Press Room

Wednesday, October 11, 2017

Does a petition filed under Fla. Stat. 736.1005 require notice to all qualified beneficiaries?

In re Guardianship of Bloom, No. 2D16-2985, 2017 WL 2270124 (Fla. 2nd DCA May 24, 2017), after a lengthy period of litigation involving the guardianship, the estate, and the trust of the decedent, the decedent’s nephew filed for recovery of his attorney’s fees pursuant to Fla. 736.1005. The Second District Court of Appeals noted the ambiguities regarding the notice requirements under the fee recovery statute and clarified that all interested parties must be served with notice of the fee request simultaneously with the filing of the request with the court. 



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Wednesday, October 11, 2017

Is a “reputed spouse” treated as a surviving spouse under Florida law?

In Cohen v. Shushan, 212 So.3d 1113 (Fla. 2nd DCA March 15, 2017), the Second District Court of Appeals held that a reputed spouse (ie. a common law spouse) of an Israeli decedent was not deemed to be a surviving spouse entitled to rights in the decedent’s Florida estate because their relationship in Israel, although having a legally recognized status, was not considered to be a legally recognized marriage in Israel.


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Wednesday, October 11, 2017

Can a health care proxy make non-healthcare related decisions for a principal without having additional authority?

 

In Moen v. Bradenton Council on Aging, LLC, 210 So.3d 213 (Fla. 2nd DCA January 27, 2017), the Second District Court of Appeals held that a daughter did not have the authority as a health care proxy to waive the right to a jury trial and submit to binding arbitration on behalf of her mother because this was not a health care decision.




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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

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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