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Florida Probate Blog

Author: Adrian P. Thomas

Death, Probate and Due Process

Written by on Feb 14, 2019| Posted in: Firm News

Do the Notice Requirements Under the Florida Probate Code and Rules Pass Constitutional Muster? Read the firm’s recent article published in Winter 2018-2019 Actionline, the Florida Bar’s Real Property, Probate & Trust Law Section publication.

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RESTRICTED DEPOSITORY: “FOR CAUSE” ONLY

Written by on Jan 29, 2019| Posted in: General

The Fourth District Court of Appeal reproves the Palm Beach probate court’s local policy presuming the need for a restricted depository in all probate cases as a matter of course. In Estate of Goodstein v. Goodstein, 44 Fla.L.Weekly D222a, on appeal was the trial court’s non-final order granting the beneficiaries’ petition to designate a trust company as a depository for the assets.  The personal representative of the estate appealed, arguing that the trial court granted the petition based upon local policy without finding “other cause” required under Fla.Stat. §69.031(1).  During the hearing, “[t]he trial court agreed that restricted depositories were a matter of course in all probate cases in its jurisdiction, pursuant to local policy.  It explained that the policy was intended to prevent assets from pouring out during probate administration  The court believed the policy also reduced expenses and increased productivity by encouraging attorneys to resolve cases more quickly.”  […]

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WHEN IS A CHARITY A QUALIFIED BENEFICIARY UNDER THE FLORIDA TRUST CODE?

Written by on Jan 27, 2019| Posted in: Trust Litigation

The term “qualified beneficiary” has special significance under the Florida Trust Code.  Status as a “qualified beneficiary” confers rights, including the right to: a complete copy of the trust instrument, the right to an accounting, the right to relevant information about trust assets and liabilities and details about trust administration.  See, Fla.Stat. §§736.0105 (r)-(t), 736.0813.  Accordingly, whether a trust beneficiary is a “qualified beneficiary” is an important issue for both the trustee and for the beneficiary because the status imposes duties on the trustee and confers rights upon the beneficiary. The Fourth DCA recently addressed when a charitable beneficiary has the rights of a qualified beneficiary in Hadassah, The Women’s Zionist Organization of America, Inc. v. Stephen G. Melcer, Trustee, et al, 44 Fla.L.Weekly D207a. Sylvia Gelt created a trust in 1989.  The trust provided that upon her death, a portion of the trust was to be placed in a […]

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Probate:  Enforcement of Prenuptial Agreement

Written by on Dec 3, 2018| Posted in: Probate Litigation

In the recently-decided Kellar v. Estate of John W. Kellar, 257 So.3d 1044 (Fla. 4th DCA 2018), the Fourth District Court of Appeal reminded us that a prenuptial agreement is a contract and is enforced in probate like a creditor claim. In Kellar, Decedent and his wife executed a premarital agreement, in which Decedent agreed to make a will in favor of his wife; however, during Decedent’s lifetime, his son had Decedent execute a new will excluding the wife in favor of himself.  Upon Decedent’s death, wife filed a petition seeking to admit the will favoring her and Decedent’s son filed a counter-petition seeking to admit the will favoring him.  Wife challenged son’s will on the grounds of undue influence.  The lower court found “[t]he wife presented competent, substantial evidence to raise the rebuttable presumption that the son exerted undue influence over the decedent to procure the decedent’s revocation of […]

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Will Devising Property to Fiancee Survives Subsequent Marriage and Divorce

Written by on Sep 27, 2018| Posted in: Estate Litigation

Ex-wife 1 – Incapacitated Father 0: An Unreasonable Conclusion Based on Statutory Construction Gordon v. Fishman, 253 So.3d 1218 (Fla. 2d DCA 2018) In 2005, Ron Priever executed a will devising property to his then fiancée, Silvia Gordon.  Priever and Gordon married in 2007 and divorced in 2013.  Mr. Priever died in 2015, leaving no spouse and no children and never having changed his will; however, Priever was survived by his incapacitated father, Bernard, who was the ward of a guardianship.  Bernard’s guardian petitioned for administration, treating the estate as if Priever died without a will, which would leave Bernard the intestate beneficiary.  The court granted the petition and appointed the guardian as personal representative.  Thereafter, Gordon filed Priever’s original will with the court claiming that she was the beneficiary under the terms of Priever’s will executed before their marriage and divorce.  The guardian objected, claiming that once Priever and Gordon divorced […]

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Bank Accounts: ownership intent trumps legal form of ownership

Written by on Sep 4, 2018| Posted in: Probate Litigation

Lorraine Kowalski and her husband, Leon, were legally married but separated for approximately sixteen years when Leon died in 2015.  At the time of his death, Leon was living with his long-time, live-in girlfriend, to whom he devised the majority of his estate in a Last Will and Testament.  Lorraine sought an elective share of the estate.  During the probate proceedings, a special master was appointed to determine certain issues, among them Leon’s interest in a bank account in Lorraine’s sole name.  The special master found that Leon owned 50% of the account and that Leon’s share should be distributed to Leon’s estate.  The trial court confirmed the special master’s report and Lorraine appealed.  The appellate court affirmed. In 2006, Lorraine and Leon sold their business and received $3,445,066 which Lorraine held in an account in her sole name.  Over the years, Leon would ask Lorraine for money when he […]

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Florida Probate Nonclaim Statute Does Not Apply to Beneficiaries

Written by on Sep 1, 2018| Posted in: Probate Litigation

HEIRS ASSERT CLAIM TO INTESTATE SHARE OF ESTATE 45 YEARS AFTER DECEDENT’S DEATH:  FIFTH DISTRICT HOLDS THAT FLORIDA’S 2-YEAR NONCLAIM STATUTE DOES NOT APPLY TO CLAIMS ASSERTING BENEFICIAL INTEREST IN ESTATE Helen Watkins had two daughters, Bernice Wallace and Helen Mansell.  In 1971, Watkins died intestate (without a last will and testament) owning a parcel of real property in St. Augustine, Florida.  Nearly 30 years later, Wallace and Mansell filed a petition for summary administration alleging they were the sole heirs at law.  The property was conveyed to Wallace and Mansell and Mansell sold her interest to Wallace.  Another 16 years lapsed and Mansell’s three biological children, who had been legally adopted by Watkins in 1963, filed a petition to re-open summary administration to claim their intestate share of Watkins’s estate.  Wallace objected and asserted, inter alia, that Florida’s nonclaim statute, s. 733.710(1), Fla. Stat., which provides: Limitations on claims […]

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Discovery of Trust Documents

Written by on Feb 13, 2018| Posted in: Trust Litigation

Boren v. Rogers, et al, 43 Fla. L. Weekly D274c In 2014, Ann Boren filed a complaint seeking to invalidate two trusts, one executed in 2013 and the other executed in 2014, on the grounds of undue influence.  The allegations in the amended complaint were that Evelyn Rivera befriended the decedent, Elaine Mullins, late in life while the decedent was in failing health and suffering from cognitive deficits and unduly influenced Ms. Mullins to execute the two trust instruments which excluded Ms. Boren from them.  Ms. Boren alleged that but for this undue influence she would have been a beneficiary.  The drafting attorney, Thomas Rogers, was also the named trustee of both the 2013 and the 2014 trusts.  In defending the lawsuit, Mr. Rogers argued that Ms. Boren lacked standing to challenge the trusts “because the trust was initially created in 1992 and ‘was amended and/or restated in 1996, 2000, […]

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Delayed Discovery Doctrine Applies to Undue Influence Claims

Written by on Jan 12, 2018| Posted in: Probate Litigation

Flanzer v. Kaplan, — So.3d — (2017 Wl 5759041) – Gloria and Louis Flanzer created a philanthropic trust in December 2005. By its terms, the trust became irrevocable at its creation. Louis died in June 2013 and Gloria died in March 2015. In November 2015, Jan Flanzer sued to challenge numerous estate planning documents executed by her parents, including the philanthropic trust.  Jan Flanzer alleged that during a period of time from at least 2001 until her mother’s death, the Trustees maintained a fiduciary relationship with her mother and served as her personal accountant, business and financial advisor, and attorney.  According to the complaint, Gloria Flanzer had diminished mental capacity during this period and was emotionally and mentally susceptible to the undue influence of the Trustees. Jan Flanzer further alleged that the Trustees exploited their confidential relationship with Gloria Flanzer to alienate and ultimately eliminate Jan Flanzer from her mother’s estate plan.  In Count V of Jan Flanzer’s complaint, she alleged that […]

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Premature Discharge of Personal Representative

Written by on Jan 11, 2018| Posted in: Probate

In re: Estate of Lillian L. Unanue (43 Fla.L.Weekly D70a) – On November 17, 2016, the co-personal representatives of the Estate of Lillian Unanue (“Estate”) filed a final accounting and petition for discharge.  The documents were served on the beneficiaries, including Robert and George Unanue.  The probate court entered an order of discharge on December 5, 2016, just 18 days after the petition was filed.  Subsequently, on December 16, 2016, Robert and George filed timely objections to the final accounting and petition for discharge, but the estate was already closed.  In the appeal, Robert and George sought reversal of the order of discharge because it was entered prematurely and curtailed their right to object to the accounting.  The Second District Court of Appeal agreed, citing Florida Probate Rule 5.400(b)(6), which states, in pertinent part, that “any objections to the accounting, the compensation paid or proposed to be paid, or the […]

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