Taxation & Estate Planning

What lawyers and trustees need to know about Florida's new "Directed Trusts" statute

Posted on September 03, 2008
I've been a fan of the "directed trusts" idea from the time it was first talked up in the press [click here], through to its recent adoption here in Florida [click here]. Whether you make a living drafting trusts as a lawyer or administering them as a trustee, you should get to know this important new statute, and a great way to do that is to read Directed Trusts: The Statutory Approaches to Authority and Liability, written by two of Miami's very own trusts-and-estates stars, Greenberg Traurig associate Mary Clarke and shareholder Diana S...

Son of wanted Nazi wants him declared dead

Posted on August 29, 2008
As I've written before, under Florida law you don't need to actually produce a dead body to have someone declared dead [click here].  If someone's missing for over 5 years or there's direct or circumstantial evidence of death, under F.S. 731.103 a court can enter an order declaring that person dead...

Will contest casts a shadow on a prominent St. Petersburg estate-planning lawyer who stands to gain millions

Posted on August 26, 2008
Tampa probate litigator Russell R. Winer was kind enough to point me to an interesting will-contest story in the St. Petersburg Times by staff writer Chris Tisch entitled A will casts a shadow on a prominent lawyer who stands to gain millions.  When I read the linked-to story two points jumped out at me...

Why Do Lawyers Lie? One Word: Narcissism

Posted on August 22, 2008
As a self confessed trusts-and-estates “law geek”, I obviously believe courts (and thus litigants) are guided by the rule of law.  But I’ve also been around long enough to have a healthy respect for the “legal realism” school of thought: all law is made by human beings and, thus, is subject to human foibles, frailties and imperfections...

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Probate litigation UK style: where there's a will there's a war

Posted on August 21, 2008
I've written before about the upswing in trusts-and-estates litigation in this country [click here]. Now it's the U.K.'s turn.  An article in the Telegraph entitled Inheritance disputes: where there's a will there's a war, reported on factors fueling increased probate litigation in the U...

Can guardianship litigation preempt a will contest?

Posted on August 19, 2008
In Florida the law is clear: you can't contest a will until after the testator dies. F.S. 732.518. But that doesn't necessarily mean you can't preempt a will contest before the testator dies. For example, suppose you're working with an older client with diminishing capacity whose will is sure to be contested...

George Washington on Arbitration of Probate Disputes

Posted on August 16, 2008
For no reason other than I find this bit of historical/T&E crossover trivia interesting, here's a copy of the arbitration clause contained in George Washington's will: But having endeavoured to be plain, and explicit in all Devises--even at the expence of prolixity, perhaps of tautology, I hope, and trust, that no disputes will arise concerning them; but if, contrary to expectation, the case should be otherwise from the want of legal expression, or the usual technical terms, or because too much or too little has been said on any of the Devises to be consonant with law, My Will and direction expressly is, that all disputes (if unhappily any should arise) shall be decided by three impartial and intelligent men, known for their probity and good understanding; two to be chosen by the disputants--each having the choice of one--and the third by those two...

3d DCA: Probate court reversed for improperly dismissing a petition to probate a lost or destroyed will

Posted on August 15, 2008
LaCalle v. Barquin, --- So.2d ----, 2008 WL 3358300 (Fla. 3d DCA Aug 13, 2008) Sometimes even when you're right, you still lose (yet another example of the risks inherent to litigation).  In the linked-to case the 3d DCA reversed a probate court order dismissing a properly filed petition to establish and probate a lost will...

4th DCA: Spotty evidentiary record = reversal of trust beneficiary's attorney's fee award

Posted on August 03, 2008
Demello ex rel. Jerome Adams Trust, Irene V. Adams Trust v. Buckman, --- So.2d ----, 2008 WL 2906652 (Fla. 4th DCA Jul 30, 2008) In the linked-to case the beneficiary of a trust successfully sued her trustee for breach of trust. As a result of this win the trial court awarded her attorneys' fees and costs...

New legislation: Payment of trustee attorneys' fees when defending breach of duty claims; trustees have new affirmative notice obligations

Posted on August 01, 2008
Payment of trustee attorneys' fees when defending breach-of-duty claims has been a hot topic over the last few years due to appellate decisions out of the 3rd and 4th DCA's that were decidedly non-trustee friendly [click here, here].  The Florida Bankers Association swung into action, proposing new legislation that would make it more difficult to cut off a trustee's access to trust funds when defending against a breach-of-duty claim...

Did Florida's new trust code weaken existing creditor protections for Florida irrevocable trusts?

Posted on July 25, 2008
Dynasty trusts are a huge growth industry [click here], and one of the main selling points for these trusts are their creditor-protection properties.  When Florida adopted its version of the Uniform Trust Code in 2007 some questioned whether Florida's existing spendthrift-trust protections had been watered down...

2d DCA: What probate lawyers should know about fee disputes under Florida's Wrongful Death Act

Posted on July 22, 2008
Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, --- So.2d ----, 2008 WL 2668801 (Fla. 2d DCA Jul 09, 2008) Ever wonder why your friendly neighborhood plaintiff's lawyer gets a bit tense when he hires you to get his client appointed personal representative ...

Probate and Trust Litigation Committee Meeting Reports/White Papers

Posted on July 21, 2008
Click here for a PDF copy of the Agenda and related Reports/White Papers for the upcoming meeting of the Florida Bar's Probate & Trust Litigation Committee on Thursday, July 24, 2008 from 3:00 p.m. to 5 p.m. at the Breakers in Palm Beach County.  These materials are an excellent way to keep up on the latest probate-related developments that could affect you, your firm or your clients...

5th DCA: Can you enforce a California constructive-trust judgment against a Florida homestead?

Posted on July 18, 2008
Hirchert v. Hirchert Family Trust, --- So.2d ----, 2008 WL 2695897 (Fla. 5th DCA Jul 11, 2008) California constructive-trust judgment: This case started in California where, after a two-day bench trial, the trial court found that a California trustee had breached his fiduciary duties by wrongfully withdrawing trust funds, which were then used to buy a house for himself and his wife in California...

How Pennsylvania officials and an inept trustee board of directors screwed poor kids out of $1 billion by stopping the sale of candy-maker Hershey Company

Posted on July 15, 2008
Jonathan Klick of the Florida State University College of Law and Robert H. Sitkoff of Harvard Law School just published an outstanding article entitled Agency Costs, Charitable Trusts, and Corporate Control: Evidence from Hershey's Kiss-Off.  What this article does well is "crunch the numbers" to answer the sort of open-ended question trusts-and-estates litigators face all the time: Is a particular investment strategy in the "best interests" of the trust's beneficiaries? Crunching the Numbers: Being non-math types, lawyers and judges often shy away from the type of quantitative, objectively-verifiable, empirical analyses employed in this article...

3d DCA: "Constructive trust": tool for recovering probate assets when the doors of the probate courthouse are closed to you

Posted on July 14, 2008
Klem v. Espejo-Norton, --- So.2d ----, 2008 WL 2511276 (Fla. 3d DCA Jun 25, 2008) What do you do if an heir shows up after the probate proceeding has been closed? You can try to reopen the estate under F.S. 733.903.  But what if that doesn't work, then what? The 3d DCA answers that question in this case by first suggesting that the plaintiff pursue a "constructive trust" theory, then explaining the quasi in rem jurisdictional basis for this type of claim...

5th DCA: Appellate court cuts winning side's fees

Posted on July 10, 2008
Hoegh v. Estate of Johnson, --- So.2d ----, 2008 WL 2605068 (Fla.App. 5 Dist. Jul 03, 2008) In this case there's no question whom the courts considered to be the villain of the story. According to the trial court Hoegh, the appellant and pro se litigant, attempted to "perpetrate a fraud on the court" by knowingly seeking to have a forged will admitted to probate...

S.D.Fla: Trust litigation bounced from federal court: federal trial courts lack jurisdiction to review final judgments of state courts

Posted on July 10, 2008
Staup v. Wachovia Bank, N.A., Slip Copy, 2008 WL 2598005 (S.D.Fla. Jun 27, 2008) The substantive issue in this case is pretty simple: if you lose in state court, you don't get another bite at the apple by simply re-filing your same case in federal court...

4th DCA: When a joint bank account is created with the funds of one person, there is a presumption of a gift to the other person which may be rebutted only by clear and convincing evidence to the contrary

Posted on July 07, 2008
Julia v. Russo, --- So.2d ----, 2008 WL 2596324 (Fla. 4th DCA Jul 02, 2008) The 4th DCA reversed itself on an important point involving joint bank accounts, withdrawing this opinion and replacing it with the linked-to opinion above. The issue on rehearing was a simple evidentiary burden-shifting question: If a decedent funded a bank account 100% with his own funds, then put his girlfriend's name on the account, does the girlfriend have to prove the decedent intended to make a gift to her of a 50% interest in the account, or does the decedent's estate have to prove that the decedent did NOT intended to make this gift? The first time around, relying on two divorce cases to resolve this probate dispute (??!!), the 4th DCA said girlfriend bore the burden of proof...

Lawyer's Checklist: Assessment of Testamentary Capacity and Vulnerability to Undue Influence

Posted on July 04, 2008
If you're representing a plaintiff in an undue-influence or testamentary-capacity case, one of your first challenges is mapping out the questions you'll be asking when you depose the lawyer who drafted the will or trust being challenged...

1st DCA: Pending action to partition a joint tenancy with right of survivorship does NOT survive one joint tenant's death

Posted on July 03, 2008
Mercurio v. Headrick, --- So.2d ----, 2008 WL 2434193 (Fla. 1st DCA Jun 18, 2008) The finality of death is the sort of thing most people can figure out pretty much on their own. Unfortunately, once you walk into the alternate reality of litigation, just because your opponent is dead doesn't mean your case is over...

3d DCA: Genuine issues of material fact existed as to whether petitioners were legitimate heirs of decedent, precluding summary judgment

Posted on July 02, 2008
Berkow v. Isaevna, --- So.2d ----, 2008 WL 2511272 (Fla. 3d DCA Jun 25, 2008) Lest we forget, the 3d DCA reminds us all once again that a summary judgment hearing isn't a trial. The Appellants, Counter-Petitioners in a dispute over an estate that has escheated to the State of Florida, appeal an order that denied their motion for summary judgment, granted the Appellees/Petitioners final summary judgment, and awarded Petitioners the escheated funds...

Tobias Brothers, Widow Make Last-Minute Settlement Deal

Posted on June 16, 2008
A last-minute settlement deal means the widow of drowned hedge fund millionaire Seth Tobias will avoid a trial.  As reported here, here, lawyers for Filomena Tobias and Seth Tobias' brothers Friday night made a confidential deal avoiding a week-long trial expected to receive national attention and provide an inside look into a life of money, sex and drugs...

3d DCA: Trustee, acting solely in her capacity as trustee, has standing to bring a trust reformation action

Posted on June 14, 2008
Reid v. Judea, --- So.2d ----, 2008 WL 2356814 (Fla. 3d DCA Jun 11, 2008) The linked-to opinion is interesting on several levels. 1.  First, for reasons not explained, the probate court in this case denied a motion to disqualify trial counsel who was also submitting evidence in his capacity as drafter of the contested trust agreement...

Kelley's Homestead Paradigm

Posted on June 13, 2008
Coral Gables trusts-and-estates attorney Eric Virgil recently posted a PDF copy of Kelley's Homestead Paradigm on the list service for the RPPTL section of the Dade County Bar Association.  This handy chart was developed by one of the deans of Florida probate law, Rohan Kelley, and is exactly the type of resource I like to post on this blog for future reference.

Study Reveals Ultra-High-Net-Worth Family Businesses Are Not Implementing Succession Plans and Asset Protection Strategies

Posted on June 12, 2008
File this under business development for all you trusts-and-estates planners out there.  A new study sponsored by U.S. Trust, Bank of America Private Wealth Management finds that the majority of owners of ultra-high-net-worth family businesses are leaving their professional and personal interests vulnerable through inadequate business succession, asset protection and estate planning...

Bill Murray's Pre-nup: Florida Adopts the Uniform Premarital Agreement Act

Posted on June 06, 2008
Slate recently reported here on Bill Murray's brewing divorce. From a practitioner's standpoint I was especially interested to find excerpts of original source documents - including Murray's prenuptial agreement - reproduced in the Slate post...

Florida Bar Real Property Probate and Trust Law Section Fellowship Applications

Posted on June 02, 2008
The Florida Bar Real Property Probate and Trust Law Section has developed a new Fellowship program aimed at encouraging junior attorneys (i.e., under age 36) to become involved in the Section. Breaking into this niche ain't easy, so anything the Section can do along these lines is a good thing...

Heath Ledger's Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father's Will, Might Have a Claim to Everything

Posted on May 30, 2008
Law professors Joanna Grossman and Mitchell Gans, both of Hofstra University, published an interesting two-part article dissecting the outcome of Heath Ledger's untimely death from a probate point of view. Entitled Heath Ledger's Estate: Why Daughter Matilda, Who Was Left Nothing in Her Father's Will, Might Have a Claim to Everything, the article is worthwhile reading for all probate practitioners because it provides a useful outline for thinking about any estate involving a pretermitted child...

2d DCA: How to contest jurisdiction in probate proceedings

Posted on May 28, 2008
Hall v. Tungett, --- So.2d ----, 2008 WL 2065802 (Fla. 2d DCA May 16, 2008) Jurisdictional issues in probate proceedings are a source of recurring confusion for litigants and courts alike. If the court is proceeding based on its in rem jurisdiction, then under F...

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