Rubin on Probate Litigation

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...