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Florida Probate Blog

Category: Estate Litigation

The Duties of Remaindermen

Written by on Nov 3, 2009| Posted in: Estate Litigation

Duties of Remaindermen: sometimes beneficiaries have duties, too! 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 […]

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Legal Comity

Written by on Oct 27, 2009| Posted in: Estate Litigation

Florida law holds that in personam jurisdiction may be acquired in probate proceedings by consent, by voluntary general appearance of an interested person, or by an interested person asking the court for affirmative relief. One court has held that minimal actions by a beneficiary in an estate administration were deemed to be a waiver of objections to personal jurisdiction for the separate matter of determining the ownership of contested assets that were located with the estate beneficiary in the State of Ohio. Markowitz v. Merson, 869 So.2d 728 (Fla. 4th DCA 2004).

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Pre-Marital Agreements and Joint Property

Written by on Oct 2, 2009| Posted in: Estate Litigation

Therefore, while Sharyn Turchin was absolutely correct that a gift is presumed under Florida law when property is purchased by one spouse but placed in the names of both parties, this presumption does not apply when the antenuptial agreement specifically designates how the jointly held property is to be distributed. Thus, Sharyn was entitled to only one-half of the proceeds from the sale of the Coconut Isle property that was left in the parties’ joint account. With respect to the proceeds from the satisfaction of the Aqua Vista mortgage, the court, again relying upon the terms of the prenuptial agreement, ruled that she had no right to or interest in the proceeds.

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Descendants by Blood

Written by on Sep 15, 2009| Posted in: Estate Litigation

This case illustrates the difficulties faced by courts when confronted with the conflict between social policy and the law’s goal of giving legal effect to the desires of a person as expressed in their will or trust.

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Virtual Adoption versus Will Contest

Written by on Sep 4, 2009| Posted in: Estate Litigation

The only situation that I believe would require the virtual adoption case to be determined before the will contest case would be in the context of a pretermitted child where a person omits to provide in his or her last will and testament for a child or adopted child because the child was born or adopted (which presumably would include virtual adoption) after making the last will and testament.

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Elder Abuse is a Family Issue

Written by on Aug 26, 2009| Posted in: Estate Litigation

In cases where there are allegations that a will signature was forged, it is helpful to engage the expertise of a forensic handwriting expert to examine the original document; however courts sometimes disregard dueling handwriting experts as hired guns who will testify predictably in favor of their client’s position.

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Death and Taxes

Written by on Aug 25, 2009| Posted in: Estate Litigation

It is important for probate practitioners to address foreseeable situations so as to avoid unnecessary litigation costs to the estate after administration commences and beneficiaries become disgruntled with the tax apportionment position taken by the estate fiduciary.

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Florida Wrongful Death Act

Written by on Aug 12, 2009| Posted in: Estate Litigation

once the expenses became a charge against the Estate pursuant to section 768.21(6)(b) of the Wrongful Death Act, the personal representative had the exclusive authority to resolve those claims in a reasonable and equitable manner and in accordance with section 733.707 of the probate code.”

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Rules of Affection

Written by on Aug 10, 2009| Posted in: Estate Litigation

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.

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Bad Faith and Attorney’s Fees

Written by on Aug 10, 2009| Posted in: Estate Litigation

I believe the reasons for both the milder renunciation rule and for the requirement of bad faith announced in Lane is to promote beneficiaries ability and willingness to come forward with their concerns of undue influence and incapacity to the court without fear of reprisal or punishment.

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