Showing posts from September, 2013

Levya v. Daniels

Levya v. Daniels , 2013 WL 5313600 (11th Cir. 2013) It is not uncommon for probate and trust cases to involve beneficiaries in one or more jurisdictions and a fiduciary in another.  Here, the personal representative was a citizen of Texas but was acting as personal representative of a Florida estate.  Two of the beneficiaries sued the personal representative, one from Florida and the other from Colorado.  The beneficiaries argued that the district court had diversity jurisdiction, since they were citizens of Florida and Colorado, and the personal representative was a citizen of Texas.   The Court held that since the personal representative was being sued in his fiduciary capacity rather than his personal capacity, he was deemed a Florida citizen for purposes of the lawsuit. Thus, the district court properly dismissed the complaint for lack of diversity jurisdiction. 

Lee v. Estate of Payne

Lee v. Estate of Payne , 148 So.3d 776, 2013 WL 5225200 (Fla. 2d DCA 2013) This case involved a decedent's fiance's attempt to admit the decedent's Colorado holographic will in Florida (where the decedent owned three homes).  The holographic will left the fiance one of the houses, plus $40,000 from the sale of the other two houses.  He left his father the remainder of the sale proceedings. The decedent's sister and Colorado personal representative filed a Petition for Administration in Florida, and alleged that the holographic will was not valid under F.S. 732.502(2), since it was not executed in compliance with F.S. 732.502(1).  She listed the decedent's minor daughter as the only beneficiary of the estate. The fiance sought to have the Florida court admit the holographic will to probate to give full faith and credit to the Colorado court.   F.S. 734.104 say that a foreign will that devises Florida real property and is admitted to probate in anothe

Searle v. Brent

Searle v. Brent , 2013 WL 5225218 (Fla. 2d DCA 2013) In guardianship proceedings, the court is required to consider whether a less restrictive alternative to guardianship exists before giving a ward's rights to a guardian.  Here, a daughter brought a guardianship proceeding to determine her mother's capacity, because she feared her mother was being taken advantage of by her caregivers.  The court held an evidentiary hearing and heard testimony, and then declared the mother to be incapacitated and appointed a guardian. In this appeal, the mother argued that the trial court erred by not considering less restrictive alternatives to guardianship.   Her daughter had filed a "Verified Statement by Interested Person Pursuant to F.S. 744.331(6)(f)," alleging that her mother's estate planning documents were invalid because of her mother's lack of capacity and/or undue influence.  In her verified statement, she included facts and finding by medical experts.  Th

In re Brinkman

In re Brinkman , FLWSUPP 2010BRIN The decedent died in 2007, leaving no will, and no assets other than a potential medical malpractice/wrongful death suit.  The surviving spouse, along with the decedent's two adult daughters, were his only heirs.  The surviving spouse was appointed personal representative of the estate, and she hired a law firm on a contingency basis to represent the estate in the wrongful death litigation.  She also hired a different law firm to represent her in the probate estate. The law firm representing the personal representative in the probate estate used a fee agreement which provided that they would be paid 3% of the estate.  It also provided that in cases where the personal representative pursues a claim or files a lawsuit, the attorneys fees would be calculated based on the net recovery of that lawsuit.  The wrongful death suit settled for $750,000, with a net recovery of approximately $434,000.  The law firm handling the probate estate claim