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Court Stops Beneficiaries From Commuting Trust

By Jenna G. Rubin and Charles D. Rubin

EXECUTIVE SUMMARY: An income beneficiary of a trust and the trust remaindermen were unable to successfully commute and terminate a trust.
FACTS: A revocable trust became irrevocable at the death of the settlor. The settlor provided for an income interest for her son for his life, with the remainder to pass to three educational institutions at the son’s later death.
The son and the remaindermen entered into an agreement to terminate the trust, and divide the $3 million of trust assets between them based on their actuarial interests. The trustee of the trust was not a party to the agreement, and did not agree to the early termination.
The son filed a complaint against the trustee to terminate the trust in accordance with the agreement, citing Fla.Stats. §§736.04113 and 736.04115. Fla.Stats. §736.04113 allows for judicial modification of an irrevocable trust on petition of a trustee or a qualified beneficiary if: (a) the purposes of the trust have b…

Webb v. Blue

Webb v. Blue, --- So.3d --- (Fla. 1st DCA 2018)

In this 1st DCA decision, we get another refresher on some aspects of Florida's homestead law. Namely, this decision gets into the issue of how to validly devise homestead property to a non-heir, when the decedent is survived by heirs (but not a spouse or minor children).
The decedent here was survived by no spouse and no minor children. He devised his "entire estate" to a friend, but did not specifically reference his homestead as part of the entire estate. Relatives of the decedent filed a Petition to Determine Homestead Status, asserting that the property was the decedent's homestead and descended to the decedent's heirs since there was no specific intent in the will to pass the homestead property to the friend. The trial court denied the Petition, finding that because the decedent was not survived by a spouse or minor child, he could freely devise his homestead to anyone and the will was clear about his intent.

Lyublanovits v. Zebny

Lyublanovits v. Zebny, --- So.3d --- (Fla. 2nd DCA 2018)

This decision construes the language in F.S. 744.312 regarding the appointment of an emergency temporary guardian who is a professional guardian as the permanent guardian of a ward. The Court construed the language of the statute and the findings of fact in the trial court order, and found that the requirements had been met for this emergency temporary guardian to stay on as permanent guardian for the ward.
Specifically, F.S. 744.312(4)(b) provides as follows:
"An emergency temporary guardian who is a professional guardian may not be appointed as permanent guardian of a ward unless one of the next of kin of the alleged incapacitated person or the ward requests that the professional guardian be appointed as permanent guardian. The court may waive the limitations of this paragraph if the special requirements of the guardianship demand that the court appoint a guardian because he or she has special talent or specific prior exp…

Dejesus v. A.M.J.R.K., Corp.

Dejesus v. A.M.J.R.K., Corp., --- So.3d --- (Fla. 2d DCA 2018)
In this 2nd DCA case, the Court considered whether the homestead exemption on real property could be held by a corporation.  It held that the homestead exemption does not inure to a person residing on property, where that property is solely owned by a corporation.
As a refresher, Article X, section 4(a) of the Florida Constitution, provides as follows:
"There shall be exempt from forced sale under process of any court, and no judgment, decree[,] or execution shall be a lien thereon, ... property owned by a natural person." (emphasis added)
The Court held that the plain language of the Florida Constitution requires that the owner of property be a natural person in order to claim the homestead exemption.  The Court disagreed with the trial court's position that homestead status attached to the property because a natural person resided there. The trial court relied on Callava v.  Feinberg, 864 So.2d 429 (Fla. 3d DCA…

Schlesinger v. Jacob

Schlesinger v. Jacob, 240 So.3d 75 (Fla. 3d DCA 2018)

In this decision, the 3rd DCA adopts the requirement that an attorney's services must benefit a ward or the ward's estate in order to be entitled to fees. The Court focuses on the different standards under the statutes to determine entitlement to fees, versus the standard to determine amount and reasonableness of fees
On one hand, F.S. 744.108(1) governs entitlement to fees, and provides:
A guardian, or an attorney who has rendered services to the ward or to the guardian on the ward's behalf, is entitled to a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward.
Case law construing this section has uniformly added in the requirement that the services must benefit the ward or the ward's estate, despite the fact that the word "benefit" appears nowhere in the statute.
On the other hand, F.S. 744.108(2) deals with the amount and reasonableness of fees once it is det…

Prewitt v. Kimmons

Prewitt v. Kimmons, 237 So.3d 1158 (Fla. 5th DCA 2018)
This decision rested on whether sufficient questions of fact were raised to preclude summary judgment regarding claims of breaches of fiduciary duty.  The beneficiary of an irrevocable trust sued her sister, one of the successor trustees, for breach of fiduciary duty, alleging that she had failed to distribute funds as provided for by the trust documents, failed to seek the return of $10,000 of trust assets wrongly retained by another of the successor trustees, and failed to return monies that she had purportedly misappropriated from the trust account prior to the settlor's death.  The Court held that questions of fact remained over the breach of fiduciary duty claim, where: (1) there was record evidence that the trustee had paid lease payments on a car that was ultimately conveyed to a beneficiary in contravention of the terms of the trust, (2) there was record evidence that the other successor trustee had received $10,000 fro…

Smith v. Smith

Smith v. Smith, 232 So.3d 509 (Fla. 1st DCA 2017)
This decision involves the question of whether a prenuptial agreement precluded the surviving spouse from seeking the removal of the co-personal representatives of the decedent spouse's estate.  The prenuptial agreement in question provided that the surviving spouse would "refrain from any action or proceeding to void or nullify to any extent the terms of any last will and testament or trust or testamentary substitute."  
The co-personal representatives argued that the above provision prevented the surviving spouse from seeking their removal. The spouse argued that the provision did not affect her rights she later acquired through subsequently executed estate planning documents, and that the waiver provisions did not extend to the interest she acquired in her husband's estate when she was named an income beneficiary of the marital trust created under the terms of his last will executed after the marital agreement.
The Co…