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.
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.
Condominium held by decedent’s revocable trust with widow as life beneficiary was protected homestead property free from forced sale. ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )
Aronson v. Aronson, 35 Fla. L. Weekly D2404 (2010)
Widow as a life beneficiary of the revocable trust which held the condominium property as sole asset received homestead protection. Decedent/grantor’s constitutional homestead exemption for what was formerly the marital residence inured to surviving spouse. Decedent’s sons, remainder beneficiaries of the trust, became successor trustees at his death and attempted to kick decedent’s widow out of marital residence which was clearly against the intent of the trust.
Case Impression: Settlors should avoid successor trustees with conflicting interests to present beneficiaries.
How Do I Transfer Real Estate of Deceased Relative in Lee County, Florida? ( Probate, Will, Trust, Decedent, Real Estate, Attorney, Lawyer, Cape Coral, Fort Myers, Bonita, Lee, Collier, Florida )
Was the relative a “resident” of Florida? If so, the real estate could be “homestead” property and transferred to the surviving spouse or heirs without probate. Depending upon the amount of assets in the name of the decedent at the date of death, probate may be required. If the decedent was domiciled in Lee County and all family members reside out of state; the individual with preference to act as Personal Representative may be appointed in Florida as a foreign PR if he or she qualifies. Florida law prevents individuals who have been convicted of a felony from acting as a Personal Representative. If the decedent was domiciled outside of Florida; a domiciliary probate proceeding may be brought in the residence state and an ancillary administration may be brought in Florida to transfer assets and pay creditors in Florida. Florida Statute 734.1025 provides a simple administration procedure for ancillary estates with less than $50,000.00 in assets in Florida.
