Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

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Category Archives: New Probate & Trust Cases

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Must read for Florida guardianship lawyers: Sarasota Herald-Tribune’s special investigative series: “Elder guardianship: A well-oiled machine”

Posted in Contested Guardianship Proceedings, Trust and Estates Litigation In the News
A special multi-part investigative series published by the Sarasota Herald-Tribune entitled Elder guardianship: A well-oiled machine, reported that while Florida has an efficient system of identifying and caring for fragile elders, “tapping their assets is a growth business.” Here’s an excerpt from the Herald-Tribune report: The idea behind guardianship is to protect older citizens. But… Continue Reading

5th DCA: Can a woman invalidate her own Texas adoption to win a Florida estate case?

Posted in Practice & Procedure
Kemp & Associates, Inc. v. Chisholm, — So.3d —-, 2015 WL 477856 (Fla. 5th DCA February 06, 2015) Inheritance disputes tend to be deeply personal affairs, often involving challenges to a person’s core identity or “status” as a family member. Past examples include cases turning on a person’s contested status as a lineal descendant (e.g.,… Continue Reading

4th DCA: Does a surviving widow have “standing” to assert her predeceased husband’s homestead rights?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights
Lyons v. Lyons, — So.3d —-, 2014 WL 5460621 (Fla. 4th DCA October 29, 2014) This is one of two cases published in 2014 involving litigated homestead rights and property deeded to a qualified personal residence trust (QPRT). (The other was Stone v. Stone, which I wrote about here.) Prior to 2014 it had been… Continue Reading

Florida needs to adopt the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act

Posted in Contested Guardianship Proceedings, Trust and Estates Litigation In the News
For those of you who do much guardianship work, you’ll be interested in a recently-published legislative summary from the American Bar Association’s Commission on Law and Aging. Entitled STATE ADULT GUARDIANSHIP LEGISLATION: DIRECTIONS OF REFORM – 2014, the report does a good job of highlighting the strengths and weaknesses of Florida’s guardianship laws (F.S. Ch. 744) by… Continue Reading

4th DCA: Should post-nuptial waivers of homestead rights be assumed anytime spouses sign a joint deed?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights
Stone v. Stone, — So.3d —-, 2014 WL 5834826 (Fla. 4th DCA November 12, 2014) Under Florida law a surviving spouse’s testamentary rights in the couple’s marital homestead residence are spelled out in Art. X, § 4(c) of the Florida Constitution and F.S. 732.4015(1). Spouses are free to contractually waive their homestead rights, and often do for… Continue Reading

4th DCA: Contracts vs. Testamentary Instruments: If you promise property one way by Contract and another way in your Revocable Trust, who wins?

Posted in Practice & Procedure
Blechman v. Estate of Blechman, — So.3d —-, 2015 WL 71730 (Fla. 4th DCA January 07, 2015) A revocable trust is a form of testamentary instrument that’s used as a will substitute, and it’s treated as such in this case, which involves a family-owned LLC. The LLC was half owned by Bertram Blechman, who died in 2011.… Continue Reading

3d DCA: Can you sue a Spanish PR personally for showing up in a Miami courtroom in his representative capacity?

Posted in Practice & Procedure
Juega v. Davidson, — So.3d —-, 2012 WL 6601969 (Fla. 3d DCA December 19, 2012) Florida is a perennial favorite for international home buyers and Snow Birds migrating from the Northeast to the South. Which means a lot of people own property in Florida, but reside and work in another state or country, frequently owning… Continue Reading

4th DCA: Can “trust protectors” be used to privatize Florida trust-construction disputes?

Posted in Will and Trust Contests, Will Construction Litigation
Minassian v. Rachins, — So.3d —-, 2014 WL 6775269 (Fla. 4th DCA December 03, 2014) In what could be a ground breaking decision, for the very first time we now have a Florida appellate court explicitly sanctioning the use of trust protectors in a domestic trust proceeding. Historically, trust protectors were a standard feature in… Continue Reading

4th DCA: Ignorance of the law is no excuse. Just because you don’t know you’re legally entitled to trust accountings doesn’t mean you get sit on your hands for years before suing your trustee for never accounting to you.

Posted in Practice & Procedure
Corya v. Sanders, — So.3d —-, 2014 WL 5617045 (Fla. 4th DCA November 05, 2014) We all know that, generally speaking, ignorance of the law is no excuse. But does this ancient maxim apply to Florida trust-accounting cases as well? Yes! According to the 4th DCA, just because you don’t know you’re legally entitled to trust accountings… Continue Reading

S.D.Fla.: Can you prosecute an “unjust enrichment” claim in a case involving contested life insurance proceeds?

Posted in Practice & Procedure
Kowalski v. Jackson Nat. Life Ins. Co., 2013 WL 5954380 (S.D.Fla. November 07, 2013) If you’re a trusts and estates lawyer, a larger and larger share of your practice is going to have little — if anything — to do with our probate code. Why? Think: non-probate revolution. In today’s world most inherited wealth is… Continue Reading

M.D.Fla.: Can you be found guilty of “defalcation” for billing a client in accordance with Florida’s statutory fee schedule?

Posted in Compensation Disputes, Ethics & Malpractice Claims
West v. Chrisman, Slip Copy, 2014 WL 4683182 (M.D.Fla. September 19, 2014) If there’s anyone out there that still believes F.S. 733.6171 (the probate code’s attorney’s fee statute) or its trust-code equivalent (F.S. 736.1007) establishes a fee that’s “set” or otherwise blessed by Florida law, this case is going to be a rude awakening. Not only did… Continue Reading

2d DCA: Surviving spouse’s Homestead Rights vs. ex-spouse’s contractual rights under Marital Settlement Agreement. Who wins?

Posted in Homestead Litigation, Marital Agreements and Spousal Rights
Friscia v. Friscia, — So.3d —-, 2014 WL 4212689 (Fla. 2d DCA August 27, 2014) It’s not unusual for marital settlement agreements (“MSAs”) to pop up as major players in contested probate proceedings (see here, here, here), what is unusual — which makes this case a “must read” for probate lawyers — is how the MSA’s… Continue Reading

Interview with a Probate Lawyer: Frank T. Adams

Posted in Interview with a Probate Lawyer, Marital Agreements and Spousal Rights
Frank T. Adams of Dunwody White & Landon, P.A. in Coral Gables, Florida, was on the winning side of Kelley v. Kelley, an interesting 4th DCA opinion I wrote about here involving a collateral attack on a “quickie” Nevada divorce in connection with a Florida inheritance dispute. I invited Frank to share some of the lessons he… Continue Reading

4th DCA: If a probate creditor files his “independent action” in the wrong division of the circuit court, should the action be dismissed or transferred?

Posted in Creditors' Claims
West v. West, — So.3d —-, 2013 WL 5989234 (Fla. 4th DCA November 13, 2013) One of the decedent’s two sons claimed his father owed him over $50,000 when he passed away. To collect on this debt son filed a creditor claim against his father’s estate. Other brother objected, which triggered the obligation under F.S. 733.705 to… Continue Reading

4th DCA: What’s it take to collaterally attack a “quickie” Nevada divorce as part of a Florida inheritance dispute?

Posted in Marital Agreements and Spousal Rights, Practice & Procedure
Kelley v. Kelley, — So.3d —-, 2014 WL 4427275 (Fla. 4th DCA September 10, 2014) In this case a disinherited son contested his father’s estate on the grounds that his father wasn’t “legally” married at the time of his death, thus excluding his surviving spouse as a valid beneficiary of a multigenerational family trust. This… Continue Reading

M.D.Fla: Can a corporate trustee caught in middle of on-going divorce litigation sue one of the ex-spouses for unjust enrichment?

Posted in Marital Agreements and Spousal Rights, Practice & Procedure
Berlinger v. Wells Fargo, N.A., Slip Copy, 2014 WL 4071667 (M.D.Fla. August 18, 2014) This isn’t the first time the trusts at the center of this on-going divorce battle have made it into a published court ruling. I previously wrote about these trusts here, in the context of a controversial appellate ruling by the 2d DCA… Continue Reading

When to “Decant” a Trust. It’s getting easier to tinker with irrevocable trusts. Here’s how it works.

Posted in Practice & Procedure, Probate & Guardianship Statutes
If you’re working with an irrevocable trust that needs fixing for some reason and the trust agreement includes an “absolute” power to invade trust principal, your first thought should be to simply re-write the trust by using Florida’s “decanting” statute (F.S. 736.04117). Decanting lets trustees re-write irrevocable trust agreements by figuratively pouring the assets from… Continue Reading

Probate judge to personal representatives: “there is a higher power that [you’re] accountable to and, short of God, that’s me.” 4th DCA says not so fast.

Posted in Compensation Disputes, Creditors' Claims, Practice & Procedure
Vazza v. Estate of Vazza, — So.3d —-, 2014 WL 4082864 (Fla. 4th DCA August 20, 2014) On average Broward County’s probate judges each took on 2,848 new cases in FY 2012-13 (see here). The unavoidable consequence of that kind of case load is what’s been referred to as the “cold judge” factor; a term coined… Continue Reading

Florida must recognize gay widower’s Delaware marriage for purposes of appointing the non-resident personal representative of his ancillary estate, Palm Beach probate judge rules

Posted in Marital Agreements and Spousal Rights, Removal of Personal Representatives and Surcharge
Estate of Bangor, Case No. 502014CP001857 (Fla. 15th Cir, Palm Beach, August 5, 2014) Florida law says you can’t appoint a non-resident to serve as personal representative of your estate unless that person’s your “spouse” or otherwise related to you. (See F.S. 733.304). This rule’s always struck me as an arbitrary trap for the unwary… Continue Reading

3d DCA: Is a probate judge’s “jurisdictional” authority limited to only probate-related matters?

Posted in Practice & Procedure
Kates v. Lifter, — So.3d —-, 2012 WL 832802 (Fla. 3d DCA March 14, 2012) Our state circuit courts are usually split up into specialty divisions, as authorized by Article V, § 7, of the Florida Constitution. For example, my home circuit court in Miami-Dade, the 11th, has six specialty divisions: Circuit Civil, Circuit Criminal, Family,… Continue Reading

5th DCA notes conflict with 4th DCA while siding with 1st and 2nd DCA’s on when “reasonably ascertainable” creditor’s filing deadline begins to run; issue to be decided by Florida Supreme Court

Posted in Creditors' Claims
Souder v. Malone, — So.3d —-, 2014 WL 3756356 (Fla. 5th DCA August 01, 2014) Assuming I file my creditor claim before the 2-year post-death deadline set by F.S. 733.710 (Florida’s “statute of repose” for probate creditor claims), what’s my deadline for litigating whether or not I’m a reasonably ascertainable creditor? First the 1st DCA in 2009, and… Continue Reading

5th DCA: Can a probate judge admit a challenged will to probate before the will contest is adjudicated?

Posted in Will and Trust Contests
Platt v. Osteen, — So.3d —-, 2012 WL 6629650 (Fla. 5th DCA December 21, 2012) The outcome of this inheritance dispute turned on two questions: first, was the decedent’s will valid, and second, did the party challenging its validity have a stake in the outcome as a “virtually adopted” intestate heir (see here, here, here for more… Continue Reading

2d DCA: Does Florida’s Trust Code limit — or expand upon — existing common law when it comes to terminating irrevocable trusts?

Posted in Practice & Procedure, Will and Trust Contests
Peck v. Peck, 133 So.3d 587 (Fla. 2d DCA February 26, 2014) Part IV of Florida’s Trust Code provides precise, comprehensive, and easily accessible guidance on how to modify or terminate irrevocable trusts. (Click here for an excellent chart visually summarizing all of these provisions). That being said, our Trust Code doesn’t legislate on every… Continue Reading

The Corcoran Gallery of Art’s trustees expertly manage the public advocacy facet of their case in support of requested “cy pres” court ruling

Posted in Gifts and Charities Litigation
A lot’s changed in the over 100 years since William Corcoran executed a “Deed of Trust” in 1869, establishing the Corcoran Gallery of Art. Falling victim to competitive market pressures, Washington’s oldest private art gallery and art college recently filed this 204-page motion and supporting memorandum of law, asking a D.C. judge to apply the… Continue Reading