Monthly Archives: October 2011

Florida Constitution does not require owner claiming homestead exemption reside in property if family resides in home. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Beltran v. Kalb, 2011 WL 904244, 36 Fla. L. Weekly D551 (Fla. 3rd DCA 2011)

Ex-husband remained title holder to property after the divorce and moving out.  He never quit-claimed his interest to his ex-wife and therefore, remained a tenant in common.  The court found that the property was not abandoned due to ex-husband’s daughter, who he supported financially, resided in the property.  In order to show abandonment of homestead protection, it must be shown that both the owner and the owner’s family abandoned the property.

Case Impression: The case would not likely have the same result if he had deeded the property to his ex-wife.

 

Ward’s death does not prevent court from enforcing order previously entered in guardianship cases. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Sowden v. Brea, 47 So. 3d 341 (Fla. 5th DCA 2010)

Trial court erred in holding that upon ward’s death, the only proceedings authorized under Fla. Stat. 744.527(1) were discharge considerations.  Trustee submits to jurisdiction of court by entering into mediation settlement which was approved by court.

Case Impression: Guardians were not required to file new civil action to enforce mediation agreement approved by court during ward’s lifetime.

Appeal filed one year after order on guardian ad litem’s petition for permanent guardianship was untimely. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Crawford v. Guardianship of Crawford, 50 So. 3d 1240 (Fla. 4th DCA 2011).

Pursuant to Fla. R. App. P. 9.110(b) the appeal must be filed within thirty (30) days.

Case Impression:  Missed it by a long shot.

House owned by decedent and his mother as joint tenants was not homestead property for the benefit his minor children at his death. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Marger v. De Rosa, 36 Fla L. Weekly D214 (2011)

Decedent took title as joint tenant with right of survivorship accordingly his interest in the property terminated at his death and became the sole property of his mother as the surviving joint tenant.

Case Impression:  Decedent should have taken title as tenant in common resulting in a 50% share of the house passing to his minor children at his death.

PR who was administering decedent’s 1984 will when siblings filed a petition to administer a 2007 pour-over will and trust, filed a separate civil action attacking the validity of the 2007 trust. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Relinger v. Fox, 36 Fla. L. Weekly D294 (2011)

The appellate court granted certiorari and vacated the abatement of the civil action by the lower  court.  The appellate court noted that the parties were not identical in the two cases, that abatement is not favored, and consolidation of cases with similar issues is a more appropriate remedy.

Case Impression: It is unclear why the parties did not consent to consolidation of the probate matter and civil case.

Petition to determine homestead. Trial court erred in by allowing telephonic testimony from foreign country without notary to administer oath and one party objected. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Golden & Cowan v. Estate of Kosofsky, 45 So. 3d 986 (Fla. 3d DCA 2010)

Under Florida Rule of Judicial Administration 2.530(d)(1), a judge may, if all parties consent, allow the use of telephonic testimony. Although the court considered the inconvenience of making Philip Gilbert travel from Israel to testify over a single asset, the trial court’s introduction of the telephonic testimony was improper in light of the objection Golden & Cowan raised.  However, the improper introduction of the telephonic testimony constituted harmless error due to the existence of other independent evidence which would have led the trial court to reach the same conclusion.

Case Impression:  No phone harm, no foul.

Trial court erred in appointing decedent’s father PR of her intestate estate when Guardians of sole heirs (minor children) selected a third party. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Staley v. Williford, 50 So. 3d 680 (Fla. 2d DCA 2010)

Section 733.301, Florida Statutes sets forth the following order of preference in appointment of a personal representative of an intestate estate:

1. The surviving spouse.

2. The person selected by a majority in interest of the heirs.

3. The heir nearest in degree.

§ 733.301(1)(b).

There was no surviving spouse in this case. Douglas Stalley was the person selected by both heirs, acting through the guardians of their property as authorized under section 733.301(2).

 Case Impression: Ideally, the decedent would have executed a will naming a PR and guardian for her daughters.  Hopefully, the court selected Guardians are acting in the best interests of the minors/heirs in their selection of a third party as PR.

A custodian of a will who fails to comply with F.S. 732.901 which requires any custodian of a will to file it with the Clerk of the Court within ten (10) days of death of the decedent may not be ordered to comply and taxed with petitioner’s attorney’s fees without notice and a hearing. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Rossen v. Blichik, 46 So. 3d 1223 (Fla. 4th DCA 2010)

Case Impression: Few survivors are aware of the statutory requirement to file the will of a decedent within ten (10) days.  The ruling is expected and proper.

PR of probate estate failed to establish personal jurisdiction in Florida court over a foreign LLC, 50% owned by decedent. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Henderson v. Elias, 36 Fla. Weekly D452 (2011)

The fact that two shareholders of the corporation were subject to personal jurisdiction in their individual capacities was insufficient.  Complaint against foreign entity or person must allege sufficient jurisdiction facts pursuant to F.S. 48.193 to bring the matter within the reach of Florida’s long-arm statute and sufficient “minimum contacts” must be proved in evidentiary hearing to satisfy due process.

Case Impression:  The jurisdiction of Florida probate courts over decedent’s assets does not circumvent personal jurisdiction requirements over foreign persons or entities.

Banks which made unsecured loans to decedent failed to secure the loans on real estate subsequently purchased by decedent. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )

Bank of America v. Bank of Salem, 48 So. 3d 155 (Fla. 1st DCA 2010)

Mere allegations that the decedent promised to grant the banks a mortgage on future purchased property are insufficient evidence of fraud to support a constructive trust.  A constructive trust may be imposed after clear and convincing proof of (1) a promise, express of implied; (2) transfer of property and reliance thereon, (3) confidential relationship, and (4) unjust enrichment.

Case Impression:  If you are smooth enough to convince two lenders to loan you $800,000.00 without collateral, go for it.