Rubin on Probate Litigation

In re Guardianship of Bloom , 227 So.3d 165 (Fla. 2d DCA 2017) While this decision involved a lengthy description of prior litigation among the various competing parties in this guardianship, and ultimately trust and estate dispute, the takeaway of the decision is simple.  The Court noted an ambiguity in F.S. 736.1005 regarding when notice must be given of an application for attorney's fees, and held that, "an applicant for attorney's fees under section 736.1005 must serve an application for attorney's fees to the parties identified in the statute contemporaneously  with the filing of the application with the court" (emphasis added).

Soriano v. Estate of Manes , 177 So.3d 677 (Fla. 3d DCA 2015), 2015 WL 5965203) This decision centered around whether a potential civil claimant arising out of a pending criminal prosecution was a "reasonably ascertainable creditor" entitled to personal service of the notice to creditors.  The Court ultimately held that the claimant was not a reasonably ascertainable creditor, because the personal representative has no actual knowledge of the claimant's civil claim, nor would a more diligent search have revealed the existence of the claim. Four months after the notice to creditors was published, the claimant filed her statement of claim alleging that she had a claim against the estate based upon an imminent private tort action against the decedent stemming from a criminal charge.  She argued that her statement of claim was timely filed because she was a reasonably ascertainable creditor, since she presented evidence showing that she was the victim of an alleged m...

Simmons v. Estate of Baranowitz , --- So.3d --- (Fla. 4th DCA 2015), 2015 WL 2089071 This case dealt with whether a court could order disgorgement of excessive fees from a personal representative's counsel individually, where the personal representative's counsel was not served by with formal notice.  The Court relied on its holding in Kozinski v. Stabenow (summary here ), where the court found that "the remedy of 'surcharge'...constituted an adversary proceeding requiring service by formal notice under the Florida Probate Rules in order for the probate court to have personal jurisdiction over her individually...." F.S. 733.6175 gives the court authority to review compensation paid to a personal representative's employee, and if it finds that excessive compensation was paid, to order that employee to make appropriate refunds.  But there is a distinction between the court's authority to act and the way the court notifies the employee that a...

Van Vechten v. Anyzeski , 157 So.3d 350 (Fla. 4th DCA), 2015 WL 248731 This appeal centered around two probate court orders- an order denying a trustee's motion for attorney's fees and an order compelling a distribution from the trust to the beneficiary's estate without offsetting the trustee's attorney's fees.  The trustee argued that she had both adequately plead her entitlement to attorney's fees and that the court erred in finding that the beneficiary's estate did not waive its objection to her alleged inadequate pleading of an entitlement to attorney's fees. The Court held that the beneficiary's estate did  waive its objection to the trustee's alleged inadequate pleading of her entitlement to attorney's fees.  It noted that generally, a claim for attorney's fees, whether based on statute or contract, must be pled.  However, where a party has notice  that its opponent claims entitlement to attorney's fees, and by its cond...