Florida Probate Litigation, Will Contest Lawyer & Attorney : Juan C. Antúnez : Serving Miami, Jacksonville, Tampa Saint Petersburg, Orlando, Fort Lauderdale

A long-simmering feud between the family of civil-rights icon Rosa Parks and the people who cared for her at the end of her life has erupted into a court fight over her estate. The Wall Street Journal first ran a story on this unfortunate turn of events here, although a later story reported by the Detroit News here seems to indicate an amicable settlement may be within sight.

Most probate litigators also handle contested guardianship proceedings. This is not by coincidence. Unresolved guardianship disputes have a way of spilling over after a person's death. Ms. Park's story is all too common. The best way to manage these disputes is to work through them at the first available opportunity. Ignoring unresolved grievances while a person is under the care of a guardian wont make them go away. They simply come back around again as probate litigation.

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Harrell v. Snyder, 2005 WL 2899461 (Fla. 5th DCA Nov. 4, 2005)

In this case, the decedent had divorced his wife several years before his death, but never got around to changing his will. So when he died, his ex-wife became personal representative of his estate under the terms of his last will (although she was deemed to have predeceased him for purposes of the will's dispositive provisions). The decedent was not survived by any minor children and had not remarried prior to death, so his homestead property was freely devisable . . . or was it?

Brevard County Judge Kerry I. Evander ruled that the personal representative had the authority to both take control of the freely-devisable homestead property and to sell it. The Fifth DCA disagreed, holding as follows:

• Under F.S. § 733.608(2), a trial court MAY authorize a personal representative to take possession of homestead property to preserve it for the heirs.
• This same statute does NOT grant to a personal representative the power to sell such property.

Bottom line, in the absence of specific instructions authorizing the personal representative to sell freely-devisable homestead property, such property passes to the residuary beneficiaries of the decedent's estate. In an opinion I wrote about here, the Florida Supreme Court provided the following directive regarding the sale of freely-devisable homestead property:

We therefore . . . hold that where a decedent is not survived by a spouse or minor children, the decedent's homestead property passes to the residuary devisees, not the general devisees, unless there is a specific testamentary disposition ordering the property to be sold and the proceeds made a part of the general estate.

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Estate of Blount v. C.I.R., --- F.3d ----, 2005 WL 2838478 (11th Cir. Oct 31, 2005)

Buy-sell agreements are often used in business succession planning to fix the fair market value of a closely held business interest for gift and estate tax purposes. In this case the decedent, George C. Blount (founder of Blount Construction Company), executed an amendment to his 1981 buy-sell agreement in November of 1996, about one month after being diagnosed with cancer and a little under a year prior to his death in September of 1997. After his death the IRS successfully challenged the tax-planning effectiveness of the buy-sell agreement on grounds that came into play only because the agreement had been "substantially modified" after October 8. 1990.

Two Key Points:

• Always exercise extreme caution when revising any buy-sell agreement entered into before October 8, 1990 because of the IRS's aggressiveness in disallowing estate-tax valuation discounts if the agreement was "substantially modified" after that date.
• If a closely-held business purchases life insurance to fund a buy-sell agreement obligation, the value of those insurance proceeds may not be counted for purposes of establishing the estate-tax value of the business.

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Valdes v. Estate of Valdes, 2005 WL 2861179 (Fla. 3d DCA Nov. 2, 2005)

Ambiguity is the bane of a probate practitioners life. When the answers are clear, opposing parties are able to define their positions with certainty and usually come to some sort of negotiated compromise without the need for expensive litigation. When the law is "fuzzy," litigation is often the only tool available to achieve clarity.

Which is why the concrete, unambiguous, nuts-and-bolts guidance provided by the Third DCA in this case should be welcomed. Here the key legal question was the following: may a probate judge revisit earlier decisions setting the amount of reasonable family allowance? Miami-Dade Probate Judge Arthur Rothenberg said YES, and was upheld on appeal (although his second ruling reducing the amount of family allowance was reversed). The appellate court provided the following summary of the law:

Section 732.403 authorizes a probate court to award a "reasonable allowance" out of the money of the estate for the benefit of a surviving spouse or lineal heirs the decedent was supporting or was obligated to support during administration of the estate. § 732.403, Fla. Stat. A surviving spouse and qualified lineal descendant are "entitled" to a family allowance without regard to the necessity of the allowance. DeSmidt v. DeSmidt, 563 So.2d 193, 194 (Fla. 2d DCA 1990). However, the reasonableness of the allowance must still be established. Id. As such, we conclude the probate court necessarily retains the authority to re-examine and modify an award, either upward or downward as circumstances may require, during the course of administration of the estate. Id.

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