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House Held In Trust Lost Marital Asset Status

December 22, 2016

Authors

Luke Lantta

House Held In Trust Lost Marital Asset Status

December 22, 2016

by: Luke Lantta

In the afterglow of a wedding, the spouses probably don’t immediately start thinking how the bliss they feel may end spectacularly and expensively.  Chances are they may even start estate planning, thinking how they can seamlessly transfer assets to the other.  In Nelson v. Nelson, a Florida appellate court reminded us that the estate planning choices spouses make, however, have far-reaching consequences if before death they doth part.

Husband and wife bought a house together in California and titled it in both of their names.  They then transferred the home into an irrevocable trust established for the benefit of the wife and her descendants, and named the wife as the sole trustee of the trust.  Husband and wife divorced and a Florida trial court characterized the house as a marital asset subject to equitable distribution.  The Florida appellate

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When Can A Trust Be Reformed To Add Remainder Beneficiaries?

August 26, 2015

Authors

Luke Lantta

When Can A Trust Be Reformed To Add Remainder Beneficiaries?

August 26, 2015

by: Luke Lantta

We’ve looked at a lot of cases where courts have permitted trust reformation or modification.  In many of these cases, trusts had been modified to avoid unintended or adverse tax consequences, to fix a scrivener’s error, or to tweak some administrative provision.  A Florida appellate court’s ruling in Megiel-Rollo v. Megiel causes us to add another potential circumstance to that list: adding remainder beneficiaries.  Adding beneficiaries gets to the core of a trust’s dispositive provisions, so let’s turn briefly to the unique circumstances underlying this decision.

The grantor created a revocable trust naming herself as trustee and beneficiary during her life.  Upon her death, the grantor’s assets were to be “divided between the Beneficiaries as tenants in common in proportion to their respective interests as

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Does A Trustee’s Lawyer Owe A Fiduciary Duty To The Trust Beneficiaries?

May 20, 2015

Authors

Luke Lantta

Does A Trustee’s Lawyer Owe A Fiduciary Duty To The Trust Beneficiaries?

May 20, 2015

by: Luke Lantta

There is seemingly a line – at least under Florida law – that will not yet be crossed in the expanding world of third parties who purportedly owe duties to trust beneficiaries.  In Walther v. Kane (unpublished), the United States Court of Appeals for the Eleventh Circuit affirmed a federal district court’s ruling that, under Florida law, an attorney retained to represent only the trustee does not owe a fiduciary duty to the beneficiaries of the trust.  This decision stands in contrast to the trend in jurisdictions, including Florida, to chip away at the privity requirement when it comes to legal malpractice claims against estate planning attorneys.

Lawyers representing Florida trustees can rest a little easier for two reasons.  First, although unpublished, a federal appellate court has

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Representative Versus Individual Capacity: It Can Make A Difference

January 28, 2015

Authors

Luke Lantta

Representative Versus Individual Capacity: It Can Make A Difference

January 28, 2015

by: Luke Lantta

There is a difference between a person acting in her individual capacity and acting in her representative capacity.  We have seen that this difference may matter when signing documents.  And we have seen that it may also matter when filing a lawsuit that involves trust property.  Now, in Kozinski v. Stabenow, a Florida appellate court tells us that it may also matter when seeking to surcharge a trustee and personal representative.

In this case, after the trustor died, the trustee of a trust created by the trustor filed a notice of trust.  The trustee was also the representative of the trustor’s estate and filed a separate petition for administration of the estate.  The two cases were consolidated and a petition was filed by two beneficiaries of the will and trust to

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Successor Personal Representative Had Duty To Pursue Legal Malpractice Claims

June 5, 2014

Authors

Luke Lantta

Successor Personal Representative Had Duty To Pursue Legal Malpractice Claims

June 5, 2014

by: Luke Lantta

Depending on the circumstances in which they arrive in the position, a successor personal representative can have a lot of cleaning up to do.  Just how much looking back on the acts of her predecessor a successor fiduciary can – or must – do has been the subject of much debate.  Now, in Bookman v. Davidson, a Florida appellate court has, in a case of first impression, determined that a successor personal representative not only can pursue legal malpractice claims against an attorney retained by the original personal representative, a successor personal representative may have a duty to pursue such claims.

Under Florida law, the powers granted to the original personal representative flow to the successor personal representative.  The Florida Probate Code grants a personal representative the power to engage a lawyer to represent the personal representative and

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A Cautionary Tale: Florida Supreme Court Rules On “Do It Yourself” Will Form

May 20, 2014

Authors

Tiffany McKenzie

A Cautionary Tale: Florida Supreme Court Rules On “Do It Yourself” Will Form

May 20, 2014

by: Tiffany McKenzie

Considering creating a do-it-yourself Will to save money?  A recent Florida Supreme Court Case, Aldrich v. Basile, should make you reconsider.

Here are the facts of the case:

In April 2004, Ms. Ann Aldrich (“Ann”) wrote her will on an “E-Z Legal Form.”  In Article III, entitled “Bequests,” just after the form’s pre-printed language directing payment of debts, Ann hand wrote instructions directing that all of her “possessions listed” (Ann’s house and contents, a rollover IRA, a life insurance policy, an automobile and certain bank accounts) go to her sister, Mary Jane Eaton.  Ann also wrote on the form document that if her sister predeceased her, all such property should go to Ann’s brother, James Michael Aldrich.  Containing no other distributive provisions, the Will was duly executed.

Three years later, Ann’s sister died leaving all of her assets to Ann.  As a result, Ann inherited cash

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Florida Appellate Court Expands Third Party Suits Against Lawyers

March 4, 2014

Authors

Luke Lantta

Florida Appellate Court Expands Third Party Suits Against Lawyers

March 4, 2014

by: Luke Lantta

Jurisdictions have been slowly chipping away at the privity requirement when it comes to legal malpractice claims against estate planning attorneys.  Generally, only the client can raise a claim of professional negligence or malpractice against an attorney.  In more recent years, however, some jurisdictions have become more comfortable with the idea of “the third party intended beneficiary exception to the rule of privity.”  Of course, this exception to the rule frequently comes up in will drafting cases, but not exclusively.  Now, in Dingle v. Dellinger, a Florida appellate court has expanded this exception.

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Florida Appellate Court Reinstates Mediated Estate Settlement Agreement

January 14, 2014

Authors

Luke Lantta

Florida Appellate Court Reinstates Mediated Estate Settlement Agreement

January 14, 2014

by: Luke Lantta

With any litigation, settlement can bring doubts, second thoughts and regret for the parties involved.  They may find themselves asking whether they should have given up what they did, could they have gotten more, or should they have taken their chances with a jury or judge.  Because estate litigation can end up being such an emotional roller coaster for the people involved, these feelings may be even more common for the settling parties and parties sometimes may try to ‘undo’ the settlement agreement.  In Pierce v. Pierce, a Florida trial court allowed a party to rescind a mediated estate settlement agreement, but then a Florida appellate court reversed and enforced the estate settlement agreement.

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Federal Court Dismisses Civil Theft Claim Against Corporate Trustee

September 26, 2013

Authors

Luke Lantta

Federal Court Dismisses Civil Theft Claim Against Corporate Trustee

September 26, 2013

by: Luke Lantta

Plaintiffs are becoming more creative in the claims they bring against fiduciaries.  So, too, are the fiduciaries when they get sued.   In two opinions in Berlinger v. Wells Fargo Bank, N.A., here and here (links via Justia), a federal court in Florida dismissed some claims brought against a corporate trustee while allowing some of the corporate trustee’s claims against its individual co-trustee to go forward.

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Does Renunciation Rule Apply To Self-Settled Inter Vivos Trusts?

September 19, 2013

Authors

Luke Lantta

Does Renunciation Rule Apply To Self-Settled Inter Vivos Trusts?

September 19, 2013

by: Luke Lantta

We previously looked at the doctrine of election, where a party generally must renounce the benefits received from an estate (or trust?) before he or she can challenge the will (or trust?).  In Estate of Boyar, the Illinois Supreme Court sidestepped the question of whether the doctrine of election should be extended to challenges to amendments to living trusts in cases where the trust serves the same purpose as a will.

Where Illinois did not weigh in, a Florida appellate court did.

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