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: Trust and Estates Litigation In the News

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Lessons from “Clarity on Capacity”: A UK-law perspective on the unique ethical challenges faced by estate planners representing clients with diminished capacity

Posted in Ethics & Malpractice Claims, Trust and Estates Litigation In the News
Florida ethics Rule 4-1.14 and its ABA model-rules counterpart, Rule 1.14, address the unique ethical challenges faced by attorneys representing clients with diminished capacity. To say this is a “thorny” situation is putting it mildly, especially for estate planners, which means any concrete help we can get navigating these dangerous waters is incredibly valuable. One way … Continue Reading

Survey: top three reasons families engage in estate planning: (1) avoid probate (59%), (2) minimize discord among beneficiaries (57%), and (3) protect children from mismanaging their inheritances (39%).

Posted in Trust and Estates Litigation In the News
WealthCounsel’s 7th Annual Industry Trends Survey looked at the business challenges faced by estate-planning professionals in 2013 and provided insight into what motivates clients to engage in planning. According to the survey, the top two reasons families engage in estate planning revolve around privatizing the wealth-transfer process (i.e., “avoid probate”: 59%), and the threat of inheritance disputes … Continue Reading

Changing trustees can be contentious, but there are ways for beneficiaries to ease the process.

Posted in Trust and Estates Litigation In the News, Trustees In Hot Water
As a family trust moves into its second or third generation, it’s almost inevitable that someone’s going to be unhappy with the trustee. The good news is that most well-drafted trust agreements include a mechanism for replacing trustees as and when needed. Now the bad news: in the absence of good drafting trust beneficiaries may have to … Continue Reading

“Roughly 70% of families lose a chunk of their inherited wealth, mostly due to estate battles.” How to manage estate litigation risk? Think “process” . . . then think “mandatory arbitration”

Posted in Trust and Estates Litigation In the News
Accenture estimates that $30 trillion will pass from Boomers to Millennials over the next 30 years. Will this intergenerational wealth transfer actually happen? Who knows? At one time Boomers were expected to benefit from a similar windfall of equally gargantuan proportions — some $41 trillion at the time of this study (2003). Then reality stepped in, the … Continue Reading

2012-13 Probate Court Filing Statistics Chart

Posted in Musings on the Practice of Law, Trust and Estates Litigation In the News
If you make your living in and around our probate courts you’ll find the FY 2012-13 Probate Court Statistical Reference Guide interesting reading. Below I’ve charted the “cases filed” data for three of our largest circuits/counties: Miami-Dade (11th Cir), Broward (17th Cir), and Palm Beach (15th Cir). But numbers alone don’t tell the whole story. To understand … Continue Reading

What litigators can learn from the OCC’s “Comptroller’s Handbook for Fiduciary Activities”

Posted in Trust and Estates Litigation In the News, Trustees In Hot Water, Will and Trust Contests
The fiduciary duty of care sets the minimum level of diligence and competence we expect of trustees, objectively measured by reference to what a “reasonable” or “prudent” person would do in like circumstances, and informed by industry norms and practices. As I previously wrote here in the context of trustee investment decisions, the duty of … Continue Reading

Miami attorney Patrick Lannon on undue influence claims challenging inter vivos (lifetime) gifts, and how we (and our courts) can do a better job of connecting the dots

Posted in Gifts and Charities Litigation, Trust and Estates Litigation In the News
Most inheritance litigation involving claims of undue influence arise in the context of a will or trust contest, and most of those cases revolve around whether the primary beneficiary actively procured the contested instrument. Active procurement can be difficult to prove (or disprove) because your single most important witness, the grantor, is dead, which means we have … Continue Reading

An Economic Theory of Fiduciary Law

Posted in Trust and Estates Litigation In the News, White Papers - RPPTL Comm
Professor Robert H. Sitkoff of Harvard Law School published an article that should warm the heart of your favorite law-and-economics geek who also happens to make his or her living as a trusts and estates lawyer. The article’s entitled An Economic Theory of Fiduciary Law, and below are a few excerpts I found especially interesting … Continue Reading

2011-12 Probate Court Filing Statistics Chart

Posted in Musings on the Practice of Law, Trust and Estates Litigation In the News
If you make your living in and around our probate courts (or as an estate planner, doing everything possible to avoid our probate courts), you’ll find the FY 2011-12 Probate Court Statistical Reference Guide interesting reading. Below I’ve charted the “cases filed” data for three of our largest circuits/counties: Miami-Dade (11th Cir), Broward (17th Cir), and Palm … Continue Reading

Using mandatory arbitration clauses to “privatize” the dispute-resolution process. AAA publishes new Wills and Trusts Arbitration Rules and Mediation Procedures

Posted in Trust and Estates Litigation In the News
As end users of Florida’s court system, trusts and estates lawyers know all too well the negative consequences of an underfunded judiciary. What may not be as clearly apparent is that our clients do have the power to largely “opt out” of the public court system. How? Think alternative dispute resolution or ADR. In Florida there are no jury … Continue Reading

Before the Party’s Over: Arguments For and Against Pre-Death Will Contests

Posted in Trust and Estates Litigation In the News
Certainty. It’s the Holy Grail of estate planning and non-existent in any will contest. Here’s how one judge put it over a century ago: "[P]ost mortem squabblings and contests on mental condition . . . have made a will the least secure of all human dealings, and made it doubtful whether in some regions insanity is not … Continue Reading

The Domestic Asset Protection Trust: Ranking the Jurisdictions

Posted in Trust and Estates Litigation In the News
A decade ago states were racing to pass legislation making dynasty trusts possible. According to one 2005 study I wrote about here, the winners of that legislative race (including Florida) reaped roughly $100 billion in new trust business. So yes, the stakes are high. Today, the legislative race is all about asset protection trusts. The concept originated offshore in … Continue Reading

What Marilyn Monroe’s recent estate battles can teach us about posthumous publicity rights under Florida law

Posted in Trust and Estates Litigation In the News
The stakes are high. Forbes Magazine lists Marilyn Monroe as the third-highest money-maker in its annual ranking of “The Top–Earning Dead Celebrities,” with an annual income of $27 million in 2011 alone. This income stream has been growing since Ms. Monroe’s death 50 years ago in 1962, and if Forbes’ 2011 figures are any indication, it isn’t going to … Continue Reading

Harvard law professors on why the interference-with-inheritance tort was never a good idea and why it’s time to get rid of it

Posted in Trust and Estates Litigation In the News
I’ve been a fan of T&E Harvard Law professor Robert Sitkoff‘s work since he co-authored a groundbreaking article in 2005 entitled Jurisdictional Competition for Trust Funds: An Empirical Analysis of Perpetuities and Taxes, using banking data to demonstrate how states (including Florida) compete with each other for billions in new trust business by tailoring their trust legislation to attract this business. (I … Continue Reading

Sherlock Holmes as trusts & estates teaching tool

Posted in Trust and Estates Litigation In the News
Prof. Stephen Alton, of the Texas Wesleyan University School of Law, recently published The Game is Afoot!: The Significance of Gratuitous Transfers in the Sherlock Holmes Canon. If you’ve ever enjoyed any of the Sherlock Holmes stories, and you happen to be a trusts and estates lawyer, you’ll want to read this essay. Prof. Alton writes … Continue Reading

Join me in December at upcoming NBI seminar: “Estate Administration Procedures: Why Each Step Is Important”

Posted in Trust and Estates Litigation In the News
In December I’m scheduled to teach a one-hour segment on probate & trust litigation at an upcoming NBI seminar entitled "Estate Administration Procedures: Why Each Step Is Important." Click here for more information about the seminar and the other speakers. The dates and locations for the seminar are: Miami, FL - December 6, 2011 Fort Lauderdale, FL - December 7, … Continue Reading

I was there when Venezuelans buried ex-President Carlos Andrés Pérez

Posted in Trust and Estates Litigation In the News
This I believe: “Always go to the funeral.” This philosophy took my co-counsel, Alex Gonzalez, and me to Caracas, Venezuela where we witnessed first hand the fruit of our labor in this high profile case: thousands of ordinary Venezuelans, jubilantly taking to the streets, welcoming home the remains of their ex-president, Carlos Andrés Pérez. Our clients, President Pérez’s widow, Blanca de Pérez, … Continue Reading

US Supreme Court: No Oil Millions for Anna Nicole Smith’s Estate

Posted in Trust and Estates Litigation In the News
Former Playboy Playmate, model, aspiring actress and professional celebrity Anna Nicole Smith probably wanted to be remembered for a lot of things, but her most lasting impact may have been in the court room. In a 2006 win at the US Supreme Court, Anna Nicole Smith’s battle over her late husband’s $1.6 billion estate redefined the "probate exception" to … Continue Reading