appointed, they don’t relate back. Clever argument, but did it work? NOT with the 3d DCA. Here’s why:

Although the statute provides that the “powers … relate back in time,” the same sentence goes on to clarify that they relate back “to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.” § 733.601 (emphasis added). Therefore, it is the acts of the person, who is later appointed personal representative of the estate, taken before his or her actual appointment that are granted “the same effect as those occurring after appointment,” so long as those acts are beneficial to the estate. Id. Certainly one cannot have the duty to act unless one also has the power to act. Taking the instant case as an example: implicit in the nature of the duty to publish a notice to creditors is the existence of the power to publish the notice to creditors . . .

In addition, the publication of the notice to creditors can reasonably be described as both a duty and a power of the personal representative. The personal representative is the only person authorized to publish a valid notice to creditors and the personal representative is obligated to publish the notice promptly. See § 733.2121(1), Fla. Stat. (2012). Thus, to the extent [claimant’s] proposed construction of section 733.601 is plausible, the “act” of publishing a notice to creditors, prior to the order appointing personal representatives, was validated by the relation back doctrine.

According to the 3d DCA, not only was the claimant’s statutory construction argument flawed textually, it also failed the “what’s practical” test.

Were we to adopt [claimant’s] construction of the statute, it would create significant and substantial uncertainty for a personal representative, who would now be required in each instance to determine whether the act undertaken is considered to have been taken pursuant to a “duty” or a “power” such that the former would not relate back but the latter would. This would be in conflict with the duties of a personal representative to “settle and distribute the estate of the decedent … as expeditiously and efficiently as is consistent with the best interests of the estate,” § 733.602(1), and to “promptly publish a notice to creditors.” § 733.2121. . . .

We hold that the relation back doctrine, codified in section 733.601, applies to the personal representative’s act of publishing the notice to the creditors, and that the order appointing personal representative relates back and validates the preappointment act of publication of the notice to creditors. We reverse the orders on appeal and remand this cause to the trial court for further proceedings with this opinion.

So what’s the takeaway?

Anything you do before a PR gets appointed that benefits an estate is subject to after-the-fact validation by a court-appointed PR under the relation back doctrine, as codified in F.S. 733.601. And it doesn’t matter if the thing that needed getting done is called a “duty” or a “power”, it’s all the same under F.S. 733.601. I like it; nice clear rules are good for all concerned.

Interview with a Probate Lawyer: Shannon M. Miller

Posted in Contested Guardianship Proceedings, Interview with a Probate Lawyer

Shannon M. Miller of The Miller Elder Law Firm, PA, in Gainesville, Florida, is a Florida Bar Board Certified Elder Law Attorney and the past president of the Academy of Florida Elder Law Attorneys.

One of the pleasures of publishing this blog over the years has been the opportunity to meet and interact with some truly impressive lawyers. I recently had one of those moments when I was introduced to Shannon M. Miller of The Miller Elder Law Firm, PA, in Gainesville, Florida. Ms. Miller is a Florida Bar Board Certified Elder Law Attorney and the past president of the Academy of Florida Elder Law Attorneys. She’s also a fellow USMC veteran (Semper Fi!) and former public defender.

I’m guessing Ms. Miller’s past familiarity with our criminal justice system had something to do with her willingness to take on civil cases that also involved criminal violations arising from the financial exploitation of the elderly. In 2014, she was heavily involved in the legislative revamp of F.S. 825.103, which criminalizes the financial exploitation of elder Floridians (see here). A lot of work and study went into that legislation, as summarized in its legislative Staff Analysis.

Ms. Miller’s a big fan of F.S. 825.103 – when used properly – and was concerned my coverage of the statute in the context of the Franke case didn’t do it justice (see here). I invited her to share her thoughts with all of us in the form of an interview, and she graciously accepted.

[1] Can you give us some background of your experience with exploitation cases?

My experience with exploitation cases began when I became an attorney in private practice in 1995.  Before that time, I was a public defender.  During my first exploitation case, I learned that my 92-year-old client had been widowed and that her pastor had offered to assist her with managing her personal bank account.  Having never managed her own finances, she added him as a joint account holder on her account.  Shortly thereafter the pastor removed all of my client’s savings which totaled about $115,000.  Actually, he left $5,000 for “her spending money” in the account.  He moved the money into his own account indicating that he was doing it in order “to protect her from predators”.  He would not give the funds back, nor pay any of her bills.  After much research, I learned that by adding someone to her account, there was a presumption that the pastor had the ability to remove assets from the account.  After much litigation, and some horrifying discovery, mostly due to my client’s confusion and short term memory loss, we were able to settle the case by securing additional funds for her from the joint account, but it ended up that he retained approximately half of the joint account assets for himself.  This man is a predator. I would not be surprised if this was not the first time he had exploited someone.   This was one of the first experiences that I had with exploitation and one that prompted my interest in pursuing law changes in Florida, as well as pursuing exploitation cases.

At our firm we have probably done 30-40 exploitation cases from the civil/probate side.  We did these cases before the new statute was implemented and after.  The greatest addition to obtaining judgments and convictions from a criminal prosecution has been the revamping of the definition of exploitation under Fla. Stat. 825.103.  This revamping is important to civil/probate practitioners as well because it provides the basis of the definition of exploitation under the civil theft statute (F.S. 772.11), which provides for many more civil theft cases.  Civil theft, when properly plead provides for repayment of the stolen funds within 30 days or the victim is able to seek treble damages. This threat often gets the stolen funds back into the hands of older victims very quickly without the scary landscape of civil litigation dragging out for years.

F.S. 825.103 also includes the ability for us to get beyond the idea that “It’s a civil matter” simply because someone is a family member.  I noticed in your original blog post on this topic that you were talking about criminalizing civil disputes, but the reality is that if a person steals from another person, whether they are a brother who is a trustee who takes from a sister who is a beneficiary, or a son who buys fur coats for his wife from dad’s money because he is an agent under a durable power of attorney that says self-dealing is okay, these are theft cases and they should be prosecuted as criminal cases, not as civil disputes.

Entertainer Mickey Rooney testifies on Capitol Hill in Washington, Wednesday, March 2, 2011, about elder abuse, before the Senate Aging Committee. (AP Photo/Alex Brandon) Original Filename: Congress Aging Rooney.JPEG-07ca4.jpg

Entertainer Mickey Rooney testifies on Capitol Hill in Washington, Wednesday, March 2, 2011, about elder abuse, before the Senate Aging Committee. (AP Photo/Alex Brandon)

I think the same is true when we are talking about “over-criminalizing”.  The reality is, we are under-criminalizing exploitation cases and I think that is clear in the attached Senate Assessment of the law as it was pending in the legislature. This assessment gives some of the statistics with regard to the lack of prosecution of these cases, as well as a lack of reporting simply because people are afraid that their disabled parent, or they themselves, will not be listened to and then they will have some kind of stigma attached to them for reporting of a family member who is, in fact, abusing them.  I would encourage you to review Mickey Rooney’s testimony at the Senate Committee on Exploitation that was conducted six (6) years ago to understand how exploitation is perpetrated.

Most of the cases that we deal with usually involve isolation and financial pressure because no one else cares for the senior or they will have to go into a nursing home if the predator were to leave the situation.  Often the perpetrator will tell lies to the victim who often suffers from diminished capacity or full incapacity.

[2] Why is Adult Protective Services dedicated to prosecuting cases against fiduciaries?

Adult Protective Services is charged with protecting seniors who are vulnerable.  That is their only mission.  They are not charged with any powers to prosecute cases, but they can refer them to law enforcement or to the prosecutor’s office, not only to the State Attorney’s office, but also to the Medicaid Fraud Unit, the Attorney General’s office, whichever is appropriate, and they can make a recommendation, but they have no law enforcement powers.  They do not carry firearms, they do not have the ability to subpoena documents.  If a case involves a durable power of attorney under the Durable Power of Attorney statute there is some provision for Adult Protective Services to obtain accountings, but other than that, it is really up to law enforcement and prosecutors to pursue criminal charges.  So, Adult Protective Services is not in the role of prosecuting these cases criminally.  They do not have that ability, nor is that their mission.  Their primary goal is making sure that the vulnerable adult is safe.  They go in, they assess and if they have to relocate a person or if they need to take steps to make sure the person is safe, then they will go to court and do that, but their job is not to prosecute criminal cases.

[3] In my blog on this topic, I indicated that perhaps we should be advising fiduciaries to “Plead the Fifth” and advise clients to get with a criminal defense attorney in dealing with these matters.  Does that not appear to you as over-criminalization of inheritance litigation?

My advice is that we should be advising clients, agents under a durable power of attorney, guardians, trustees, and joint account holders that expenditures that are made by fiduciaries should be for the benefit of the vulnerable adult, not the agent, trustee, guardian or joint account holder.

The Astor case is an excellent example of undue influence.  We cannot allow people to direct the incapacitated person to the point where they feel like they have no other choice, but to make a change to their estate plan, or end up on the street.  I would point out as well that the Astor estate changes were made at the very end of Brooke Astor’s life—she died at 105 years old.  Her grandson eventually stepped into protect her by establishing a guardianship. In reviewing the facts of that case, it is clear when we look at the Carpenter factors that the presumption shifted so that the beneficiary (Marshall Astor) had the burden of showing it was NOT undue influence. I agree with you that when we are talking about a future expectancy like an inheritance, it really is not a typical nor predicted scenario under Fla. Stat. 825.103.  I can tell you as one of the work group members who drafted the legislation, undue influence was not one of our considerations as it related to inheritance.  I am not sure that it really meets the definitions of exploitation because it is a future expectancy.  Anybody can change their estate plan at any time.

But that particular matter aside, the rest of these cases – when we are dealing with trustees who are literally stealing money from beneficiaries, attorneys-in-fact, and even guardians, this statute gives us the opportunity to create real remedies for these clients who otherwise really just get their lives stolen away from them and they must wait for years for any recompense.

[4] What does your typical exploitation case look like?

Typically, we start with an emergency temporary guardianship case and an ex parte motion to freeze assets, although some cases can proceed without a determination of incapacity depending on the exploitation definition, such as the joint account provision or negligent use of funds.  Once we get the emergency guardianship established, we subpoena documents, bank statements, and find everything that we can to assist the Assistant State Attorney, and then we wrap it up in a nice big package and send it over to them and say, “Hey, guys.  This is a case we would like you to look at.”  Then we proceed with the case on the civil side, by sending a Civil Theft Demand letter, then proceed with an action against the predator.  What we often find is that this is not the first person they have exploited in the family or as a caregiver.

What Elder Law and Probate and Trust litigators are able to do is to create publicity that ultimately can result in very positive results where people might think twice about exploiting.  There are actually seven (7) ways to define exploitation under the new statute, one of which is something called a “presumption of exploitation”.  I have yet to hear that this has been used in the criminal setting.  I am not sure any prosecutors have used it, simply because it is untested.  Prosecutors that are doing these cases are dedicated and now we are getting some judges on board across the state with the understanding that there is really no difference between theft from your parent versus theft from someone else, or physical or mental abuse of a child vs.  physical or mental abuse of a senior.  We really just need to get people on board to understand that theft is theft and we hope that this new law is going to help us change the way people consider these serious situations as civil matters.  I would encourage you to take a good look at that statute and talk to people who have actually prosecuted these cases.

In the Elder Law community, if you ask how many people know someone who has been exploited, or how many people have seen exploitation cases of ten (10) or more, nearly every hand in the room goes up.  We get referrals probably two to three times a week for these kinds of cases.  It is really exploding in Florida, which is why Fla. Stat. 825.103 is so important.

“Undue Influence and Financial Exploitation” by Dr. Bennett Blum; thoughts on litigation-avoidance estate planning

Posted in Musings on the Practice of Law, Trust and Estates Litigation In the News

risk-too-muchPlease, please, PLEASE!! Spend a few extra bucks today to avoid tomorrow’s disastrous estate litigation. In the public health world it’s estimated every dollar spent on vaccines returns up to $44 dollars in savings over the long haul. My own totally subjective and unscientific walking-around sense of the world (based on 20 years of experience) tells me we get the same kinds of returns for every dollar spent on litigation-avoidance estate planning.

What’s litigation-avoidance estate planning?

So how can you “vaccinate” an estate against future litigation? It’s easier said than done. Why? Because your single most important witness in these cases — the testator — is dead (think: worst evidence rule). This problem is especially acute in undue influence cases, which are inherently fact-intensive and open to manipulation by unscrupulous litigants. Here’s how Dr. Bennett Blum, a forensic and geriatric psychiatrist and author of the Undue Influence Worksheet (which I wrote about here), described this threat and the need for smart preventive planning in his latest article, Undue Influence and Financial Exploitation:

[F]alse claims of undue influence are used by those who wish to dispute the wishes of someone who is impaired or has died. Undue influence claims undermine testator wishes, promote family feuds, and — when prominent individuals or families are involved — create media attention and public scrutiny of their private lives. In addition, contested wills, trusts, and estate plans are expensive to litigate and can significantly erode the corpus of an estate. Challenges are more likely to arise when late changes are made to an existing plan. Planning for the possibility of a will contest is both prudent and cost-effective.

There’s no one magic bullet for immunizing estates against litigation (for a comprehensive list of options, see here), and the level of preventive planning will depend in large part on the client’s risk profile and willingness to cooperate. In high-risk cases one of my favorite defensive planning techniques is a variation on the “golden rule” standard of care commonly followed in UK and Commonwealth jurisdictions: I arrange for a medical professional’s assessment of the client at the time the documents are executed and preserve this evidence in a stand-alone affidavit executed by the clinician.

This kind of planning requires a good amount of logistical coordination, client buy-in, and flexibility from all concerned, but it pays huge dividends in future cost savings. In Undue Influence and Financial Exploitation Dr. Blum describes the value of this technique using two real-world examples:

[A] careful and well-documented assessment covering all the relevant behavioral issues, not just medical or cognitive concerns, can prevent years of litigation and unnecessary delays in executing the client’s desires, and avoid associated public scandals. Two examples:

In one case, a man separated from his wife and wanted to change his estate plan, but believed that his wife would challenge the new will.  An assessment was performed at the time that the will was executed.  When he died several years later, the former wife indeed said he had been unduly influenced.  However, she withdrew her legal challenges after reviewing the expert’s report.

In another case, a wealthy and high profile woman who had suffered a mild stroke wanted to divide her estate equally amongst her children, but also gave one adult child large amounts of cash.  Knowing that there was animosity towards this child from his siblings, the mother agreed to an undue influence assessment.  After she died, the siblings claimed their brother had committed elder financial abuse.  Again, the claims were withdrawn after seeing the report.

In these cases, as well as many others, the estates were preserved, the client’s wishes were carried out, and privacy was maintained.

What’s the takeaway?

Traditionally, the risk factor most estate planners and their clients spent most of their time fretting about was taxes. In reality, estate litigation poses a much greater risk for most families. According to this study fewer than 2 out of every 1,000 Americans who die — 0.14% — owe any estate tax whatsoever because of the high exemption amount (which jumped from $650,000 per person in 2001 to $5.43 million per person in 2015). By contrast, the potential wealth-destroying risk posed by estate litigation is exponentially greater. In fact, according to a study cited in a WSJ piece entitled When Heirs Collide it’s a risk that actually impacts as many as 70% of all families (see here).

Bottom line, it’s litigation — not taxes — that most families need to worry about. And to build your tool box for this kind of planning you’ll want to start following authors like Dr. Blum. His clinician’s view of the world is indispensable to working estate planners and litigators alike.

The 35th Annual Attorney Trust Officer Liaison Conference

Posted in Musings on the Practice of Law

breakerstodayI’m going to be one of the speakers at next week’s 35th Annual Attorney Trust Officer Liaison Conference at the Breakers Hotel in Palm Beach (my all time favorite venue). This year’s organizers have put together a great program. If you’re able to attend, you should. It’ll be time well spent. For a link to the ATO Brochure and registration information, click here.