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: Practice & Procedure

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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

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

4th DCA: Once a probate judge grants a motion to compel arbitration, can that same judge dismiss the claim because one side fails to initiate the arbitration proceeding on a timely basis?

Posted in Practice & Procedure, Will and Trust Contests
Gren v. Gren, 133 So.3d 1066 (Fla. 4th DCA January 8, 2014) Why any estate planner would in good conscious subject his or her clients to all the systemic problems inherent to our underfunded and overworked probate courts is beyond me; especially in Florida, which in 2007 was the first state in the nation to … Continue Reading

1st DCA: In case of first impression Appellate Court rules successor PR has standing to sue prior PR’s attorney for malpractice

Posted in Ethics & Malpractice Claims, Practice & Procedure
Bookman v. Davidson, — So.3d —-, 2014 WL 1772707 (Fla. 1st DCA May 05, 2014) There’s nothing like the threat of a malpractice suit to focus the mind. And in the trusts-and-estates context this risk is exponentially greater for all sorts of reasons, including the fact that you can get sued by lots of people … Continue Reading

4th DCA: Are a deceased son’s ashes “property,” subject to 50/50 partition between his divorced parents?

Posted in Practice & Procedure
Wilson v. Wilson, — So.3d —-, 2014 WL 2101226 (Fla. 4th DCA May 21, 2014) Burial disputes are gut wrenching affairs, and in my opinion (based on personal experience), Florida law remains woefully ill-equipped to handle them. The latest burial dispute to hit our appellate courts started on the night of February 12, 2010, when a Bentley … 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: Does Rule 1.525′s 30-day deadline apply in adversary probate proceedings?

Posted in Compensation Disputes, Practice & Procedure
Stone v. Stone, — So.3d —-, 2014 WL 537547 (Fla. 4th DCA February 12, 2014) If, when and how Civ. Pro. Rule 1.525, the rule setting a 30-day post-judgment deadline for filing attorney’s fee motions in civil litigation, applies to contested probate, guardianship and trust proceedings, is an important question. The last thing any lawyer … Continue Reading

4th DCA decides latest Perelman family battle; sends matriarch Ruth Perelman’s contested estate back to Pennsylvania for further litigation

Posted in Practice & Procedure
Perelman v. Estate of Perelman, — So.3d —-, 2013 WL 5807358 (Fla. 4th DCA October 30, 2013) Most families squabble, and when the stakes are high enough, some even sue each other . . . but few do it quite like the Perelmans. The latest twist in this ongoing family saga played itself out in Florida, where … Continue Reading

11th Cir: For federal diversity jurisdiction, whose citizenship counts: the PR’s or the decedent’s?

Posted in Practice & Procedure
Leyva v. Daniels, — Fed.Appx. —-, 2013 WL 5313600 (11th Cir. September 24, 2013) As long as our state probate courts remain underfunded and overworked (see here), there’s going to be an incentive to move inheritance cases into the relatively better funded and better staffed federal court system. As explained here, to get into federal court … Continue Reading

4th DCA: When can a Florida probate judge say “no” to your choice of a non-Florida attorney to represent you in a contested Florida probate proceeding?

Posted in Practice & Procedure
Kelley v. Kelley, — So.3d —-, 2013 WL 5729793 (Fla. 4th DCA October 23, 2013)  It’s not unusual for family members and other beneficiaries (for example, charities) of Florida estates to reside in multiple other states (or even internationally) and have preexisting relationships with lawyers in their home jurisdictions they want to represent them in the … Continue Reading

S.D.Fla.: Is an “estate” a proper party in civil litigation?

Posted in Practice & Procedure
Garcia v. Diamond Marine Ltd., 2013 WL 6086916 (S.D.Fla. November 19, 2013) You’ll often hear lawyers speak in terms of suing “the estate,” or transferring property to “the estate,” or collecting a bill that’s payable by “the estate.” This kind of loose talk usually doesn’t matter, but sometimes it does. To be clear, under Florida … Continue Reading

2d DCA: If a Colorado court accepts a Colorado decedent’s unwitnessed, self-written (holographic) will as valid, is the will valid in Florida?

Posted in Practice & Procedure, Will Construction Litigation
Lee v. Estate of Payne, — So.3d —-, 2013 WL 5225200 (Fla. 2d DCA September 18, 2013) Under F.S. 732.502(2), oral (nuncupative) wills and unwitnessed self-written (holographic) wills aren’t valid in Florida under any circumstances, no matter how strong the evidence is that they’re otherwise legitimate. This is basic stuff for Florida probate lawyers. What may … 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

2d DCA: What’s the “renunciation” rule and when does it apply to will and trust contests?

Posted in Practice & Procedure, Will and Trust Contests
Fintak v. Fintak, — So.3d —-, 2013 WL 4483103 (Fla. 2d DCA August 23, 2013) There’s nothing wrong with hedging your bets in litigation by asserting alternate — or even inconsistent — arguments. In fact, under our rules of civil procedure it’s explicitly authorized. See Fla. R. Civ. P. 1.110(g) (“A party may … state as … Continue Reading

11th Cir. and M.D. Fla: When can you litigate an inheritance case in federal court?

Posted in Practice & Procedure
So when can you litigate inheritance disputes in federal court? According to the U.S. Supreme Court’s 2006 decision in Marshall v. Marshall the answer is anytime federal diversity jurisdiction would otherwise apply and the jurisdictional “probate exception” does NOT apply, i.e., a federal judge is NOT being asked to: [1] probate a will, [2] administer a decedent’s … Continue Reading

2d & 5th DCA: What’s it take for a probate judge to properly enter a temporary injunction or “freeze” order in trust litigation?

Posted in Practice & Procedure
Temporary injunctions or “freeze” orders are supposed to simply maintain the status quo, but often who wins or loses this battle can determine the ultimate outcome of a trust case. Why? Because when done “right,” a probate judge’s order either denying or granting a temporary injunction signals very early on in the process how he … Continue Reading

4th DCA: If you want to get your hands on trust property, file a complaint and follow the Rules of Civil Procedure

Posted in Practice & Procedure
Beekhuis v. Morris, — So.3d —-, 2012 WL 2121258 (Fla. 4th DCA June 13, 2012) F.S. 736.0201 tells us that "judicial proceedings concerning trusts shall be commenced by filing a complaint and shall be governed by the Florida Rules of Civil Procedure." It’s a simple rule, which I’ve been writing about for years [click here]. … Continue Reading

4th DCA: Dramatically different evidentiary rules apply to “tenancy by the entireties” or “TBE” cases involving personal property vs. real estate

Posted in Practice & Procedure
There’s trouble brewing over a bank account and vacant lot "Widow" claims she owned jointly as "tenancy by the entireties" or "TBE" property with her now deceased husband. The call with Widow’s family lawyer went well, so you agree to meet with her to discuss the case. You won’t have a prayer of properly evaluating this case if you don’t know … Continue Reading

3d DCA: Revenge of the disappointed heir: tortious interference with an expected inheritance

Posted in Practice & Procedure
Saewitz v. Saewitz, — So.3d —-, 2012 WL 10854 (Fla. 3d DCA January 04, 2012) Tortious interference with an expected inheritance is a relatively new cause of action that’s still evolving. So anytime one of these cases makes it into a Florida appellate opinion, it’s noteworthy. The last time was back in 2007, coincidentally also before … Continue Reading

4th DCA: can the sole beneficiary of an estate appear pro se (without an attorney) in probate proceedings involving the estate?

Posted in Practice & Procedure
Lituchy v. Estate of Lituchy, — So.3d —-, 2011 WL 2135597 (Fla. 4th DCA Jun 01, 2011)  I previously wrote here about whether a person should be required to hire a lawyer if he or she wants to petition a court to probate a will. In Florida the question is governed by Florida Probate Rule 5.030(a), … Continue Reading

3d DCA: Does Probate Court’s power to marshal assets of the estate entitle it to take possession of funds in Professional Association’s bank account?

Posted in Practice & Procedure
BankAtlantic v. Estate of Glatzer, — So.3d —-, 2011 WL 1877839 (Fla. 3d DCA May 18, 2011) When a business owner passes away you may be asked if this means the business needs to stop operating until the probate court appoints a personal representative or enters some other order having to do with the decedent’s … Continue Reading