New Probate & Trust Cases

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Lumbert v. Estate of Carter, 867 So.2d 1175 (Fla. 5th DCA Feb. 27, 2004) (TRIAL COURT REVERSED)

Molly Joy Carter (“Mom”) executed a will on February 23, 1994 that left all of her $1.5 million estate in trust for her only child, Lisa Lumbert (“Daughter”), until Daughter reached certain ages, at which time the trust assets were to be distributed to her outright and free of trust. Mom died and her will was admitted to probate on August 30, 2000. Fourteen months later Daughter died on October 15, 2001 at age 41. At the time of Daughter’s death, most of Mom’s $1.5 million estate was still being administered, so only about $100,000 had been transferred to Mom’s testamentary trust for Daughter. Mom’s brothers and sister argued that Article IV E. of Mom’s trust for Daughter should control what happens with the rest of Mom’s estate, which would result in most of Mom’s estate going to them. Daughter’s surviving husband argued that Articles IV D. of Mom’s trust should control, which would, not surprisingly, result in most (i.e., two-thirds) of Mom’s estate going to him.
Continue Reading Will Construction Statute Applied to Testamentary Trust

Traeger v. Credit First Nat. Ass’n, 864 So.2d 1188 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT REVERSED) The decedent was not survived by a spouse or minor children. The decedent’s last will and testament devised her homestead property, a condominium unit in Ponce Inlet, Florida, to her adult step son and her adult natural daughter. The adult step son and her adult natural daughter, as co-personal representatives of the estate, petitioned the court to determine the homestead status of the condominium unit and asserted their belief that the property descended to both of them as protected homestead property. Circuit Court Judge C. McFerrin Smith III ruled that because the decedent’s adult step-son occupied a lower class under 2004->Ch0732->Section%20103#0732.103″>Section 732.103, Florida’s intestacy statute, his one-half share of the condominium property was not entitled homestead protection, while the surviving natural daughter’s share of the condominium was entitled to such protection.
Continue Reading Adult Step-Son Entitled to Inherit Protected Homestead Property

Velde v. Velde, 867 So.2d 501 (Fla. 4th DCA February 25, 2004) (TRIAL COURT AFFIRMED) At issue in this case was whether simply filing a petition for extension of time to make an elective share election was a “proceeding,” and thus sufficient under old Section 732.212 to toll the then applicable four-month deadline date for making an election. Effective as of October 1, 2001, this statute was substantially revised and renumbered as 2004->Ch0732->Section%202135#0732.2135″>Section 732.2135, which now explicitly states that a “petition for an extension of the time for making the election or for approval to make the election shall toll the time for making the election.” However, because the decedent died on October 9, 2000, the court was required to apply old Section 732.212. Nonetheless, the 4th DCA noted that interpreting the tolling period under old Section 732.212 as only applying to litigation “would not give effect to the legislature’s intent and would yield an absurd result.” Consequently, the court held that the word “proceeding” should be “interpreted broadly enough” to encompass the extension petitions at issue in the case.
Continue Reading When in Doubt, Err on the Side of Noticing All Interested Parties

In re Guardianship of J.D.S., 864 So.2d 534 (Fla. 5th DCA Jan. 9, 2004) (TRIAL COURT AFFIRMED) Is a fetus a “person”? In the latest chapter of Florida’s fetal rights debate, the 5th DCA held that in the context of Florida’s guardianship law, the answer is no. Orange County Circuit Court Judge Lawrence R. Kirkwood denied Jennifer Wixtrom’s petition to be appointed guardian of the fetus of “J.D.S.,” a 22-year old woman suffering from severe mental retardation that was pregnant as the result of a rape that occurred while she was in the care of the Department of Children and Families (“DCF”). Ms. Wixtrom’s petition was denied and she appealed.
Continue Reading Court Says No to Guardianship for Fetus