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Florida Probate, Trust and Estate Blog

Non Probate Asset Controlled by Beneficiary Designation, Not the Will

Can a court, carrying out the terms of a will, control the disposition of a non-probate asset?  A recent federal case explains that non-probate assets are not controlled by the terms of a will, even if the will explicitly attempts to dispose of the asset.  Instead, if the non probate asset has a beneficiary designation, that beneficiary designation will control the disposition of the asset.

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How to Subpoena An Out of State Witness In New York For Florida Litigation?

Very often, especially in a probate, trust, or guardianship matter, a crucial witness will be out of state.  Routinely in Florida, for example, we find it necessary to take testimony of witnesses located in New York.  Under New York law, there are two methods for doing so.

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Florida Probate Creditor Claim Not E-Filed Rejected as Untimely

Creditor claims in Florida probate actions are often the topic of litigation, particularly when it comes to the timely filing of a statement of claim by a creditor.  In United Bank v. Estate of Edward Frazee, the Florida court of appeal ruled that even though a creditor claim was timely received for filing by the clerk of court in paper format, the creditor claim was untimely because the attorney did not e-file the creditor claim. 

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Relation Back Doctrine Validates Notice to Creditor Published Prior to Appointment

Whether a creditor claim has been timely filed in a Florida probate proceeding is an often-litigated issue.  For all creditor claims, they must be filed in the probate proceeding no later than two years after death.  If the personal representative publishes a notice to creditors in the local newspaper, creditors have three months within which to file a creditor claim.  If the creditor was "reasonably ascertainable," the creditor has at least 30 days from receipt of the notice within which to file the creditor claim (but in no event more than two years from death).  A reasonably ascertainable creditor who does not receive a notice to creditors is only barred by the two year time limit. 

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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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How to Revoke a Revocable Trust in Florida

A revocable trust is in many ways like a will, as both can direct the transfer of property on death.  When someone wants to revoke a will, the law provides many ways to do so, including destroying the will and throwing away the will.  Indeed, if the original of a will cannot be found, Florida law presumes that the will was destroyed with the intent to revoke it.  A revocable trust is trickier, especially if the trust was funded by the settlor during death.  How can one be sure whether the trust was revoked by the settlor?

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How to Enforce Payment of Unpaid Retirement Benefits Due From Divorce After Death

With fifty percent of all marriages ending in divorce, it is common for people to pass away with unfulfilled obligations from an earlier divorce, be those unpaid child support or alimony, or to provide certain benefits to the prior spouse at death under a divorce agreement.  

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How To Establish Federal Diversity Jurisdiction for an Estate

Diversity jurisdiction is one of the two primary ways in which to acquire Federal jurisdiction over a controversy.  Diversity jurisdiction requires that all plaintiffs be diverse from all defendants.  Diversity is tested based on the citizenship of each party.  For individuals, citizenship is usually straightforward - it is domicile.  For an estate, is citizenship determined based on the citizenship of the personal representative, or that of the decedent?

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Florida Probate Creditor Claims For Child Support Arrearages

Can an adult child bring a claim against a deceased parent’s estate for unpaid child support owed pursuant to a marital support agreement if the living parent has filed a claim? In Davis v. Hengen, the Florida appellate court provided the answer: no.

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Review of Attorney Jeffrey Skatoff

A recent review of attorney Jeffrey Skatoff from a client. Jeff Skatoff and Susan Wear and Staff: Sincerest thanks for a superb defense of our position.  It was a pleasure dealing with you both.  If you ever need a recommendation, I would be proud to give you a "Triple A" rating!  Best wishes for your continued success. Signed, N.R and L.R.

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