Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

Category Archives: Creditors’ Claims

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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: 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

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

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

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

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

2d DCA: If the judge adjudicating your divorce enters final judgment, but retains jurisdiction to decide property issues, does that jurisdictional authority evaporate if one of the parties to the original divorce proceeding dies?

Posted in Creditors' Claims, Marital Agreements and Spousal Rights, Practice & Procedure
Passamondi v. Passamondi, — So.3d —-, 2014 WL 228648 (Fla. 2d DCA January 22, 2014) The traditional rule is that an action for divorce is purely personal in nature and that the death of one of the parties causes the action to terminate or “abate.” The rationale for this rule is simple: when one of the… Continue Reading

Three Florida firms learn the hard way: asset protection planning = DANGER FOR LAWYERS

Posted in Creditors' Claims, Musings on the Practice of Law
Asset protection planning’s a high risk practice area that many estate planners “dabble” in. In my opinion, that’s a big mistake. Why? Because this kind of work is a minefield of potential liability for lawyers, no matter how careful you think you are or how lawful your planning advice may be. But the money’s good, right?… Continue Reading

2d DCA: Does F.S. 56.29 give a Florida court personal jurisdiction over a Kentucky trustee absent a basis for personal jurisdiction under Florida’s long-arm statute?

Posted in Creditors' Claims, Practice & Procedure
Jarboe Family and Friends Irrevocable Living Trust v. Spielman, — So.3d —-, 2014 WL 185215 (Fla. 2d DCA January 17, 2014) This case involved a Florida judgment creditor trying to sue a Kentucky trustee/trust in Florida. The Kentucky trustee moved to dismiss on jurisdictional grounds, tracking the procedures for contesting personal jurisdiction laid out by… Continue Reading

4th DCA splits with 1st and 2nd DCA’s on when “reasonably ascertainable” creditor’s filing deadline begins to run

Posted in Creditors' Claims
Golden v. Jones, — So.3d —-, 2013 WL 5810360 (Fla. 4th DCA October 30, 2013) So here’s the question that’s been roiling certain quarters of our probate bar for the last few years: 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… Continue Reading

4th/5th DCA: Promises, promises . . . Are oral agreements enforceable in inheritance disputes?

Posted in Creditors' Claims, Practice & Procedure
In the trusts and estates world, if it’s not in writing it usually doesn’t count. We all know wills have to be in writing, F.S. 732.502, and the same goes for most trusts, F.S. 736.0403(2). And most of us know waivers of spousal rights also have to be in writing. F.S. 732.702. But what if you’re one… Continue Reading

4th DCA: New York creditor’s claim vs. Florida ancillary estate: whose statute of limitations periods apply: NY or FL?

Posted in Creditors' Claims
Staum v. Rubano, — So.3d — , 2013 WL 4081055 (Fla. 4th DCA August 14, 2013) If you’re domiciled in one state at death (say New York), but own real property in another state (say Florida), your estate may have to be probated  or “administered” in both states, with New York being your domiciliary administration and Florida… Continue Reading

5th DCA: Florida spendthrift trust survives creditor’s constitutional challenge

Posted in Creditors' Claims
Zlatkiss v. All America Team Concepts, LLC, — So.3d —-, 2013 WL 2359108 (Fla. 5th DCA May 31, 2013) If a creditor’s going to successfully pierce a debtor’s corporate veil, it’s usually because the debtor operated his corporation (or LLC) as his “alter ego,” which means the debtor basically ignored the corporation’s separate legal status and… Continue Reading

1st DCA: Can a revocable trust waive the creditor-exempt status of life insurance proceeds? And if in hindsight that turns out to be a mistake, can the trust be “reformed” to undo the waiver?

Posted in Creditors' Claims
Morey v. Everbank, — So.3d —-, 2012 WL 3000608 (Fla. 1st DCA July 24, 2012) Florida has a well earned reputation for being almost ridiculously generous when it comes to creditor protection. Our unlimited homestead protection usually gets most of the attention, but the goodies don’t end there. For example, under F.S. 222.13 Florida residents can leave their… Continue Reading

2d DCA: Who has the burden of proving whether or not you’re a “reasonably ascertainable” creditor of the estate?

Posted in Creditors' Claims
Lubee v. Adams, — So.3d —-, 2012 WL 163911 (Fla. 2d DCA January 20, 2012) Are you a “reasonably ascertainable” creditor or not? If the answer is YES, then under F.S. 733.710 you have up to 2 years after the decedent dies to file your claim against the estate. If the answer is NO, then under F.S. 733.702 you only have 3 months… Continue Reading

3d DCA: If a foreign national doesn’t qualify for the homestead tax exemption, is he also automatically disqualified from claiming homestead creditor protection?

Posted in Creditors' Claims, Homestead Litigation
Grisolia v. Pfeffer, — So.3d —-, 2011 WL 5864806 (Fla. 3d DCA Nov 23, 2011) The key to understanding this case is recognizing that one word: “homestead;” is used in three very different ways in Florida’s constitution: [1] Exemption from forced sale: Article X, §4(a) and (b) [2] Descent and devise: Article X, §4(c) [3]… Continue Reading

5th DCA: Can a decedent release a debt owed to him through a debt forgiveness clause in his will if his estate is insolvent?

Posted in Creditors' Claims
Lauritsen v. Wallace, — So.3d —-, 2011 WL 1195873 (Fla. 5th DCA Apr 01, 2011) The general rule is that your heirs are last in line when it’s time to distribute your estate. Before they get theirs, the costs of administering your estate (think PR fees, accounting and legal expenses), taxes, and creditor claims all have to… Continue Reading

Florida Supreme Court says NO to charging-order protection for single member LLCs

Posted in Creditors' Claims
Olmstead v. F.T.C., — So.3d —-, 2010 WL 2518106 (Fla. Jun 24, 2010) Limited liability companies or "LLCs" have long been touted as the ultimate entity for investors and business owners alike: combining the best asset protection qualities and tax benefits of corporations and partnerships into a single hybrid entity. One of the big asset-protection… Continue Reading

4th DCA: Florida’s asset protection shield for spendthrift trusts survives creditor attack: emerges stronger than ever

Posted in Creditors' Claims
Miller v. Kresser, — So.3d —-, 2010 WL 1779899 (Fla. 4th DCA May 05, 2010) Multigenerational spendthrift trusts – often referred to as “dynasty trusts” – are fast becoming the cornerstone of modern estate planning. This is not some esoteric issue of interest only to tax lawyers: it’s big business. A 2005 study I wrote… Continue Reading

Creditor Protection Denied for Florida Debtor’s Inherited IRA

Posted in Creditors' Claims
Kentucky and Florida estate planning lawyer/blogger C. Carter Ruml recently wrote an interesting summary of Robertson v. Deeb, 16 So.3d 936 (Fl. Dist. Ct. App. 2 Dist. 2009), a pro-creditor decision that pokes a hole in Florida’s well-earned reputation as an asset-protection haven. The blog post is entitled Creditor Protection Denied for Florida Debtor’s Inherited IRA,… Continue Reading

Bankr.M.D.Fla.: UK insurance giant Lloyd’s of London stymied by strategic use of Florida’s 2-year non-claim statute; PR has no fiduciary duties prior to getting appointed

Posted in Creditors' Claims
In re Estate of Harrison, Slip Copy, 2010 WL 503077 (Bankr.M.D.Fla. Jan 29, 2010) An overarching theme of Florida’s probate code is the tension between basic due-process rights on the one hand and Florida’s strong public policy favoring the speedy administration of estates on the other. Florida’s 2-year non-claim statute [F.S. 733.710] epitomizes this tension… Continue Reading