Steve L. Zimmerman of Zimmerman, Zimmerman & Miceli, P.A., in Pompano Beach, Florida, was on the winning side of Yawt v. Carlisle, — So.3d —-, 2010 WL 1879697 (Fla. 4th DCA May 12, 2010), a case I wrote about here involving when a new complaint has to be filed in on-going trust litigation.

I invited Steve to share some of the lessons he drew from this case with the rest of us and he kindly accepted.

[Q] What strategic decisions did you make in this case that were particularly outcome determinative at the trial-court level? On appeal?

[A] I became involved in this case only after a default and default final judgment had been entered against my clients, who had been proceeding pro se up to that point. The situation was very dismal, but the fact that the other side was seeking some new relief gave us a small "opening" that we hoped to exploit. It was quite clear that the attorneys, all seasoned probate practitioners, as well as the judge, perhaps out of habit, just sort of handled this trust case like it was a probate case, and thus misapprehended the effect of the default and the finality of the previous judgment. The only thing I had the opportunity to do at the lower court level was to go in an "make the record." Sometimes this is a bit uncomfortable, particularly when you are dealing with very experienced and reputable probate attorney’s who you see in court every day, and the former chief judge of the circuit. But sometimes you just have to do it.

[Q] Would you have done anything differently in terms of framing the issues for your probate judge? 

[A] I don’t think so. The appellate opinion made a point of mentioning that the appealable issue had been properly preserved.

[Q] From your perspective as probate litigator, do you think there’s anything that could have been done in terms of drafting the Land Trust at issue in this case or some other form of estate planning to avoid this litigation or at least mitigate its financial impact on the family?

[A] The appellate decision involved strictly the procedural issues. The substantive issues in this case remain to be determined. But the issues in this case will center upon what the duties of a trustee are, with respect to real property, once the beneficiaries are all adults and sui juris, and the trust purpose has been satisfied. Should the Trustee just execute the trust by conveying the property to the adult beneficiaries and then let them argue amongst themselves, or should the trustee sell the property and split up the proceeds? Obviously, some clearer drafting could have resolved these issues, but in this case, we don’t have that clarity.

[Q] Any final words of wisdom for probate lawyers of the world based on what you learned in this case?

[A] Trust cases are not probate cases. This is a double edged sword. Courts do not have continuing jurisdiction to supervise the administration of trusts like they do in probate cases – nor should they. With Trusts, you get in – get your ruling on a specific issue – and get out. One of the main reasons we use revocable living trusts is for probate avoidance. If your decedent wanted the court involved in his/her estate’s business he/she would not have made a living trust…