Rubin on Probate Litigation

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...