DISTINGUISHING DAMAGES SOUGHT BY FIDUCIARIES AND INDIVIDUALS UNDER FLORIDA STATUTES §415.1111 and §772.11

When trying to decide between which cause of action to file against a person who has committed financial exploitation against or theft from a vulnerable or disabled adult, one must first establish who has been damaged, the vulnerable or disabled adult themselves, or an individual with an expectancy in inheritance or other interest expected from the vulnerable or disabled adult, and whose expectancy or interest was lost or diminished as a result of the exploitation or theft against the vulnerable adult.

Pursuant to Fla. Stat. §415.1111, “A vulnerable adult who has been abused, neglected, or exploited . . . has a cause of action against any perpetrator and may recover actual and punitive damages for such abuse, neglect, or exploitation.” [reproduced below] The action may only be brought by the vulnerable adult, or that person’s guardian, by a person or organization acting on behalf of the vulnerable adult with the consent of that person or that person’s guardian, or by the personal representative of the estate of a deceased victim without regard to whether the cause of death resulted from the abuse, neglect, or exploitation. This cause of action allows for punitive damages. (more…)

What Happens When a Party Dies During a Lawsuit?

One of the hotly-contested issues among Florida probate lawyers in the context of inheritance lawsuits involving beneficiaries of wills and trusts is whether and to what extent appellate courts have jurisdiction over orders entered in Florida lawsuits involving last wills and testaments and lawsuits involving Florida trusts, trustees and beneficiaries. 

Generally, Florida Rule of Appellate Procedure 9.110, which governs “Appeal Proceedings to Review Final Orders of Lower Tribunals and Orders Granting New Trial in Jury and Non-Jury Cases,” applies to proceedings that seek review of orders in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”   The dissenting opinion in one recent case in the First District Court of Appeals in Florida dealt with the issue of whether the  a court’s determination of whether notice of was properly served on a creditor constitutes an appealable order.  Grainger v. Wald 35 Fla.L.Weekly D381b (Fla. 1^st DCA February 12, 2010).  (more…)

The issue of what probate rulings are appealable in the context of will contests and probate litigation is complicated, confusing, and subject to debate among jurists and attorneys in Florida.  Generally, the issue is governed by appellate rules, which authorize appeals of “orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person[.]”  Due to the ambiguity of the language of the rule, the Florida Supreme Court has offered guidance in the form of comments to an amendment to one of the rules:

“[I]n probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different persons.  An order of the circuit court that determines a right, an obligation or the standing of an interested person as defined by the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged.” (more…)

In Florida, can a spouse be disinherited?

Several years ago, the Florida Legislature enacted HB 301 effective October 1, 1999, for decedents dying on or after October 1, 2001 (known as the elective share statute). This law changed a long-standing rule that spouses could be disinherited. Florida courts now repeatedly interpret and apply the new elective share statute in a manner consistent with the recognized strong public policy favoring protection of the surviving spouse against being disinherited.

The question often arises as to whether assets placed by a decedent into an irrevocable trust are subject to a claim by the surviving spouse under the new elective share statute. The answer depends on the specific facts of each case and on a court’s understanding of what assets constitute the decedent’s “probate estate.” First, one must analyze the definitions written into law by our elected officials in Tallahassee and Washington. (more…)

Client:   What happened at court?

Lawyer:   Justice Prevailed.

Client:   Appeal Immediately!

Appealing a probate ruling is no easy undertaking and requires special care, attention, and a firm command of the governing rules and decisional case law. One of the first things examined by an appellate attorney is whether the order from which an appeal is sought is a final order.

The question is uniquely challenging when a probate lawyer is confronted with an order arising from an adversarial proceeding in a Florida probate court.  Initially, the trust and estate lawyer will examine the probate order in the context of Rule of Appellate Procedure 9.110(a) (2), which provides that the review of an order by the appellate court is authorized when there is an order entered in probate “that finally determines a right or obligation of an interested person as defined in the Florida Probate Code.” This rule operates to broaden the scope of “finality” as that concept generally applies in civil matters.  However, sometimes it no easy task determining whether an interested person’s rights have been “finally determined” in a probate proceeding. Where the rights of the parties as relates to their interest in the probate estate are not finally determined, then the orders are not deemed final for purposes of appeal.  (more…)

Fourth DCA overturns Broward Probate Court’s eviction of son from his deceased mother’s apartment.

My blog has previously discussed the Fourth District’s view, articulated in Herrilka v. Yates, 13 So.3d 122 (Fla. 4^th DCA 2009) on the limitations on an estate fiduciary in taking or encumbering homestead property.  Herrilka involved a dispute between two women who both claimed to be married to the decedent; consequently, a curator-Christine Yates-was appointed to marshal the estate assets.  One of the women, Mrs. Herrilka, occupied the real property that was, without dispute, the decedent’s homestead. (more…)

Elders and Vulnerable Adults Frequently Get Taken For a Ride

According to some recent statistical surveys, there will be 71.5 million people living in the United States who are over 65 years of age by the year 2030.  With the increase in the number of elderly persons moving to Florida, there will of course be a proportional number of those living here who have cognitive disabilities.  These seniors are frequently vulnerable targets of exploitation.

Florida has taken steps to increase the protections of our vulnerable adults through enacting the abuse of the elderly statute.  The Florida Exploitation of Elderly Statute, codified at Fla.Stat. §415.1111 et seq. imposes civil penalties on persons who exploit a vulnerable adult in Florida.  These civil actions against exploiters have teeth—as the statute allows actual and punitive damages by a victim and the prevailing party can also recover attorney fees and costs.  Also, the statute is non-exclusive and allows cumulative remedies against perpetrators.  Finally, actions under Chapter 772 (Civil Penalties for Criminal Practices) allow for civil remedies for theft or exploitation of the elderly and can include treble (triple) damages, attorneys’ fees and court costs. (more…)

Court Allows Claim for Establishment and Foreclosure of Equitable Lien

My practice is frequently faced with inquiries regarding the rights of remaindermen.  A remainderman is the person who inherits or is entitled under the law to inherit property upon the termination of the estate of the former owner. Usually this occurs due to the death or termination of the former owner’s life estate, but this can also occur due to a specific notation in a trust passing ownership from one person to another.

For example, if the owner of property makes a grant of that property “to John for life, and then to Jane,” Jane is entitled to a future interest, called a remainder, and is termed a remainderman.

As is often the case, the remaindermen and the life estate owner don’t always get along.  Sometimes, the friction is caused by what the remaindermen perceive as the life estate owner’s waste of the property.

What are the duties of the life tenant? (more…)

Comity Act

Part I

Nebraksa and Florida probate courts involved in a jurisdictional showdown.

Comity, or legal reciprocity, refers to the legal presumption that different jurisdictions recognize the validity and effect of their respective judicial acts.

Last week the Second District issued an opinion highlighting some strain on the courtesies generally connected with comity, and clarifying some jurisdictional boundaries in Kountze v. Kountze, –So.3d–, 2009 WL 3320200, 34 Fla.L.Weekly D2142a (Fla.2^nd DCA, October 16, 2009).  Kountze involved a complicated factual and procedural backdrop, even for a probate litigation dispute.  Basically, the dispute involved an inter vivos heirloom trust as part of a marital settlement agreement between the decedent and his former spouse.  The parties to the lawsuit were the remainder beneficiaries of the Trust.  

In 2005, Edward Kountze, (“Edward”) as personal representative of the estate, deposited the decedent’s last will and testament in Collier County, Florida, where the decedent lived at the time of his death.  The heirloom trust, however, had Nebraska as its principal place of administration.  Thus, in 2006, Charles Kountze (“Charles”) filed a petition for trust administration in Nebraska. (more…)

What’s mine is mine and what’s yours is mine…prenuptial agreement, joint property and hand grenades

Sharyn and Leslie Turchin, like many couples these days, entered into a pre-marital agreement prior to their marriage ceremony whereby they both renounced any ownership rights to the other person’s property in case there was a termination to their marriage by divorce or death.   Thereafter, Leslie Turchin, using his premarital assets acquired two residences, one described as the Coconut Isle and the other as the Aqua Vista. He recorded title with both his name and his wife’s.  Both properties were subsequently sold during the marriage. The proceeds from the sale of the Coconut Isle property were deposited in the parties’ joint checking account. Thereafter, the husband withdrew most of the funds in order to satisfy his personal obligations with the balance of the withdrawn funds being deposited in the husband’s individual bank account. As part of the purchase price of the Aqua Vista property, the buyers executed a mortgage in favor of both the husband and wife.  Leslie Turchin died testate and his estate planning documents directed that the remaining balance on the Aqua Vista mortgage be forgiven. (more…)