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News/Blog

Plain Meaning of the Trust is What Governs

August 15, 2019

The Second District Court of Appeal’s opinion in Ebeling v. Ebeling (June 7, 2019) reiterated this concept of trust construction.

In Ebeling, the trial court construed the terms of a trust to determine the entitlement to the trust’s assets.  The trial court’s decision on distribution to contingent beneficiaries named in the trust rater than the decedent’s estate was reversed.

The trust was governed by Illinois law but that did not make any difference. …

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Homestead Orders are Permissive

August 1, 2019

In the Fifth District Court of Appeal’s recent opinion in Mullins v. Mullins, June 7, 2019, the court reversed the probate court’s decision, holding that a will established the interest in the real property and not a homestead order from the probate court.

The will that was admitted to probate in this case devised the decedent’s property to her three children, giving a life estate to her two sons.  Subsequently the probate court entered a homestead order, reflecting that the property was devised in equal shares to the decedent’s three children, but the order did not mention the life estate interest of the two sons. …

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Ashes to Ashes – Ashes are not Property to be Divided

July 18, 2019

The question of whether ashes of a deceased person can be divided comes up often among family members, distraught over the loss of a loved one, and particularly in modern day family situations with divorced parents and blended families.

This question was answered in 2014 in the Fourth District Court of Appeal’s opinion in Wilson v. Wilson, 138 So. 3d 1176 (Fla. 4thDCA 2014).  Ashes are not property as defined by Fla. Stat. 731.201(32) and thus not subject to partitioning or division….

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Florida’s Homestead Waiver

July 2, 2019

Florida Statute 732.7025, effective July 1, 2018, set forth language to include in a deed for a spouse to waive his or her Florida homestead rights:

Section 732.7025(1) provides the following language: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.”

This is not a waiver of other protections. Subsection (2) sets these out: “The waiver language in subsection (1) may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death. …

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Disclaimer of Real Estate – Thanks But No Thanks!

June 24, 2019

The recent Third District Court of Appeal opinion in Lee v. Lee, (Fla. 3d DCA January 23, 2019), addressed the question of whether a legal description for a disclaimer of real estate is required on a disclaimer.  The short answer to this question is that a disclaimer of real estate is valid without a legal description of the property, if it not to be recorded for purposes of providing constructive notice to one doing a title search for the property….

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Charities Beware of Testamentary Bequests: The Cy Pres Doctrine

June 10, 2019

The Fourth District Court of Appeal’s decision in SPCA Wildlife Care Center v. Abraham, 75 So. 3d 1271 (Fla. 4thDCA 2011) reminds us that even a vaguely worded testamentary gift can be enforced, even if the named charity does not exist or the charitable intent of the testator is not worded as specifically as required.

What is the Cy Pres Doctrine? It is a principle that equity will turn a general charitable intent of a settlor to a specific one. …

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Appeals in Probate Cases

May 28, 2019

Rule 9.170 of the Florida Rules of Appellate Procedure provides a non-exclusive list of the types of orders that can be appealed from in probate cases. This Rule was recently examined by the Third District Court of Appeal, in the decision made in Maercks v. Maercks, on April 3, 2019.

In Maercks, the decedent executed a will that was admitted to probate.  She also executed a second document regarding distribution of her assets. …

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Deference to the Intent of a Testator or Settlor

May 13, 2019

The Third District Court of Appeal’s recent opinion in Sibley v. Estate of Sibley, — So. 3d —, 2019 WL 1461325 (Fla. 3d DCA April 3, 2019) reminds us that a testator’s or settlor’s intent is to be given paramount deference in constructing the language of a testamentary document.

In Sibley, Charles Sibley, the trustee, appellant, and brother of the decedent, appealed the trial court’s order determining, inter alia, that the foundation-beneficiary of the trust was “not in existence” at the time of the decedent’s death. …

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Probate Trivia Night Winners

May 3, 2019

Three of our attorneys participated in the South Palm Beach County Bar Association’s Eighth Annual Probate Trivia Night on May 2, 2019, held at the Bocaire Country Club in Boca Raton, Florida.  After three rounds of trivia questions and two tiebreaker rounds, our three attorneys prevailed!  Their prize winnings included gift cards, “Speed Passes” to a motion calendar hearing, and bragging rights as “Probate Code Mavens”.  Congratulations to Duane Pinnock, Adam Sabocik, and Allison Sabocik!

Pictured above are Duane, Adam, and Allison together with Ms….

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Changing of Venue in Trust Disputes

April 29, 2019

The Fourth District Court of Appeal’s recent opinion in Cohen v. Scarnato, issued April 10, 2019, has us again rethinking the appropriate venue in which to bring a trust dispute action.

Florida Statute 47.122 provides that “[f]or the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought.”  If seeking a transfer of venue under this section, and as explained by the Cohencourt, affidavits or other evidence are necessary to demonstrate the necessity for change of venue based on the statutory factors of convenience of the parties or witnesses or the interest of justice….

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