April 2005

Granted, this isn’t exactly a probate-litigation story, but the estate tax looms so large over every aspect of trust and estates law in the U.S., I can’t just ignore it.

So here’s the latest. In what is becoming an annual ritual (usually timed for maximum political advantage), the House voted yet again on April 13, 2005 (272-162) to repeal the federal estate tax in 2010 and beyond. The legislation would prevent the estate tax from re-emerging after its scheduled elimination, for one year, in 2010. Previous bills passed by the House have languished in the Senate. Talks between Republicans and Democrats have just begun in the Senate, where some lawmakers have worried about increasing federal deficits. In fact, with a $1.3 trillion deficit already forcast for the next decade, walking away from an additional $290 billion in lost estate-tax revenues (source: Joint Committee on Taxation Report) has some fiscally conservative Republicans re-evaluating their positions. Estate tax repeal’s top proponent, Sen. Jon Kyl, R-Ariz., refused to predict an outcome. The full Associated Press story is available here.
Continue Reading House Approves Bill Repealing Federal Estate Tax

Collinson v. Miller, 2005 WL 840188 (Fla. 2 DCA April 13, 2005) (TRIAL COURT REVERSED) This case should be kept in your files and shared with clients who would rather skip any type of formalized planning for what is in all likelihood their single largest asset – their homestead property – and opt instead for some sort of unwritten “trust me” estate plan. In terms of technical guidance, you may also want to keep this one on the shelf and refer back to it the next time you need to wade into the legal thicket surrounding exactly what “constructive trusts” are, when they are used, and when they don’t apply. This case involved a second marriage where both spouses had children from previous marriages (this fact alone should instantly trigger alarm bells). “Husband” purchased waterfront property and built a home on the property. The idea was that if “Wife” survived Husband, she would be able to use the home for the rest of her, but at her death the house (which was valued at over $2.2 million in Wife’s estate) would go to Husband’s children.
Continue Reading Why “Trust Me” Estate Planning Can Be Disastrous When it Comes to Homestead Property

Jensen v. Estate of Gambidilla, 30 Fla. L. Weekly D578 (Fla. 4 DCA March 2, 2005) (TRIAL COURT REVERSED) St. Lucie County Circuit Court Judge Marc A. Cianca entered a civil contempt order requiring an estate’s former personal representative to be incarcerated until she returned certain items of personal property to the estate. The Fourth DCA reversed the trial court’s order holding that Probate Rule 5.440(d) contempt proceedings require that a trial court expressly find that the removed personal representative had the present ability to comply its order.
Continue Reading You Can’t Throw a Person in Jail for Failing to Comply with an Impossible Order

Parker v. Estate of Bealer, 890 So.2d 508 (Fla. 4 DCA January 5, 2005) (TRIAL COURT AFFIRMED) The key issue in this case was whether an interested person’s attorney had to actually file a notice of appearance in the probate proceedings before he or she would be deemed to be “the attorney representing [the] interested person” for purposes of Probate Rule 5.040(a)(3)(A)(i) (Formal Notice) and Probate Code Section 2004->Ch0731->Section%20301#0731.301″>731.301 (Notice). Palm Beach Circuit Court Judge Mary E. Lupo ruled that filing a notice of appearance in the probate proceedings was not required.
Continue Reading Formal Notice Can Be Served On An Attorney Who Has Never Appeared of Record.