Questions often arise concerning whether and to what extent the Rules of Civil Procedure govern probate proceedings. Generally, the Florida Probate Rules provide that certain proceedings, such as to remove a personal representative, to determine beneficiaries, and to partition property for the purposes of distribution, constitute adversary proceedings.  In addition, the court can determine any proceeding to be adversary on its own, or by motion of a party.

Once a proceeding is determined to be adversary in the probate court, the Florida Probate Rules specify that the proceedings, as nearly as practicable, are to be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure are to govern. Fla.Prob.R. 5.025(d). (more…)

People v. Marshall highlights issues in probate litigation

I’ve been following People vs. Anthony D. Marshall which is currently in trial in a Manhattan courtroom.  The case so far has been a classic illustration of allegations of elder abuse and dysfunctional families which seem to be universally present in probate litigation cases.

The National Center on Elder Abuse has estimated that two thirds of all cases of elder abuse are perpetrated by family members.   My practical experience as a probate litigator has taught me that when there are personality conflicts among family members, especially later in life, retaliation by and between family members often manifests itself in the form of elder abuse and irregular changes to a will and/or trust.  These problems typically intensify in direct proportion to the amount of wealth at stake in the inheritance, although some of the most egregious cases occur over modest amounts of wealth. (more…)

Appeals Court Clarifies Apportionment Statute for Elective Share

When a decedent’s estate is probated, there is a certain order in which estate taxes are apportioned.  This order is set forth in the Florida Probate Code and it apportions estate taxes on property passing under the decedent’s last will and testament, property passing under the terms of any trust created in the decedent’s will and homestead property, respectively.  The apportionment of estate tax attributable to other properties is set forth as follows:

The net tax that is not apportioned under paragraphs (a), (b), and (c), including, but not limited to, the net tax attributable to interests passing by intestacy, jointly held interests passing by survivorship, insurance, properties in which the decedent held a reversionary or revocable interest, and annuities, shall be apportioned among the recipients of the remaining interests that are included in the measure of the tax in proportion that the value of each such interest bears to the total value of all the remaining interests included in the measure of the tax.  Fla. Stat. §733.817(5) (f).  (more…)

Insider Trading:  Sweetheart deals cannot undermine priority of creditors in probate code.

Generally, after someone dies, their relatives open up a probate estate with the court. After the estate is opened, a personal representative is appointed. This person has many responsibilities, one of which is to settle claims with the decedent’s creditors. The Florida Probate Code at section 733.707 provides a priority of creditors. This priority becomes critical in certain situations, like when there aren’t enough assets to pay all the creditors. For this reason, personal representatives are not permitted to make “side deals” with certain creditors that circumvent the priority of creditors set forth in the Probate Code. (more…)

With the recent news involving Michael Jackson’s children becoming the subjects of a guardianship, many people are asking questions about this function of the law, and its meaning and application in connection with their older friends and relatives who are residents of Florida.

It is well known and recognized that Florida is home to a large population of older people who have outlived outlived all those who care for them.  Sometimes, because these persons are vulnerable and susceptible to exploitation,  it becomes necessary to seek the protection of the court’s system of guardianship.   Often, I encounter situations where there are individuals who, although they still have relatives and friends who want to manage their finances, their friends and relatives may be fighting among themselves, or may be financially or emotionally exploiting the individual.  These situations also present circumstances that may warrant a court’s examination of what may be in the older person’s best interest. (more…)

Ruling Places Emphasis on Family Affection in Will Construction Case

Frequently, probate litigators are called upon by clients to ask a probate judge to interpret an ambiguous clause in a Will that invariably directly affects the substantive rights of the beneficiaries.  An opinion released today by the Third District serves as a reminder for the basics of will interpretation.

The vehicle I use most often to seek a judicial interpretation of the language of a will is through a petition for declaratory judgment.  Under Fla.Stat. §86.021 any person claiming to be interested or who may be in doubt about his or her rights under a will may ask a probate judge to determine his or her rights under any written instrument.  Alternatively, under §86.041 any person interested as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, or cestui que trust, in the administration of a trust, a guardianship, or of the estate of a decedent, an infant, a mental incompetent, or insolvent may have a declaration of rights or equitable or legal relations in respect to any trust or estate.  (more…)

Bad Faith Required Before Any Assessment of Attorneys’ Fees Against Beneficiary’s Share of their Inheritance

In the law, the American Rule, which controls assessment of attorneys’ fees arising out of litigation, provides that each party is responsible to pay its own attorney’s fees unless specific authority granted by statute or contract the assessment of those fees against the other party. Under the American rule every party, even the winning party, must pay its own attorneys’ fees. The American rule contrasts with the English Rule, under which the losing party pays the prevailing party’s attorneys’ fees. The rationale for the American rule is that people should not be discouraged from seeking redress for perceived wrongs in court or from trying to extend coverage of the law. The rationale continues that society would suffer if a person was unwilling to pursue a meritorious claim merely because that person would have to pay the defendant’s expenses if they lost.

Does the American Rule apply in the context of Florida Probate?

The Florida Probate Code, at Section 733.106, provides that any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.  This section also provides that when costs and attorney’s fees are to be paid from the estate, the court may direct from what part of the estate they shall be paid. (more…)