Rubin on Probate Litigation

Blackburn v. Boulis , 184 So.2d 565 (Fla. 4th DCA 2016) This appeal centers around two distinct issues with regard to a surviving spouse's elective share: (1) first, whether a court can direct the payment of interest on a portion of the elective share amount, and (2) whether attorney's fees can be charged against the elective share. Interest on elective share: The probate court ordered that the spouse was entitled to interest at the statutory interest rate on forty percent of the elective share amount, from the date of the order determining the value of the spouse's minimum elective share.  The Court held that it would be inequitable for the spouse to be denied the opportunity to a reasonable return on her elective share, and that it would likewise be inequitable for the spouse to enjoy a windfall of interest on a portion of the value of the elective share, which due to taxes, she would not be entitled to retain (since the elective share must bear its own taxes...

Dowdy v. Dowdy , 182 So.3d 807 (Fla.2d DCA 2016) This decision centered around whether the construction of a trust could support the issuance of a temporary injunction directing the trustee to deposit proceeds of a property sale into the court registry pending the court's decision on the construction petition.   A husband and wife established a family trust which owned real estate.  Each had children from previous marriages.  Following the husband's death, the wife amended the trust to remove her husband's children as successor trustees and beneficiaries.  She then sold the trust property.  One of the husband's sons learned of the sale and filed a petition for construction of the original trust and a temporary injunction to compel preservation of the sale proceeds.   To obtain a temporary injunction, the moving party must demonstrate (1) that he will suffer irreparable harm without an injunction, (2) that he has no adequate remedy at ...

Robert Rauschenberg Foundation v. Grutman , --- So.2d --- (Fla. 2d DCA 2016) In this decision, the Court considered which methodology to apply when calculating trustee fees.  The beneficiary of the trust, a charitable foundation, argued that the trustee fees should be calculated using the lodestar method set forth in Florida Patient's Compensation Fund v. Rowe , 472 So.2d 1145.  The trustees argued that their fees should be calculated based on the factors set forth in West Coast Hospital Ass'n v. Florida National Bank of Jacksonville, 100 So.2d 807 (Fla. 1958).   The Court reviewed the history of the two methods and ultimately determined that the West Coast  factors should be used to calculate trustee fees, not the lodestar method described in Lowe.    As a review, the West Coast factors include: the amount of capital and income received and disbursed by the trustee; the wages or salary customarily granted to agents or servants for performing l...

In re Guardianship of Hawley , 188 So.2d 882 (Fla. 2d DCA 2016), 2016 WL 66700 In this appeal, the Court reviewed a trial court order removing a trustee and limited guardian of the person of a ward.  The Court held that while the trial court had the authority to enter the order pursuant to F.S. 744.1075(4)(b), where it found that such action was necessary to protect the physical or mental healthy or property of the ward, upon the entering the order the court was also required to comply with F.S. 744.1075(4)(a), which requires the court to issue an order to show cause stating the essential facts constituting the conduct charged and requiring the respondent to appear before the court to show cause why the court should not take further action.