Florida Probate & Trust Litigation Blog

Florida Probate & Trust Litigation Blog

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

Text Size: A A A

Category Archives: Probate & Guardianship Statutes

Subscribe to Probate & Guardianship Statutes RSS Feed

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

Effective October 1, 2013, if a lawyer improperly writes himself into his client’s will, the bequest is automatically void as a matter of law under new F.S. 732.806

Posted in Ethics & Malpractice Claims, Probate & Guardianship Statutes
Effective October 1, 2013, we now have F.S. 732.806, a new statute effectively codifying existing ethics Rule 4-1.8(c) as part of our probate code, and making a violation of this ethics rule an automatic basis for voiding any part of a will, trust or other written instrument making an improper client gift to the drafting … Continue Reading

New legislation codifies (expands?) FL long-arm jurisdiction over non-residents in trust litigation

Posted in Probate & Guardianship Statutes, Will and Trust Contests
According to census data, Florida is the largest recipient of state-to-state migration in the U.S. Internationally, Florida remains the top state for international home buyers. So it shouldn’t come as a surprise to anyone that multi-jurisdictional estates are a growing part our practice here in Florida. The jurisdictional issues these cases raise in probate and trust cases … Continue Reading

Florida’s Principal & Income Act gets an update

Posted in Probate & Guardianship Statutes
If you’re representing a personal representative or trustee in a complicated estate or trust administration case, the "who gets what" question won’t be easy to answer. No surprise there. What may be surprising, especially to lawyers, is how large a role Florida’s Principal and Income Act (Ch. 738) or "FPIA" often plays in these cases. Here’s why: trusts and estates … Continue Reading

Effective July 1, 2012, Florida now has post-divorce automatic nullification statute for beneficiary-designated non-probate assets such as life insurance, annuities, pay-on-death accounts, and retirement planning accounts

Posted in Marital Agreements and Spousal Rights, Probate & Guardianship Statutes
In 1951 Florida enacted a statute automatically cutting divorced spouses out of each other’s wills (currently at F.S. 732.507(2)). In 1989 Florida enacted a similar statute for revocable trusts (currently at F.S. 736.1105). These statutes were all we needed when most people relied on a will or revocable trust to provide for their heirs. Times … Continue Reading

New legislation clarifies when Rule 1.525′s 30-day deadline for attorney’s fee motions apply to contested probate, guardianship and trust proceedings

Posted in Probate & Guardianship Statutes
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 wants to do is blow a deadline for claiming fees on behalf of his client. … Continue Reading

Florida’s ILIT Trustee Protection Statute: 736.0902

Posted in Probate & Guardianship Statutes
Irrevocable life insurance trusts or “ILIT’s” are a mainstay of high end estate planning for all sorts of reasons, mostly having to do with saving taxes. For tax reasons, the client usually can’t serve as trustee of his own ILIT. So often family friends (selected for their loyalty to the grantor, knowledge of family dynamics, and willingness … Continue Reading

In sharp break with existing law, Florida adopts new legislation dramatically expanding scope of judicial Will reformations actions

Posted in Probate & Guardianship Statutes
Common sense, and hard earned experience, tell us that clients can sign perfectly clear and unambiguous wills . . .  that are disasters waiting to happen. Why? Because even the simplest one-page will is governed by a complex body of law that appears nowhere within the four corners of the document, but can have devastating unintended consequences … Continue Reading

Effective October 1, 2011, Florida will be the latest state to adopt the Uniform Power of Attorney Act

Posted in Probate & Guardianship Statutes
In 2008 the AARP’s Public Policy Institute published a provocative report entitled Power of Attorney Abuse: What States Can Do About It.The AARP report highlighted what was wrong with existing POA statutes, how those failings lead to the exploitation of vulnerable adults, and urged state legislators to adopt the Uniform Power of Attorney Act or … Continue Reading

Effective October 1, 2011, a surviving spouse’s intestate share of an estate will go up from 50% to 100% of the estate if the decedent’s descendents are also descendents of the surviving spouse

Posted in Probate & Guardianship Statutes
Effective October 1, 2011, a surviving spouse’s intestate share of an estate will go up from 50% to 100% of the estate if the decedent’s descendants are also descendants of the surviving spouse. If you’re a probate lawyer this is a BIG deal; you’ll need to know this new statute cold. For a reliable, user-friendly chart summarizing the … Continue Reading

New attorney-client privilege protection for trustees, personal representatives and guardians + new related reporting requirements

Posted in Probate & Guardianship Statutes
Attorneys representing trustees, personal representatives, guardians and other fiduciaries operating in Florida have long had to deal with the "fiduciary exception" to the attorney-client privilege. The basic rule is that if the attorney-client communication had to do with normal administration issues the beneficiaries of the trust or estate were entitled to the information, and the … Continue Reading

New legislation expressly authorizes filing pre-death “caveats”

Posted in Probate & Guardianship Statutes
Section 731.110 of Florida’s Probate Code allows any person who is apprehensive that an estate will be administered or that a will may be admitted to probate without that person’s knowledge to file a caveat with the court. “Caveat” is a Latin term that means “warning or admonition”. In the Florida probate context it refers … Continue Reading

What lawyers and trustees need to know about Florida’s new “Directed Trusts” statute

Posted in Probate & Guardianship Statutes
I’ve been a fan of the “directed trusts” idea from the time it was first talked up in the press [click here], through to its recent adoption here in Florida [click here]. Whether you make a living drafting trusts as a lawyer or administering them as a trustee, you should get to know this important … Continue Reading

Probate and Trust Litigation Committee Meeting in Bonita Springs on May

Posted in Probate & Guardianship Statutes
Click here for a PDF copy of the Agenda and related Reports/White Papers for the Probate and Trust Litigation Committee Meeting in Bonita Springs on May 22, 2008. I found the following legislative items especially interesting: Corporate trustees should be happy with the new legislation being proposed in House Bill 435 [Agenda ITEM 2]. This bill … Continue Reading

Repeal of Florida’s Dead Man’s Statute

Posted in Probate & Guardianship Statutes
In re Amendments to the Florida Evidence Code, — So.2d —-, 2007 WL 2002629 (Fla. Jul 12, 2007) Florida’s version of the “Dead Man’s Statute” has been a trap for unwary litigants for over a century.  Widely criticized by commentators, practitioners, and even courts, in 2005 the rule was finally abolished when the Florida legislature repealed section 90.602, Florida … Continue Reading

Florida’s New Trust Code

Posted in Probate & Guardianship Statutes
As Florida practitioners (and courts) work their way through Florida’s new trust code (FTC), there are a few resources all should keep handy until we start getting some appellate opinions construing the new code: [1] Legislative Staff Analysis of FTC. Prof. David F. Powell’s Scrivener’s Summary of the FTC was basically incorporated verbatim into the Legislative … Continue Reading

Florida Uniform Disclaimer of Property Interests Act

Posted in Probate & Guardianship Statutes
Effective July 1, 2005, Florida enacted the Florida Uniform Disclaimer of Property Interests Act. Although the Florida statute is modeled on the Uniform Act, it is reported to contain substantial enhancements as well. The Wills, Trusts & Estate Prof Blog reported here the following comment by one of the statute’s lead authors: The variations are … Continue Reading

Selected Florida Statutes Relevant to Wills, Trusts and Estates Matters in Florida

Posted in Probate & Guardianship Statutes
Florida’s Constitutional Homestead Protection Article X, Section 4, Florida Constitution Florida’s “Probate Code” is contained in Chapters 731 — 735 of the Florida Statues. Ch. 731 General Provisions Ch. 732 Intestate Succession of Wills Ch. 733 Administration of Estates Ch. 734 Foreign Personal Representatives; Ancillary Administration Ch. 735 Small Estates Other relevant statutes include the … Continue Reading