Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

Category Archives: Practice & Procedure

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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

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: 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

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

Can you sue a Florida trust protector for breach of fiduciary duty?

Posted in Practice & Procedure, Will and Trust Contests
Over the last few years there’s been a trend towards wider use of trust protectors in domestic trusts (see here for why), and last year’s 4th DCA opinion in the Minassian case (which I wrote about here) may go a long way towards accelerating that trend — especially in Florida. As trust-protector clauses get incorporated… Continue Reading

Bkrtcy. M.D.Fla.: Can winning a “defalcation” ruling in a bankruptcy proceeding against your former probate lawyer end up immunizing his insurance carrier from liability?

Posted in Compensation Disputes, Ethics & Malpractice Claims, Practice & Procedure
In re West, Slip Copy, 2015 WL 2445315 (Bkrtcy. M.D.Fla., May 20, 2015) Complex estate litigation usually doesn’t get resolved in a single winner-take-all trial. These cases usually get played out in multiple “mini” trials (sometimes before the same judge, sometimes not) turning on an evolving set of contingencies that no one could have predicted in… Continue Reading

2d DCA: Is Florida’s trust-reformation statute limited to only fixing “simple scrivener’s errors”?

Posted in Practice & Procedure, Will and Trust Contests, Will Construction Litigation
Megiel-Rollo v. Megiel, — So.3d —-, 2015 WL 1740365 (Fla. 2d DCA April 17, 2015) When it comes to wills and trusts, drafting mistakes come in all shapes and sizes. If the document’s written in a sloppy way that’s open to more than one reasonable interpretation, it’s “ambiguous” and there’s a two-step process for litigating that… Continue Reading

Will a faith-based arbitration clause disqualify your trust for tax purposes?

Posted in Practice & Procedure, Settling, Mediating & Arbitrating Inheritance Cases, Tax Cases
Mikel v. Comm’r, T.C. Memo. 2015-64, 2015 WL 1518063 (U.S.Tax Ct. April 6, 2015) We aren’t doing our jobs as estate planners if we don’t anticipate — and plan accordingly for — the structural limitations inherent to an overworked and underfunded state court system that asks our judges to juggle thousands of cases at a time. (In Miami-Dade – on… 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: 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 1500021 (Fla. 4th DCA April 1, 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. Under… 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: 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