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Florida Probate, Trust and Estate Blog

Estate Planning for Obama's Second Term

With the re-election of Barack Obama to a second term, we know that we are likely to see higher taxes and further redistribution of wealth.  There is less than 8 weeks left to take advantage of the current tax law to implement estate planning techniques to minimize future estate and gift taxes.

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Can a Step-Child Inherit Protected Homestead Free of Creditor Claims and Expenses of Administration?

Florida law also provides that the protected homestead is not subject to administrative expenses of the estate.  Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006). Protected Homestead is also not subject to creditor claims. Id. See also Art. X, § 4(a)(1), Fla. Const.  The Florida Constitution further provides that such exemptions inure to the heirs of the owner. Art. X, § 4(b), Fla. Const.  An heir is defined as a person who is “entitled under the statutes of intestate succession to the property of the decedent.” Fla. Stat. 731.201(20).  Therefore, even in a testate estate, we look to the statute of intestacy to determine who is an "heir" that can inherit protected homestead. 

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Removal of Trustee - Are Notice and an Evidentiary Hearing Required Under the Florida Trust Code?

When trustees fail to perform their duties as trustee, the Florida Trust Code provides a number of remedies, including removal of the trustee.  In Kountze v. Kountze, from Florida's Second District Court of Appeal, the trustee had apparently failed to respond to some discovery.   The beneficiary suing the trustee requested that a hearing be held on the failure to respond and asked, in his motion, that the trustee be required to pay attorney fees. There was also a prior order from the trial court requiring the trustee to respond to the discovery or face monetary penalty.

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Florida Appellate Attorneys' Fees: State Your Grounds

A motion for appellate attorneys’ fees “shall state the grounds on which recovery is sought.”  Florida Rule of Appellate Procedure 9.400(b).  In Pardo  v. Goldberg, (Fla. 3d DCA July 18, 2012) the Florida Third District Court of Appeal confirmed the importance of specifically stating the grounds upon which appellate fees are sought.

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Trust Reformation Denied on Change of Circumstance / Life Insurance Not Protected from Creditors

In Morey v. Everbank, (July 24, 2012 1st DCA), the Court determined that life insurance death benefit was not protected from creditors because the death benefit was payable to a trust with language fatal to the interests of the beneficiaries.

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Ward With Emergency Temporary Guardian Lacks Legal Capacity to Execute Trust

In the recent decision of Jasser v. Saadeh, the Fourth District Court of Appeal determined that a ward, with an emergency temporary guardian who has been granted all of the ward’s legal rights, lacks legal capacity to enter into trust agreements.  Any trust agreement entered into by the ward is void ab initio.

Guardianship proceedings were initiated against Karim Saadeh, and the Court appointed an emergency temporary guardian (ETG).  In appointing an ETG for Saadeh, the trial court removed all of Saadeh’s rights, except his right to vote.  The order appointing the ETG delegated to the ETG the power to exercise all delegable legal rights and powers of Saadeh with the exception of Saadeh’s right to vote.

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Formal Notice in Florida Probate - Failure to Respond Cannot Lead to Default

Florida probate procedure provides for the concept of formal notice.  Any person involved in a probate can serve other interested persons with a pleading or motion, and serve it via formal notice, pursuant to Florida Probate Rule 5.040, as follows:

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Florida Intestacy Law Applied to Deny Social Security Benefits to Posthumously Conceived Children

The United States Supreme Court, in the recent case of Astrue v. Capato, used Florida intestacy law to determine that the Social Security Act (Act) does not apply to extend benefits to children conceived and born after a Florida wage-earner’s death.

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Statute of Limitations to Challenge Trust Administration

Because of the volume of trust activity in Florida, the Florida legislature has gone to great lengths to protect the beneficiaries of trusts from trustees not doing their jobs properly. Under Florida law, trustees are required to provide an accounting to the beneficiaries of the trust on an annual basis. When a trust is administered by a family member or other person not in the trust business, it is rare to see compliance with the requirement to fully and properly account annually. What happens when a beneficiary wakes up after years or decades of the trustee's noncompliance with the annual accounting rule?

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New Florida Homestead Law for Surviving Spouse

Florida's Homestead Law provides unique protections for surviving spouses.

Background

Under the Florida Homestead Law, surviving spouses are entitled to no less than a "life estate" in the homestead property, and depending on the family composition, the surviving spouse may be entitled to the entire homestead property.  The Florida Homestead protections are rights created under the Florida Constitution, to fully protect the surviving spouse after the death of the first spouse to pass away.  

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