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Florida Probate, Trust and Estate Blog

Settlor's Removal of Funds from Revocable Trust: No Undue Influence Remedy

In MacIntyre v. Wedell, 12 So.3d 273 (4th DCA 2009), the Court dismissed a challenge to the settlor's removal of funds from her revocable trust on the grounds of undue influence.  Twenty five years ago, the Florida Supreme Court, inGenova v. Florida National Bank of Palm Beach County, 460 So.2d 895 (Fla. 1984), barred an undue influence challenge to a settlor's removal of funds from her revocable trust.  The litigation in that case occured while the settlor was still alive.  In MacIntyre, the settlor had died before the litigation commenced.

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Estate Tax Analysis: How Much Revenue Does the Estate Tax Raise?

The Congressional Budget Office has just released an Issue Brief on Federal Estate and Gift Taxes, setting forth the revenue that the estate and gift tax raises, how such revenue is affected by the various proposals for estate and gift tax reform, and a detailed explanation of the various reform proposals.

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Florida Inheritance Tax: Is There One?

We are often asked whether Florida imposes an inheritance tax or estate tax on the estates of deceased persons.  Thankfully, there is no Florida inheritance or estate tax.  

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Florida Inheritance Laws: No Will

When a Florida resident dies without a will (known as intestacy), Florida inheritance laws provide who in the family is entitled to inherit from the estate.   If there is a surviving spouse, the surviving spouse takes the following portion of an estate (Florida Statute Section 732.102):

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Creditor Claims in Probate - Timing is Everything

Creditor claims in probate are subject to two statutes of limitation within which a creditor claim must be filed with the probate court.  

The first creditor claim limitation period is the 30 day / three month rule, which requires that a claim be filed within the later of (i) 3 months after the first publication of the notice to creditors (which is filed in the local business newspaper or the paper of general circulation), or (ii) 30 days after the creditor is served with a copy of the notice to creditors. 

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Tax Deposits in Estate Litigation

When large taxable estates are involved in litigation, estate tax issues can be tricky. This problem is most pronounced where one outcome of the litigation would result in less estate tax being paid. For example, if an adult child is the beneficiary of the last will, but a charity is the beneficiary of a prior will, and the child and the charity are litigating over which is the valid will, how much estate tax will ultimately be owed is unknown. 

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Undue Influence in Florida: Presumptions & Burden of Proof

Probate and trust litigators in Florida deal with allegations of undue influence in the creation of a will or trust more than any other issue.  Florida law makes use of a series of presumptions in controlling the outcome of undue influence cases.  

In Estate of Madrigal v. Madrigal (3rd DCA 2009), the appellate court affirmed the trial court's revocation of a will as a result of undue influence, basing its holding on the presumptions that apply in undue influence cases: 

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Estate Tax Fix Not Likely By Year End

Recent attempts to fix the impending repeal of the estate tax and subsequent re-enactment at higher rates have been reported by the New York Times, in Carl Hulse's article, Estate Tax Is Expiring, but Death Won’t Last.  

Under the Economic Growth and Tax Relief Reconciliation Act of 2001(EGTRA), the estate tax rates and exemption amounts have been sliding lower, from a top rate of 55% and an exemption amount of $1 million in 2001, down to a top rate of 45% and an exemption of $3.5 million in 2009. This change has reduced the number of taxable estates by 90%, some commentators have estimated.

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Partition Can Be the Solution For Florida Heirs

Florida’s homestead laws provide a number of ways in which heirs can end up as unwilling co-owners of real estate. A common way is if a parent dies with a primary residence but without a will, and has several adult children. Each of those children will end up as an equal co-owner of the property.

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Prevent Power of Attorney Abuse

Jeffrey Skatoff is interviewed in Kiplinger Retirement Report, August 1, 2009, on  Power of Attorney Abuse.

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