Boyes, Farina & Matwiczyk

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Trap for the Unwary: Florida Statute 736.0802

January 8, 2021

Even an experienced probate and trust litigator may get caught in this statutory land mine on the litigation battlefield.

Section 736.0802(10) of the Florida Statutes requires that notice be given to the be beneficiaries about payment of legal bills, when the trustee desires to defend claims of breach of fiduciary duty, breach of trust, removal of trustee, or other similar claims.  Notice must be provided in this instance prior to the trustee paying his attorney his or her legal bills….


New Statutory Requirements for an Attorney Serving as Personal Representative or Trustee

December 18, 2020

The new changes to Fla. Stat. 733.617 of Florida’s Probate Code and Fla. Stat. 736.0708 of Florida’s Trust Code now require a written statement by the testator of a will or settlor of a trust, acknowledging that the attorney made certain disclosures to them before the will or trust was signed.  These changes became effective on October 1, 2020.

The new section in Fla Stat. 733.617(8), applicable to wills, provides:

(8)(a) An attorney serving as a personal representative, or a person related to the attorney, is not entitled to compensation for serving as a personal representative if the attorney prepared or supervised the execution of the will that nominated the attorney or person related to the attorney as personal representative, unless the attorney or person nominated is related to the testator, or the attorney makes the following disclosures to the testator before the will is executed:…

Subject to certain statutory limitations, most family members, regardless of their residence, and any other persons who are residents of Florida, including friends and corporate fiduciaries, are eligible to serve as a personal representative;


Undue Influence: Tittle v. Dahm, — So. 3d — 2020 WL 6053264

December 3, 2020

The October 14, 2020 opinion from Florida’s Third District Court of Appeal affirmed the trial court’s denial of a petition for administration, grounded on a finding of undue influence.

The takeaway from this opinion is the Third District’s explanation that the factors in the seminal case of In re Carpenter’s Estate, 253 So. 2d 697, 702 (Fla. 1971) are not an exhaustive list, but rather are illustrative and aid the trial court in “looking for those warning signals pointing to active procurement of a will by beneficiary.” (Citations omitted.)

With the exception of purported undue influence by a spouse, undue influence is presumed when (i) a person with a confidential relationship with the testator, (ii) was active in procuring or securing the preparation or execution of the devise and (iii) is a substantial beneficiary thereof. …


Schlossberg v. Estate of Kaporovsky, — So. 3d — , 2020 WL 4496139 (Fla. 4th DCA Aug. 5, 2020)

November 19, 2020

In this recent decision, the Fourth District Court of Appeal reviewed the requisites for execution of a deed.  The Fourth District explained that where all essential legal requisites are present, legal title is conveyed, and that void deeds would be limited to forged deeds or deeds that violate constitutional homestead protections.  Here, the trustees signed a deed transferring a condominium out of the trust to the settlor, and a beneficiary then challenged the validity of the deed.  Due to the unique nature of the revocable trust involved and the settlor’s right to control the disposition of her own property, namely her condominium, the appellate court found that the trial court erred in declaring the deed void….


Discovery on the Internet of Things (“IoT”) and Probate Litigation

November 3, 2020

What does the phrase “Internet of Things” really mean?  The Internet of Things, or “IoT”, refers to the connection of everyday objects or devices to the internet, like wearable devices (such as Fitbits, Garmins, and Apple Watches), home electronics (such as Ring doorbell cameras, Nest cameras and home thermostats), devices that use natural language assistants (such as Alexa and Siri), Smart TVs, computer technology integrated into cars (such as the Tesla), and many others. Many objects or devices that are connected to the internet and collecting data, whether by use of the device itself or in the cloud, may likely be part of or be connected to the IoT….


De La Riva v. Chavez, — So.3d — 2020 WL 5372283 (Fla. 4th DCA Sept. 9, 2020)

October 20, 2020

To sue an estate, there needs to be a personal representative.  An “estate” cannot be a party to a lawsuit.  This concept was again explained by the Court in the recent decision of De La Riva v. Chaves, — So. 3d —, 2020 WL 532283 (Fla. 4thDCA Sept. 9, 2020).  In De La Riva, the Fourth District Court of Appeal explained that, when trying to sue an estate:

“[I]t is well-settled that ‘an “[e]state” is not an entity that can be a party to litigation….


Teachers and Estate Planning in the COVID Era

October 5, 2020

School districts across the country are now faced with further unprecedented tests – beginning a new school year in the middle of the COVID-19 global pandemic.  With millions of confirmed cases in the United States, including hundreds of thousands of fatalities, it is undoubtedly concerning for teachers to go back into the classroom in fear of their own health and safety, even with some degree of remote or distance learning.  It is beyond heartbreaking for teachers to be feel forced between the career they chose and love and their health and safety. …


Reimbursement for Estate Related Expenses: Negedly v. Smith, 286 So. 3d 341 (Fla. 5th DCA 2019)

September 18, 2020

After the proper presentation of claims against a decedent’s estate, it is then a personal representative’s duty to pay valid claims to the extent of the funds and assets of the estate which he or she has in his or her hands, subject, of course, to the decedent’s debts.

It is a personal representative’s obligation to ascertain the propriety and existence of the decedent’s debts and pay (and/or settle) those debts. Payment of a claim depends on the circumstances of the case and the intent of the parties, as well as other elements necessary for a valid payment. …


Estate Planning for New Parents

September 8, 2020

Amid buying baby clothes, diapers, and toys, setting up a nursery, and managing the sleepless nights of new parenthood, estate planning may not be on the list of priorities for new parents.  What about considering how a child’s everyday needs would be met if they pass away: making sure they have well-balanced meals, seeing doctors for checkups, and getting a good education?  Admittedly, it is an uncomfortable thought, but nevertheless important to address through estate planning.

Estate planning is often bigger than just wills and trusts. …


Partner John Farina Receives AV Preeminent Highest Rating from Martindale-Hubbell

September 1, 2020

Partner John Farina is once again a recipient of the prestigious “AV Preeminent” peer review rating from Martindale-Hubbell. The “AV Preeminent” rating Mr. Farina has held since 1995 is the highest level of professional excellence and ethical standards an attorney can receive from the national attorney peer review rating service. The rating signifies that an attorney’s colleagues and the judiciary perceive him to be at the pinnacle of professional success.