Rubin on Probate Litigation

Parker v. Parker , 185 So.3d 616 (Fla. 4th DCA 2016) This decision deals with whether an estate is an indispensable party in a proceeding to recover properties transferred by the decedent prior to his death.  The beneficiaries of the estate argued that the estate was an indispensable party pursuant to F.S. 733.607, which provides, generally, that a personal representative has the right to take control of the decedent's property.  The Court held that since properties transferred during the decedent's life are no longer the decedent's  property, the estate does not need to be joined as a party to a suit to set aside those lifetime transfers.

Oreal v. Steven Kwartin, P.A. , 189 So.3d 964 (Fla. 4th DCA 2016) This appeal deals with a claimant's attempt to collect interest due the claimant on a promissory note.  The claimant filed a timely statement of claim in the estate, seeking payment due on a note plus interest.  The probate court disallowed the claimant's request for default interest under the terms of the note and imposed a setoff to lower the amount of default interest because the court believed that the claimant should have filed a motion to compel payment earlier than it did. The Court reversed, holding that pursuant to F.S. 733.705(9), which provides that "[i]nterest shall be paid by the personal representative on written obligations of the decedent providing for the payment of interest," the claimant was entitled to the full default interest under the terms of the note.  It found that the probate court had erred by imposing a setoff, because a court cannot rewrite a contract to relief a p

Vigliani v. Bank of America , 189 So.3d 214 (Fla.2d DCA 2016) This decision is an interesting one because it involves both a review of the uncertainty faced by practitioners in 2009 regarding the future of the estate tax exemption, and somewhat strange language in a trust meant to deal with that uncertainty.   Here, the trial court was asked to consider whether a decedent's revocable trust required a Family Trust to be funded with $3.5 million (the exemption amount in 2009), $5 million (the exemption amount in 2010), or some other amount.  The trustees filed for declaratory relief to obtain a judicial determination of this issue, and the trial court held that the Family Trust should be funded with $3.5 million. The Appellate Court disagreed with the trial court's analysis.  First, it felt that the actual division and funding of the trusts were the responsibility of the trustee of the trust under the terms of the trust and F.S. § 736.0801. The Court also went on to