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Florida Probate Blog

Yearly Archives: 2010

Florida Elective Estate

Written by on Nov 15, 2010| Posted in: Estate Litigation

In Florida the surviving spouse has certain basic rights regardless of whether the deceased spouse has executed a valid Will or whether the surviving spouse was excluded from the Last Will and Testament.  Something called an elective share may be taken when surviving spouses are dissatisfied with the share of the estate they are to receive under testate and intestate succession.  Under the elective share concept, the surviving spouse is entitled to take 30% of what constitutes the decedent’s “augmented estate,” with probate and certain non-probate transfers being included.  The elective share is considered to be a substitute for dower and curtesy which was the historic basic rights given to a spouse after death of a husband or wife.  Think of the elective share as the surviving spouse’s right to a forced share in the decedent’s entire estate.  It prevents the decedent from entirely disinheriting the other spouse.  The elective […]

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An injunction by any other name…

Written by on Nov 2, 2010| Posted in: Trust Litigation

Does the Florida Trust Code allow for freezing of trust assets without the burden of proving the traditional elements for an injunction? In short the answer is “sort of.”  Historically, if you want an injunction, the moving party must prove: She will suffer irreparable harm for which there is no adequate remedy at law unless injunctive relief is granted; She has a clear legal right to request injunctive relief; and The entry of this injunctive relief will not disserve the public interest.     “No adequate remedy at law” is the insurmountable obstacle to injunctive relief because many court rules that if you can get a money judgment (whether or not it is  collectable),then there is an adequate remedy at law therefore you are not entitled to an injunction.  Think of injunctions as the appropriate remedy for the hippie who doesn’t want the developer to cut down a 500 year old […]

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Florida Trustee’s Duty to Remainderman Beneficiary

Written by on Oct 20, 2010| Posted in: Trust Litigation

If a person is serving as a trustee of a discretionary trust (trustee has the right and authority to distribute income and principal) then he has complete authority over trust distributions and according to the trust document answers to no one.  However, what if the trustee of the trust exercises his  authority to distribute the entire trust corpus to the current beneficiary or worse distribute all of the trust assets to himself?  Can this be stopped and can the trustee really clean out all of the cash. If the trustee takes this action, there arises a question as to what the trustee’s fiduciary duty is to the other beneficiaries of the trust.  The case of  Mesler v. Holly, 318 So. 2d 330 (Fla. 2d DCA 1975) provides, “even unlimited power of invasion is subject to implied limitations to protect remaindermen.”

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When Good Trustees Go Bad

Written by on Oct 4, 2010| Posted in: Trust Litigation

Desperate Times Call for Desperate Measures “O mischief, thou art swift to enter in the thoughts of desperate men!”~William Shakespeare During the recent economic crisis, our office has seen an increase in trust litigation matters involving trustees failing to fulfill their fiduciary obligations by participating in self-dealing, receiving unreasonable compensation and trustee fees and taking personal loans against the Trust expecting to pay it back before any of the beneficiaries become aware. These cases generally do not involve strangers or neutral, independent, or professional trustees breaching their duties to the Trusts, but quite often involve siblings breaching their duties to siblings, step-parents failing their step-children, long-time family attorneys or friends stealing from their clients’ children. What is disturbing is these are the same people we tend to trust and have shown no signs of dishonesty or disloyalty in the past. One can debate the reasons behind this sudden increase in […]

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Doctrine of Dependent Relative Revocation

Written by on Sep 30, 2010| Posted in: General

When a person (testator) makes a last will and testament, it is customary that the will contain language that the new will revokes any and all prior wills signed by the testator.   The Uniform Probate Code holds that a new will can revoke prior wills even though it contains no other provisions stating that prior wills have been revoked.  If a person signs a new last will which revoked all prior wills, and destroyed all prior wills by burning, cancelling, tearing or obliterating them, then all prior wills would be deemed revoked.  Should a person die and the newly signed will was missing with no copies to be found, then the testator would be deemed to die intestate, or without a will. On the other hand, if a person dies, and the most recently signed last will and testament is found to be invalid for any reason, such as undue […]

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Absolute Discretion?

Written by on Sep 21, 2010| Posted in: Trust Litigation

“I’ve got the power!” Does absolute discretion mean trustees can exercise their discretion absolutely? The short answer is “no.”   The longer answer requires the starting point to be – what does the trust say?  The settlor is the person who makes the trust and his or her intent is the polestar by which a trust should be interpreted and construed.  So if the trust grants the trustee the absolute discretion to distribute money from the trust then isn’t the trust stating that the trustee can do no wrong when deciding what amount to distribute?  Well, not really.  A provision seemingly allowing the trustee to distribute whatever he or she wants to must be balanced with the rest of the document. In other words, a trustee cannot pluck a sentence or two out of a forty page document and rely upon it as his or her absolute authority to distribute all the trust money […]

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Breach of Trust

Written by on Sep 21, 2010| Posted in: Trust Litigation

Many people establish trusts through their Last Will and Testament (“testamentary trusts”).  Often establishing trusts is an effective way of ensuring one’s heirs are provided with income while providing checks and balances on the investing and distribution of principal.  At the recent deposition of a financial advisor in a trust dispute, there was testimony that a typical inheritance is usually squandered within eighteen (18) months.

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PER STIRPES vs. PER CAPITA

Written by on Aug 31, 2010| Posted in: General

Last Will and Testament Hypothetical #1: When Aunt Minerva died, she had no husband or children, but did have a valid Will, which was probated.  Her living descendants were her niece, Angela, her nephews, Barry and Charles.  They were over the age of 18 years old at the time of Aunt Minerva’s death.  When Aunt Minerva died, Angela had two children, Donald and Evelyn.  If Aunt Minerva’s Will stated that all of her estate was to be distributed to her then living descendants, per stirpes, then her niece, Angela, and her nephews, Barry and Charles each would receive a 1/3 share of her estate.  Angela’s children, Donald and Evelyn, would not receive anything from the estate.  Pursuant to Florida Statute 731.201(9), a lineal descendant or descendants mean “a person in any generational level down the applicable individual’s descending line.”  Adopted children come within the definition of lineal descendants.  The term […]

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Convenience Account or Inter Vivos Gift?

Written by on Aug 15, 2010| Posted in: General

A LESSON IN TRUST… We often come across cases in which a Will or a Trust leaves assets equally to all of the Decedent’s children. However, at the time of death, most of the Decedent’s assets are held in joint accounts with only one of the children named as a joint owner, thereby entitling only one child to the entire account as the remaining joint owner and avoiding the equal distribution that the parent planned through his or her Will and/or Trust. Unfortunately, the account title tends to control, despite the understanding that the child receiving the account as joint owner had been placed on the account for convenience purposes only to help mom or dad pay bills, as needed; not to receive all of the assets upon their death. Parents believe their children would never cut out their siblings but this is sadly not always the case.

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