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Florida Probate, Trust and Estate Blog

Florida Slayer Statute in Federal Interpleader

Most states, including Florida, have a "slayer statute," which denies an inheritance to a beneficiary who killed the deceased person.  But is a murder conviction required to trigger a slayer statute?  A recent Federal opinion holds that a murder conviction is not required, only that the court determine it "more likely than not" that the person wrongfully caused the death of the decedent.

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Florida Probate Court Must Appoint Representative Upon Death of Florida Litigant

What happens when a party to a Florida lawsuit dies, but the lawsuit continues on?  The process is straightforward, yet many practitioners are unaware of how to proceed.  In Gomez v. Fradin, one of the defendants passed away during the pendency of the case.  Plaintiffs moved to substitute parties pursuant to Florida Rule of Civil Procedure 1.260, and asked the trial court to appoint a representative of the decedent in the proceeding for breach of fiduciary duty because no estate had been opened for the decedent.  The Florida trial court denied the motion. 

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Statute of Limitations for Paternity in Florida Probate

A child may establish paternity in Decedent’s probate estate, provided the child complies with the statute of limitations governing such paternity claims.  See Fla. Stat. § 742.10(1). 

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Personal Representative Cannot Waive Privilege Between Guardian and Attorney

A recent federal case holds that the personal representative of an estate cannot waive the attorney-client privilege between a guardian and the guardian's attorney.

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Partially Incapacitated Ward Makes Valid Deed

When a person is found incapacitated and placed under a guardianship, the exercise of some or all of that person’s rights are exclusively delegated to the guardian.[1]  That is, those rights which the court finds the person (ward) unable to personally exercise can only be exercised by the guardian.  Thus, when a ward takes an action which he or she has lost the right to take, that act is typically void ab initio and treated by the courts as if it never happened. 

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When Is A Guardian Ad Litem Required for Personal Injury Settlement

Florida law has very strict rules regarding the representation of the economic interests of minors in legal proceedings.  For instance, a minor’s parents can settle claims on their child’s behalf without court intervention when the gross value of the settlement is $15,000 or less.  When a minor has an interest in a settlement whose gross value is greater than $15,000 but less than $50,000, the court has discretion to require appointment of a guardian or guardian ad litem.  If a minor has an interest in a settlement whose gross value—irrespective of the portion to which the minor is entitled—exceeds $50,000, the court must appoint a guardian or guardian ad litem. 

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Attorneys of Clark Skatoff Successfully Administer Joint Florida - Canadian Estate

Florida has long been a haven for seasonal residents and “transplants” who have relocated or retired to Florida.  From a probate standpoint, it is not uncommon for these individuals to hold property—real estate in particular—outside of Florida at the time of death.  When a Florida resident dies owning real property outside of Florida, a foreign probate, known as ancillary administration, may be required.  Recently, as a result of a very unique litigated matter, the attorneys of Clark Skatoff PA successfully completed the administration of an ancillary probate in the province of British Columbia in Canada. 

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Brian Spiro Achieves 110% Result For His Clients, Literally, In Undue Influence Case

Brian Spiro and the attorneys at Clark Skatoff successfully resolved a probate and trust dispute by providing a tremendous result for their clients. On behalf of the Decedent’s intestate heirs, challenges were raised to three (3) wills and four trust (4) amendments.  Every such document needed to be invalidated in order to prevail.  An uphill battle to say the least.  Mr. Spiro gave a 110% effort in order to achieve a result equivalent in percentage to his effort.  In short, Mr. Spiro was able to provide his clients a recovery approximately 10% greater under the settlement than his clients could have achieved had they been successful in trial. 

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Can a RICO Claim be Brought Against an Executor of an Estate?

The Racketeer Influence and Corrupt Organizations Act ("RICO") can be used as a civil remedy in instances of a pattern of significant criminal activity.  RICO provides for treble damages.  The Court of Appeals for the Second Circuit recently ruled that RICO claims can be brought in connection with unlawful activities by an executor or personal representative, in connection with the estate of the father and financial backer of noted fashion designer Vera Wang. 

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Probate Exception Applies to Remand of Turnover Action

Federal courts will not hear disputes over property in the custody of the state probate courts. In Pollok v. The Vanguard Group, Inc., Case No.: 8:16-cv-836 (C.D. Cal. Aug. 22, 2016), the Administrator—Personal Representative or Executor, an estate fiduciary depending on which state you are located in, filed a petition in the California probate court seeking a Turnover of Estate Property.  A turnover action is just as it sounds; it seeks the return of property being held by another, in this case a financial institution.

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