Does a Trustee, Acting Alone, Have Standing to Seek Trust Reformation?

The enactment of Florida’s new Trust Code invited many unanswered questions, and the question of whether a trustee, acting solely in her capacity as trustee, has standing to seek reformation of a trust was presented to our appellate court in Reid v. Temple Judea, 994 So.2d 1146 (Fla. 3^rd DCA 2007). 

The case involved a trust executed by Edgar Sonder who named Ceclia as trustee.  On May 17, 2000, Edgar Sonder executed a trust naming himself as trustee.   After Sonder’s death, his estate was probated and finding trust funds insufficient to pay all of the gifts provided for in Sonder’s will, Reid moved to abate the enumerated pecuniary gifts proportionately. Reid also claimed that the apartment was a devise, not subject to abatement. (more…)

Attorneys who represent the personal representative or otherwise provide services to the probate estate are generally entitled to fees as allowed under the Florida Probate Code. Fla.Stat. §733.6171. In order to be entitled to fees, however, the attorney, or anyone else (like an accountant) seeking fees from the estate must show that the services provided were beneficial to the estate. What constitutes a “benefit” to an estate is often subject to debate, but most will agree that an attorney benefits an estate by bringing about an enhancement in value or an increase in the assets of the estate or by aiding in establishing the intent of the decedent and the proper division of the estate generally. A good discussion of what benefits an estate can be found in Segal v. Levine, 489 So.2d 868 (Fla.3d DCA 1986). (more…)

A no-contest clause, also called an in terrorem clause, is a topic I have discussed previously in my blog. Readers may remember that an in terrorem clause is a written sentence in a testamentary instrument (will or trust) that is designed to threaten someone, into refraining from action, or ceasing to act. The phrase is typically used to refer to a clause in a will or trust that threatens to disinherit a beneficiary if that beneficiary challenges the terms of the will or trust.

The Uniform Probate Code, §2-517 allows for no contest clauses so long as the person challenging the will doesn’t have probable cause to do so. Some states, like Ohio, allow for “living probate” and “ante mortem” probate, which are statutory provisions which authorize testators to institute an adversary proceeding during their life to declare the validity of the will, in order to avoid later will contests.

Florida does not follow the Uniform Probate Code and does not recognize the enforceablility of in terrorem clauses in wills or in trusts. The Florida Probate Code, at section 732.517 provides that “A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” (more…)

Court of Appeals Says Curator Cannot Impose Lien on Occupied Homestead Property

What is a Curator?

Sometimes curators are appointed by the probate court to administer the estate under certain circumstances where a personal representative or executor cannot serve. There are a variety of these situations, but what always remains the same is the general duty of the curator to collect the testator’s effects, pay claims against his estate, and distribute the residue to those entitled. Also uniform, is the well settled law in Florida that curator or personal representative does not have an unrestricted right to use estate assets as his own, and the probate code provides that assets of an estate shall be assets in the hands of personal representative or curator for specific purposes only, with significant restriction that he or she act reasonably for the benefit of the interested persons. A curator’s possession of estate assets derives from his appointment and is not an individual right of possession; thus, the personal representative or curator acquires interest solely as fiduciary, holding legal title, but the representative does not hold beneficial title to assets and has no right to dispose of estate assets for his own use. (more…)

Sometimes it is beneficial for a party to file a lawsuit in the federal court system. This can be for many reasons: amount of damages, convenience, accelerated docket, formality, and the perception of getting fair and just treatment for out of state litigants.

Generally speaking, disputes concerning probate matters involve petitions and appeals to the state court system as opposed to the federal courts. This is for a variety of reasons, however, the one most articulated by federal court judges for refusing to hear a probate dispute is something called the federal court jurisdiction probate exception. (more…)

Just how far will a power of attorney reach even when you don’t want it to reach all that far?

It’s generally a good idea to have a written power of attorney you, in the event you become incapable of making your own decisions. The power of attorney will authorize someone to act for you and your best interests by conducting your financial and legal affairs.

Many questions arise in the probate and trust litigation context regarding whether, and to what extent, a person can act for another under a written power of attorney. Often, questions arise as to whether a written power of attorney grants certain powers that are not specifically addressed in the written document. (more…)