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Florida Probate, Trust and Estate Blog

Federal Estate Planning Malpractice Case Dismissed for Lack of Privity

A recent federal estate planning malpractice case is dismissed because of the lack of "privity" between the plaintiff and the drafting attorney.

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Marital Agreement Interpreted to Deny Spouse Additional Inheritance

Most lawyers use standard forms for agreements, at least some of the time.  These standard forms are useful so that lawyers do not have to re-draft language that usually remains the same in every agreement.  Such language, often referred to as "boilerplate," often controls the outcome of disputes over the meaning of an agreement, whether or not the language was specifically tailored for the circumstances of the parties.  A recent Florida appellate decision shows the importance of boilerplate language in resolving an estate dispute with a surviving spouse.

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Notarial Wills of Florida Nonresidents Valid Only If Signed By The Testator

In Malleiro v. Mori, Florida’s Third District Court of Appeal considered the competing wills of a nonresident – one will executed in New York, and one will executed in Argentina - to determine which will validly devised Decedent’s estate.  This issue is particularly important in Florida, where many people from foreign countries and other states come to enjoy their retirement years. 

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Florida Probate Court Has No Jurisdiction Over Out-Of-State Real Property

It is not uncommon for a resident of Florida to own real property in another state.  In Brown v. Brown, the Florida appellate court reminds us that a Florida probate court does not have jurisdiction over real property in another state, and thus cannot order the partition and sale of real property located outside of Florida.

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"Legal Gymnastics" Not Allowed to Re-Write Will After Divorce and Death

Under Florida law, the dissolution or annulment of marriage will invalidate provisions in Wills and Revocable Trusts that affect the former spouse.  The issue arises when married couples draft wills that leave their estates to one another, subsequently divorce and fail to change their testamentary plans prior to death.  The ex-spouse is treated as if she predeceased the decedent.  The law is clear

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Trustee Must Provide Notice to All Qualified Beneficiaries Before Invading Principal

In Harrell and Dake v. Badger, (Fla. 5th DCA June 12, 2015) the Florida court reversed a final judgment discharging the Trustee and an award of attorneys’ fees.  Badger, the trustee, among a litany of breaches of the fiduciary duty he owed to the Trust, failed to comply with section 736.04117 of the Florida Trust Code by not providing notice to the qualified beneficiary of the trust of a forthcoming invasion of the principal.

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How to Receive an Inheritance from Iran

The Iranian Transactions and Sanctions Regulations do not prohibit the receipt of an inheritance from Iran.  With proper documentation, the receipt of an inheritance from Iran is allowed.

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Virtual Adoption Not Undone By Developing Relationship With Natural Father

The Georgia Supreme Court recently held that once a child has been virtually adopted by an adopted father, the subsequent relation between the adopted child and the natural father does not sever the previous virtual adoption.

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Membership Interest in LLC Passes Outside of Probate Estate

Beneficiary designations and pay on death designations are often used as convenient mechanisms to avoid probate or trust administration.  Most banks and financial institutions allow their customers to name beneficiaries on their accounts and thereby avoid probate.  A new case from Florida shows how a mandatory deathime beneficiary provision in a membership agreement for a limited liability company results in the membership interest imediately vesting in the hands of the heirs, as opposed to going through probate. 

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Trust May Not Prevent Guardianship Control of Assets

Revocable trusts are used for two primary purposes - to avoid probate, and to keep assets out of a guardianship.  The Florida Guardianship Code, however, can allow a guardian to take control of the assets of a revocable trust, thereby eliminating one of the primary purposes of having a revocable trust established. 

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