Florida Probate Litigation Lawyer Blog

The IRS released a 1.2% interest rate under IRC § 7520 for June, which determines the present value of an annuity, an interest for life or term of years, or a remainder or reversionary interest. Rev. Rul. 2013-12 tbl. 5. With interests rates at an all-time low, charitable donors are able to bequest their assets to their beneficiaries without having to worry about federal estate or generation transfer taxes by using a charitable lead trust.

Charitable lead trusts should be used to enhance charitable giving, reduce current gift taxes and estate taxes owed at death, and to transfer assets to a younger generation as part of an overall estate plan. Charitable lead trusts pay an income interest to a charity for a specified period of time with the remainder reverting to a non-charitable beneficiary. Donors who already make annual charitable gifts will find a charitable lead trust an efficient way to transfer substantial assets to family members while maintaining the donor’s regular charitable gifts.

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In addition to Florida’s strict two-year rule discussed last week in Part 1 of this blog post, there may also be shorter time periods to bring a claim depending on the type of creditor and the nature of the claim. Whereas Section 733.710 is a jurisdictional statute of nonclaim, Section 733.702 is a statute of limitation that may bar claims not instituted in a timely manner. Section 733.702 has been described as “‘an absolute bar’ to untimely filed claims,” with only very limited grounds upon which to seek an extension to the time limitation, the two primary grounds for extension being fraud or estoppel. Morgenthau v. Estate of Andzel, 26 So.3d 628, 631 (Fla. 1st DCA 2009). In Mr. Robson’s case, the fact that he was almost certainly not an ascertainable creditor (especially given his repeated denials, under oath, that Jackson molested him) means that no personal service of creditor notice would be required, and notice by publication would be sufficient. For claims “against the decedent’s estate that arose before the death of the decedent,” potential claimants that are not ascertainable are given a three month window in which to bring the claim. § 733.702(1), Fla. Stat. In addition to Jackson’s estate publishing a notice of administration on December 22, 2009, there is a fairly high probability that Mr. Robson knew about Mr. Jackson’s demise and the administration of his estate; that is, of course, unless Mr. Robson was on an extended vacation in Amish Pennsylvania, or perhaps on a walkabout in the Australian Outback. Because time periods to bring a claim vary depending on a multitude of factors, you should contact a probate attorney as soon as possible upon learning of EITHER the death of an individual against whom you believe that you have a claim or the probate of that individual’s estate. While every individual’s best course of action will vary and he or she should have individualized legal advice, as a general rule of thumb, it is not advisable to sit by idly for nearly four years before bringing a claim, especially when you repeatedly denied during the life of the decedent the exact underlying facts upon which your claim is premised.

Continue reading "Michael Jackson’s estate sued by former star defense witness Wade Robson nearly four years after Jackson’s Death: How the suit would be handled under Florida law, Part 2" »

June 25, 2013 will mark the four-year anniversary of the untimely demise of the man affectionately referred to by the masses as the King of Pop: Michael Joseph Jackson. Despite suffering from an infirmity that has ended the professional pursuits of actors, entertainers, and businessmen alike (Death!), Forbes Magazine reported in 2012 that Michael Jackson earned more money in the three years following his death than any other living artist. In fact, during those three years, Michael Jackson’s estate generated nearly half a billion dollars. Although unclear whether the result of Jackson’s vastly expanding fortune or his use of high priced attorneys during his life to defend him on multiple legal fronts, more than 55 creditor’s claims were filed in the months following the following Michael Jackson’s Last Will being admitted to probate on August 3, 2009 when Special Letters of Administration were issued and the notice of death was published. With claims ranging from the thousands of dollars to over one billion dollars, the 24 months following his death saw a flurry of creditors asserting claims against Jackson’s estate. While new claims have been nearly nonexistent over the past year and a half, May of 2013 saw an explosive new claim levied by a familiar face from Michael’s past: Wade Robson, star defense witness in Michael Jackson’s 2005 criminal trial. Robson, who had for years maintained that Jackson never sexually molested him, claimed that he had uncovered repressed memories of molestation by Jackson and asked a California probate court to allow him to file a late creditor’s claim against the Estate of Michael Jackson, based on new allegations sexual abuse alleged to have occurred over 20 years ago.

Continue reading "Michael Jackson’s estate sued by former star defense witness Wade Robson nearly four years after Jackson’s Death: How the suit would be handled under Florida law, Part 1" »

“Who owns what and how?” Those are always the first questions asked when evaluating estate assets. Personal property is generally not titled because it is usually clear who the owner of the item is. Chances are no one will be confused about the ownership of your shoes or watch. Real property and accounts, on the other hand, can easily be titled in the name of more than one person. One common way to do this is by creating a joint tenancy in the title to the property. A joint tenancy grants equal ownership of the property and gives the right of survivorship to the other tenants. The right of survivorship simply means that when one tenant dies, their share of the property is transferred to the surviving tenants. This transfer is automatic and divides the deceased tenant’s share in equal parts to the survivor(s).

Continue reading "Who Owns Items Bought with Money from a Joint Checking Account?" »

The path to a guardianship begins with a petition to determine incapacity. Next, there is an examination of the alleged incapacitated person by a three-person examining committee. Finally, there is a hearing on the matter where there must be clear and convincing evidence that the alleged incapacitated person is in fact incapacitated and that their rights should be removed.

The process of obtaining a court appointed guardianship is not easy. Courts view the removal of a person’s rights as a final option and do not grant guardianships without conducting a thorough review and exhausting all other options. The court places an extremely high value on protecting the alleged incapacitated person and their rights. A person alleged to be incapacitated is entitled to procedural due process in determining incapacity. According to Florida Statute, an alleged incapacitated person has the right to:

(1) Remain silent and refuse to testify at the hearing. The person may not be held in contempt of court or otherwise penalized for refusing to testify. Refusal to testify may not be used as evidence of incapacity; (2) Testify; (3) Present evidence; (4) Call witnesses; (5) Confront and cross-examine all witnesses; and (6) Have the hearing open or closed as she or he may choose. Fla. Stat. § 744.1095.

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What happens when someone is illegally living in estate owned property and will not leave? Easy. Evict them. Right? Yes, if the person is a tenant of the property and the estate is the landlord. Eviction actions arise out of disputes between landlords and tenants and can be filed in both county and circuit courts. However, what happens in situations where the person occupying the estate-owned property is not a tenant of the estate? In these cases, ejectment is the proper cause of action. So, where and how does a person bring an ejectment claim to recover estate-owned property? In such situations, circuit court is the proper venue. This can include probate courts, whose general duty is to settle estates. While there is nothing expressly disqualifying a probate court, as a circuit court, from hearing an ejectment claim, if the a probate court cannot adequately administer justice, the claim must be heard in a circuit court of general jurisdiction.

Continue reading "Removing a Non-Tenant from Estate-Owned Property" »

When the mental faculties of a person come into question, the court can be petitioned to implement a guardianship. Courts, generally, view this as a last resort when there is no viable alternative. Guardianships can be limited in their scope or plenary. Part of the guardianship processes is an examination of the alleged incapacitated person by a three-person examining committee. Questions often arise about the rights and duties of the examining committee in the examination of an alleged incapacitated person. Under the Florida guardianship statutes, before depriving an individual of all of his or her civil and legal rights, “the individual must be incapable of exercising his rights at all, whether wisely or otherwise.” Losh v. McKinley, 86 So. 3d 1150, 1153 (Fla. 3d DCA 2012)(quoting McJunkin v. McJunkin, 896 So.2d 962, 963 (Fla. 2d DCA 2005)). Florida Statute Section 744.331(3) outlines the rights and duties of the examining committee in determining incapacity. There are rights related to the examination and report conducted and issued by the examining committee as well as the hearing on the matter.

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When a ward is incapable of taking care of his or her own interests, a court usually appoints a “guardian” to take care of that individual. A guardian may be appointed when a person experiences mental incapacity or a disability. A court may also appoint a guardian for a minor child in the event that the child’s natural guardian(s) are unable to serve as legal guardians of the child. But, what is the process that the court goes through when choosing a guardian? Who is qualified to be a guardian? Florida statutes and case law provide answers to many of the questions that come up when a court needs to select a guardian.

The basic qualifications for any guardian are (1) that he or she is 18 years or older and (2) that he or she is a resident of Florida. Fla. Stat. § 744.309. However, the resident requirement does have some flexibility built in and several exceptions do apply. See Fla. Stat. § 744.309(2).

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A person may want to disclaim an inheritance or gift in order to maximize gift and estate tax exclusions, or simply because he or she does not want the property and/or the resulting tax burden. A disclaimer is a refusal to accept an interest in the power over property, including a power of appointment. Fla. Stat. § 739.102. A person can disclaim property or an interest in property in whole or in part, and may make the disclaimer conditional or unconditional. Through the use of a disclaimer, beneficiaries may take a retrospective look at the decedent’s estate plan, and determine whether, based on current circumstances, there is a more advisable way to distribute assets.

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Florida law mandates that a trustee keep the qualified beneficiaries of a trust reasonably informed of the trust and its administration. Fla. Stat. § 736.0813. This imposes a duty on the trustee to provide a trust accounting annually to each qualified beneficiary of an irrevocable trust. A trust accounting is required to include information regarding significant transactions affecting the trust administration during the accounting period, compensation paid to the trustee, gains and losses realized during the accounting period, and, to the extent feasible, the value of trust assets, among other things. Fla. Stat. § 736.08135. If the trustee fails to provide annual accountings to the qualified beneficiaries, the qualified beneficiaries may have a breach of trust action against the trustee. Fla. Stat. § 736.1001. However, if the trustee has provided the qualified beneficiaries with a trust disclosure document (including an accounting), then there may be a statute of limitations that affects the qualified beneficiaries’ claim against the trustee. If the trustee has provided an accounting, and the qualified beneficiary believes he has a cause of action based on that accounting, then the qualified beneficiary must make an objection within 6 months. Fla. Stat. § 736.1008.

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When a decedent passes away, individuals who are named in the decedent’s will are entitled to receive property as it is specifically devised in the will. Moreover, when a decedent dies in possession of property that is not devised in his or her will, that property passes through intestacy (i.e., outside of the will). But, who is entitled to receive that property? Who is considered an “heir?” How does one find out if he or she is an heir or beneficiary?

Under Florida law, “heirs” or “heirs at law” are those persons who are entitled to the estate of a decedent under the statutes of intestate succession. Fla. Stat. § 731.201(20). In Synder v. Davis, the Supreme Court of Florida interpreted the term “heirs” in Article X of the Florida Constitution to include not just family members who would take property at the death of the decedent, but also those who could take under intestacy statutes. Effectively, the Florida Supreme Court interpreted the word “heirs” broadly to include all potential takers under the intestacy statutes.

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Sir Peter Ustinov, a famous English actor, columnist, and UNICEF Ambassador, passed away on March 28, 2004. Despite the fact that he died nearly 10 years ago, his estate still has not been settled. Sir Ustinov had been married three times, and had four children at the time of his death. He was estimated to be worth tens of millions of dollars. Sir Ustinov’s most recent will at the time of his death was 36 years old and written in pencil. Because the will was so outdated, the Swiss court that has jurisdiction over Sir Ustinov’s estate ruled that he died intestate. As a result, under Swiss law, his estate would pass to his widow. Since the decision that Sir Ustinov died intestate, there has been a battle over his estate. Specifically, Sir Ustinov’s son, (who was the heavily favored heir in the hand-written will that was rejected by the Swiss court), contends that Sir Ustinov set up trusts that held most of his assets (and whose whereabouts are known only by two retired Swiss lawyers) that should pass to Sir Ustinov’s children. This battle has resulted in the parties amassing a large bill for attorneys’ fees and is suspected to have eaten away most of Sir Ustinov’s once vast estate. Sir Ustinov’s son-in-law has stated that due to the costs of the litigation, there is little left to fight over. The son who is pushing the litigation recently admitted that he is nearing bankruptcy as a result of the legal fees he has incurred. Even an English High Court Judge has stated that she is appalled by the money that the family has spent fighting over the estate.

Continue reading "A Lesson from Sir Peter Ustinov: The Importance of Maintaining a Current Will" »