New Probate & Trust Cases

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Butler v. Guardianship of Peacock, 30 Fla. L. Weekly D889 (Fla. 5 DCA April 1, 2005) (Compensation Disputes) Marion County Circuit Court Judge Brian D. Lambert ruled that under F.S. § 2004->Ch0744->Section%20108#0744.108″>744.108(1) a petitioner seeking an order to determine the incapacity of her mother was entitled to an award of attorney’s fees and costs incurred in the guardianship proceedings up to the date the petitioner’s siblings objected to her being appointed guardian . . . fees and costs incurred thereafter were not for “services rendered on [the ward’s] behalf.”
Continue Reading Court Says No to Attorney’s Fees for Litigation over Whom Will Be Appointed Guardian

Baumann v. Estate of Blum, 30 Fla. L. Weekly D842 (Fla. 2 DCA March 30, 2005) (Trial Court Reversed) Getting paid fairly for the work you do is sometimes merely an “aspirational” goal for attorneys. It doesn’t have to be that way . . . especially when the law says you’re entitled to payment. In this case, the personal representative objected to the fees his own attorney petitioned for. Hillsborough County Circuit Court Judge Susan Sexton referred the matter to a general master and then simply adopted the general master’s report and recommendations wholesale without conducting a hearing. In the course of reversing the trial court, the Second DCA provides very valuable guidance for any attorney trying to make sure he or she gets paid for services rendered.
Continue Reading When the statute says the personal representative’s attorney “shall” be paid for services rendered, that’s what it means, and it’s reversible error for a court to rule otherwise

Estate of Mahaney v. Keefe, 2005 WL 924264 (Fla. 2 DCA April 22, 2005) (Trial Court Affirmed) It is not uncommon for a person’s single largest asset at death to be his homestead property. This is exactly what happened in the just decided Second DCA case, Estate of Mahaney v. Keefe (other than her home, decedent owned no other property of any value), and in the Fourth DCA case decided last year, Warburton v. McKean, 29 Fla. L. Weekly D1411 (June 9, 2004) (other than a condominium sold for $141,000, the decedent’s estate consisted of only nominal assets valued at $10,000). The question faced by both courts was whether freely-devisable homestead property could be used to satisfy pre-residuary bequests. The Fourth DCA said yes, the Second DCA said no. My understanding is that the Warburton case was heard by the Florida Supreme Court in early 2005, so we should have some resolution to this conflict in the near future. For the record, based on the basic principal that “freely devisable” homestead property should be controlled by a person’s will just like any other freely devisable asset, and the 1991 Florida Supreme Court ruling in City Nat’l Bank of Fla. v. Tescher, I think the Fourth DCA got it right in Warburton.
Continue Reading DCAs in conflict . . . can freely devisable homestead property be used to satisfy pre-residuary bequests? Fourth DCA says YES, Second DCA says NO, Florida Supreme Court ruling awaited

Collinson v. Miller, 2005 WL 840188 (Fla. 2 DCA April 13, 2005) (TRIAL COURT REVERSED) This case should be kept in your files and shared with clients who would rather skip any type of formalized planning for what is in all likelihood their single largest asset – their homestead property – and opt instead for some sort of unwritten “trust me” estate plan. In terms of technical guidance, you may also want to keep this one on the shelf and refer back to it the next time you need to wade into the legal thicket surrounding exactly what “constructive trusts” are, when they are used, and when they don’t apply. This case involved a second marriage where both spouses had children from previous marriages (this fact alone should instantly trigger alarm bells). “Husband” purchased waterfront property and built a home on the property. The idea was that if “Wife” survived Husband, she would be able to use the home for the rest of her, but at her death the house (which was valued at over $2.2 million in Wife’s estate) would go to Husband’s children.
Continue Reading Why “Trust Me” Estate Planning Can Be Disastrous When it Comes to Homestead Property

Jensen v. Estate of Gambidilla, 30 Fla. L. Weekly D578 (Fla. 4 DCA March 2, 2005) (TRIAL COURT REVERSED) St. Lucie County Circuit Court Judge Marc A. Cianca entered a civil contempt order requiring an estate’s former personal representative to be incarcerated until she returned certain items of personal property to the estate. The Fourth DCA reversed the trial court’s order holding that Probate Rule 5.440(d) contempt proceedings require that a trial court expressly find that the removed personal representative had the present ability to comply its order.
Continue Reading You Can’t Throw a Person in Jail for Failing to Comply with an Impossible Order

Parker v. Estate of Bealer, 890 So.2d 508 (Fla. 4 DCA January 5, 2005) (TRIAL COURT AFFIRMED) The key issue in this case was whether an interested person’s attorney had to actually file a notice of appearance in the probate proceedings before he or she would be deemed to be “the attorney representing [the] interested person” for purposes of Probate Rule 5.040(a)(3)(A)(i) (Formal Notice) and Probate Code Section 2004->Ch0731->Section%20301#0731.301″>731.301 (Notice). Palm Beach Circuit Court Judge Mary E. Lupo ruled that filing a notice of appearance in the probate proceedings was not required.
Continue Reading Formal Notice Can Be Served On An Attorney Who Has Never Appeared of Record.