Testamentary Capacity
The definition of testamentary capacity or sound mind means that the testator has the ability to understand…
Temporary Injunctions in Estate, Trust and Guardianship Litigation
Florida courts use the extraordinary remedy of imposing temporary injunctions only sparingly, and grant temporary injunctions only when the allegations proof of the facts support the entry of this relief. “A party seeking a temporary injunction must prove: (1) that it will suffer irreparable harm unless the status quo is maintained; (2) that it has […]
The probate court cannot prematurely discharge a personal representative, but must allow for the statutory time for objections to be filed with the court
Florida Probate Rule 5.400, entitled “Distribution and Discharge”, requires a personal representative to file a final accounting and a petition for discharge, together with a plan of distribution. This is filed once the personal representative has completed their administration process and are about to distribute the last remaining assets. One of the items which is […]
Probate of a Lost Will in Florida
Creating a will gives a testator the ability to ensure that his or her wishes are carried out after death, and ideally the testator will have a plan for safekeeping that original will. This often includes having the nominated personal representative, and perhaps a trusted person or two, knowing where the original will is kept. […]
Estate Closing Letters Must Now Be Requested From The IRS
A change in procedures by the Internal Revenue Service could cause delays for beneficiaries of estate assets in Florida. Previously, the IRS would automatically send a closing letter to an estate executor after they had filed Form 706. Once the closing letter was received, the estate executor could begin dispersing the remainder of the estate’s […]
Can an Irrevocable Trust be Modified Under Florida Law?
The short answer to this question is yes. What is an irrevocable trust? It is a trust document that generally is not subject to revocation or modification, once executed and funded. There are exceptions which may permit the changing of the terms of an irrevocable trust. The Florida Trust Code, Chapter 736 of the Florida […]
New Changes To Florida’s Uniform Transfers To Minors Act
The Uniform Transfers to Minors Act allows for a parent or other adult to create a custodial account for gifts, bequests, and other transfers of assets to a minor. In addition to money, a UTMA account can hold other types of assets for the minor, including real estate, royalties, fine art, and patents. The account […]
Amendments to Florida’s Slayer Statutes
Effective on July 1, 2021, the Florida legislature expanded its slayer statutes, to now include provisions to disinherit those persons who “abuse, neglect, exploit, or commit aggravated manslaughter” against an elderly or disabled person. See Fla. Stat. 733.303, 732.8031, and 736.1104. If the person in question has been convicted by a court of abuse, neglect, […]
Trap for the Unwary: Florida Statute 736.0802
Even an experienced probate and trust litigator may get caught in this statutory land mine on the litigation battlefield. Section 736.0802(10) of the Florida Statutes requires that notice be given to the be beneficiaries about payment of legal bills, when the trustee desires to defend claims of breach of fiduciary duty, breach of trust, removal […]
Anderson v. Letosky — So.3d — (Fla. 2d DCA May 27, 2020), 2020 WL 2745559
Does renting a room in a homestead property destroy the unique protections of a Florida homesteaded property? The Second District Court of Appeal said no. Homestead property which is rented to tenants loses protection from creditors (and therefore the homestead exemptions) if the rented portion contains completely separate living quarters or common areas, such as […]