Alexander v. Harris, — So.3d —, 2019 WL 2147281 (Fla. 2d DCA May 17, 2019)

The creditor protected trust at the center of this case is a special needs trust. This kind of trust is created for a disabled or elderly person that’s intended to supplement, but not supplant, government assistance programs (such as Supplemental Security Income (SSI) and SSI-related Medicaid) by creating a fund to pay for care and services not otherwise provided by public programs.

While these trusts are designed to comply with the strict federal regulations governing eligibility for government disability benefits, they’re also subject to all of the state laws any other trust is subject to in Florida. That intersection of state and federal law is at the heart of this case.

Case Study:

Special needs trusts are subject to the Social Security Administration’s “sole benefit” rule under POMS SI 01120.201(F). The sole benefit rule has caused concern in cases involving claims for unpaid child support because of fears that a special needs trust beneficiary could lose his government benefits if his trust funds are used to pay his child support obligations (i.e., benefit a third party); that’s what the defendant argued in the Alexander v. Harris case.

This case involved a beneficiary of a special needs trust that hadn’t paid his child support in years. His trust was established pursuant to 42 U.S.C. § 1396p with funds from the settlement of a product liability action brought on the beneficiary’s behalf after he was catastrophically injured in a car accident as a minor.

The trust beneficiary owed $91,780 in unpaid child support, and his trust contained approximately $141,997 (plus monthly annuity payments of $3,035 for the rest of the beneficiary’s life). Special needs trusts are usually spendthrift/discretionary trusts for state law purposes, which means they’re shielded from most creditor attacks. But there are exceptions.

Spendthrift clause + discretionary distribution standard = creditor protected trust:

The reason most special needs trusts are impervious to most creditor attacks is a combination of two factors: these trusts usually contain a spendthrift clause that complies with F.S. 736.0502, and/or the trust qualifies as a “discretionary trust” under F.S. 736.0504. Most well-drafted trusts have both provisions — but they don’t have to. A creditor-protected spendthrift trust doesn’t have to be a discretionary trust, and vice versa. See Restatement (Second) of Trusts § 155, comment b.

But there are certain “exceptional” creditors who can pierce these protections. Over three decades ago, in Bacardi v. White, 463 So.2d 218 (Fla. 1985), the Florida Supreme Court held on public policy grounds that under certain circumstances a Florida spendthrift/discretionary trust isn’t shielded from child-support claims or an ex-spouse’s alimony claims. This rule was codified in sections 736.0503 and 736.0504 of the Florida Trust Code, as explained in Berlinger v. Casselberry, a controversial 2d DCA case I wrote about here.

Child support claim + creditor protected trust = win for child support claimant:

Now back to the Alexander case. Here, the 2d DCA held that the special needs trust was subject to garnishment for the same reasons the trust in the Berlinger case had been subject to garnishment: the unpaid debt fell within the state-law exception favoring certain creditors (such as unpaid child support claimants). The trust beneficiary in this case argued his trust funds should nonetheless remain protected because forcing his trust to satisfy his child support obligations would result in him losing his government disability benefits.

Did this argument work? Yes at trial, no on appeal. Why the loss on appeal? Because the argument failed on its own terms. According to the 2d DCA, there’s no “legal basis” for concluding you’re going to lose your disability benefits if your special needs trust pays your child support obligations.

The father argues that using the trust’s funds to satisfy his support obligations would jeopardize his eligibility for public assistance under federal law; however, he cannot identify any legal basis for this conclusion. We can find no federal law or regulation expressly addressing the garnishment of a special needs trust to satisfy a support obligation.

Once that boogeyman was disposed of, the end result was inevitable: child support claimant wins. Anyway, here’s how the 2d DCA made it’s federal disability-law point, which should be of special interest to those of you who spend much time drafting or administering special needs trusts.

To the extent that 42 U.S.C. § 1396p discusses support payments and eligibility, subsection (c)(2)(B)(iii) states that “[a]n individual shall not be ineligible for medical assistance by reason of paragraph (1) to the extent that … the assets … were transferred to … the individual’s child.” Furthermore, federal law gives great deference to state courts in family law proceedings, and the Supreme Court has explained that “[s]tate family and family-property law must do ‘major damage’ to ‘clear and substantial’ federal interests before the Supremacy Clause will demand that state law be overridden.” Hisquierdo v. Hisquierdo, 439 U.S. 572, 581, 99 S.Ct. 802, 59 L.Ed.2d 1 (1979) (quoting United States v. Yazell, 382 U.S. 341, 352, 86 S.Ct. 500, 15 L.Ed.2d 404 (1966)). In Rose v. Rose, 481 U.S. 619, 630, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987), the Supreme Court recognized that payment of child support is in the parent’s best interest, explaining that federal “benefits are not provided to support [the beneficiary] alone.” There is no indication in the federal statutes that Congress has expressed any intention to preempt state statutes, like section 736.0503, that permit garnishment of spendthrift trusts to satisfy the child support obligations of the beneficiary. Id. at 628, 107 S.Ct. 2029 (“Given the traditional authority of state courts over the issue of child support, their unparalleled familiarity with local economic factors affecting divorced parents and children, and their experience in applying state statutes … that do contain detailed support guidelines and established procedures for allocating resources following divorce, we conclude that Congress would surely have been more explicit had it intended the Administrator’s apportionment power to displace a state court’s power to enforce an order of child support.”).

Can you shop around for stronger creditor protection laws? YES

If you’re a planner with a client looking for better asset-protection than Florida law provides, you may want to consider moving your trust to one of the states vying for this kind of business, such as Nevada or South Dakota. That kind of planning was discussed at length in Bacardi on the Rocks, a Florida Bar Journal article reacting to the Berlinger case. And just recently, in a case written about in California Child Support Order Not Enforced Against South Dakota Trust In Cleopatra, the South Dakota Supreme Court refused to enforce a California child support judgment against a South Dakota Trust.

Putting planning issues aside, what does this case tell us about litigating these kinds of claims?

If you’re prosecuting a claim for unpaid child support, your focus should be on Florida state law and the special treatment afforded to these kinds of claims vis-à-vis otherwise creditor protected trusts. As for the state-law issues, this case and the Berlinger case tell you everything you need to know.

If you’re defending one of these cases, you need to play defense on two fronts: state trust law and federal disability law. As for the federal disability law issues, you have the 2d DCA’s analysis in this case in support of a no-forfeiture result. For another analytical approach that reaches the same conclusion you’ll want to read Thoughts on Supporting Healthy Dependents Using Funds From a Disabled Parent’s or Spouse’s Special Needs Trust, by Florida special needs trust guru David Lillesand. In David’s opinion the Social Security Administration is unlikely to contest this kind of trust distribution both as a matter of law and public policy. Here’s an excerpt:

There is no federal regulation or even an SSI POMS provision that addresses the use of d4A Special Needs Trust funds to pay items of support of the disabled person’s spouse or children. The published “rules” neither allow, nor disallow, such payments. Public policy and state non-support criminal statutes, however, would indicate that withholding support for spouses or children would violate the law. The Social Security Administration has indicated that payment of taxes, administration costs of the trust, and attorney’s fees do not violate the sole benefit rule. Because d4A Special Needs Trusts are self-settled trusts not safe from the claims of legitimate creditors, it would seem not only right, but proper, that trust funds be used to support the disabled person’s legal dependents.

Schanck v. Gayhart, — So.3d —- 2018 WL 1999841 (Fla. 1st DCA April 30, 2018)

In contested probate proceedings, if someone’s asserting a jurisdictional defense it’s probably coming up in one of two contexts. Either your judge lacked personal jurisdiction over one of the litigants (see here, here, here for past examples), or your judge lacked in rem jurisdiction over certain property (see here for past examples). And because nothing’s ever easy in probate, sometimes both concepts play themselves out in a single case. That’s what happened here.

Case Study:

This case involved a breach-of-contract action by the estate against the decedent’s ex-husband, who wasn’t paying up on his side of a marital settlement agreement. The estate ultimately obtained a judgment against ex-husband, then set about trying to collect.

As part of its collection efforts the estate filed a motion asking the probate judge to order ex-husband to turn over the stock and membership certificates of two Florida entities owned solely by ex-husband. Ex-husband claimed his new wife had taken the certificates to her place in Canada, which meant the Florida probate court lacked in rem jurisdiction over the certificates. According to ex-husband, if the estate wanted to get its hands on the certificates it had to go to Canada to get them.

Relying on the broad language of F.S. 678.1121, which authorizes a court to aid creditors trying to collect against certificated security interests, the estate countered by arguing that if the Florida probate judge didn’t have in rem jurisdiction over the certificates in Canada, it certainly had personal jurisdiction over ex-husband, and could use that authority to order him (as the sole owner) to simply cancel the certificates and re-issue new ones to the estate in Florida.

Did this end-run around the in rem jurisdiction barrier work? Yup. But it wasn’t easy. The debtor had three primary defenses. And struck out on all three. Here’s why.

Can a Florida probate judge order you to turn over property located in Canada? YES

The first line of defense was purely jurisdictional. According to debtor, a Florida court can’t use its authority over a Florida litigant to force that litigant to return assets located in Canada. This argument isn’t crazy, and it has worked in at least one other case cited by the defendant. So did it work this time? Nope. Strike one. Here’s why:

This Court has recognized that it is permissible for a trial court to direct a defendant over whom it has personal jurisdiction to act on property located outside its jurisdiction, if the title to the property is not directly affected while the property remains in the foreign jurisdiction. See, e.g., Ciungu v. Bulea, 162 So.3d 290, 294 (Fla. 1st DCA 2015). In Ciungu, this Court held that a probate court had authority to direct a party to effect distribution of property located in Romania by virtue of its personal jurisdiction over the party:

‘It has long been established … that a court which has obtained in personam jurisdiction over a defendant may order that defendant to act on property that is outside of the court’s jurisdiction, provided that the court does not directly affect the title to the property while it remains in the foreign jurisdiction.’

Id. (quoting Gen. Elec. Capital Corp. v. Advance Petroleum, Inc., 660 So.2d 1139, 1142 (Fla. 3d DCA 1995) ) (emphasis in original).

… Accordingly, while the only issue before us is whether the court properly ordered the alternative relief of reissuance, we observe that the court had jurisdiction to either order Appellant to return or reissue the certificates, as neither remedy would directly affect title to the certificates while they remained in Canada. See id.

Does section 678.1121 authorize a court to compel you to re-issue stock certificates? YES

OK, so a judge can order you to turn over out-of-state property generally, but the specific statute at play in this probate/debt-collection case was F.S. 678.1121, and the specific order at play in this case compelled the defendant to re-issue the certificates, not turn them over. Defendant argued section 678.1121 requires actual seizure of the certificates, it doesn’t authorize a court to order cancellation and re-issuance. Wrong answer. Strike two. So saith the 1st DCA:

[The] … Fifth District … [has] conclud[ed] that where one debtor refused to respond to discovery and the other indicated she did not know where the stock was, the trial court could order the corporation to reissue the stock certificate. House v. Williams, 573 So.2d 1012, 1012 (Fla. 5th DCA 1991) …

As in House, the securities here could not “readily be reached by ordinary legal process,” — that is, by seizure of the certificates. We hold that section 678.1121(5) authorizes a court to aid the creditor “in reaching the security or in satisfying the claim by means allowed by law or in equity,” including by ordering their reissuance, regardless of whether securities cannot be seized because their location is unknown or because the debtor has attempted to move them outside the court’s reach.

If the sole shareholder’s a party to your case, do you also need to implead the corporation/LLC? NO

If all else fails, call a time out because an indispensable party hasn’t been joined to the case. Here, defendant argued that because stock and membership certificates are issued by a corporation or LLC, not by shareholders or members (see sections 607.0603(1) and 605.0502(4)), the court was required to direct its order to the entities rather than to him, which means these entities needed to be made parties to the case. And since they’re not parties to the case, he gets a walk.

Did this last ditch defense work? Nope. Why not? Because if, as in this case, the defendant’s the sole owner, he’s in control. Which means he’s the one guy who can force the corporation/LLC to re-issue certificates whenever he wants. Strike three — plaintiff wins — so saith the 1st DCA:

The issuer of a certificated security must reissue a certificate upon request from the owner of the certificate. See § 678.4051, Fla. Stat. (providing procedure for reissuance of a lost, destroyed, or wrongfully taken security certificate). [Defendant] undisputedly owns and controls 100% of both Stellar and DataSignals. Notably, when [the estate] sought to add Stellar as a party during the dissolution proceedings, [defendant] represented that he would—and thus could—provide discovery on Stellar’s behalf “as if Stellar were a party” to the action. As such, we reject [defendant’s] contention he lacks the ability to comply with the court’s order, both on statutory and equitable grounds.

Lee v. Lee, 263 So.3d 826 (Fla. 3d DCA January 23, 2019)

A “disclaimer” is essentially a refusal of a gift or bequest, and you typically see them in the context of postmortem estate planning. For example, if a parent dies and leaves assets via a will to a child and the will names the grandchildren as the successor beneficiaries, a disclaimer of the bequest by the child would result in the assets passing to the next person entitled to the property, in this case the grandchildren.

Conceptually, disclaimers rest on two basic principles of property law: “a transfer is not complete until its acceptance by the recipient, and … no person can be forced to accept property against his will.” Jewett v. Commissioner, 455 U.S. 305, 323 (1982) (Blackmun, J., dissenting).

Florida Uniform Disclaimer of Property Interests Act:

In Florida, the law governing disclaimers is codified in the Florida Uniform Disclaimer of Property Interests Act, which is our heavily revised version of the Uniform Disclaimer of Property Interests Act.

In order for a Florida disclaimer to be valid, F.S. 739.104 tells us it must:

  1. be in writing,
  2. declare that the writing is a disclaimer,
  3. describe the interest or power disclaimed,
  4. be signed by the person making the disclaimer,
  5. be witnessed and acknowledged in the manner provided for by deeds of real estate, and
  6. be delivered in the manner provided in F.S. 739.301.

And if you want to record a disclaimer, thus providing constructive notice to anyone conducting a title search that might involve real property that has been disclaimed, F.S. 739.601 tells us the disclaimer must also contain a legal description of the real estate to which the disclaimer relates. But does that mean all disclaimers of real estate have to include legal descriptions? That’s the question the 3d DCA dealt with in this case.

Must all probate disclaimers of real estate contain legal descriptions? NO

In Lee v. Lee the decedent died intestate survived by three children. His estate was composed of two principal assets: (i) real property located in Miami, and (ii) settlement proceeds from a wrongful death claim. For reasons not disclosed in the opinion, one of the children disclaimed her interest in the estate. The disclaimer was witnessed by two persons and notarized, but it didn’t contain a legal description of the real estate.

The disclaiming child apparently had a change of heart, because she subsequently tried to undo her own disclaimer by arguing it wasn’t valid because it didn’t contain a legal description of the real estate being disclaimed. The trial court agreed. Not so fast, said the 3d DCA. Just because the statue gives you the option of recording a disclaimer if it contains a legal description, doesn’t mean it’s required. So saith the 3d DCA:

Section 739.601 provides additional requirements if the disclaimer is to be recorded, thus providing constructive notice to anyone conducting a title search that might involve real property that has been disclaimed. See § 739.601(1) – (2), Fla. Stat. (2014). This statute provides that a disclaimer “relating to real estate does not provide constructive notice to all persons unless the disclaimer contains a legal description of the real estate to which the disclaimer relates and unless the disclaimer is filed for recording in the office of the clerk of the court in the county … where the real estate is located.” § 739.601(1), Fla. Stat. (2014). The statute further provides as follows: “An effective disclaimer meeting the requirements of subsection (1) constitutes constructive notice to all persons from the time of filing. Failure to record the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.” § 739.601(2), Fla. Stat. (2014) (emphasis added).

Hence, if the disclaimer is to be recorded to provide constructive notice, then the disclaimer must contain a legal description of the real property. It is clear, though, from subsection (2) of this statute, that a non-recorded disclaimer is valid as between the disclaimant and the person to whom the property passes by reason of the disclaimer, regardless of whether the disclaimer includes a description of the real property. If the legislature had intended for all disclaimers of real property, whether recorded or not, to contain a legal description, there would have been no need in section 739.601(1) to include a requirement of a legal description for disclaimers that would be recorded.

The instant disclaimer meets each statutory requirement found in section 739.104(3). While the absence of a legal description of the subject property renders the disclaimer incapable of recordation under section 739.601, the lack of a legal description does not otherwise affect its validity.

Bitetzakis v. Bitetzakis, — So.3d —-, 2019 WL 405568 (Fla. 2d DCA February 01, 2019)

Will execution formalities are second nature to most of us, but it never hurts to go back to basics.

Under F.S. 732.502, a Florida will isn’t valid unless it’s in writing and signed at the end in the presence of at least two attesting witnesses, who sign the will in the presence of the testator and in the presence of each other. Like most US states (and Commonwealth jurisdictions), Florida’s rules for executing wills trace their roots back almost two centuries to the UK Wills Act of 1837.

Florida’s “Strict Compliance” Standard:

The execution rules are simple, but you need to get them exactly right. Why? Because Florida requires “strict compliance”. In other words, unless every last statutory formality is complied with exactly, the will’s invalid (see here, here for past examples).

And while a growing chorus of critics may argue this level of formalism’s outlived its usefulness (think “harmless error” rule), strict compliance is the historical norm. Why has this approach persisted for so long (and in so many jurisdictions)? Because these formalities — applied generally — do a good job of ensuring that most wills accurately and reliably reflect a testator’s intent (even if on occasion these same rules invalidate clearly genuine yet formally defective wills), as explained in Decoupling the Law of Will-Execution:

[F]ormalities are explained as fulfilling several functions that ensure that a will accurately and reliably reflects the testator’s intent. … First, will formalities serve an evidentiary function by providing reliable evidence that the testator intended a particular document to constitute a legally effective will. Second, they serve a protective function by reducing the possibility of fraudulent wills. [Third,] … will formalities serve  a cautionary function by reminding the testator of the legal significance of executing a will. … [And fourth,] will formalities serve [a] channeling function by funneling all wills into a substantially similar form. Because all wills are written, signed, and witnessed, probate courts can more efficiently determine whether the testator intended to execute a valid will.

Although the traditional law gives the court assurance that it can safely distribute the decedent’s estate according to the terms of a formally compliant will, critics contend that requiring courts to invalidate clearly genuine yet formally defective wills conflicts with formality’s role in the realization of testamentary   intent. They argue that the rule of strict compliance  is overly concerned with  preventing the validation of fraudulent or unintended wills and should be more concerned with validating genuine wills.

It’s against this backdrop that the 2d DCA considered what it means to actually “sign” a will under a strict-compliance reading of F.S. 732.502.

Was the decedent’s first name enough to validly execute his will? NO

In Bitetzakis v. Bitetzakis the decedent clearly intended to execute a valid will, but thought he had to do so before a notary (not true). Midway through signing his name, his wife stopped him and told him he’d need to sign again before a notary. She also testified that her husband normally wrote his entire name when signing documents. The next day they went to see a notary but husband goofed again, mistakenly signing a self-proving affidavit instead of re-signing his will.

So does half a signature count? Trial court said yes, 2d DCA said NO. Why not? Think strict compliance (as in even the tiniest mistake = invalid will). So saith the 2d DCA:

Generally, “[t]he primary consideration in construing a will is the intent of the testator.” Allen v. Dalk, 826 So.2d 245, 247 (Fla. 2002) (citing Elliott v. Krause, 531 So.2d 74, 75 (Fla. 1987)). However, “when testamentary intent is contained in a will, it can only be effectuated if the will has been validly executed” in strict compliance with section 732.502, Florida Statutes. Id. (emphasis added). Section 732.502(1)(a) dictates that in order to properly execute a will, the testator “must sign the will at the end” or else the testator’s name “must be subscribed at the end of the will by some other person in the testator’s presence and by the testator’s direction.”

In this case, the probate court erred because the evidence does not establish that the decedent signed at the end of the will or directed another to subscribe his name in his stead. See Dalk, 826 So.2d at 247 (“[W]here a testator fails to sign his or her will, that document will not be admitted to probate.”). Under these very unique circumstances, it is clear that the decedent recorded something less than his full customary signature and therefore did not sign the will within the meaning of section 732.502. See Signature, Black’s Law Dictionary (10th ed. 2014) (defining a signature as a “person’s name or mark written by that person … esp., one’s handwritten name as one ordinarily writes it” and “the act of signing something; the handwriting of one’s name in one’s usual fashion”).

To be sure, Florida law permits a testator to sign a will by making a mark not commonly regarded as a formal signature. See In re Williams’ Estate, 182 So.2d 10, 12 (Fla. 1965) (“[A] mark made by the testator at the proper place on his will with the intent that it constitute his signature and evidence his assent to the will is sufficient to satisfy the statutory requirement that he ‘sign’ his will.”). However, in this case we cannot construe the decedent’s alphabetic first name as constituting his mark because there is no evidence that the decedent had the concomitant intent that it serve in place of his signature. In other words, there is no evidence that the decedent signed his first name “with the intention that [a portion of his signature] evidence his assent to the document.” Id. at 13. To the contrary, that the decedent intentionally ceased signing the will and later signed the self-proof affidavit in an apparent attempt to ratify it dispels any notion that he believed or intended that his first name serve as his signature and assent to the will.

There have been numerous books and essays written about Mark Twain’s final two unhappy years in Redding, Connecticut, as well as several accounts capturing the lives, also generally tragic, of his surviving daughter and granddaughter.

A fascinating new article co-authored by Connecticut judge Henry S. Cohn and attorney Adam J. Tarr entitled A Challenging Inheritance: The Fate of Mark Twain’s Will, retells some of that story, but from a legal perspective probate attorneys should find particularly interesting. The article makes use of source documents from the estates of Mark Twain and his descendants, including original wills, probate papers, trust instruments, and court and business filings.

Over a century after his death, Mark Twain still matters. On that note, the article concludes by explaining how the literary “Mark Twain” has succeeded in the twenty-first century, well beyond his death in 1910. Good stuff, highly recommended. Here’s an excerpt:

The last years of Mark Twain’s life were marked with tragedy and emotional hurt. He lost his favorite daughter in 1896, his wife in 1904, and his youngest daughter Jean on Christmas Eve 1909, just four months before his death. Mark Twain’s will, which was written in August 1909 just before his health worsened, captures this emotional state of affairs.

Even though the provisions of Twain’s will and Clara’s subsequent bequests were illustrative of familial grief, Mark Twain’s investments and accumulated assets were a positive factor and only grew over time. While even in death some of his investments were deemed worthless, the trustees under Twain’s will and the Mark Twain Foundation achieved many financial triumphs. Further, thanks to the Papers Project, the Mark Twain literary “brand” has been glowingly successful. Writing in the April 17, 1960 Hartford Courant, Bissell Brooke declared: “Mark Twain again has caught the public’s fancy. Posthumously, he has never been more ‘alive.'”

Johnson v. State, — So.3d —-, 2019 WL 1053155 (4th DCA March 06, 2019)

The bread and butter work of most probate litigators includes breach of fiduciary duty claims by guardians, trustees, and agents acting under powers of attorney (POAs). These are all civil cases. What many probate litigators may not be aware of is that for good and valid reasons, much of this conduct can also get a defendant arrested, criminally prosecuted, and sent to prison for a very long time under F.S. 825.103, which criminalizes most of this conduct as a form of “exploitation of an elderly person or disabled adult.”

And because these cases often turn on issues of “intent” (for example, if a caregiver uses a POA to pay herself from mom’s bank account, did caregiver intend to financially exploit mom or compensate herself for legitimate services?), and because a person’s intent is usually proven indirectly by circumstantial evidence, the importance of what “test” is used to decide the intent question can’t be overstated, especially when the consequences may include years behind bars. The Johnson v. State case is all about what it takes to prove criminal “intent” in exploitation of the elderly cases.

Case Study:

The Johnson v. State case involves an 88 year old woman who was Baker Acted and hospitalized after exhibiting signs of dementia and found living in deplorable conditions. A neighbor visited her in the hospital, and ultimately ended up as her agent under a power of attorney (“POA”). Eventually, a guardian was appointed on behalf of the elderly woman and her neighbor (and neighbor’s minor daughter) were removed as signatories on her accounts. The guardian placed the elderly woman in a nursing home where she died a short time later.

According to the defendant neighbor, she used the POA to withdraw $13,549 from her elderly neighbor’s bank accounts to pay for her care, pay property taxes, pay for the cleanup of her elderly neighbor’s home, and pay an attorney to represent her elderly neighbor in guardianship proceedings. According to the neighbor, of this amount she deposited $2,590 in her own bank account to compensate herself for the time she spent working on the elderly woman’s home and to reimburse herself for expenses she incurred on her behalf. Also, according to the neighbor, she added her minor daughter as a pay-on-death beneficiary of the elderly woman’s bank accounts “based on advice from the bank’s manager …. to protect the funds in the event a probate case was filed.”

Based on these facts, one could plausibly conclude all we have is a fee dispute (i.e., was $2,590 a reasonable reimbursement for time spent and expenses incurred?) and an example of a well intentioned neighbor making a dumb mistake involving pay-on-death bank account designations that resulted in no harm (if the bank funds were frozen, the pay-on-death designations were never effectuated). On the other hand, one could just as plausibly conclude what we have here is the use of a POA to defraud an elderly woman. The deciding factor is: what was going on inside the head of the defendant neighbor? … in other words, what was her intent?

As explained by the 4th DCA, because this is a circumstantial-evidence case, the prosecutor’s burden is especially high.

In circumstantial cases, “a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.” Id. (quoting State v. Law, 559 So.2d 187, 188 (Fla. 1989) ). “[I]f there is direct evidence of a defendant’s actus reus, but the defendant’s intent is proven solely through circumstantial evidence, the special standard of review applies only to the state’s evidence establishing the element of intent.” Id.

Someone else’s money in your bank account = conviction:

If you can’t be convicted if you’re able to come up with “any reasonable hypothesis of innocence” for why you did something, you’d think just about any plausible explanation should be enough (including: “I’m sorry, I’m an idiot.”) And you’d be wrong. Why? Because once someone else’s money ends up in your bank account, no matter how well intentioned you might be or how reasonable your conduct might seem at the time, if in hindsight your fact finder doesn’t buy your story, you’re going to get convicted. So saith the 4th DCA:

There are two key cases issued by this Court which are instructive to the issue of intent in an exploitation of the elderly case. The first is Everett v. State, 831 So.2d 738 (Fla. 4th DCA 2002). … The second key case is McNarrin v. State, 876 So.2d 1253 (Fla. 4th DCA 2004). … Everett and McNarrin establish that when a defendant charged with exploitation of the elderly alleges that funds taken from the alleged victim were used for the victim’s benefit, the State must submit evidence to the contrary. Such contrary evidence could include unexplained deposits in the defendant’s bank accounts or acquisitions of property. See Everett, 831 So.2d at 742. In the instant case, although there was evidence corroborating Appellant’s claim that much of the money taken from the victim’s accounts was used for the benefit of the victim, there was also evidence establishing that Appellant deposited some of the money taken from the victim’s accounts into her own bank account and named her daughter as the beneficiary of the victim’s accounts. This evidence, when viewed in the light most favorable to the State, supports the alternative theory that Appellant intended to benefit herself and not preserve the victim’s estate. See Durousseau v. State, 55 So.3d 543, 557 (Fla. 2010) (“Under the circumstantial evidence standard, when there is an inconsistency between the defendant’s theory of innocence and the evidence, when viewed in a light most favorable to the State, the question is one for the finder of fact to resolve and the motion for judgment of acquittal must be denied.”). Accordingly, we affirm the trial court’s denial of Appellant’s motion for judgment of acquittal on the issue of intent.

When it comes to probate proceedings, there’s a strong public policy favoring finality, even it means valid claims sometimes get sacrificed. For example, F.S. 733.903 tells us that once a probate proceeding is closed, it won’t be reopened because sometime after the fact someone finds a perfectly valid will that would have changed everything.

And if you’re the personal representative, F.S. 733.901(2) tells us that once you’re discharged, you too can rest easy in the knowledge that you can’t be sued for anything you did during the probate proceeding. But alas, this last bit of finality is subject to a few exceptions, which are the focus of 1st DCA’s opinion in the Sims case.

Sims v. Barnard, — So.3d —- 2018 WL 5796936 (Fla. 1st DCA November 06, 2018)

This case involves a probate proceeding that went on for over 10 years, involved multiple personal representatives, and one very active pro se litigant. The final PR was an attorney who filed a final accounting that was objected to. The probate judge overruled the objections, approved the final accounting, and discharged the PR in 2015. Two years later the PR was sued by the same objecting party for “fraud” and “embezzlement”.

The former PR claimed the suit against him was barred by F.S. 733.901(2), and the trial court agreed. On appeal the claimant argued his lawsuit shouldn’t have been dismissed because his claims fall under the “fraud” and “concealment” exceptions. Here’s how the 1st DCA summarized this argument and the controlling Florida law:

Appellant correctly asserts that section 733.901 “does not serve as an absolute bar to the suits filed after the discharge of the personal representative.” Van Dusen v. Southeast First Nat’l Bank of Miami, 478 So.2d 82, 89 (Fla. 3d DCA 1985). The statutory bar codifies “a modified res judicata concept … applicable in probate cases.” Id. at 91. The bar will not be applied to a suit for fraud by concealment, where its application “would permit a fiduciary to benefit from its alleged wrongful acts if it could conceal them for the statutory period.” Karpo v. Deitsch, 196 So.2d 180, 181 (Fla. 3d DCA 1967) (holding that suit was not barred by discharge where suit alleged PR concealed from heirs the true value of estate and concealed from the court the identities of the heirs preventing heirs from asserting objection or claim prior to discharge). Likewise, where the PR conceals its intentional transfer of an estate asset by failing to report the distribution in the petition for distribution or otherwise, the PR “is not entitled to the sanctuary provided by” section 733.901. Van Dusen, 478 So.2d at 91.

The lawsuit at the center of this case seemed to include the magic “fraud by concealment” allegations needed to survive a motion to dismiss. So rather than challenge the pleading on its face, the defendant challenged it on summary judgment, which allowed the trial court (and the appellate court) to look beyond the four corners of the complaint. When that happened, the claims crumbled, both at the trial court level and on appeal.

Appellant filed his lawsuit against Bernard and the law firm on March 13, 2017. While the amended complaint generally alleged fraud and “embezzlement,” the facts asserted by Appellant were that the PR failed to provide him with sufficient accountings to explain all expenditures, leading Appellant to the conclusion that estate funds had been removed without explanation. The missing interim accountings, which Appellant was ultimately provided, simply do not rise to the level of “concealment” by the PR presented in Van Dusen and Karpo.

Wallace v. Watkins, — So.3d —- 2018 WL 3946062 (Fla. 5th DCA August 17, 2018)

But what if an estate gets probated and years later an heir shows up who was excluded from the original proceeding? That’s what happened in this case.

According to the appellate brief, “[a]lthough the decedent died in 1971, no one in the family had the means or know-how to file estate administration papers with the County at that time.” While it’s never stated explicitly, reading between the lines my sense is that the property at issue in this case is an example of “heirs property” passed down informally to surviving family members who lack the resources to judicially perfect their property rights in a probate proceeding.

As explained in an excellent Florida Bar Journal article entitled The Disproportionate Impact of Heirs Property in Florida’s Low-Income Communities of Color, these arrangements can lead to all sorts of negative consequences. By the way, the authors of this article advocate for Florida’s adoption of the Uniform Partition of Heirs Property Act, although not everyone thinks that’s a good idea. See The Uniform Partition of Heirs Property Act: A Solution in Search of a Problem.

Now back to the case. The decedent died in 1971. In terms of formally clearing title to her property, nothing happened until 2001 (29 years later), when her two daughters initiated a summary administration to probate a parcel of real property owned by the decedent at the time of her death. The decedent had adopted three of her grandchildren. These adopted children didn’t get notice of the probate proceeding, nor did they get a share of the property.

Fast forward another 15 years to 2016. The adopted children filed a petition to reopen the Watkins estate under F.S. 735.206(g), which provides as follows:

(g) Any heir or devisee of the decedent who was lawfully entitled to share in the estate but who was not included in the order of summary administration and distribution may enforce all rights in appropriate proceedings against those who procured the order and, if successful, shall be awarded reasonable attorney’s fees as an element of costs.

This statute seems pretty clear cut. If you’re an heir, and you weren’t included in the probate proceeding, you get a do-over. But reading the statute that way runs headlong into Florida’s strong public policy favoring finality in probate proceedings. So not surprisingly, as explained by Judge Schwartz in a thoughtful concurring opinion he wrote in Klem v. Espejo-Norton (a case I wrote about here) the usual rule in Florida is that an estate won’t be reopened even if a rightful heir was excluded. The exception to this rule being the type of “fraud by concealment” scenarios discussed in the Sims case above.

The probate judge reopened the Watkins probate proceeding in a non-evidentiary hearing where apparently no one made a “fraud by concealment” argument. Instead, the argument was made that the petition to re-open was time barred by F.S. 733.710(1), Florida’s non-claim statute for probate creditor claims. Since this isn’t a creditor-claim case (it’s a case about excluded heirs) that argument went nowhere.

Florida’s nonclaim statute applies to claims brought against the estate by creditors. It does not apply to the beneficial interests of heirs. See In re Estate of Robertson, 520 So.2d 99, 102 (Fla. 4th DCA 1988) (rejecting argument that nonclaim statute barred claim of heirship because such claims were “not the type of ‘claim’ contemplated” by nonclaim statute); see also Frank T. Pilotte, Creditors’ Claims and Family Allowance, in Practice Under Florida Probate Code (9th ed. 2017) (“[H]owever, the definition of claims and the nonclaim statute clearly do not apply to the beneficial interests of beneficiaries.”).

So what happened here? While the 5th DCA did say the heirship claims weren’t time barred as creditor claims, it didn’t grant the adoptees any property rights, all it did was affirm a trial court order reopening an estate. Does that mean the general rule barring the reopening of probate proceedings in the absence of fraud doesn’t apply in summary administration cases? Who knows. Here’s what we do know for sure: a family with not-that-much to begin with found itself enmeshed in the kind of probate/property-rights mess that seems to disproportionately burden folks most likely to be the recipients of “heirs property”. And that’s a shame.

Under Florida’s Trust Code there are two classes of beneficiaries, and which class you fall in is a big deal.

As defined in F.S. 736.0103(4), the term “beneficiary” refers to the entire universe of persons who have a beneficial interest in a trust, as well as to any person who has a power of appointment over trust property in a capacity other than as trustee. For purposes of this definition it’s immaterial whether the beneficial interest is present or future, vested or contingent, or whether the person having the interest is ascertainable or even living.

What’s a “qualified beneficiary”?

By contrast, the term “qualified beneficiary,” as defined in F.S. 736.0103(16), encompasses a much smaller — but favored — subset of trust beneficiaries. This class of beneficiaries is limited to current beneficiaries, intermediate beneficiaries, and first line remainder beneficiaries, whether vested or contingent. These beneficiaries are prioritized in two key ways. First, qualified beneficiaries are going to have standing in just about any judicial proceeding involving their trusts. Second, qualified beneficiaries are at the center of all trustee disclosure obligations.

For example, no matter what your trust agreement says, F.S. 736.0105 tells us you can’t waive the duty under F.S. 736.0813 to notify qualified beneficiaries of an irrevocable trust of the existence of the trust, of the identity of the trustee, and of their rights to trust accountings; nor can you waive the duty to provide a complete copy of the trust instrument and to account to qualified beneficiaries; nor can you waive the duty to respond to the request of a qualified beneficiary of an irrevocable trust for relevant information about the assets and liabilities of the trust and the particulars relating to trust administration.

Bottom line, you can’t do your job as trustee if you don’t know who your qualified beneficiaries are.

Miss law school? How about a couple of brain teaser hypotheticals?

And just in case we didn’t get the message that identifying a trust’s “qualified” beneficiaries is critically important (and can be a tricky exercise in real life), the trust code’s 2006 Legislative Staff Analysis (written largely by FSU Law Professor David F. Powell, who was the scrivener for the Ad Hoc Trust Law Committee of the Florida Bar that drafted Florida’s trust code) went so far as to provide hypothetical examples for those of us trying to pin down exactly who falls within this favored class of beneficiaries:

Example 1 — Meaning of Beneficiary. At his death, ninety-year-old D leaves $1,000,000 to T as trustee “to pay the income to D’s spouse S for life, then to distribute trust property to such of D’s descendants as S by will appoints, and in default of appointment in continuing trust to spray income among D’s children from time to time living, and at the death of the last to distribute all trust property per stirpes to D’s then living descendants and if there be none, to D’s alma mater, QB University.” D is survived by S, by two children, C1 and C2, by a grandson Bob (C1’s child) and by a great-granddaughter Fay (Bob’s child). On these facts, the beneficiaries of D’s trust include S, C1, C2, Bob, Fay, QB University, and an indeterminate and unascertainable class of as yet unborn descendants of D. Note that T’s power to spray trust income among D’s children does not make T a beneficiary because T holds that power as a trustee.

Example 2 — Meaning of Qualified Beneficiary. Same facts as Example 1. The qualified beneficiaries of D’s trust, as of his death, include S, C1, C2 and Bob. S is included because she is a permissible distributee. C1 and C2 are included because they would become permissible distributees were S’s interest to terminate at D’s death (i.e., were she to die at that time). Bob is also a qualified beneficiary because he would take the trust property were the trust to terminate at D’s death (because of the death of S, C1 and C2). As of D’s death, neither Fay nor QB University are qualified beneficiaries. Note however, that if Bob were to die after D’s death, Fay would then become a qualified beneficiary because she would be entitled to trust property as a consequence of a hypothetical trust termination at that time. That is, the determination of who is a qualified beneficiary is made as of a specific point in time and can change over time.

Clearly, who’s in and who’s out as a qualified beneficiary isn’t always going to be obvious. You need to apply the statute to a concrete set of facts to make sense of it. And thanks to the 4th DCA we now have two more real life examples. In both cases the 4th DCA makes clear that when in doubt the term “qualified beneficiary” is going to be read expansively, even if the trust agreement was intentionally drafted to reach the opposite result.

Should you assume intermediate beneficiaries die “sequentially” or “simultaneously”?

Hadassah v. Melcer, — So.3d —- 2019 WL 141039 (Fla. 4th DCA January 09, 2019)

In this case the trust agreement left everything to D’s surviving spouse, S, and upon her death to her three daughters, A, B, and C, and when the last daughter dies, to several charities. F.S. 736.0110 extends the rights of a qualified beneficiary to any charitable organization expressly designated to receive distributions from a charitable trust if the organization would otherwise meet the definition of a qualified beneficiary.

D was survived by his three daughters (his wife predeceased him). D’s trustee then filed an action seeking to resign and he named D’s three daughters and the charities as defendants, alleging that they were all qualified beneficiaries of the trust. The daughters argued that the charities weren’t qualified beneficiaries, and thus didn’t have a say in who gets to be successor trustee, because if any one of them died, the surviving sisters would get their share. Thus, the charities weren’t first line remainder beneficiaries. The trial court agreed and entered summary judgment against the charities.

Wrong answer, says the 4th DCA. When you’re defining who falls within the magic circle of qualified beneficiaries you need to assume all intermediate beneficiaries die simultaneously.

The lower court’s order contemplates the sequential termination of the daughters’ individual interests such that A’s interest passes to B and C; then B’s interest passes to C; then C’s interest passes to the charities. This interpretation is contrary to the plain language of the statute.

The statute contemplates the simultaneous termination of the interests of the distributees (“termination of the interests of other distributees or permissible distributees then receiving or eligible to receive distributions”). If the interests of the distributees of the trust were simultaneously terminated, all of the daughters’ interests would terminate and the charities would be the distributees. Therefore, the charities are qualified beneficiaries under the plain language of the statute.

Can you use a “multiple-trust scheme” to draft remainder beneficiaries out of the picture?

Rachins v. Minassian, 251 So.3d 919 (Fla. 4th DCA July 11, 2018)

When it comes to blended families, estate planning can be a special kind of hell, as amply demonstrated by this case, which is now on its second round before the 4th DCA.

In this case D’s trust was for the benefit of his surviving spouse, S, and upon her death for D’s adult children from a prior marriage. D was survived by S and his children. Both D and his estate planning attorney clearly anticipated there was going to be trouble, and tried their best to draft those problems out of existence, as I previously reported here the first time this case made its way to the 4th DCA.

This time around the question was whether a trust agreement that says S’s “Family Trust” terminates when she dies and that at that time new trusts would be created for D’s children, effectively cuts them out as qualified beneficiaries of S’s trust. As explained by the 4th DCA, that was clearly D’s intent.

[I]t appears that the husband settled on the multiple-trust scheme for the very purpose of preventing the children from challenging the manner in which the wife spent the money in the Family Trust during her lifetime.

So did this bit of defensive drafting work? Nope. Here’s why:

[T]he fact that the Family Trust terminates upon the wife’s death does not preclude the children from having a beneficial interest in the Family Trust. Indeed, by definition, a remainder interest in a trust refers to the right to receive trust property upon the termination of the trust. ….

Thus, while the husband may have intended to prevent the children from challenging the manner in which the wife spent the money in the Family Trust during her lifetime, see Minassian, 152 So.3d at 727, the children are qualified beneficiaries under [F.S. 736.0103(16)] and are therefore entitled to the corresponding protections afforded to qualified beneficiaries under the Florida Trust Code.

Johnson v. Townsend, — So.3d —- 2018 WL 5291297 (Fla. 4th DCA October 24, 2018)


Florida remains the largest recipient of state-to-state migration in the US, and the top choice among retirees. A percentage of those transplants are going to be married couples that moved to Florida directly from a community property state or may have lived in a community property state at some time during their marriage. How big a percentage? Bigger than you might think.

There are nine community property states in the US, including our two most populous: California and Texas. As a group, these states represent over 30% of the entire US population. To the extent any of the domestic migrants moving to Florida every year are married and come from any of our community-property states, they’re bringing their community property rights with them.

And then there’s Puerto Rico. It’s not only the largest US territory by population, it’s also a community property jurisdiction. One out over every three migrants to the US mainland from Puerto Rico settles in Florida. If they’re married, they too bringing their community property rights with them. But it doesn’t end there.

Florida is the single largest recipient of all international migration to the US, and the number one destination for Latin American migrants in particular. To the extent any of these migrants are married and come from a community property jurisdiction (think most countries in continental Europe and virtually all of Latin America), they too bringing their community property rights with them.

Florida Uniform Disposition of Community Property Rights at Death Act (FUDCRPDA)

OK, so there are probably way more Floridians walking around with community property rights than most probate lawyers would have guessed. Should we care? Yes. When one of these transplants dies, the surviving spouse’s testamentary community property rights don’t evaporate, they’re preserved by the Florida Uniform Disposition of Community Property Rights at Death Act (“FUDCRPDA”); Florida’s version of the Uniform Disposition of Community Property Rights at Death Act (which has been adopted in 17 states). And if those rights are properly claimed, they can dramatically reshape the ultimate disposition of a Florida probate estate.

For more on FUDCRPDA and how it’s supposed to work, you’ll want to read A User’s Guide to Prosecuting Claims under Florida’s Uniform Disposition of Community Property Rights at Death Act, which is my CLE presentation on the subject.

But here’s the problem: because Florida isn’t a community property state, community property is an issue most Florida probate attorneys never think about, which means it might be a while before anyone gets around to looking into whether a surviving spouse has any community property rights worth filing a FUDCRPDA claim to preserve. Does this lack of awareness matter? Yes. Why? Because community property claims in Florida probate proceedings are forfeited if they’re not made before the statutory filing deadline. So what’s the filing deadline? According to the 4th DCA, it’s sooner than you might think.

Case Study: Texas + Florida =  FUDCPRDA Claim

The linked-to case above involves a married couple that moved to Florida from Texas (a community property state). When husband died in January 2015, he was survived by his wife and children from a prior marriage. In March 2015 the decedent’s will was admitted to probate and his wife was appointed personal representative. In September 2017 (two years and eight-and-a-half months after the decedent’s death), surviving spouse filed a FUDCPRDA claim, described as follows by the 4th DCA:

The wife’s petition, filed pursuant to sections 732.216–.228, Florida Statutes (2015) (known as the “Florida Uniform Disposition of Community Property Rights at Death Act”) sought to confirm and effectuate her vested 50% community property interest in an investment asset acquired and titled in the decedent’s name while the decedent and the wife were domiciled in Texas, a community property state. See § 732.219, Fla. Stat. (2015) (“Upon the death of a married person, one-half of the property to which ss. 732.216732.228 apply is the property of the surviving spouse and is not subject to testamentary disposition by the decedent or distribution under the laws of succession of this state.”).

The decedent’s daughters objected, claiming wife’s FUDCPRDA claim was time barred. So what’s the deadline for filing a community property claim? Good question; FUDCPRDA doesn’t tell us, you need to look elsewhere.

If a surviving spouse is going to make an elective share claim, F.S. 732.2135(1) tells us exactly what the deadline is for filing that kind of claim. By contrast, FUDCPRDA doesn’t have any explicit filing deadlines. Wife argued there are none (which makes sense if she was simply perfecting existing property rights to non-estate assets she already owned). Daughters argued wife’s community property claim is a form of creditor claim, so the filing deadlines for probate creditor claims apply (which makes sense if we view a FUDCPRDA claim as creating new property rights to estate assets owned by the decedent).

Is a surviving spouse’s community-property claim subject to the filing deadlines for probate “creditor” claims? YES

Daughters won the definitional argument: community property claims = creditor claims: creditor deadlines apply.

[W]e agree with the daughters’ argument that the wife’s petition to determine her community property interest is a “claim” as that term is defined in section 731.201(4). Section 731.201(4) defines a “claim” as

a liability of the decedent, whether arising in contract, tort, or otherwise, and funeral expense. The term does not include an expense of administration or estate, inheritance, succession, or other death taxes.

(emphasis added). The wife’s community property interest is “a liability of the decedent.” Although the decedent’s possession of the community property in his name may have created a resulting trust, see [Quintana v. Ordono, 195 So.2d 577, 580 (Fla. 3d DCA 1967)] (“A resulting trust is generally found to exist in transactions affecting community property in noncommunity property states where a husband buys property in his own name.”), upon the decedent’s death, his estate became liable to the wife for her community property interest. Thus, upon the decedent’s death, the wife’s community property interest was a claim which the wife had to pursue.

And once the daughters won the definitional argument, the outcome was inevitable: wife’s claim was time barred:

Upon the decedent’s death, the wife had the ability to perfect her community property interest by seeking an order of the probate court pursuant to section 732.223. Because the wife’s community property interest was a “claim” as defined in section 731.201(4), the wife had three months after the time she published the notice to creditors to file her claim according to section 733.702(1), and in any event had two years after the decedent’s death to file her claim according to section 733.710(1). The wife did neither. As a result, the circuit court properly found that the wife’s untimely claim (in the form of her petition) was barred, and that no exception to the statutory deadlines existed. Ruling otherwise would have left no deadline by which the wife had to file a petition to perfect her community property interest, contrary to section 733.710(1).

Below are links to the briefs filed with the 4th DCA.

  1. Initial Brief
  2. Answer Brief
  3. Reply Brief

So what are testamentary community property rights in Florida?

The only way to make sense of how the 4th DCA ruled in this case is to think of a FUDCPRDA claim as a form of testamentary marital right that’s forfeited if not pursued (like an elective share claim), not an adjudication of existing property rights to non-estate assets surviving spouse already owns.

The 4th DCA crystallized the competing property rights views animating this case by granting wife’s motion to certify to the Florida Supreme Court the following question of great public importance:

We deny appellant’s motion for rehearing and/or rehearing en banc. However, we grant appellant’s motion to certify to the Florida Supreme Court the following question of great public importance:

Whether a surviving spouse’s vested community property rights are part of the deceased spouse’s probate estate making them subject to the estate’s claims procedures, or are fully owned by the surviving spouse and therefore not subject to the estate’s claims procedures.

The Florida Supreme Court ultimately denied the wife’s petition, effectively ending the case. Below are links to the briefs and the court’s order denying further review.

  1. Jurisdictional Initial Brief
  2. Jurisdictional Answer Brief
  3. Order Denying Petition for Review

FUDCPRDA Claim + Probate Creditor Deadlines = Trap for the unwary:

The ultra-short filing deadlines for creditor claims are intentionally designed to cut off potential claimants as soon as possible, which means you need to be thinking about them from day one. The “notice to creditors” mandated by F.S. 733.2121 makes sure everyone is acutely aware of these deadlines. And when it comes to marital rights, like elective share claims, the applicable statutes again give us explicit filing deadlines. FUDCPRDA doesn’t explicitly set a filing deadline, you need to infer it from the limitations periods applicable to “creditor” claims. This is a huge trap for the unwary. You’ve been warned …

If you make your living in and around our probate courts you’ll find the FY 2016-17 Probate Court Statistical Reference Guide interesting reading. The chart below provides the “cases filed” data for three of our largest circuits/counties: Miami-Dade (11th Cir), Broward (17th Cir), and Palm Beach (15th Cir).

And because one year’s snapshot is only so useful, the chart also reports the per-judge average case filing numbers for the prior four years to reflect trends over time.

Type of Case Miami-Dade (11th Cir) Broward (17th Cir) Palm Beach (15th Cir)
Probate 4,354  3,541  4,825
Baker Act  4,714  3,507  2,126
Substance Abuse 937  782  684
Other Social Cases 1,725  383  212
Guardianship 892  448  472
Trust 55  42  212
Total 12,677  8,703  8,531
# Judges 5 3 4.5*
2016-17: Total/Judge  2,535  2,901


2015-16: Total/Judge  3,070  2,866 2,109
2014-15: Total/Judge  3,122  3,044  2,020
2013-14: Total/Judge  3,069  3,899  1,950
2012-13: Total/Judge  2,848  3,105  1,871

*In Palm Beach County (15th Cir) there are 9 part time probate judges. For purposes of the chart I count them as 4.5 full time probate judges.

So what’s it all mean?

In Miami-Dade – on average – each probate judge took on 2,535 NEW cases in FY 2016-17, in Broward the figure was slightly higher at 2,901/judge, with Palm Beach scoring the lowest at 1,896/judge. Keep in mind these case-load figures (which have remained relatively constant over the last five years) don’t take into account each judge’s EXISTING case load or other administrative duties.

These stat’s may be appropriate for uncontested proceedings, which represent the vast majority of the matters handled by a typical probate judge, but when it comes to that small % of estates that are litigated, these same case-load numbers (confirmed by personal experience) make two points glaringly clear to me:

[1] We aren’t doing our jobs as planners if we don’t anticipate — and plan accordingly for — the structural limitations inherent to an overworked and underfunded state court system. As I’ve previously written here, one important aspect of that kind of planning should be “privatizing” the dispute resolution process to the maximum extent possible by including mandatory arbitration clauses in all our wills and trusts. Arbitration may not be perfect, but at least you get some say in who’s going to decide your case and what his or her minimum qualifications need to be. And in the arbitration process (which is privately funded) you also have a fighting chance of getting your arbitrator to actually read your briefs and invest the time and mental focus needed to thoughtfully evaluate the complex tax, state law and family dynamics underlying these cases (a luxury that’s all but impossible in a state court system that forces our judges to juggle thousands of cases at a time with little or no support).

[2] We aren’t doing our jobs as litigators if we don’t anticipate — and plan accordingly for — the “cold judge” factor I wrote about here; which needs to be weighed heavily every time you ask a court system designed to handle un-contested proceedings on a mass-production basis to adjudicate a complex trial or basically rule on any technically demanding issue or pre-trial motion of any significance that can’t be disposed of in the few minutes allotted to the average probate hearing.

You’d be surprised how varied a probate judge’s docket is:

But numbers alone don’t tell the whole story. To understand the breadth of issues a typical probate judge contends with in an average year, you’ll want to read the official definition given for each of the categories listed in my chart by the Florida Office of the State Courts Administrator 2016-17 Glossary:


All matters relating to the validity of wills and their execution; distribution, management, sale, transfer and accounting of estate property; and ancillary administration pursuant to Chapters 731, 732, 733, 734, and 735, F.S.

Baker Act (Mental Health Act):

All matters relating to the care and treatment of individuals with mental, emotional, and behavioral disorders pursuant to sections 394.463 and 394.467, F.S.

Substance Abuse Act (Marchman Act):

All matters related to the involuntary assessment/treatment of substance abuse pursuant to Sections 397.6811 and 397.693, F.S.

Other Social Cases (Probate):

All other matters involving involuntary commitment not included under the Baker and Substance Abuse Act categories. All matters involving the following, but not limited to:

  • Adult Protective Services Act cases pursuant to Section 415.104, F.S.
  • Developmental disability cases under Section 393.11, F.S.
  • Incapacity determination cases pursuant to sections 744.3201, 744.3215, and 744.331, F.S.
  • Review of surrogate or proxy’s health care decisions pursuant to Section 765.105, F.S., and rule 5.900, Florida Probate Rules
  • Tuberculosis control cases pursuant to Sections 392.55, 392.56, and 392.57, F.S.

Guardianship (Adult or Minor):

All matters relating to determination of status; contracts and conveyances of incompetents; maintenance custody of wards and their property interests; control and restoration of rights; appointment and removal of guardians pursuant to Chapter 744, F.S.; appointment of guardian advocates for individuals with developmental disabilities pursuant to section 393.12, F.S.; and actions to remove the disabilities of non-age minors pursuant to sections 743.08 and 743.09, F.S.


All matters relating to the right of property, real or personal, held by one party for the benefit of another pursuant to Chapter 736, F.S.