Rubin on Probate Litigation

Fintak v. Fintak , 120 So.3d 177, 2013 WL 4483101 (Fla. 2d DCA 2013) This case involved a challenge to a decedent's self-settled irrevocable trust.  The trust was established during the decedent's life, was funded with the decedent's money and during his life, the decedent was the sole beneficiary.  On his death, the trust was to be divided into separate shares for the decedent's children, and made no provisions for the decedent's life.  The decedent and two of his sons were named as the initial trustees of the trust. Before he passed away,  the decedent sought to challenge the trust but unfortunately he died before the litigation was concluded, and his wife was substituted as the plaintiff as his personal representative.  The trial court granted summary judgment in favor of the trustees, because the decedent failed to renounce the benefits he received under the trust and because his wife took inconsistent positions in the probate proceeding and the tru...

Staum v. Rubano , 120 So.3d 109, 2013 WL 4081055 (Fla. 4th DCA 2013) In 2007, a decedent died while domiciled in New York, owing a debt to his nursing home in New York.  The nursing home filed a claim in both the domiciliary estate in New York, and subsequently in the ancillary estate here in Florida.  The nursing home also sought an accounting of the ancillary estate, and asked the court to transfer the ancillary estate's assets to the New York domiciliary estate. The personal representative sought to dismiss the nursing home's petition because its claim was untimely, as it was filed more than two years after the decedent's death.  The trial court agreed, and granted the motion to dismiss. On appeal, the Appellate Court agreed that the claim was untimely in Florida , but stressed that to the extent the trial court found that the claim against the New York  estate was untimely, it reversed.  Even though it said the claim was untimely, the Court then...

Gordon v. Kleinman , 120 So.3d 120,  2013 WL 4081027 (Fla. 4th DCA 2013): Florida Statutes § 733.109(1) provides that a proceeding to revoke probate of a will can be commenced by any interested person, including a beneficiary under a prior will.  The Probate Code defines an "interested person" as "any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved." Fla. Stat. § 731.201(23). To withstand a motion to dismiss, a petition for revocation of probate must do two things: (1) state the interest of the petitioner in the estate, and (2) present the facts constituting the grounds on which the revocation is demanded.  Fla. P. R. 5.270.  Petitioner here sought to revoke probate of a 2009 will.  She was a beneficiary of the decedent's 1983 will, but was not a beneficiary under any  subsequent  wills leading to the 2009 will.  Because she alleged that she was a beneficiary under the 1983 will, a...

McCormick v. Cox , 38 Fla. L. Weekly D1723b (Fla. 3d DCA 2103): Here, McCormick, an attorney, prepared two trusts which owned a single asset- 100 acres in Massachusetts. At the time of the decedent/settlor's death, the property operated as a nine-hole golf course.  Following the decedent's death, McCormick arranged for an appraisal of the property as of his date of death.  The appraiser reported a fair market value of the property, as an operating golf course, of $2,500,000.  McCormick's billing records indicated that almost immediately McCormick began work to convert the property from a golf course to residential property.  Yet the appraisal he used on the decedent's estate tax return did not reflect this "highest and best use" of the property, nor did McCormick communicate with the beneficiaries about the value. The property ultimately sold to the Town of Lynnfield for $12,000,000.  To avoid capital gain tax, McCormick structured a like-kind exchange un...