Case Law Updates: Will, Trusts, Probate, Homestead, Real Estate

Florida Case Law Summaries applicable to Probate, Trusts, Wills, Homestead and Real Estate.

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.

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.

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.

November 2017
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