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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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

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

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

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 Marital Agreements and Spousal Rights, 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