If all goes according to plan, Florida will soon be adopting its version of the Uniform Trust Code (“UTC”). The following e-mail announcements were circulated to Miami-Dade County probate attorneys on the “proguard” list service. Attached to the announcements was this draft version of the Florida UTC.

August 30, 2005 Judge Korvick, Thanks for getting the word out about the new proposed trust code. I am attaching the latest version. This product will have further revisions before it is filed with the legislature for the 2006 session. Brian Felcoski

August 29, 2005 Dear friends, Attached, for your information, is the proposed revision to the Florida Trust Code. Many of you had asked me to please send you this document via e-mail. On August 20, 2005, at the last meeting of The Executive Council of the Real Property, Probate and Trust Law Section of the Florida Bar, The Executive Council unanimously agreed to bring this complete re-draft of the Trust Statutes before the Legislature. This bill already has legislative sponsors. The section also unanimously decided to obtain the assistance of the section’s lobbyist, Pete Dunbar, to assist in the passing of this bill. Brian Felcoski, heading the Trust Committee has done a beautiful job. The proposed bill is drafted, for the most part, adopting the New Uniform Trust Code. The Uniform Trust Code was analyzed and compared to Florida Law by attorneys from around the State. The Uniform Trust Code was annotated by the group so that everyone could see whether there were any major changes to Florida Law. The new, proposed Florida Trust Code is patterned, in its format, after the Uniform Trust Code. The new Florida Trust Code retains parts of Florida law, not included in the Uniform Trust Code. Sincerely, Maria Korvick

Who would have thought that “Dear Abby” could teach us something about practicing trusts and estates law in Florida? Read the following exchange (also available here) and ask yourself three questions:

[1] Assuming the estate planning attorney described below only represented the husband, did the attorney violate his confidentiality obligations under Florida Ethics Rule 4-1.6? Answer: Yes.

[2] Under Florida Bar Ethics Opinion 95-4, could the estate planning attorney represent both husband and wife in the scenario described below? Answer: No.

[3] Is this type of behavior great advertising for Florida’s homestead protection laws and spousal elective share rights? Answer: Yes!!!

DEAR ABBY: My husband, “Girard,” and I have been married two years. We both have children from previous marriages. Girard always told me I would have a home if I outlived him, even though his children will eventually inherit the property.

One day I asked Girard if it was in the will, and he said no, but that he and his children “had discussed it.” When I asked him to put it on paper, he agreed. His attorney drafted a document for him to sign. After it had laid around the house for more than a week, Girard told me he had lost it. I reminded him to get another copy, sign and return it. After two more weeks passed with no signed document, Girard told me his attorney was “busy” and “would get to it when he could.”

I decided to call the attorney myself. Well, you guessed it. I was told the papers had been executed. When I confronted Girard he admitted he had lied and promised to have the will done over. When I looked at the document he had signed, I saw that Girard was giving me 90 days to get out of the house after his death.

I was upset, so he tore up the document. Am I being unreasonable? I am 76, and he is 84. — DOESN’T WANT TO BE HOMELESS IN BATON ROUGE

DEAR DOESN’T: It’s not unreasonable to want a roof over your head should your husband predecease you. Thank heavens you found out now what was planned for you, rather than being hit with it while you were helpless and grieving. Now that you know how your husband thinks, consult an attorney of your own and find out exactly what your rights are as a wife in the state of Louisiana. The law can vary from state to state, and it is extremely important that you know what you are entitled to.

Source: Wills, Trusts & Estates Prof. Blog

Department Of Children And Families v. Coll, 2005 WL 1959190 (Fla. 4th DCA August 17, 2005) (Trial Court Reversed) The Florida Department of Children and Families (“DCF”) isn’t always the easiest government agency to deal with. As one family learned in this case, they have their own ways of doing things, and not even a court order can change that. In guardianship proceedings initiated by the mother of an adult son who is cognitively impaired and autistic, Palm Beach County Judge Gary L. Vonhof attempted to expedite DCF’s evaluation process of the ward by entering an order compelling the DCF to determine if the ward was eligible for developmental services and to appear at a status conference to report on its findings. One problem though, DCF wasn’t a party to these proceedings, which means the court didn’t have the authority to order them to do anything. The DCF petitioned the Fourth DCA for a writ of prohibition challenging the circuit court’s order, and the Fourth DCA agreed: it held that the circuit court had exceeded its authority under Ch. 744 (Florida’s guardianship statutes), it thus quashed the order and provided the following guidance for families seeking DCF services in the future:

The statutes requires one seeking developmental services to submit a written application to DCF. See 2005->Ch0393->Section%20065#0393.065″>§ 393.065(1), Fla. Stat. (2005). DCF is required to notify the applicant of its eligibility determination. See 2005->Ch0393->Section%20065#0393.065″>§ 393.065(3), Fla. Stat. (2005). DCF’s decision is subject to an administrative appeal. There is no requirement that DCF notify a court or any counsel in guardianship proceedings of its determination. Nothing in the guardianship statutes authorizes the court to create its own procedure for assessment for developmental services, and there is no evidence that DCF has failed to comply with its obligations under section 2005->Ch0393->Section%20065#0393.065″>393.065.

If much of your practice involves probate litigation, you will inevitably (and almost daily) find yourself in the following conflict: you, as lawyer, want to focus on the dollars and cents of the case, your client, on the other hand, wants to relive family grievances that may have been simmering for decades – issues that unfortunately are almost impossible to resolve in the context of civil litigation. According to these findings in the recently published Allianz American Legacies Study, this type of cross-communication is probably inevitable. The California Estates and Business Law Blog provided the following comments on the study:

The Allianz American Legacies Study, sponsored by the Allianz Life Insurance Co., . . . found that seniors and baby boomers ranked money last in their list of important estate issues. Ahead of it were sharing values and life lessons, understanding final instructions and wishes to be fulfilled, and distributing personal possessions that have emotional value.

Still, just one-third of the more than 2,500 people surveyed said they had discussed such a wide range of issues.

Ken Dychtwald, president and chief executive of Age Wave, a San Francisco-based consulting group that helped design the survey, said families may be approaching estate planning incorrectly.

“We found that when you ask people to talk about inheritance, everyone clams up,” Dychtwald said. “Inheritance is about money, and it’s seen as greedy. But ask them to talk about legacy … it’s as if we hit some kind of magic button, and people open up about leaving behind family values and traditions – and money was just a piece of that.”

When I first started out as a trusts and estates lawyer one of the senior partners at my firm gave me some very good advice. He told me that if you’re ever unsure about visiting someone at the hospital or going to a funeral . . . always opt for showing up. This report on NPR’s “This I Believe” series reminded me of that wise advice. The following are a few highlights from that piece:

I believe in always going to the funeral. My father taught me that.

The first time he said it directly to me, I was 16 and trying to get out of going to calling hours for Miss Emerson, my old fifth grade math teacher. I did not want to go. My father was unequivocal. “Dee,” he said, “you’re going. Always go to the funeral. Do it for the family.”

Sounds simple — when someone dies, get in your car and go to calling hours or the funeral. That, I can do. But I think a personal philosophy of going to funerals means more than that.

“Always go to the funeral” means that I have to do the right thing when I really, really don’t feel like it. I have to remind myself of it when I could make some small gesture, but I don’t really have to and I definitely don’t want to. I’m talking about those things that represent only inconvenience to me, but the world to the other guy. You know, the painfully under-attended birthday party. The hospital visit during happy hour. The Shiva call for one of my ex’s uncles. In my humdrum life, the daily battle hasn’t been good versus evil. It’s hardly so epic. Most days, my real battle is doing good versus doing nothing.

In going to funerals, I’ve come to believe that while I wait to make a grand heroic gesture, I should just stick to the small inconveniences that let me share in life’s inevitable, occasional calamity.

On a cold April night three years ago, my father died a quiet death from cancer. His funeral was on a Wednesday, middle of the workweek. I had been numb for days when, for some reason, during the funeral, I turned and looked back at the folks in the church. The memory of it still takes my breath away. The most human, powerful and humbling thing I’ve ever seen was a church at 3:00 on a Wednesday full of inconvenienced people who believe in going to the funeral.

Source: Legacy Matters Blog

Martin v. Hacsi, 2005 WL 1842678 (Fla. 5th DCA August 5, 2005) (Trial Court Affirmed) Counsel for the defendant in a personal injury action filed a motion for enforcement of Florida Rule of Civil Procedure 1.260(a) based on the plaintiff’s failure to move to substitute a party defendant within 90 days after a suggestion of death was filed. Sumter County Circuit Court Judge Hale R. Stancil granted the motion and dismissed the lawsuit. On appeal, the 5th DCA affirmed, providing some very helpful guidance along the way for plaintiffs trying to figure out what to do when a defendant dies and no personal representative is appointed. Continue Reading Court says YES to dismissal of personal injury action based on plaintiff’s failure to file a timely motion to substitute a party defendant within 90 days after a suggestion of death was filed

Prof. Beyer’s Wills, Trusts & Estates Prof Blog reported here on what may eventually evolve into an interesting peak into the inner workings of the J. Paul Getty Trust, which runs the J. Paul Getty Museum, the Getty Research Institute, the Getty Conservation Institute, and the Getty Foundation. Bill Lockyer, the attorney general of California, has recently begun a detailed investigation into the finances of the trust.

Prof. Beyer summarized the current allegations of wrong doing as follows:

It seems that one or more of the trustees may have made inappropriate expenditures in breach of their duties such as first-class airline tickets, staying in lavish hotels, and renting high-end cars such as a Porsche Cayenne. There is also an allegation that the Trust sold a parcel of real property to a close friend of one of the trustees for $700,000 less than its appraised value.

Brunson v. McKay, 2005 WL 1677939 (Fla. 2d DCA July 20, 2005) (Trial Court Reversed)

Polk County Judge Ronald A. Herring was apparently convinced that the decedent’s adult children had a negligible interest, if any, in a $450,000 wrongful death action settled by the decedent’s surviving spouse (who was also the sole personal representative of his estate). As such, when the children sought to object to the terms of the settlement agreement under 2004->Ch0768->Section%2016#0768.16″>Florida’s Wrongful Death Act, the probate judge held that they lacked standing to do so and denied their request. On appeal, the surviving spouse argued that the probate judge’s order was a non-appealable, non-final order. The surviving spouse also argued on appeal that even if the surviving adult children had standing to object, the probate judge was not required to give them a hearing on their timely objections because 2004->Ch0768->Section%2025#0768.25″>F.S. § 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections.

Although the Second DCA clearly signaled that it was inclined to agree with the probate judge’s assessment of the “merits” of the adult children’s claims, on strict procedural grounds it ruled against the surviving spouse on all issues, holding as follows:

  • Citing Fla. R. App. P. 9.030(b)(1)(A) and 9.110(a)(2), the Second DCA ruled that the probate judge’s order approving the settlement was an appealable, final order.
  • Noting that the probate judge had confused the issue of “standing” with the question of the “merits” of the adult children’s claims, the Second DCA held that the adult children fell within the definition of “survivors” contained in 2004->Ch0768->Section%2018#0768.18″>F.S. § 768.18(1) of the Wrongful Death Act, and thus had standing as a matter of law to object to the terms of the settlement agreement.
  • Recognizing that 2004->Ch0768->Section%2025#0768.25″>F.S. § 768.25 does not specifically provide that objecting survivors are entitled to a hearing on their objections, the Second DCA nonetheless held that “routine practice under the Act requires one where there is an objection to a proposed settlement.”

The leading (and I think only) estate planning blog authored by a law professor is Professor Gerry W. Beyer’s Wills, Trusts & Estates Prof Blog. One of a series of blogs authored by U.S. law professors as part of the Law Professor Blogs Network, Prof. Beyer’s blog is an excellent resource for any professional working in the estate planning field. As such, it was flattering to note that the Florida Probate Litigation Blog was recently recognized here by Prof. Beyer. Thanks!

In this recent article on the SmartPros Website by Eva Lang, co-author of “The Best Websites for Financial Professionals,” estate planning was identified as one of the niche practice areas covered by bloggers that should be of most interest to accountants. The Florida Probate Litigation Blog was one of only three estate planning blogs mentioned. Thanks!