Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

Category Archives: New Probate & Trust Cases

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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) 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 here, here), or an adopted-away child (click here), or a descendant by… Continue Reading

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) If 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).… Continue Reading

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) 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… Continue Reading

4th DCA says no to criminalizing inheritance litigation; reverses 7-year prison sentence

Posted in Practice & Procedure
Franke v. State, — So.3d —-, 2016 WL 358614 (Fla. 4th DCA January 27, 2016)  As lawyers, one of our jobs is anticipating the “worst case scenario” and counseling our clients appropriately. For trusts and estates lawyers the worst that can happen usually involves a client losing a sizable inheritance, paying unnecessary taxes, getting surcharged… Continue Reading

Trust protectors; they’re like trustees, but not quite. So can they get sued?

Posted in Trust and Estates Litigation In the News, Trustees In Hot Water, Will and Trust Contests
It used to be so simple. Back in the day trust lawyers had to contend with only three possible players: the settlor, the trustee, or the beneficiary. Today that trio’s often joined by a new creature we’re still not exactly sure what to make of: a trust protector. Over the last few years there’s been… Continue Reading

4th DCA: Can a probate judge use his “equitable powers” to override our Probate Code?

Posted in Creditors' Claims, Practice & Procedure
Oreal v. Steven Kwartin, P.A., — So.3d —-, 2016 WL 1239756 (Fla. 4th DCA March 30, 2016) Having your case decided against you because a well-intentioned judge chose not to apply some provision of our Probate Code for “equitable” reasons is to stare into the abyss. Why? Because there’s no certainty if we can’t rely on our statutes… Continue Reading

3d DCA: Can you sue hostile parties for fraud if they lie to you during settlement negotiations?

Posted in Practice & Procedure, Settling, Mediating & Arbitrating Inheritance Cases
Moriber v. Dreiling, — So.3d —-, 2016 WL 145968 (Fla. 3d DCA January 13, 2016) Lawyers love to brag about their court wins, not so much about their prowess as contract drafters. But the reality is that the vast majority of inheritance cases settle, which means in most instances “who gets what” is going to be… Continue Reading

4th DCA: Can a surviving spouse’s $12.5 million “elective share” be reduced to pay attorney’s fees?

Posted in Marital Agreements and Spousal Rights, Spousal Elective Share Claims
Blackburn v. Boulis, — So.3d —-, 2016 WL 231405 (Fla. 4th DCA January 20, 2016)  Gus Boulis was a spectacularly successful self-made millionaire with a sixth grade education whose life story was as colorful as it was improbable. And it all came to an end in 2001 when he was gunned down gangland style. The “hit”… Continue Reading

4th DCA: Are you required — as a matter of law — to always add a donor’s personal representative to an inter vivos gift case?

Posted in Practice & Procedure
Parker v. Parker, — So.3d —-, 2016 WL 404636 (Fla. 4th DCA February 03, 2016) When most lawyers think “inheritance” litigation, they assume you’re talking about some kind of will contest. In reality, inheritance disputes often have nothing to do with transfers made at death, and everything to do with gifts made while a senior family… Continue Reading

2d DCA says YES to $24.6 million in trustee fees; NO to hourly billing

Posted in Compensation Disputes
Robert Rauschenberg Foundation v. Grutman, — So.3d —-, 2016 WL 56456 (Fla. 2d DCA January 06, 2016) We can all agree hourly billing is a terrible way to do business. Unfortunately, Florida courts are required— as a matter of law — to evaluate contested attorney’s fees using the “lodestar” method (which is all about hourly billing,… Continue Reading

4th DCA: When does the “renunciation” rule NOT apply in trust litigation?

Posted in Will and Trust Contests
Gossett v. Gossett, — So.3d —-, 2015 WL 8947627 (Fla. 4th DCA December 16, 2015) As a general rule, a trust litigant can’t have it both ways: he can’t simultaneously benefit from and contest the validity of the same trust agreement. Which means that if a beneficiary wants to sue to invalidate a trust agreement, he first has to renounce his interest in the… Continue Reading

4th DCA: The sins of our fathers. Does Florida’s “slayer rule” also disinherit a killer’s descendants?

Posted in Will and Trust Contests
Fiel v. Hoffman, — So.3d —-, 2015 WL 4549604 (Fla. 4th DCA July 29, 2015) This appeal is the latest chapter in the battle over the fortune of Fontainebleau heir Ben Novack Jr. Novack was murdered in 2009. In 2012, his estranged wife, Narcy Novack, was sentenced to life in prison for paying hitmen to  kill… Continue Reading

1st DCA: Can you challenge “joint” accounts and “POD” accounts on undue influence grounds in nonprobate inheritance cases?

Posted in Will and Trust Contests
In today’s world the vast majority of inherited wealth gets transferred from one generation to the next by nonprobate “will substitutes” that are not subject to probate, are not controlled by a person’s will, and are not governed by our probate code. Known as the nonprobate revolution, it’s a trend that’s been accelerating for decades. If you’re a trusts and… Continue Reading

2d DCA: What’s the “dependent relative revocation” doctrine and why should trusts and estates lawyers care?

Posted in Dependent Relative Revocation Doctrine
In re Estate of Murphy, — So.3d —-, 2015 WL 6777216 (Fla. 2d DCA November 6, 2015)  This case has it all. It’s been in the news for years (see here), resulted in a prominent lawyer’s tragic fall from grace and eventual disbarment (see here), was at least partially responsible for new legislation fundamentally changing Florida… Continue Reading

Fla/3d DCA: What’s a “reasonably ascertainable” probate creditor and why should you care?

Posted in Creditors' Claims
Golden v. Jones, — So.3d —-, 2015 WL 5727788 (Fla. October 1, 2015) A cause of action against a probate estate is private property that’s protected by the Fourteenth Amendment’s due process clause. Which means it can’t be taken away from you in a probate proceeding without notice. But what we mean by “notice” depends on… Continue Reading

2015 legislative news: Florida overhauls its elder guardianship system

Posted in Contested Guardianship Proceedings, Probate & Guardianship Statutes
Most of the 2015 legislative changes to our Probate and Trust Codes were rolled into House Bill 343, which I reported on here. This blog post is all about this year’s overhaul of our adult guardianship system, which was spearheaded by Rep. Kathleen Passidomo, R-Naples, and advocated for by AARP Florida, among others. House Bill 5 was the legislative… Continue Reading

4th DCA: When does a court lack “procedural jurisdiction” to appoint a guardian?

Posted in Contested Guardianship Proceedings, Practice & Procedure
Adelman v. Elfenbein, — So.3d —-, 2015 WL 5026178 (Fla. 4th DCA August 26, 2015) Florida’s elder guardianship system has gotten a lot of bad press lately (see here). Some of this criticism is unfair, but not all of it. To the extent we do have a “systemic” problem, in my opinion the root cause is… Continue Reading

4th & 5th DCAs: When does a probate judge have “personal” jurisdiction over a personal representative or trustee?

Posted in Compensation Disputes, Practice & Procedure
Section 731.105 of our Probate Code tells us that all probate matters are “in rem” proceedings. In my last post I wrote about two recent cases testing the outer limits of a probate court’s in rem jurisdictional authority. In this post the focus is on personal (i.e., “in personam”) jurisdiction in contested probate proceedings. A distinctive… Continue Reading

4th DCA: When does a probate judge NOT have jurisdiction over contested property?

Posted in Practice & Procedure, Wrongful Death Claims
In contested probate and trust proceedings, if you hear the word “jurisdiction” being used as part of the litigation, it’s probably coming up in one of two contexts. Either your probate judge didn’t have the legal authority to order that certain property be disposed of in a certain way (i.e., the court lacked “in rem” jurisdiction); or your… Continue Reading