Boyes, Farina & Matwiczyk



Can an Irrevocable Trust be Modified Under Florida Law?

The short answer to this question is yes.

What is an irrevocable trust?  It is a trust document that generally is not subject to revocation or modification, once executed and funded. There are exceptions which may permit the changing of the terms of an irrevocable trust.

The Florida Trust Code, Chapter 736 of the Florida Statutes, allows a court to modify an irrevocable trust where the modification is consistent with the intent of the grantor….

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Husband Improperly Transferred Millions to His Girlfriend Without Wife’s Knowledge

Wallace v. Torres Rodriguez, — So. 3d —, 2022 WL 1481782 (Fla. 3d DCA 2022)

This recent case from the Third District Court of Appeal involved a husband, a wife, and the husband’s longtime girlfriend.

In 2010, the wife, Patricia, asked her attorney to draft an irrevocable trust agreement for both her and the husband, Milton….

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Interested Person Properly Challenges Estate Administration Expenses

Duff-Esformes v. Mukamal, 332 So. 3d 17 (Fla. 3d DCA 2021)

The appellant in this case, Elizabeth Ann Duff-Esformes, was the Decedent’s surviving spouse, one of two beneficiaries of the Decedent’s estate.  The other beneficiary was the residual beneficiary, the Nathan J. Esformes Living Trust, to which the appellant was the sole beneficiary as well. …

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Pretermitted Children

In Florida, a child who is born or adopted after their parent is called a “pretermitted child” and can inherit from their parent’s estate, as set forth in Fla. Stat. §732.302:

732.302 Pretermitted children.—When a testator omits to provide by will for any of his or her children born or adopted after making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall receive a share of the estate equal in value to that which the child would have received if the testator had died intestate, unless:…

It appears from the will that the omission was intentional;

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Considerations of transfers of property by deed

Sometimes clients inquire about adding their children’s names to the deeds on their homes – thinking this plan would avoid probate or perhaps in an effort to protect the home from claims, even if the home is protected homestead.  Generally speaking this may not be a good idea. 

One reason is that, upon death, your assets receive what is called a “step up” in basis – basis is a tax term which describes the amount of income received when an asset is sold, i.e., the original purchase price. …

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Timing is Everything

Rasor v. Estate of Rasor, — So. 3d —, 2022 WL 945667, 47 Fla. L. Weekly D759 (Fla. March 30, 2022)

Timing really is everything, as the Fourth District explained in its recent opinion in the Rasor v. Estate of Rasor decision of March 30, 2022. 

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What is an Affidavit of Heirship?

When someone dies intestate – without a will – and leaves behind property, a probate case will need to be opened to distribute that property to the decedent’s heirs.  An Affidavit of Heirship is a sworn statement – a document which has to be signed by the proposed personal representative in the presence of a notary – that lists the decedent’s known family members at the time of the decedent’s death, and how they are related to the decedent….

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The probate court cannot prematurely discharge a personal representative, but must allow for the statutory time for objections to be filed with the court

Florida Probate Rule 5.400, entitled “Distribution and Discharge”, requires a personal representative to file a final accounting and a petition for discharge, together with a plan of distribution.  This is filed once the personal representative has completed their administration process and are about to distribute the last remaining assets.  One of the items which is also part of the petition for discharge is listing the compensation paid or proposed to be paid. …

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Relation Back Doctrine

The recent case of Estate of McKenzie through McIntosch v. High Rise Crane, Inc., 326 So. 3d 1161 (Fla. 1st DCA 2021) emphasized that a personal representative’s powers relate back and have the same effect as those occurring after a personal representative’s appointment. 

Specifically, the First District looked at the “relation back doctrine” as set forth in Fla….

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Removal of a Personal Representative in a Florida Estate

Generally speaking, a personal representative is charged with a fiduciary duty to administer the estate for the interest of its beneficiaries, and is required to observe the same standards of care as trustees.  Fla. Stat. 733.602(1).

A personal representative’s duties are set forth in the Florida Probate Code (Fla.

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