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Florida Probate, Trust and Estate Blog

Qualified Personal Residence Trusts in Florida (QPRT)

qualified personal residence trust (QPRT) is an estate planning technique that can help reduce the size of the client’s taxable estate for estate tax purposes.  The technique was far more popular when the estate tax exemption amounts were far lower and the rates higher.

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Homestead Rights Waived By Deed Boilerplate Language

In the most recent Florida homestead case, the appellate court rules that boilerplate language in a deed operates as a waiver of the spouse's homestead rights.

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How To Contest Life Insurance Beneficiary

It is possible to contest the beneficiary of a life insurance policy after the death of the insured in a variety of situations.  Here are some ways in which the beneficiary can be challenged.

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Next of Kin Gives no Standing in Florida Guardianship Proceedings

Based on a recent appellate decision from Florida, "standing" in some guardianship matters has been severely curtailed to those persons with a direct interest in the proceedings. Being next of kin, standing alone, gives no standing to participate in some matters before the guardianship court. Spouses, adult children and parents of wards may have limited to zero rights to oversee and protect the affairs of their kinship and loved ones.

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Trust Protector Amendment During Litigation Upheld

Can a trust protector amend a trust in the middle of litigation, after the trial court has ruled adversly, to reverse the trial court's decision?  A new case from Florida holds in the affirmative, that a trust protector can amend a trust to undue an adverse ruling of a trial court.

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Florida Guardianship Court Orders Trust Accounting Where Commingling

At first glance, Florida statutes appear to clearly distinguish the law of trusts from that of guardianships, devoting one chapter (Ch. 736) exclusively to trusts and another chapter (Ch. 744) exclusively to guardianships. While the two seem conceptually, administratively, and legally distinct on paper, this is often not the case in practice—particularly where one individual is simultaneously serving as guardian and trustee.  Florida courts routinely address the interplay between these two fields, notably in the landmark case Covenant Trust Co. v. Ihrman, 45 So. 3d 499 (Fla. 4th DCA 2010).

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Florida Guardianship Court Permits Dismissal of Incapacity Petition

Sometimes, family members file a Petition for Incapacity over a relative.  Sometimes, the person filing the Petition for Incapacity wants to withdraw the pleading.  Perhaps the Petition was misguided, or the family is able to work things out without the benefit of the guardianship system taking control over the allged incapacitated person.  

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Florida Fiduciary Must Be Served With Formal Notice In Individual Capacity For Surcharge

 

In Kozinski v. Stabenow, the appellate court addressed the issue of personal jurisdiction over a personal representative and trustee in her individual capacity in a Florida probate proceeding.  Kozinski serves as trustee of trust created by Kozinski’s mother, and is also the personal representative of her mother’s estate.  Kozinski’s sisters, appellees Stabenow and Faul, along with Kozinski, are beneficiaries of their mother’s estate and trust.  Stabenow and Faul filed a petition to review the compensation paid to Kozinski as personal representative and trustee, as well as fees paid to Kozinski’s law firm and the law firm of Broad and Cassel.  Stabenow and Faul claimed that the fees were excessive.  Stabenow and Faul asked the court “to determine the reasonableness of the compensation and also ‘to enter such surcharge or disgorgement orders as are warranted,’ along with fees and other relief.”

 

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Attorney Fee Computed Under Probate Code Schedule = Breach of Fiduciary Duty

A probate and trust attorney charges his client the fee set forth by the Florida Probate Code and the Florida Trust Code.  Not only does the court reject the fee, the court holds that charging the fee was a breach of the lawyer's fiduciary duty.  Not only does the attorney have to pay back the fee, the court rules that the amount to be refunded is not dischargeable in bankruptcy.

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Can a Beneficiary Witness a Will to be Valid

We are often asked whether a beneficiary can witness a will.  Under Florida law, a beneficiary is permitted to witness a will, and if a beneficiary witnesses the will, such does not make the will invalid.

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