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Florida Probate Blog

Author: Michele M. Thomas

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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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holds that a new will can revoke prior wills even though it contains no other provisions stating that prior wills have been revoked.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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Can Step Children Inherit Property in Florida?

Written by on Aug 10, 2010| Posted in: General

A recent case from the 5th District answers the question of when, and under what circumstances, can step children take an inheritance and disinherit lineal descendants.  See Timmons v Timmons  35 Fla.L.Weekly D1264 (Fla. 5th DCA Case No. 08-4103).  When Frank died in 1999, he was married to Myrtle and had two adopted children from a previous marriage.  Myrtle had four children, none of which was ever adopted by Frank.  Frank created two trusts, a family trust and a marital trust.   Myrtle was the sole income beneficiary of the trusts during her lifetime, and upon her death, the marital trust was to pour over into the family trust.  The marital trust provided that upon Myrtle’s death, the trust’s remaining principal would pour over into the family trust and be distributed in accordance with the terms of the family trust.  The family trust provided that upon Myrtle’s death, the trust assets were […]

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Notice to Creditors

Written by on Jul 6, 2010| Posted in: General

DETAILS ON NOTICE TO CREDITORS IN FLORIDA PROBATE ESTATES             The Personal Representative of an Estate must promptly publish a Notice to Creditors pursuant to Florida Statute 733.2121.  The Notice should contain the following: 1)    The name of the decedent; 2)    The file number of the estate; 3)    The designation and address of the Court in which the case has been filed; 4)    The name and address of the Personal Representative of the Estate; 5)    The name and address of the Personal Representative’s attorney; and 6)    The date of the first publication. 

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Trustee Compensation

Written by on Jun 30, 2010| Posted in: Trust Litigation

COMPENSATION OF TRUSTEES WHO ARE ALSO BENEFICIARIES In a recent Florida Second DCA case, Burgess v. Prince, 25 So.3d 705 (Fla. 2nd DCA 2010), the Court determined that a Trustee of a family trust, who was also a Trust beneficiary, was entitled to compensation for her management of Trust assets, despite the fact that the trust instrument provided that a beneficiary of the Trust could not receive compensation for serving as Trustee.  The trial court removed the Trustee and ordered that she may not be compensated for managing a business, which was a trust asset, and all compensation she received would be charged against her distributive share of the Trust.  See Id.  On appeal, the Appellate Court upheld the removal without discussion but reversed a part of the final judgment which ruled the Trustee could not be compensated for managing the business which was a trust asset.  Although the trust […]

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