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 play...

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 ass...

Simmons v. Estate of Baranowitz , --- So.3d --- (Fla. 4th DCA 2015), 2015 WL 2089071 This case dealt with whether a court could order disgorgement of excessive fees from a personal representative's counsel individually, where the personal representative's counsel was not served by with formal notice.  The Court relied on its holding in Kozinski v. Stabenow (summary here ), where the court found that "the remedy of 'surcharge'...constituted an adversary proceeding requiring service by formal notice under the Florida Probate Rules in order for the probate court to have personal jurisdiction over her individually...." F.S. 733.6175 gives the court authority to review compensation paid to a personal representative's employee, and if it finds that excessive compensation was paid, to order that employee to make appropriate refunds.  But there is a distinction between the court's authority to act and the way the court notifies the employee that a...

Megiel-Rollo v. Megiel , 162 So.3d 1088 (Fla. 2d DCA 2015) This case involved a dispute about whether a trust was subject to reformation under F.S. 736.0415.  The decedent died leaving behind three children.  Her will left the residue of her estate in equal shares to all three of her children.  Several years after executing the will, the decedent executed a revocable trust, and she transferred her home into that trust.  The trust provided that it was to terminate upon the death of the decedent, and the property should be distributed to the beneficiaries in accordance with their respective interests as set forth on an attached Schedule of Beneficiaries.  The only problem: the draftsman of the trust forgot to prepare the Schedule of Beneficiaries. One of the daughters filed a complaint against her siblings, arguing that the trust was void for lack of beneficiaries, and, therefore, the residence passed to the three siblings pursuant to the terms of the wil...

Pitcher v. Waldo , --- So.3d ---, 2015 WL 1334341 This case involved a dispute between the parents of a deceased child over a jury award to the survivors in a wrongful death suit.  The jury awarded the mother $1,000,000 and the father $100,000, and the father claimed that since the mother and the father had an agreement to split the award 60/40, he was entitled to relief pursuant to F.S. 733.815, which allows interested persons to agree to alter their shares of property from an estate .  The Court held that since the survivor's claims are for the survivor's sole benefit, they do not become part of the estate, and thus the probate court had no jurisdiction to adjudicate the dispute.

Martinez v. Guardianship of Smith , --- So.3d --- (Fla. 4th DCA 2015), 2015 WL 1238445 In this case, a wife appealed the order appointing a professional guardian for her husband, since the trial court failed to apply the statutory presumption of F.S. 744.3045 where her husband had given her power of attorney and appointed her as his preneed guardian and health care surrogate.  The Court held that because the trial court failed to make a specific finding that the appointment of the wife was contrary to the best interests of the ward, the order appointing professional guardian was reversed. In its decision, the Court detailed the various ways the professional guardian and the wife were at odds about the ward's care.  Particularly, their disputes centered around the ward's residence and the fact that he had been moved from institution to institution.  The Court ultimately held that the wife's conflicts with the institutions and her difficultly communicating with the...

Ciungu v. Bulea , 162 So.3d 290 (Fla. 1st DCA 2015), 40 Fla.L.Weekly D.689c The decedent's here, a husband and wife, died intestate owning property in both Florida and Romania. One of their children filed Petitions for Administration in both estates and was appointed as personal representative.  He filed probate inventories and served them on his sister and no objections were filed. The trial court entered an order requiring the personal representative to hold his sister's share of the Estate assets in a restricted account until the sister had fulfilled her obligation to ensure legal title to the Romanian properties was properly vested in the persons entitled to receive those properties under Romanian law. The sister filed a motion to vacate that order, asserting that the probate court lacked subject matter jurisdiction over the Romanian property.  At the hearing on the Motion to Vacate, the trial court heard several other issues and ultimately made the following decis...