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Florida Probate, Trust and Estate Blog

Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010

On December 17, 2010, President Obama signed the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010 (the 2010 Act).  The 2010 Act provides for extension of the Bush tax cuts from 2001 and 2003 until 2012, as well as a variety of other tax reductions.   Here are the some of the highlights.

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No Bank Liability for Power of Attorney Use

Powers of attorney create enormous temptations for the power-holder to alter the principal's estate plan through the retitling of assets.  In Beane v. Suntrust Banks, ___ So.3d ___ (Fla. 4th DCA November 10, 2010), a power-of-attorney holder did just that.  The deceased had funds in Suntrust Bank in a Totten trust account, which named Frances Wallin as the beneficiary of the account, to be paid upon the deceased's passing.  The deceased gave a general power of attorney to Deborah Lorenzo.  The next day, Lorenzo withdrew all of the money from the Suntrust account, placing all of the money in a different account, in the name of a relative of Lorenzo. 

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Inheritance Theft by Fiduciaries

Over past 12 months, we have handled a number of cases involving outright theft of fiduciary funds by personal representatives and trustees.   In the case of a probate estate, unless the court has ordered the personal representative to post bond, the heirs of the estate have no recourse if funds are stolen, other than to obtain a judgment against the personal representative, which ends up likely as not collectable. Some jurisdictions in Florida, notably Miami, require all personal representatives to place estate funds in restricted depository accounts or to post bond.  Most other jurisdictions in Florida, however, require neither from most personal representatives.

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Paternity in Probate Litigation

Establishing paternity in probate proceedings is a common issue, especially with the widespread availability of inexpensive and highly reliable DNA testing.  The rules for establishing paternity in Florida probate proceedings, however, have a number of hurdles, some of which intentionally deny biological paternity from controlling the outcome.

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Can a Missing Will Go Through Probate in Florida?

In probate proceedings, it is not unusual for the original of the will to be missing, and only a copy of the will can be located.  Florida law allows the copy of the will to be probated, but any person adversly affected by the copy can challenge the admission of the copy of the will to probate.

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Is it Estate Planning Malpractice To Have Ignored the Estate Tax 2010 Repeal?

With the passage of the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRA), estate planners were on notice that there would be no estate tax in 2010.  Unfortunately, very few estate plans have been drafted to take into account this one-year repeal.

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Is a Guardianship Necessary to Hire a Personal Injury Lawyer for Minors and Incapacitated Persons?

In Re Guardianship of Deily, (Fla. 2nd DCA January 15, 2010)

Whenever a minor or incapacitated person is injured and a lawsuit is warranted, the question arises as to who has authority to hire a personal injury attorney, and on what terms.

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Estate Tax 2010: Timing the Test Case for Retroactivity

In a startling display of Congressional ineptitude, Congress allowed the estate tax to expire as of January 1, 2010.  Before the trust fund babies trade in their Porches for Lamborghinis, realize that Congress may successfully enact an estate tax for 2010, and make it retroactive to January 1, 2010.  Although such retroactivity is likely to pass scrutiny, the results of any court  test are not likely to be resolved for years.  Here's why:

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