Dempsey v. Dempsey, 2005 WL 954856 (Fla. 2 DCA April 27, 2005) (Appeal Dismissed)

Under Florida Probate Rule 5.360, determining the elective share is a two step process. First, the trial court must rule on the issue of entitlement (Rule 5.360(c)). Second, if the trial court finds entitlement, then it must determine the amount of the elective share, the assets to be distributed to satisfy the elective share, and, if contribution is necessary, the amount of contribution for which each recipient is liable (Rule 5.360(d)). Continue Reading Order Determining Entitlement to the Elective Share Is Not Appealable

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

A probate judge has ordered the former executor of famed violinist Isaac Stern’s estate to pay hundreds of thousands of dollars to Stern’s three grown children. Stern, who died in 2001 at age 81, was one of the foremost violinists of the 20th century. He was among the most recorded classical musicians in history, and played a major role in cultivating the careers of such musicians as Itzhak Perlman, Pinchas Zukerman and Yo-Yo Ma. The full story is available here.

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

Steadman v. Department of Management Services, 2005 WL 924314 (Fla. 5 DCA April 22, 2005) The Florida Division of Retirement wanted a court order determining an employee’s heirs prior to paying survivor benefits. Only one problem. In 2003 Florida Probate Rule 5.385(c) was amended so that the terms “heirs or devises” were replaced with “beneficiaries” for purposes of the court order a person ends up with when filing a petition in circuit court pursuant to Florida Statute Section 2004->Ch0733->Section%20105#0733.105″>733.105 seeking an order determining beneficiaries of an estate. Undaunted by the fact that the requested order no longer existed, the Division refused payment of the requested survivor benefits because it didn’t get the order. The fact that an appeal had to be filed so that the Division would change its position is troubling to say the least. The Fifth DCA apparently shared that view, because it held that the Division’s refusal to accept an order complying with the provisions of amended Rule 5.385(c) “was a gross abuse of discretion” and ordered the Division to pay the petitioner’s attorney’s fees.

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

In the recent Michigan case, a probate judge ordered Yahoo Inc. to give the family of a soldier killed in Iraq full access to their son’s e-mail account. Attorney Brian Dailey, who represented the Ellsworth family, said there was no court battle with Yahoo and there was no controversy over privacy issues. “It took no convincing because Yahoo agreed,” he said. He added that “[t]here’s really no privacy debate over who owns e-mail. It’s the same thing as a safe deposit box.” The full story is available here.

The ABA Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 05-434, which address conflicts which may arise when an attorney represents several members of the same family in estate planning matters. The Wills, Trusts & Estates Prof Blog posted a good summary of the Opinion here. As a practitioner, I agree with the ABA’s conclusion that the conflicts can be successfully managed. The Prof Blog argues that this type of representation is “simply not worth the risk.”

Granted, this isn’t exactly a probate-litigation story, but the estate tax looms so large over every aspect of trust and estates law in the U.S., I can’t just ignore it.

So here’s the latest. In what is becoming an annual ritual (usually timed for maximum political advantage), the House voted yet again on April 13, 2005 (272-162) to repeal the federal estate tax in 2010 and beyond. The legislation would prevent the estate tax from re-emerging after its scheduled elimination, for one year, in 2010. Previous bills passed by the House have languished in the Senate. Talks between Republicans and Democrats have just begun in the Senate, where some lawmakers have worried about increasing federal deficits. In fact, with a $1.3 trillion deficit already forcast for the next decade, walking away from an additional $290 billion in lost estate-tax revenues (source: Joint Committee on Taxation Report) has some fiscally conservative Republicans re-evaluating their positions. Estate tax repeal’s top proponent, Sen. Jon Kyl, R-Ariz., refused to predict an outcome. The full Associated Press story is available here. Continue Reading House Approves Bill Repealing Federal Estate Tax

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