Probate Litigation

Probate litigation and Attorney-client privilege

November 28, 2017 | by Chepenik Trushin LLP

Where There’s a Will, There May Not Always Be a Way for Attorney-Client Privilege

Attorney-client privilege may not always apply in probate litigation. In fact, the Third District Court of Appeal has held that under the Florida Evidence Code, a lawyer may not invoke attorney-client privilege under certain circumstances.

Attorney-client privilege is a key hallmark of the attorney-client relationship. The privilege prevents disclosure of confidential communications pertaining to legal advice between a client and her attorney. Attorney-client privilege therefore promotes candor and better representation. Rule 4-1.6(a) of the Florida Rules of Professional Conduct states that “[a] lawyer must not reveal information relating to representation of a client . . . unless the client gives informed consent.” https://www.floridabar.org/rules/rrtfb/rule/?num=4-1.6. Further, under the official comments to Rule 4-1.6, a lawyer has an ethical obligation to assert attorney-client privilege on a client’s behalf, including during proceedings involving evidentiary matters.

If you cannot make your own healthcare decisions and have no estate plan, see the list below, as Florida will direct you

September 22, 2017 | by Chepenik Trushin LLP

Priority of Medical Decision-Makers when Incapacitated

Throughout life, many unexpected things can happen. Have you ever wondered who will get to make difficult medical decisions for you if you are incapacitated or otherwise unable to? The Florida Legislature has, in § 765.401 Fla. Stat. (1992), made a list in order of priority of such proxies.

The first person on the list is a court-appointed guardian if one has previously been appointed and has been authorized to consent to medical treatment for the patient. Likewise, a guardian advocate previously appointed by the court will be first in line to make decisions for one who has a developmental disability. It is important to note that guardian appointments are not required before a medical decision can be made.

Prince, George Michael and Carrie Fisher; Estate Planning 101, what are we learning?

August 14, 2017 | by Chepenik Trushin LLP

MORE MONEY, MORE PROBLEMS? 6 DO’S AND DONT’S OF ESTATE PLANNING AND INTELLECTUAL PROPERTY

At the end of last year it seemed as if every day there was a new report of a celebrity dying unexpectedly. As fans around the world mourned the death of some of Hollywood’s most iconic figures, reports of their estate planning, or lack thereof, also filled the headlines.

Prince: Intestacy and streaming music rights collide

Capacity and Wills: How to avoid litigation from family members, beneficiaries and creditors

May 22, 2017 | by Chepenik Trushin LLP

Legal Capacity and Estate Planning- How to Help Safeguard a Will from Future Litigation

When a loved one grows older, their caretakers’ ever growing to-do list can become overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will. By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed. Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002). A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.

Same Sex surviving spouses, a recent Florida law change

April 6, 2017 | by Chepenik Trushin LLP

Florida same-sex surviving spouses may be added on a death certificate without a court order

In 2015, the United States Supreme Court issued its pioneering decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015), holding state laws prohibiting or refusing to recognize same-sex marriages unconstitutional. After Obergefell, Florida started recognizing same-sex marriages and began to list a same-sex surviving spouse on the deceased spouse’s death certificate, where the marriage was lawfully entered into in another jurisdiction. However, the surviving spouse was out of luck if the marriage was entered into before Obergefell, unless the surviving spouse obtained an individual court order approving the correction.

This obtrusive situation has changed for now. In a recent order from March 23, 2017, a federal judge granted a summary judgment to a certified class, ordering that Florida must amend any death certificate without a court order when the decedent was lawfully married to a person of the same-sex at the time of the death. The same judge issued an order striking down Florida’s marriage ban in August 2014. The plaintiffs in this case were two gay surviving spouses, married before Obergefell, who filed the case not only on their behalf, but on behalf of other similarly situated persons as well. The plaintiffs sought to have their spouses’ death certificates show they had been married, but the state argued that Florida law prohibited amending the death certificates without a court order.

Getting hitched in Florida has it’s advantages inside probate

January 27, 2017 | by Chepenik Trushin LLP

Florida: A Safe Haven for Surviving Spouses in Probate

Marriage is one of the most sacred and respected institutions in our society. Both state and federal governments provide benefits to encourage marriage with beneficial incentives. Florida provides several benefits for surviving spouses as illustrated in Florida’s Constitution and Probate Code. This article reviews some of those benefits but is not an exhaustive list.

First, surviving spouses receive protection under Florida’s Homestead Exemption. The Florida Constitution prohibits a decedent from freely devising his or her homestead, when the decedent is survived by a spouse or minor child. Art. X, § 4 (c), Fla. Const. However, the decedent can devise a homestead to his surviving spouse if there is no minor child. § 732.4015 (1), Fla. Stat. (2010). If a decedent tries to devise a homestead to someone other than a surviving spouse or minor child under a will, then the homestead property will be transferred to the decedent’s surviving spouse and the decedent’s descendants, with the surviving spouse receiving a life estate in the homestead and the descendants receiving a remainder, per stirpes at the decedent’s death.§ 732.401 (1), Fla. Stat. (2012). Alternatively, “the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.” § 732.401 (2), Fla. Stat. (2012). To receive the homestead exemption, “an individual must have an ownership interest in a residence that gives the individual the right to use and occupy it as his or her place of abode.” In re Alexander, 346 B.R. 546, 551 (Bankr. M.D. Fla. 2006).

How Pre-Nups and Probate Court engage

January 11, 2017 | by Chepenik Trushin LLP

Effect of Marital Agreement on Entitlement to Probate Estate

When it comes to estate planning, multiple factors can influence the distribution of the estate, besides a trust document or a will. One such device is a martial agreement made between spouses prior to their marriage. The marital agreement can change the distribution of the estate if the agreement addresses the surviving spouse’s rights to the estate in the event of a death. The Second District recently decided a case involving a marital agreement and a subsequent claim against the estate for additional money allegedly pursuant to the agreement.

In Northern Trust v. Shaw, the surviving spouse, Natalia Shaw, sued the estate of her deceased husband for money allegedly due to her under their marital agreement (also known as a prenuptial agreement). Mrs. Shaw and her husband Andrew were married in February 2009. Before they were married, Mr. and Mrs. Shaw executed a marital agreement that provided for the disposition of their assets in the event of their deaths. Under the agreement, Mrs. Shaw waived her rights to Mr. Shaw’s estate except for a few items: (1) $500,000 from Mr. Shaw’s estate, (2) any testamentary gifts made by Mr. Shaw during the marriage, (3) any retirement and pension benefits in which Mrs. Shaw was named the beneficiary, and (4) a life estate interest in any principle residence owned by Mr. Shaw.

Is Time really on your side when serving as a Trustee?

December 29, 2016 | by Chepenik Trushin LLP

Time Limitations for Proceedings Against Trustees: Discussing Failure to Account

An individual serving as a trustee owes certain duties to the beneficiaries of that trust. One such duty is the duty to account to the beneficiaries. Failure to provide an accounting as required in § 736.0813, Fla. Stat. is a breach of trust by a trustee. Fla. Stat. § 736.1001(1). A beneficiary can institute an action for an accounting and/or against a trustee for breach of trust, but the factual circumstances of the case may determine the time limitations for bringing such actions. These limitations are found in the Florida Trust Code under § 736.1008, Fla. Stat. Under § 95.11, Fla. Stat., the statute of limitations for a legal action alleging breach of trust or fiduciary duty is four years.

The Trust Code, specifically § 736.1008, Fla. Stat., provides further clarification as to how Chapter 95 applies in trust matters. Under § 736.1008(1), if the trustee issued a trust disclosure document that adequately discloses information, the four year statute of limitations applies, beginning on the date that the beneficiary receives the disclosure. For all matters not adequately disclosed in a trust disclosure document if the trustee has issued a final trust accounting, the trustee has given final notice to the beneficiary that the trust records are available, and has given written notice of the applicable limitations period, the limitation period begins on the date that the beneficiary receives the final trust accounting and notice. However, under § 736.1008(3), when the trustee does not provide a final trust accounting, or give notice to the beneficiary that the trust records are available, the applicable limitations period for a matter not adequately disclosed begins on the date the beneficiary has actual knowledge of the facts underlying the claim. Florida Statute § 736.1008(2) provides a way for a trustee to shorten the amount of time the beneficiary has to file a claim from four years to six months. In order for the six month time limitation to apply, the trust disclosure document must adequately disclose the information, and the trustee must inform the beneficiary of the shortened limitations period. The shortened limitations period starts on the date the beneficiary receives both the disclosure document and the limitations notice. .

Probate Court and Family Court collide

November 28, 2016 | by Chepenik Trushin LLP

Florida Appeals Court Comes Down Against Probate Creditor Claims From Child For Child Support Arrearages

On May 11, 2016, the Fourth District Court of Appeal issued its decision in Davis v. Hengen regarding creditor claims for child support arrearages against a decedent’s estate, when the decedent dies with unpaid child support obligations.

Upon the dissolution of their marriage, Clifford Davis and his then wife entered into a marital and property settlement agreement. According to the agreement, Clifford was obligated to pay monthly child support to his ex-wife to support their daughter, Deborah. When the father died, he died intestate. At the time of his death, the father had outstanding child support payments due. Deborah and Clifford’s current wife, Acaia, were appointed co-personal representatives of Clifford’s estate.

All life’s journeys and stories eventually end, even iconic novels

October 4, 2016 | by Chepenik Trushin LLP

The Hunt for Tom Clancy’s Estate Comes to an End

Popular author Tom Clancy wrote many iconic novels, and the story of his estate battle sounds like it comes straight out of a book. The author, who died at the age of 66 of heart failure, left an estate valued at $82 million. This $82 million estate includes an ownership interest in the Baltimore Orioles baseball team worth $65 million, a working World War II tank, a mansion on Chesapeake Bay and over $10 million in business interests from his novels and movie adaptations.

According to the original will, Clancy left his Chesapeake Bay home and other properties, along with any of his joint bank or investment accounts to his wife Alexandra. Clancy also left a portion of the residue of the estate to the Hopkin’s Wilmer Eye Institute, which he had previously given a $2 million donation in 2005. The rest of his estate was to be divided between a series of trusts. The 2007 will originally provided for three trusts and divided the rest of the estate as follows: one-third for Alexandra, one third for Alexandra to use while she was alive and then passing to their daughter, and one-third to be divided among his four children from his previous marriage.