Rubin on Probate Litigation

William Cross, as Trustee of the Perl Donohue Cross Revocable Trust and as Trustee of the Charles William Cross Revocable Trust v. Annette Cross Caito, et al. ,  Case No.: 502015CP001572XXXXMB    (Fla.Cir.Ct.) (Trial Order) This decision raises a host of trust administration questions regarding claims of breach of fiduciary duty.  While the specific breaches at issue in this case were very fact specific, the Trial Court's findings are useful in a variety of trust administration contexts:  A. Statute of Limitations           (1)   Trust limitation notices :   The first question the Court dealt with was the adequacy of certain trust limitation notices to bind a beneficiary to a six-month statute of limitations as opposed to a four-year statute of limitations.  The Court held that a specific reference to the six-month statute of limitations is required by F.S. 736.1008.  Without such a reference, the sta...

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...

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...