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Wednesday, October 11, 2017

Can a writ of garnishment be enforced on an account owned by the debtor and a third party, where a majority of the funds in the account were contributed by the third party?

In Stanbro v. McCormick 105 LLC, 213 So.3d 925 (Florida 4th DCA March 8, 2017), a bank account held in the name of the debtor and her boyfriend’s joint revocable trust was not subject to garnishment because the boyfriend was the primary contributor to the account, and the creditor could not meet its burden to show that the debtor was the exclusive owner of the account funds.


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Wednesday, October 11, 2017

Does a contingent beneficiary of a discretionary trust have a right to receive notice of an adoption proceeding?

In Edwards v. Maxwell, 215 So.3d 616 (Fla. 1st DCA March 31, 2017), a beneficiary of three irrevocable trusts moved to set aside his father’s adoption of a child, who became a qualified beneficiary of the trust as a result of the adoption. The First District Court of Appeals held that the original beneficiary was not entitled to notice of the adoption and did not have standing to set aside the adoption because the trusts were to be distributed in the complete discretion of the trustees, and therefore he did not have a direct, financial, and immediate interest in the trusts.


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Wednesday, October 11, 2017

Can a lender foreclose on an equitable lien on a homestead property to prevent unjust enrichment?

The case of Flinn v. Doty, 214 So.3d 683 (Fla. 4th DCA March 8, 2017) involves a family dispute over real property. The Fourth District Court of Appeals, relying on an argument of “unjust enrichment,” allowed an equitable lien on the decedent’s daughter’s homestead property to the extent that the proceeds from the sale of the decedent’s real property were used to pay expenses related to the daughter’s homestead property. Notably, the court held that it is not necessary to show fraud or egregious conduct in order to foreclose on an equitable lien.


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Wednesday, October 11, 2017

Can an estate be liable for damages if a person gets into an accident while driving the decedent’s car prior to the appointment of a personal representative?

In the case of Depriest v. Greeson, 213 So.3d 1022 (1st DCA February 21, 2017), the decedent’s daughter caused an accident using the decedent’s car after the death of the decedent and prior to the appointment of her step-brother as personal representative. The First District Court of appeals held that prior to the appointment of a personal representative, the law does not impose a duty upon the nominated personal representative to act or prevent harm to the estate. However, it is important to keep in mind that the Depriest holding is based upon a unique set of facts. A different timeline could have led to a very different result.


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Wednesday, October 11, 2017

Can improper execution of a trust be validated under Fla. Stat. 736.0415, Florida’s statute permitting reformation?

The decision in Kelly v. Lindenau, 42 Fla. L. Weekly D1133 (Fla. 3d DCA May 17, 2017) is in keeping with Florida’s long-standing tradition of strictly enforcing execution requirements of wills and trusts, notwithstanding the intent of the testator or settlor. In Kelly, the Second District Court of Appeals held that Fla. Stat. 736.0415, Florida’s trust reformation statute, was not an appropriate remedy to correct execution defects of a trust which conveyed real property to the decedent’s beneficiaries upon his death.  This case, like many other cases, emphasizes the importance of a Florida resident having a knowledgeable Florida attorney familiar with the legal requirements of creating a valid will or trust.




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Wednesday, October 11, 2017

Florida 2017 Notable Cases

Can improper execution of a trust be validated under Fla. Stat. 736.0415, Florida’s statute permitting reformation?

The decision in Kelly v. Lindenau, 42 Fla. L. Weekly D1133 (Fla. 3d DCA May 17, 2017) is in keeping with Florida’s long-standing tradition of strictly enforcing execution requirements of wills and trusts, notwithstanding the intent of the testator or settlor. In Kelly, the Second District Court of Appeals held that Fla. Stat. 736.0415, Florida’s trust reformation statute, was not an appropriate remedy to correct execution defects of a trust which conveyed real property to the decedent’s beneficiaries upon his death.  This case, like many other cases, emphasizes the importance of a Florida resident having a knowledgeable Florida attorney familiar with the legal requirements of creating a valid will or trust. 


 


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Tuesday, October 10, 2017

Florida 2016 Notable Cases


SATISFACTION OF NUPTIAL AGREEMENT – CLAIM BY SURVIVING SPOUSE The Northern Trust Company v. Shaw, 196 So.

DECISION –  The Fourth District Court of Appeals held that a prenuptial agreement was satisfied when a decedent’s wife received $480,000 from the decedent’s IRA and testamentary gifts of personal property worth approximately $103,000.


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Tuesday, October 10, 2017

Notable 2015 Florida Cases


REASONABLY ASCERTAINABLE CREDITOR CLAIMS – Jones v. Golden, 176 So. 3d 242 (Fla. October 1, 2015)

Florida’s Supreme Court held that the claims of known or reasonably ascertainable creditors who were not served with notice are timely if filed within two years of the decedent’s death.  

The Supreme Court of Florida recently addressed the issue of whether the claim of a creditor who is not served with a copy of the notice to creditors but whose claim is known or reasonably ascertainable is barred under Fla. Stat. 733.702(1)if not filed within three months after the first publication of the notice to creditors absent an extension, or whether the claim is timely if filed within two years of the decedent’s death under Fla. Stat. 733.710.


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Friday, May 5, 2017

Trump Tax Reform Update #5

Takeaways from Trump Tax Reform Update #5

  • Trump and key Republicans still focused on Obama Care repeal
  • Mixed signals – but consensus seems to indicate no tax reform before September
  • Secretary Mnuchin  tells Financial Times August goal for tax reform is “highly aggressive to not realistic at this point”.
  • President Trump says, ‘we’re going to surprise you’ with speed of tax reform, but need healthcare fix first.
  • “and the beat goes on…”

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Monday, April 3, 2017

Trump Tax Reform Update #4

Takeaways from Trump Tax Reform Update #4

  • Legislative loss on healthcare may make tax reform even more difficult
  • Chairman Brady, House Ways & Means says his committee will go BIG on tax reform, not just tinker with tax laws
  • Offsets to tax reductions which will bring revenue into the government may be more important than ever, Republicans look for ways to replace the $1 Trillion they hoped to get in revenue savings under repeal of Obama care
  • Look for discussions on new tax basis rules and possible new capital gains tax on death
  • Expect new legislation to be done under reconciliation with perhaps a 10 year sunset

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Tuesday, February 7, 2017

Trump Tax Reform Update #3

As discussed in our DLF Estate Tax Repeal Update #2, many estate plans utilize a Family or Bypass Trust along with a Marital or Spousal Trust.  Due to the use of “formula funding language” used by most if not almost all estate planners over the last sixteen years or so, the repeal of the estate tax could result in all the assets of the decedent being funded into the Family or Bypass Trust.  The problem is, unless that Bypass Trust allows for distributions to the surviving spouse, the widow or widower of the decedent could be left with little or no assets.  Of course, there are many other potential unintended consequences if the estate tax is repealed, or if rules on income and capital gains taxes are substantially changed, which will cause many taxpayers to look to amendment or in some extreme cases even termination of their trusts.


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