Florida Probate Blog

Over nearly 20 years, my law firm has received hundreds of phone calls asking – How can I fire my Trustee? or How can I remove my Trustee?  In Florida, getting rid of a Trustee is called a trustee removal action where a beneficiary seeks to remove a trustee of a trust, sometimes for reasons other times for no reason.  Florida Trust law contains specific statutes which address the removal of trustees. According to Florida Statute §736.0706, removal of a trustee may be sought by the settlor, a co-trustee, or any beneficiary.  In fact, a court may remove a trustee on its own. Grounds for removing a trustee include: a serious breach of trust, lack of cooperation among co-trustees substantially impairing the administration of the trust, and unfitness, unwillingness, or persistent failure of the trustee to effectively administer the trust.  The court may determine that removal of the trustee best […]

In Florida, a person is not qualified to act as personal representative of a decedent’s estate if the person has been convicted of a felony.  See, Fla.Stat. 733.303.  In a recent opinion, the Fourth District Court of Appeals recently upheld the trial court’s denial of a father’s petition for administration of his daughter’s estate. (See, In re: Estate of Sharonda Renae Butler, 41 Fla.L.Weekly D979a.) The father claimed that because he was the sole heir that his prior felony conviction, which disqualifies him under the statute, should not disqualify him in his daughter’s estate.  The trial court disagreed and the Fourth DCA sided with the trial court.   Although the father’s position is understandable from a beneficiary’s view point – that as the only beneficiary there is no one else to object to or be affected by his appointment as personal representative –  it also overlooks the other large class the Florida Probate […]

“But Mom only added my brother so he could pay estate expenses and then the money was supposed to be divided equally amongst all of the children like the Last Will & Testament says!” Almost every day, a prospective client calls to say that a sibling was added to Mom’s bank account, either as a joint tenant or as the pay-on-death beneficiary, solely for “convenience” purposes so he or she could pay estate expenses and that it was Mom’s intention that the remaining funds be distributed equally to all of her children.  Naturally, the sibling who was added to the account does not share this view (which is the reason for the phone call).  Invariably, the sibling who was added is the one who lives closest to Mom so it is simple for him to rationalize and justify keeping all of the money – even when that is not what Mom wanted –  because “I was the one helping out.”  In this way, […]

William Anderson v. Laura McDonough, Personal Representative of the Estate of Helen E. Anderson (41 Fla.L.Weekly D884b), April 15, 2016 In a recent opinion, the Second District Court of Appeals held that the personal representative of an estate was not entitled to a personal judgment for attorney’s fees against an unsuccessful will contestant.  The trial court entered an order awarding the estate $51,897 in attorney’s fees against William Anderson for his unsuccessful challenge to his mother’s Last Will & Testament.  The Second DCA reversed the award because it was unsupported by the law and by the facts of the case.   Anderson and his brothers were excluded from their mother’s will, which left everything to their aunt.  Anderson brought a will contest but the court upheld the will as valid.  The estate then filed a motion for attorney’s fees against Anderson pursuant to Fla. Stat. s. 733.106, which provides that: […]

Typically, when the Supreme Court of the United States announces a new Rule of Federal Constitutional Law dealing with due process, the new Rules are applied retroactively. However, Florida probate courts are left with the power and discretion to carve out exceptions to the general rule in their own probate, will, trust and adoption jurisprudence.

THE CONFUSING LAW OF WILL SUBSTITUTES “Many legal doctrines today appear jarringly, carelessly, almost randomly out of harmony with one another.  The chaos has gone largely undetected and hence, has continued to swirl unimpeded.  But it is there to be seen, if we only care to look.  To observe the chaos, one has simply to forsake all instruments of magnification and scan the skies with the naked eye.”             -Adam Hirsch, Professor of Law, Florida State University. Professor Hirsch’s enlightened and succinct summary of the inconsistencies in the law of inheritance is most apparent when viewing the body of law surrounding the issue of Will Substitutes.  The increasing use of Will Substitutes to dispose of property upon death has caused great confusion among both practitioners and lay persons in the State of Florida.  Compounding the confusion problem is the fact that our probate law practice is […]

A POD designation can be invalidated for undue influence and recipient of the funds ordered to return the funds. Many Estate plans involve what are commonly referred to as “pay-on-death” or “POD” accounts.  These accounts are commonly created as a will substitute to allow the distribution of assets directly to the beneficiary after the death of the decedent in order to avoid probate.  As is the case with a Will or a Trust, POD accounts are subject to invalidation based on undue influence.  Florida courts have also recently held that the individuals in receipt of the POD funds can be ordered to return those funds in the event the POD designation is found to be invalid.  Pennie L. Keul v Hodges Blvd. Presbyterian Church, 40 Fla. L. Weekly D2619c (Fla. 1st DCA November 24, 2015). A POD designation is a will “substitute” that does not transfer ownership of funds until […]

  There are several scenarios that we are presented with wherein the appointment of a curator (or neutral fiduciary) is warranted for the administration of an estate.  However, what happens when the alleged tortfeasor (whether a brother, sister, step-mother, etc.) has already been appointed as the personal representative of the estate, but we know that he/she should not be because of some prior bad conduct regarding the Estate’s assets.  Regardless of the bad conduct, who would administer the estate while you are trying to prove that case? Fla. Stat. §731.201 defines a “curator” as a person who is appointed by the probate court to take charge of the estate until letters of administration are issued (in other words, until a specific personal representative is appointed).  A curator is essentially someone neutral who is appointed to temporarily administer an estate.  Many probate attorneys request that a curator be appointed while there […]

We have previously written entries regarding Fla. Stat. §733.702 and the time limitation for filing a creditor claim in an estate proceeding.  This time limitation includes a claim founded upon the wrongful act of the decedent where the decedent’s estate would owe you some sort of financial award or relief.  Once expired, an extension of the time limitation may only be granted upon grounds of fraud, estoppel, or insufficient notice of the claims period. Fla. Stat. §733.2121 further discusses the procedure a personal representative must adhere to in order to commence this timeframe for creditors to file their respective claims.  Pursuant to this statute, the personal representative must publish a notice to creditors in a newspaper in the county where the estate is being administered and must make a diligent search to serve a copy of the notice to creditors on any reasonably ascertainable creditors.  The definition of a ‘reasonably […]

TORTIOUS INTERFERENCE WITH AN EXPECTANCY IS AN INTENTIONAL TORT AND THE DISAPPOINTED BENEFICIARY IS THE PERSON WITH STANDING TO BRING THE CLAIM Tortious interference with an expectancy has been a recognized tort theory in Florida since 1966.  Allen v. Leybourne 190 So.2d 825 (Fla. 3d DCA 1966) (“when there is an allegation that the testator had a fixed intention to make a bequest in favor of the plaintiff and there existed a strong probability that this intention would have been carried out but for the wrongful acts of the defendant there exists a cause of action”).    Several years later, the Third District Court of Appeals upheld the following jury instructions in a tortious interference with an expectancy case: The issues for your determination on the claim of the Plaintiff are whether prior to a certain date, Decedent had a formed, fixed intention to give Plaintiff a share of his estate, and, if […]