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Florida Probate, Trust and Estate Blog

Adversarial Florida Probate Proceedings Are Governed by the Rules of Civil Procedure

Adversarial proceedings in Florida probate are governed by the Florida Rules of Civil Procedure.  Pursuant to Florida Probate Rule 5.025(d): After service of formal notice [declaring the proceeding adversarial], the proceedings, as nearly as practicable must be conducted similar to suits of a civil nature, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525 [governing motions for costs and attorneys’ fees].

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Florida’s Homestead Protection Cannot Preclude A Partition Action By An Owner

A partition action is used to force the sale of jointly owned property.  Typically, a partition is sought when co-owners of a piece of real estate are unable to agree as to how to continue their joint ownership of the subject property.  Florida law provides an absolute right to any co-owner of property to seek a partition. See Ch. 64, Florida Statutes.  While this absolute right to partition seems at odds with provisions of the Florida Constitution that protect homestead property from forced sale, Florida courts have repeatedly held that homestead property is subject to a partition action from a co-owner. 

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Florida Renunciation Rule– Distribution Does Not Bar Trust Contest In All Cases

Generally, a beneficiary is required to adhere to what is called the “qualified renunciation rule” when challenging a Trust.  The “qualified renunciation rule” requires a person that is contesting a trust through which he has derived a benefit to renounce his interest in the trust that he is challenging.  In Gossett v. Gossett, the Florida Fourth District Court of Appeal determined that a beneficiary's failure to repay distributions made to him from trust proceeds did not prevent him from challenging the fourth and fifth amended trusts of his father.

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Decedent’s Estate Held Not To Be An Indispensable Party

An indispensable party is a party to a lawsuit whose participation in the lawsuit is required for both jurisdictional purposes and for rendering the judgment.  “Indispensable parties are necessary parties so essential to a suit that no final decision can be rendered without their joinder.”  In a new appellate case from Florida, the court held that the estate was not an indispensable party in an attempt to void some inter vivos transfers, even though the estate would be the direct and immediate beneficiary from voiding such transfers. Parker v. Parker, (Fla. 4th DCA Feb. 3, 2016). 

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Failed Tenancy By the Entireties Converts to Tenancy in Common

Most married couples elect to hold their real property as tenants by the entirety.  A tenancy by the entirety is similar to a joint tenancy, except that it is reserved for married couples.  One of the advantages to a tenancy by the entirety in Florida is that the property is protected against creditor claims that may be made against one of the spouses.  

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Conflict From One Attorney Representing All Victims of Helicopter Crash Can Be Set Aside

Can an attorney represent the estate of a deceased accident victim and potential tortfeasors in a settlement with an insurance company?  According to the Third District Court of Appeals in Miami, in the absence of full disclosures of potential conflicts, obviously not.

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How to Challenge a Pay-On-Death Designation or “Will Substitute” in Florida

The law of undue influence in Florida is not limited to will contests alone. Trusts, beneficiary designations and any other testamentary instruct can be challenged under the reasoning and logic of the seminal Florida Supreme Court case of Estate of Carpenter.   The reasoning in Carpenter, if “a substantial beneficiary under a will occupies a confidential relationship with the testator and is active in procuring the contested will, the presumption of undue influence arises” applies to challenges to testamentary transfers and “will substitutes” as well.

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Final Judgment Merges And Disposes Of All Interlocutory Orders

Although it may be common knowledge to practitioners, many forget that interlocutory orders—those orders, decrees, or judgments entered at an intermediate stage of the litigation—are merged in, and disposed of, when the Court enters a final judgment.  After the Court enters a final judgment, earlier nonfinal judgments in a proceeding merge into the final judgment. 

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Federal Interpleader Case Involving Slayer Statute Dismissed

Normally, a federal court is required to proceed with a case in which it has jurisdiction.  Actions for declaratory relief, however, are treated differently, and the federal court has wide discretion to accept the controversy.  Here, a federal court declines to hear a life insurance interpleader case involving the assertion of a slayer statute, because of the pendency of state court litigation on the same subject.

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Florida Guardianship Can Be Dismissed Prior to Adjudicatory Hearing On Capacity

Voluntary dismissal or settlement of a guardianship proceeding has been a hotly debated issue in Florida guardianship practice.  In Forman v. Gort, recently decided by the Florida Fourth District Court of Appeal, a settlement agreement entered into by an alleged incapacitated person prior to a hearing on incapacity was upheld.

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