Rubin on Probate Litigation

Van Vechten v. Anyzeski , 157 So.3d 350 (Fla. 4th DCA), 2015 WL 248731 This appeal centered around two probate court orders- an order denying a trustee's motion for attorney's fees and an order compelling a distribution from the trust to the beneficiary's estate without offsetting the trustee's attorney's fees.  The trustee argued that she had both adequately plead her entitlement to attorney's fees and that the court erred in finding that the beneficiary's estate did not waive its objection to her alleged inadequate pleading of an entitlement to attorney's fees. The Court held that the beneficiary's estate did  waive its objection to the trustee's alleged inadequate pleading of her entitlement to attorney's fees.  It noted that generally, a claim for attorney's fees, whether based on statute or contract, must be pled.  However, where a party has notice  that its opponent claims entitlement to attorney's fees, and by its cond

Blechman v. Estate of Blechman , 160 So.3d 152 (Fla. 4th DCA 2015), 2015 WL 71730 This case dealt with whether a provision in an operating agreement of a limited liability company caused a decedent's membership interest to immediately vest in his children upon his death, such that his interest was not part of the probate estate.  The decedent attempted to devise a portion of his interest to his girlfriend in his will.  The Court held that since the attempted devise to the girlfriend violated the operating agreement, which only allowed the decedent to devise his interest to his immediate family members, upon his death the default provision of the operating agreement was activated, and his interest immediately vested in his children (as the takers under the default provision).  

Rene v. Sykes-Kennedy , 156 So.3d 518 (Fla. 5th DCA 2015), 2015 WL 24081 This case centered around whether a guardian of the property for a ward was able to amend that ward's revocable trust to appoint the guardian as trustee.  The named successor trustee, the ward's granddaughter, objected to the modification and argued that the guardianship court did not have the authority to enter into an order modifying the ward's revocable trust.  The granddaughter argued that because F.S. 736.0201 requires that a judicial proceeding regarding a trust be commenced by filing a complaint, the trial court's order in the guardianship proceeding modifying the trust was improper.  The Court disagreed.  It held that because F.S. 744.441 grants a guardian the ability to exercise any power as trustee that the ward might have exercised, and since here, the ward as trustee of her own trust had the ability to amend it, upon court approval the guardian had the same ability to amend the tru