Rubin on Probate Litigation

Saadeh v. Connors ,  166 So.3d 959  (Fla. 4th DCA 2015) In this portion of the Saadeh guardianship saga, the court was asked to determine whether an attorney representing a court-appointed guardian in a guardianship proceeding owes a duty to the ward under a third-party beneficiary theory.  The Court ultimately found that it did.  This case began with an emergency temporary guardianship proceeding, in which a court-appointed attorney was appointed to represent the alleged incapacitated person, a professional guardian was appointed, and that guardian had his own counsel.  As part of an "agreed" order to "settle" the guardianship, the court entered an ordered agreeing that the alleged incapacitated person would execute a trust instead of a plenary guardianship.  The agreed order did not settle the matter, unfortunately, and the litigation continued. Eventually, the alleged incapacitated person was found competent and brought suit against multiple players in th

Harrell v. Badger , 171 So.3d 764 (Fla. 5th DCA 2015), 2015 WL 3631639 This case highlights the lack of understanding many trust and estate practitioners have about what "decanting" actually means.  Despite the clear language of F.S. 736.04117, it seems  many are still confused about when decanting is appropriate, and about how to follow the simple rules provided in the statute. The decedent here left the remainder of her estate in trust for her son.  The trust required the trustee to distribute the net income to the son, and gave the trustee full discretion to make additional payments to or for the benefit of that son.  If assets remained at the son's death, the assets were to be distributed to the decedent's other two children. Following the decedent's death and a dispute among the children, the son's neighbor became the trustee of the trust.  He filed a petition to employ his wife as the realtor to sell the decedent's home- the sole asset o