Boyes, Farina & Matwiczyk

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Notables

Ashes to Ashes – Ashes are not Property to be Divided

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….

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Florida’s Homestead Waiver

…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. 

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Disclaimer of Real Estate – Thanks But No Thanks!

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

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.

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Appeals in Probate Cases

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.

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Deference to the Intent of a Testator or Settlor

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.

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Probate Trivia Night Winners

…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”. 

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Changing of Venue in Trust Disputes

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 Cohen…court, 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 – Claim Lottery Anonymously

…If you have won the lottery, then most certainly, congratulations are in order.  However, before Florida lottery winners, 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

…Can a Florida Estate Be Reopened After Probate?
Just because a probate in Florida has been closed by a 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. 

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