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Florida Probate, Trust and Estate Blog

No Florida Estate Tax or Income Tax

Florida continues to gain population at the expense of New York and other states in the Northeast.  Florida has no income tax, no estate tax, and no inheritance tax. 

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Challenged Trust and Power of Attorney Do Not Offer Less Restrictive Alternative to Guardianship

In Searle v. Bent, Anne Bent initiated a Florida guardianship proceeding to determine the capacity of her mother, Dain Searle.  Bent provided a verified statement alleging that Searle’s durable power of attorney and various estate planning documents executed after December 3, 2006 were invalid because of Searle’s lack of mental capacity or because the documents were the product of undue influence.  The Florida probate court found that the allegations in Bent’s verified statement called the documents into question, and that as a result the court could not rely on the estate planning documents as an alternative to guardianship. 

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Two Years For Creditor Claim in Florida Probate

The Golden Rule: Reasonably Ascertainable Creditors Who Are Not Served With Notice Have Two Years From Decedent’s Death to File a Creditor Claim. 

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Priority in Florida Probate - First to File

Florida is well-known for having a population of “snowbirds” — people who spend their winters in Florida and their summers up north.  What happens when a snowbird passes away?  Which state did the snowbird reside in?  Where should the snowbird’s estate be probated?  While the answers are dependent on the facts of each case, if competing petitions to administer an estate are filed in two different states, the principal of priority comes into play.  The Florida Fourth District Court of Appeal recently addressed the issue of priority in Perelman v. Estate of Perelman.

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Testate or Intestate Administration

Whether an estate involves litigation or not, a threshold issue any potential beneficiary or personal representative must address is whether the estate will involve testate or intestate administration.

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Pleading Standing in a Will Contest

One of the requirements in any litigation is the concept of standing.  In order to have standing, a plaintiff must allege that the plaintiff will personally benefit from the relief requested.  In a typical will contest, the plaintiff attempts to have the last will revoked, in favor of the prior will or the law of intestacy.  In order to maintain standing, the plaintiff in the will contest must allege that either (i) the plaintiff is a beneficiary of the prior will such that the plaintiff receives a larger bequest as compared to the last will, or (ii) under the law of intestacy, the plaintiff receives a larger share of the estate than as compared to the last will. 

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Trustee Surcharged $5.3 million for Breach of Trust

Trustee is surcharged for over $5.3 million as a result of numerous breaches of fiduciary duty and breach of trust, including failure to provide annual accountings, improper accountings, and excessive trustee fees. 

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Qualified Renunciation Does Not Apply to Self Settled Trust

In Fintak v. Fintak (2013 Fla. App. Lexis 13472), the Florida appellate court ruled that the settlor of a self settled trust need not renounce benefits under the trust to challenge the validity of the trust.  In Florida, this renunciation of benefits is often referred to as a qualified renunciation, in that the renunciation of benefits is only applicable in the event that the litigant is unsuccessful in setting aside the instrument. 

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Surviving Spouse Can Have Choice of Rights

Can you leave a surviving spouse a choice between a statutory minimum benefit and an alternative bequest?  In Dinkins v. Dinkins, 2013 Fla. App. LEXIS 11732 (Fla. Dist. Ct. App. 5th Dist. July 26, 2013), the Florida appellate court said yes - a choice is acceptable.

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Foreign Personal Representative Does Not Submit to Personal Jurisdiction in Florida

A foreign personal representative does not consent to personal jurisidction in Florida solely by taking action as a foreign personal representative in Florida. 

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