The State of Florida recently released its annual statistical report on probate caseloads for the past year. The report goes a long way in explaining just why it's so often a painfully slow process to resolve a probate case.
In previous posts, we addressed digital assets and how difficult it might be for fiduciaries (personal representatives or trustees) of an estate to access the digital assets of a deceased loved one, specifically their Facebook account and assets such as email accounts. Although we had hopes that the Florida legislature would pass a bill on the subject early last year (Senate Bill 102), it unfortunately died on May 1. The Legislature, however, was determined to pass a bill on the subject, and we can now say that it has!
Here's the scenario: You're negotiating the settlement of an estate dispute with someone. They lie to you, and you then rely upon the lie to reach an agreement. Think you could sue when you found out about that lie, right? Not necessarily.
It turns out that a billionaire artist you've likely never heard of has considerable influence over the administration of your estate. His name is Robert Rauschenberg. And while he's nowhere near as well known as Warhol or van Gogh, he has their level of influence. How? Trustee fees, that’s how.
You may not be familiar with the Renunciation Rule. It often comes up in litigation over trusts, and it is a rule that all beneficiaries and trustees should be familiar with. Renunciation in this context requires that a person renounce (or refuse to take) any interest in a trust and give back any contested assets he has already received if he wants to argue that the trust is invalid. The old saying “you can’t have your cake and eat it too” applies here. You can’t argue that the trust should not be followed and still benefit from it by receiving assets.
In a case from our own backyard, Keul vs Hodges Boulevard Presbyterian Church, Mrs. Lampp and her late husband executed wills in 2009, several months before he died. Their estate plan provided that after Mrs. Lampp’s death, the entire estate would go to Hodges Boulevard Presbyterian Church. When she died, Mrs. Lampp had $333,000 in Navy Federal Credit Union accounts that she had jointly owned with her husband before he died. Her "friendly" neighbor provided a "payable on death" form from the credit union that gave her (the neighbor!) 75% of the credit union accounts, 10% each to her son and daughter and the remaining 5% to her former daughter-in-law. Nothing was left to the church.
The recent Zelman case involved all-too-familiar fighting between a second wife and first kids. The children of 85-year-old Martin Zelman instituted guardianship proceedings alleging that Martin’s wife was taking advantage of him and isolating him from his children, in part to take control of his substantial assets. The children alleged that Martin had “accidentally” deposited $3 million in the couple’s joint bank account, and that the money should be returned to Martin’s sole ownership.
The law governing Florida’s UTMA accounts has been amended. Effective July 1, 2015, persons creating a UTMA account for a minor theoretically can create a custodianship that does not terminate until the minor attains age 25. Previously, Florida law required that UTMA accounts terminate when the minor attains age 21.
Guardianship is a legal concept where, if a court determines that a person (called the “ward”) is not capable of handling his or her own affairs due to age or incapacity, the court appoints a “guardian” to handle these affairs for the ward. We've previously addressed some predatory practices that have put individuals at risk (see here). Recently, new laws have taken effect in Florida to help provide increased protections for wards (see here).