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Florida Probate Blog

The Law Offices of Adrian Philip Thomas

Due Process, Death and Taxes

Written by on Jan 9, 2017| Posted in: General

I have written extensively about the application of the due process requirements under both the Florida and United States Constitutions in previous blogs and cannot resist touching upon a recent opinion in a state court case applying federal due process law:  Kimberly Rice Kaesterner 1992 Family Trust v. North Carolina Dep’t of Revenue 789 S.E.2d 645 (N.C.Ct. App. 2016). New York probate and Florida probate lawyers understand that it has long been the law of the land that the fact that beneficiaries of a trust are not residents does not deprive property subject to the trust a situs in the state where the trustee is domiciled.   Typically, the trust property is taxed to the holder of the legal title—the trustee—or where the property is located.  The tax is not imposed on the trust beneficiary. In fact, Chief Justice Oliver Wendell Holmes and the United States Supreme Court has ruled that […]

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Trust Revocation: No Magic Art is Necessary

Written by on Dec 27, 2016| Posted in: Uncategorized

The Uniform Trust Code §602(c) provides that a settlor may revoke or amend a revocable trust by substantial compliance with a method provided in the terms of the trust or by any method manifesting clear and convincing evidence of the settlor’s intent.   Section 736.0602(3) of the Florida Trust Code is identical to the Uniform Code with respect to the revocation of trusts.  What is Clear and Convincing Evidence?  Florida trust lawyers know that ‘clear and convincing evidence’ is evidence that is precise, explicit, lacking in confusion, and of such weight that it produces a firm belief or conviction, without hesitation, about the matter in issue. BDO Seidman, LLP v. Banco Espirito Santo International, 38 So.3d 874 (Fla. 3d DCA 2011).  The standard of proof has also been described as an intermediate standard of proof, more than the ‘preponderance of the evidence’ standard used in most civil cases, and less than […]

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Probate and Due Process in Florida

Written by on Dec 14, 2016| Posted in: General

DEATH, PROBATE AND DUE PROCESS:  Do the Notice Requirements Under the Florida Probate Code and Rules Pass Constitutional Muster? by Adrian P. Thomas, Michele M. Thomas and Daniel A. McGowan Property rights are among the basic substantive rights expressly protected by the Due Process Clause of the United States Constitution and the Florida Constitution.[i]  Probate proceedings are in rem proceedings directed against property and against anyone claiming an interest in the property.[ii]  A proceeding to admit a will to probate affects the property rights of an interested person and that person is entitled to due process of law before those rights are extinguished, diminished or otherwise affected.   Due Process             The United States Supreme Court has held that “[a]n elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonable calculated, under all the circumstances, to apprise interested parties of the pendency […]

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Trustee’s Duty to Inform and Account

Written by on Dec 6, 2016| Posted in: Trust Litigation

A Trustee’s Duty to Inform and Account Under the Florida Law The essence of the trustee’s existence is to keep a trust’s beneficiaries adequately informed.  Florida probate practitioners, trust lawyers, and estate attorneys all recognize the reality that virtually all fiduciary litigation commences with a beneficiary not receiving a proper trust accounting or explanation of the trustee’s conduct.  The Florida Trust Code provides that a trustee has a duty to keep the “qualified beneficiaries” of an irrevocable trust reasonably informed of the trust and its administration.  Florida law also holds that while a trustee owes no duties to a contingent beneficiary, once the trust becomes irrevocable at the death of the settler, the beneficiary may sue for breach of a duty that the trustee owed to the settlor/beneficiary which was breached during the lifetime of the settlor and subsequently affects the interest of the vested beneficiary.  This general principle was […]

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Attorney-Client Privilege in Probate Litigation

Written by on Nov 18, 2016| Posted in: Probate Litigation

Death, Lawyers, and Loose Lips:  Third District Court of Appeals Clarifies Distinction Between Ethical duty of Confidentiality from Evidentiary Privilege The attorney client privilege dates back to the English Common Law of the late sixteenth century making it the first privilege the law recognized for confidential communication.  For example, see Dennis v. Codrington, 21 Eng.Rep. 53 (1580) (finding “A counselor not to be examined of any matter, wherein he hath been of counsel”).  Thus, it is generally accepted by Florida probate lawyers that the ethical rule of attorney-client confidentiality limits disclosure of information acquired during the scope of the representation.  The only exception is where the client consents to the disclosure.  Rule 4-1.6(a) of the Florida Rules of Professional Conduct articulates the prohibition of disclosure of confidential information: “A lawyer must not reveal information relating to representation of a client…unless the client gives informed consent.”    The sanctity of the […]

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Corya and Woodward

Written by on Jun 24, 2016| Posted in: Trust Litigation

LIMITATIONS ON PROCEEDINGS AGAINST TRUSTEES:  CORYA, WOODWARD AND FLA. STAT. §736.1008 The Florida Trust Code contains a section titled “limitations on proceedings against trustees” that is a limitation of actions and accrual of claims statute specifically applicable to claims for breach of fiduciary duty in the context of trusts.  Specifically, Fla. Stat. §736.1008 provides, in pertinent part, as follows (emphasis and commentary added for clarification): (1) Except as provided in subsection (2), all claims by a beneficiary against a trustee for breach of trust are barred as provided in chapter 95 as to: (a) All matters adequately disclosed in a trust disclosure document issued by the trustee, with the limitations period beginning on the date of receipt of adequate disclosure. NOTE:  (1)(a) provides that IF there is adequate disclosure in a trust disclosure document, THEN the 4-year statute of limitations (“SOL”) in Chapter 95 applies BUT the claim does not accrue until […]

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Can I fire my trustee

Written by on Jun 14, 2016| Posted in: Uncategorized

Over nearly 20 years, my law firm has received hundreds of phone calls asking – How can I fire my Trustee? or How can I remove my Trustee?  In Florida, getting rid of a Trustee is called a trustee removal action where a beneficiary seeks to remove a trustee of a trust, sometimes for reasons other times for no reason.  Florida Trust law contains specific statutes which address the removal of trustees. According to Florida Statute §736.0706, removal of a trustee may be sought by the settlor, a co-trustee, or any beneficiary.  In fact, a court may remove a trustee on its own. Grounds for removing a trustee include: a serious breach of trust, lack of cooperation among co-trustees substantially impairing the administration of the trust, and unfitness, unwillingness, or persistent failure of the trustee to effectively administer the trust.  The court may determine that removal of the trustee best […]

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Convicted Felons Cannot Serve as Personal Representative

Written by on May 14, 2016| Posted in: Probate Litigation

In Florida, a person is not qualified to act as personal representative of a decedent’s estate if the person has been convicted of a felony.  See, Fla.Stat. 733.303.  In a recent opinion, the Fourth District Court of Appeals recently upheld the trial court’s denial of a father’s petition for administration of his daughter’s estate. (See, In re: Estate of Sharonda Renae Butler, 41 Fla.L.Weekly D979a.) The father claimed that because he was the sole heir that his prior felony conviction, which disqualifies him under the statute, should not disqualify him in his daughter’s estate.  The trial court disagreed and the Fourth DCA sided with the trial court.   Although the father’s position is understandable from a beneficiary’s view point – that as the only beneficiary there is no one else to object to or be affected by his appointment as personal representative –  it also overlooks the other large class the Florida Probate […]

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Decidedly Inconvenient: Joint Accounts and POD Accounts

Written by on May 13, 2016| Posted in: General

“But Mom only added my brother so he could pay estate expenses and then the money was supposed to be divided equally amongst all of the children like the Last Will & Testament says!” Almost every day, a prospective client calls to say that a sibling was added to Mom’s bank account, either as a joint tenant or as the pay-on-death beneficiary, solely for “convenience” purposes so he or she could pay estate expenses and that it was Mom’s intention that the remaining funds be distributed equally to all of her children.  Naturally, the sibling who was added to the account does not share this view (which is the reason for the phone call).  Invariably, the sibling who was added is the one who lives closest to Mom so it is simple for him to rationalize and justify keeping all of the money – even when that is not what Mom wanted –  because “I was the one helping out.”  In this way, […]

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Attorney’s Fees in Will Contest

Written by on May 5, 2016| Posted in: Probate Litigation

William Anderson v. Laura McDonough, Personal Representative of the Estate of Helen E. Anderson (41 Fla.L.Weekly D884b), April 15, 2016 In a recent opinion, the Second District Court of Appeals held that the personal representative of an estate was not entitled to a personal judgment for attorney’s fees against an unsuccessful will contestant.  The trial court entered an order awarding the estate $51,897 in attorney’s fees against William Anderson for his unsuccessful challenge to his mother’s Last Will & Testament.  The Second DCA reversed the award because it was unsupported by the law and by the facts of the case.   Anderson and his brothers were excluded from their mother’s will, which left everything to their aunt.  Anderson brought a will contest but the court upheld the will as valid.  The estate then filed a motion for attorney’s fees against Anderson pursuant to Fla. Stat. s. 733.106, which provides that: […]

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