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Category:Blog

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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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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Lottery Trusts

April 22, 2019

If you have won the lottery, then most certainly, congratulations are in order.  However, before you collect your winnings, you may want to think about how you manage your brand-new wealth.  You may be excited to cash it in, go on a spending spree, buy a whole island or even just a new house, fancy sports car, pay off any debt, and send checks to your family and friends, aside from the initial payment of income taxes to the IRS. …

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Reopening a Florida Probate

April 15, 2019

Can a Florida Estate Be Reopened After Probate?

Just because a probate estate has been closed by a probate court, this does not mean that it cannot be reopened.  Indeed, public policy favors finality and the closing of estates.  A non-contested estate is supposed to be closed within 12 months from the issuance of letters of administration.  However, if probate assets are subsequently located after closure, a probate can be reopened to distribute those. SeeFla. Prob. R….

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Estate Planning For Same-Sex Couples

March 26, 2019

In the 2015 Obergefell v. Hodges decision, the United States Supreme Court upheld the right of same-sex couples to marry in all 50 states. This brought marriage equality to same-sex couples, no matter in what state they reside. Since then, same-sex married couples have been able to do their estate planning just as heterosexual couples.

Estate planning is something that must be revisited intermittently and carefully reviewed, particularly with same-sex couples. Challenges remain for same-sex couples who entered into legal unions, domestic partnerships, or other civil unions prior to marriage being an option for them….

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4th DCA: What’s a “qualified beneficiary” and why should trustees care?

February 20, 2019

Under Florida’s Trust Code there are two classes of beneficiaries, and which class you fall in is a big deal.

As defined in F.S. 736.0103(4), the term “beneficiary” refers to the entire universe of persons who have a beneficial interest in a trust, as well as to any person who has a power of appointment over trust property in a capacity other than as trustee. For purposes of this definition it’s immaterial whether the beneficial interest is present or future, vested or contingent, or whether the person having the interest is ascertainable or even living….

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Rizk v. Rizk, 2018 WL 631228 (Fla. 3d DCA Dec. 4, 2018)

February 7, 2019

Issues surrounding wills executed outside of the state of Florida, or even outside of the country, may present an interesting analysis on whether the will can be determined valid in Florida.

In this recent opinion from the Fourth District Court of Appeal, the Decedent’s brother was a Haitian native, and just a few months before his death, he prepared a will pursuant to the dictates of Haitian law. Per the court’s opinion, this requires the testator to dictate the will to a Haitian notary, who transcribes it and reads it back to the testator, after which the will is signed by the testator, a notary, and 4 witnesses, and the original will is registered by the notary with the Haitian Tax Office and the notary keeps the original….

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Cook v. Cook, 2018 WL 4520379 (Fla. 4th DCA Sept. 20, 2018, rehearing granted Nov. 28, 2018)

January 31, 2019

The ward in this guardianship case was found to be completely incapacitated, and the trial court imposed a plenary guardianship on him. However, the Fourth District Court of Appeal reversed, finding that the three-person examining committee made their determinations for purposes of their required reports, reporting that a plenary guardianship should be imposed, and without conducting comprehensive examinations of the prospective ward. What does this mean? As a matter of public policy, individual rights and freedoms should not be restricted unless necessary for the safety and protection of your loved one….

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Senopoulos v. Senopoulos, 253 So. 3d 1228 (Fla. 3d DCA 2018)

January 24, 2019

A probate court has the authority to appoint someone to serve as personal representative other than the statutorily entitled person to serve, if, on evaluating a person’s fitness to serve, it makes appropriate findings.

In this recent Third District Court of Appeal opinion, the trial court’s decision was reversed because it failed to make such requisite findings. Here, the decedent and his wife were married for just four days before the Decedent died. The Decedent’s father filed a petition for Administration, seeking appointment as the estate’s Personal Representative….

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2019 Estate Planning

January 16, 2019

As the new year begins, and rather than wait for a life event to happen when you wish you had looked at your estate plan, now is a great time to review your current financial and estate plans. Even your plan that is just a few years old may be outdated, and so it may be time for an update.

For example, you may start planning for any gifts you wish to make in 2019. An individual now can give up to $15,000 to each recipient, without any limit on number of gifts;…

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