Rubin on Probate Litigation

Rudolph v. Rosecan ,  154 So.3d 381  (Fla. 4th DCA 2014), 2014 WL 6674749 This decision deals with who is considered an "interested person" in a guardianship proceeding for purposes of objecting to a guardian's annual accounting.  Here, a father was appointed plenary guardian of his adult autistic son's person and property.  A parenting plan was incorporated into the order appointing the father as guardian, and that parenting plan provided for the father and mother to have shared decision making authority and information sharing rights with regard to their son.  It expressly provided that the father had ultimate authority to make decisions about his son's person, but did not address financial decisions. The father voluntarily provided the mother with copies of his annual guardianship accountings over the years, but eventually sought a court order declaring that the mother was not an interested person for purposes of the annual accounting.  The tria...

Minassian v. Rachins , 152 So.3d 719 (Fla. 4th DCA 2014), 2014 WL 6775269 This case turned on the ability of a trust protector to modify a trust instrument to effectuate the settlor's intent.  At the settlor's death, the trust at issue provided for a family trust for the benefit of the settlor's wife.  Upon the wife's death, the family trust terminated and the trust referred to the establishment of separate shares for the decedent's children.   The children filed a complaint against the wife, as trustee of the family trust, for breach of trust.  She responded by moving to dismiss their complaint because they lacked standing, since they were not beneficiaries of the family trust.  She took the position that upon her death, the family trust terminated, and new trusts were created, and thus the children were not beneficiaries of the family trust during her life.  The trial court disagreed, finding that the use of the word "shares" prevented the court...

Katke v. Bersche , 161 So.3d 574 (Fla. 5th DCA 2014), 2014 WL 6488688 In this contested guardianship, there were two petitions filed to determine the alleged incapacitated person's incapacity.  First, the AIP's daughter filed her petition and was appointed as ETG.  She subsequently resigned as ETG and an unrelated professional guardian applied and was appointed as ETG.  The AIP filed an emergency motion to set aside the order appointing both her daughter and the professional guardian as her ETG, which the trial court granted based on lack of service and notice to the AIP. The AIP next filed an emergency motion to dismiss her daughter's petition.  The daughter withdrew her petition.  Before the trial court heard the motion to dismiss, the professional guardian filed her petition in the same case number as the  daughter.  The AIP filed a motion to strike that petition and sought a writ of prohibition after the court determined that it could proc...

White v. Guardianship of Lubin , 150 So.3d 1256 (Fla. 2d DCA 2014), 2014 WL 6497820 Under F.S. 744.108(1), a guardian is entitled to a reasonable fee for their services rendered on behalf of the ward.  A trial court deciding whether to grant fees has discretion, which "includes the ability to rely on common sense and experience to adjust the time claimed for common or routine tasks," and "the discretion to deduct time claimed by a guardian for noncore, delegable tasks that are better performed by others and to deduct excess time claimed due to the guardian's own inefficiency."   In re Guardianship of Shell , 978 So.2d 885, 889 (Fla. 2d DCA 2008). Here, the trial court disallowed a professional guardian's fees for time she spent reviewing and paying invoices for the ward.  The Court reversed, holding that since it is part of the guardian's duties to examine, approve and pay the ward's bills, she must be paid for the work she was appointed to ...

Stone v. Stone, 157 So.3d 295 (2014), 2014 WL 5834826 Another homestead decision!  This time, the Court made two interesting holdings concerning homestead, QPRTs and a spouse's ability to waive homestead rights: (1) When a homeowner transfers property to a QPRT pursuant to F.S. 732.4017, and the property reverts back to the homeowner's estate because the homeowner failed to survive the term of the QPRT, a subsequent disposition of the property pursuant to the homeowner's will is a devise, subject to Florida's constitutional homestead devise restrictions and (2) The joinder of the homeowner's spouse on a deed transferring homestead property will constitute a valid waiver of homestead rights even if the deed contains no waiver language. Like the last homestead decision, it is helpful to map out the transfers which occurred: (1)  Husband and wife own homestead property. (2)  Husband and wife execute warranty deed conveying property to themselves as tenants...

Corya v. Sanders , 155 So.3d 1279 (Fla. 4th DCA 2014), 2014 WL 5617045 This case centered around three trust accounting issues: (1) whether the affirmative defense of statutory laches limited the years a beneficiary was entitled to an annual accounting from certain trusts, (2) the interpretation of statutory provisions deciding the starting date for the annual accountings and (3) the interpretation of case law deciding the starting date for the annual accountings. The case deals with four irrevocable trusts which were in effect for decades before one of their beneficiaries filed a lawsuit against the trustees.  Before the lawsuit was filed, the trustees had never prepared accountings for any of the trusts. The trustees attempted to argue that there was no duty to account annually prior to July 1, 2007, when F.S. 736.0813 was passed.  The Court found that the prior statute, F.S. 737.303 also created a duty to account for an irrevocable trust, based on the language ...

Kozinski v. Stabenow , 152 So.3d 650 (2014), 2014 WL 5611595 This case dealt with the issue of whether a petition to review a personal representative's compensation and to enter such surcharge or disgorgement orders as were warranted under F.S. 733.6175 (proceedings for review of employment of agents and compensation of personal representatives and employees of the estate) and F.S. 736.0206 (proceedings for review of employment of agents and review of compensation of trustee and employees of trust) was an adversary proceeding which required formal notice in order to obtain personal jurisdiction over the personal representative. Appellees argued that a petition for review of fees under F.S. 733.6175 or 736.0206 seeking an immediate refund of money to the probate or trust estate does not initiate an adversary proceeding subject to the notice requirements.   The Court considered whether such a proceeding is considered an adversary proceeding under the Florida Probate Rules, a...

Lyons v. Lyons  155 So.3d 1179 (2014), 2014 WL 5460621 To understand this decision, I think it makes sense to first lie out the series of quit claim deeds that lead to the litigation: (1)  Husband and wife quit claim their homestead to wife alone. (2) Wife quitclaims the residence to a QPRT,  but husband does not sign quit claim deed. (3) Wife quit claims the residence to herself and her daughter. The trustees of the QPRT moved to set aside conveyance (3) on the grounds that the wife did not own the residence when she attempted to quit claim the residence to herself and her daughter.  The wife responded by arguing that conveyance (1) was void, since it was signed only by her and not her husband.  The trial court agreed with the wife. The Appellate Court reversed the trial court's decision, focusing on the fact that article X, section 4(c) of the Florida Constitution focuses on the conduct of the owner spouse (wife) and provides...

Kritchman v. Wolk , 152 So.3d 628 (Fla. 3d DCA 2014) The decedent created a revocable trust, of which she was co-Trustee during her life with Wells Fargo.  During her life, she had the power to direct the payment of principal from her trust.  She used the trust to pay her cousin's grandson Hunter's private school tuition, and paid for his tuition plus room and board at Yale during his freshman and sophomore years.  In April of Hunter's sophomore year at Yale, the decedent wrote a letter to Wells Fargo directing them to arrange to pay for the costs of his junior and senior year at Yale as well. Consistent with her letter, Wells paid Hunter's tuition for the fall semester of his junior year, but failed to make arrangements for the payment of his costs beyond that semester.  Wells did not pay for Hunter's tuition, room or board for his last three semesters at Yale. The decedent passed away during Hunter's fall semester of his junior year.  Wells assure...

Brown v. Brown , 39 Fla. L. Weekly D.1949a In this case, the circuit court relied on the report of a magistrate regarding the ownership of certain joint and pay-on-death ("POD") accounts of a decedent.  The circuit court held that both the joint and POD accounts were includable in the decedent's estate, to be distributed pursuant to the terms of the will.  The Appellate Court affirmed the order as to the joint accounts, but reversed as to the POD accounts, pointing to the differing statutes governing the ownership of these types of accounts in making its distinction.  The Court held that the magistrate was correct to rely on F.S. 655.79 as to the joint accounts, and upheld the magistrate's holding that F.S. 655.79 creates a presumption that title to a joint deposit account vests in the surviving owners, but that presumption may be overcome with clear and convincing proof of contrary intent.  Since the magistrate found that there was clear and convincing evid...

Grasso v. Grasso ,  143 So.3d 1050  (Fla. 2d DCA 2014), 2014 WL 3613192 Just a short and sweet update on this Friday morning.  An additional decision has come down in the Grasso v. Grasso matter.  The Court reversed a cost/fee order entered by the trial court which taxed costs against cotrustees of a trust individually, where the complaint asserted no claims against the cotrustees in their individual capacities (even though complaint's caption did name them as individuals).

Friscia v. Friscia , 161 So.3d 513 (Fla. 2d DCA 2014), 2014 WL 4212689 Again we have a probate case involving the intersection between probate and family law, this time with the added twist of Florida homestead law.  This case involved a determination of whether a decedent's interest in a home was homestead based upon the provisions of the decedent's marital settlement agreement with his first wife.   The decedent's marital settlement agreement gave his first wife exclusive use and possession of their marital home until their youngest child graduated from high school.  At that time, the decedent and his first wife were required to sell the marital home and split the proceeds.  The decedent died before his youngest son graduated from high school, and thus the probate court held that the decedent owned the home as a tenant in common with his first wife and his interest retained its homestead status, relying on the Third Districts decision in Beltran v. Kalb , ...

Jaffe v. Jaffe , 147 So.3d 578 (Fla. 3d DCA 2014), 2014 WL 4212741 This guardianship case dealt with, among other things, the award of attorney's fees and costs in a guardianship proceeding.  The trial court, using the criteria detailed in F.S. 744.108(2)(a)-(i), made a determination of a reasonable hourly attorney's fee and found it appropriate to reduce the attorney's fees to a specified amount, plus costs, which it found reasonable given the circumstances.  It reserved jurisdiction to tax the costs of the attorney's expert witness who testified on the issue of attorney's fees. The Court found that the attorney had put on competent substantial evidence to justify her attorney's fees.  Not only did she present the testimony of an expert regarding the reasonableness of her fees, but she also presented her own sworn testimony regarding her hours and costs spent on the guardianship matter.  The Court found that the trial court's reduction in attorney...

Souder v. Malone , --- So.3d --- (Fla. 5th DCA 2014), 2014 WL 3756356 Well it looks like we have another district weighing in on the debate over the timeliness of a creditor's claim filed by a known or reasonably ascertainable creditor after  the three-month period following publication of the notice to creditors.  Back in October of 2013, the 4th DCA in Golden v. Jones  held that where a known or reasonably ascertainable creditor is not served with a copy of the notice to creditors, that creditor's claim is timely if filed within two years of the decedent's death.  The Golden  decision is in conflict with the 1st and 2nd DCAs'  Lubee  and Morgenthau  decisions, which held that even a reasonably ascertainable creditor who was not served with a notice to creditors is required to file a claim within the three-month publication period. The 5th DCA has now taken a stance of the issue, siding with the 1st and 2nd DCAs.  Here, a credit...

Wilson v. Wilson , --- So.3d --- (Fla. 4th DCA 2014), 2014 WL 2101226 This case involved a dispute between two parents over the disposition of their deceased son's ashes.  They agreed to have their son cremated, but disagreed about where to bury the ashes.  The father argued that the ashes were "property" under F.S. 731.201(32), and thus should be subject to partition among the decedent's heirs.  The mother was opposed to having the ashes divided for religious reasons.  The trial court ultimately found that the ashes were not "property" subject to partition, and gave the parents 30 days to decide how to dispose of the ashes. On appeal, the Court affirmed the trial court's holding that the ashes were not property under F.S. 731.201(32).  In doing so, the Court reviewed how courts have treated ashes and deceased bodies over time.  Blackstone wrote that bodies and ashes were not the property of an heir.  English case law continued to express this v...

Blechman v. Dely , --- So.3d --- (2014), 2014 WL 1908813 Robert Blechman, as personal representative of his father's estate, was found in contempt and was removed as personal representative.  He appealed the trial court's decision, arguing that the court violated his due process rights by holding him in contempt without complying with Florida Rule of Criminal Procedure 3.840 and by removing him as personal representative without  complying with Florida Probate Rule 5.440. The decedent left to appellee a devise of $5,000 per month to pay for the maintenance of a residence.  When the personal representative failed to make those payments, she filed a motion to compel payment, and the trial court granted that motion. requiring him to make the payments to the appellee, as well as fund the residuary bequests in the decedent's will.  Before the trial court entered its order, the personal representative explained that the estate's expenses and limited liquidity left...

Bookman v. Davidson , --- So.3d --- (2014), 2014 WL 1772707 This case centered around the rights of a successor personal representative to (1) sue the attorney who represented the original personal representative for malpractice and (2) seek disgorgement of fees paid to that attorney in a separate civil case.  For purposes of discussion, the initial personal representative will be referred to as PR1 and her successor will be referred to as PR2.   PR1 served as personal representative of the estate for approximately 3 years. During those three years, she engaged the legal services of an attorney.  In total, the attorney received $195,000 in fees from the estate.   When PR2 was appointed as successor personal representative, he filed suit against both PR1 and her attorney, alleging that PR1, with her attorney's guidance, had improperly disclaimed or transferred assets out of the estate that could have been used to pay its creditors.  PR1 filed her aff...

Jeff Baskies and I recently wrote about the Aldrich v. Bastile decision for Leimberg and the Wealth Strategies Journal.  Check it out: Baskies and Rubin: Do It Yourself Will Does It Again

Estate of Maher v. Iglikova , -- So.2d -- (Fla. 3d DCA 2014), 2014 WL 1386660 This case centered around whether a minor child was a pretermitted child of the decedent. The decedent had two children during his lifetime, but he did not become aware of the existence of his second child until that child was approximately three years old (after he executed his last will).  After becoming aware of the child's existence, the paternity of that child was confirmed.  Once paternity was established, the decedent began making child support payments and continued to make those payments until his death. Upon his death, the child's mother filed her Petition to Determine Status as Pretermitted Child, Challenge Construction of Will and Determine Beneficiaries.  The mother of the decedent's other child filed a motion for summary judgment, arguing that the child was not a pretermitted child under F.S. 732.702 because (1) the child was not omitted from the will since she would t...

Aldrich v. Basile , --- So.3d --- (Fla. 2014), 2014 WL 1250073 The issues in this case stem from an "E-Z Legal Form" executed by the decedent, which apparently neglected to include a residuary clause.  Thus, the decedent left a will which simply devised a list of specifically described property to her sister if she survived her, and if she did not, left that property to her brother.  When the sister predeceased the decedent, she left the decedent additional property which was not included in that list.  This meant that when the decedent ultimately died, she died owning property that was not listed in her will.  While she did draft a document, entitled "Just a Note," which stated that all of her "worldly possessions" should pass to her brother, this document was not properly executed and was therefore not an enforceable testamentary instrument under the Florida Probate Code. The brother argued that he was entitled to all of the property, including ...

Campbell v. Chitty , 131 So.3d 9 (Fla. 1st DCA 2012) This case involved an appeal of a trial court order imposing monetary sanctions on a trustee of several trusts for breach of fiduciary duty.  The Appellate Court remanded for two reasons: (1) The trusts had an indemnification clause which indemnified the trustee unless her actions were negligent and the trial court did not make a finding of negligence, and (2) The judgments against the trustee required her to both repay the trusts and  have her share of the trusts be set off by the same amount, which was essentially double recovery.

Romano v. Olshen , 153 So.2d 912 (2014), 2014 WL 940700 The Appellate Court described this case as one "at the intersection where guardianship law meets the law concerning forms of ownership of joint bank or brokerage accounts."  It involved the ability of a guardian of the property and the attorney for guardian to recover fees from an account owned by the ward and his wife as joint tenants with rights of survivorship. The ward and his wife were at odds when he was declared incompetent, and their divorce proceedings were put on hold during the guardianship.  Eventually, the ward died while still married to his wife.  The main asset of the guardianship estate was an account titled in the names of the husband and the wife, as joint tenants with rights of survivorship.  Even though the guardianship court authorized the fees of the guardian and his attorney, other than the account held with the wife, the guardianship estate did not have enough liquid assets to p...

Bivins v. Rogers , 147 So.3d 549 (2014), 2014 WL 940659 In this decision, the Appellate Court affirmed the trial court's determination that a ward's son lacked standing to petition the guardianship court for a change of residence.  F.S. 744.2025(1) requires a guardian to obtain court approval before removing a ward from the state or to another non-adjacent county.  It does not, however, authorize anyone other than the guardian to apply for court approval to change the residence of the ward. The son argued that he should have standing to bring his petition since he is an "interested person" in the guardianship.  He cited the decision in Hayes v. Guardianship of Thompson , which stated "that if the person is entitled to notice or authorized to file an objection under the Florida Guardianship Law or the Florida Probate Rules, that person has standing to participate in the guardianship proceeding." Hayes v. Guardianship of Thompson , 952 So.2d 498, 506 ...

In re Guardianship of Rawl , __ So.3d __, 2014 WL 889050 An attorney for a ward, noticing internal inconsistencies in the reports of the examining committee, took it upon himself to contact one of the committee members and ask her to reassess the ward.  He then attempted to file the reassessment with the guardianship court, but the guardianship court said it was "inappropriate" for him to have contacted an examining committee member, and similarly it was "inappropriate" for him to file the reassessment.  At the same time, however, the court appointed a second examining committee to evaluate the ward, because it was troubled by the fact that the reassessment contained different findings than the original assessment, and because it also noted the inconsistencies in the original reports. The second examining committee found the ward to be completely incapacitated and appointed guardians of the person and property for the ward.  The attorney then filed for his ...

Peck v. Peck , 133 So.3d 587 (Fla. 2d DCA 2014) When attempting to modify or terminate an irrevocable trust, most trust attorneys will first run through the litany of available statutory methods of modification provided to us in the Florida Trust Code (for a review, click  here ).  If none of the statutory methods work in a given situation, most attorneys will rely on the common law to modify an irrevocable trust.   The Court in this case upheld a lower court decision allowing modification of an irrevocable trust under the common law.  The trust being modified came about because the settlor's father's will devised the residuary of his estate to two trusts established by his children for their own benefit.  The daughter's trust was settled by the daughter, was irrevocable and named the daughter and her brother as co-trustees. Twenty years after the trust was established, the daughter filed a petition to terminate the trust and her children agreed to the t...

Shakespeare v. Prince , 129 So.3d 412 (Fla. 2d DCA 2013) This opinion deals with the entry of a judgment for monetary damages on two counts: (1) breach of an antenuptial agreement, and (2) tortious interference with an expectancy.  The Court held that neither count was supported by record evidence based on the following facts: The decedent and her husband entered into an antenuptial agreement when they married in order to maintain their assets separately.  When they purchased a home, they used a portion of the decedent's premarital assets, and the home was transferred into her individual name.  When she created her revocable trust, her husband waived his homestead rights and the home was transferred into the trust.  Years later, the husband prepared a quit claim deed transferring the house from the trust to the couple as tenants by the entireties, and the wife executed the deed.  The decedent's son alleged that his mother did not understand the deed whe...

Kosheniva v.  Buvens , --- So.3d --- (Fla. 1st DCA 2014), 2014 WL 304889 At issue in this case was the proper standard for reviewing (and possibly overriding) a ward's designation of a pre-need guardian.  Here, the ward named her husband as her preneed guardian at a time when her capacity to do so was questionable.  The trial court initially named her sibligns as her emergency temporary guardians, and ultimately appointed them as her plenary co-guardians instead of her husband.  The Appellate Court had two distinct problems with the trial court's analysis: (1) Validity of Declaration of Preneed Guardian After hearing evidence from her lawyer, who said the ward was competent when she executed the Designation naming her husband as her preneed guardian, and conflicting evidence from doctors regarding her ability to execute such a document, the court held that it "seriously questioned" her ability to know what she was doing when she executed the Designat...