Rubin on Probate Litigation

Lefkowitz v. Schwartz , --- So.3d --- (Fla. 5th DCA 2020) This case revisits the applicability of the "trust exception" to creditors claims in a probate proceeding. Here, the creditor's claim was based upon money lent by the creditor to the decedent, which the decedent promised to repay upon the sale of certain real property. The real property was apparently sold prior to the decedent's death but the money was not repaid. Upon the decedent's death, the creditor filed a creditor's claim and in her independent action, she asked the trial court to find that the sale proceeds were held in a constructive trust for her benefit. On appeal, the Court reversed, holding that the "trust exception" did not apply, and that the creditor's claim was an ordinary creditor's claim and the proceeds of the sale were assets of the estate subject to Florida statutes governing the priority of claims. The "trust exception" was based on the idea tha...

Delbrouck v. Eberling , 177 So.3d 66 (Fla. 4th DCA 2015), 2015 WL 5948724 In this case, one of the sons of the decedent claimed a constructive trust over certain properties titled in the name of the decedent.  The personal representative moved to compel the son to surrender to her the properties and to cease his business activities on the properties.  This decision dealt with whether the probate court was required to hear evidence before directing the son to turn over possession of the property to the personal representative. The personal representative relied on F.S. 733.607(1), which states that "The request by a personal representative for delivery of any property possessed by a beneficiary is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration, in any action against the beneficiary for possession of it."  The Court found that this statute does not mean a personal representative...