Posts

Demircan v. Mikhaylov

Demircan v. Mikhaylov, --- So. 3d -- (Fla. 3d DCA 2020)
This Third DCA case addresses several elements of Florida trust law, with a focus on the ability to modify an irrevocable trust under the Florida common law. It involved an irrevocable trust established by the settlor for the benefit of his children, which initially appointed an independent trustee and a third party with trustee removal powers. When disagreements arose between the settlor and the beneficiaries against the trustee and the third party, litigation ensued. Prior to the final hearing, the third party had appointed a new trustee to succeed the independent trustee. At the final hearing, the trial court allowed a modification of the trust noting the consent of the settlor and all beneficiaries of the trust.
The Court first considered whether the new trustee had standing to appeal the modification of the trust.  It found that the new trustee had a sufficient stake in the controversy to seek judicial resolution of the contro…

Lopez v. Hernandez

Lopez v. Hernandez, 291 So.3d 1007This decision deals with the ability of the probate court to impose personal liability for attorney’s fees and costs. Here, the court entered an order addressing fees and costs sought by the attorney for one of two feuding brothers. The attorney represented one of the brothers as personal representative of their father’s estate. The probate court found that the brother had engaged in frivolous litigation on the estate’s behalf, awarded his attorney fees and costs, divided responsibility for those fees between the estate and the brother, personally, and imposed a charging lien on the brother’s portion of the estate.The Court considered whether the probate court erred in charging the attorney’s fees against the brother’s portion of the estate and imposing the charging lien. It held that while F.S. 733.106(4) allows probate courts to direct the payment of attorney’s fees out of a beneficiary’s portion of an estate, it does not allow the probate court to …

Lefkowitz v. Schwartz

Lefkowitz v. Schwartz, --- So.3d --- (Fla. 5th DCA 2020)


This case revisits the applicability of the "trust exception" to creditors claims in a probate proceeding. Here, the creditor's claim was based upon money lent by the creditor to the decedent, which the decedent promised to repay upon the sale of certain real property. The real property was apparently sold prior to the decedent's death but the money was not repaid. Upon the decedent's death, the creditor filed a creditor's claim and in her independent action, she asked the trial court to find that the sale proceeds were held in a constructive trust for her benefit. On appeal, the Court reversed, holding that the "trust exception" did not apply, and that the creditor's claim was an ordinary creditor's claim and the proceeds of the sale were assets of the estate subject to Florida statutes governing the priority of claims.
The "trust exception" was based on the idea that assets h…

Barrett v. Kapoor

Barrett v. Kapoor, 278 So.3d 876 (Fla 3d DCA 2019)
In this decision, the Court addressed the tension between the vesting of bequests and the settlor's intent. Here, the grantor's trust provided that upon his death, one of his daughters would have one year within which to purchase a piece of property, and upon the sale of the property, provided for the sale proceeds to be distributed to his other two children. It also stated that if one of the children died before receiving his or her share in full, the balance of their share should be distributed per stirpes to that child's then living descendants, or if none, to the grantor's living children.
As these things go, one of the children entitled to receive half of the sale proceeds died after the grantor, but before receiving her share of the trust. She had no children. The deceased daughter's estate argued that her right to the proceeds vested at the grantor's death and should therefore pass to her estate. The Court…

Lovest v. Mangiero

Lovest v. Mangiero, 279 So.3d 205 (Fla. 3d. DCA 2019)
This decision illustrates some of the difficulties that arise when guardianship and estate proceedings intersect. Here, after the ward died, the guardian and then personal representative sought to pay some of the ward's creditors using artwork done by the decedent, an artist. One of the beneficiaries of the ward's estate objected, arguing that the guardianship court's orders violated her due process rights, the guardianship court lacked subject matter jurisdiction and the guardian should have provided proper accountings. 
The Court held that the beneficiary's due process rights were not violated because notice  was sent to her of the petition to pay the debts with the artwork by certified mail (even though it was returned as undeliverable). It noted that FPR 5.060(a) allows an interested person who desires notice to file a written request for notice of further proceedings, which then allows the trial court the opportu…

Reid v. Guardianship of Reid

Reid v. Guardianship of Reid, 277 So.3d 1053 (Fla. 4th DCA 2019)
It is well established that under Florida law, the most important aspect of guardianship law is the protection of the ward. This basic philosophy must be taken into consideration in all aspects of guardianship administration, including awards of attorney's fees. Accordingly, F.S. 744.108(2) provides the criteria that a court must consider in determining reasonable attorneys' fees in guardianship proceedings. The list of criteria includes the time and labor required, the novelty and difficulty of the questions involved and the skill required, the fee customarily charged, and the nature and value of the incapacitated person's property.
Here, in determining a reasonable award of attorney's fees for an appellate lawyer in a guardianship proceeding, the trial court did not consider the nature and value of the guardianship assets (there were none). The Court held that by approving the reasonableness of the fees, …

Cantero v. Estate of Caswell

Cantero v. Estate of Caswell, --- So.3d --- (Fla. 3d DCA 2019)
This decision involves an appeal of a trial court's order striking a claim as untimely. The claimant argued that his claim was timely because he was a reasonably ascertainable creditor who was not served with notice. The Court disagreed.
The claimant argued that the estate should have known about his claim based on several conversations he had with the personal representative and the personal representative's attorneys. He was claiming an ownership interest in the decedent's real property because he paid for the property and paid the mortgage premiums over 20 years prior to the decedent's death for a 5 year period of time while he has in a relationship with the decedent. In his calls to the personal representative, the claimant apparently only mentioned that he had left some car parts in the garage and never said anything about an ownership interest in the property. He argued that he inquired, "What was …