Litigation Under Florida Probate Code [12 ed.] 1522195319, 9781522195313

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LITIGATION UNDER FLORIDA PROBATE CODE THIRTEENTH EDITION

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LEGAL PUBLICATIONS STAFF Terry L. Hill, Director, Programs Division Jamie Spargo, Associate Editor Chelsea Chick, Associate Editor

PREFACE This manual is another work in a continuing series of publications designed to aid Florida lawyers to practice more efficiently and effectively. It is presented with the understanding that there is no official Florida Barapproved method of practice and that CLE Publications does not render any legal or professional service through this manual. Due to the changing nature of the law, information in this publication may become outdated. As a result, an attorney using CLE Publications materials must always research original sources of authority and update CLE Publications information to ensure accuracy when dealing with the specific client’s legal matters. In no event will the authors, the reviewers, or The Florida Bar be liable for any direct, indirect, or consequential damages resulting from the use of these materials. The views and conclusions expressed are those of the authors and do not reflect a position of CLE Publications, The Florida Bar, or any of its sections or committees. Terry L. Hill Division Director, Programs The Florida Bar Legal Publications August 2022

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TABLE OF CONTENTS Cover Prefatory Material Title Page Copyright LEGAL PUBLICATIONS STAFF PREFACE TABLE OF CONTENTS Chapter 1 — PROCEDURAL CONSIDERATIONS § 1.1. INTRODUCTION § 1.2. PROCEDURE VERSUS SUBSTANCE § 1.3. PROCEDURAL CONSIDERATIONS A. Scope Of Florida Probate Rules B. Evidence Code C. Limiting Appearances In Litigation Matters D. Pleadings, Motions, And Verification E. Notice 1. In General 2. Formal Notice 3. Informal Notice a. In General b. Service Of Informal Notice By Electronic Mail c. Service Of Informal Notice By Delivery Or Mail 4. Service On A Minor 5. Service In Manner Provided For Service Of Formal Notice 6. Bifurcation Of Notice Requirements a. In General

b. Notice Of Administration i. In General ii. Deemed Service Of Notices On Personal Representative iii. Optional Formal Notice Of Petition For Administration c. Notice To Creditors 7. Request For Notice And Other Information a. Request For Notice And Copies b. Request For Estate Information F. Time 1. Computing Time Limits 2. Notice Of Hearings 3. Extension Of Time 4. Suspension Of Statute Of Limitations For Personal Representative G. Contested Claims 1. Jurisdiction 2. Filing Requirements For Objections To Claims H. Adversary Proceedings I. Parties And Discovery J. Appeals § 1.4. JURISDICTION IN THE PROBATE COURT A. History Of Probate Jurisdiction B. Territorial Jurisdiction And Venue C. Subject Matter Jurisdiction D. In Personam And In Rem Jurisdiction 1. In General 2. Personal Jurisdiction In Probate Proceedings a. Process In General b. Procedural Considerations c. Scope Of Personal Jurisdiction 3. In Rem Jurisdiction In Probate Proceedings a. Formal Notice In General b. Formal Notice On A Minor

c. Formal Notice And Persons Interested E. Separate Actions Within And Outside Probate Proceeding Chapter 2 — INTESTATE SUCCESSION § 2.1. INTRODUCTION § 2.2. DETERMINATION OF BENEFICIARIES A. Factors Bearing On Eligibility 1. Children Born Out Of Wedlock a. Establishing Paternity b. Presumptions 2. Adoption a. Effect Of Judgment b. Death Of Party To Proceeding c. Adoptee’s Status As Pretermitted Child d. Effect Of Foreign Judgment; “De Facto,” “Virtual,” Or “Equitable” Adoption 3. Afterborn Heirs 4. Half Blood Inheritance 5. Disqualification Of Killer Of Decedent And Forfeiture For Abuse, Neglect, Exploitation, Or Aggravated Manslaughter Of Elderly Person Or A Disabled Adult 6. Aliens 7. Marriage a. In General b. Statutory Requirements; Proof Of Marriage c. Common-Law Marriages d. Effect Of Dissolution e. Effect Of Annulment f. Antenuptial And Postnuptial Agreements i. Effect Of Agreement ii. Requirements For Agreement g. Effect Of Marriage Procured By Fraud, Duress, Or Undue Influence

B. Procedure For Determining Heirs 1. In General 2. Petition For Determination Of Beneficiaries a. Contents b. Who May File c. Service Of Process d. Default e. Waiver 3. Evidentiary Considerations 4. Guardian Ad Litem For Unknown Beneficiaries 5. Genealogical Tracing Services § 2.3. INHERITANCE RIGHTS A. In General B. Share Of Spouse C. Share Of Heirs Other Than Spouse D. Exempt Property E. Family Allowance F. Determination Of Lineal And Collateral Heirs § 2.4. APPOINTMENT OF PERSONAL REPRESENTATIVE § 2.5. DISCOVERY OF WILL AFTER COMMENCEMENT OF ADMINISTRATION § 2.6. RIGHT TO POSSESSION OF PROPERTY § 2.7. AGREEMENTS AS TO SUCCESSION § 2.8. ADVANCEMENTS § 2.9. GENEALOGICAL CHART Chapter 3 — WILL AND TRUST CONTESTS § 3.1. SCOPE § 3.2. WILL CONTESTS A. Grounds 1. In General 2. Execution Or Qualification

a. In General b. Age c. Statutory Formalities d. Effect Of Self-Proving Will 3. Statutory Grounds a. Incompetency And Insane Delusion b. Fraud, Duress, Undue Influence, Or Mistake c. Gifts 4. Revocation a. By Writing b. By Act 5. Partial Revocation a. General Considerations b. Effect 6. Special Grounds a. Charitable Devises b. Rule Against Perpetuities c. Pretermitted Heirs d. Public Policy B. Standing To Contest 1. Interest In Estate a. Heir At Law b. Beneficiary Or Personal Representative Under Former Will c. Contractual Rights 2. Filing Requirements a. Notice Of Administration b. Probate In Foreign State 3. Renunciation Of Benefits a. Applicability b. Effect 4. In Terrorem Clause 5. Dependent Relative Revocation 6. Caveat

C. Attorney’s Relationship With Client 1. General Considerations 2. Contingent Fee Arrangements 3. Fees Set By Court 4. Representing One Of Multiple Interested Parties 5. Conflicts Of Interest 6. Malpractice D. Pleadings 1. Petition For Revocation Of Probate a. In General b. Form For Petition c. Service Of Petition i. In General ii. Parties iii. Methods Of Service 2. Reply To Petition a. Standard Grounds b. Special Grounds c. Attack On Standing Of Petitioner 3. Motions a. In General b. Motion To Dismiss c. Summary Judgment d. Objections On Jurisdictional Grounds E. Discovery 1. Application Of Florida Rules Of Civil Procedure 2. Form For Notice Of Motion Seeking Assessment Of Costs 3. Interested Witnesses F. Trial 1. Jury Trial 2. Nonjury Trial 3. Pretrial Conference And Mediation 4. Testimony

a. Interested Witnesses b. Expert Testimony c. Dead Person’s Statute d. Rules Of Evidence e. Lay Testimony f. Attorney As Witness g. Depositions 5. Documentary Evidence a. In General b. Writings Of Decedent c. Medical Records d. Previous Wills e. Death Certificates f. Government Records g. Records Of Activities G. The Judgment 1. Elements Of Judgment 2. Recitation Of Facts 3. Allowance Of Fees 4. Form For Judgment 5. Forms For Orders Allowing Fees a. Order Assessing Fees Payable From Estate Assets b. Order Assessing Fees Payable From Assets Passing To Contestants Of Will 6. Rehearing H. Settlement Of Will Contest 1. Partial Settlement 2. Complete Settlement 3. Form For Settlement § 3.3. TRUST CONTESTS A. In General B. Grounds 1. Execution Or Qualification

a. Trust Executed Prior To October 1, 1995 b. Trust Executed On Or After October 1, 1995 c. Execution Considerations 2. Statutory Grounds a. Elements For Contest b. Fraud, Duress, And Undue Influence c. Mistake; Reformation As Remedy d. Unenforceable Trusts e. Gifts To Lawyers And Other Persons 3. Revocation a. By Writing b. By Act C. Commencement Of Trust Proceedings 1. Independent Action 2. Consolidation D. Venue 1. In General 2. Expansion Of Venue E. Service Of Process 1. Statutory Service 2. Formal Notice F. Foreign Trust 1. Limitation On Florida Proceedings 2. Exceptions To Limitations G. Standing To Contest 1. Interest In Trust a. Heir At Law b. Beneficiary Under Trust c. Contractual Rights 2. Filing Requirements And Limitations 3. Renunciation Of Benefits 4. In Terrorem Clause H. Fees In Trust Actions

1. Reasonable Fees 2. Powers Of Trustee 3. Legal Services Rendered To Trust 4. Chancery Considerations I. Trial Considerations Chapter 4 — RIGHTS OF THE SURVIVING FAMILY § 4.1. INTRODUCTION § 4.2. SPOUSAL RIGHTS PROCURED BY FRAUD, DURESS, OR UNDUE INFLUENCE § 4.3. ELECTIVE SHARE A. For Decedents Dying Prior To October 1, 2001 B. For Decedents Dying On Or After October 1, 2001 1. In General 2. The “Elective Estate” 3. How Right Exercised 4. Determination Of Entitlement 5. Determination Of Amount 6. Additional Considerations § 4.4. EXEMPT PROPERTY A. In General B. How Right Exercised § 4.5. FAMILY ALLOWANCE A. In General B. How Right Exercised § 4.6. PRENUPTIAL AGREEMENTS AND WAIVER A. Before Florida Probate Code B. Florida Probate Code Provisions § 4.7. POSTNUPTIAL AGREEMENTS § 4.8. PRETERMITTED SPOUSES A. In General B. How Status Established

§ 4.9. PRETERMITTED CHILDREN A. In General B. How Status Established § 4.10. RIGHTS RESULTING FROM MARRIAGE TERMINATION § 4.11. RECEIPT OF PROPERTY BY KILLER (SLAYER STATUTE) § 4.12. NONMONETARY RIGHTS § 4.13. FLORIDA UNIFORM DISPOSITION OF COMMUNITY PROPERTY RIGHTS AT DEATH ACT Chapter 5 — JOINTLY HELD ASSETS § 5.1. INTRODUCTION § 5.2. FORMS OF COMMON OWNERSHIP A. In General B. Tenancy In Common 1. Creation 2. Characteristics C. Joint Tenancy 1. Creation 2. Characteristics a. Unities b. Severance c. Survivorship D. Tenancy By The Entireties 1. Creation a. Real Property b. Personal Property 2. Characteristics a. Unities b. Severance c. Survivorship § 5.3. CREATION OF JOINT INTERESTS BY GIFT A. In General

B. Essential Elements Of Gifts Inter Vivos And Causa Mortis 1. In General 2. Intent 3. Delivery 4. Acceptance C. Presumptions And Burdens Of Proof Applicable To Gift Issues 1. In General 2. Gift Presumptions a. Presumption Arising From Joint Titling Or Registration b. Presumption Arising From Relationship Of Parties c. Donee’s Possession Of Property 3. Overcoming Gift Presumptions; Burden Of Proof 4. Treatment Of Presumptions Under Florida Evidence Code 5. Presumption Of Undue Influence § 5.4. MULTIPLE-PARTY ACCOUNTS A. Ownership Prior To Death Of Any Party 1. In General 2. Statutes Or Account Documentation Not Controlling 3. Establishing Ownership Interest 4. Accountability And Withdrawal Authorization B. Ownership By Survivorship 1. In General 2. Joint Account Survivorship Theories 3. Joint Account Statutes And Presumptions Of Survivorship a. In General b. Savings Associations (1965–1992) c. Banks (1971–1992) d. Contrast Between Former Statutes (Pre-1992) e. Consolidated Statute (Since 1992) f. Pay-On-Death Account Statute (Since 1995) g. Severance Of Survivorship Accounts h. Convenience Accounts § 5.5. TOTTEN TRUST ACCOUNTS

A. Creation And Characteristics B. Revocation § 5.6. FLORIDA UNIFORM TRANSFER-ON-DEATH SECURITY REGISTRATION ACT Chapter 6 — CREDITORS’ CLAIMS § 6.1. INTRODUCTION § 6.2. THREE-MONTH/THIRTY-DAY CLAIM STATUTE A. In General B. Jurisdictional Statute Of Nonclaim Versus Statute Of Limitations 1. Significance Of Issue 2. Pre-May Decision 3. May Decision 4. Post-May Decision C. Extension Of Time For Filing Claim § 6.3. TWO-YEAR NONCLAIM STATUTE A. In General B. Notice § 6.4. CLAIMS AGAINST REVOCABLE TRUSTS § 6.5. OBJECTIONS A. Statutory Requirements B. Service Of Objection C. Failure To Serve Objection D. Extension Of Time For Filing Or Serving Objection 1. In General 2. Good Cause E. Failure To File Objection § 6.6. INDEPENDENT ACTION A. Statutory Requirement B. Failure To File Independent Action C. Time For Filing Independent Action D. Extension Of Time For Filing Independent Action

1. In General 2. Good Cause E. Where Independent Action Must Be Brought F. Necessary Parties G. Notice Of Independent Action H. Action Pending At Death I. Priority Of Judgment § 6.7. PAYMENT OF CLAIMS A. Petition For Compulsory Payment B. Interest C. Attorneys’ Fees § 6.8. ACTION WHEN NO CLAIM FILED A. Liens On Specific Property; Counterclaims; Insurance B. Trust Claims § 6.9. EXECUTIONS AND LEVIES § 6.10. TOLLING STATUTE OF LIMITATIONS § 6.11. APPEALS Chapter 7 — WILL CONSTRUCTION § 7.1. PRELIMINARY CONSIDERATIONS A. Necessity Of Probate B. Review Of Facts And Law C. Consideration Of Stipulated Construction § 7.2. JURISDICTION; CHOICE OF FORUM; JURY TRIAL OF RELATED ISSUES A. Circuit Court B. Federal Court C. Availability Of Jury Trial § 7.3. DRAFTING PETITION OR COMPLAINT A. Contents B. Parties C. Sample Petition For Construction Of Will

D. Notice E. Form For Notice F. Form Proof of Service Of Formal Notice § 7.4. PROCEDURE A. In General B. Waiver And Consent 1. In General 2. Sample Waiver And Consent C. Default § 7.5. RULES OF CONSTRUCTION A. In General B. Statutory Rules 1. Simultaneous Death Law 2. Antilapse; Deceased Devisee 3. Failure Of Testamentary Provision 4. Change In Securities; Accessions; Nonademption 5. Nonademption Of Specific Devises In Certain Cases 6. Exercise Of Power Of Appointment 7. Construction Of Terms 8. Ademption By Satisfaction 9. Devises To Multigenerational Classes Are Per Stirpes 10. Penalty Clause For Contest 11. Principal And Income 12. Reformation And Modification Of Wills C. Interpretative And Probative Rules 1. In General 2. Cardinal Rule—Intent Of Testator 3. Other Rules a. Choice Of Law; Realty And Personalty b. Intestacy Not Favored c. Will Construed As A Whole d. Clauses In Conflict e. Spouses And Blood Relatives Favored

f. Republication Of Wills g. Date Of Construction h. Disinheritance § 7.6. ADMISSIBILITY OF EXTRINSIC EVIDENCE A. Latent And Patent Ambiguities 1. In General 2. Latent Ambiguity 3. Patent Ambiguity B. Examples Of Admissible Extrinsic Evidence C. Circumstances Surrounding Execution Of Will § 7.7. LAWYER’S AND PERSONAL REPRESENTATIVE’S COMPENSATION § 7.8. LIMITED JUDICIAL CONSTRUCTION OF TAX PROVISIONS RELATING TO SUSPENSION OF FEDERAL ESTATE TAX AND GST TAX FOR 2010 Chapter 8 — HOMESTEAD LITIGATION § 8.1. INTRODUCTION § 8.2. DEFINING HOMESTEAD A. Constitutional Provisions B. Statutory Provisions 1. F.S. 731.201—Homestead Defined 2. F.S. 732.401—Descent Of Homestead 3. F.S. 732.4015—Devise Of Homestead 4. F.S. 732.4017—Inter Vivos Transfer Of Homestead 5. F.S. 736.1109—Testamentary And Revocable Trusts: Homestead Protections 6. F.S. 736.151—Homestead Property C. Applicable Law D. Form Of Ownership Of Property E. Possession Of Homestead By Personal Representative And Homestead Lien § 8.3. CONTEXTS IN WHICH HOMESTEAD ISSUES ARISE

A. In General B. Tax Exemption Issues C. Title Issues 1. Inter Vivos Alienation Of Property 2. Inheritance Of Property 3. Devise Of Property D. Exemption From Claims Of Creditors Issues E. Waivers Of Homestead Protection § 8.4. DETERMINATION OF HOMESTEAD STATUS A. Presumptions; Burden Of Proof B. Importance Of Time Of Execution Of Instrument In Determining Homestead C. Factual Issues To Be Determined 1. In General 2. Residency 3. Family Status § 8.5. PLEADING AND PROCEDURE A. In General B. Notice Of Proceedings 1. Necessity Of Providing Notice 2. Form For Notice C. Searching For Interested Persons 1. Necessity Of Search 2. Form For Affidavit Of Diligent Search And Inquiry 3. Form For Notice Of Action D. Guardians Ad Litem 1. In General 2. Form For Petition For Appointment 3. Form For Order Of Appointment 4. Form For Oath E. Petition And Order Regarding Determination Of Homestead Status F. Notice Of Taking Possession Of Protected Homestead

Chapter 9 — REMOVAL OF PERSONAL REPRESENTATIVE AND SURCHARGE § 9.1. INTRODUCTION AND SCOPE § 9.2. REVOCATION OF APPOINTMENT OR REFUSAL TO APPOINT VERSUS REMOVAL § 9.3. REMOVAL OF PERSONAL REPRESENTATIVE A. Statutory Grounds For Removal B. Judicial Construction Of Statutory Grounds For Removal C. Conflict Between Co-Personal Representatives And Hostility Of Beneficiaries As Additional Grounds For Removal D. Requirement That Estate Be Endangered E. Commencement Of Removal Proceedings F. Jurisdiction And Venue G. Standing To Bring Removal Action H. Timing I. Attorneys’ Fees And Costs J. Removal Of Personal Representative’s Attorney K. Jury Trial L. Right Of Appeal M. Accounting By Removed Personal Representative N. Delivery Of Assets And Records O. Administration Following Removal § 9.4. SURCHARGE AND LIABILITY OF PERSONAL REPRESENTATIVE FOR MISMANAGEMENT A. Available Remedies B. Standard For Liability C. Specific Areas Of Personal Representative’s Liability 1. Operating Decedent’s Business 2. Investments 3. Claims And Litigation 4. Hiring Agents; Defense Of Advice Of Counsel D. Standing E. Conflict Of Interest Transactions

F. Matters Barring Actions Against Personal Representative 1. Objection To Interim Accounting 2. Objection To Final Accounting G. Actions On Surety Bonds H. Exculpatory Clauses I. Appeals J. Attorneys’ Fees K. Liability Of Personal Representative’s Attorney To Beneficiaries Of Estate Chapter 10 — JURY TRIALS IN PROBATE § 10.1. INTRODUCTION § 10.2. SOURCES OF RIGHT TO TRIAL BY JURY A. Florida Constitution B. Statute § 10.3. SCOPE OF CONSTITUTIONAL RIGHT TO TRIAL BY JURY A. In General B. Right Determined By Nature Of Controversy 1. In General 2. Legal Causes Of Action Generally—Right To Trial By Jury 3. Equitable Causes Of Action Generally—No Right To Trial By Jury 4. General Probate Proceedings—No Right To Trial By Jury 5. Particular Probate-Related Legal Causes Of Action—Right To Trial By Jury 6. Particular Probate-Related Equitable Proceedings—No Right To Trial By Jury C. Liberal Construction Of Right § 10.4. ADVISORY JURIES IN EQUITABLE PROCEEDINGS A. In General B. In Probate C. Procedure for Empaneling An Advisory Jury § 10.5. REVIEW OF ORDER DENYING OR STRIKING DEMAND

FOR JURY TRIAL § 10.6. REMOTE JURY TRIALS Chapter 11 — COMPENSATION DISPUTES § 11.1. INTRODUCTION § 11.2. THE LAW A. Time As Factor In Determining Reasonable Fee B. Understanding Operation Of Statutory Formula C. Attorneys’ Fees—Basis For Entitlement 1. Attorney Representing Personal Representative a. Attorney For The Serving Personal Representative b. Paralegal Compensation c. Attorney For Removed Or Resigning Personal Representative Or Unsuccessful Will Offeror 2. Attorney Representing Third Party a. Actions On Behalf Of Or Against The Estate i. In General ii. “Benefit To The Estate” Under F.S. 733.106(3) b. Surcharge Action Under F.S. 733.609 c. Disqualification Under F.S. 733.3101 3. Fees Under F.S. 57.105, 768.79, And 772.11 a. Fees Under F.S. 57.105 b. Fees Under F.S. 768.79 c. Fees Under F.S. 772.11 D. Attorneys’ Fees Charged Against Third Party E. Personal Representatives’ Fees—Basis For Entitlement F. Fees For Multiple Personal Representatives G. Fees For Multiple Attorneys H. Fees When Attorney Is Also Personal Representative I. When And How Fees Are Paid J. Priority And Nature Of Fees K. Calculation Of “Reasonable Fee” 1. Fees Of Attorneys

a. Historical Perspective Of Attorneys’ Fees For Probate Administration b. Current Law Of Attorneys’ Fees For Probate Administration c. Attorney As Expert Or Fact Witness d. Retroactive Effect Of F.S. 733.6171 e. Fees For Probate Litigation f. Pleading Requirements 2. Fees Of Personal Representatives a. Historical Perspective Of Personal Representatives’ Commissions b. Current Law Of Personal Representatives’ Commissions L. Need For Time Records 1. Introduction 2. Application M. Fee Contracts N. Fees To Obtain Fees O. Expert Witness Fee For Attorney/Witness P. Interest On Attorneys’ Fees Awarded But Unpaid Q. Interim Or Partial Fees R. Fees For Appellate Services 1. Introduction 2. Application § 11.3. PROCEDURE A. Parties B. How Proceeding Is Commenced 1. By Petition 2. By Objection To Petition For Discharge Or Final Accounting C. Nonadversary Versus Adversary Proceeding D. Pleading Requirements E. Discovery F. Burden Of Proof G. Getting To Final Hearing H. Settlement

I. Final Hearing J. Final Order K. Appeal § 11.4. COLLECTION PROCEDURES AND CONSIDERATIONS A. Ethical Considerations B. Attorney’s Retaining Lien C. Charging Lien § 11.5. TAX CONSIDERATIONS § 11.6. IN RE ESTATE OF PLATT: AN ANALYSIS § 11.7. CONCLUSION Chapter 12 — WRONGFUL DEATH CLAIMS § 12.1. INTRODUCTION § 12.2. INVESTIGATING CAUSES OF ACTION A. In General B. Medical Malpractice C. Determining Availability Of Liability Insurance Coverage § 12.3. PROCEDURAL CONSIDERATIONS A. General Considerations B. Personal Injury Claims Pending At Time Of Decedent’s Death C. Foreign Personal Representative D. Statute Of Limitations E. Venue F. Party Substitution § 12.4. DETERMINING SURVIVORS A. In General B. Surviving Spouse C. Children In Being At Death D. Parents E. Other Relatives F. The Estate § 12.5. EVALUATING SETTLEMENT OFFERS

§ 12.6. SETTLING WRONGFUL DEATH CLAIMS § 12.7. ALLOCATION OF ATTORNEYS’ FEES § 12.8. LIENS ON WRONGFUL DEATH RECOVERY A. In General B. Medicare Liens 1. Legal Basis For Lien 2. Handling Medicare Lien Before Wrongful Death Recovery Is Made 3. Medicare Liens Post-Recovery C. Medicaid Liens 1. In General 2. Lien Amount 3. Distribution Of Recovered Amount 4. Undue Hardship Waiver 5. Impact Of Ahlborn And Bradley D. Group Insurance Liens 1. ERISA Policies 2. Non-ERISA Policies a. In General b. Requirement To Notify Collateral Source Provider Of Wrongful Death Claim c. Waiver Of Lien d. Provider’s Duty To Cooperate With Claimant e. Settlement Of Disputes 3. No Lien On Future Payments Chapter 13 — TORTIOUS INTERFERENCE IN ESTATE PLANNING § 13.1. INTRODUCTION § 13.2. ELEMENTS OF TORT OF INTENTIONAL INTERFERENCE WITH EXPECTANCY A. In General B. Reasonable Expectancy: Prospect Of Inter Vivos Or Testamentary Gift As Result Of Fixed Intention

1. Nature Of Expectancy 2. Examples Of Allegations Of Expectancy C. Intentional Interference With Expectancy By Means That Are Independently Tortious In Character 1. Tortious Means Generally 2. Examples Of Independent Torts D. Interference Causes Damage By Destroying Expectancy 1. Damages 2. Causation Generally 3. Examples Of Allegations Of Causation 4. Examples Of Manner In Which Wrongful Interference May Destroy Expectancy § 13.3. EXHAUSTION OF ADEQUATE PROBATE REMEDY A. In General B. Underlying Policies For Exhaustion Requirement C. Adequacy 1. Probate Remedies For Interference With Trust Devise a. In General b. Will Makes Devise Or Pours Over To Trust c. Incorporation By Reference Of Trust Into Will D. Need For Consistency In Related Transactions § 13.4. TORT REMEDIES A. Monetary Damages B. Restitution; Constructive Trust; Equitable Lien § 13.5. LATER TORT ACTION A. In General B. Later Action Permitted C. Later Action Not Permitted § 13.6. POINT AT WHICH TORT ACTION MAY BE BROUGHT § 13.7. REQUIRED BURDEN OF PROOF § 13.8. STATUTE OF LIMITATIONS § 13.9. CASE SUMMARIES

§ 13.10. ADDITIONAL REFERENCES Chapter 14 — APPELLATE PRACTICE IN PROBATE § 14.1. INTRODUCTION § 14.2. QUESTIONS TO ADDRESS WHEN PROBATE COURT ISSUES ORDER § 14.3. FINAL ORDERS A. Right To Appeal Final Order B. Definition Of Final Order C. Examples Of Appealable Final Orders D. Examples Of Nonappealable Orders E. Options Regarding Final Order 1. Filing Notice Of Appeal Within 30 Days Of Signing And Filing Of Order, Without Filing Motion To Delay Rendition 2. Filing Motion To Delay Rendition § 14.4. NONFINAL ORDERS § 14.5. CERTIORARI A. When Available B. Practice And Procedure § 14.6. STANDARDS OF REVIEW ON APPEAL A. In General B. Law Decisions C. Fact Decisions 1. In General 2. Testamentary Capacity 3. Undue Influence 4. Legal Conclusions From Undisputed Evidence D. Discretionary Decisions § 14.7. APPELLATE PRINCIPLES REGARDING ERROR A. Errors Must Be Preserved For Review B. Harmless Error Rule § 14.8. ATTORNEYS’ FEES ON APPEAL

A. Jurisdiction B. Appellate Review Regarding Probate Award Of Appellate Fees C. Standard Of Review D. Motion For Attorneys’ Fees In Appellate Court E. Awards Under F.S. 57.105 Or Inequitable Conduct Doctrine F. Retention Of Jurisdiction To Tax Costs § 14.9. PERFECTING APPEAL OF FINAL ORDER: AN OVERVIEW A. In General B. Commencement C. Parties 1. In General 2. Administrator Ad Litem 3. Personal Representative 4. Lawyers, Representatives, And Guardians Ad Litem 5. Trustee 6. Death Of Party D. Supersedeas (Stay Pending Review) 1. In General 2. Stay Not Required For Appeal 3. Motion In Trial Court 4. Conditions Of Stay 5. Automatic Stay Of Money Judgment Upon Posting Bond 6. Review Of Stay Order E. Directions To Clerk In Appeals Of Final Orders (The Record) F. Designation To Court Reporter G. Correction Of Errors And Omissions In Record H. Briefs I. Request For Oral Argument CITATION INDEX FLORIDA Florida Code of Professional Responsibility Florida Constitution

Florida Family Law Rules of Procedure Florida Probate Rules Florida Rules of Appellate Procedure Florida Rules of Civil Procedure Florida Rules of Criminal Procedure Florida Rules of General Practice and Judicial Administration Florida Rules of Juvenile Procedure Florida Statutes Rules Regulating the Florida Bar FEDERAL STATUTES, RULES, AND REGULATIONS United States Constitution United States Code Code of Federal Regulations Federal Rules of Civil Procedure CASE INDEX A B C D E F G H I J K L M N

O P Q R S T U V W X Y Z SUBJECT INDEX A B C D E F G H I J K L M N P R

S T U V W

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 1 » 1 Litigation Under FL Probate Code Ch. 1 (2022)

Chapter 1 PROCEDURAL CONSIDERATIONS SEAN KELLEY* SHANE KELLEY** JENNA RUBIN*** Contents § 1.1. INTRODUCTION § 1.2. PROCEDURE VERSUS SUBSTANCE § 1.3. PROCEDURAL CONSIDERATIONS A. Scope Of Florida Probate Rules B. Evidence Code C. Limiting Appearances In Litigation Matters D. Pleadings, Motions, And Verification E. Notice 1. In General 2. Formal Notice 3. Informal Notice a. In General b. Service Of Informal Notice By Electronic Mail c. Service Of Informal Notice By Delivery Or Mail 4. Service On A Minor 5. Service In Manner Provided For Service Of Formal Notice 6. Bifurcation Of Notice Requirements a. In General b. Notice Of Administration i. In General

ii. Deemed Service Of Notices On Personal Representative iii. Optional Formal Notice Of Petition For Administration c. Notice To Creditors 7. Request For Notice And Other Information a. Request For Notice And Copies b. Request For Estate Information F. Time 1. Computing Time Limits 2. Notice Of Hearings 3. Extension Of Time 4. Suspension Of Statute Of Limitations For Personal Representative G. Contested Claims 1. Jurisdiction 2. Filing Requirements For Objections To Claims H. Adversary Proceedings I. Parties And Discovery J. Appeals § 1.4. JURISDICTION IN THE PROBATE COURT A. History Of Probate Jurisdiction B. Territorial Jurisdiction And Venue C. Subject Matter Jurisdiction D. In Personam And In Rem Jurisdiction 1. In General 2. Personal Jurisdiction In Probate Proceedings a. Process In General b. Procedural Considerations c. Scope Of Personal Jurisdiction 3. In Rem Jurisdiction In Probate Proceedings a. Formal Notice In General b. Formal Notice On A Minor c. Formal Notice And Persons Interested E. Separate Actions Within And Outside Probate Proceeding

« Ch. 1 », • § 1.1 » 1 Litigation Under FL Probate Code § 1.1 (2022)

§ 1.1. INTRODUCTION Although the procedures involved in different types of probate proceedings are discussed in other chapters of this manual, certain basic observations are discussed in this chapter as they relate to probate litigation. Many of these topics are also discussed in PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022), and the practitioner is urged to consult that manual as a primary reference when handling the administration of an estate. Unfortunately, too often probate lawyers do not adequately understand the technical aspects of service of process, notice, due process, and minimum contacts as they relate to the extent and reach of the court’s jurisdiction and the procedures utilized to exercise and enforce that jurisdiction. This chapter is a brief overview of those topics.

« Ch. 1 », « § 1.2 » 1 Litigation Under FL Probate Code § 1.2 (2022)

§ 1.2. PROCEDURE VERSUS SUBSTANCE The Florida Constitution, in Article V, § 2(a), vests the Florida Supreme Court with the power to adopt rules for practice and procedure in all courts. The Florida Legislature has the power to repeal a rule adopted by the Florida Supreme Court by a two-thirds vote, id., but the legislature “has no constitutional authority to enact any law relating to practice and procedure” [emphasis added]. In re Clarification of Florida Rules of Practice & Procedure (Florida Constitution, Article V, Section 2(a)), 281 So. 2d 204 (Fla. 1973). Any statute or portion of a statute that impermissibly contains procedural aspects is constitutionally infirm, and to the extent that the procedure cannot be severed from the substance, the entire statute is unconstitutional. Milton v. Leapai, 562 So. 2d 804 (Fla. 5th DCA 1990), rev’d on other grounds 595 So. 2d 12; Johnson v. State, 308 So. 2d 127 (Fla. 1st DCA 1975), aff’d 346 So. 2d 66. In a perfect world, a practitioner would be able to look to the statutes for the substantive law and turn to the corresponding rules for the applicable procedure. However, the determination of what constitutes procedure and what constitutes substance is often difficult and many statutes contain subject matter lying in the gray area between procedural and substantive law. The inherent difficulty of making this determination is illustrated by the Florida Supreme Court’s characterization of the area as a “twilight zone.” In re Florida Rules of Criminal Procedure, 272 So. 2d 65, 66 (Fla. 1973), amended 272 So. 2d 513. See also the Florida Supreme Court analysis of this issue in Massey v. David, 979 So. 2d 931 (Fla. 2008), in which the majority held F.S. 57.071(2) to be an unconstitutional infringement on the rulemaking powers of the Florida Supreme Court because it provided for procedural requirements, and Justice Cantero’s dissenting opinion, which stated just as strongly that the statute was constitutional because the procedural aspects of the statute were incidental to the substantive portions. The Florida Probate Code, F.S. Chapters 731–735 (the Code), which contains the substantive law governing probate litigation, became effective on January 1, 1976. Its enactment necessitated a complete revamping of the

Florida Probate Rules to implement the substantive changes made in the probate law by the Florida Legislature. The revisions to the probate rules (as opposed to the guardianship rules) were completed and approved by the Florida Supreme Court in 1988. See The Florida Bar, 537 So. 2d 500 (Fla. 1988). See also Watson v. First Florida Leasing, Inc., 537 So. 2d 1370 (Fla. 1989). In virtually every session thereafter, the legislature has made further amendments to various portions of the Code. The 2001 changes (Ch. 2001226, § 4, Laws of Fla.) were the first major revision of the entire Code since its promulgation. Aside from major substantive changes in the statutes, the 2001 changes were part of a continuing effort to eliminate procedure from the statutes, which properly belongs in the rules. These statutory revisions have, in turn, led to numerous amendments to the rules to implement procedure deleted from the Code or to otherwise bring the rules into conformity with the revisions to the statutes. Accordingly, as a general rule, the substantive law regarding probate litigation will be found in the Code and the relevant procedure will be found in the Florida Probate Rules of Procedure. References throughout this chapter to a “rule” or “rules” refer to the Florida Probate Rules unless otherwise specified.

« Ch. 1 », « § 1.3 » 1 Litigation Under FL Probate Code § 1.3 (2022)

§ 1.3. PROCEDURAL CONSIDERATIONS « Ch. 1 », « § 1.3 », • A » 1 Litigation Under FL Probate Code § 1.3.A (2022)

A. Scope Of Florida Probate Rules The Florida Probate Rules govern the procedure in all probate and guardianship proceedings. Fla. Prob. R. 5.010. The Florida Rules of Civil Procedure apply to probate proceedings only when specifically provided by the Florida Probate Rules. Id. See also In re Estate of Arroyo v. Infinity Indemnity Insurance Co., 211 So. 3d 240 (Fla. 3d DCA 2017). See § 1.4.E for a discussion of when a matter is “within” the probate proceeding or “independent of” the probate proceeding. This distinction may determine whether the Florida Probate Rules or the Florida Rules of Civil Procedure are applicable to a particular proceeding. Rule 5.080 specifically incorporates many of the Florida Rules of Civil Procedure that relate to discovery. Accordingly, in any proceeding governed by the Florida Probate Rules, any “interested person” may utilize the discovery rules found in the Florida Rules of Civil Procedure incorporated by Rule 5.080(a). Rule 5.080(c). This is the case regardless of whether the proceeding is an adversary proceeding. Id. In adversary proceedings, which include many probate litigation matters, the Florida Rules of Civil Procedure will be applicable and control the procedural aspects of the case once formal notice is served by the petitioner. Rule 5.025(d). Adversary proceedings, as defined by the rule, include proceedings for removal or surcharge of a personal representative or guardian, for revocation of probate of a will, to determine beneficiaries, to probate a lost or destroyed will or later-discovered will, to construe a will, to reform a will, to modify a will, to cancel a devise, to partition property for the purposes of distribution, to determine pretermitted status and a pretermitted share, and to determine the amount of the elective share and contribution. Rule 5.025(a). In 2018, proceedings for an injunction under F.S. 825.1035 were added to the list of adversary proceedings. In re Amendments to Florida

Probate Rules—2018 Fast-Track Report, 253 So. 3d 983 (Fla. 2018). Other matters may also be declared adversary by the parties or by the court on its own initiative. Rules 5.025(b)–(c). After initial notice requirements (which do not apply to matters proceeding under F.S. 825.1035, which contains its own notice requirements), adversary matters proceed like a civil action. Rule 5.025(d); F.S. 825.1035. See § 1.3.H for a further discussion of adversary proceedings. « Ch. 1 », « § 1.3 », « B » 1 Litigation Under FL Probate Code § 1.3.B (2022)

B. Evidence Code In all proceedings under the Florida Probate Code and the Florida Guardianship Law, the Florida Evidence Code, F.S. Chapter 90, applies unless specifically changed by either the Florida Probate Code or the Florida Probate Rules. Fla. Prob. R. 5.170. « Ch. 1 », « § 1.3 », « C » 1 Litigation Under FL Probate Code § 1.3.C (2022)

C. Limiting Appearances In Litigation Matters In all probate and guardianship matters, if an attorney makes an appearance on behalf of an interested person, including a personal representative or guardian, that attorney is deemed the attorney of record in all other proceedings in the administration of the same estate or guardianship. Fla. Prob. R. 5.030(b). In most probate litigation matters, the attorney handling the litigation will not want to represent the client in all estate administration matters, but rather will seek to limit the appearance for the purpose of litigating the disputed issue. If this is the case, the litigation attorney may file a notice specifically limiting his or her appearance only to the particular proceeding or matter for which the attorney was retained. This “Notice of Limited Appearance” should be filed at the same time the attorney first appears in the case. Rule 5.030(b). “At the conclusion of that proceeding or matter, the attorney’s role terminates upon the attorney filing a notice of completion of limited appearance and serving a copy on the client and other interested persons.” Id. « Ch. 1 », « § 1.3 », « D » 1 Litigation Under FL Probate Code § 1.3.D (2022)

D. Pleadings, Motions, And Verification All pleadings in probate proceedings must be signed by the attorney of record, and by the pleading party when required by the probate rules. Fla. Prob. R. 5.020(a). The personal representative is also required to sign various pleadings that are listed in Rule 5.330. “All technical forms of pleadings are abolished,” and no defect as to form or in the statement of jurisdictional facts actually existing impairs the party’s rights or renders the proceedings void. Rule 5.020(a). See also Crescenzo v. Simpson, 239 So. 3d 213 (Fla. 2d DCA 2018) (pleading which was “functional equivalent” of another pleading was sufficient to put court on notice of party’s position); Winslow v. Deck, 225 So. 3d 276 (Fla. 4th DCA 2017) (party who filed pleadings which were not “models of clarity” but made sufficient allegations to allow the court to determine the relief being sought should have been given a reasonable opportunity to amend). Motion practice is specifically authorized by Rule 5.020(c). When a pleading or other document is required to be verified, it must include an oath, an affirmation, or the statement contained in Rule 5.020(e). See also F.S. 731.104. Any person who willfully provides a false statement will be guilty of perjury. Id. Electronic filing in probate divisions of the trial courts is now mandatory. See In re Amendments to Florida Rules of Civil Procedure, Florida Rules of Judicial Administration, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Small Claims Rules, Florida Rules of Juvenile Procedure, Florida Rules of Appellate Procedure, & Florida Family Law Rules of Procedure—Electronic Filing, 102 So. 3d 451 (Fla. 2012). « Ch. 1 », « § 1.3 », « E » 1 Litigation Under FL Probate Code § 1.3.E (2022)

E. Notice « Ch. 1 », « § 1.3 », « E », • 1 » 1 Litigation Under FL Probate Code § 1.3.E.1 (2022)

1. In General Fla. Prob. R. 5.040 sets forth the requirements for both formal and informal notice in probate proceedings. Unless formal notice is specified by

the Code or the rules, or when serving a pleading or other document in the manner provided for service of formal notice, “notice” means informal notice. Rule 5.040(c). “Formal notice may be given in lieu of informal notice at the option of the person giving notice unless the court orders otherwise.” Rule 5.040(d). If optional formal notice is used, “formal notice [must] be given to all interested persons entitled to notice. When formal notice is given in lieu of informal notice, that notice does not modify any time period otherwise specified by statute or [the probate] rules.” Id. « Ch. 1 », « § 1.3 », « E », « 2 » 1 Litigation Under FL Probate Code § 1.3.E.2 (2022)

2. Formal Notice When formal notice is required, or elected in lieu of informal notice (Fla. Prob. R. 5.040(d)), the petitioner must serve a copy of the petition or other pleading on interested persons, together with a notice requiring the persons served to file and serve written defenses within 20 days after service, and informing the persons served that failure to serve written defenses within the time required may result in a judgment or order being entered for the relief demanded, without any further notice. Rule 5.040(a)(1). The practitioner should note that Rule 5.040 does not specifically provide for the entry of a default against one who fails to respond. Rather, the proceeding can continue without the necessity of providing that person with “further notice” (i.e., ex parte). Rule 5.040(a)(1). The practitioner should also note that there is disagreement as to whether a default is available after service of formal notice; however, the authors believe that a default is not authorized. Although Rule 5.025(d)(2) provides “[a]fter service of formal notice, the proceedings, as nearly as practicable, must be conducted similar to suits of a civil nature, including entry of defaults” [emphasis added], the civil rule providing for default requires service of “original process” as a prerequisite to the entry of default. Rule 5.025(d)(2); Fla. R. Civ. P. 1.070. See Rule 1.500. Under Rule 1.070(a), “process” is described as a document issued “under the clerk’s or the judge’s signature and the seal of the court.” As defined under Rule 5.040, formal notice does not meet these requirements and thus it is not “process” upon which a default may be entered. Rule 5.040. Furthermore, this rule does not require, and the common form of formal notice in use in Florida does not

provide, any notice that a default may be entered for failure to plead timely; therefore, entry of a default without that notice would violate principles of due process. Id. Even if the formal notice was served, as permitted by Rule 5.040(a)(3)(B) “as provided in the Florida Rules of Civil Procedure for service of process,” it is still not “process” but only a court document served like process. A default could be entered only if a summons (process) were issued and served. Furthermore, Rule 5.040(a)(1) defines formal notice, providing: When formal notice is given, a copy of the pleading or motion shall be served on interested persons, together with a notice requiring the person served to serve written defenses on the person giving notice within 20 days after service of the notice, exclusive of the day of service, and to file the original of the written defenses with the clerk of the court either before service or immediately thereafter, and notifying the person served that failure to serve written defenses as required may result in a judgment or order for the relief demanded in the pleading or motion, without further notice. [Emphasis added.] Id. Rule 5.040(a)(3)(A) authorizes the service of formal notice “by any commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt.” If formal notice is served by mail or commercial delivery service, the notice must be served on the persons or entities listed in subdivisions (a)(4)(A) through (a)(4)(F) of the rule. Alternatively, Rule 5.040 provides that formal notice can be served “as provided in the Florida Rules of Civil Procedure for service of process” or by the traditional forms of service under F.S. Chapters 48 and 49. Rules 5.040(a) (3)(B)–(a)(3)(C). Except for one newly created exception, service by regular mail is ineffective, even if actually received. Specifically, in 2019, Rule 5.040(a)(3)(D) was added, authorizing service by first-class mail in the limited instance where (i) when only in rem or quasi in rem relief is sought against a person and (ii) only if the circumstances identified in Rules 5.040(a) (3)(D)(i)–(a)(3)(D)(iii) of the rule are present (registered or certified mail or commercial delivery services requiring a signed receipt are unavailable in that area or the delivery via registered or certified mail or commercial

delivery service is refused by the recipient or remains unclaimed after notice to the recipient by the delivering entity). In re: Amendments To Florida Probate Rules—2019 Regular-Cycle Report, 287 So. 3d 492 (Fla. 2019). If formal notice is served under Rule 5.040(a)(3)(A) of the rule (i.e., by mail or commercial delivery service), service is complete only on receipt of the notice. Rule 5.040(a)(5). In Shuck v. Smalls 101 So. 3d 924 (Fla. 4th DCA 2012), the petitioners filed a petition challenging the will and the qualifications of the personal representative several days after the end of the three-month period allowed after service of notice of administration by formal notice. The petitioners stated that under Rule 5.042, an additional five days were added to the time to respond because service was effectuated by certified mail. The District Court of Appeal, Fourth District, upheld the lower court’s opinion, and held that the mailbox rule was inapplicable to service by formal notice, and assessed attorneys’ fees under F.S. 57.105 for a timebarred frivolous claim. If formal notice is served under Rule 5.040(a)(3)(B) or 5.040(a)(3)(C) (i.e., as provided in the Florida Rules of Civil Procedure or as otherwise provided by Florida law for service of process), the Florida Rules of Civil Procedure or other Florida law governs when service is complete. Rule 5.040(a)(5). If formal notice is served under Rule 5.040(a)(3)(D), service of process is complete upon mailing. Id. Proof of service is made by a verified statement of the person serving formal notice along with a receipt signed by the person to whom delivery was made or other evidence to satisfy the court that the delivery was made. Rule 5.040(a)(6). If service is made under the limited circumstances contemplated by Rule 5.040(a)(3)(D), the verified statement must state the basis for service by first-class mail, the date of mailing, and the address where the first-class mail was sent. Id. Alternatively, if formal notice is served as provided in the Florida Rules of Civil Procedure for service of process or as otherwise provided by Florida law, proof of service is made as directed by the applicable rule or statute. Id. A certificate of service indicating service on a person which does not indicate the method of service is not sufficient evidence that formal notice was accomplished. Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017). See §§ 1.4.D.2.b–1.4.D.3.a for a discussion of formal notice and

jurisdiction. « Ch. 1 », « § 1.3 », « E », « 3 » 1 Litigation Under FL Probate Code § 1.3.E.3 (2022)

3. Informal Notice « Ch. 1 », « § 1.3 », « E », « 3 », • a » 1 Litigation Under FL Probate Code § 1.3.E.3.a (2022)

a. In General Unless formal notice is specified by the Code or probate rules, “notice” means informal notice. Fla. Prob. R. 5.040(c). See § 1.3.E.1. When informal notice is permitted or required, it is served as provided in Rule 5.041. “[E]very petition or motion for an order determining [the] rights of an interested person, and every other … document filed in that particular proceeding, … except applications for witness subpoenas, [must] be served on all interested persons,” unless the court orders otherwise or the Code or rules provide otherwise. Id. Rule 5.041 provides that service is to be made as set forth in Fla. R. Gen. Prac. & Jud. Admin. 2.516 unless the Rules or Florida Probate Code specifically provide otherwise. In re Amendments to Florida Rules of Judicial Administration, Florida Rules of Civil Procedure, Florida Rules of Criminal Procedure, Florida Probate Rules, Florida Rules of Traffic Court, Florida Small Claims Rules, Florida Rules of Juvenile Procedure, Florida Rules of Appellate Procedure, & Florida Family Law Rules of Procedure—E-mail Service Rule, 102 So. 3d 505 (Fla. 2012). Service under Rule 5.041 does not need to be made on interested persons if a default has been entered against that person or if the matter may otherwise proceed ex parte (i.e., formal notice has been served on the person and no written defenses have been served by that person within 20 days of service of the formal notice). When serving informal notice on an interested person represented by an attorney, service must be made on the attorney unless the court orders service on the interested person. Rule 2.516(b). But see Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010), discussed in more detail in § 1.3.E.6.c, regarding the confusion as to when an interested person is considered to be represented by an attorney for purposes of service.

The manner and requirements of service may be further amended as the electronic court filing systems continue to be enhanced; practitioners are cautioned to stay aware of current Standards to Court Filings published by the Florida Supreme Court. « Ch. 1 », « § 1.3 », « E », « 3 », « b » 1 Litigation Under FL Probate Code § 1.3.E.3.b (2022)

b. Service Of Informal Notice By Electronic Mail As previously stated, service of informal notice is now governed by Fla. R. Gen. Prac. & Jud. Admin. 2.516. One of the major changes in service of process contained in this rule is the requirement of service by electronic mail (e-mail). Service of informal notice is made by delivering a copy of the pleading or other document to the attorney or interested person through the e-filing system or e-mail, unless Rule 2.516 provides otherwise. Rule 2.516(b)(1). In addition to service by e-mail (and not in lieu of), service on attorneys may also be made by any of the other methods listed in Rule 2.516(b)(2), such as hand delivery or facsimile. In 2013, Rule 2.516(b)(1) was amended to address service of process by e-mail through Florida’s e-Portal (Portal). In re Amendments to the Florida Rules of Judicial Administration, 126 So. 3d 222 (Fla. 2013). Under this amendment, any registered participant who uses the Portal is deemed to have complied with the service requirements, in accordance with Rule 2.516. Therefore, this amendment eliminates the need for service of process by separate e-mail with the court document attached as a PDF file if the person is registered with the Portal and is an attorney or has designated an e-mail address for service under Rule 2.516(b)(1)(C), and that person has been designated to be served by the Portal. When making an initial appearance in a probate proceeding, an attorney must make a designation of “a primary e-mail address and may designate no more than two secondary e-mail addresses.” Rule 2.516(b)(1)(A). Thereafter, every document filed or served by that attorney must include the primary and secondary e-mail addresses. Id. If the attorney fails to “designate any e-mail address for service, documents may be served on that attorney at the e-mail address on record with The Florida Bar.” Id. When using the Florida Courts e-Filing Portal to file and serve documents, the registered Bar e-mail address may automatically be inserted, and it may be necessary to communicate with

the receiver of service about additional, personal e-mail addresses. The only exception to service on an attorney by e-mail is found in Rule 2.516(b)(1)(B): an attorney wishing to avoid service by e-mail must file a motion demonstrating that he or she has no e-mail account and lacks Internet access at the attorney’s office. This motion is required to be filed in each case. On such a finding, the court may excuse the attorney from the requirements of e-mail service of process. If an attorney is excused from email service of process, service is accomplished as provided in Rule 2.516(b) (2). Rule 2.516(b)(1)(B). Service of informal notice on individuals not represented by an attorney is governed by Rule 2.516(b)(1)(C). A party who is not represented by an attorney may designate a primary e-mail address and “no more than two secondary e-mail addresses” for service of pleadings and other documents. Id. If the party fails or chooses not to designate an e-mail address for service of process, service is by the more familiar methods provided in Rule 2.516(b) (2), which are discussed in § 1.3.E.3.c. Service by an e-filing system or e-mail is complete when the e-mail is sent. Rule 2.516(b)(1)(D). The mailbox rule no longer applies when service is effectuated by e-mail, and since 2018, five days are no longer added to the time provided for response. Rule 2.514(b); In re Amendments to Florida Rules of Civil Procedure, 257 So. 3d 66 (Fla. 2018). There has also been confusion regarding whether the mailbox rule applies to other forms of notice, such as publication of notice to creditors. F.S. 733.702(1), which creates the three-month limitations period for creditors, states that the limitations period expires on “the date that is 3 months after the time of the first publication of the notice to creditors.” F.S. 733.702(1). In Herman v. Bennett, 278 So. 3d 178 (Fla. 1st DCA 2019), the District Court of Appeal, First District, held that Rule 2.514(b), the mailbox rule, only applies when the statute at issue does not specify a method for computing time, and the language of F.S. 733.702(1) is clear and unambiguous as to the method of computing time. “If the person required to serve a document learns that the e-mail was not received by [the] intended recipient, the person must immediately resend the document to that intended recipient by e-mail,” or by one of the other methods authorized by Rule 2.516(b)(2), i.e., the Portal. Rule 2.516(b)(1)(D)

(ii). « Ch. 1 », « § 1.3 », « E », « 3 », « c • 1 Litigation Under FL Probate Code § 1.3.E.3.c (2022)

c. Service Of Informal Notice By Delivery Or Mail If a party not represented by an attorney has not designated an e-mail address under Fla. R. Gen. Prac. & Jud. Admin. 2.516(b)(1)(C), or an attorney has been excused from the requirements of e-mail service of process under Rule 2.516(b)(1)(B), service on that party is governed by Rule 2.516(b) (2), which provides that service must be made by delivering or mailing a copy of the document to the party “at [the party’s] last known address or, if no address is known, by leaving it with the clerk of the court.” Delivery can be made by hand delivery or by facsimile transmission in accordance with the requirements of the rule. Rules 2.516(b)(2)(A)–(b)(2)(D). See § 1.3.E.3.b. If service of process is by U.S. Postal mail, service is complete on the date of mailing. Delivery of a copy is complete on the occurrence of one of the events listed in Rules 2.516(b)(2)(A)–(b)(2)(F), one option being transmittal by facsimile to the attorney’s or interested person’s office. It is interesting to note that this list does not authorize a fax to an attorney’s or party’s home. See § 1.3.E.5. The facsimile must include “a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted.” Rule 2.516(b)(2)(E). If delivery is by facsimile, a copy “also [needs to] be served by any other method permitted by this rule” (e.g., by Portal, e-mail, or regular mail). Id. Proof of service of informal notice is made by a certificate of service, signed by the attorney in the form provided in Rule 2.516(f). Prima facie proof of service of informal notice under Rule 2.516 exists if the practitioner “certifies in substance: I certify that the foregoing document has been furnished to [insert name(s), addresses used for service, and mailing addresses] by [e-mail, delivery, mail, or fax] on [date].” Rule 2.516(f). The authors propose an alternative certificate in the following form, which the authors believe to be sufficient: I certify that the foregoing document has been electronically filed through the Florida Courts E-Filing Portal and that the Portal has been used as a means of e-Service to (name(s)) at (e-mail address(es)).

I also certify that the foregoing document was served by U.S. mail on (name and mailing address). This document was filed and served as indicated on (date).

________ Attorney The certificate of service is prima facie proof of service in compliance with the rules. Id. Unrepresented persons who have not designated an e-mail address are served as provided by Rule 2.516(b)(1)(C), generally by mail. « Ch. 1 », « § 1.3 », « E », « 4 » 1 Litigation Under FL Probate Code § 1.3.E.4 (2022)

4. Service On A Minor Special rules are provided in the Florida Probate Rules for service of process on a minor whose disabilities of nonage have not been removed. Service of process on a minor is made by formal notice under Fla. Prob. R. 5.040(a)(4)(D), and informal notice under Rule 5.041, on the persons designated to receive such service under F.S. Chapter 48, which typically includes a parent, legal guardian, or a guardian ad litem appointed by the court to represent the minor. Rules 5.040(a)(4)(D), 5.041; F.S. 48.031, 48.041. « Ch. 1 », « § 1.3 », « E », « 5 » 1 Litigation Under FL Probate Code § 1.3.E.5 (2022)

5. Service In Manner Provided For Service Of Formal Notice There are multiple references in the relevant rules to service “in the manner provided for service of formal notice.” See Fla. R. Gen. Prac. & Jud. Admin. 2.516(a) (excepting from the rule documents “required to be served in the manner provided for service of formal notice”); Fla. Prob. R. 5.240(a) (requires notice of administration to be served “in the manner provided for service of formal notice”); Rule 5.241(a) (authorizes notice to creditors to be served “either by informal notice, or in the manner provided for service of formal notice at the option of the personal representative”); and Rule 5.490 (requires personal representative to serve all interested persons with claim filed by personal representative either by informal notice, or in manner

provided for service of formal notice). There has been confusion among some practitioners as to the meaning of this phrase. The phrase, as used in the Florida Probate Rules, does not require service of the 20-day notice as provided in Rule 5.040(a). The language simply means that rather than service by e-mail, delivery, or mail as detailed in Rule 2.516, one must serve the pleading or other document by the service methods described in Rules 5.040(a)(3)(A)–(a)(3)(D). These delivery methods include service by registered or certified U.S. mail, or by any commercial delivery service that requires a signed receipt, and also methods provided in the Florida Rules of Civil Procedure or otherwise provided by Florida law. The practitioner should always check the applicable rule when serving a pleading or other document to determine whether service by formal notice or service in the manner provided for service of formal notice is allowed or required. There has been further confusion as to when service is complete if service of a pleading or document is accomplished in the manner provided for service of formal notice. As of 2019, Rule 5.040(a)(5) specifically delineates when service is complete based on the manner of service used. If service is accomplished by commercial delivery service or mail requiring a signed receipt, service is complete upon receipt. In re Amendments To Florida Probate Rules—2019 Regular-Cycle Report, 287 So. 3d 492 (Fla. 2019); Rule 5.040(a)(5). If service was accomplished as provided in the Florida Rules of Civil Procedure or as otherwise provided by Florida law for service of process, the Florida Rules of Civil Procedure or other Florida law will govern when service is complete. Id. If service is made under the limited circumstances contemplated by Rule 5.040(a)(3)(D), service is complete upon mailing. Id. Rule 5.042(d) was also amended in 2017 to clarify that Rule 2.514(b) “shall apply to the computation of time following service, except for documents served by formal notice or in the manner provided for service of formal notice” [emphasis added]. In re Amendments to the Florida Probate Rules, 199 So. 3d 835 (Fla. 2016). One final point of confusion deals with the situation when the receipt of notice is signed by a person at the home or office, other than the addressee. F.S. 48.031(1)(a) states that sufficient personal service of process constitutes service on a person residing in the household “who is 15 years of age or

older,” and informing the person of the document’s contents. This provision does not apply to the signing of a mailed receipt of notice by such a person, and no decision has addressed whether such a receipt is adequate under Rule 5.040(a)(5) to complete service. If Florida’s Rules of Civil Procedure require a statute to authorize such service, it is unlikely that the Florida Probate Rules could imply that service was sufficient. If service by formal notice is mailed to a person outside of Florida, and that notice is refused, as of January 1, 2019, Rule 5.040(a)(3)(D) and F.S. 736.02025 allow for service by regular mail in certain limited circumstances involving the Florida Trust Code. The 2019 update to Rule 5.040(a)(3)(D) includes when delivery is refused by the addressee. While the Florida Trust Code in F.S. 736.02025(3)(b) addresses this situation in trust proceedings, no similar provision has yet been enacted with regard to probate matters; if delivery is refused, personal service by a process server (or some other authorized method) is likely required to complete service. « Ch. 1 », « § 1.3 », « E », « 6 » 1 Litigation Under FL Probate Code § 1.3.E.6 (2022)

6. Bifurcation Of Notice Requirements « Ch. 1 », « § 1.3 », « E », « 6 », • a » 1 Litigation Under FL Probate Code § 1.3.E.6.a (2022)

a. In General Historically, notice of administration and notice to creditors were combined into one inclusive notice. Now, however, notice of administration and notice to creditors is a bifurcated process and separate notices are required. As discussed below, notice of administration is served but not published, F.S. 733.212, but a notice to creditors must be published and also served upon “reasonably ascertainable” creditors, F.S. 733.2121. « Ch. 1 », « § 1.3 », « E », « 6 », « b » 1 Litigation Under FL Probate Code § 1.3.E.6.b (2022)

b. Notice Of Administration « Ch. 1 », « § 1.3 », « E », « 6 », « b », • i » 1 Litigation Under FL Probate Code § 1.3.E.6.b.i (2022)

i. In General

Notice of administration is no longer published, as was previously required under the rules and the Code. Rather, a copy must be promptly served on “[t]he decedent’s surviving spouse,” “[b]eneficiaries,” “[t]he trustee of any trust described in [F.S.] 733.707(3) and each qualified beneficiary of the trust … if each trustee is also a personal representative of the estate,” and any “[p]ersons who may be entitled to exempt property.” F.S. 733.212(1); Fla. Prob. R. 5.240(a). The service must be in the manner provided for service by formal notice. Id. The personal representative may also serve a copy of the notice of administration on beneficiaries under previous, known wills or anyone else who may claim an interest in the estate, such as intestate heirs of the decedent. Id. The contents of the notice and the procedure for service are discussed in detail in PRACTICE UNDER FLORIDA PROBATE CODE Chapter 2 (Fla. Bar 11th ed. 2022). Any person who is served with notice of administration must file with the court any objections that challenge the validity of the will, the venue, or the jurisdiction of the court, “on or before the date that is [three] months after the date of service,” or any such objections “are forever barred.” F.S. 733.212(3). While such objections must be filed within three months after the date of service, the service of those objections on the personal representative or other interested persons may not need to occur in such a timely manner. See Aguilar v. Aguilar, 15 So. 3d 803 (Fla. 2d DCA 2009) (an objection to validity of will offered for probate was not barred, even though objections were not served by formal notice as required by Rule 5.025(a); formal notice of objections was not served until almost six months after service of notice of administration). The District Court of Appeal, Second District, indicated that while the Florida Probate Rules, specifically, Rule 5.025(a), required that the objections to the validity of the will be served by formal notice, none of the rules provides a deadline for service of the formal notice, and F.S. 733.212(3) requires only that any such objections be “filed” within the three-month period. Aguilar, 15 So. 3d at 805. Although this case may provide a party with some leeway in service by formal notice, the prudent course of action would be to serve the formal notice concurrently with filing any such objections. In 2015, Rule 5.240 was changed to delete the phrase “the qualifications of the personal representative” in subdivision (b)(3), and the requirement to object to the qualifications of the personal representative in subdivision (d).

In re Amendments to the Florida Probate Rules, 181 So. 3d 480 (Fla. 2015). The revisions also added new language to subdivision (b)(3), providing “[t]he 3-month time period may only be extended for estoppel based upon a misstatement by the personal representative regarding the time period within which an objection must be filed. The time period may not be extended for any other reason, including affirmative representation, failure to disclose information, or misconduct by the personal representative or any other person. Unless sooner barred by section 733.212(3), Florida Statutes, all objections to the validity of a will, venue, or the jurisdiction of the court must be filed no later than the earlier of the entry of an order of final discharge of the personal representative, or 1 year after service of the notice of administration.” Id. at 482–483. These revisions were amended to conform to the amendments to F.S. 733.212. For a more complete discussion of the appointment and removal of a personal representative, see Chapter 9 of this manual. « Ch. 1 », « § 1.3 », « E », « 6 », « b », « ii » 1 Litigation Under FL Probate Code § 1.3.E.6.b.ii (2022)

ii. Deemed Service Of Notices On Personal Representative In situations in which the personal representative is also an interested person in the estate, but claims that he or she did not receive notice as required by the rules, pursuant to Fla. Prob. R. 5.2405, the notice of administration is deemed served upon a personal representative on the earlier of “the date on which the person acknowledges in writing receipt of the notice of administration,” “the date on which the notice of administration is first served on any other person” entitled to such notice, or “the date that is 30 days after the date letters of administration are issued.” Rule 5.2405(a)(1)– (a)(3). The same rule also addresses the date on which other notices are considered served on the personal representative, such as a notice to creditors. In such instances, the relevant notice (other than a notice of administration) is deemed to have been served on the personal representative on the earliest of the date on which the personal representative acknowledges in writing receipt of the applicable notice, the date on which the notice was

required to have been served by the personal representative under the rules of procedure or the Florida Probate Code, or the date on which the notice is first served on any other person entitled to service of the same notice. Rules 5.2405(b)(1)–(b)(3). « Ch. 1 », « § 1.3 », « E », « 6 », « b », « iii • 1 Litigation Under FL Probate Code § 1.3.E.6.b.iii (2022)

iii. Optional Formal Notice Of Petition For Administration If the proponent of a will suspects that there may be a challenge to the will upon service of the notice of administration, it may be advisable to provide notice of the petition for administration to those potential challengers by formal notice. F.S. 733.2123 provides, if a petition for administration is served on interested persons by formal notice, any person so served “may not challenge the validity of the will, testacy of the decedent, venue, or jurisdiction of the court” except in the probate proceeding before the issuance of letters. If no objections are received within the 20 days after service by formal notice, the petitioner may proceed ex parte and obtain admission of the will and issuance of letters without further notice. Once the letters of administration are issued, the right to challenge the validity of the will is extinguished as to any person so served. The 20-day time-period, however, is neither a statute of limitations nor a mandatory nonclaim provision. See Long v. Willis, 100 So. 3d 4 (Fla. 2d DCA 2011), citing Tanner v. Estate of Tanner, 476 So. 2d 793 (Fla. 1st DCA 1985). See also Platt v. Osteen, 103 So. 3d 1010 (Fla. 5th DCA 2012); Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012). Rather, it is a rule of procedure, and as long as the objection is received before the issuance of letters, the objector can participate in the proceeding. Long. If this optional formal notice method is used by the proponent of a will, it forces any potential challenger to the will to respond within 20 days of the service of the petition for administration, failing which, the petitioner can proceed ex parte to have the letters of administration issued and thereby bar the potential challenger. The possible disadvantage to using this method is that if an objection to the admission of the will is made before the issuance of letters, the will may not be admitted to probate pending a resolution of the objection. In this case, the court will most likely appoint a curator to administer the estate pending a resolution of the objection. See Fla. Prob. R.

5.122. « Ch. 1 », « § 1.3 », « E », « 6 », « c • 1 Litigation Under FL Probate Code § 1.3.E.6.c (2022)

c. Notice To Creditors Notice to creditors is a separate notice that deals only with claims against a decedent. As was the case before the law was changed in 2001, the personal representative is required to promptly publish a notice to creditors, perform a diligent search in order to determine the identity of reasonably ascertainable creditors, and serve those creditors with a copy of the notice to creditors. F.S. 733.2121; Fla. Prob. R. 5.241. The contents of the notice, the procedure for publication, and the procedure for service are discussed in detail in PRACTICE UNDER FLORIDA PROBATE CODE Chapter 2 (Fla. Bar 11th ed. 2022). See §§ 1.3.F.2–1.3.F.3 of this manual. See also Chapter 6 of this manual for a discussion of creditors’ claims. One interesting case should be examined when determining how to serve notice to creditors. In Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010), a plaintiff in a personal injury case was awarded a judgment against the decedent after death. The personal representative served the plaintiff’s personal injury attorney with a notice to creditors, but the plaintiff’s claim was filed more than three months after service of the notice to creditors on the personal injury attorney. The District Court of Appeal, First District, held that the service was proper, and therefore, the claim was barred as untimely, because the relevant probate rule provides that “if [the] creditor is represented by an attorney, service must be on the attorney.” Id. at 1157. The court noted that the rule does not distinguish between an attorney representing a person in the ongoing probate administration or in some other unrelated context. Former Rule 5.041(b) required that if “ ‘an interested person [is] represented by an attorney, service shall be made on the attorney unless service on the interested person is ordered by the court.’ ” Wald, 29 So. 3d at 1157. Rule 5.041 currently cites to Fla. R. Gen. Prac. & Jud. Admin. 2.516(b), which similarly provides that when service is required to be made on a party represented by an attorney, “service must be made upon the attorney unless service upon the party is ordered by the court,” so Grainger remains relevant. The Grainger case provides no indication as to whether the personal injury attorney actually performed an act relevant to the estate before the

service of the notice of creditors, such as writing a letter to the personal representative indicating representation or filing a pleading. This lack of distinction in the Florida Probate Rules based on the scope of attorney representation raises concerns and leaves the matter open for significant debate. What if a potential creditor is represented by a real estate attorney in an unrelated matter or hired an estate planning attorney to draft a will five years ago? Who must be served in this situation? And how do personal representatives know who is represented and who is unrepresented if the representation referred to in the rules is not limited to representation in the ongoing estate proceeding? Much of the confusion in this regard comes from the evolution of Rule 5.040(a). In 1997, F.S. 731.301(1)(a)1a provided that formal notice must be served “[o]n the interested person’s attorney of record, if any.” Case precedent was clear that “this provision in its statutory context [refers] to an attorney who has appeared in the probate litigation.” American & Foreign Insurance Co. v. Dimson, 645 So. 2d 45, 47 (Fla. 4th DCA 1994). In 2001, however, this provision was deleted from the statute, and was thereafter included in Rule 5.040(a). Currently, Rule 5.040(a)(4)(A) provides that “service on an interested person represented by an attorney shall be made by delivery to the attorney,” but does not specify the requirement that the attorney have appeared in the probate proceeding. Rule 5.040(a)(4)(A). The authors believe that the logical interpretation of Rules 2.516(b), 5.040, and 5.041 is that only if the interested person is represented by an attorney who has made an appearance for the client in the estate proceedings, that attorney must be served. If the interested person is not represented in the estate proceedings but happens to have hired an attorney in an unrelated or collateral matter, the interested person must be served directly. But until this issue is clarified, it appears that anytime an attorney is involved but has not appeared on behalf of the interested person in the estate, service should be made on both the attorney and the interested person. « Ch. 1 », « § 1.3 », « E », « 7 • 1 Litigation Under FL Probate Code § 1.3.E.7 (2022)

7. Request For Notice And Other Information « Ch. 1 », « § 1.3 », « E », « 7 •, • a » 1 Litigation Under FL Probate Code § 1.3.E.7.a (2022)

a. Request For Notice And Copies Any interested person, as defined in F.S. 731.201(23), who wants notice of proceedings in the estate of a decedent or ward, may file a request for notice of further proceedings. Fla. Prob. R. 5.060(a). The request must designate the requesting person’s residence and post office address, and a copy of the notice must also be delivered to the personal representative’s or guardian’s attorney. Id. The copy of the notice must include a certificate of service. Id. The authors note that this probate rule may not have been updated after the enactment of Fla. R. Gen. Prac. & Jud. Admin. 2.516, and that designation of an e-mail address is required if an attorney is the party filing the request. After the request is filed, the person filing the request must thereafter be served “by [any] moving party with notice of further proceedings and with copies of subsequent pleadings and documents as long as the [requesting] party remains an interested person.” Rule 5.060(b). Note that filing a notice and request for copies under Rule 5.060 does not grant a participant standing to participate in all further proceedings and the court must still consider the nature of the proceedings to determine future standing. Hernandez v. Hernandez, 230 So. 3d 119 (Fla. 3d DCA 2017). See also Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2007). The District Court of Appeal, Third District, held in a guardianship case that the circuit court “could not determine” if the appellant was an interested person entitled to notice in a guardianship proceeding when the appellant failed to request notice under Rule 5.060(a). Lovest v. Mangiero, 279 So. 3d 205, 206 (Fla. 3d DCA 2019). Accordingly, the Third District held that the appellant in that case “was not entitled to notice” in the guardianship proceeding. Id. Likewise, filing a notice and request for copies under Rule 5.060 does not automatically grant a participant a right to interested person status. In re Guardianship of Martino, 313 So. 3d 687 (Fla. 2d DCA 2020). Rather, interested person status is a privilege bestowed upon an individual as determined by a trial court. Id. « Ch. 1 », « § 1.3 », « E », « 7 •, « b • 1 Litigation Under FL Probate Code § 1.3.E.7.b (2022)

b. Request For Estate Information “On reasonable request in writing, the personal representative shall

provide an interested person with information about the estate and its administration.” Fla. Prob. R. 5.341. This ability of an interested person to obtain information about the estate and its administration is in addition to the ability of an interested person to use the discovery rules itemized in Rule 5.080(a) and can be accomplished on an informal basis. A written request, such as a letter to the personal representative, would be sufficient to trigger the duty of the personal representative to provide the requested information. For a further discussion on the availability of the formal discovery rules under the Florida Rules of Civil Procedure in probate proceedings, see § 1.3.I. « Ch. 1 », « § 1.3 », « F » 1 Litigation Under FL Probate Code § 1.3.F (2022)

F. Time « Ch. 1 », « § 1.3 », « F », • 1 » 1 Litigation Under FL Probate Code § 1.3.F.1 (2022)

1. Computing Time Limits The Rules of Judicial Administration now control the computation of time periods under the Florida Probate Rules. See Fla. Prob. R. 5.042. When computing any time period prescribed or allowed by the rules, any applicable statute, or the court, begin counting from the first day that is not a Saturday, Sunday, or legal holiday. Fla. R. Gen. Prac. & Jud. Admin. 2.514(a)(1)(A). Additionally, if the last day of the period falls on a Saturday, Sunday, or legal holiday (as defined in Rule 2.514(a)(6)), “the next day that is not a Saturday, Sunday, or legal holiday” becomes the end of the period. Rule 2.514(a)(1)(C). When the period is fewer than seven days, “intermediate Saturdays, Sundays, and legal holidays” are excluded in computing the end of the period. Rule 2.514(a)(3). When an interested person is required or has the right to act within a prescribed period after service of notice or other document, and the notice or document is served by mail, five days are added to the prescribed period. Rules 2.514(b), 5.042(d). Service by e-mail no longer affords the interested person an additional five days, and service by e-mail is complete on the date it is sent. Rules 2.514(b), 2.516(b)(1)(D). These rules do not apply to extend the time-period after service by delivery of formal notice or when a pleading

is served in the manner of formal notice, such as notice of administration. Id. « Ch. 1 », « § 1.3 », « F », « 2 » 1 Litigation Under FL Probate Code § 1.3.F.2 (2022)

2. Notice Of Hearings “A copy of any written petition or motion which may not be heard ex parte and a copy of the notice of hearing thereon shall be served a reasonable time before the time specified for the hearing.” Fla. Prob. R. 5.042(c). “ ‘While there are no hard and fast rules about how many days constitute a ‘reasonable time,’ the party served with notice must have actual notice and time to prepare.’ ” Crepage v. City of Lauderhill, 774 So. 2d 61, 64 (Fla. 4th DCA 2001), quoting Harreld v. Harreld, 682 So. 2d 635, 636 (Fla. 2d DCA 1996). “The right to reasonable notice … implicates constitutional due process concerns.” Borden v. Guardianship of Borden-Moore, 818 So. 2d 604, 607 (Fla. 5th DCA 2002), citing Art. I, § 9, Fla. Const. The amount of notice required depends on the nature of the particular matter being heard. Id. In one of the few reported cases considering what constitutes reasonable notice under Rule 5.042(c), the court held that four days’ notice for a petition to determine guardian’s and attorney’s fees was insufficient. Anderson v. Sun Trust Bank/North, 679 So. 2d 307 (Fla. 5th DCA 1996), citing Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986). See also Flegal v. Guardianship of Swistock, 169 So. 3d 278 (Fla. 4th DCA 2015). Rule 5.042 is derived from Fla. R. Civ. P. 1.090 (now governed by Fla. R. Gen. Prac. & Jud. Admin. 2.514), so the case law interpreting that rule is relevant authority. See Borden (no notice as to whether incapacity and guardianship proceedings should be dismissed); Turner v. Greyhound Financial Corporation, 567 So. 2d 1042 (Fla. 1st DCA 1990) (one day’s notice of hearing of deposition was insufficient, especially because recipient lived in another city in which hearing was to be held); Harreld, 682 So. 2d at 636 (“While we do not draw a bright line as to what amount of notice is reasonable, we hold that two working days’ notice of a contested final hearing in a dissolution action where the husband resides outside the state and is not represented by counsel is insufficient.”). « Ch. 1 », « § 1.3 », « F », « 3 » 1 Litigation Under FL Probate Code § 1.3.F.3 (2022)

3. Extension Of Time “When an act is required or allowed … within a specified time by these rules, by order of court, or by notice given thereunder, for cause shown,” the court has the discretion to extend the time with or without notice if the request is made before the expiration of the original period. Fla. Prob. R. 5.042(b). If the motion for an extension is made after the expiration of the original period, the extension may still be granted if the “failure to act was the result of excusable neglect,” but only after proper notice and hearing. Id. The court cannot, however, extend the time for serving a motion for rehearing or enlarge the time to file an appeal. Id. It is important to note that the enlargement power of the court under Rule 5.042(b) applies only to time periods governed by the rules or by order of the court. The court is unable to use this rule to extend substantive legal time periods governed by statute, such as the time to file a claim, the time to file an objection to a claim, and the time to file an independent action on a claim. The relevant statute governs the availability of an enlargement of time in those instances. « Ch. 1 », « § 1.3 », « F », « 4 • 1 Litigation Under FL Probate Code § 1.3.F.4 (2022)

4. Suspension Of Statute Of Limitations For Personal Representative If a person dies before initiating a cause of action and the statute of limitations had not yet expired on the person’s date of death, the action may be commenced by the personal representative of the person’s estate (assuming the cause of action survives the death). In such a case, the time period for the personal representative to bring the cause of action is the later of the expiration of the original statute of limitations or 12 months after the decedent’s death. F.S. 733.104(1). Additionally, “[i]f a person against whom a cause of action exists dies before the expiration of the [applicable statute of limitations] and the cause of action survives, if a claim is timely filed [in that person’s estate], the expiration of the time limit for commencement of the action shall not apply.” F.S. 733.104(2). « Ch. 1 », « § 1.3 », « G » 1 Litigation Under FL Probate Code § 1.3.G (2022)

G. Contested Claims « Ch. 1 », « § 1.3 », « G », • 1 » 1 Litigation Under FL Probate Code § 1.3.G.1 (2022)

1. Jurisdiction Questions often arise as to the adjudication of claims to which objections have been made. F.S. 733.705(10) states that “[t]he court may determine all issues concerning claims or matters not requiring trial by jury” [emphasis added]. The Probate Commission drafting what became the Florida Probate Code on January 1, 1976, considered language that would have required the probate divisions of the circuit courts to determine these issues. The commission heard from judges in urban counties, however, who objected to the idea that they would have to hear a multitude of small claims. They pointed out that there already were small claims courts in their counties that were operating efficiently and that the proposed requirement would mandate the creation of parallel small claims divisions. Judges in the smaller or rural counties put forward the proposition that the probate division should be able to handle any disputes unless a jury trial was involved. The commission ultimately chose to recommend language to the legislature that was permissive rather than mandatory, understanding that the language would create a local option so that the urban counties could handle their procedure one way and the rural counties another. It is apparent that, as a practical matter, the probate divisions in the urban counties are going to handle virtually all matters that affect or impinge on the administration of decedents’ estates, except in those instances when a claim has been filed and an objection has been filed to the claim. Because F.S. 733.705(5) requires a claimant to bring an “independent action” within 30 days from the date of service of an objection to the claim, the question also arises whether this means a separate lawsuit in the probate or other appropriate division, or whether the matter can be handled by a separate petition in the same probate proceeding. Before 1975, the word “independent” was not in the statute. The inference from the addition of the word “independent” by the legislature is that the claimant would have to file an action in a court or division other than the probate division, despite the fact that F.S. 733.705(10) provides that the probate court “may determine all issues concerning claims or matters not requiring trial by jury.” The word

“independent” requires the filing of an independent action in the civil division or a court with more limited jurisdiction. See Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986). But see In re Guardianship of Bentley, 342 So. 2d 1045, 1046–1047 (Fla. 4th DCA 1977), which properly clarifies that the probate division of the circuit court has the same jurisdiction as any other circuit court: The Circuit Court has jurisdiction as prescribed by the Constitution and general law. See Article V, Section 5, Florida Constitution, and Section 26.012, Florida Statutes (1975). All of the judges of the Circuit Court are authorized to exercise that Court’s jurisdiction. However, for efficiency in administration, the Circuit Court is frequently divided into divisions, with each division handling certain types of cases. If the action on the objected claim is incorrectly filed in a probate proceeding, the correct procedure is for the court to transfer the action to the civil division. West v. West, 126 So. 3d 437, 439 (Fla. 4th DCA 2013), quoting Grossman v. Selewacz, 417 So. 2d 728, 730 (Fla. 4th DCA 1982) (“ ‘cases filed in the wrong division should be transferred to the proper division’ ”). Dismissal for failure to file in the proper division is not appropriate. Preudhomme v. Bailey, 211 So. 3d 127 (Fla. 4th DCA 2017). To ensure that the statute of limitations does not run, the attorney should file an independent action in the court of appropriate jurisdiction, with a separate filing fee, and serve the personal representative. If the probate division wants to handle the action, it can be transferred later. For a more detailed discussion of an independent action, see §§ 6.6.A– 6.6.I of this manual. « Ch. 1 », « § 1.3 », « G », « 2 • 1 Litigation Under FL Probate Code § 1.3.G.2 (2022)

2. Filing Requirements For Objections To Claims The personal representative or any other interested person may file a written objection to a claim “[o]n or before the expiration of 4 months from the first publication of notice to creditors or within 30 days from the timely filing or amendment of a claim, whichever occurs later.” F.S. 733.705(2); Fla. Prob. R. 5.496(a). If filed by the personal representative or other interested party, the objection must be served on the claimant; if filed by an

interested party other than the personal representative, the objection must be served on the personal representative and any objection filed must contain a certificate of service. Rule 5.496(b). The objection must “contain a statement that the claimant is limited to a period of 30 days from the date of service of the objection within which to bring an action” on the claim. Rule 5.496(c). The failure to include such a statement in the objection may be considered good cause for extending the time for filing an action by the claimant. Fernandez-Fox v. Estate of Lindsay, 972 So. 2d 281 (Fla. 5th DCA 2008). As previously noted, the claimant is limited to 30 days from the date of service of the objection within which to bring an independent action on the claim. F.S. 733.705(5). An extension of this time limitation can be obtained for good cause. Id. See also Devine v. Kirkovich, 754 So. 2d 789, 791 (Fla. 3d DCA 2000), which held that an extension can be granted on a showing of “a substantial reason or sufficient legal cause.” The request for extension should be made before expiration of the limitation period. Additionally, the personal representative may agree to an extension in writing before the expiration of the deadline. F.S. 733.705(5). For a more complete discussion of this subject see Chapter 6 of this manual. « Ch. 1 », « § 1.3 », « H » 1 Litigation Under FL Probate Code § 1.3.H (2022)

H. Adversary Proceedings The practitioner should be aware of the dichotomy between “normal” probate matters and adversary proceedings. When the Florida Probate Code originally was considered, no provision was made for adversary proceedings. Before the law took effect on January 1, 1976, this omission was corrected and the Code was amended to include the briefly worded statute, F.S. 731.107, which provided: “The rules of civil procedure shall be applied in any adversary proceeding in probate.” Although the statute has since been repealed, its passage invited the implementation of appropriate rules. The Florida Probate Rules Committee promulgated Fla. Prob. R. 5.025, which defines certain matters as adversary, provides that other proceedings may be declared adversary by a party, provides that the court may determine any proceeding to be adversary at any time, and makes the Florida Rules of Civil Procedure applicable. The right to file a pleading declaring a proceeding to be

adversary is guaranteed under Article I, § 21, of the Florida Constitution. Tucker v. Ruvin, 748 So. 2d 376 (Fla. 3d DCA 2000). As soon as a proceeding is commenced that is determined to be adversarial in nature by definition, declaration, or adjudication, a different posture is given to the interested persons. An adversary proceeding requires formal notice. Rule 5.025(d)(1). The failure of the respondent to file a reply or other answer as provided in Rule 5.040(a)(1), permits the matter to proceed ex parte without further notice. The matter then proceeds in the same manner as an action filed in the civil division under which the Florida Rules of Civil Procedure apply and govern the matter to its conclusion, except for Fla. R. Civ. P. 1.525. Rule 5.025(d)(2). Historically, considerable confusion has existed as to when Rule 1.525 (Motions for Costs and Attorneys’ Fees), applied to probate proceedings. In Hays v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009), a party who had sought to admit a document to probate filed a petition for payment of attorneys’ fees and expenses under F.S. 733.106(2). At the time of the filing of the petition to admit the document to probate, the party declared the proceeding adversary. As the order denying the admission of the document to probate had been entered more than 30 days before the filing of the petition for fees, the petition was denied. This result has been specifically overruled by the 2011 amendment to Rule 5.025(d)(2), which now provides, “The Florida Rules of Civil Procedure govern, except for rule 1.525” [emphasis added]. In re Amendments to Florida Probate Rules, 73 So. 3d 205 (Fla. 2011). This change was intended to clarify that the rules set forth in the Code and the Florida Probate Rules govern the award of fees in probate matters, not Rule 1.525. See Rule History of Rule 5.025. « Ch. 1 », « § 1.3 », « I » 1 Litigation Under FL Probate Code § 1.3.I (2022)

I. Parties And Discovery It is a little-understood fact that the Florida Probate Rules already allow for most of the discovery that would be allowed under the civil rules if the matter were declared adversary. Fla. Prob. R. 5.080(c) specifically provides: “It is not necessary to have an adversary proceeding under rule 5.025 to utilize” the discovery procedures in Rule 5.080(a). Among the specific discovery provisions incorporated into the rules are depositions (both written

and oral), interrogatories, production of documents, requests for admission, and subpoenas. Rule 5.080(a). In 2016, Rule 5.080 was amended to adopt subdivision (a)(15) that incorporates the taking of testimony under Fla. R. Civ. P. 1.451. In re Amendments to the Florida Probate Rules, 199 So. 3d 835 (Fla. 2016). Accordingly, in all probate and guardianship proceedings, any interested person may use the discovery procedures authorized in Rule 5.080(a). Therefore, if discovery is the sole purpose, declaring a matter adversary is unnecessary. But the discovery rules must be studied to determine whether the person requesting the discovery is an interested person and whether considerations of relevance may prevent the desired discovery. Although Rule 5.080(c) authorizes discovery in all probate and guardianship proceedings, subdivision (b) gives the court “broad discretion to limit … discovery and to assess the costs, including attorneys’ fees, of the discovery against the party making it or against [or among] the beneficiaries of the estate.” That subdivision specifically provides that this broad discretion is granted “to conserve the assets of the estate.” Id. The Committee Notes to the rule clarify, however, that this is not intended to result in the assessment of fees and costs in every instance in which discovery is sought. See § 1.3.F.4. The act of filing a claim in an estate does not make the filer an “interested person” for purposes of engaging in discovery. In In re Estate of Shaw, 340 So. 2d 491 (Fla. 3d DCA 1976), a creditor filed a claim in the estate and the claim was objected to by the personal representative. The creditor then filed an independent action in the civil division and sought discovery in the probate proceedings, attempting to discover what assets were in the probate estate. The court held that, until the creditor had prevailed in its independent action, and the liability of the estate was actually determined, the creditor was merely a “contingent judgment creditor.” Id. at 492. Accordingly, it was “not an interested party for the purpose of the requested discovery proceedings before it achieves the status of judgment creditor.” Id. In In re Estate of Posner, 492 So. 2d 1093 (Fla. 3d DCA 1986), the District Court of Appeal, Third District, reached the same conclusion under similar circumstances. See the Committee Notes to Rule 5.080, which provide that subdivision (c) of the rule is not intended to overrule the holdings in Shaw and Posner. However, the same reasoning does not apply to elective share

proceedings. See In re Estate of Sauey, 869 So. 2d 664 (Fla. 4th DCA 2004), in which the court permitted a surviving spouse to engage in discovery regarding the identity and value of estate assets before making an elective share election. The discovery in Sauey was permitted even though there was an antenuptial agreement that facially limited the right of the surviving spouse to seek an elective share. The District Court of Appeal, Fourth District, held that the rule providing that financial discovery should not be permitted before establishing entitlement of the claimant or liability of the estate “should not be extended to this setting, where the discovery is relevant to the decision of whether or not to even seek an elective share.” Id. at 665. « Ch. 1 », « § 1.3 », « J • 1 Litigation Under FL Probate Code § 1.3.J (2022)

J. Appeals Fla. Prob. R. 5.100 provides: “Appeal of final orders and discretionary appellate review of non-final orders are governed by the Florida Rules of Appellate Procedure,” specifically, appeals in probate and guardianship matters are governed by Fla. R. App. P. 9.170. Rule 5.100. Rule 9.170(b) provides that appeals of orders in probate and guardianship matters “shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” Special consideration needs to be given to appellate issues in probate matters. Unlike general civil litigation, in which there is a final judgment terminating the litigation and determining the rights of the parties, probate proceedings may continue for some time after an order is entered determining a party’s rights. Thus, historically, it has been difficult to determine whether an order entered during the pendency of a probate proceeding “finally determined” an interested person’s right or obligation that must be appealed as a final order. If the order was a final order, failure to timely appeal made that order the law of the case; however, if it was not a final order and an appeal was taken, the appellate court would dismiss the appeal, in which case time and expense had been unnecessarily incurred. In many instances the issue was a very close call, but the losing party could not take the chance that a subsequent appeal at the conclusion of the case would be dismissed for failure to appeal within 30 days of the rendition of the order. This issue has led to much confusion and many conflicting opinions among the various

district courts of appeal. The current appellate rule for probate and guardianship matters is meant to provide clarity on the issue of finality and provide a list of orders considered “final” appealable orders. See Rules 9.170(b)(1)–(b)(25). This list is not meant to be exhaustive, and exclusion from the list does not mean that an order is not a final appealable order. Therefore, if the order is not on the list, a cautious practitioner must still conduct an analysis under the existing case law to determine whether the order should be appealed. Chapter 14 of this manual contains a detailed discussion of the subject of appeals in probate, including thorough treatment of final and nonfinal orders.

« Ch. 1 », « § 1.4 • 1 Litigation Under FL Probate Code § 1.4 (2022)

§ 1.4. JURISDICTION IN THE PROBATE COURT « Ch. 1 », « § 1.4 •, • A » 1 Litigation Under FL Probate Code § 1.4.A (2022)

A. History Of Probate Jurisdiction Historically, under common law, matters sounding in probate were handled in neither a court of law nor a court of equity, but rather, these matters were the prerogative of the ecclesiastical courts. Pollock and Maitland, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I, 342– 344 (Cambridge University Press 1898). In Florida, probate jurisdiction was historically vested, under the state constitution, in the county courts. In 1972, revision of Article V, § 5(b), of the 1968 Florida Constitution was adopted, granting exclusive probate jurisdiction in the circuit courts. Art. V, § 20(c)(3), Fla. Const.; F.S. 26.012. The 1972 constitutional revision rendered many procedural problems moot. Among these issues were questions as to whether a will construction could be brought in the county court or the circuit court, whether the validity of a will could be attacked in a declaratory judgment proceeding in the circuit court, and various other matters, such as the proper form of an action to determine the ownership of property passing under right of survivorship as against the right of the personal representative arising because of the donor’s failure to make a present gift. The practitioner should note that matters that are determined by the probate court “are not subject to the constitutionally protected right to a jury trial.” In re Estate of Howard, 542 So. 2d 395, 397 (Fla. 1st DCA 1989). Historically, there was no right at common law to a trial by jury in a will contest, a will construction, or any other probate matter. In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965). The Florida Probate Code, however, which became effective on January 1, 1976, did not change the availability of jury trials for probate matters. Allen v. Estate of Dutton, 394

So. 2d 132 (Fla. 5th DCA 1981). Although there are cases that have recognized the discretionary right of a probate judge to empanel a jury, a jury verdict is advisory only and is not binding on the court. In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976). The lack of any provision for a mandatory jury trial violates no rights secured by either the United States Constitution or the Florida Constitution. In re Estate of DuVal. See Chapter 10 of this manual for further discussion of jury trials in probate. « Ch. 1 », « § 1.4 •, « B » 1 Litigation Under FL Probate Code § 1.4.B (2022)

B. Territorial Jurisdiction And Venue The primary place for the probate of a decedent’s estate is the county of the decedent’s domicile at the time of his or her death. F.S. 733.101(1)(a). Alternatively, the probate of a decedent’s estate may be administered in any county where the decedent’s property is located, if the decedent had no domicile in Florida. F.S. 733.101(1)(b). Thus, a Florida court may have jurisdiction over the administration of a decedent’s estate if Florida was the decedent’s domicile at the time of death or if the decedent owned property in Florida at the time of death. F.S. 733.101; Cuevas v. Kelly, 873 So. 2d 367 (Fla. 2d DCA 2004). It is possible, if a decedent died domiciled in another state owning personal property in Florida, that both states have jurisdiction over the administration of that property. Id. “[Which] state must defer to the finding of a sister state depends on the facts of the particular case.” Id. at 371. Ordinarily, personal property will be administered by the domiciliary court. Id. at 373, citing Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001). Once the domiciliary court determines that the decedent was domiciled there, that court has the right to determine the distribution of the decedent’s personal property, wherever it is located. Cuevas. If more than one state has concurrent jurisdiction over the administration of a decedent’s estate, under the “principle of priority,” “the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case.” Perelman v. Estate of Perelman, 124 So. 3d 983, 986 (Fla. 4th DCA 2013), citing Siegel v. Siegel, 575 So. 2d 1267 (Fla. 1991). However, the principle of priority is discretionary:

“Admittedly, this principle is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.” Perelman, 124 So. 3d at 986, quoting Bedingfield v. Bedingfield, 417 So. 2d 1047, 1050 (Fla. 4th DCA 1982), receded from on other grounds 724 So. 2d 1246. Once jurisdiction has attached, it cannot be subsequently taken away or stayed by proceedings instituted in another court; the “ ‘usual practice is for the court in which the second action is brought’ ” to suspend the proceedings “ ‘until the first action is tried and determined.’ ” Schwartz v. DeLoach, 453 So. 2d 454, 455 (Fla. 2d DCA 1984), quoting Wade v. Clower, 94 Fla. 817, 114 So. 548 (Fla. 1927). When a trial court fails to respect the principle of priority, absent extraordinary circumstances, this failure constitutes an abuse of discretion. Hirsch v. DiGaetano, 732 So. 2d 1177 (Fla. 5th DCA 1999). However, “[t]his does not mean that a trial court must always stay proceedings when prior proceedings involving the same issues and parties are pending before a court in another state, but only that ordinarily this should be the result.” Siegel, 575 So. 2d at 1272. For example, if a party can show the potential for undue delay in the disposition of the first action, this may constitute circumstances under which the denial of a stay in the second action may be justified. DeLoach. The Perelman court also considered the question of what event signals the commencement of proceedings for purposes of the principle of priority— is it when the matter is filed or when the court first acquires or exercises its jurisdiction? The court stated that for matters involving two different states, as opposed to two courts within Florida, the other state’s law should be examined to determine when it first exercised jurisdiction. In this case, the court determined that the State of Pennsylvania first exercised its jurisdiction when it issued a notice to the appellee’s counsel stating that the will would be probated in Pennsylvania “ ‘without further notice’ ” unless the appellee filed a formal caveat. Id. at 987. The court held that exercise of jurisdiction in Pennsylvania predated the filing of the petition for administration in Florida and thus, the Pennsylvania proceeding would take priority.

Unlike subject matter jurisdiction (discussed in § 1.4.C), any objection to territorial jurisdiction or venue can be waived if not properly asserted. Klem v. Espejo-Norton, 983 So. 2d 1235 (Fla. 3d DCA 2008). « Ch. 1 », « § 1.4 •, « C » 1 Litigation Under FL Probate Code § 1.4.C (2022)

C. Subject Matter Jurisdiction Jurisdiction over proceedings “relating to the settlement of the estate of decedents and minors, the granting of letters testamentary, … and other jurisdiction usually pertaining to courts of probate” is vested in the circuit court. Art. V, § 20(c)(3), Fla. Const. This is the “subject matter” jurisdiction to administer estates. The circuit court has the inherent jurisdiction to supervise the administration of estates and to take whatever action it considers necessary to preserve the assets of the estate for its beneficiaries. Estate of Conger v. Conger, 414 So. 2d 230 (Fla. 3d DCA 1982). This includes the power to help marshal assets of an estate and to issue a temporary injunction freezing assets claimed to belong to an estate. See, e.g., Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004) (personal representative’s demand to beneficiary to return bearer bonds belonging to estate was part of inherent authority to monitor administration of estate, which includes preservation of assets). In some counties, by local rule or administrative order of the chief judge, the circuit court is divided into divisions for convenience and efficiency. However, each division, including the probate division, is staffed by circuit judges. “All circuit court judges are empowered to hear and determine any case properly within the court’s jurisdiction.” Payette v. Clark, 559 So. 2d 630, 633 (Fla. 2d DCA 1990). The reference is to the “court’s jurisdiction,” not to the “division’s jurisdiction.” The probate division has “jurisdiction” to hear criminal cases or personal injury cases, for example, even though the clerk may not, under the applicable rule or order, assign such cases to that division. See Willie v. State, 600 So. 2d 479 (Fla. 1st DCA 1992) (new career criminal division created by administrative order does not divest circuit court judge with original jurisdiction over felonies). See also Grossman v. Selewacz, 417 So. 2d 728 (Fla. 4th DCA 1982) (judge assigned to civil division has jurisdiction to hear probate matter); In re Guardianship of Bentley, 342 So. 2d 1045 (Fla. 4th DCA 1977) (judge assigned to probate

division has jurisdiction to hear civil matter). Therefore, a personal injury action may properly be “filed” in the probate division, if the clerk will accept it, and it will not be subject to a motion to dismiss for lack of “jurisdiction.” However, the action may be subject to a motion to transfer to the general civil division under the applicable rule or order directing what cases are to be assigned to the probate division. See, e.g., Urbach v. J.R.U., 321 So. 3d 390 (Fla. 3d DCA 2021) (order dismissing petition for guardianship of minor for improper venue reversed and remanded with instructions to reinstate petition and instead leave issue of transfer to discretion of chief judge of applicable circuit court). A civil trial judge, as a circuit court judge, can exercise all the subject matter jurisdiction provided by F.S. 26.012(2)(b) and Article V of the Florida Constitution, including the jurisdiction to determine the issue of probate fee disgorgement. In Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014), the appellant, as the successor personal representative, sued the estate’s former attorney for malpractice, asking that the attorney be ordered to disgorge the fees paid to him. The former attorney moved to dismiss on the grounds that the only judge with subject matter jurisdiction to rule on the fee issue was the probate judge in the pending probate proceeding, citing to F.S. 733.6175(2), which states that “[c]ourt proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administrative [proceedings]” [emphasis added]. Following the established authority, the District Court of Appeal, First District, affirmed the trial court’s ruling that “ ‘[w]hile [appellant] may have the right to pursue a claim for disgorgement of excessive fees allegedly charged by [appellee in the malpractice action], it is more appropriate that such claim be made in the estate proceedings, which currently remain pending.’ ” Bookman, 136 So. 3d at 1280. The appellate court also noted that because the summary judgment in favor of the attorney on the malpractice claim had been reversed and the matter would be tried before the civil division judge, “[o]n remand, the [civil division] trial court, in its discretion and for the convenience of the court and the parties, may hold a joint trial of all the claims if it is shown that a joint trial will not prejudice a party or cause inconvenience.” Id. at 1281.

Subject matter jurisdiction is not determined by the decedent’s domicile. Domicile is distinguishable “from the general power of the court to adjudicate the class of cases to which the subject matter of the case belongs.” In re Estate of Dalton, 246 So. 2d 612, 614 (Fla. 3d DCA 1971). Objections to venue or jurisdiction based on an allegation that the decedent was not a Florida domiciliary are waived if not filed during the period allowed by F.S. 733.212(3). Klem v. Espejo-Norton, 983 So. 2d 1235 (Fla. 3d DCA 2008); Pastor v. Pastor, 929 So. 2d 576 (Fla. 4th DCA 2006). See § 1.3.E.6.b.i. Subject matter jurisdiction, on the other hand, cannot be waived and can be attacked at any time, by any party, including on appeal or in a collateral attack years later. Fla. R. Civ. P. 1.140(h)(2). A court cannot proceed in a matter without subject matter jurisdiction, and any order or judgment issued by a court without subject matter jurisdiction is unwaivably void and not entitled to full faith and credit. See Stephens, Florida’s Third Species of Jurisdiction, 82 Fla. Bar J. 10 (March 2008), for an excellent discussion of different types of jurisdiction and the different effects they have on a proceeding. « Ch. 1 », « § 1.4 •, « D » 1 Litigation Under FL Probate Code § 1.4.D (2022)

D. In Personam And In Rem Jurisdiction « Ch. 1 », « § 1.4 •, « D », • 1 » 1 Litigation Under FL Probate Code § 1.4.D.1 (2022)

1. In General In addition to jurisdiction over the subject matter, the court must also have jurisdiction either over the person or over the res. In personam jurisdiction is over the person and in rem jurisdiction is over the res or “thing.” See PRACTICE UNDER FLORIDA PROBATE CODE §§ 3.4.A–3.4.B (Fla. Bar 11th ed. 2022). It has long been acknowledged that a probate proceeding is an in rem proceeding. In re Estate of Williamson, 95 So. 2d 244 (Fla. 1957), 65 A.L.R. 2d 1195; F.S. 731.105. An in rem proceeding is one in which the court has jurisdiction over the property and, after a hearing with reasonable notice that complies with due process requirements, the court may decide the rights of persons to that property. Royalty v. Florida National Bank of Jacksonville,

127 Fla. 618, 173 So. 689 (1937); Miccosukee Tribe of Indians of Florida v. Dept. of Environmental Protection ex rel. Board of Trustees of Internal Improvement Trust Fund, 78 So. 3d 31 (Fla. 2d DCA 2012); 12A FLA. JUR. 2d Courts and Judges § 72. “Beneficiaries are not ordinarily ‘parties’ to the proceeding.” Brindle v. Brindle, 994 So. 2d 1174, 1175 (Fla. 3d DCA 2008), citing Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990). To have in rem jurisdiction, the court must have jurisdictional authority over the property that is the subject matter of the case or controversy. Ruth v. Dept. of Legal Affairs, 684 So. 2d 181 (Fla. 1996). See 5 Padovano, FLORIDA CIVIL PRACTICE § 1.3 (Thomson/West 2021). In most probate proceedings, the estate being administered is the property (or “res”) over which the court has jurisdiction. Pitts v. Pitts, 120 Fla. 363, 162 So. 708 (1935). Additionally, the court may acquire jurisdiction over certain of the parties. The type of jurisdiction acquired or required depends on the particular proceeding within the estate administration. An adversary proceeding does not necessarily contemplate nor require in personam jurisdiction. See PRACTICE UNDER FLORIDA PROBATE CODE Chapter 3 (Fla. Bar 11th ed. 2022) for extensive commentary on probate jurisdiction. « Ch. 1 », « § 1.4 •, « D », « 2 » 1 Litigation Under FL Probate Code § 1.4.D.2 (2022)

2. Personal Jurisdiction In Probate Proceedings « Ch. 1 », « § 1.4 •, « D », « 2 », • a » 1 Litigation Under FL Probate Code § 1.4.D.2.a (2022)

a. Process In General In judicial proceedings, personal jurisdiction (or “in personam jurisdiction”) is the court’s power over the person and is generally obtained by service of process. Service of process is usually in the form of a summons, but, in any instance, must be signed by the clerk or judge and bears the seal of the court. Fla. R. Civ. P. 1.070. See TRAWICK’S FLORIDA PRACTICE AND PROCEDURE § 8:3 (Thomson/West 2022). However, in uncontested probate proceedings, process is not generally issued or served; therefore, personal jurisdiction is generally not obtained over persons who are interested in the proceedings. Formal notice does not support in personam jurisdiction because

formal notice is not judicial process in the traditional sense (see § 1.3.E.2), thus is not typically served as provided in Rule 1.070. « Ch. 1 », « § 1.4 •, « D », « 2 », « b » 1 Litigation Under FL Probate Code § 1.4.D.2.b (2022)

b. Procedural Considerations In personam jurisdiction, to the extent it is present in a probate proceeding, generally occurs by consent, by the voluntary general appearance of an interested person, or by an interested person asking the court for affirmative relief. Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998); Paradise of Port Richey v. Estate of Boulis, 810 So. 2d 1044 (Fla. 4th DCA 2002). See also 12A FLA. JUR. 2d Courts and Judges §§ 61–62. Neither the filing of an answer with affirmative defenses nor the filing of a motion for summary judgment constitute affirmative relief that would waive a challenge to personal jurisdiction as long as the objection to personal jurisdiction was timely asserted. Sampson Farm Limited Partnership v. Parmenter, 238 So. 3d 387 (Fla. 3d DCA 2018). In personam jurisdiction, however, is generally limited to the subject matter of that special proceeding within the administration. Brasch v. Brasch, 109 So. 2d 584 (Fla. 3d DCA 1959). It is the authors’ view that voluntary appearance for one purpose (e.g., spouse’s notice of election) does not confer in personam jurisdiction for an unrelated purpose (e.g., recovery of joint accounts). But see Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004), in which the court held there to be proper personal jurisdiction over a beneficiary, requiring her to return bearer bonds that she took from the decedent’s safe deposit box after his death, because in demanding their return, the personal representative was simply performing his duties in gathering the assets of the estate, and the beneficiary could make a claim of ownership of the bonds in the probate proceedings. In personam jurisdiction over the personal representative is acquired by the filing of a petition for administration and applies to all proceedings related to the administration of the estate, including surcharge. Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990). “ ‘Generally, in [an uncontested] probate administration, the personal representative is the only person over whom the court has [in personam] jurisdiction’ ” [internal citations omitted]. Brindle v. Brindle, 994 So. 2d 1174, 1175 (Fla. 3d DCA 2008).

Once personal jurisdiction is acquired by the court over the personal representative, it is persistent and pervasive. In Levey v. Adams, 609 So. 2d 163 (Fla. 4th DCA 1992), the court held that a nonresident personal representative had submitted himself to personal jurisdiction in the Florida courts for an alleged breach of contract with his lawyers by serving as personal representative of a Florida estate and retaining and agreeing to pay attorneys for their representation. The court in Laushway v. Onofrio, 670 So. 2d 1135 (Fla. 5th DCA 1996), found the personal representative guilty of undue influence and rejected his challenge to the court’s jurisdiction to order him to account for property given to him by the decedent before the decedent’s death. The court held that “the trial court had the authority to continue jurisdiction over Mr. Laushway and any property in his possession to which the estate has a claim, including inter vivos gifts which the court considered procured by undue influence.” Id. at 1136. « Ch. 1 », « § 1.4 •, « D », « 2 », « c • 1 Litigation Under FL Probate Code § 1.4.D.2.c (2022)

c. Scope Of Personal Jurisdiction A personal judgment may not be entered against one over whom the court does not have in personam jurisdiction; however, because probate proceedings are in rem proceedings, a judgment affecting property rights may be entered. For example, a judgment determining that one is not an heir at law may be entered based on formal (mailed) notice, even though the person never appears or defends. In this instance, the court has jurisdiction over the property or “res” (i.e., the estate) and over the person’s interest in the estate, assuming there has been proper due process (formal notice). In other words, formal notice will give the court jurisdiction to determine a person’s interest in the assets of the estate but will not support a personal judgment against that person. F.S. 731.301. See also Sampson Farm Limited Partnership v. Parmenter, 238 So. 3d 387, 394 (Fla. 3d DCA 2018), quoting Wolf Sanitary Wiping Cloth, Inc. v. Wolf, 526 So. 2d 702, 704 (Fla. 3d DCA 1988) (F.S. 731.301 is not a “ ‘shorthand method of subjecting all potential litigants to the jurisdiction of the probate court’ ”). In Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990), probate proceedings were commenced in an intestate administration, a personal representative was appointed, distribution was accomplished, and the estate

was closed, all without notice to the appellant, who was the child of the decedent’s sister. Four years later, the appellant learned of the probated estate and petitioned the court for subsequent administration under F.S. 733.903. Even though, out of the five distributees, the personal representative was the only Florida resident, the court held that the distributees’ voluntary connections with the administration of the estate were sufficient to avail “themselves of the judicial powers of the Florida court.” Payette, 559 So. 2d at 634. The connections that the nonresident distributees had with the administration of the estate were as follows: (1) the distributees filed consents to the personal representative’s appointment with requests that he be appointed without bond; (2) the distributees accepted distribution of the estate assets; and (3) the distributees filed receipts and consents to the discharge of the personal representative. Thus, these actions by beneficiaries, common to nearly all probate administrations, are sufficient to invoke a court’s in personam jurisdiction over beneficiaries in all probate estates. One is left to wonder whether any of the counts in Payette may have included a “claw-back claim” under F.S. 733.812, requiring the distributees to “return the assets or funds received” and if so, whether formal notice would be sufficient service. The District Court of Appeal, Second District’s, holding suggests that at least one of the counts involved a refund of the distributed assets. It is possible that the court, without specifically saying so, construed F.S. 731.301(2), providing that formal notice is sufficient to acquire jurisdiction over a beneficiary “to the extent of the person’s interest in the estate” to grant jurisdiction to claw back an improper distribution. In this instance, the distribution would be “the person’s interest in the estate.” Id. The analysis of Payette suggests that simple service by formal notice is insufficient to trigger a court’s personal jurisdiction; however, “participation in the estate process” is sufficient to waive objections to the court’s jurisdiction and consent. Id. at 634. Prior to 2020, certain courts held that service by formal notice could confer personal jurisdiction in probate proceedings. See, e.g., Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015) (formal notice is sufficient to give personal jurisdiction for purposes of surcharge action); Kountze v. Kountze, 20 So. 3d 428 (Fla. 3d DCA 2009) (service of pleading by formal notice was sufficient to obtain personal jurisdiction over person as long as person being served was “interested person” in estate proceedings);

Hall v. Tungett, 980 So. 2d 1289 (Fla. 2d DCA 2008) (formal notice was sufficient to gain personal jurisdiction to extent that assets had been wrongfully distributed from estate); Galego v. Robinson, 695 So. 2d 443 (Fla. 2d DCA 1997) (durable power of attorney of decedent was not “interested party,” thus, service in Rhode Island by formal notice was insufficient to invoke personal jurisdiction); Rogers & Wells v. Winston, 662 So. 2d 1303, 1304 (Fla. 4th DCA 1995) (New York law firm that performed mostly taxrelated legal services for personal representative of Florida estate “was doing business in Florida and should have foreseen that it would be hauled into a Florida court in the event of litigation over the services performed for the estate,” noting that service by mail under Rule 5.041(b) was appropriate). See also Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1989). The authors believe that the cases cited above miscomprehend the reach of formal notice under F.S. 731.301, and that the statute grants the courts only in rem jurisdiction over assets within the territorial control of the court, not in personam jurisdiction over the person receiving formal notice. For example, in Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004), even though the out-of-state appellant was served with formal notice, it was never argued that formal notice, by itself, was sufficient to confer personal jurisdiction. It was only after a response was filed and discovery was sought by the appellant that the court found those actions to be a voluntary appearance and waiver, conferring personal jurisdiction. See also In re Estate of Vernon, 608 So. 2d 510 (Fla. 4th DCA 1992). In 2020, recognizing the uncertainty created by the cases cited above, the Florida Legislature amended F.S. 731.301(2) to clarify that “[i]n a probate proceeding, formal notice to a person is sufficient for the court to exercise its in rem jurisdiction over the person’s interest in the estate property or in the decedent’s protected homestead,” but “[t]he court does not acquire personal jurisdiction over a person by service of formal notice.” In other words, formal notice will give the court jurisdiction to determine a person’s interest in the assets of the estate but will not support a personal judgment against that person. F.S. 731.301. See also Sampson Farm Limited Partnership. Florida courts’ jurisdiction over probate proceedings has been extended to include the determination of the propriety of fees paid to the attorneys or agents of the personal representative, even if they may be remote. Under this

extension, formal notice is sufficient to satisfy constitutional due process requirements because the proceeding is in rem proceeding. However, the practitioner should note that under F.S. 733.6175(3), “[a]ny person who is determined to have received excessive compensation from an estate for services rendered may be ordered to make appropriate refunds.” If the result of the determination of the reasonableness of the fee is a finding that an excessive fee was paid, and the court grants a judgment against the payee ordering it to refund the excessive amount, service by formal notice is constitutionally deficient. If, however, the reach of the determination is merely to find a reasonable fee and no judgment is granted, service by formal notice is constitutionally sufficient. « Ch. 1 », « § 1.4 •, « D », « 3 • 1 Litigation Under FL Probate Code § 1.4.D.3 (2022)

3. In Rem Jurisdiction In Probate Proceedings « Ch. 1 », « § 1.4 •, « D », « 3 •, • a » 1 Litigation Under FL Probate Code § 1.4.D.3.a (2022)

a. Formal Notice In General Formal notice is a method of service under the Florida Probate Rules and is not a paper or pleading. F.S. 731.201(18); Fla. Prob. R. 5.040(a). The document titled “Formal Notice” does not take the place of a summons, which is judicial process. However, service by formal notice is one method of complying with the constitutional due process notice requirements necessary to invoke the in rem jurisdiction of the court in a probate proceeding, and is “sufficient notice for the court to exercise its in rem jurisdiction over the person’s interest in the estate property or in the decedent’s protected homestead.” F.S. 731.301(2). The 2010 Amendments to F.S. 731.301(2) clarify that formal notice is intended only to be used in a probate proceeding, not in collateral matters, by adding the statement at the beginning of the paragraph, “In a probate proceeding.” For further discussion, see § 1.4.D.2.a. It is not clear whether actual knowledge may take the place of formal notice. Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017). It is the view of the authors that actual knowledge would not be sufficient. As mentioned in § 1.3.E.2, Rule 5.040(a) requires that, in addition to a copy of the pleading or motion, the formal service must include a notice

requiring the person served to serve written defenses within 20 days, and advising the person so served that failure to file and serve defenses may result in a judgment or order for the relief demanded without further notice. An accompanying letter or instruction sheet would meet the requirements of this rule, but the use of the appropriate form is strongly recommended. The practitioner should note that Rule 5.040(a) does not provide that a default may be entered, as would be the case with judicial process. The rule provides only that no “further notice” is required [emphasis added]. Id. As discussed in § 1.3.E.6.b.ii, this 20-day time period is neither a statute of limitation nor a mandatory nonclaim provision, but rather, a rule of procedure. See Long v. Willis, 100 So. 3d 4 (Fla. 2d DCA 2011), citing Tanner v. Estate of Tanner, 476 So. 2d 793 (Fla. 1st DCA 1985). See also Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012). Accordingly, because Rule 5.040(a) does not provide for a default, a response filed after 20 days but before entry of the requested order is not untimely and would need to be addressed by the court before entry of the order. « Ch. 1 », « § 1.4 •, « D », « 3 •, « b » 1 Litigation Under FL Probate Code § 1.4.D.3.b (2022)

b. Formal Notice On A Minor In 2008, Fla. Prob. R. 5.040 was amended in direct response to Cason ex rel. Saferight v. Hammock, 908 So. 2d 512 (Fla. 5th DCA 2005), to include service by formal notice on a minor. Before this amendment, the rule did not specifically address how formal notice was to be served on a minor. The court held in Saferight that, to the extent the rule allowed service on a minor simply by delivering the notice to the minor’s usual place of abode and obtaining his or her signature or the signature of another minor of very young age who may also reside there, “[t]his method of service does not adequately safeguard the due process rights of minors who receive the notice and may not understand its significance or have the ability to take the necessary steps to ensure that their rights are protected.” Id. at 516. Service of formal notice on a minor must now be served on the persons designated to accept service of process on a minor under F.S. Chapter 48. Rule 5.040(a)(4)(D). See F.S. 48.041 governing service of process on a minor. For further discussion, see § 1.3.E.4. « Ch. 1 », « § 1.4 •, « D », « 3 •, « c •

1 Litigation Under FL Probate Code § 1.4.D.3.c (2022)

c. Formal Notice And Persons Interested Service of formal notice is effective only for those persons “ ‘interested’ ” in the assets of the estate, and only to the extent of that interest. In re Estate of Vernon, 608 So. 2d 510 (Fla. 4th DCA 1992), quoting F.S. 731.201(21) (1989); F.S. 731.301(2). In In re Estate of Vernon, the administrator of the probate estate sued two defendants claiming that stock held by those defendants, in reality, was an asset of the estate. The lawsuit required in personam jurisdiction over the defendants. The defendants were served by formal notice. The court quashed the service and stated: We read section 731.301, Florida Statutes (1991), to allow the less restrictive methods of service of process described therein to apply only to persons who continue to have an interest in the probate estate. A person who has no claim to estate property, and who does not otherwise claim any right to participate in the administration of the estate, does not, to us, fit within that definition. Such persons are not, by any reasonable construction of the statutory text, “interested persons”, “distributees”, or “claimants”. Hence, in whatever forum they were sued, they had a right to the traditional form of service of process prescribed by section 48.031, Florida Statutes (1991). In re Estate of Vernon, 608 So. 2d at 511. An adversary proceeding does not contemplate nor require in personam jurisdiction. If relief greater than merely determining a person’s rights regarding an estate is requested, more than in rem jurisdiction will be required. For example, if the personal representative wishes to recover joint account transfers from an estate beneficiary, unless some form of jurisdiction over the subject matter or res (i.e., the accounts) could be obtained, it would be necessary to obtain in personam jurisdiction over the person. The earlier service of formal notice on the beneficiary, or even a new formal notice, would be insufficient. In personam jurisdiction may be acquired, however, by consent or voluntary general appearance, or by asking for affirmative relief that goes to the merits of the case. Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998); Paradise of Port Richey v. Estate of Boulis, 810 So. 2d 1044 (Fla. 4th DCA 2002). Otherwise, in personam jurisdiction would probably

have to be obtained by service of original process under seal of court by personal or substitute service, in the manner of a civil action. The practitioner should also note that, with regard to service of process, a respondent who takes any action in the proceeding other than moving to quash the service will be deemed to have waived any objection to service and will have consented to the court’s in personam jurisdiction. Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004); EGF Tampa Associates v. Edgar V. Bohlen, G.F.G.M. A.G., 532 So. 2d 1318 (Fla. 2d DCA 1988); Krasnosky v. Krasnosky, 282 So. 2d 186 (Fla. 1st DCA 1973). However, where a party properly asserts a challenge to the court’s personal jurisdiction and suffers an adverse ruling from the trial court, the party does not waive its jurisdictional challenge by defending the case as long as affirmative relief is not sought by the defendant. Sampson Farm Limited Partnership v. Parmenter, 238 So. 3d 387 (Fla. 3d DCA 2018). There is the question regarding whether the right of offset provided in F.S. 733.809 could be invoked in this instance, to the extent of a person’s distributive interest in an estate, without the necessity of a separate civil action and requirement for personal service or without in personam jurisdiction. The answer, in the view of the authors, leans to the “yes” side. See F.S. 731.301(2). « Ch. 1 », « § 1.4 •, « E • 1 Litigation Under FL Probate Code § 1.4.E (2022)

E. Separate Actions Within And Outside Probate Proceeding Separate actions may exist, under some circumstances, within the probate proceeding. An example would be adversary proceedings (see Fla. Prob. R. 5.025) to (1) revoke the probate, (2) remove the personal representative, and (3) determine the amount of the elective share. On the other hand, some separate actions may be outside the probate proceeding. Examples of actions that relate to, but that are not necessarily a part of, the probate proceeding might include recovery of joint assets, declaration of rights regarding a trust (whether that trust is a revocable living trust into which the estate pours or a testamentary trust under the will currently in probate), and substitution or resignation of a trustee. The determination of whether a proceeding is “within” or “independent

of” the probate proceeding is not whether it has a separate case number, or even whether a separate filing fee has been paid. Whether a particular proceeding is within or independent of the basic probate proceeding is determined by whether original process is required to support jurisdiction or whether jurisdiction depends on the probate jurisdiction. However, the practitioner should note that procedure varies from circuit to circuit because clerks have different approaches. Some clerks file every adversary proceeding in a separate file folder. Some of those clerks assign a new number and, depending on the clerk, it may or may not be an extension of the basic probate case number. Some clerks segregate the adversary proceeding in a separate file folder if a separate filing fee is paid. Other clerks require payment of a separate filing fee for any adversary proceeding. In In re Estate of Vernon, 608 So. 2d 510 (Fla. 4th DCA 1992), an estate sued two defendants in a dispute over ownership of shares of stock in a bank. The estate began the lawsuit in the probate case by service of formal notice on defendants. The defendants had no interest in the probate estate and moved to quash service and dismiss the proceedings on the ground that the probate court lacked jurisdiction. The District Court of Appeal, Fourth District, agreed with the defendants and observed that neither F.S. 731.301 nor F.S. 733.812 allowed the defendants to be served in the probate proceeding: “To use section 733.812 is to assume the very fact sought to be litigated as the jurisdictional base for the probate court. … [W]e conclude that the estate’s remedy is to institute an ordinary civil action against defendants, not to use the more summary tools of estate administration.” In re Estate of Vernon, 608 So. 2d at 512. See also Galego v. Robinson, 695 So. 2d 443 (Fla. 2d DCA 1997) (when defendant was not an interested person in estate, co-personal representatives of estate should have instituted ordinary civil action and used civil process to pursue any alleged mishandling of decedent’s funds under power of attorney executed in favor of defendant); Manufacturers National Bank of Detroit v. Moons, 659 So. 2d 474 (Fla. 4th DCA 1995) (in guardianship proceeding, service of process under civil rules is required for probate court to obtain jurisdiction over trustee of trust of which ward is beneficiary); In re Estate of Black, 528 So. 2d 1316 (Fla. 2d DCA 1988) (use of formal notice did not confer on probate court jurisdiction over trustee in matters unrelated to probate proceedings; trustee was entitled to service as provided in Florida Rules of Civil Procedure). But see Hall v. Tungett, 980 So. 2d 1289 (Fla. 2d DCA 2008) (formal notice was sufficient

to give court jurisdiction over person who received improper distribution of estate assets). F.S. 731.301(2), as amended in 2010 and 2020, clarifies this issue to a degree. Formal notice in a probate proceeding only gives the court in rem jurisdiction over the person’s interest in the estate property or in the decedent’s protected homestead but will not give the court personal jurisdiction over a person. An independent action filed by a creditor based on an objected-to claim must be filed separately. F.S. 733.705(5). See § 1.3.G.1. Such an action would require service of process, if not waived, of a summons and complaint on the personal representative. Similarly, an action by the personal representative to recover assets should properly be brought outside the probate proceeding and a separate summons and complaint would be required. An example might be joint account transfers or inter vivos gifts alleged to be the product of undue influence. But see Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004), in which the court indicated that the estate proceedings would be the appropriate forum to determine the ownership of bearer bonds when there was a dispute as to whether they were joint assets belonging to the survivor or were an estate asset. “If appellant has a claim to ownership [of the bonds], it can be made in the probate proceedings.” Id. at 729. However, if a will were challenged on the grounds of undue influence, it seems logical and orderly to bring a challenge to a concurrent pour-over revocable living trust in the same action in the probate proceeding. In Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1989), the District Court of Appeal, Third District, held that a probate court that has jurisdiction to determine the validity of a will can also determine the validity of an inter vivos trust agreement that is incorporated by reference into the will. See also Laushway v. Onofrio, 670 So. 2d 1135 (Fla. 5th DCA 1996). More than a reference to the document is required for incorporation by reference. Vaughan v. Boerckel, 963 So. 2d 915 (Fla. 4th DCA 2007); Flinn v. Van Devere, 502 So. 2d 454 (Fla. 3d DCA 1987). On closer analysis of the opinion issued by the court in Hogarth, however, it is questionable whether that part of the opinion addressing the jurisdiction of the court is correct. The court held that, because the trust

agreement was incorporated by reference into the will, “the probate court had jurisdiction to determine its validity” [emphasis added]. Id. at 268. Clearly, the probate court, a division of the circuit court, had subject matter jurisdiction to determine the validity of the trust with or without its incorporation by reference. Art. V, § 20(c)(3), Fla. Const. Therefore, the opinion could not have been addressing the issue of subject matter jurisdiction of the circuit court. The issue the court had to be addressing is whether the probate division of the circuit court, in the probate proceeding, had sufficient jurisdiction over the parties to determine their interests in the trust property. A proceeding involving the validity of a will or a trust is an in rem proceeding. An in rem proceeding is one in which the court has jurisdiction over the property and, after reasonable notice that complies with due process requirements, may decide the rights of persons to that property. Royalty v. Florida Nat. Bank of Jacksonville, 127 Fla. 618, 173 So. 689 (1937); 12A FLA. JUR. 2d Courts and Judges § 72. Therefore, the parties who were interested in the assets of the trust, and whose interests would be affected by the invalidity of the trust, were entitled to reasonable notice that complies with due process requirements before the court could determine those parties’ rights to the trust assets. See § 1.4.D.2.b. In 2020, F.S. 733.212 was changed to require the Notice of Administration to contain the following language: “Under certain circumstances, by failing to contest the will, you may be waiving the right to contest the validity of a trust or other writing incorporated by reference into a will.” The additional language is not intended to broaden the jurisdiction of the probate court to determine the validity of an inter vivos trust agreement that is incorporated by reference into the will, but rather is meant to attempt to provide proper notice to parties of the time deadlines for contesting the will and a related trust. In some instances, a party can represent the interests of other parties. See F.S. 731.303, which discusses representation in estate proceedings, and the corresponding representation provisions for trust matters in the Code, F.S. 736.0301–736.0306. However, the authors caution against taking these representation statutes at face value, as they may fail to meet due process requirements. If the parties receive proper notice (service of process), the court has jurisdiction over the parties to determine their rights in the trust assets. Incorporation of the trust into the will by reference is irrelevant to this

determination, and without some authorized form of service, would not be a sufficient basis to give the court jurisdiction over the persons interested in the assets of the trust. If Hogarth stands for the proposition that the probate division of the circuit court, which has jurisdiction to determine the validity of a will, also has jurisdiction to determine the validity of a trust (thereby determining the rights of the parties interested in the trust) based solely on the fact that the trust is incorporated by reference into the decedent’s will, the opinion is wrong. See Martin, 687 So. 2d at 907 (“while we question the reasoning of the third district … in Hogarth, we do agree with the result”). The only way the court could have had jurisdiction over the parties who were interested in the trust is if those parties received proper service of process, waived the requirement of notice, or voluntarily submitted to the jurisdiction of the court. The opinion mentions nothing about service on the interested parties, so it is impossible to determine if the result in the case is correct. It should also be pointed out that service by formal notice would be ineffective to give the probate division of the circuit court jurisdiction in that probate proceeding over the parties interested in the trust. Service of process by formal notice is effective only for those persons who are interested in the assets of the estate, and only to the extent of that interest. See Moons; F.S. 731.301(2). See also § 1.4.D.3.a. The assets in a funded inter vivos trust are not assets of the estate. See In re Estate of Stisser, 932 So. 2d 400 (Fla. 2d DCA 2006) (trial court lacked authority to rule on personal representative’s complaint against trustees of foreign-situs trust in absence of personal jurisdiction over trustees). With some exceptions, the probate proceeding is not the proper forum to resolve issues collateral to the actual probate. In re Estate of Vernon. Footnotes — Chapter 1: *

J.D. with high honors, 1997, Stetson University; LL.M. in Taxation, 1998, University of Florida. Mr. Kelley is a past Chair of the Florida Probate Rules Committee and the Guardianship, Advance Directives, and Power of Attorney Committee of the Real Property, Probate and Trust Law Section of The Florida Bar. He is a fellow of the American College of Trust and Estate Counsel (ACTEC) and practices in St. Augustine as a member of Kelley & Kelley, P.L. **

J.D., 1995, Stetson University; LL.M. in Taxation, 1999, University of Florida. Mr. Kelley is a past Chair of the Florida Probate Rules Committee, Homestead Issues Study Committee, and the Trust Law Committee of the Real Property, Probate and Trust Law Section of The Florida Bar. He is Florida Bar Board Certified in Wills, Trusts, and Estates, is a fellow of the American College of Trust and Estate Counsel (ACTEC), and is certified by the Florida Supreme Court as a Circuit Civil Mediator.

Mr. Kelley is a member of Kelley & Kelley, P.L., in Saint Augustine. ***

J.D., 2010, Harvard University. Jenna Rubin is a member of The Florida Bar and the American Bar Association. She is a fellow of the American College of Trust and Estate Counsel (ACTEC) and is the Chair of the Florida Bar Real Property and Probate Law Section’s Elective Share Review Committee and a Vice Chair of both the Trust Law Committee and the Ad Hoc Electronic Wills Committee. She is a member of Gutter Chaves Josepher Rubin Forman Fleisher Miller P.A., in Boca Raton.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 2 » 1 Litigation Under FL Probate Code Ch. 2 (2022)

Chapter 2 INTESTATE SUCCESSION MICHAEL D. SIMON* WILLIAM T. HENNESSEY** JOHN C. MORAN*** JAMISON C. EVERT**** Contents § 2.1. INTRODUCTION § 2.2. DETERMINATION OF BENEFICIARIES A. Factors Bearing On Eligibility 1. Children Born Out Of Wedlock a. Establishing Paternity b. Presumptions 2. Adoption a. Effect Of Judgment b. Death Of Party To Proceeding c. Adoptee’s Status As Pretermitted Child d. Effect Of Foreign Judgment; “De Facto,” “Virtual,” Or “Equitable” Adoption 3. Afterborn Heirs 4. Half Blood Inheritance 5. Disqualification Of Killer Of Decedent And Forfeiture For Abuse, Neglect, Exploitation, Or Aggravated Manslaughter Of Elderly Person Or A Disabled Adult 6. Aliens 7. Marriage

a. In General b. Statutory Requirements; Proof Of Marriage c. Common-Law Marriages d. Effect Of Dissolution e. Effect Of Annulment f. Antenuptial And Postnuptial Agreements i. Effect Of Agreement ii. Requirements For Agreement g. Effect Of Marriage Procured By Fraud, Duress, Or Undue Influence B. Procedure For Determining Heirs 1. In General 2. Petition For Determination Of Beneficiaries a. Contents b. Who May File c. Service Of Process d. Default e. Waiver 3. Evidentiary Considerations 4. Guardian Ad Litem For Unknown Beneficiaries 5. Genealogical Tracing Services § 2.3. INHERITANCE RIGHTS A. In General B. Share Of Spouse C. Share Of Heirs Other Than Spouse D. Exempt Property E. Family Allowance F. Determination Of Lineal And Collateral Heirs § 2.4. APPOINTMENT OF PERSONAL REPRESENTATIVE § 2.5. DISCOVERY OF WILL AFTER COMMENCEMENT OF ADMINISTRATION § 2.6. RIGHT TO POSSESSION OF PROPERTY § 2.7. AGREEMENTS AS TO SUCCESSION

§ 2.8. ADVANCEMENTS § 2.9. GENEALOGICAL CHART « Ch. 2 », • § 2.1 » 1 Litigation Under FL Probate Code § 2.1 (2022)

§ 2.1. INTRODUCTION In cases involving intestacy, persons qualifying as beneficiaries of the decedent’s estate are known as “heirs” or “heirs at law.” F.S. 731.201(2), (20). See also F.S. 731.201(6) and (9) (defining “collateral heir” and “descendant” respectively). This chapter examines the factors that affect one’s status as an heir or heir at law. Also discussed are specific problems that may occur during the administration of an intestate estate. For a further discussion of this subject, see § 11.2 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022).

« Ch. 2 », « § 2.2 » 1 Litigation Under FL Probate Code § 2.2 (2022)

§ 2.2. DETERMINATION OF BENEFICIARIES « Ch. 2 », « § 2.2 », • A » 1 Litigation Under FL Probate Code § 2.2.A (2022)

A. Factors Bearing On Eligibility « Ch. 2 », « § 2.2 », • A », • 1 » 1 Litigation Under FL Probate Code § 2.2.A.1 (2022)

1. Children Born Out Of Wedlock « Ch. 2 », « § 2.2 », • A », • 1 », • a » 1 Litigation Under FL Probate Code § 2.2.A.1.a (2022)

a. Establishing Paternity For purposes of intestate succession, a child is regarded as a descendant of the mother and one of the natural kindred of all members of the mother’s family. F.S. 732.108(2). However, the child cannot inherit from or through the father unless (1) the natural parents have participated in a marriage ceremony before or after the child’s birth (even if the marriage is void); (2) paternity is established by adjudication either before or after the father’s death; or (3) the father acknowledges paternity in writing. Id.; Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. 1st DCA 1991). Marriage of the mother and the “reputed father” of a child born out of wedlock results in the child being deemed legitimate in all respects. F.S. 742.091. A.S. v. S.F., 4 So. 3d 774, 776 (Fla. 5th DCA 2009) (interpreting the term “reputed father,” which is not defined in Chapter 742, to mean “the individual generally or widely believed or considered to be the biological father of a particular child”). However, interested persons can raise the question as to whether a reputed father who participates in a marriage ceremony is in fact the natural father of the child, in the absence of a specific acknowledgment of paternity. Therefore, the better practice would be for the father to acknowledge paternity in writing, in addition to participating in the marriage ceremony. See Barnett v. Barnett, 336 So. 2d 1213 (Fla. 1st DCA 1976), aff’d 360 So. 2d 399. But see A.D.A. v. D.M.F., 204 So. 3d 523 (Fla. 4th DCA 2016) (presumption of paternity cannot rest on false affidavit; allowing fraudulent

acknowledgment of paternity, coupled with subsequent marriage to mother, to have legal effect of conferring paternity status on husband would improperly allow bypass of the entire Chapter 63 adoption process). There are various ways to prove the establishment of paternity by a writing. Items such as a tax return or a hotel registration card may be sufficient to indicate the status of parent and child. See Wall v. Altobello, 49 So. 2d 532 (Fla. 1950). See also In re Horne’s Estate, 149 Fla. 710, 7 So. 2d 13 (1942) (acknowledgment need not be formal and witnesses were not required to subscribe to acknowledgment), and Johnson v. Sullivan, 735 F. Supp. 416, 420 (M.D. Fla. 1990), in which the court noted that “[m]any states with a written acknowledgement method for establishing paternity in inheritance disputes also emphasize this linkage between the writing and an implication of responsibility for the support of the illegitimate child. … Thus, while [a] written acknowledgement need not follow a set formality in its language, a writing should not be considered an acknowledgement unless it arises in such circumstances that it suggests the author’s acceptance of the responsibilities attendant to a confession of paternity.” In light of the tenor of these cases, there are many other possible sources of acknowledgment of paternity in writing, such as life or health insurance applications, applications for credit, letters to a school official, or private correspondence. See, e.g., In re Horne’s Estate (letter to school officials was sufficient to establish paternity). The evidence establishing paternity in a proceeding after the death of the father must be clear and convincing. Fagan v. Cramer, 877 So. 2d 945 (Fla. 4th DCA 2004); Breedlove. See also White v. Marks, 325 So. 3d 160 (Fla. 5th DCA 2021) (unsigned birth certificate listing decedent as father, which also lacked required accompanying written consent of father, could not constitute written acknowledgement of paternity under F.S. 732.108(2)(c); decedent’s reference to appellant as his adopted daughter in his pocket planner and will disinheriting her also did not qualify as written acknowledgments of paternity where it was undisputed that decedent never adopted appellant and was not her biological father). “The paternity of the father may be established in a proceeding to determine intestate succession.” Fagan, 877 So. 2d at 946 (citing In re Estate of Smith, 685 So. 2d 1206 (Fla. 1996)). See also Glover v. Miller, 947 So. 2d 1254 (Fla. 4th DCA 2007). However, when a paternity action has previously been brought, any resulting determination of paternity has the effect of

determining the issue for purposes of intestate succession. In re Estate of Smith; Glover. In 2009, F.S. 732.108(2)(b) was amended to specifically provide that the statutes of limitation in Chapter 95 do not apply in proceedings to determine paternity in probate. F.S. 732.108(2)(b) (abrogating the holdings in In re Estate of Smith and Thurston v. Thurston, 777 So. 2d 1001 (Fla. 1st DCA 2001), which found that a probate proceeding to establish paternity must be filed within the four-year statute of limitations set forth in F.S. 95.11(3)(b)). See Ch. 2009-115, § 2, Laws of Fla. (amending F.S. 732.108(2)(b) to provide that “Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph”). However, the District Court of Appeal, Third District, held that the 2009 amendment to F.S. 732.108(2)(b) applies only to paternity claims that had not already expired under F.S. 95.11(3)(b) at the time the amendment became law. Rose v. Sonson, 208 So. 3d 136 (Fla. 3d DCA 2016); Ch. 2009-115, § 22, Laws of Fla. The court in Rose found that the legislature did not make the 2009 amendment to F.S. 732.108(2)(b) retroactive in its application and, even if it did, the amendment could not constitutionally breath life back into previously extinguished claims. Rose. The same result was reached in Dixon v. Bellamy, 252 So. 3d 349 (Fla. 3d DCA 2018), which held that the 2009 amendment to F.S. 732.108(2)(b) did not create new cause of action subject to new statute of limitations and declined to find that Rose was wrongly decided. See White for a discussion of the application of the statute of limitations to claims brought under F.S. 732.108(2)(c) where the father is alleged to have acknowledged paternity in writing. Grounds supporting establishment of paternity should be sufficiently pled to establish standing and to avoid application of the statute of limitations. See, e.g., Bivins v. Douglas, 335 So. 3d 1214 (Fla. 3d DCA 2021) (appellant’s blanket statement that decedent was his biological father, without more, failed to establish paternity and avoidance of statute of limitations). While equitable concerns often arise, courts cannot invoke equity as a basis to ignore the statute of limitations governing determinations of paternity in probate proceedings. Robinson v. Robinson, 298 So. 3d 1202 (Fla. 3d DCA 2020). « Ch. 2 », « § 2.2 », • A », • 1 », « b • 1 Litigation Under FL Probate Code § 2.2.A.1.b (2022)

b. Presumptions When a child is born in wedlock and the father disputes his paternity, “one of the strongest rebuttable presumptions known to the law is required to be overcome before the child can be bastardized.” Barnett v. Barnett, 336 So. 2d 1213, 1218 (Fla. 1st DCA 1976), aff’d 360 So. 2d 399. The presumption that the child is legitimate must be overcome by “clear and satisfactory testimony,” and the evidence presented must show more than a “strong suspicion” of illegitimacy. Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163, 164 (1944). See, e.g., Blitch v. Blitch, 341 So. 2d 251 (Fla. 1st DCA 1976) (emotional outburst by wife that her husband was not father was not sufficient). “The presumption is so strong that it ‘can defeat the claim of a man proven beyond all doubt to be the biological father.’ ” Nevitt v. Bonomo, 53 So. 3d 1078, 1081 (Fla. 1st DCA 2010), quoting Dept. of Health & Rehabilitative Services v. Privette, 617 So. 2d 305, 308 (Fla. 1993). “The presumption of legitimacy is codified in [F.S.] 382.013(2)(a).” Dept. of Revenue ex rel. Preston v. Cummings, 871 So. 2d 1055, 1059 (Fla. 2d DCA 2004). The presumption may be overcome with a clear and compelling reason “ ‘based primarily on the child’s best interests.’ ” J.T.J v. N.H., 84 So. 3d 1176, 1179 (Fla. 4th DCA 2012), quoting Privette, 617 So. 2d at 309. In Contino v. Estate of Contino, 714 So. 2d 1210 (Fla. 3d DCA 1998), the trial court heard testimony from numerous family members who reported that, throughout her divorce proceedings, the wife had specifically disavowed that her husband was the father of her youngest child. In fact, the separation agreement between the husband and wife specifically stated that the wife disputed the husband’s paternity and that she believed the husband was not the natural father. The court also heard evidence that the wife’s extramarital partner had acknowledged paternity in writings to the wife. Nevertheless, the trial court and the district court of appeal allowed the child to take as an intestate heir because the husband (presumptive father) never specifically disavowed the child. The court reasoned that the presumption in favor of legitimacy of a child born during wedlock is one of the strongest in the law and that it cannot be overcome with “strong suspicion or grave doubt” of the paternity of the child. Id. at 1213. The Contino court also held that a child born during wedlock cannot be

required to submit to scientific tests pursuant to F.S. 742.10 and 742.12. F.S. 742.12(1) provides in relevant part that “[i]n any proceeding to establish paternity, the court on its own motion may require the child, mother, and alleged fathers to submit to scientific tests … to show a probability of paternity.” The court reasoned that F.S. Chapter 742 applies only to cases to establish paternity for children born out of wedlock. Accordingly, after Contino, it appears that a party disputing paternity must overcome the presumption without the benefit of scientific testing. The primary concern in any paternity action is the best interest of the child. If the child is born in wedlock, there is a strong presumption that the husband is the father of the child. Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972). “The presumption of legitimacy is a constitutional right afforded to every child born into a marriage granting the child the right to remain legitimate, both legally and factually, if doing so is in the child’s best interest.” Parker v. Parker, 950 So. 2d 388, 394 (Fla. 2007), citing Art. I, § 9, Fla. Const.; D.P. v. C.L.G., 37 So. 3d 897 (Fla. 1st DCA 2010) (father, who married child’s mother after child’s birth but before final judicial termination of his parental rights, acquired same status as if he had married child’s mother before child’s birth and was not required to file claim of paternity with Florida Putative Father Registry to preserve his rights). In Privette, 617 So. 2d at 309, the Florida Supreme Court held “that there must be a clear and compelling reason based primarily on the child’s best interests to overcome the presumption of legitimacy even after the legal father is proven not to be the biological father” by HLA or other scientific tests [emphasis added]. The court found that the burden of proof in such cases would have to be at least the equivalent of the burden of proof in proceedings to terminate the legal father’s parental rights. Thus, the legal father must be given notice of the hearing and an opportunity to be heard. A biological father is entitled to rebut the common law presumption that the mother’s husband is the legal father of a child born to an intact marriage when he has manifested a substantial and continuing concern for the welfare of the child. Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018). In Simmonds, the Florida Supreme Court opined that “the presumption of legitimacy is rebuttable,” and “does not bar an action to prove paternity at the outset.” Id. at 403. Rather, to maintain a paternity petition where the presumption of legitimacy is in question, one must establish standing to bring the action,

meaning “the biological father of a married woman’s children has the right to bring an action to establish his parental rights as the father as long as he has ‘manifested a substantial and continuing concern for the welfare of the children.’ ” Id. at 401, 402, quoting Kendrick v. Everheart, 390 So. 2d 53, 61 (Fla. 1980). The Simmonds decision overruled aspects of prior law. In Slowinski v. Sweeney, 64 So. 3d 128 (Fla. 1st DCA 2011), the court previously held that a child born to an intact marriage cannot be the subject of a paternity proceeding brought by a biological father. See C.G. v. J.R., 130 So. 3d 776 (Fla. 2d DCA 2014) (F.S. Chapter 742 does not give biological father right to establish paternity when child is conceived and born during intact marriage to another man, even when DNA test results establish petitioner as child’s biological father); Sirdevan v. Strand, 120 So. 3d 1280 (Fla. 1st DCA 2013) (citing Slowinski for proposition that child born to intact marriage cannot be subject of paternity proceeding brought by biological father; it is fundamental error for trial court to grant relief pursuant to nonexistent cause of action). See also I.A. v. H.H., 710 So. 2d 162 (Fla. 2d DCA 1998); G.F.C. v. S.G., 686 So. 2d 1382 (Fla. 5th DCA 1997). Courts have held that the child was permitted to bring such an action. Further, it is not clear whether the limitations on the ability of a father to bring a claim for paternity when there is an intact marriage applies in the wrongful death or probate context. Greenfield v. Daniels, 51 So. 3d 421, 428 (Fla. 2010), quoting Gammon v. Cobb, 335 So. 2d 261, 267 (Fla. 1976) (Florida courts have already acknowledged propriety of establishing parentage “ ‘irrespective of the marital status of the mother’ ” in wrongful death proceedings). In Daniels v. Greenfield, 15 So. 3d 908 (Fla. 4th DCA 2009), a wrongful death action was brought on behalf of a child against his putative biological father’s psychiatrist and hospital after the father committed suicide. The putative father was listed on the child’s birth certificate and was the only father the child ever knew. However, the child was born while his mother was married to another man. The trial court held that the presumption of legitimacy required it to declare as a matter of law that the child was not a survivor of his biological father. The District Court of Appeal, Fourth District, reversed and held that, “[if] the presumption of legitimacy has any

place in wrongful death survivorship questions, it may be overcome by clear and strong evidence to rebut that presumption.” Id. at 914. The Daniels court questioned whether the presumption should even apply in wrongful death proceedings. The court noted that the presumption is one “which operates in family law settings to prevent a husband’s rights from being terminated and for the child’s best interest in his or her legitimacy and support from his or her father.” Id. It held that it is not in a child’s best interest to apply a presumption of legitimacy to prevent a child from asserting claims relating to the loss of his father. Id. The Daniels decision was affirmed and approved by the Florida Supreme Court. Greenfield v. Daniels. The logic in Daniels concerning the application of the presumption could arguably apply in probate proceedings in which a child is attempting to inherit from his or her biological father. Compare Contino. Before a putative father can be ordered by the court to submit to an HLA blood test to establish paternity, the mother has the burden of proving by clear and convincing evidence that (1) the complaint is factually accurate, brought in good faith, and likely to be supported by reliable evidence, and (2) the child’s best interest will be better served even if the blood test later proves factual illegitimacy. Privette. See also Parker; Benac v. Bree, 590 So. 2d 536 (Fla. 2d DCA 1991). A claim of estoppel may similarly be asserted. Marshek v. Marshek, 599 So. 2d 175 (Fla. 1st DCA 1992). F.S. 732.108(2)(b) provides that paternity may be established after the death of the putative father. As noted in § 2.2.A.1.a, F.S. Chapter 95 no longer applies to proceedings to determine paternity in probate. F.S. 732.108(2)(b). See also Ch. 2009-115, § 2, Laws of Fla. (amending F.S. 732.108(2)(b), specifying Chapter 95 does not apply in determining heirs in probate proceeding). The 2009 amendment to F.S. 732.108(2)(b) abrogated the holdings in In re Estate of Smith, 685 So. 2d 1206 (Fla. 1997), and Thurston v. Thurston, 777 So. 2d 1001 (Fla. 1st DCA 2001), which found that a probate proceeding to establish paternity must be filed within the fouryear statute of limitations set forth in F.S. 95.11(3)(b). However, paternity claims that already expired under F.S. 95.11(3)(b) prior to the effective date of this 2009 amendment continue to be barred. Rose v. Sonson, 208 So. 3d 136 (Fla. 3d DCA 2016). See also Dixon v. Bellamy, 252 So. 3d 349 (Fla. 3d DCA 2018) (F.S. 732.108(2)(b) did not create new cause of action subject to new statute of limitations and declining to find that Rose was wrongly

decided). A putative heir who is trying to establish paternity through adjudication after the father’s death under F.S. 732.108(2)(b) must do so through evidence that is “clear, strong and unequivocal, that is, the person born out of wedlock should prove paternity by clear and convincing evidence.” Breedlove v. Estate of Breedlove, 586 So. 2d 466, 467 (Fla. 1st DCA 1991). See also In re Estate of Robertson, 520 So. 2d 99 (Fla. 4th DCA 1988); In re Estate of Broxton, 425 So. 2d 23 (Fla. 4th DCA 1983). Early cases held that a mother of a child born in wedlock is not competent to testify that the child actually is illegitimate. Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177 (1934). This general rule, however, has been modified to permit a woman who was married to one man when her children were conceived or born to sue another man to establish that the latter was the father of her children. F.S. 742.011; Gammon v. Cobb, 335 So. 2d 261 (Fla. 1976) (distinction between married and unmarried women was unconstitutional); Holliman v. Green, 439 So. 2d 955 (Fla. 1st DCA 1983); In re Estate of Jerrido, 339 So. 2d 237 (Fla. 4th DCA 1976). But see R.H.B. v. J.B.W., 826 So. 2d 346 (Fla. 2d DCA 2002) (questioning whether such action is appropriate when mother and presumptive father remain married). If a child wishes to bastardize himself or herself for the purpose of inheriting from a putative father, the courts will allow such an action to proceed. In re Estate of Robertson. Although there is an extremely strong presumption that children born within a marriage are legitimate, such a presumption is rebuttable. Id. In Estate of Maher v. Iglikova, 138 So. 3d 484 (Fla. 3d DCA 2014), the court held that a child who was born before decedent executed his will but legitimized by an adjudication of paternity after the execution of the will, was not a pretermitted child, so as to be entitled to an intestate share of decedent’s estate under F.S. 732.302. The court rejected the argument that an adjudication of paternity should be equated with an adoption that took place after the execution of the will noting that adoption and adjudication of paternity are legally distinct: “ ‘Adoption’ means the act of creating the legal relationship between parent and child where it did not exist” whereas “adjudication of paternity merely acknowledges an existing relationship.” Maher, 138 So. 3d at 486.

« Ch. 2 », « § 2.2 », • A », « 2 » 1 Litigation Under FL Probate Code § 2.2.A.2 (2022)

2. Adoption « Ch. 2 », « § 2.2 », • A », « 2 », • a » 1 Litigation Under FL Probate Code § 2.2.A.2.a (2022)

a. Effect Of Judgment For purposes of inheritance by intestacy, Florida law makes no distinction between adopted and natural persons. See F.S. 732.108(1). An “adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family.” Id. The adopted person is not a descendant of his or her natural parents or any of their kindred, or any prior adoptive parents’ family, except in three limited instances: Adoption of a child by a stepparent has no effect on inheritance rights between the child and the spouse of the stepparent (the natural parent) or the spouse’s family, F.S. 732.108(1)(a). Adoption of a child by the spouse of a natural parent who marries the natural parent after the death of the other natural parent has no effect on the inheritance rights between the child and the family of the deceased natural parent, F.S. 732.108(1)(b). Adoption of a child by a “close relative” after the deaths of the natural parents does not affect the relationship between the child and the families of the deceased natural parents, F.S. 732.108(1)(c). A “close relative” is the “child’s brother, sister, grandparent, aunt, or uncle.” F.S. 63.172(2). Generally, stepchildren have no inheritance rights. Therefore, if the stepparent fails to adopt the child, no legal relationship exists between them for inheritance purposes. However, under the right facts, the child may be able to establish adoption by estoppel. See § 2.2.A.2.d. A judgment of adoption endows the adopted person with the same family relationship that would have existed if he or she were a legitimate blood descendant of the adopting parent. See F.S. 732.108; Korbin v. Ginsberg, 232

So. 2d 417 (Fla. 4th DCA 1970). F.S. 732.108(1) is quite similar to F.S. 63.172 regarding the effect of a judgment of adoption, and both statutes should be scrutinized. See also Kemp & Associates, Inc. v. Chisholm, 162 So. 3d 172 (Fla. 5th DCA 2015); Turner v. Weeks, 384 So. 2d 193 (Fla. 2d DCA 1980); In re Estate of Carlton, 348 So. 2d 896 (Fla. 4th DCA 1977). Adopted persons include adult adoptees. See F.S. 63.042(1) (“Any person, a minor or an adult, may be adopted.”); Dennis v. Kline, 120 So. 3d 11, 18 (Fla. 4th DCA 2013), quoting In re Adoption of Holland, 965 So. 2d 1213, 1214 (Fla. 5th DCA 2007) (“ ‘The public policy of Florida expressly permits the adoption of adults.’ ”). See also Rodriguez v. Adoption of Rodriguez, 219 So. 3d 944 (Fla. 3d DCA 2017) (F.S. Chapter 63 does not establish public policy as factor when courts grant or deny adoption). An adult may be adopted solely for financial reasons. In re Adoption of Holland, 965 So. 2d 1213 (Fla. 5th DCA 2007) (upholding adoption where reason for adoption was to allow grandchild to obtain education benefits available to children (but not grandchildren) of veterans). A beneficiary of a trust who has a direct, financial, and immediate interest in an adoption is entitled to notice of the adoption and has standing to vacate an adoption order. See Edwards v. Maxwell, 215 So. 3d 616 (Fla. 1st DCA 2017). See also Rickard v. McKesson, 774 So. 2d 838 (Fla. 4th DCA 2000) (contingent trust beneficiary, who would have received trust remainder if trust beneficiary died childless, could collaterally attack after beneficiary’s death beneficiary’s adoption of 72-year-old man as fraud on court). « Ch. 2 », « § 2.2 », • A », « 2 », « b » 1 Litigation Under FL Probate Code § 2.2.A.2.b (2022)

b. Death Of Party To Proceeding An adoption cannot be decreed posthumously. In re Adoption of R.A.B., 426 So. 2d 1203 (Fla. 4th DCA 1983). Adoption is a creature of statute, and one of the key elements is that the person to be adopted must be capable of being adopted and the person seeking to adopt must be capable of adopting. See Korbin v. Ginsberg, 232 So. 2d 417 (Fla. 4th DCA 1970). It necessarily follows that both parties to the adoption must be living at the time of the judgment of adoption, notwithstanding that the proceedings may have been pending before the death of one or the other. Id.

« Ch. 2 », « § 2.2 », • A », « 2 », « c » 1 Litigation Under FL Probate Code § 2.2.A.2.c (2022)

c. Adoptee’s Status As Pretermitted Child A child adopted after the execution of a will is considered to be a pretermitted child under F.S. 732.302, which may entitle him or her to take a child’s intestate share. See In re Estate of Frizzell, 156 So. 2d 558 (Fla. 2d DCA 1963). « Ch. 2 », « § 2.2 », • A », « 2 », « d • 1 Litigation Under FL Probate Code § 2.2.A.2.d (2022)

d. Effect Of Foreign Judgment; “De Facto,” “Virtual,” Or “Equitable” Adoption The laws of other jurisdictions can introduce a wide range of factual situations in which foreign adoptions will be recognized for purposes of determining inheritance rights in Florida, even when they do not meet the technical requirements of the Florida statutes on adoption. The validity of a foreign adoption depends on whether the adoption in fact took place under the laws of the jurisdiction in question and whether the judgment of adoption was issued in accordance with due process of law. See F.S. 63.192. If these tests are met, Florida courts will recognize the validity of the adoption under Article IV, § 1, of the United States Constitution, the full faith and credit clause. See F.S. 63.192. See also Mott v. First National Bank of St. Petersburg, 98 Fla. 444, 124 So. 36 (1929). Florida courts will recognize adoption decrees of foreign jurisdictions even when the adoption is against the established policy of the state, so long as the adoption was accomplished properly under the laws of the foreign jurisdiction. Embry v. Ryan, 11 So. 3d 408 (Fla. 2d DCA 2009). “Although rare, an exception to this blanket rule exists where the laws governing the adoption in the foreign state are so different as to be ‘repugnant to the laws or policy of the state of Florida upon the subject.’ ” Dennis v. Kline, 120 So. 3d 11, 22 (Fla. 4th DCA 2013), quoting Mott, 124 So. at 37. See also Kupec v. Cooper, 593 So. 2d 1176 (Fla. 5th DCA 1992) (court refused to recognize German “adoption” in which there was no court judgment of adoption and no showing that German adoption law is similar to Florida’s and deserving of Florida’s recognition). In some jurisdictions, there are certain instances in which adoption by a

deed, contract, or notarial act has been authorized by statute. This is known as “de facto,” “virtual,” or “equitable” adoption. When the statute is complied with, the legal status of the parties is no different from that which results from a decree of adoption in a judicial proceeding. This type of adoption could be recognized in Florida by virtue of the statutory and constitutional provisions cited above, unless the rights flowing from the adoption “are not contemplated by or are repugnant to the laws or public policy” of the state on the subject. Mott, 124 So. at 37. Each state possesses the sovereign power to prescribe its own laws as to adoptions, as well as its own laws for the descent and distribution of property within its limits. Id. In the exercise of this power, a state may deny the rights of inheritance in that state to one adopted under the laws of another state, or may refuse to recognize an adoption under the laws of the foreign state for the purpose of transmitting title by inheritance. See Id.; RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 261 (ALI-ABA 1971). In the absence of a statute authorizing the adoption of a child by deed, contract, or notarial act, there cannot be a legal adoption. The virtual adoption concept has been recognized in Florida. In re Estate of Musil, 965 So. 2d 1157 (Fla. 2d DCA 2007). Virtual adoption is an equitable doctrine designed to protect the interests of a minor child who was supposed to have been adopted but whose adoptive parents failed to undertake the legal steps necessary to formally accomplish the adoption. McMullen v. Bennis, 20 So. 3d 890 (Fla. 3d DCA 2009), citing Miller v. Paczier, 591 So. 2d 321 (Fla. 3d DCA 1991). It allows the “supposed-tohave-been-adopted” child to take as a beneficiary of an estate. See Williams v. Dorrell, 714 So. 2d 574, 575 (Fla. 3d DCA 1998). Thus, the concept of equitable adoption is not applicable on behalf of a putative adoptee who was an adult at the time the contract was made, because to do so would be contrary to the fundamental basis of the doctrine and might lead to fraudulent claims. See Miller; 2 AM. JUR. 2d Adoption § 16. A child who is able to prove that he or she is an equitably adopted child of the decedent is deemed to have an enforceable contract right against the decedent’s estate. In re Heirs of Hodge, 470 So. 2d 740 (Fla. 5th DCA 1985). The child may sue for specific performance of the contract to adopt, which would establish the right of inheritance in the decedent’s estate. Sheffield v. Barry, 153 Fla. 144, 14 So. 2d 417 (1943). The elements of a virtual adoption are

an agreement between the natural and adoptive parents; performance by the natural parents (by giving up custody); performance by the child (by living with the adoptive parents); partial performance by the adoptive parents (by taking the child into their home and treating him or her as their child); and the intestacy of the foster parents. Id.; In re Estate of Musil; Williams v. Estate of Pender, 738 So. 2d 453 (Fla. 1st DCA 1999); Dorrell; In re Estate of Wall, 502 So. 2d 531 (Fla. 4th DCA 1987); Hodge. The elements of “virtual adoption” must be proved by clear and convincing evidence. In re Estate of Musil; Estate of Pender. It is not essential that a contract to adopt be shown by direct evidence; the agreement to adopt may be inferred by acts, conduct, and admissions of the adopting parent. Hodge. A lawsuit for specific performance of a contract to adopt under the virtual adoption theory must be distinguished from an action for specific performance to declare the adoption effectual. Sheffield. The lawsuit does not give the child the status of a legally adopted child. Tarver v. Evergreen Sod Farms, Inc., 533 So. 2d 765 (Fla. 1988); In re Adoption of R.A.B., 426 So. 2d 1203 (Fla. 4th DCA 1983). For example, in Grant v. Sedco Corp., 364 So. 2d 774 (Fla. 2d DCA 1978), the court ruled that an equitably adopted child could not recover as a survivor under the Florida Wrongful Death Act. The court observed that the “nature of equitable adoption is a remedy in equity to enforce a contract right, not to create the relationship of parent and child.” Id. at 775. The doctrine usually does not apply to testate estates, although a virtually adopted child could be treated as a pretermitted child. Wall. Moreover, the doctrine may not be utilized prior to the death of the adoptive parent. Tarver. The District Court of Appeal, Third District, has held that a virtually adopted child is also considered an “heir” for purposes of entitlement to homestead property. Dorrell. In McMullen, the court held that a petition to determine beneficiaries concerning whether a child has been virtually adopted is not ripe until the validity of the decedent’s will is resolved. The trial court agreed to conduct a

preliminary hearing on the issue of virtual adoption. The appellate court reversed, finding that such a proceeding amounted to an improper advisory opinion and that it was premature until the validity of the decedent’s will is admitted to probate. The question of virtual adoption becomes material only if the decedent’s will is invalid. In Platt v. Osteen, 103 So. 3d 1010 (Fla. 5th DCA 2012), the court held that a beneficiary of a will who was listed therein as a daughter of the testator, but who was not the testator’s biological daughter and was never legally adopted by him, was nevertheless entitled to an evidentiary hearing to determine whether she had been “virtually adopted” and had standing to contest the will. For a discussion of the concept of virtual adoption and the various limitations on the doctrine, see Markus & Metta, Virtual Adoption: Contractual Estoppel of Parental Rights and Responsibilities, 71 Fla. Bar J. 90 (May 1997). « Ch. 2 », « § 2.2 », • A », « 3 » 1 Litigation Under FL Probate Code § 2.2.A.3 (2022)

3. Afterborn Heirs Under F.S. 732.106, heirs of a decedent conceived before the decedent’s death, but born after the death, inherit as if they had been born during the decedent’s lifetime. This rule reflects the common-law doctrine of en ventre sa mere (“in its mother’s womb”). The problem posed by this rule is the determination as to the exact time of conception. A person could be conceived on the same date as the date of death of the decedent from whom the person would inherit. Expert medical testimony might be necessary to establish the time of conception if the issue were disputed. The Uniform Parentage Act, which has not been adopted in Florida, provides that a deceased husband is presumed to be the father of a child born to his surviving wife within 300 days after the husband’s death. Uniform Parentage Act, § 204(a)(2). The right to distribution is governed by the law in force at the time of the decedent’s death. See In re Ruff’s Estate, 159 Fla. 777, 32 So. 2d 840 (1947), 175 A.L.R. 370. Interestingly, advancements in technology and artificial insemination have added a new wrinkle to this topic. Under F.S. 742.17(4), a child conceived from the eggs or sperm of a person who died before the transfer of that person’s eggs, sperm, or preembryos to a woman’s body is not eligible

for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will. See e.g., Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2012) (children of deceased insured wage earner and his spouse, who were conceived through in vitro fertilization after wage earner’s death, were not entitled to surviving child’s insurance benefits under Social Security Act when they did not qualify for inheritance from wage earner under Florida’s intestacy law, F.S. 732.106, or satisfy any statutory alternatives to that requirement); Capato ex rel. B.N.C. v. Commissioner Social Security, 532 F. App’x 251 (3d Cir. 2013) (claimant was not entitled to surviving child’s insurance benefits under Social Security Act for twin children who were conceived through in vitro fertilization after death of her husband while he was domiciled in Florida, because Florida intestacy law precluded children’s claim against husband’s estate absent provision for children in husband’s will). See §§ 2.2.7.b and 4.9.A of this manual for further discussion of this provision. « Ch. 2 », « § 2.2 », • A », « 4 » 1 Litigation Under FL Probate Code § 2.2.A.4 (2022)

4. Half Blood Inheritance Persons related by the half blood are those who have either the same father or the same mother, but not both parents in common. F.S. 732.105 provides that if there are collateral kindred of the intestate and some of those collateral relatives are related by the whole blood to the intestate and some are related by the half blood, those of the half blood will inherit only one half as much as those of the whole blood. If all are of the half blood, however, they each inherit whole portions. Id. The question may be raised as to the application of F.S. 732.105 if the decedent’s estate is divided one half to the decedent’s paternal kindred and one half to the decedent’s maternal kindred. If the grandparents on the maternal side are dead, leaving descendants who are related only by half blood to the intestate, there is a question as to whether the half blood relatives would take the whole share intended for the maternal side or whether that share would be divided again into halves, half of it going to the paternal side with the other share. In accordance with the ruling in Estes v. Nicholson, 39 Fla. 759, 23 So. 490 (1898), the proper solution is for the maternal and the paternal heirs each to receive a whole share, regardless of whether they are

related to the intestate by half blood or by whole blood. « Ch. 2 », « § 2.2 », • A », « 5 » 1 Litigation Under FL Probate Code § 2.2.A.5 (2022)

5. Disqualification Of Killer Of Decedent And Forfeiture For Abuse, Neglect, Exploitation, Or Aggravated Manslaughter Of Elderly Person Or A Disabled Adult A person who “unlawfully and intentionally” kills or procures the death of a decedent is not permitted to inherit from that decedent in intestacy or to take any part of the decedent’s property by any means. F.S. 732.802. The part of the estate to which the killer otherwise would have been entitled passes instead to those persons who would take as if the killer had predeceased the decedent. Id.; Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA 2015) (F.S. 732.802 does not extend to innocent family members of killer, even if killer may act for their benefit; the statutory language chosen by the legislature is clear and unambiguous and disinherits only the slayer, or anyone who participates in the killing of the decedent, from any rights to the victim’s estate). See also In re Estate of Benson, 548 So. 2d 775 (Fla. 2d DCA 1989). This is a codification of a common-law principle. See Ashwood v. Patterson, 49 So. 2d 848 (Fla. 1951). Because the killer is treated as if he or she predeceased the decedent, the heirs of the killer are still entitled to take per stirpes. See Benson (children of man who murdered his mother and brother were entitled to take their father’s share under his mother’s will and their father’s share of his brother’s intestate estate). Nonprobate property is included within the scope of the statute. See F.S. 732.802(4) (“[a]ny … acquisition of property or interest by the killer … shall be treated in accordance with the principles of this section”). When a joint tenancy exists and one of the tenants is killed by the other, the right of survivorship is terminated and the deceased tenant’s interest in the property is treated as if it had been held by the tenants as tenants in common. F.S. 732.802(2); LoCascio v. Sharpe, 23 So. 3d 1209, 1211 (Fla. 3d DCA 2010), quoting Capoccia v. Capoccia, 505 So. 2d 624, 624–625 (Fla. 3d DCA 1987) (“ ‘subsection (2) does not call for the complete termination of the killer’s interest in the property but merely the termination of the right of survivorship’ ”); Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008) (slayer statute extinguishes right of survivorship only if it is determined that joint

tenant unlawfully and intentionally killed other joint tenant); F.S. 732.802 does not affect the rights of an innocent person who is the beneficiary of a Totten trust. Lopez v. Rodriguez, 574 So. 2d 249 (Fla. 3d DCA 1991). The catch all provision in F.S. 732.802(4) was added by the legislature for the purpose of broadening the scope of the statute as far as possible to any other property or interest outside of the decedent’s estate to prevent a killer from profiting from their actions. Prudential Insurance Company of America, Inc. v. Baitinger, 452 So. 2d 140 (Fla. 3d DCA 1984). For example, in Cosman v. Rodriguez, 153 So. 3d 371 (Fla. 2d DCA 2014), the right to recover damages under the Florida Wrongful Death Act was deemed to be an “interest” for purposes of F.S. 732.802(4). As a result, the slayer spouse in Cosman was treated as having predeceased the decedent and, in the absence of a surviving spouse, the decedent’s adult child could properly assert individual claims for damages against the slayer spouse as a survivor under the Wrongful Death Act. A final judgment convicting the killer of the murder (in any degree) of the decedent is conclusive for purposes of the statute. F.S. 732.802(5). The “final judgment of conviction of murder” that becomes conclusive under F.S. 732.802(5) means “an adjudication of guilt by the trial court.” Baitinger, 452 So. 2d at 143. The fact that the judgment of conviction has been appealed does not prevent the conviction from being conclusive for purposes of this statute. Barber v. Parrish, 963 So. 2d 892 (Fla. 1st DCA 2007); Baitinger. However, according to Cohen v. Cohen, 567 So. 2d 1015 (Fla. 3d DCA 1990), to the extent the conviction is reversed on appeal, that person could be entitled to compensation for financial injury in an action for money damages. “[A]lthough a conviction satisfies the plaintiff’s burden of proof under Section 732.802, a plaintiff need not await a conviction in order to prove the application of Section 732.802.” West Coast Life Ins. Co. v. Longboat, 2010 U.S. Dist. LEXIS 130889, 2010 WL 4942146, *1 (M.D. Fla. 2010). See also New York Life Ins. & Annuity Corp. v. Gerth, 2013 U.S. Dist. LEXIS 110556, 2013 WL 4014987 (M.D. Fla. 2013) (court denied stay pending outcome of criminal investigation; application of F.S. 732.802 can still be proven in absence of conviction). In the absence of a conviction of murder, the probate court determines “by the greater weight of the evidence whether the killing was unlawful and

intentional,” thereby precluding the killer from receiving any benefits from the decedent. F.S. 732.802(5). See Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995). The party invoking the slayer statute to prevent an unconvicted killer’s acquisition of property has the burden of proving that the killing was both intentional and unlawful. Id. F.S. 732.802 was found not to apply in Stephenson v. Prudential Insurance Company of America, 2016 WL 6093225, 2016 U.S. Dist. LEXIS 153299 (M.D. Fla. 2016) where the totality of the evidence before the court did not prove that it is more likely than not that the killer acted unlawfully, rather than in self-defense. A conviction of manslaughter entered pursuant to the killer’s guilty plea and any admissions made by the killer during the plea colloquy may be introduced as evidence in the hearing under this statute. Nunez v. Gonzalez, 456 So. 2d 1336 (Fla. 2d DCA 1984). An acquittal in a criminal prosecution brought as a result of the death of the decedent does not preclude a disqualification under F.S. 732.802. In re Estate of Howard, 542 So. 2d 395 (Fla. 1st DCA 1989). In Guardian Life Insurance Company of America v. Lutz, 2014 WL 1762227, 2014 U.S. Dist. LEXIS 60554 (M.D. Fla. 2014), and Guardian Life Insurance Company of America v. Lutz, 2014 WL 1762084, 2014 U.S. Dist. LEXIS 60552 (M.D. Fla. 2014), the court denied a motion for summary judgment and a motion to dismiss, respectively, on the basis that Florida’s Slayer Statute “does not require the beneficiary to physically commit the killing in question, as an ‘instigator and co-perpetrator’ of a murder may be considered to have unlawfully and intentionally killed for the purposes of [F.S.] 732.802(3).” Guardian Life, 2014 U.S. Dist. LEXIS 60554, at *5, 2014 WL 1762227 at *2. As indicated in Howard, the issue of disqualification of a beneficiary under F.S. 732.802 is brought before the probate court on a petition to determine beneficiaries of the estate. This petition may be filed by any “interested person.” Fla. Prob. R. 5.385. See §§ 2.2.B.1–2.2.B.4. There is no right to a jury trial in the proceeding. Howard. A beneficiary who was convicted of the murder of the testator should be stricken as an interested person and is no longer entitled to notice, even if the conviction is being appealed, as that person is treated as having predeceased the testator and therefore no longer has any beneficial interest in the estate. Cohen.

Florida’s slayer statutes were expanded in 2021 to cover abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or a disabled adult. See Ch. 2021-221, § 3, Laws of Fla. (creating F.S. 732.8031 under the Florida Probate Code) and Ch. 2021-221, § 4, Laws of Fla. (amending F.S. 736.1104 under the Florida Trust Code). Under these new provisions, “[a person] who [is] convicted in any state or foreign jurisdiction of abuse, neglect, exploitation, or aggravated manslaughter of an elderly person or a disabled adult, as those terms are defined in [F.S.] 825.101, for conduct against [the decedent] or another person on whose death such beneficiary’s interest depends” is rebuttably presumed not to be entitled to inherit from that decedent under the laws of intestacy or to take any part of the decedent’s estate or trust by any means. F.S. 732.8031, 736.1104(3). The part of the estate or trust to which the abuser, neglector, exploiter, or killer otherwise would have been entitled passes instead to those persons who would take as if the abuser, neglector, exploiter, or killer had predeceased the victim. Id. Nonprobate property is also included within the broad scope of the probate statute. See F.S. 732.8031(4) (“Any other property or interest acquired as a result of the abuse, neglect, exploitation, or manslaughter must be returned in accordance with this section.”). There are specific provisions that address the treatment of joint tenancies and bonds, life insurance, and other contractual arrangements impacted by abuse, neglect, exploitation, or manslaughter under the statute. See F.S. 732.8031(2)–(3). A final judgment of conviction for abuse, neglect, exploitation, or aggravated manslaughter of the decedent or other person creates a rebuttable presumption that the convicted person is not entitled to any benefits from or through the decedent. F.S. 732.8031, 736.1104(3). In the absence of a qualifying conviction, the court may determine by the greater weight of the evidence whether the decedent’s or other person’s death was caused by or contributed to by the abuser’s, neglector’s, exploiter’s, or killer’s conduct as defined in F.S. 825.102, 825.103, or 782.07(2) for purposes determining whether the statute applies to prevent the alleged abuser, neglector, exploiter, or killer from benefiting. F.S. 732.8031, 736.1104(3). However, this new form of slayer statute will “not apply if it can be proven by clear and convincing evidence that, after the conviction of abuse, neglect, or exploitation, the victim of the offense, if capacitated, ratifies an intent that the person so convicted” retain their inheritance, survivorship rights, trust

interest, or any other rights that might otherwise be removed by the statute “by executing a valid written instrument, sworn to and witnessed by two persons who would be competent as witnesses to a will, which expresses a specific intent to allow the convicted person to retain their inheritance, survivorship rights,” trust interest, or any other rights that might otherwise be removed by the statute. F.S. 732.8031(7), 736.1104(3)(c). See also § 4.11 of this manual. « Ch. 2 », « § 2.2 », • A », « 6 » 1 Litigation Under FL Probate Code § 2.2.A.6 (2022)

6. Aliens F.S. 732.1101 provides that “[a]liens shall have the same rights of inheritance as citizens.” An alien is a citizen or subject of a foreign country who has not been naturalized. « Ch. 2 », « § 2.2 », • A », « 7 • 1 Litigation Under FL Probate Code § 2.2.A.7 (2022)

7. Marriage « Ch. 2 », « § 2.2 », • A », « 7 •, • a » 1 Litigation Under FL Probate Code § 2.2.A.7.a (2022)

a. In General Determining the marital status of a deceased intestate is equally as important as establishing whether the decedent was survived by children or other issue. Marriage is valid only when entered into voluntarily by parties having the capacity to enter into such a contract. 25 FLA. JUR. 2d Family Law § 16; State ex rel. Foster v. Anders, 135 Fla. 59, 184 So. 515 (1938); Madison v. Robinson, 95 Fla. 321, 116 So. 31 (1928). It is well established that marriage is important as a social institution and is favored under the law. See Orr v. State, 129 Fla. 398, 176 So. 510 (1937). Public policy requires that a marriage be upheld as valid, if possible, and that its validity be presumed if the requirements for marriage are present. See McMichael v. McMichael, 158 Fla. 413, 28 So. 2d 692 (1947); Stewart v. Hampton, 506 So. 2d 70 (Fla. 5th DCA 1987). The presumption is not conclusive, however, and may be

overcome by contrary proof. Jones v. Jones, 119 Fla. 824, 161 So. 836 (1935), 104 A.L.R. 1. For example, a second husband was held not to be the surviving spouse of a woman in Capo v. Estate of Borges, 560 So. 2d 254 (Fla. 3d DCA 1990), because her prior marriage had not been dissolved by the time she was remarried, and no remarriage took place following the lawful dissolution. Florida law previously defined marriage as being between one man and one woman and prohibited recognition of same-sex marriages for any purpose. See F.S. 741.04(1) (2017) (former version of statute restricting issuance of marriage licenses to marriages where “one party is a male and the other party is a female”), 741.212 (prohibiting recognition of same-sex marriages for any purpose); Art. 1, § 27, Fla. Const. (“Inasmuch as marriage is the legal union of only one man and one woman as husband and wife, no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized.”). While F.S. 741.04(1) was amended in 2018 to remove its restriction on same-sex marriages, other provisions of Florida law are still being addressed by the Florida legislature and currently remain on the books. See Ch. 2018-81, § 1, Laws of Fla. However, it appears all but settled that state laws prohibiting or refusing to recognize same-sex marriages are unconstitutional and have been abrogated by recent decisions of the Supreme Court of United States. See Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015). See also Brenner v. Scott, 2016 U.S. Dist. LEXIS 91969, 2016 WL 3561754 (N.D. Fla. 2016) (declaring Florida’s ban on same-sex marriage, specifically Art. I, § 27, Fla. Const., F.S. 741.212, and former version F.S. 741.04(1), unconstitutional and noting that legislature’s choice not to pass legislation to bring Florida law into compliance does not alter state’s obligations to comply with Obergefell). « Ch. 2 », « § 2.2 », • A », « 7 •, « b » 1 Litigation Under FL Probate Code § 2.2.A.7.b (2022)

b. Statutory Requirements; Proof Of Marriage The requirements for the issuance of a Florida marriage license are set forth in F.S. 741.04. But see Pavan v. Smith, 137 S. Ct. 2075, 198 L. Ed. 2d 636 (2017) (state law denying same-sex couples same rights afforded to opposite-sex couples to be listed as parents of child conceived by artificial insemination unconstitutional); Brenner v. Scott, 2016 U.S. Dist. LEXIS

91969, 2016 WL 3561754 (N.D. Fla. 2016) (holding former version of F.S. 741.04(1) and other provisions of Florida law unconstitutional to extent same-sex marriage is prohibited and directing certain state officials to take no steps to enforce or apply such provisions). Those persons who are authorized to solemnize matrimony are detailed in F.S. 741.07. For marriages taking place in Florida, F.S. 741.09 requires the county court judge and the clerk of the circuit court to keep a correct record of all marriage licenses issued, and to enter on the record pertinent information concerning the ceremony. If for any reason there is no certificate of marriage available, the marriage may be proved by an affidavit before any officer authorized to administer oaths. The affidavit must be made by two competent witnesses who were present and saw the marriage ceremony performed, and it may be filed and recorded with the same force and effect as if a proper certificate had been issued and recorded. F.S. 741.10. In Hall v. Maal, 32 So. 3d 682 (Fla. 1st DCA 2010), the court held that a marital ceremony with a license obtained one year later, which was neither solemnized nor returned to the clerk of court, did not result in a legally cognizable marriage. « Ch. 2 », « § 2.2 », • A », « 7 •, « c » 1 Litigation Under FL Probate Code § 2.2.A.7.c (2022)

c. Common-Law Marriages Florida does not recognize common-law marriages entered into in this state after January 1, 1968. F.S. 741.211; Castetter v. Henderson, 113 So. 3d 153 (Fla. 5th DCA 2013) (no legal rights or duties flow from mere cohabitation under Florida law). Since “Florida does not recognize common law marriages or quasi-spouses. … Florida residents who do not take formal steps to insure disposition of their assets after death or the welfare of persons they love during their lifetimes, may create unfair and unjust situations for their survivors, which the courts have no power to remedy.” McLane v. Musick, 792 So. 2d 702, 704 (Fla. 5th DCA 2001). Common-law marriages entered into in Florida before January 2, 1968, are valid as long as they were entered into in good faith and in substantial compliance with the law. F.S. 741.211. Thus, a common-law spouse may be entitled to receive an intestate share of the other’s estate. No form of

ceremony is essential to a valid common-law marriage; an agreement between the parties by words of present assent to be husband and wife is sufficient. Duey v. Duey, 343 So. 2d 896 (Fla. 3d DCA 1977). When direct evidence of an agreement is not available, the agreement can be established by proof of cohabitation and repute. McBride v. McBride, 130 So. 2d 302 (Fla. 2d DCA 1961). However, it has been held that the existence of words of present assent is crucial in proving the existence of a common-law marriage. See Duey (even if all other requirements are met, validity of common-law marriage will not be upheld absent words of present assent). For a Florida common-law marriage to be recognized for purposes of intestate succession, the putative surviving spouse or other interested party would have to show that: the common-law marriage was entered into before January 2, 1968; there was proof of an agreement between the parties; there was mutual consent of the parties, which had to be words of present assent; the parties had the legal capacity to marry; and the parties continuously held themselves out to be married and established a reputation to that effect. For a general discussion of these necessary elements, see Carretta v. Carretta, 58 So. 2d 439 (Fla. 1952); In re Price’s Estate, 129 Fla. 467, 176 So. 492 (1937); Burke v. Burke, 447 So. 2d 944 (Fla. 3d DCA 1984). Testimony from collateral witnesses that a man and woman lived together and that their neighbors felt they were married is not sufficient, in and of itself, to establish a common-law marriage. In re Estate of Silverman, 163 So. 2d 321 (Fla. 3d DCA 1964). For elements of proof of a common-law marriage, items such as tax returns, property records, general repute in the community, church membership rolls, bills of sale, credit card applications, bank accounts, and all other means of ownership of property and modes of transacting business should be investigated. Although common-law marriages can no longer be entered into in

Florida, Florida courts will respect a common-law marriage that has been validly entered into in another state or country. Smith v. Anderson, 821 So. 2d 323 (Fla. 2d DCA 2002); American Airlines, Inc. v. Mejia, 766 So. 2d 305 (Fla. 4th DCA 2000); Compagnoni v. Compagnoni, 591 So. 2d 1080 (Fla. 3d DCA 1992); Anderson v. Anderson, 577 So. 2d 658 (Fla. 1st DCA 1991). « Ch. 2 », « § 2.2 », • A », « 7 •, « d » 1 Litigation Under FL Probate Code § 2.2.A.7.d (2022)

d. Effect Of Dissolution A valid marriage can be terminated only by death or dissolution. For the requirements as to dissolution of marriage under Florida law, see F.S. 61.001 et seq. See also FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar 14th ed. 2020). A marriage is considered terminated, and a person is no longer a surviving spouse, if a judgment dissolving the marriage becomes final before the testator’s death. Hirsch v. Hirsch, 519 So. 2d 1056 (Fla. 4th DCA 1988). If a party to a dissolution proceeding dies before entry of a final judgment of dissolution, the dissolution proceeding terminates with the death of the party and is dismissed without entry of a final judgment of dissolution. See, e.g., Merli v. Merli, 47 FLW D144 (Fla. 4th DCA 2022) (affirming order recognizing surviving spouse’s intestate rights and appointing surviving spouse as personal representative where surviving spouse and decedent were engaged in dissolution proceedings at time decedent died intestate). As a result, the death of a party to a dissolution proceedings leaves the surviving party in “ ‘[t]he legal position of one whose marriage was terminated by death, and not by a final judgment.’ ” Id. at *3, quoting Marlowe v. Brown, 944 So. 2d 1036, 1040 (Fla. 4th DCA 2006). The question may arise whether a judgment of dissolution is final when there is a motion for rehearing pending at the time of death. The Florida Supreme Court has held that a judgment of dissolution is not voided by the subsequent death of a party when any remaining issues properly raised on rehearing or appeal relate solely to matters collateral to the adjudication of dissolution. Barnett v. Barnett, 768 So. 2d 441 (Fla. 2000). The district courts of appeal had been split on this issue. The District Court of Appeal, Third District, held that a judgment is not final while a timely motion for rehearing remains pending. Johnson v. Feeney, 507 So. 2d 722 (Fla. 3d DCA 1987). The District Court of Appeal, First District, agreed, finding that so long as

there is additional judicial labor to be done on a collateral issue the order is not final even if the marriage is effectively terminated. Demont v. Demont, 24 So. 3d 699 (Fla. 1st DCA 2009). The District Court of Appeal, Fifth District, took a slightly different position, holding that a judgment of dissolution is final if the motion for rehearing relates solely to collateral matters such as property and does not challenge the validity of the dissolution. Reopelle v. Reopelle, 587 So. 2d 508 (Fla. 5th DCA 1991). Because the motion for rehearing filed by the spouse in Reopelle did not challenge the judgment insofar as it related to the dissolution of marriage, the judgment was recognized as valid for that purpose. Finally, the District Court of Appeal, Second District, sided with Reopelle, holding that an appellate court can disregard technical deficiencies so long as the intent to dissolve the marriage was clear from the actions of the lower court. Norris v. Norris, 28 So. 3d 953 (Fla. 2d DCA 2010). Under certain circumstances, a surviving spouse may be estopped from claiming as an intestate heir. This certainly has been the case in the areas of dower and elective share. For example, in In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997), the court held that Ouida Ray was estopped from electing against the estate of John Montanez as a surviving spouse, as a matter of law, after she had repudiated the decedent as her husband during his lifetime. Ray had separated from the decedent 30 years before his death. In addition, she had represented on an application for a marriage license to her second husband that she had divorced the decedent. The court held that, because Ray believed she was divorced from the decedent and spent many years acting as though she was no longer his wife, she was estopped from taking the elective share. If the decedent had executed a will containing a provision for a spouse and the marriage was dissolved before the decedent’s death, the will remains valid but is read as though the ex-spouse predeceased the testator. F.S. 732.507(2). Intestacy may result from the voided will provision. F.S. 732.101, 732.604. If a testator executes a will providing for his or her spouse and a divorce takes place, but the testator and the former spouse later remarry and live together continuously until the death of the testator, there is no reactivation of the will on the subsequent remarriage. In re Estate of Guess, 213 So. 2d 638 (Fla. 3d DCA 1968). However, the surviving spouse in this situation is considered to be a pretermitted spouse and may be entitled to an

intestate share under F.S. 732.102. Bauer v. Reese, 161 So. 2d 678 (Fla. 1st DCA 1964). A former spouse of a decedent who died on or before June 28, 2021, is entitled to inherit under a will which was executed prior to the marriage naming the spouse as a beneficiary. See Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018) (prior version of F.S. 732.507 expressly applied only to will executed during marriage). However, the Florida Legislature amended F.S. 732.507 and its Florida Trust Code counterpart, F.S. 736.1105, to provide that any provision of a will or revocable trust that affects the testator’s spouse is void upon the dissolution of the marriage of the testator and spouse, regardless of whether the marriage occurred before or after the execution of such will or revocable trust, and that the will or revocable trust is to be construed as if the former spouse died at the time of the dissolution of marriage. See Ch. 2021-183, §§ 2, 11, Laws of Fla. The practitioner should note that the operation of F.S. 732.507(2) and 736.1105 do not extend to non-probate and non-trust assets. However, in 2012, the Florida Legislature created F.S. 732.703 to address situations where a decedent has failed to remove their former spouse as the designated beneficiary of non-probate and non-trust assets, such as life insurance policies, employee benefit plans, and pay-on-death accounts. See F.S. 732.703(3) (specifying the types of assets governed by the statute). Subject to certain enumerated exceptions, F.S. 732.703(2) provides that a beneficiary designation made by a decedent in favor of their former spouse is void as of the time that the decedent’s marriage was judicially dissolved or declared invalid by court order prior to the decedent’s death, if the designation was made prior to the dissolution or court order. F.S. 732.703(2). In which case, the decedent’s interest in the asset passes as if the decedent’s former spouse predeceased the decedent. Id. F.S. 732.703 applies to all designations made by or on behalf of decedents dying on or after July 1, 2012, regardless of when the designation was made. F.S. 732.703(9). See also In re Proceeds of Jackson Nattional Life Insurance Co. Policy, 2016 U.S. Dist. LEXIS 203124, 2016 WL 6806359 (M.D. Fla. 2016) (application of F.S. 732.703 to pre-existing beneficiary designations for life insurance policies does not violate Contracts Clauses of U.S. or Florida constitutions; beneficiary designations are donative transactions that confer no contractual

rights on designated beneficiary, thus no contractual rights are impaired by F.S. 732.703). « Ch. 2 », « § 2.2 », • A », « 7 •, « e » 1 Litigation Under FL Probate Code § 2.2.A.7.e (2022)

e. Effect Of Annulment Upon the entry of a judgment of annulment on the basis that a marriage is invalid, the law treats the marriage as if it had never existed. Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932). The key distinguishing factor as it relates to the effect of an annulment versus a dissolution is that the grounds for the annulment exist as of the date of marriage, thus making the entire marriage void. See Chapter 17 of FLORIDA DISSOLUTION OF MARRIAGE (Fla. Bar 14th ed. 2022). Even if there is an annulment, however, a child born either before or after the annulment still would be a descendant of his or her father and mother if the parents participated in a marriage ceremony. F.S. 732.108(2)(a). Among the grounds for annulment are lack of consent, bigamy, incest, nonage, fraud, duress, mental incapacity, and, perhaps, physical incapacity. See generally FLORIDA DISSOLUTION OF MARRIAGE, supra at § 17.2. The heirs of a deceased spouse have standing to maintain a case to annul a marriage that is alleged to be void for lack of mental capacity. Kuehmsted. The challenge to the validity of a marriage may be maintained as part of the probate proceedings. Id. (challenge to marriage may be maintained in any proceeding when fact of marriage may be material). For a detailed discussion concerning the ability of heirs to challenge spousal rights of a spouse who is found to have procured a marriage by fraud, duress, or undue influence, see § 2.2.A.7.g. « Ch. 2 », « § 2.2 », • A », « 7 •, « f » 1 Litigation Under FL Probate Code § 2.2.A.7.f (2022)

f. Antenuptial And Postnuptial Agreements « Ch. 2 », « § 2.2 », • A », « 7 •, « f », • i » 1 Litigation Under FL Probate Code § 2.2.A.7.f.i (2022)

i. Effect Of Agreement

The right to claim an elective share or intestate share of an estate may be affected by a prenuptial, postnuptial, or property settlement agreement signed by the surviving spouse in the presence of two subscribing witnesses. F.S. 732.702. These agreements may also affect rights to homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, and may affect one’s status as a pretermitted spouse. Any waiver may be of an entire or a partial share. Id. Both prenuptial and postnuptial agreements are controlled by F.S. 732.702. « Ch. 2 », « § 2.2 », • A », « 7 •, « f », « ii • 1 Litigation Under FL Probate Code § 2.2.A.7.f.ii (2022)

ii. Requirements For Agreement For a postnuptial agreement, contract, or waiver to be valid, each spouse must make fair disclosure of his or her estate. No disclosure is required if the agreement is executed before marriage. F.S. 732.702(2); Ellis First National Bank of West Pasco v. Downing, 443 So. 2d 337 (Fla. 2d DCA 1983). The distinction made by the statute was upheld against constitutional challenge in Estate of Roberts, 388 So. 2d 216 (Fla. 1980). An agreement that is actually reached before marriage (without any disclosure of assets) is valid, even if it is reduced to writing and signed by the parties after the marriage takes place. Trapani v. Gagliardi, 502 So. 2d 957 (Fla. 2d DCA 1987). See, however, the concurring opinion in In re Estate of Spangenberg, 561 So. 2d 315 (Fla. 2d DCA 1990), which discusses an alternative construction of the statute. F.S. 732.702 was originally enacted in 1974 and became effective January 1, 1976. It superseded prior case law that required full disclosure of assets. Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962). See DRAFTING MARRIAGE CONTRACTS IN FLORIDA § 2.1.D (Fla. Bar 13th ed. 2021). The scope of the statute has been limited to probate proceedings. The validity of an antenuptial agreement in a probate proceeding is to be determined by the laws in effect at the time of the decedent’s death, not the date the agreement was signed. Estate of Sage v. Sage, 515 So. 2d 1324 (Fla. 2d DCA 1987). Because the statute does not require disclosure of assets for a prenuptial agreement, a misleading disclosure of assets does not invalidate the agreement. Foster v. Estate of Gomes, 27 So. 3d 145 (Fla. 5th DCA 2010).

“Nondisclosure, whether fraudulent or not, is precisely what the legislature intended to eliminate from consideration on the validity of antenuptial agreements.” Stregack v. Moldofsky, 474 So. 2d 206, 207 (Fla. 1985). However, the statute does not abolish the spouse’s right to sue to have an antenuptial agreement set aside (on grounds such as incapacity or duress), but merely eliminates one of the elements the court may consider in passing on the validity of the agreement. The fact that one party made a bad bargain is not a sufficient ground, by itself, to vacate or modify an antenuptial agreement. McNamara v. McNamara, 40 So. 3d 78 (Fla. 5th DCA 2010). F.S. 732.702 is part of the Florida Probate Code and thus is not applicable to antenuptial agreements in divorce proceedings. Evered v. Edsell, 464 So. 2d 1197 (Fla. 1985); Topper v. Stewart, 388 So. 2d 1270 (Fla. 3d DCA 1980) (pointing out in dicta that F.S. 732.702 is part of Probate Code and therefore would not be applicable to antenuptial agreements in dissolution of marriage actions). Disclosure is required for a prenuptial agreement to be recognized as binding in a dissolution of marriage proceeding. Weintraub v. Weintraub, 417 So. 2d 629 (Fla. 1982). Fair disclosure of assets is a statutory requisite for a valid postnuptial agreement, so the attorney must take care to document that the disclosure was made. An inadequate provision for the impecunious spouse raises a presumption of concealment or that the spouse lacked knowledge of the other spouse’s finances at the time the agreement was reached. McNamara. The proponent may rebut the presumption by showing full and frank disclosure of the nature, character, and value of the property to the challenging spouse or that the circumstances were such that the challenging spouse reasonably ought to have had such knowledge. Id. It would be advisable to have each party prepare a signed financial statement setting forth his or her property, and have the other party initial it to demonstrate that she or he reviewed it. The signed and initialed financial statements should be retained in the attorney’s files for safekeeping. A waiver of spousal rights such as the elective share, intestate share, pretermitted share, homestead, exempt property, and the family allowance must be in writing and signed by the waiving spouse. F.S. 732.702(1). As of January 1, 2002, the waiver must also be executed in the presence of two subscribing witnesses. Id. But see Williams-Paris v. Joseph, 329 So. 3d 775

(Fla. 4th DCA 2021) (court noting it did not analyze apparent failure to meet witness requirements under F.S. 732.702(1) because issue was not raised by parties). The requirement of witnesses applies only to contracts, agreements, or waivers signed by Florida residents after the effective date of the law. F.S. 732.702(1). In Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015), a surviving spouse was found to have waived her homestead rights by executing a warranty deed, splitting the property into two one-half tenancy in common interests, and the transferring her interest into her “Qualified Personal Residence Trust Agreement” even though she continued to claim a homestead exemption on the property for purposes of ad valorem taxation. “Unless the waiver provides to the contrary, a waiver of ‘all rights,’ or equivalent language, in the property or estate” of a spouse, or a complete property settlement entered into after or in anticipation of separation or dissolution of marriage, “is a waiver of all rights to elective share, intestate share, pretermitted share, homestead, exempt property, family allowance, and preference in appointment as personal representative of an intestate estate, by the waiving party” and a renunciation of all benefits the waiving party may have had under a will executed before the waiver. F.S. 732.702(1); WeisfeldLadd v. In re Estate of Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006) (statement of intent in prenuptial agreement that, in the event of death, all property was to pass to children of spouses from their prior marriages or according to their respective last wills was sufficient to waive elective share rights). But see Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011), citing Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007) (waiver of homestead exemption in unsecured agreement is unenforceable). What rights have been waived is to be determined through the plain meaning of the words, using the same principles of construction applicable to other contracts. Herpich v. Estate of Herpich, 994 So. 2d 1195 (Fla. 5th DCA 2008). In Steffens v. Evans, 70 So. 3d 758, 759 (Fla. 4th DCA 2011), a spouse was found to have waived her beneficial interest in her husband’s will by executing a postnuptial agreement that waived “all right, title, and interest” she had in her husband’s “separate property” by virtue of divorce or death. In practice, issues often arise as to which state’s law is to govern the validity of the agreement for a testator who died as a Florida resident but who executed the agreement while a resident in another state. F.S. 732.702(1) provides that any contract, agreement, or waiver executed by a nonresident of

Florida “is valid in this state if valid when executed under the laws of the state or country where it was executed, whether or not he or she is a Florida resident at the time of death.” If a marital agreement is found to be valid, the waiver of rights by the surviving spouse is deemed to be the functional equivalent of his or her death; the survivor is treated as having predeceased the decedent. City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991); Hulsh v. Hulsh, 431 So. 2d 658 (Fla. 3d DCA 1983). Compare Friscia v. Friscia, 161 So. 3d 513, 519 (Fla. 2d DCA 2014), quoting F.S. 732.702(1) (clause in marital agreement did not effectively waive rights of surviving spouse because it constituted a waiver of all homestead rights “ ‘in the property of the other’ ”; thus, rights at issue were not surviving spouse’s but rather decedent’s). An antenuptial or postnuptial agreement to make a will, to give a devise, not to make or revoke a will, or not to make or revoke a devise is not binding on the estate of the deceased spouse unless it is in writing and signed by the parties in the presence of two attesting witnesses. F.S. 732.701(1); In re Estate of Rosenstein, 326 So. 2d 239 (Fla. 3d DCA 1976). See also Sharps v. Sharps, 219 So. 2d 735, 737 (Fla. 3d DCA 1969) (antenuptial agreement by which one spouse agreed to leave other spouse certain property upon death was “contract to make a will”). Older case law held that a contract to make a will was not enforceable in Florida unless it complied with these statutory formalities. See First Gulf Beach Bank & Trust Co. v. Grubaugh, 330 So. 2d 205 (Fla. 2d DCA 1976); Donner v. Donner, 302 So. 2d 452 (Fla. 3d DCA 1974). However, F.S. 732.701(1) was amended in 2001 to provide that “[s]uch an agreement executed by a nonresident of Florida, either before or after this law takes effect, is valid in this state if valid when executed under the laws of the state or country where the agreement was executed, whether or not the agreeing party is a Florida resident at the time of death.” Ch. 2001226, § 55, Laws of Fla. An Ohio court applying F.S. 732.701 found that an improperly executed agreement to make a will or devise entered into by Florida residents could be ratified by a subsequent amendment to the agreement that complied with formalities required for agreements to will or devise under F.S. 732.701 and confirmed the initial invalid agreement. See Giffin v. Mull, 56 N.E.3d 270 (Ohio Ct. App. 2015).

Effective July 1, 2018, F.S. 732.7025 provides safe harbor language for the waiver by deed of descent and devise restrictions on spousal homestead rights under Article X of Section 4(c) of the Florida State Constitution. Ch. 2018-22, § 1, Laws of Fla. The statute provides that a spouse waives his or her rights as a surviving spouse with respect to the constitutional devise restrictions if the following or substantially similar language is included in a deed: “ ‘By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse form devising the homestead property described in this deed to someone other than me.’ ” F.S. 732.7025(1). This waiver language may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death, nor may it be considered a waiver of the restrictions against alienation by mortgage, sale, gift, or deed without the joinder of the owner’s spouse. F.S. 732.7025(2). For further requirements of antenuptial agreements see DRAFTING MARRIAGE CONTRACTS IN FLORIDA Chapter 2 (Fla. Bar 13th ed. 2021). See also §§ 4.6.A–4.6.B of this manual. « Ch. 2 », « § 2.2 », • A », « 7 •, « g • 1 Litigation Under FL Probate Code § 2.2.A.7.g (2022)

g. Effect Of Marriage Procured By Fraud, Duress, Or Undue Influence A surviving spouse who is found to have procured a marriage to a decedent through fraud, duress, or undue influence will not be entitled to certain default rights that accrue solely by virtue of the marriage or that person’s status as surviving spouse, including rights as an intestate heir. See F.S. 732.805. This statute has the effect of abrogating, at least in part, earlier Florida decisions, e.g., Hoffman v. Kohns, 385 So. 2d 1064 (Fla. 2d DCA 1980), which held that a marriage procured by undue influence is merely voidable and cannot be challenged after the death of a spouse. Under F.S. 732.805, the marriage remains intact but the spouse is not entitled to the benefits that inure solely by virtue of the marriage, including rights to an intestate share. A surviving spouse may raise as a defense the fact that the marriage was subsequently ratified, even though the marriage was originally procured through fraud, duress, or undue influence. F.S. 732.805(1). The statute

specifically references what is expected to be the most likely evidence of ratification: voluntary and knowledgeable cohabitation. The statute does not disturb spousal rights when the decedent and the spouse voluntarily cohabitated as husband and wife with full knowledge of the facts constituting the fraud, duress, or undue influence. Id. The share that would have passed to the spouse passes as if the spouse had predeceased the decedent. F.S. 732.805(2). The burden of proof is on the contestant to prove by a preponderance of the evidence that the marriage was procured by fraud, duress, or undue influence. F.S. 732.805(4). In the event that subsequent ratification of the marriage is raised in the defense, the surviving spouse has the burden of establishing such ratification by a preponderance of the evidence. Id. In a proceeding challenging spousal rights under F.S. 732.805, the court awards taxable costs as in chancery actions, including attorneys’ fees. F.S. 732.805(5). When awarding fees and costs, the court has discretion to direct all or part of the payment from a party’s interest in the estate, or to enter a judgment that may be satisfied from other property of the party. Id. Unless earlier barred by adjudication, estoppel, or a provision of the Florida Probate Code or Florida Probate Rules, an action challenging spousal rights must be commenced within four years after the decedent’s date of death. F.S. 732.805(8). « Ch. 2 », « § 2.2 », « B • 1 Litigation Under FL Probate Code § 2.2.B (2022)

B. Procedure For Determining Heirs « Ch. 2 », « § 2.2 », « B •, • 1 » 1 Litigation Under FL Probate Code § 2.2.B.1 (2022)

1. In General “Heirs” or “heirs at law” are those persons who are entitled to the estate of a decedent under the statutes of intestate succession. F.S. 731.201(20). Any part of a probate estate not effectively disposed of by will passes to the decedent’s heirs under those provisions of the Florida Probate Code dealing with intestate succession, F.S. 732.101–732.111. F.S. 732.101(1). The use of the term “heirs” in Article X, § 4(b), of the Florida

Constitution, which provides an exemption from forced sale of homestead property, was interpreted in Snyder v. Davis, 699 So. 2d 999 (Fla. 1997), to include any family member within the class of persons who could take under the intestacy statutes, not just those who would take at the death of the decedent. See § 8.3.C.2 of this manual. Proceedings to determine beneficiaries are conducted in an adversary fashion after formal notice and are governed by the Florida Rules of Civil Procedure. Fla. Prob. R. 5.025. « Ch. 2 », « § 2.2 », « B •, « 2 » 1 Litigation Under FL Probate Code § 2.2.B.2 (2022)

2. Petition For Determination Of Beneficiaries « Ch. 2 », « § 2.2 », « B •, « 2 », • a » 1 Litigation Under FL Probate Code § 2.2.B.2.a (2022)

a. Contents If there is uncertainty as to whom property will pass by intestate succession, any interested person may file a petition for determination of beneficiaries. Fla. Prob. R. 5.385(a); F.S. 733.105(1). The petition must contain (1) the names, residences, and post office addresses of all persons known by diligent inquiry to have an interest in the estate, except creditors of the decedent; (2) a statement of the nature of their respective interests; (3) the designation of those believed to be minors or incapacitated; and (4) a statement as to whether the petitioner believes there are or may be others who have claims against or interests in the estate. Rule 5.385(b). The clerk of the court should be asked to issue a notice of action under F.S. 49.08. The personal representative must give formal notice of the petition to all interested persons. Rule 5.025(d)(1). Proof of service should be made under Rule 5.040(a). See § 2.2.B.2.c. If there are interested persons who may be unknown to the personal representative, the personal representative should request in the petition for determination of beneficiaries, or by separate motion or petition, that a guardian ad litem be appointed. See Rule 5.120(a). No process need be served on the guardian, but the guardian should appear and defend as directed by the court. See Rule 5.120(b). Rule 5.120 sets out the procedural requirements for qualifying a guardian ad litem and the duties of the office. For a further

discussion of the role of the guardian ad litem, see §§ 2.2.B.4 and 8.5.D.1 of this manual. For a form for a petition for determination of beneficiaries, see PRACTICE UNDER FLORIDA PROBATE CODE § 11.6 (Fla. Bar 11th ed. 2022). « Ch. 2 », « § 2.2 », « B •, « 2 », « b » 1 Litigation Under FL Probate Code § 2.2.B.2.b (2022)

b. Who May File Any person interested in an estate proceeding may file a petition to determine heirs and beneficiaries. Fla. Prob. R. 5.385(a). A separate civil action can also be brought when an estate is not being administered. F.S. 733.105(3). For a discussion of methods of proof and practical methods of finding heirs, see §§ 11.2.A.1–11.2.A.6 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022). « Ch. 2 », « § 2.2 », « B •, « 2 », « c » 1 Litigation Under FL Probate Code § 2.2.B.2.c (2022)

c. Service Of Process Under F.S. 731.301(1) and Fla. Prob. R. 5.040, formal notice can be served as provided by Florida law for service of process, as permitted by the Florida Rules of Civil Procedure, or by a commercial delivery service requiring a signed receipt or by any form of mail requiring a signed receipt. The typical procedure is to serve by certified mail, return receipt requested. If service is by mail, proof of service should be made by verified statement of the person mailing service; a signed receipt or other evidence should be attached that would satisfy the court that delivery was either made to the addressee or refused by the addressee or the addressee’s agent. Rule 5.040(a) (4). If service is made under F.S. Chapter 48 or 49, proof of service must be made as provided in those statutes. Rule 5.040(a)(5). Service by mail or by a delivery service is complete on receipt of the notice. Rule 5.040(a)(4). Service of process on unknown heirs is authorized by F.S. 49.011(5), (12), and 49.021(1). If the interested person is a minor whose disabilities of nonage are not removed and who is not represented by counsel, service must be on the persons designated to accept service of process under F.S. Chapter 48. Rule

5.041. The failure to provide required notice to interested persons can be fatal to a final determination of heirs. In Wallace v. Watkins, 253 So. 3d 1204 (Fla. 5th DCA 2018), adopted children of the decedent sought to re-open an estate where summary administration had been granted 15 years earlier without notice to the adopted children as intestate heirs. The court held that the adopted children, who had not received notice, were not time-barred from asserting the claims and that F.S. 735.206(4)(g) provided a cause of action to “[a]ny heir or devisee … who was lawfully entitled to share in the estate but was not included in the order of summary administration.” « Ch. 2 », « § 2.2 », « B •, « 2 », « d » 1 Litigation Under FL Probate Code § 2.2.B.2.d (2022)

d. Default If there is no responsive pleading filed to the petition within the 20-day time period provided by Fla. Prob. R. 5.040, the petition may be considered ex parte (i.e., a default can be obtained). Rule 5.040(a)(2). The practitioner should note, however, that a default cannot be obtained unless a nonmilitary affidavit is filed. See 50 U.S.C. Appx. § 521; Fla. R. Civ. P. 1.500. In the case of unknown heirs or those who are known specifically by the personal representative or by one who can make the required affidavit, the proof of nonmilitary service will have to be established. For the procedure to obtain information on military status, see FLORIDA REAL PROPERTY LITIGATION §§ 5.3.D.1–5.3.D.6 (Fla. Bar 10th ed. 2021). « Ch. 2 », « § 2.2 », « B •, « 2 », « e • 1 Litigation Under FL Probate Code § 2.2.B.2.e (2022)

e. Waiver Notice may be waived by a guardian ad litem, administrator ad litem, guardian of the property, personal representative, trustee, or other fiduciary, or by any other interested person. F.S. 731.302. For the effect of a representative capacity and orders entered against a fiduciary and those on whom the orders may be binding, see F.S. 731.303. Under that statute, “[a]n unborn or unascertained person, or a minor or any other person under a legal disability, who is not otherwise represented is bound by an order to the extent that person’s interest is represented by another party having the same or

greater quality of interest in the proceeding.” F.S. 731.303(1)(c). « Ch. 2 », « § 2.2 », « B •, « 3 » 1 Litigation Under FL Probate Code § 2.2.B.3 (2022)

3. Evidentiary Considerations Under the Florida Evidence Code, statutory exceptions to the hearsay rule provide for the admissibility of certain facts contained in certificates of marriage or other sacraments, statements of fact in family bibles, charts, ring engravings, portraits, urns, crypts, tombstones, and the like. F.S. 90.803(12)– (13). A witness can also testify under the Florida Evidence Code as to reputation among members of a person’s family, associates, or persons in the community, regarding such items as a person’s birth, adoption, marriage, divorce, death, legitimacy, relationship, ancestry, or other similar aspects of his or her personal or family history. F.S. 90.803(19). The rationale for the trustworthiness of testimony such as reputation of marriage is based on the fact that the husband and wife know of the consequences that result from misrepresentation of their relationship. A similar rationale had been adopted earlier by the Florida Supreme Court in Cone v. Benjamin, 157 Fla. 800, 27 So. 2d 90 (1946), in which it approved the use of “pedigree” testimony. The court reasoned that people within a family could testify as to their history, tradition, and repute, even though the testimony might be based on hearsay, as these factors had been established before any controversy had arisen, and there was no motive to speak anything other than the truth. In other cases, pedigree could not be proved at all. Moreover, there frequently is a need for the admission of this type of testimony because often little is known about deceased ancestors except for what has been learned from immediate relatives. Id. « Ch. 2 », « § 2.2 », « B •, « 4 » 1 Litigation Under FL Probate Code § 2.2.B.4 (2022)

4. Guardian Ad Litem For Unknown Beneficiaries A guardian ad litem can be appointed to represent unknown heirs in connection with a petition for the determination of beneficiaries. See Fla. Prob. R. 5.120; F.S. 731.303(4).

The guardian ad litem can be appointed at any stage in the proceedings if the court determines that representation of the interests of unknown heirs would otherwise be inadequate. Rule 5.120(a); F.S. 731.303(4). As long as there is no conflict, the guardian ad litem may be appointed to represent several persons or interests. F.S. 731.303(4). After appointment, the guardian ad litem must file an oath to discharge his or her duties faithfully. Rule 5.120(a). It is not necessary to serve any process on guardians ad litem, but they should “appear and defend as directed by the court.” Id. For the requirements of a petition for appointment of guardian ad litem, see Rule 5.120(b). See § 8.5.D.2 of this manual for a form for the petition. Guardians ad litem are fiduciaries and are entitled to compensation for the reasonable value of their services. They have perhaps an even stronger duty than that which an ordinary guardian would have because guardians ad litem often do not know the identity of their clients. The specter of confrontation, at a later date, with an heir who was an “unknown” and whom a guardian represented, should reinforce the guardian’s resolve to represent the best interest of his or her clients. For a detailed discussion regarding guardians ad litem, see §§ 8.5.D.1– 8.5.D.4 of this manual. « Ch. 2 », « § 2.2 », « B •, « 5 • 1 Litigation Under FL Probate Code § 2.2.B.5 (2022)

5. Genealogical Tracing Services There are many genealogical tracing services throughout the country and in foreign jurisdictions that specialize in finding missing heirs who cannot be discovered through the efforts of the attorney or guardian ad litem. Generally, these tracing services receive a percentage of that which is paid to whomever they discover, by means of a contractual arrangement with the “discovered” heir. They often engage an attorney in the locality in which the estate administration is proceeding to represent the interests of those heirs they have found and to go forward with the proof as to their status and their right to a share of the estate. Tracing services often have their own investigators check the county records to ascertain those estates that are pending in which there may be a question of heirship. The investigators then may contact the attorney of

record for the estate to see if they can be of assistance. In many instances, genealogical tracing services provide a necessary service to the personal representative and the attorney, who may not be skilled in locating heirs, or who might not have the time or resources to devote to the effort. See §§ 11.2.A.5–11.2.A.6 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022).

« Ch. 2 », « § 2.3 » 1 Litigation Under FL Probate Code § 2.3 (2022)

§ 2.3. INHERITANCE RIGHTS « Ch. 2 », « § 2.3 », • A » 1 Litigation Under FL Probate Code § 2.3.A (2022)

A. In General Any part of the estate of a person that is not disposed of by will is controlled by the intestacy provisions of the Florida Probate Code, F.S. 732.101–732.111. F.S. 732.101(1). See also F.S. 731.1055 (“The validity and effect of a disposition, whether intestate or testate, of real property in this state shall be determined by Florida law.”). A testator may choose to dispose of only a portion of his or her estate by will, allowing the balance to descend under the laws of intestate succession. Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014). The rules governing intestate succession are discussed briefly in §§ 2.3.A–2.3.F. See also §§ 2.2.A.3–2.2.A.6. « Ch. 2 », « § 2.3 », « B » 1 Litigation Under FL Probate Code § 2.3.B (2022)

B. Share Of Spouse F.S. 732.102 provides for the share of the surviving spouse in an intestate estate. If there are no surviving descendants of the decedent, the spouse takes the entire estate. F.S. 732.102(1). However, if there are surviving descendants of the decedent, it must be determined whether they are all lineal descendants of the surviving spouse. If the decedent is survived by a spouse and descendants, all of whom were also descendants of the surviving spouse (e.g., children or grandchildren of the one marriage), and the spouse has no other descendant, the surviving spouse takes the entire intestate estate. F.S. 732.102(2). The share passing to the surviving spouse changed significantly under this scenario as part of the 2011 legislative session. Ch. 2011-183, § 2, Laws of Fla. Under prior law, the surviving spouse would have taken $60,000 plus one half of the balance of the intestate estate. F.S. 732.102 (2010). The 2011 legislative change recognized that, in most instances, when all lineal descendants of the spouses

are of the same marriage, spouses generally tend to leave most of their assets to the surviving spouse. The legislation is applicable to the estates of decedent’s dying on or after October 1, 2011. Ch. 2012-109, § 2, Laws of Fla. If there are surviving descendants of the decedent, one or more of whom are not the lineal descendants of the surviving spouse (e.g., children or grandchildren from a previous marriage), the surviving spouse takes one half of the intestate estate. F.S. 732.102(3). Likewise, if there are one or more descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, the surviving spouse receives one-half of the intestate estate. F.S. 732.102(4). In other words, if either spouse has children or more remote descendants that are not also descendants of the other spouse, the surviving spouse’s share is one-half of the intestate estate. The surviving spouse is also entitled to take a number of entitlements before the spouse’s share is computed from the remaining assets of the estate. The surviving spouse, for example, could take the maximum family allowance and personal property exemption as well as receive a life estate in any homestead property. In considering a spouse’s intestate share, it may be necessary to examine the grounds for the marriage, particularly if the marriage took place in a foreign jurisdiction. For example, in Cohen v. Shushan, 212 So. 3d 1113 (Fla. 2d DCA 2017), the District Court of Appeal, Second District, examined whether a “reputed spouse” under Israeli law is entitled to inheritance rights under Florida law. Although a “reputed spouse” is entitled to inheritance rights in Israel, the Second District noted that “[u]nder the law, one is either married or one is not.” Id. at 1122 n.8. Ultimately, the court held that the Israeli “reputed spouse” was not entitled to inheritance rights as a surviving spouse under F.S. 732.102. These entitlements are discussed in §§ 2.3.D–2.3.E and in Chapters 4 and 8 of this manual. « Ch. 2 », « § 2.3 », « C » 1 Litigation Under FL Probate Code § 2.3.C (2022)

C. Share Of Heirs Other Than Spouse

F.S. 732.103 controls the shares passing in intestacy to all heirs other than a surviving spouse. If there is no surviving spouse, the decedent’s descendants share the entire estate. F.S. 732.103(1). In the absence of a surviving spouse and descendants, the decedent’s property passes according to the following hierarchy: 1. To the decedent’s father and mother equally, or to the survivor of them. F.S. 732.103(2). 2. To the decedent’s brothers and sisters and their descendants, per stirpes. F.S. 732.103(3), 732.104. 3. If the decedent was not survived by descendants, parents, brothers and sisters, or descendants of brothers and sisters, the estate is divided into two distinct shares. One share goes to the maternal kindred and the other share goes to the paternal kindred in the following order: a. To the decedent’s grandparents equally, or to the survivor of them. F.S. 732.103(4)(a). b. To uncles and aunts and descendants of deceased uncles and aunts, per stirpes. F.S. 732.103(4)(b), 732.104. c. If there are no kindred on one side of the family who can take, the entire estate will pass through the other side of the family. F.S. 732.103(4)(c). 4. To the kindred of the last deceased spouse of the decedent. F.S. 732.103(5). 5. To the state, by escheat. F.S. 732.107. However, if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in F.S. 626.9543(3)(a), the descendants of the greatgrandparents are entitled to the estate. (This latter provision applied only to proceedings filed before December 31, 2004. F.S. 732.103(6).) Thus, subject to the “last deceased spouse” rule, there is generally no inheritance by persons more remotely related to the decedent than grandparents or descendants of grandparents. This is called the “laughing heir” rule. It eliminates inheritance by persons so remotely related to the decedent that they suffer no sense of loss, only gain, at the news of the

decedent’s death. The statutes should be studied carefully to determine the rights of specific claimants. See In re Estate of Faskowitz, 941 So. 2d 390 (Fla. 2d DCA 2006). See also the genealogical chart in § 2.9 below, and Chapter 11 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022). F.S. 732.104 provides that all intestate property passes per stirpes, whether to descendants or collateral heirs. A majority of jurisdictions allow property to pass per capita by representation, whereby the estate is initially divided into primary shares at the first generation level where the nearest successor is found. However, in Florida, distribution is “strict per stirpes,” meaning that Florida makes the division into primary shares at the first level of relationship to the decedent regardless of whether anyone is alive on that level. In re Estate of Davol, 100 So. 2d 188 (Fla. 3d DCA 1958). Thus, even though the decedent is survived by equally related takers, the estate will be divided into primary shares at the first level of relationship in common between the decedent and the heirs. See id. For example, in the case of descendants, this first level of relationship will be the decedent’s children, whereas with collaterals, the first level would be the closest common ancestor. « Ch. 2 », « § 2.3 », « D » 1 Litigation Under FL Probate Code § 2.3.D (2022)

D. Exempt Property The surviving spouse of a decedent who was domiciled in Florida at the time of death is entitled to certain “exempt property.” This exempt property right is in addition to those interests in the decedent’s estate to which the surviving spouse and children would be entitled by virtue of the decedent’s will, intestate succession, or statutory or constitutional entitlements such as protected homestead, the elective share, or the family allowance. F.S. 732.402(4). If there is no surviving spouse, the children of the decedent are entitled to the same exemptions. F.S. 732.402(1). “Exempt property” under F.S. 732.402(2) consists of (a) Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death.

(b) Two motor vehicles as defined in s. 316.003(21), which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. (c) All qualified tuition programs authorized by s. 529 of the Internal Revenue Code of 1986, as amended, including, but not limited to, the Florida Prepaid College Trust Fund advance payment contracts under s. 1009.98 and the Florida Prepaid College Trust Fund participation agreements under s. 1009.981. (d) All benefits paid pursuant to s. 112.1915. Property specifically or demonstratively devised is usually not included in exempt property. F.S. 732.402(5). See § 4.4.A of this manual. Exempt property has a priority over all creditors’ claims against the estate, except perfected security interests on any item of exempt property. F.S. 732.402(3). A petition for determination of exempt property must be filed by the person claiming the entitlement on or before the later of four months after service of the notice of administration or 40 days after the termination of any proceeding affecting any part of the estate subject to F.S. 732.402. F.S. 732.402(6). There is no need for administration of exempt property. F.S. 735.301(1); Fla. Prob. R. 5.420(b). The court has an inherent right to terminate an estate if at any time during the course of administration it appears that the estate consists of nothing more than homestead and exempt property. See F.S. 735.301(1). On the entry of an order of distribution of this type of estate to those persons entitled to receive it, and on the filing of receipts, the personal representative is entitled to discharge. See F.S. 733.901. See also Sims v. Barnard, 257 So. 3d 630 (Fla.1st DCA 2018) (absent finding of fraud by concealment, action filed two years after closure of probate case was barred res judicata and by statute barring action against personal representative following final discharge). The court will issue letters of authority as to the transfer of these assets

on proper application of an interested party either before or after commencement of administration. F.S. 735.301(2). Exempt property is discussed further in Chapter 4 of this manual. « Ch. 2 », « § 2.3 », « E » 1 Litigation Under FL Probate Code § 2.3.E (2022)

E. Family Allowance A family allowance of up to $18,000 is allowed to a surviving spouse and lineal heirs by F.S. 732.403. The purpose of the family allowance is to maintain the persons dependent on the decedent during the period of administration of the estate until full distribution can be made. The allowance has a Class 5 priority under F.S. 733.707. It is not chargeable against the share otherwise passing to the surviving spouse or dependent lineal heirs by intestate succession, elective share, or will, unless the will provides otherwise. F.S. 732.403. The concept is discussed in general in PRACTICE UNDER FLORIDA PROBATE CODE §§ 8.5.A–8.5.D (Fla. Bar 11th ed. 2022). All persons claiming entitlement to the family allowance are interested persons entitled to notice. See F.S. 731.201(23). The term “lineal heirs” is defined in F.S. 732.403 to include lineal ascendants as well as descendants, whom the decedent was supporting or was obligated to support. A petition for the family allowance should be considered an emergency situation and should be disposed of without prolonged litigation. In the absence of a clear abuse of judicial discretion, a lower court’s decision concerning the granting or denial of the family allowance will be affirmed. Levine v. Feuer, 152 So. 2d 784, 787 (Fla. 3d DCA 1963) (“appellate court will not reverse such a decision unless it is without support in the evidence or is against the manifest weight of the evidence”) See also Youngelson v. Estate of Youngelson, 114 So. 2d 642 (Fla. 3d DCA 1959) (abuse of discretion was not shown, particularly because need of widow was not proved). A surviving spouse and qualified lineal descendants are entitled to a family allowance without regard to the necessity of the allowance. Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005); DeSmidt v. DeSmidt, 563 So. 2d 193 (Fla. 2d DCA 1990). In petitioning for the allowance, however, the reasonableness of the allowance should be shown. Id.

To determine what would be a reasonable allowance, the court in its discretion should consider the standard of living of the dependent, other means of support (such as a trust), life insurance benefits, earning capacity, and wages that the decedent had been receiving. The amounts actually being contributed toward the support of the dependents should also be examined. DeSmidt. An illegitimate child of the decedent who claims a share of the family allowance would not be considered to be a descendent of the decedent father, and therefore would not be entitled to a share of the family allowance coming from the father’s estate, unless paternity had been established under F.S. 732.108(2). See § 2.2.A.1.a. A marital agreement waiving all rights against the spouse’s estate constitutes a waiver of a claim for family allowance. F.S. 732.702(1); Estate of Sage v. Sage, 515 So. 2d 1324 (Fla. 2d DCA 1987). For a further discussion of the concept of the family allowance, see In re Estate of Anderson, 149 So. 2d 65 (Fla. 2d DCA 1963), and §§ 4.5.A–4.5.B of this manual. « Ch. 2 », « § 2.3 », « F • 1 Litigation Under FL Probate Code § 2.3.F (2022)

F. Determination Of Lineal And Collateral Heirs It is imperative in a study of intestate succession to understand whether an heir has a lineal or collateral relationship with the decedent. “Lineal” means “in a straight line” and denotes relationships either ascending or descending from the decedent, such as the relationships of grandparent and grandchild. The term “collateral” refers to relationships at least one “line” removed, and includes relatives such as brothers and sisters, aunts, uncles, nephews, nieces, and cousins. The common relative is the person from whom the collateral relationship of the deceased and the claimant is traced. Only collaterals can be half bloods to the decedent. See § 2.2.A.4. Whether one is related collaterally or lineally to a decedent is also important in considering the appointment of a personal representative, as discussed in § 2.4. Before July 1, 2007, the terms “collateral heir” and “descendant” were not defined in the Florida Probate Code. As a result, there was confusion because the term “descendant” was often interchanged with the term “lineal

descendant” in multiple probate statutes. Furthermore, the distinction between “collateral heir” and “lineal descendant” resulted in inconsistent application by practitioners with unintended results. As of July 1, 2007, a “collateral heir” is defined as an heir who is a descendant of a common ancestor, excluding the decedent’s own descendants and ancestors. F.S. 731.201(6). “Descendant” is defined as “a person in any generational level down the applicable individual’s descending line and includes children, grandchildren, and more remote descendants.” F.S. 731.201(9). The term is synonymous with the terms “lineal descendant” and “issue” but excludes collateral heir. Id. As part of the legislation effectuating this change, several sections of the Florida Probate Code were amended to delete the word “lineal” where it appeared immediately before the word “descendant.” See Ch. 2007-74, Laws of Fla. A graphical representation of family relationships can be found in the chart in § 2.9.

« Ch. 2 », « § 2.4 » 1 Litigation Under FL Probate Code § 2.4 (2022)

§

2.4. APPOINTMENT REPRESENTATIVE

OF

PERSONAL

The “personal representative” is defined as “the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor.” F.S. 731.201(28). Preferences in appointment of a personal representative are set forth in F.S. 733.301. These preferences are determined as of the time of the appointment of the personal representative. In re Estate of Fisher, 503 So. 2d 962 (Fla. 1st DCA 1987). In intestate estates, the surviving spouse is given first priority, followed by the person selected by a majority in interest of the heirs. Third priority is accorded to the heir nearest in degree. If more than one applies, the court may select the one best qualified for the office. If no one qualifies or no application is made, the court may appoint the personal representative under F.S. 733.301(3). See also Senopoulos v. Senopoulos, 253 So. 3d 1228 (Fla. 1st DCA 2018), in which the District Court of Appeal, First District, reversed an order appointing a decedent’s father as personal representative instead of the surviving spouse. The First District held that it was error to depart from the order of priority set forth in F.S. 733.301 absent a finding of lack of fitness to serve or other explanation of the court’s exercise of discretion. A natural parent does not have the power to select a personal representative on behalf of their natural children unless they are properly appointed as guardian of the property. Long v. Willis, 100 So. 3d 4 (Fla. 2d DCA 2011). However, a natural parent may have standing to file an objection to the qualifications of the nominated personal representative on behalf of a minor child. Id. The person selected and entitled to preference must also be qualified under F.S. 733.302, 733.303, and 733.304. F.S. 733.302 provides that, subject to certain limitations, any person who is sui juris and who is a

resident of Florida at the time of the decedent’s death is qualified to act as the domiciliary personal representative. A person who has been convicted of a felony or who “[h]as been convicted in any state or foreign jurisdiction of abuse, neglect, or exploitation of an elderly person or a disabled adult, as those terms are defined in s. 825.101,” is not qualified to act as personal representative. F.S. 733.303(1)(a), (1)(b). See also In re Estate of Butler, 189 So. 3d 1050 (Fla. 4th DCA 2016) (affirming denial of alleged sole heir’s petition for appointment as personal representative where petitioner had been convicted of felony). A person who is not domiciled in Florida cannot qualify as personal representative unless the person is: (1) A legally adopted child or adoptive parent of the decedent; (2) Related by lineal consanguinity to the decedent; (3) A spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person; or (4) The spouse of a person otherwise qualified under this section. F.S. 733.304. F.S. 733.302 and 733.304, which prohibit nonresidents from qualifying as personal representatives, have been upheld as constitutional. In re Estate of Greenberg, 390 So. 2d 40 (Fla. 1980). With regard to the law governing proceedings commenced prior to July 1, 2015, the Florida Supreme Court has held that objections to the qualifications of a personal representative are barred unless they are filed within the threemonth filing deadline of F.S. 733.212(3), “except where fraud, misrepresentation, or misconduct with regard to the qualification is not apparent on the face of the petition or discovered within the statutory time frame.” Hill v. Davis, 70 So. 3d 572, 573–574 (Fla. 2011). The Hill decision resolved a conflict in the district courts of appeal concerning whether a beneficiary, who has failed to object to the qualifications of a personal representative within three months after receiving notice of administration, is time barred from filing an action to remove the personal representative as unqualified under F.S. 733.212. Compare Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004), holding that beneficiaries may seek to remove an

unqualified personal representative even if they failed to object within the three-month time frame set forth in F.S. 733.212, and Hill v. Davis, 31 So. 3d 921, 923 (Fla. 1st DCA 2010), holding that an objection to qualification filed outside the three-month time frame is barred, and specifically disagreeing “with the sweeping holding in Angelus because it effectively renders part of section 733.212(3) meaningless.” For proceedings commenced after July 1, 2015, the “qualifications of the personal representative” has been removed from F.S. 733.212(2)(c), (3), and 733.2123 as a matter that must be objected to within the statutory limitations periods. Ch. 2015-27, §§ 2, 3, Laws of Fla. F.S. 733.3101(1) was also amended to require a personal representative to resign immediately if the personal representative knows that they were not qualified to act at the time of their appointment. Ch. 2015-27, § 4, Laws of Fla. When a personal representative becomes unqualified to serve during the administration of the estate, F.S. 733.3101(2) now requires that the personal representative promptly file and serve notice upon the interested persons stating the reasons and that an interested person may petition to remove them as personal representative. Id. Under F.S. 733.3101(3), if removed, a personal representative who fails to comply with F.S. 733.3101(1) and (2) is personally liable for attorney fees and costs incurred in a removal proceeding even if the personal representative did not know, but should have known of facts that would have required them to resign or file and serve notice of their disqualification. Id. See also Fla. Prob. R. 5.310. All corporate entities are prohibited from acting as personal representatives except (1) trust companies incorporated under Florida law; (2) state banks or state savings associations authorized and qualified to exercise fiduciary powers in Florida; and (3) national banks or federal savings and loan associations authorized and qualified to exercise fiduciary powers in Florida. F.S. 660.41(4), 733.305(1); In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997). The person entitled to preference in appointment as personal representative is required to be appointed unless the court finds the nominated personal representative to be disqualified. Stalley v. Williford, 50 So. 3d 680 (Fla. 2d DCA 2010). The court has a limited area of discretion within which it may refuse to appoint someone whom it determines not to be

qualified, even if no element is present that falls within the stated list of disqualifications in the statutes. In re Estate of Miller, 568 So. 2d 487 (Fla. 1st DCA 1990); Pontrello v. Estate of Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988). In both Miller and Pontrello the court held that limited discretion may exist when unforeseen circumstances occur that clearly would have changed the testator’s mind had he or she been aware of them and had a reasonable opportunity to act. See Garcia v. Morrow, 954 So. 2d 656, 658 (Fla. 3d DCA 2007) (“party having preference, and not otherwise disqualified by the statute, does not, however, have an absolute right to appointment”); Schleider v. Estate of Schleider, 770 So. 2d 1252, 1254 (Fla. 4th DCA 2000) (“totality of the circumstances may rise to a level that allows the trial court to exercise its discretion in refusing to appoint the personal representative named in the will”); In re Estate of Snyder, 333 So. 2d 519 (Fla. 2d DCA 1976), 84 A.L.R. 3d 703 (court is not required to appoint person not disqualified by statute to serve in intestate estate if there is evidence that person is not qualified to serve as fiduciary by reason of lack of character, ability, or experience). See also Boyles v. Jimenez, 330 So. 3d 953 (Fla. 4th DCA 2021); In re Estate of Maxcy, 240 So. 2d 93 (Fla. 2d DCA 1970). But see McCormick v. McCormick, 991 So. 2d 437 (Fla. 1st DCA 2008) (although letters of administration had already been issued in apparently intestate estate, on admission of later-discovered will, nominated personal representative is entitled to preference in appointment); Hernandez v. Hernandez, 946 So. 2d 124 (Fla. 5th DCA 2007) (testator’s personal representative selection is afforded great deference; dispute between beneficiaries, without more, did not constitute exceptional circumstances to justify refusal to appoint personal representative named in will); Werner v. Estate of McCloskey, 943 So. 2d 1007 (Fla. 1st DCA 2006) (trial court erred in refusing to appoint personal representative on basis of alleged conflict of interest). When the statutorily preferred person is not appointed, the record must show that the preferred person is not fit to serve as personal representative. Bowdoin v. Rinnier, 81 So. 3d 582 (Fla. 2d DCA 2012). See also Boyles (no abuse of discretion in finding disbarred attorney and nominated personal representative unfit to serve and nominated successor personal representative not qualified where the estate would be locked in endless, unnecessary, litigation that would impeded administration if the nominated successor personal representative were appointed); DeVaughn v. DeVaughn, 840 So. 2d 1128, 1133 (Fla. 5th DCA 2003) (“if the statutorily preferred person is not appointed, the record

must show that the person is not fit to be appointed”). A creditor may petition for letters of administration. Gomez v. Fradin, 199 So. 3d 554 (Fla. 4th DCA 2016). If that occurs, service should be made on the next of kin by formal notice under Fla. Prob. R. 5.040. When letters are issued to one in an adversary position, such as a creditor, the use of an administrator ad litem will likely become necessary. F.S. 733.308; Estate of Bacon v. Bacon, 573 So. 2d 1035 (Fla. 3d DCA 1991). It must be remembered that the personal representative is responsible not only to the beneficiaries but also to the taxing authorities and to all of the creditors. There is some authority for holding that an administrator cannot be an attorney for creditors. Knox v. Spratt, 19 Fla. 817 (1883). For a discussion as to preference in appointment and procedures in qualifying as a personal representative, see Chapter 5 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022).

« Ch. 2 », « § 2.5 » 1 Litigation Under FL Probate Code § 2.5 (2022)

§

2.5. DISCOVERY OF WILL AFTER COMMENCEMENT OF ADMINISTRATION

If a valid will is discovered after intestate administration has been initiated and is proceeding, any interested person may offer the will for probate. F.S. 733.208. The proceedings are similar to those for revocation of probate. See F.S. 733.109. A later-discovered will may not be offered for probate after the administration of the estate has been completed and the personal representative has been discharged. F.S. 733.208, 733.903; In re Estate of Killinger, 448 So. 2d 1187 (Fla. 2d DCA 1984). If a will is admitted to probate after the appointment of a personal representative based on intestacy or a prior will, the prior letters of administration must be revoked and new letters issued. F.S. 733.301(5). Preference in appointment would be redetermined at that time. McCormick v. McCormick, 991 So. 2d 437 (Fla. 1st DCA 2008); Fouraker v. Carter, 507 So. 2d 749 (Fla. 5th DCA 1987). The discovery of a will and issuance of letters of administration after the appointment of a personal representative does not render actions properly taken pursuant to the letters of administration issued to the prior personal representative void; they are merely voidable. In re Estate of Williamson, 95 So. 2d 244 (Fla. 1957), 65 A.L.R. 2d 1195 See also Lehman v. Lucom, 78 So. 3d 592 (Fla. 4th DCA 2012) (improper payments by prior personal representative are subject to challenge). But see Jensen v. Estate of Gambidilla, 896 So. 2d 917 (Fla. 4th DCA 2005). A personal representative removed for any reason must file a final accounting of his or her administration of the estate within 30 days after removal unless the time is extended for good cause. F.S. 733.508; Fla. Prob. R. 5.440(b). Notice of proceedings for the removal of a personal representative when there is an after-discovered will must be given to the personal representative and all interested persons by formal notice. Rules 5.025(a), (d). The proponent of the will should petition the court to probate the will, ask for the

issuance of letters of administration, and seek relief by a petition for removal of the personal representative. See F.S. 733.109(1). A personal representative who is removed must, immediately after removal or within such time as set by the court, deliver all assets, papers, property, records, and documents concerning the estate to the successor personal representative. F.S. 733.509; Rule 5.440(c). If the documents are not delivered, the removed personal representative is subject to contempt proceedings. Rule 5.440(d); Jensen. See § 9.3.M of this manual. If a lawsuit is instituted against the former personal representative, the bond should be joined in the lawsuit in the name of the Governor of the State of Florida. The surety on the bond is not released until the removed personal representative has complied with all orders issued by the court. Under F.S. 733.405(4), the surety continues to be liable for all acts until discharged. Once the newly qualified personal representative has designated a resident agent and posted any required bond, the personal representative is entitled to letters of administration.

« Ch. 2 », « § 2.6 » 1 Litigation Under FL Probate Code § 2.6 (2022)

§ 2.6. RIGHT TO POSSESSION OF PROPERTY Under F.S. 732.101(2), it is the event of the decedent’s death that vests the heirs’ right to intestate property. That right, however, is subject to the right of the personal representative to possession of the estate under F.S. 733.607. See In re Estate of Slater, 437 So. 2d 1110 (Fla. 5th DCA 1983). There is no distinction in Florida between vesting in realty or personalty. The personal representative has the right to possess all estate property, except for protected homestead property. F.S. 733.607(1). To be entitled to possession of property under the statute, the personal representative must prove to the court that the property is, in fact, property of the decedent’s estate. In re Estate of Grant, 558 So. 2d 208 (Fla. 2d DCA 1990). The possession of estate property may be left with or surrendered to the person presumptively entitled to it unless possession of the property by the personal representative is necessary for purposes of administration of the estate. F.S. 733.607(1). The personal representative’s request for delivery of any property “is conclusive evidence that the possession of the property by the personal representative is necessary for the purposes of administration.” Id. This “conclusive” evidence may be used in any action against the beneficiary for possession of the property in question. The only exception to the personal representative’s right of possession is protected homestead. Id. Under F.S. 733.608(1), all real and personal property, except protected homestead, within Florida, including rents, income, issues, and profits therefrom, is to be considered an asset in the hands of the personal representative to be used (a) For the payment of devises, family allowance, elective share, estate and inheritance taxes, claims, charges, and expenses of the administration and obligations of the decedent’s estate. (b) To enforce contribution and equalize advancement. (c) For distribution.

Subject to administration of the estate, title to real property descends directly to the heirs on the death of the intestate decedent. See In re Estate of Slater. It has been stated that a deed from the personal representative to the estate beneficiaries does not convey title to the property to the beneficiaries, because title passed to them on the decedent’s death under F.S. 732.101. The deed merely indicates the personal representative’s release of physical custody over the property. As such, any defect in the personal representative’s deed to the beneficiaries is immaterial. Title Not Transferred by Personal Representative’s Deed to Beneficiaries, 19 The Fund Concept 25 (March 1987); Title Note 2.08.02, Conveyance by Personal Representative to Heir or Devisee Unnecessary—Identification of Heirs, FUND TITLE NOTES (Attorneys’ Title Fund Services, LLC 2009). See Standard 5.1, Title Derived Through Intestate Decedent, Uniform Title Standards, published by the Real Property, Probate and Trust Law Section of The Florida Bar. Title to personal property, however, vests in the decedent’s personal representative. See Jones v. Federal Farm Mortg. Corp., 132 Fla. 807, 182 So. 226 (1938); Mills v. Hamilton, 121 Fla. 435, 163 So. 857 (1935); Depriest v. Greeson, 213 So. 3d 1022 (Fla. 1st DCA 2017); Matthews v. Matthews, 177 So. 2d 497 (Fla. 2d DCA 1965), 28 A.L.R. 3d 1128. Before the death of the decedent, heirs-at-law have nothing more than an expectancy that they may inherit. As a result, a quitclaim deed that conveyed “all interest” in a parcel of real property was held not to convey inheritance rights to the property in the absence of express language in the deed indicating an intent to convey future rights to the property. Layne v. Layne, 74 So. 3d 161 (Fla. 1st DCA 2011). If property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who has an interest in the property, the personal representative may take possession of the property to preserve, insure, and protect it pending a determination of its homestead status, F.S. 733.608(2), and should file a notice of that act, Fla. Prob. R. 5.404. If the personal representative takes possession of the property, he or she may collect any rents and revenues for the account of the heir but has no duty to make the property productive. F.S. 733.608(2). If the personal representative expends funds or incurs obligations to preserve, maintain, insure, or protect homestead property, the personal representative is entitled to a lien on the property and its revenues to secure repayment. F.S.

733.608(3) (setting forth procedures for securing and enforcing the lien). See § 8.2.E of this manual for a further discussion of the personal representative’s lien.

« Ch. 2 », « § 2.7 » 1 Litigation Under FL Probate Code § 2.7 (2022)

§ 2.7. AGREEMENTS AS TO SUCCESSION F.S. 733.815 provides that there may be agreements between interested persons as to how distribution is to be made from an estate and in what amounts, so as to alter the interests or shares to which they would be entitled under the will or the laws of intestate succession. Pitcher v. Waldo, 159 So. 3d 422 (Fla. 4th DCA 2015) (F.S. 733.815 only applies to agreements regarding property from estate and is inapplicable to agreement to divide award to survivors under Florida Wrongful Death Act, as survivors’ claims do not become part of decedent’s estate). Any contract of this type, however, is subject to the rights of creditors and taxing authorities, and must be executed by the parties to the contract. F.S. 733.815. Such contracts are often used as a means of settling probate litigation among estate beneficiaries and are highly favored under Florida law. See Pierce v. Pierce, 128 So. 3d 204 (Fla.1st DCA 2013) (noting that F.S. 733.815 embraces Florida’s preference for settlements and the high standard for disregarding a settlement agreement). The personal representative is bound by the contract, subject to his or her other duties as personal representative to pay taxes and estate debts and the general obligation to administer the estate equitably for the benefit of all interested parties. F.S. 733.815. The personal representative’s failure to abide by the contract may constitute a breach of fiduciary duty. Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949 (Fla. 3d DCA 1984). Trustees of testamentary trusts also are permitted to enter into distribution agreements, as they are treated as interested persons for the purposes of the statute. The statute also states, however, that nothing in the statute “relieves trustees of any duties owed to beneficiaries of trusts.” F.S. 733.815. A contract entered into under F.S. 733.815 that alters the disposition of real property should meet the requirements for the execution of a deed and contain words conveying particularly described property. Title Note 2.03.05, Agreements Among Distributees—Sec. 733.815, F.S., FUND TITLE NOTES; see § 2.6. See also Mullins v. Mullins, 274 So. 3d 513, 517 (Fla. 5th DCA 2019),

quoting Clifton v. Clifton, 553 So. 2d 192, 194 (Fla. 5th DCA 1989) (“While ‘[h]eirs and beneficiaries may formally agree to alter their prescribed interests in an estate, … such an agreement must be in writing and comply with section 733.815, Florida Statutes.’ ”). The practitioner should be aware that agreements as to distribution under F.S. 733.815 carry possible gift tax consequences. Effective July 1, 2018, F.S. 732.7025 provides safe harbor language for the waiver by deed of descent and devise restrictions on spousal homestead rights under Article X, § 4(c), Florida Constitution. Ch. 2018-22, § 1, Laws of Fla. The statute provides that a spouse waives his or her rights as a surviving spouse with respect to the constitutional devise restrictions if the following or substantially similar language is included in a deed: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse form devising the homestead property described in this deed to someone other than me.” F.S. 735.7025(1). This waiver language may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death, nor may it be considered a waiver of the restrictions against alienation by mortgage, sale, gift, or deed without the joinder of the owner’s spouse. F.S. 732.7025(2).

« Ch. 2 », « § 2.8 » 1 Litigation Under FL Probate Code § 2.8 (2022)

§ 2.8. ADVANCEMENTS Property that a decedent gave during life to an heir may be treated as an advancement against the heir’s share. F.S. 733.806. Lifetime gifts are treated as advancements only if they are declared advancements in a contemporaneous writing by the decedent or if they are acknowledged as advancements at any time in writing by the heir. Id. If an advancement is found, valuation is made as of the time the heir came into possession or enjoyment of the property, or at the time of the death of the decedent, whichever occurs first. Id. The value is to be determined by the facts and circumstances under each case. Livingston v. Crickenberger, 141 So. 2d 794 (Fla. 1st DCA 1962). If the recipient of the property does not survive the decedent, the property is not to be taken into account in computing the intestate share to be received by the recipient’s descendants unless the declaration or acknowledgment provides otherwise. F.S. 733.806. If the court finds that there has been an advancement, the value of the advancement is required to be brought into the “hotchpot” and charged against the beneficiary’s share of the estate. If the advancement exceeds the beneficiary’s intestate share or there is a refusal to bring it into the hotchpot, the beneficiary may be excluded from participating in the distribution of the decedent’s estate. Livingston. This issue would be brought before the court through the filing of a petition to determine beneficiaries by the personal representative or an interested person. See §§ 2.2.B.2.a–2.2.B.5.

« Ch. 2 », « § 2.9 • 1 Litigation Under FL Probate Code § 2.9 (2022)

§ 2.9. GENEALOGICAL CHART

Footnotes — Chapter 2: *

J.D. with honors, 1988, University of Florida. Mr. Simon is a member of The Florida Bar and is a Fellow of the American College of Trust and Estate Counsel (ACTEC). He served as chair of the ACTEC Fiduciary Litigation Committee from 2012–2015. He is a shareholder in Gunster, Yoakley & Stewart, P.A., in West Palm Beach. **

J.D. with high honors, 1996, University of Florida. Mr. Hennessey is a member of The Florida

Bar and the past Chair of the Real Property, Probate and Trust Law Section of The Florida Bar and both the Probate and Trust Litigation and Legislation committees of the RPPTL Section. He is a Fellow of the American College of Trust and Estate Counsel and a shareholder in Gunster, Yoakley & Stewart, P.A., in West Palm Beach. ***

J.D. with honors, 2001, George Washington University. Mr. Moran is a member of The Florida Bar and a Fellow of the American College of Trust and Estate Counsel. He is the Probate & Trust Law Division Director of the Real Property, Probate and Trust Law Section of The Florida Bar. He is also a past chair of both the RPPTL Section’s Probate Law and Procedure Committee and the Florida Probate Rules Committee. Mr. Moran is a shareholder in Gunster, Yoakley & Stewart, P.A., in West Palm Beach. ****

J.D., 2010, University of Mississippi. Mr. Evert is a member of The Florida Bar and the Real Property, Probate, and Trust Law Section of The Florida Bar. He is the past chair of the Probate and Guardianship Practice Committee of the Palm Beach County Bar Association. Mr. Evert is a shareholder in Gunster, Yoakley & Stewart, P.A. in West Palm Beach.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 3 » 1 Litigation Under FL Probate Code Ch. 3 (2022)

Chapter 3 WILL AND TRUST CONTESTS GEORGE F. WILSEY* STEVEN M. WILSEY** Contents § 3.1. SCOPE § 3.2. WILL CONTESTS A. Grounds 1. In General 2. Execution Or Qualification a. In General b. Age c. Statutory Formalities d. Effect Of Self-Proving Will 3. Statutory Grounds a. Incompetency And Insane Delusion b. Fraud, Duress, Undue Influence, Or Mistake c. Gifts 4. Revocation a. By Writing b. By Act 5. Partial Revocation a. General Considerations b. Effect 6. Special Grounds a. Charitable Devises b. Rule Against Perpetuities

c. Pretermitted Heirs d. Public Policy B. Standing To Contest 1. Interest In Estate a. Heir At Law b. Beneficiary Or Personal Representative Under Former Will c. Contractual Rights 2. Filing Requirements a. Notice Of Administration b. Probate In Foreign State 3. Renunciation Of Benefits a. Applicability b. Effect 4. In Terrorem Clause 5. Dependent Relative Revocation 6. Caveat C. Attorney’s Relationship With Client 1. General Considerations 2. Contingent Fee Arrangements 3. Fees Set By Court 4. Representing One Of Multiple Interested Parties 5. Conflicts Of Interest 6. Malpractice D. Pleadings 1. Petition For Revocation Of Probate a. In General b. Form For Petition c. Service Of Petition i. In General ii. Parties iii. Methods Of Service 2. Reply To Petition a. Standard Grounds

b. Special Grounds c. Attack On Standing Of Petitioner 3. Motions a. In General b. Motion To Dismiss c. Summary Judgment d. Objections On Jurisdictional Grounds E. Discovery 1. Application Of Florida Rules Of Civil Procedure 2. Form For Notice Of Motion Seeking Assessment Of Costs 3. Interested Witnesses F. Trial 1. Jury Trial 2. Nonjury Trial 3. Pretrial Conference And Mediation 4. Testimony a. Interested Witnesses b. Expert Testimony c. Dead Person’s Statute d. Rules Of Evidence e. Lay Testimony f. Attorney As Witness g. Depositions 5. Documentary Evidence a. In General b. Writings Of Decedent c. Medical Records d. Previous Wills e. Death Certificates f. Government Records g. Records Of Activities G. The Judgment 1. Elements Of Judgment

2. Recitation Of Facts 3. Allowance Of Fees 4. Form For Judgment 5. Forms For Orders Allowing Fees a. Order Assessing Fees Payable From Estate Assets b. Order Assessing Fees Payable From Assets Passing To Contestants Of Will 6. Rehearing H. Settlement Of Will Contest 1. Partial Settlement 2. Complete Settlement 3. Form For Settlement § 3.3. TRUST CONTESTS A. In General B. Grounds 1. Execution Or Qualification a. Trust Executed Prior To October 1, 1995 b. Trust Executed On Or After October 1, 1995 c. Execution Considerations 2. Statutory Grounds a. Elements For Contest b. Fraud, Duress, And Undue Influence c. Mistake; Reformation As Remedy d. Unenforceable Trusts e. Gifts To Lawyers And Other Persons 3. Revocation a. By Writing b. By Act C. Commencement Of Trust Proceedings 1. Independent Action 2. Consolidation D. Venue 1. In General

2. Expansion Of Venue E. Service Of Process 1. Statutory Service 2. Formal Notice F. Foreign Trust 1. Limitation On Florida Proceedings 2. Exceptions To Limitations G. Standing To Contest 1. Interest In Trust a. Heir At Law b. Beneficiary Under Trust c. Contractual Rights 2. Filing Requirements And Limitations 3. Renunciation Of Benefits 4. In Terrorem Clause H. Fees In Trust Actions 1. Reasonable Fees 2. Powers Of Trustee 3. Legal Services Rendered To Trust 4. Chancery Considerations I. Trial Considerations « Ch. 3 », • § 3.1 » 1 Litigation Under FL Probate Code § 3.1 (2022)

§ 3.1. SCOPE The first part of this chapter deals with the contest of wills, grounds for contest, and the procedural and practical considerations related to this area. Contests of the testamentary aspects of trusts are covered in §§ 3.3.A et seq.

« Ch. 3 », « § 3.2 » 1 Litigation Under FL Probate Code § 3.2 (2022)

§ 3.2. WILL CONTESTS « Ch. 3 », « § 3.2 », • A » 1 Litigation Under FL Probate Code § 3.2.A (2022)

A. Grounds « Ch. 3 », « § 3.2 », • A », • 1 » 1 Litigation Under FL Probate Code § 3.2.A.1 (2022)

1. In General F.S. 732.518 provides that an action contesting a will or for revocation of a will may not be commenced until after the death of the testator. « Ch. 3 », « § 3.2 », • A », « 2 » 1 Litigation Under FL Probate Code § 3.2.A.2 (2022)

2. Execution Or Qualification « Ch. 3 », « § 3.2 », • A », « 2 », • a » 1 Litigation Under FL Probate Code § 3.2.A.2.a (2022)

a. In General The first consideration in evaluating the merits of a will contest is whether the will is executed properly. If the will can be attacked on the technical grounds applicable to execution or qualification, the effort involved in the contest obviously will be reduced greatly. The right to devise property is a property right protected by Article I, § 2, of the Florida Constitution, subject to the fair exercise of the inherent state power of promoting the general welfare of the people through reasonably necessary regulations. Shriners Hospitals for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990). In determining the validity of a testamentary instrument, the requirements for execution and qualification are governed solely by statute. In re Estate of Blankenship, 122 So. 2d 466 (Fla. 1960), abrogated on other grounds 563 So. 2d 64. F.S. 732.502 sets forth the requirements for proper execution. « Ch. 3 », « § 3.2 », • A », « 2 », « b » 1 Litigation Under FL Probate Code § 3.2.A.2.b (2022)

b. Age Under F.S. 732.501, the testator must be of sound mind and be at least 18 years old or an emancipated minor. Before January 1, 2002, the statute made no reference to an emancipated minor. It appears that the revised statute would apply to wills executed before or after that date. « Ch. 3 », « § 3.2 », • A », « 2 », « c » 1 Litigation Under FL Probate Code § 3.2.A.2.c (2022)

c. Statutory Formalities F.S. 732.502(1) requires that a will be in writing, that it be signed at the end by the testator or by another at the testator’s direction, and that the testator sign, or acknowledge signing or directing another to sign, in the presence of two witnesses. It is not required that the testator sign in the presence of the witnesses if he or she acknowledges his or her signature to them. It is mandatory, however, that the witnesses sign in the presence of each other and in the presence of the testator. F.S. 732.502(1)(c). Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2d DCA 2017). See In re Watkins, 75 So. 2d 194 (Fla. 1954) (will, which was executed by testator in presence of two witnesses, who saw testator place his signature thereon, and to whom testator declared that will was his Last Will and Testament, was invalid in view of fact that only one of such witnesses subscribed his name to will). It is a mistake to assume that a will that appears to be validly executed has been executed in accordance with the statute. Specific and detailed examination of the witnesses should be made about the circumstances of the execution to ensure compliance with the statutory formalities. See Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009) (purported lost will was held invalid when witnesses testified that they did not sign in physical presence of each other); Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005) (court denied admission of will to probate when two witnesses were unable to testify that will was signed in compliance with statutory requirements). The practitioner should note, however, neither Price nor Jordan involved a self-proving affidavit under F.S. 732.503. But see Bitetzakis v. Bitetzakis, 264 So. 3d 297 (Fla. 2d DCA 2019), in which the court held that the testator’s will was not executed in compliance with F.S. 732.502(1)’s requirement that the testator sign his will. In Bitetzakis, after acknowledging the “very unique circumstances” of the case, the court determined that the testator only signed his first name to his

will, which was contrary to his usual custom of signing his first and last name to documents, stopping only because the testator’s wife told him she believed the testator was required to sign before a notary. Id. at 300. Although the testator signed a document in the notary’s presence on the following day, the document was not the testator’s will, but rather a self-proof affidavit, apparently intended to ratify the testator’s will, not the testator’s will itself, which the testator never signed with his full name. See § 3.2.A.2.d addressing self-proving wills. In cases in which acknowledgment by the testator is not involved, it is not required that the testator sign the will first. The order in which the testator and witnesses sign is not significant, as long as they affix their signatures in the presence of each other. Bain v. Hill, 639 So. 2d 178 (Fla. 3d DCA 1994). The place in the will where the witnesses sign is likewise not significant, the essential requirement being that the witnesses sign the will in the presence of each other and in the presence of the testator. Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1993). “In the presence of each other and in the presence of the testator” means more than in the physical proximity or vicinity of one another. In Price, the court considered the situation in which the testator and the witnesses were in the vicinity of each other during the execution of a will, but one of the witnesses was not in the physical presence of the testator and the other witness when the will was signed. The court affirmed summary judgment, denying probate of the will on the ground that being in the vicinity does not satisfy the statutory requirement that the witnesses sign in the presence of each other. The testimony of eyewitnesses to the will execution is of great weight, and normally prevails over testimony of experts that the testator’s signature is a forgery. Dozier v. Smith, 446 So. 2d 1107 (Fla. 2d DCA 1984). See § 3.2.F.4.b. The capacity of the witnesses to the will is as important as the capacity of the testator. F.S. 732.504(1) provides that a person competent to be a witness may act as a witness. Mental competency of the witnesses is as important as mental competency of the testator, inasmuch as a successful attack on the will could be based on the incapacity of a witness. wills prepared and executed by laypersons without legal assistance should be the subject of specific inquiry

as to the witnesses’ competency. The fact that a witness may also be a beneficiary does not invalidate the will. F.S. 732.504(2). In Hays v. Ernst, 32 Fla. 18, 13 So. 451 (1893), the Florida Supreme Court ruled that an interested party can testify to the fact of execution of a will. The statutory limitations under former F.S. 731.07, which provided that a witness/beneficiary could act as a witness but forfeited any interest under the will that exceeded his or her intestate share, have been repealed, and the holding in In re Estate of Lubbe, 142 So. 2d 130 (Fla. 2d DCA 1962), 95 A.L.R. 2d 1246, overruled 359 So. 2d 425, is no longer applicable. The Dead Person’s Statute, former F.S. 90.602, was repealed, effective July 1, 2005. Ch. 2005-46, Laws of Fla. Objection to testimony of an interested witness based on that statute is no longer viable. See § 3.2.F.4.c. The statutory formalities of F.S. 732.502 are strictly construed. Bitetzakis. Indeed, the Florida Supreme Court has affirmed a circuit court’s refusal to admit a will to probate when these formalities are not met. See Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002) (explaining that strict compliance with statutory requirements for execution of will is mandated to create valid will and recognizing that absent requisite formalities, will “will not be admitted to probate”). « Ch. 3 », « § 3.2 », • A », « 2 », « d • 1 Litigation Under FL Probate Code § 3.2.A.2.d (2022)

d. Effect Of Self-Proving Will Under F.S. 732.503(1), A will or codicil executed in conformity with [F.S.] 732.502 may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses, made before an officer authorized to administer oaths and evidenced by the officer’s certificate attached to or following the will. Thus, F.S. 732.503(1) contemplates that the will is already in compliance with F.S. 732.502 (see § 3.2.A.2.c) before turning to F.S. 732.503(1). Helfenbein v. Baval, 157 So. 3d 531 (Fla. 4th DCA 2015). Under F.S. 732.503, a will may be proved by oath attached to the will, either at the time

of execution or at a later date. F.S. 733.201(1) provides that a self-proved will “may be admitted to probate without further proof.” However, the practitioner should note that effective January 1, 2020, F.S. 733.201(1) provides that “a purportedly self-proved electronic will may be admitted to probate only in the manners prescribed in subsections (2) and (3) [of F.S. 733.201] if the execution of such electronic will, or the acknowledgment by the testator and the affidavits of the witnesses, involves an online notarization in which there was a substantial failure to comply with the procedures set forth in [F.S.] 117.265.” Ch. 2019-71, § 38, Laws of Fla. The burden of proof in a will contest is on the proponent to establish the formal execution and attestation of the will. F.S. 733.107(1). Assuming that the proponents have procured the admission of a will to probate under F.S. 732.503 and that a contest subsequently develops, the proponents may rely on the self-proving affidavit or proofs of will to establish prima facie execution and attestation. The argument that the denial of the right of cross-examination should preclude use of the self-proving affidavit at a trial on the merits has been rejected. See Mills v. Barker, 664 So. 2d 1054 (Fla. 2d DCA 1995), citing F.S. 90.902(9) and 92.50 (notarized document modifying trust was self-authenticating and admissible without further evidence or testimony). However, the self-proving affidavit is not conclusive evidence of proper execution and can be rebutted by the testimony of a witness who did not join in the self-proof affidavit. Helfenbein. Additionally, the self-proving affidavit can be rebutted by a witness who signed the affidavit and later renounces it. Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1993). A self-proving affidavit under F.S. 732.503 or the oath of any attesting witness under F.S. 733.201(2) establishes formal execution and attestation, prima facie. F.S. 733.107(1). See Blits v. Blits, 468 So. 2d 320 (Fla. 3d DCA 1985) (self-proving affidavit is prima facie proof of due execution, if not controverted, at hearing on motion for summary judgment). The practitioner should note that it is prudent for a proponent to procure summary judgment on the issue of due execution of the will. Witnesses may die or their memories may fade, which can produce surprises if the issue is deferred until a trial takes place. « Ch. 3 », « § 3.2 », • A », « 3 »

1 Litigation Under FL Probate Code § 3.2.A.3 (2022)

3. Statutory Grounds « Ch. 3 », « § 3.2 », • A », « 3 », • a » 1 Litigation Under FL Probate Code § 3.2.A.3.a (2022)

a. Incompetency And Insane Delusion F.S. 732.501 requires that the testator be “of sound mind.” Testamentary competency means the ability to understand generally the nature and extent of one’s property, the relationship of those who would be the natural objects of the testator’s bounty, and the practical effect of a will. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953), 40 A.L.R. 2d 1399. The Florida Supreme Court has stated that “even a lunatic may make a will … in a lucid interval.” Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647, 649 (Fla. 1954). Factors such as old age, physical failings, failing memory, or vacillating judgment, in themselves, do not establish lack of testamentary capacity. In re Estate of Dunson, 141 So. 2d 601 (Fla. 2d DCA 1962). The practitioner should note, however, that most cases reciting these rules involve factual situations in which the testamentary disposition was fair and reasonable under the circumstances. Competency is generally presumed, and the burden of proving incompetency is on the contestant. F.S. 733.107(1); In re Estate of Weihe, 268 So. 2d 446 (Fla. 4th DCA 1972), quashed on other grounds 275 So. 2d 244. However, if the testator was an adjudicated incompetent at the time the will was executed, there is a presumption of lack of testamentary capacity. The burden of proof to show the specific elements of testamentary capacity then shifts to the proponent of the will. A general showing of competency without addressing the specific requirements of testamentary capacity is insufficient. American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998). Furthermore, an affirmative duty is placed on the personal representative to disclose the incompetency adjudication to the court and give notice to prior beneficiaries and heirs whose interests are affected by the last will. Failure to do so is considered a fraud, which justifies reopening a closed estate. Grimes v. Estate of Stewart, 506 So. 2d 465 (Fla. 5th DCA 1987).

In Hendershaw v. Estate of Hendershaw, 763 So. 2d 482 (Fla. 4th DCA 2000), the court held that the contestant’s burden of proving incapacity on the day the will was signed was a heavy one. The court declined to rule that a showing of incapacity on other days creates a presumption of incapacity or results in shifting the burden of proof to the proponent. Testamentary capacity refers to competency at the time the will is executed. In re Carnegie’s Estate, 153 Fla. 7, 13 So. 2d 299 (1943). Florida courts have held that a testator, competent at the time of signing a will without witnesses, may subsequently acknowledge his or her signature before attesting witnesses even though he or she then lacks testamentary capacity. York v. Smith, 385 So. 2d 1110 (Fla. 1st DCA 1980). Evidence showing the decedent’s mental condition before and after execution of the will is admissible on the issue of mental capacity at the time of execution. In re Estate of Zimmerman, 84 So. 2d 560 (Fla. 1956). Likewise, evidence that the mental disability of an individual is permanent, as opposed to temporary or occasional, creates a presumption that the disability continues. Crews v. State, 143 Fla. 263, 196 So. 590 (1940). The proponent of the will should seek to show that the testator, even if weak of mind, experienced lucid intervals, because often the contestant has no witnesses to establish factual incompetency at the time the will was signed. In re Starr’s Estate, 125 Fla. 536, 170 So. 620 (1936), criticized on other grounds 84 So. 2d 544; Chapman v. Campbell, 119 So. 2d 61 (Fla. 2d DCA 1960). The contestant, on the other hand, should seek to establish that the decedent’s mental disability was chronic and continuous, with no or few lucid intervals. As previously noted, an adjudication of incompetency before execution of the will creates a presumption of continuing incompetency and places the burden on the proponents to show otherwise. Kuehmsted v. Turnwall, 115 Fla. 692, 155 So. 847 (1934). Inasmuch as some types of mental illness, particularly those associated with age, are regressive diseases, the value of medical testimony with the use of hypothetical questions should not be overlooked. The objective should be to demonstrate a regressive and continuing mental disability. An insane delusion (monomania) is a rare form of incapacity that is invoked by the contention that the testator’s testamentary act was the product

of a diseased condition of mind that caused the testator to reach a mistaken conclusion, having no basis in fact. A testator who has no basis for his or her conclusions, and rejects substantial evidence that he or she is mistaken, has been held to suffer from an insane delusion. Miami Rescue Mission, Inc. v. Roberts, 943 So. 2d 274 (Fla. 3d DCA 2006); In re Estate of Hodtum, 267 So. 2d 686 (Fla. 2d DCA 1972). The mistaken belief alone is not a ground for revocation if the testator reasons from a known premise but reaches an incorrect conclusion. In re Estate of Supplee, 247 So. 2d 488 (Fla. 2d DCA 1971). For a detailed discussion of this topic, see Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011), and In re Estate of Edwards, 433 So. 2d 1349 (Fla. 5th DCA 1983). Lack of testamentary capacity renders the entire will invalid. An insane delusion, on the other hand, may affect only part of an otherwise valid will. « Ch. 3 », « § 3.2 », • A », « 3 », « b » 1 Litigation Under FL Probate Code § 3.2.A.3.b (2022)

b. Fraud, Duress, Undue Influence, Or Mistake F.S. 732.5165 specifically provides that a will, or revocation of a will, or any part of it, is void if procured by fraud, duress, undue influence, or mistake. The provisions as to revocation were added to this statute in 2011. Ch. 2011-183, § 6, Laws of Fla. There are few cases involving procurement of a will by fraud, probably because the elements of duress, undue influence, or mistake are intertwined with the concept of fraud. Consequently, one is left with the general rules relating to fraud to establish the necessary elements. These general elements are false representations of material facts, knowledge by the perpetrator that the representations are false, intent that the representations be acted upon, and a resulting injury. See Goodman v. Strassburg, 139 So. 2d 163 (Fla. 3d DCA 1962). Fraud defeats the testator’s wishes through deceit. Undue influence, on the other hand, is a substitution of the mind of another for the mind of the testator that induces the testator to act contrary to his or her wishes. Duress is also a ground for contest that seldom arises. It is obvious that the execution of a will under threat of blackmail or force is not the voluntary act of the testator. Lack of capacity and undue influence are the grounds most likely to arise

in this area. While a claim of undue influence implies that the testator possessed testamentary capacity, it is common to allege both undue influence and lack of capacity in a will contest. Undue influence contemplates that the testator’s mind was so controlled by persuasion, pressure, and outside influences that he or she did not act voluntarily but was subject to the will of another when execution took place. In re Starr’s Estate, 125 Fla. 536, 170 So. 620 (1936), criticized on other grounds 84 So. 2d 544. The burden of proving undue influence is on the person contesting the will. In re Estate of Duke, 219 So. 2d 124 (Fla. 2d DCA 1969). The most important trial consideration in an undue influence case is the establishment of a presumption of undue influence. A presumption of undue influence might not be rebuttable. In general, the presumption is created by showing that one having a substantial benefit under the will possessed a confidential relationship with the decedent and was active in the procurement of the will. In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971); Zinnser v. Gregory, 77 So. 2d 611 (Fla. 1955). An “unnatural” will, or a will whose contents cannot be explained, is significant in assessing undue influence, as is a complete change from a previous testamentary plan. Newman v. Smith, 77 Fla. 633, 82 So. 236 (1919). A contestant usually has no difficulty in showing that a beneficiary stood in a confidential relationship to the decedent and derived a benefit under the contested will. The beneficiary’s role as an active procurer of the will is more difficult to establish. Under Carpenter, nonexclusive factors to support active procurement include the following: (a) presence of the beneficiary at the execution of the will; (b) presence of the beneficiary on those occasions when the testator expressed a desire to make a will; (c) recommendation by the beneficiary of an attorney to draw the will; (d) knowledge of the contents of the will by the beneficiary prior to execution; (e) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will; (f) securing of witnesses to the will by the beneficiary; and (g) safekeeping of the will by the beneficiary subsequent to execution. Id. at 702.

Additional factors have been found to support the presumption, such as isolating the testator and disparaging family members, mental inequality between the decedent and the beneficiary, and the reasonableness of the will or trust provisions. See Hathaway, Make it an Even 10: Courts Rely on More Than the Seven Carpenter Factors to Analyze a Claim for Undue Influence of a Will or Trust, 83 Fla. Bar J. 6 (June 2009). It has been held that the confidential relationship between spouses is not to be considered in will contests. Because a confidential relationship is one of the elements necessary to create a presumption of undue influence, the presumption thus cannot arise in the case of husband and wife. Jacobs v. Vaillancourt, 634 So. 2d 667 (Fla. 2d DCA 1994); Tarsagian v. Watt, 402 So. 2d 471 (Fla. 3d DCA 1981). However, this does not mean that a spouse may not be found to have exerted undue influence based on direct evidence, which does not rely on the presumption. Blinn v. Carlman, 159 So. 3d 390 (Fla. 4th DCA 2015). However, under F.S. 732.805, effective October 1, 2010, a surviving spouse who is found to have procured the marriage by fraud, duress, or undue influence is not entitled to any immunity from the presumption of undue influence. The statute is broadly stated to encompass loss of benefits under a will or insurance policy, or loss of statutory spousal rights and other benefits that would have passed to the spouse by virtue of the marriage. A close relationship between a parent and child is not a strong indicator of undue influence when other heirs also have close relationships. Furthermore, advice and assistance by a child to an aging parent does not create a presumption of undue influence. Estate of Kester v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013). In Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994), the court determined that if the evidence does not support a presumption of undue influence, there is nothing for the proponent to rebut and the issue should be decided against the contestant. In this case, the court held that merely providing transportation to enable a decedent to make transfers does not constitute active procurement. See also Newman v. Brecher, 887 So. 2d 384 (Fla. 4th DCA 2004) (transportation of testator to lawyer’s office and remaining in waiting room for over one hour is not sufficient to establish active procurement).

The Florida Probate Code clarifies that presumptions arising from undue influence “implement public policy” that justify shifting the entire burden of proof when a presumption arises. F.S. 733.107(2). “In any transaction or event to which the presumption of undue influence applies, the presumption implements public policy against abuse of fiduciary or confidential relationships and is therefore a presumption shifting the burden of proof under [F.S.] 90.301–90.304.” Id. Fla. Prob. R. 5.275(b) adopted the provisions of F.S. 733.102(2). F.S. 90.302(2) provides a presumption affecting the burden of proof; it “imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.” Before the statutory presumption under F.S. 90.302(2), the presumption of undue influence was referred to as the “Carpenter presumption.” The Florida Supreme Court in Carpenter held that the presumption did not shift the burden of proof but shifted to the contestant the burden of going forward with the evidence. A reasonable explanation of the active role of the beneficiary in the procurement of the will was sufficient to rebut the presumption, which then “vanished,” with the issue being decided by the greater weight of the evidence. Id. at 705. A minimal explanation was all that was required. Ahlman v. Wolf, 483 So. 2d 889 (Fla. 3d DCA 1986). The current law in regard to the effect of the presumption of undue influence is a dramatic change of the prior law. The presumption is no longer a vanishing presumption. Once the presumption is established, the burden of proof shifts to the proponent of the will to show the nonexistence of the presumed fact. The concept that the proponent has only to show a reasonable explanation of the involvement in the testator’s affairs no longer causes the presumption to disappear. The District Court of Appeal, Fifth District, ruled that F.S. 733.107(2) supersedes Carpenter by shifting the burden of proof to the proponent of the will. Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004). Courts in other appellate districts have ruled the same. Kellar v. Estate of Kellar, 257 So. 3d 1044 (Fla. 4th DCA 2018); RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008); Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007). These courts held that the proponent’s burden was to show the nonexistence of undue influence by a preponderance of the evidence rather than by clear and convincing evidence. These cases are

controlling unless the Florida Supreme Court rules to the contrary. However, the statements in Carpenter concerning facts to be considered in determining if a presumption of influence exists remain unaffected. The Third District’s decision in Diaz is particularly interesting because virtually all of the Carpenter criteria to establish undue influence were present, but the court nonetheless affirmed the trial court’s determination that the proponent had met the burden concerning the nonexistence of the presumed fact. The case illustrates that the shifting of the burden of proof is not conclusive of the issue, and a proponent may prevail notwithstanding the shifting of the burden of proof. For an excellent discussion of the Carpenter criteria and the elements of incapacity, see Raimi v. Furlong, 702 So. 2d 1273 (Fla. 3d DCA 1998). This case demonstrates how difficult a will contest can be. A ground for “revocation” may be available under F.S. 732.615, which permits judicial reformation and modification of wills due to mistakes of fact or law. Historically, a clear and unambiguous will was not subject to judicial construction. See In re Estate of Barker, 448 So. 2d 28 (Fla. 1st DCA 1984). However, following the enactment of F.S. 732.615, a will can be reformed by clear and convincing evidence to accomplish the decedent’s intent, even if the evidence contradicts the plain meaning of the will. This, in effect, is a revocation of the will with an added bonus of an opportunity to “rewrite” the will. A petition for reformation is a specific adversary proceeding under Rule 5.025(a). See 14 FLA. PRAC. Elder Law § 8:83. Contests based on “mistake” are predicated upon the decedent’s execution of one instrument under the belief that he or she was executing another. “Mistake” in this context does not mean a mistake in the decedent’s understanding of a factual situation, a mistake in wording, or a scrivener’s error in drafting the will. Forsythe v. Spielberger, 86 So. 2d 427 (Fla. 1956); In re Estate of Mullin, 128 So. 2d 617 (Fla. 2d DCA 1961). The practitioner should note that F.S. 733.1061 provides that costs and attorneys’ fees may be awarded in the reformation action payable from a party’s interest in the estate or other property of the party or both. See Shear v. Hornsby & Whisenand, P.A., 603 So. 2d 129 (Fla. 3d DCA 1992), which indicates that failure to properly advise a client of possible exposure to an assessment of attorneys’ fees may constitute malpractice.

« Ch. 3 », « § 3.2 », • A », « 3 », « c • 1 Litigation Under FL Probate Code § 3.2.A.3.c (2022)

c. Gifts F.S. 732.806 should be required reading for every lawyer. It provides: Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift. F.S. 732.806(1). The definition of “related” is not limited to persons related by blood. See F.S. 732.806(7)(b). Also, under this statute, “[a] lawyer is deemed to have prepared, or supervised the execution of, a written instrument if the preparation, or supervision of the execution, of the written instrument was performed by an employee or lawyer employed by the same firm as the lawyer.” F.S. 732.806(7)(a). This prohibition cannot be waived. In all actions brought under the statute, costs and attorney’s fees may be awarded from a party’s interest in the estate or trust, or from other property, or both. F.S. 732.806(5). No attorney’s fees or costs may be awarded against a party who, in good faith, initiates an action to declare a gift void. Id. The ethical rules and statutes of every state, in some form, regulates lawyers from soliciting, preparing, or supervising the execution of a will for a client which benefits the lawyer or those related to the lawyer. The regulation places a heavy burden on the lawyer to prove the absence of undue influence, which enables the judicial system to determine whether the facts disprove the presumption. F.S. 732.806 eliminates the role of the judiciary by declaring documents produced in violation of the statute to be void without regard to any other facts. F.S. 732.806 raises many questions as to whether the equal protection guarantees of the Fourteenth Amendment and Article 1, § 2, of the United States Constitution, are violated. « Ch. 3 », « § 3.2 », • A », « 4 » 1 Litigation Under FL Probate Code § 3.2.A.4 (2022)

4. Revocation

« Ch. 3 », « § 3.2 », • A », « 4 », • a » 1 Litigation Under FL Probate Code § 3.2.A.4.a (2022)

a. By Writing A testator may revoke a will or codicil, either completely or partially, by a subsequent writing executed with the same formalities as a will. F.S. 732.505(2). However, a subsequent inconsistent will or codicil that does not expressly revoke previous wills or codicils is an effective revocation, but only to the extent of the inconsistency. F.S. 732.505(1). It is apparent that the same considerations incident to a contest of a will also apply to a contest over a subsequent writing revoking a will. Because an instrument revoking a will is a testamentary document, the statutes regarding capacity and grounds for contest apply. « Ch. 3 », « § 3.2 », • A », « 4 », « b • 1 Litigation Under FL Probate Code § 3.2.A.4.b (2022)

b. By Act A testator may revoke his or her will or codicil, other than an electronic will, “by burning, tearing, canceling, defacing, obliterating, or destroying” the document with the intent of revoking it. F.S. 732.506. Effective January 1, 2020, “[a]n electronic will or codicil is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.” Id. There cannot be a partial revocation by act, because the statute is silent as to partial revocation. Dahly v. Dahly, 866 So. 2d 745 (Fla. 5th DCA 2004); Cioeta v. Estate of Linet, 850 So. 2d 562 (Fla. 4th DCA 2003); Taft v. Zack, 830 So. 2d 881 (Fla. 2d DCA 2002). The question immediately arises as to the manner by which to prove the decedent revoked a will by act when the original will is not found, and no other evidence is available to either prove or disprove revocation. In the absence of other evidence, it is presumed that a will that was in the possession of the testator and cannot be located upon his or her demise was revoked intentionally by the testator. The burden is on the proponent of the will to establish otherwise. In re Washington’s Estate, 56 So. 2d 545 (Fla. 1952); In re Estate of Algar, 383 So. 2d 676 (Fla. 5th DCA 1980). The

proponent must introduce evidence of a “competent substantial nature” to rebut the presumption. In re Estate of Baird, 343 So. 2d 41, 43 (Fla. 4th DCA 1977). For a discussion of what constitutes competent substantial evidence, see Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996). See also Balboni v. LaRocque, 991 So. 2d 993 (Fla. 4th DCA 2008) (evidence was insufficient to rebut presumption that decedent revoked missing will). The mere opportunity of a person to destroy a will that is adverse to that person is not sufficient to overcome the presumption that the testator revoked it. Daul v. Goff, 754 So. 2d 847 (Fla. 2d DCA 2000). However, evidence that the adverse party took possession of some of a decedent’s documents has been held sufficient to overcome the presumption. Pierre v. Estate of Pierre, 928 So. 2d 1252 (Fla. 3d DCA 2006). In a proceeding to establish a lost or destroyed will, F.S. 733.207 requires the testimony of two disinterested witnesses to prove the contents of a lost will; however, if the proponent can produce a “correct copy” of the instrument, meaning an identical copy such as a carbon or photostatic copy, only one witness need testify. In re Estate of Parker, 382 So. 2d 652 (Fla. 1980). See In re Estate of Musil, 965 So. 2d 1157 (Fla. 2d DCA 2007) (niece failed to present testimony of at least one disinterested witness to prove execution and content of will, as required to establish lost or destroyed will). See also PRACTICE UNDER FLORIDA PROBATE CODE §§ 15.4.K.1‒15.4.K.3 (Fla. Bar CLE 11th ed. 2022) (containing forms for petition and order for establishment of lost or destroyed will); Kelley & Bronner, THE FLORIDA BAR PROBATE SYSTEM, Law Note 3 (Fla. Bar 5th ed. 2018); Rivas, Probate of a Lost Will in Florida, 65 Fla. Bar J. 44 (Oct. 1991). The presumption of revocation is substantially rebutted if the evidence shows that a copy of the will was kept together with an original codicil to that will. In re Estate of Kuszmaul, 491 So. 2d 287 (Fla. 4th DCA 1986), 84 A.L.R. 4th 527. A “correct copy,” for purposes of establishing the content of a last will under F.S. 733.207, refers only to the terms of the will and need not reflect the signatures of either the testator or the witnesses. In re Estate of Kero, 591 So. 2d 675 (Fla. 4th DCA 1992). A preliminary draft is not a “correct copy.” Estate of Parker. If it is shown that the content of a computer copy of the

document was identical to the document prepared for the client’s signature, the document would qualify as a “correct copy.” Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012). In Smith, the court also held that a personal representative may be disqualified as a witness if the personal representative has a direct stake in the outcome, such as potential liability for failing to properly secure a codicil in safekeeping. Destruction of a copy of a codicil by a testator is not an effective revocation by act, even if the testator intended to revoke and believed he or she was destroying the original document. In re Estate of Tolin, 622 So. 2d 988 (Fla. 1993). However, the Florida Supreme Court in Tolin also held that a constructive trust may be imposed on the assets passing under the codicil, for the benefit of the person who would have inherited if the codicil had been properly revoked. The constructive trust concept may be applicable in other instances in which a testamentary act fails by reason of a mistake in fact. The Florida Supreme Court declined to extend the Tolin constructive trust concept in a case in which the testator failed to execute a will that she verbally approved and declared to be her will. The failure to sign was the result of a mistake and confusion created by numerous other documents being signed at the same time. The unexecuted will was held to be invalid, and the court declined to “validate” the will by imposing a constructive trust. Allen v. Dalk, 826 So. 2d 245, 248 (Fla. 2002). See also Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2d DCA 2017) (extending Allen distinction to cases, such as this case, in which amendment to trust was not validly executed). Although words of revocation written on a will by a testator, without witnesses, are ineffective to fulfill the formalities for revocation under F.S. 732.505, those words may constitute sufficient defacement or obliteration to accomplish revocation by act under F.S. 732.506, even though the words appear only on the self-proof affidavit attached to the will. In re Estate of Dickson, 590 So. 2d 471 (Fla. 3d DCA 1991). « Ch. 3 », « § 3.2 », • A », « 5 » 1 Litigation Under FL Probate Code § 3.2.A.5 (2022)

5. Partial Revocation « Ch. 3 », « § 3.2 », • A », « 5 », • a » 1 Litigation Under FL Probate Code § 3.2.A.5.a (2022)

a. General Considerations On occasion, total revocation of a will may not be desirable to a contestant because of the contestant’s relationship to another beneficiary or for other personal reasons. The grounds for contest of a will, other than lack of testamentary capacity, may be used to attempt partial revocation. See F.S. 732.5165. It is difficult to conceive of a situation in which partial revocation could be pursued based on the ground of lack of testamentary capacity, other than an insane delusion (monomania) on the part of the testator that affects only a portion of the will. See § 3.2.A.3.a. « Ch. 3 », « § 3.2 », • A », « 5 », « b • 1 Litigation Under FL Probate Code § 3.2.A.5.b (2022)

b. Effect The effect of partial revocation is to leave the will in full force as to those provisions that are not invalidated. In many cases involving undue influence, there are beneficiaries who have not participated in wrongful acts and against whom the presumption of undue influence does not apply. In most reported cases, however, the proceedings appear to have been conducted on an “all or nothing” basis. Consideration must be given by the proponents of the will to preserving those provisions that are not infected with undue influence, particularly in cases when the burden of proof is met by the establishment of the presumption of undue influence against only one beneficiary. It appears that under these circumstances the presumption should affect only the beneficiary involved, and the remaining provisions of the will should remain in force. See In re Estate of Krieger, 88 So. 2d 497 (Fla. 1956); In re Estate of Van Horne, 305 So. 2d 46 (Fla. 3d DCA 1975). Partial invalidity of a will can produce a variety of results. If there are two residuary beneficiaries, one of whom is the wrongdoer, the residue may pass entirely to the other. If there is only one residuary beneficiary who is also the wrongdoer, the residuary estate may be intestate. An heir at law, excluded by a series of wills before the last will, could avoid the problem of “standing” by seeking to invalidate only the residuary clause of the will. An interesting situation is one in which the last testamentary document is procured by undue influence, but the only effect is to republish a previously revoked will that was not the product of undue influence. In this situation, the documents are considered merged into one, and any bequest to the wrongdoer

may be held invalid, leaving the balance of the republished will intact. In re Estate of Lane, 492 So. 2d 395 (Fla. 4th DCA 1986). « Ch. 3 », « § 3.2 », • A », « 6 • 1 Litigation Under FL Probate Code § 3.2.A.6 (2022)

6. Special Grounds « Ch. 3 », « § 3.2 », • A », « 6 •, • a » 1 Litigation Under FL Probate Code § 3.2.A.6.a (2022)

a. Charitable Devises Historically, charitable devises could be set aside by lineal descendants or a spouse who would receive the property if the charitable devise were avoided. Former F.S. 732.803 required the decedent to execute a will within six months of death without having a previous will or series of wills make substantially the same charitable disposition, one of which was executed at least six months before death. The statute was ruled unconstitutional, however, in Shriners Hospitals for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990), and subsequently repealed in 1991. « Ch. 3 », « § 3.2 », • A », « 6 •, « b » 1 Litigation Under FL Probate Code § 3.2.A.6.b (2022)

b. Rule Against Perpetuities The rule against perpetuities may afford a means of declaring a bequest void, inasmuch as violation of the rule renders the offensive provision invalid. If the offending clause appears in the residuary paragraph, intestacy may result. See In re Estate of Jones, 318 So. 2d 231 (Fla. 2d DCA 1975). Under proper circumstances, the invalidity can revive part or all of a previous will under the doctrine of dependent relative revocation. In re Estate of Jones, 352 So. 2d 1182 (Fla. 2d DCA 1977). See § 3.2.B.5. The practitioner should note that the common-law rule against perpetuities was substantially modified by the Florida Legislature in 1988 and again in 2000. See F.S. 689.225, the Florida Uniform Statutory Rule Against Perpetuities, which provides for a “wait and see” period of 90 years and cy pres modifications to instruments violating the common-law rule against perpetuities. For instruments executed after December 31, 2000, the time can extend to 360 years.

« Ch. 3 », « § 3.2 », • A », « 6 •, « c » 1 Litigation Under FL Probate Code § 3.2.A.6.c (2022)

c. Pretermitted Heirs Events such as marriage or the birth of children after the execution of a will do not invalidate the will but may entitle the pretermitted spouse or children to receive intestate shares. F.S. 732.301–732.302, 732.507. See §§ 2.2.A.2.c and 4.8.A–4.10 of this manual. « Ch. 3 », « § 3.2 », • A », « 6 •, « d • 1 Litigation Under FL Probate Code § 3.2.A.6.d (2022)

d. Public Policy Consideration should be given to matters of public policy that may affect the validity of a testamentary disposition, including a devise for an illegal purpose or in contravention of marriage. The act of a beneficiary in unlawfully killing or procuring the death of the testator also may affect the plan of disposition. See F.S. 732.802. The subject of insurance proceeds and joint property is outside the scope of this chapter, but the practitioner should note that the Probate Murder Statute, otherwise known as the “Slayer Statute,” F.S. 732.802, also precludes the killer from obtaining such benefits. Conviction of murder is not necessarily required under the statute. F.S. 732.802(5); Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995). The Slayer Statute is discussed further in §§ 2.2.A.5 and 4.11 of this manual. « Ch. 3 », « § 3.2 », « B » 1 Litigation Under FL Probate Code § 3.2.B (2022)

B. Standing To Contest « Ch. 3 », « § 3.2 », « B », • 1 » 1 Litigation Under FL Probate Code § 3.2.B.1 (2022)

1. Interest In Estate « Ch. 3 », « § 3.2 », « B », • 1 », • a » 1 Litigation Under FL Probate Code § 3.2.B.1.a (2022)

a. Heir At Law

As a predicate to the following discussion, the practitioner should note that the burden of proving standing is on the contestant. See Fla. Prob. R. 5.270 (“A petition for revocation of probate shall state the interest of the petitioner in the estate and the facts constituting the grounds on which the revocation is demanded.”). Lack of standing is not a required affirmative defense that must be raised in an adversary probate proceeding. Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005). The failure of a contestant to allege facts supporting standing can be attacked by a motion to dismiss. Alternatively, an affirmative defense would place the contestant on notice of the burden to allege and prove standing. Lack of standing must be raised at the trial level either before or after trial but cannot be raised for the first time on appeal. Maynard v. Florida Board of Education ex rel. University of South Florida, 998 So. 2d 1201 (Fla. 2d DCA 2009). Any “interested person” may petition for revocation of probate. F.S. 733.109(1). Thus, “ ‘whether a person is an interested person is an element that must be established by the petitioner seeking revocation of probate.’ ” Gordon v. Kleinman, 120 So. 3d 120, 121 (Fla. 4th DCA 2013), quoting Wehrheim, 905 So. 2d at 1006. It appears that an heir at law may have standing to contest a will, even though there may be previous wills of the decedent that could be revived by revocation of the last purported will. However, if there are prior wills that exclude the contestant, the contestant does not have standing to contest the last will, unless the contestant proves that the prior wills are invalid or the doctrine of dependent relative revocation does not apply. Cates v. Fricker, 529 So. 2d 1253 (Fla. 2d DCA 1988). See § 3.2.B.5. The court in Cates did not explain the procedure for contest of prior wills that have not been offered for probate. Conceivably, under this ruling, the contestant would initially be required to show the invalidity or inapplicability of every prior will, before trial of the issue of the last will, in order to substantiate his or her standing to contest the last will. In Gordon, the petitioner alleged that she was the beneficiary under a prior will and that all of the prior wills under which she was not a beneficiary were invalid due to undue influence and testamentary incapacity. The court, citing Wehrheim, held that a will contestant has the clear burden to allege the invalidity of all prior wills that exclude the contestant, and the burden at trial to prove the invalidity of those wills. This is a heavy and expensive burden if there are multiple prior wills. If the original prior will(s) are not available, the

contestant should consider meeting his or her burden under the presumption of revocation by destruction; if the next prior will was revoked by destruction, dependent relative revocation would not be applicable to revive it. For a detailed discussion of the presumption of revocation by destruction, see § 3.2.A.4.b. The proponent of a last will should attack the standing of the contestant if there are prior wills that exclude the contestant, either by motion to dismiss or by motion for summary judgment. Summary judgment is an efficient means of disposing of a will contest when the contestant is unable to support the grounds for contest of the preceding wills. The standing issue should be pursued before trial of the issue of the contested will. The general allegation that all purported wills of the testator, executed after the instrument creating the contestant’s interest, are invalid due to undue influence or incapacity is sufficient to withstand a proponent’s motion to dismiss. Gordon. Depending on the circumstances, however, the contestant should seek to avoid the implications of Cates. The contestant should consider whether the contest should be limited to partial revocation of the will. If the proponent is a residuary beneficiary, the will contest may invalidate only the residuary bequest, leaving the “revocation of prior wills” clause in effect. If successful, the residue may then pass by intestacy. See In re Estate of Krieger, 88 So. 2d 497 (Fla. 1956); In re Estate of Van Horne, 305 So. 2d 46 (Fla. 3d DCA 1975). As previously alluded to, the contestant should also consider whether the doctrine of dependent relative revocation even applies. If it does not, the invalidity of prior wills is immaterial, because they would not be revived by revocation of the probate of the last will. See § 3.2.B.5. Cates appears well established. The District Court of Appeal, Second District, has affirmed, without opinion, two summary judgment orders based on the doctrine set forth in Cates. In re Estate of Levett, 719 So. 2d 294 (Fla. 2d DCA 1998); Ryan v. Mixson, 700 So. 2d 694 (Fla. 2d DCA 1997). The Fifth District in Newman v. Newman, 766 So. 2d 1091 (Fla. 5th DCA 2000), adopted the Cates ruling in a case in which the last will left nothing to the contestant and the next prior will left him one dollar. The court held the

de minimis one-dollar benefit was not sufficient to establish standing to contest the last will. However, the Fourth District in Delbrouck v. Eberling, 226 So. 3d 929, 933 (Fla. 4th DCA 2017), rejected the trial court and personal representative’s reliance on Newman, deeming such reliance to be “misplaced insofar as they interpreted the holding in Newman to find that [the] appellant lacked standing to challenge the will.” The court held that there was no requirement in the plain language of F.S. 733.109 that the appellant prove his share of the estate would have been different had his revocation attempt succeeded when the appellant was both a beneficiary under the will and an heir at law and therefore would have been affected by the outcome of the revocation petition insofar as a successful revocation would have subjected the personal representative whom the appellant alleged was improperly administering the estate and giving preferential treatment to the other beneficiaries—to removal. The court distinguished the facts in Newman, explaining, “[h]ere, [the] appellant was a beneficiary under the challenged will, was not disinherited in a prior will, and did not seek to delay distribution until the sole beneficiary’s interest lapsed in order to obtain an interest, rendering Newman wholly inapplicable.” Delbrouck, 226 So. 3d at 933. The practitioner should not overlook the possibility that a client who was raised by a decedent but not legally adopted may be a “child” for purposes of heirship under the doctrine of virtual adoption. Williams v. Dorrell, 714 So. 2d 574 (Fla. 3d DCA 1998); In re Heirs of Hodge, 470 So. 2d 740 (Fla. 5th DCA 1985). Virtual adoption applies only in intestate estates, but the doctrine appears to create standing to contest a will in an attempt to create intestacy. For a detailed discussion of virtual adoption, see In re Estate of Musil, 965 So. 2d 1157 (Fla. 2d DCA 2007). See also § 2.2.A.2.d of this manual. « Ch. 3 », « § 3.2 », « B », • 1 », « b » 1 Litigation Under FL Probate Code § 3.2.B.1.b (2022)

b. Beneficiary Or Personal Representative Under Former Will A beneficiary under a prior will is included specifically as an “interested person” under F.S. 733.109(1). The terms of the statute do not require that the bequest be under the immediately preceding will of the decedent. A provision for a contestant under a previous will should be adequate to create standing. The District Court of Appeal, Second District’s, decision in Cates v. Fricker,

529 So. 2d 1253 (Fla. 2d DCA 1988), previously discussed in § 3.2.B.1.a, is broad enough in scope, however, to permit a proponent of the last will to attack the standing of a beneficiary who does not have an interest under the next prior will. A petition seeking both revocation of the last executed will and probate of a former will may be sought in the same petition. In re Barret’s Estate, 40 So. 2d 125 (Fla. 1949). This proceeding has some merit, in that citation of the petition for probate of the previous will may be served on all interested parties and results in an expeditious admission of the former will to probate if the revocation proceeding is successful. It appears that if notice of the petition for probate of the previous will is given under F.S. 733.2123, successful conclusion of the revocation proceedings incident to the last signed will would preclude further litigation attacking the previous will simultaneously offered for probate in the revocation proceedings. Before the current statute defining an interested party, a personal representative under a prior will had no standing to contest a later will. In re Barret’s Estate. The revision to F.S. 731.201(23) (formerly 731.201(21)) expanded the definition of “interested person” to include a personal representative under a prior will. The contest of the second will affects “the estate or the rights of a beneficiary in the estate” under the first will. Engelberg v. Birnbaum, 580 So. 2d 828, 830 (Fla. 4th DCA 1991). See Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008) (lawyer who prepared testator’s previous will and trust documents, and who was named as alternate personal representative in previous will and cotrustee of trust, had standing to contest validity of subsequent will that removed lawyer from will and named previously disinherited stepson as alternate personal representative; lawyer would reasonably be expected to be affected by outcome of proceeding, in that he would become personal representative of estate if prior will were to be reinstated). The fact that a beneficiary’s interest may be a contingent one, subject to a condition that he or she survive the holder of a preceding life estate, does not disqualify the beneficiary as an interested party. In re Estate of Watkins, 572 So. 2d 1014 (Fla. 4th DCA 1991). The practitioner should note that an instrument executed by an attorney before October 1, 2013, for a client that names the attorney as a beneficiary is not void nor does it preclude the attorney from being an interested party.

Agee v. Brown, 73 So. 3d 882 (Fla. 4th DCA 2011). See F.S. 732.806. However, under F.S. 732.806, an instrument that creates a gift to the lawyer or person related to the lawyer is void if the lawyer prepared or supervised its execution on or after October 1, 2013. A will prepared by an attorney for a client that names the attorney as a beneficiary is in violation of Rules Regulating The Florida Bar 4-1.8(c). The practitioner should note that the Florida Supreme Court adopted amendments to Rule 4-1.8(c), effective February 1, 2018, deleting the word “substantial” from the rule. In re: Amendments to Rules Regulating The Florida Bar (Biennial Petition), 234 So. 3d 577 (Fla. 2017). See § 3.2.A.3.c. « Ch. 3 », « § 3.2 », « B », • 1 », « c • 1 Litigation Under FL Probate Code § 3.2.B.1.c (2022)

c. Contractual Rights An agreement to make a will must be in writing and be executed with the same formalities as a will. F.S. 732.701(1). If a decedent breached the agreement by execution of a later contrary will, the initial impulse is to contest the contrary will. A contest would not be appropriate, however; the claim is one for breach of contract. See Johnson v. Girtman, 542 So. 2d 1033 (Fla. 3d DCA 1989), disapproved on other grounds 656 So. 2d 460; In re Estate of Algar, 383 So. 2d 676 (Fla. 5th DCA 1980). One claiming only under a contract to make a will does not appear to have standing to contest probate on that ground. It is a defense to an action to enforce a contract to make a will that one of the parties repudiated the contract during the life of the other and gave notice of that repudiation to the co-promisor and the third-party beneficiary. Boyle v. Schmitt, 602 So. 2d 665 (Fla. 3d DCA 1992). A claim for breach of contract should be timely filed under F.S. 733.702, which governs claims by creditors. In re Estate of Vickery, 564 So. 2d 555 (Fla. 4th DCA 1990). Failure to timely file the claim in the estate proceedings will result in the claim being barred, even if an independent action is filed during the claim period. Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991). In cases in which the contract to make a will has been defeated through inter vivos transfers by the decedent, the claimant may pursue an action against the donee to set aside the transfer, based on fraudulent intent, to avoid

the contract. Boyle v. Schmitt, 578 So. 2d 367 (Fla. 3d DCA 1991). Such an action would not appear to be barred by failure to file a claim in the estate. However, it would be prudent to timely file an estate claim to avoid the contention that the setting aside of the transfer results in the asset being an estate asset for purposes of administration. One contesting such a transfer should consider asking for the imposition of a constructive trust as a remedy, as well as looking to the content of the contract to make a will, which often imposes trust provisions. A joint and mutual will, in the nature of a contract, may be specifically enforced and a trust imposed on the assets as a remedy of enforcement. In re Estate of Rowland, 504 So. 2d 543 (Fla. 4th DCA 1987). However, the rights of a surviving spouse who is not a party to a contract to make a will are superior to the claims of the beneficiary under the contract. In Via v. Putnam, 656 So. 2d 460 (Fla. 1995), a married couple executed mutual contractual wills that provided their estates would pass to each other and, on the survivor’s death, to their children. The wife died first, the husband remarried, and subsequently died without executing a later will. The court held that the surviving spouse’s right to receive either an elective share or pretermitted spouse’s share had priority over the claims of the decedent’s children. See also In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003). Malicious interference with a contract has long been a recognized cause of action. In the law of wills, intentional interference by a third party with one’s expected inheritance is also a recognized cause of action. To prove a claim of intentional interference with an expectancy of inheritance, the plaintiff must show: “ ‘(1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages.’ ” Mulvey v. Stephens, 250 So. 3d 106, 109 (Fla. 4th DCA 2018), quoting Whalen v. Prosser, 719 So. 2d 2, 5 (Fla. 2d DCA 1998). “The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator, and the disappointed beneficiary brings the action primarily to protect the testator’s interests in freely disposing of his or her property.” Henry v. Jones, 202 So. 3d 129, 133 (Fla. 2d DCA 2016). In considering the contest of a will, this concept should also be reviewed, particularly if the remedy in the probate proceedings is inadequate. See DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981); Mulvey. Indeed, under certain, unique circumstances, such an action may accord relief in cases in which the

remedy in probate has not matured. See, e.g., Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991) (decedent’s brothers’ action against co-personal representatives of decedent’s estate for decedent’s alleged intentional interference with their expectancies in their parents’ estates and other rights or properties of brothers was maintainable even before parents’ death). Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997), is a significant case that permitted an action contesting a decedent’s inter vivos trust to proceed under a theory of tortious interference, even though the plaintiffs were barred from contesting the decedent’s pour-over will. In Martin, the contested trust amendment was executed over a year after the will and 95% of the assets were held in the trust at the decedent’s demise. A collateral action contesting a will by a time-barred party may not be pursued based on a tortious interference claim. Such an action is barred by F.S. 733.103(2) as a collateral attack on the will and by the general concept that the remedy in probate would have afforded full relief if timely filed. All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000). The topic of tortious interference is treated in depth in Chapter 13 of this manual. « Ch. 3 », « § 3.2 », « B », « 2 » 1 Litigation Under FL Probate Code § 3.2.B.2 (2022)

2. Filing Requirements « Ch. 3 », « § 3.2 », « B », « 2 », • a » 1 Litigation Under FL Probate Code § 3.2.B.2.a (2022)

a. Notice Of Administration As previously noted, the nature of a will contest requires that the testator be deceased. F.S. 732.518 provides that an action to contest the validity of all or part of a will or revocation of all or part of a will may not be commenced before the death of the testator. A will contestant may file a caveat under F.S. 731.110. If this is done before issuance of letters of administration, F.S. 731.110(3) and Fla. Prob. R. 5.260(f) provide that a will must not be admitted to probate without service of formal notice on the caveator or the caveator’s designated agent. However, Rule 5.260(f) and F.S. 731.110(3) provide that there is no requirement that a

caveator be served with formal notice of its own petition for administration. The issuance of letters or admission of the will to probate without formal notice to the caveator is reversible error. In re Estate of Hartman, 836 So. 2d 1038 (Fla. 2d DCA 2003); Grooms v. Royce, 638 So. 2d 1019 (Fla. 5th DCA 1994). It appears that the rules pertaining to entry of default do not apply to prevent a caveator from filing an untimely response, and the caveator is entitled to notice of and participation in an evidentiary hearing opposing admission of the will to probate. See Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012). A caveat filed after letters of administration issue is ineffective. In re Estate of Guth, 374 So. 2d 1098 (Fla. 2d DCA 1979). However, Rule 5.260(d) requires the clerk to give notice to the caveator of the issuance of letters. A caveat may be filed by any interested party (other than a creditor) before the decedent’s death. F.S. 731.110(1). Crescenzo v. Simpson, 239 So. 3d 213 (Fla. 2d DCA 2018). Such a caveat will expire two years after the filing. F.S. 731.110(4). The information required to be included in the caveat is set forth in Rule 5.260. For a detailed discussion of the filing of a caveat in probate proceedings, see § 3.2.B.6. F.S. 733.212(1) requires the personal representative to serve a copy of the notice of administration on known beneficiaries. The notice may be served on any party having a potential interest, whether under the last will or otherwise. Contest of a will admitted to probate by any person on whom the notice was served must be filed with the court on or before the date that is three months after the date of service of a copy on the objecting party. F.S. 733.212(3). The 2006 Florida Legislature’s amendment to F.S. 733.212(3) resolved the issue of whether a contest of will filed before service of notice of administration is timely. (The prior statute provided that a contest must be filed within three months after service of the notice of administration.) The statute does not require that the contest petition be served within the three-month time frame, but only that it be filed. Aguilar v. Aguilar, 15 So. 3d 803 (Fla. 2d DCA 2009).

Under F.S. 731.302, an interested party may waive rights to notice. However, a waiver of service of notice of administration is not a waiver of the right to contest the will. Under F.S. 733.212(8), the deadline within which to contest the will is determined by the date the waiver is filed, with the same effect as if notice of administration had been served on that date. Under Fla. R. Civ. P. 1.420(a)(1), a will contestant may take a voluntary dismissal, without prejudice, to refile the action. If a contestant, for any reason, deems it advisable to take a voluntary dismissal and refile, a contestant not served with notice of administration should be able to do so without prejudice to the refiling of the contest any time before the order of discharge is entered. However, if the contestant is served with notice of administration after the contest was filed, the contestant would be time-barred to refile the contest at the expiration of the three-month period after the notice of administration is served. This may be particularly significant in taxable estates, when discharge may be delayed pending the estate tax closing letter. The civil rule does not apply to new adversarial probate proceedings. In re Estate of Brown, 310 So. 3d 1131 (Fla. 2d DCA 2021). Formal notice of the petition for administration may be served on an interested party before the issuance of letters of administration under F.S. 733.2123. If this procedure is followed, the party who has been served must file a response within 20 days, as provided in Rule 5.040(a)(1), or otherwise will be barred upon issuance of letters of administration. The critical bar date is not the expiration of the 20-day response time, but the date of issuance of letters. A proponent should submit the letters of administration to the court immediately upon expiration of the response time, which is permitted ex parte under Rule 5.040(a)(2). A party served before probate of the will does not have the benefit of the three-month period to file a contest under F.S. 733.212. If no default has been taken or letters issued, a contestant’s response served and filed after the 20-day response time has expired is still timely. Tanner v. Estate of Tanner, 476 So. 2d 793 (Fla. 1st DCA 1985). If the 20day procedure is initiated under F.S. 733.2123, but the proponent proceeds to have letters issued before the expiration of 20 days after service, the proponent is deemed to have abandoned the 20-day procedure, and a potential contestant is entitled to the longer periods to contest granted under

F.S. 733.212 or 733.109(1). Nardi v. Nardi, 390 So. 2d 438 (Fla. 3d DCA 1980). If a codicil is discovered and offered for probate after admission of the will to probate, the expiration of the time for contest under the original notice of administration does not time bar an interested party from contesting the will and codicil. Service of formal notice before admission of the codicil to probate or service of a new notice of administration is required to time bar the contestant. In re Estate of DeLuca, 748 So. 2d 1086 (Fla. 4th DCA 2000). An interested party who is served with notice of administration and fails to timely file a contest of the will may attempt to avoid the time bar by asserting that a proponent of the will concealed material facts that could support a will contest. In the absence of some legal duty of disclosure or extrinsic fraud, such allegations are not sufficient to avoid the time bar. All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000). However, in a guardianship case, In re Guardianship of Rekasis, 545 So. 2d 471 (Fla. 2d DCA 1989), and a trust case, Flanzer v. Kaplan, 230 So. 3d 960 (Fla. 2d DCA 2017), the District Court of Appeal, Second District, considered the delayed discovery doctrine under F.S. 95.11(3) and extended the time for contest for undue influence to 12 years from the date of discovery, which would commence upon the settler’s death. Although the concept of the delayed discovery doctrine in a will contest does not appear to be applicable, the lawyer should be considered it as a possible last resort to revive an untimely filed will contest. An interested party not served with formal notice or notice of administration may file a contest at any time before letters of discharge issue. F.S. 733.109(1). However, the knowing failure to serve notice on a person who is a devisee has been held to be a fraud on the court, which permits reopening of the estate after the order of discharge under F.S. 733.903, or a civil action for damages. Rule 1.540(b) permits the filing of a civil action even if the order of discharge has been entered for more than a year. Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990). Florida courts have also held that a personal representative having knowledge of the existence of a subsequent will of the decedent before an

order of discharge has a duty to disclose that fact to the court and to give notice to the interested parties under the subsequent will. Failure to do so constitutes a fraud on the court sufficient to permit revocation of an order of discharge and reopening of the estate. Dean v. Bentley, 848 So. 2d 487 (Fla. 5th DCA 2003). If the will devisee is a pour-over trust and the trustee of that trust is also the personal representative of the estate, service of the petition for administration is required on each beneficiary of the trust. F.S. 733.212(1)(c). Under F.S. 731.201(11), the trust beneficiary is defined as a “devisee” under these circumstances. The rule of Payette would permit the unserved trust beneficiary to reopen the estate, which should permit pursuit of all applicable remedies. Service of notice before probate usually is not recommended. It shortens the time for contest by only about two months and, if a contest is filed, deprives the proponent of the advantages of being the appointed personal representative, and of the ability to expeditiously close the estate after the contest is concluded. Stipulated extensions of the time to file a will contest are hazardous and should be avoided. F.S. 733.212 contains no provision to extend the time for contest, and F.S. 733.212(3) appears to be self-operative to bar any contest after the time expires. A stipulation by only the personal representative may not bind beneficiaries who are also entitled to the benefits of the time bar. The first rule, therefore, should be to timely file the contest. Negotiations for settlement should not delay filing. A stipulation to extend the time to file that is not executed by all interested parties may not be effective. F.S. 731.302, concerning the right to waive, may not be adequate to permit waiver of a time bar that appears jurisdictional. The court in In re Estate of Tarmy, 518 So. 2d 471 (Fla. 4th DCA 1988), held that the time bar was not jurisdictional and that a stipulation by the personal representative extending the time for contest was effective. In so holding, the court relied on an analogy to the creditor statute, F.S. 733.702, but that statute provides that the three-month period to file claims may be extended, whereas F.S. 733.212(3), pertaining to contest of the will, has no extension of time provision. The contest-of-will time provision is more analogous to F.S. 733.710, which bars claims not filed within two years of the decedent’s death and was held to be jurisdictional in

Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163 (Fla. 4th DCA 1996). The risk of an adverse ruling may be avoided by filing a timely contest and not relying on a stipulation. It could also be argued that the bar under F.S. 733.212 is for the benefit of all interested parties and the personal representative is without authority to waive the rights of beneficiaries by unilaterally extending the time for contest. F.S. 733.612, authorizing the personal representative to undertake certain acts without order of court, does not contain any authority to waive the time for contest of will. F.S. 733.612(25) authorizes the personal representative to waive the statute of limitations as to estate taxes. It could be argued that the grant of authority to waive the time limitations as to one specific subject implies that the power to waive the limitation as to other subjects has not been granted. Rule 5.402(b), concerning extensions of time, specifically applies only to acts required or allowed to be done by order of the court or by any notice given thereunder. It does not apply to acts in which the time to file is specified by statute. Samad v. Pla, 267 So. 3d 476 (Fla. 2d DCA 2019). The practitioner should note that Fla. R. Gen. Prac. & Jud. Admin. 2.514, Computing and Extending Time, was amended to no longer treat mail and email identically. In re: Amendments to Florida Rules of Civil Procedure, 257 So. 3d 66 (Fla. 2018). The additional five days to respond by e-mail is no longer effective. Thus, no additional time is permitted to documents served by e-mail. The question also arises as to whether the time bars applicable in probate would act to bar a contest of a decedent’s inter vivos trust when the will devises the estate to the trustee. The Fourth District in Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997), addressed this question. The decedent’s assets at death were about 5% in the probate estate and 95% in the trust. The court held that even though a contest of the will was barred, a contest of the trust was not precluded on the ground that the remedy in probate was inadequate. Of significance was that the pour-over will was executed several years before a last amendment to the trust that substantially changed the disposition of assets. Martin demonstrates the difficulties that can arise because the Florida Probate Code and its time bar provisions are not applicable to trusts.

From a drafter’s standpoint, the case also demonstrates the need for execution of a new pour-over will each time a trust is amended, and the need to consider language in the will that would incorporate the trust provisions in the event the trust is not effective for any reason. See Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012) (trust incorporated into will; thus, appellants could not properly challenge validity of trust while adequate remedies were available at probate). « Ch. 3 », « § 3.2 », « B », « 2 », « b • 1 Litigation Under FL Probate Code § 3.2.B.2.b (2022)

b. Probate In Foreign State In some instances, an ancillary administration may be undertaken in Florida when the will has been admitted to probate and is incontestable in the decedent’s out-of-state domicile. There is a question whether an effective will contest can be filed in Florida to invalidate the will as to the assets subject to the ancillary administration, particularly real estate in Florida. F.S. Chapter 734, which is concerned with ancillary administration, omits any specific reference to contest of the foreign will, but F.S. 734.102(4) provides that the administration proceedings must be as similar to an original proceeding as possible. An unsuccessful will contest in the foreign domicile, based on fraud, duress, mistake, and undue influence, does not preclude contest of the will on the same grounds in Florida ancillary proceedings involving disposition of Florida real estate. In re Estate of Roberg, 396 So. 2d 235 (Fla. 2d DCA 1981). It has long been held that grounds that are addressed to the proper execution of the will, as it affects Florida real estate, may be asserted. See F.S. 734.102(3); Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215 (1940), 131 A.L.R. 1018. It is improper for a Florida court to defer to the jurisdiction of a foreign forum to determine the validity of a foreign will that disposes of Florida real property. In re Estate of Barteau, 736 So. 2d 57 (Fla. 2d DCA 1999). These cases are based on the proposition that Florida real estate is exclusively subject to the laws of Florida and “full faith and credit” is not applicable. A more complicated issue arises when a foreign decree admitting a will to probate is contested in Florida as to tangible or intangible property. In general, such a decree is entitled to full faith and credit if the Florida

contestant was subject to in personam jurisdiction of the foreign state, either by receiving due service of process or by participating in the foreign proceeding. Cuevas v. Kelly, 873 So. 2d 367 (Fla. 2d DCA 2004). Assuming there is no full faith and credit issue, a Florida court has jurisdiction to determine whether a testator is domiciled in Florida or another state and to rule on the validity of the will when all the decedent’s property is located in Florida, even if the domicile is determined to be in another state. In re Estate of Hatcher, 439 So. 2d 977 (Fla. 3d DCA 1983). Roberg may not be the final answer to the issue of relitigation of the contest of a foreign will in Florida. In Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001), the court held that under F.S. 731.106(2), Florida law would be applicable to the disposition of the Florida property of a nondomiciliary only when the foreign will provides that Florida law is to be applied to the Florida property. Although the case involved an elective share and was not a will contest, the general concept would support the position that a contest in the domiciliary jurisdiction precludes subsequent relitigation of the validity of the will in Florida unless the will expressly adopts Florida law as to the Florida property. « Ch. 3 », « § 3.2 », « B », « 3 » 1 Litigation Under FL Probate Code § 3.2.B.3 (2022)

3. Renunciation Of Benefits « Ch. 3 », « § 3.2 », « B », « 3 », • a » 1 Litigation Under FL Probate Code § 3.2.B.3.a (2022)

a. Applicability Under what is otherwise known as the “renunciation rule,” a person who receives any benefit under a will that the person contests must renounce the interest under the will. In re Estate of Pellicer, 118 So. 2d 59 (Fla. 1st DCA 1960). A contestant may, however, make a “qualified” renunciation to contest the will and still retain the right to benefit under the will if the contest is unsuccessful. In re Estate of Harby, 269 So. 2d 433 (Fla. 2d DCA 1972). See § 3.2.B.3.b. A renunciation incorporated in a petition for revocation of probate will be interpreted as qualified even though the renunciation language is absolute in

form. Carman v. Gilbert, 641 So. 2d 1323 (Fla. 1994); In re Estate of Stein, 301 So. 2d 120 (Fla. 3d DCA 1974). Nevertheless, it is good practice to specifically allege in the petition that the renunciation is made as a condition for contest of the will. A separate renunciation or a disclaimer in the form provided by F.S. Chapter 739 should be avoided. Before 2005, disclaimers in probate were governed by F.S. 732.801 and its predecessors. Disclaimers are now governed by the Florida Uniform Disclaimer of Property Interests Act, F.S. Chapter 739. The issue of whether the Act is applicable to qualified renunciations in will contests has not been directly answered by Florida courts. Both the prior and present statutes require disclaimers to be signed, witnessed, and acknowledged in the same manner as deeds. This requirement is not considered in the above court opinions. The practitioner should review the Act to determine whether failure to comply with the execution requirements could present a viable defense to invalidate a renunciation. This could be fatal to a refiling of the contest if the contestant is time barred. The Act should also be considered in reference to matters concerning service and matters that could bar a disclaimer. The Florida Supreme Court in Carman determined that the renunciation is a condition precedent to the action, but other Florida courts have been liberal in permitting the renunciation at any time when no actual prejudice to the proponent has been shown. See In re Estate of Filion, 353 So. 2d 1180 (Fla. 2d DCA 1977). See also Gossett v. Gossett, 182 So. 3d 694 (Fla. 4th DCA 2015). The practitioner should note that in Fintak v. Fintak, 120 So. 3d 177 (Fla. 2d DCA 2013), a case of first impression, the District Court of Appeal, Second District, held that the renunciation rule does not apply in situations that involve a settlor of a self-settled, inter vivos trust. The court stated “it is axiomatic that one who funds a trust with his or her own assets does not have to renounce any benefits received a condition precedent to instituting a challenge to the validity of the trust … because there can be no gift or devise to a settlor/beneficiary of a self-settled trust because his or her interest does not derive from the trust itself.” Id. at 183, distinguishing Pellicer, Harby, and Filion. « Ch. 3 », « § 3.2 », « B », « 3 », « b • 1 Litigation Under FL Probate Code § 3.2.B.3.b (2022)

b. Effect Florida courts have historically distinguished between “absolute” renunciation and “qualified” renunciation. See In re Estate of Harby, 269 So. 2d 433 (Fla. 2d DCA 1972). In Harby, the court explained the effect of absolute renunciation as an unconditional and forever renouncement of any benefits given in a will. Thus, if the contester fails, and the will is held valid, the contester may not take what was given him or her thereunder. Id. See Pournelle v. Baxter, 151 Fla. 32, 9 So. 2d 162 (Fla. 1942). However, the Harby court criticized the Pournelle decision, citing to the Florida Supreme Court’s subsequent decision in Barnett National Bank of Jacksonville v. Murrey, 49 So. 2d 535 (Fla. 1950). The Florida Supreme Court in Murrey set forth the qualified renunciation rule under which a beneficiary who has received benefits under a will “ ‘is not thereby estopped to contest the validity of the instrument (1) if he or she returns the benefits promptly, (2) if it appears that no prejudice has resulted to third persons whose interests are affected by the instrument by reason of the temporary receipt of the benefits, and (3) if the elements of laches are not present in the transaction.’ ” Harby, 269 So. 2d at 433, quoting Murrey, 49 So. 2d at 536. In setting forth the qualified renunciation rule, the Murrey court made it abundantly clear that the renunciation need not be an “absolute” one, concluding that by renouncing the right to the property as a condition to contesting a will, the beneficiary does not thereby forfeit all rights or interests regardless of the outcome of the litigation. Qualified renunciation was more recently addressed by the Florida Supreme Court in Carman v. Gilbert, 641 So. 2d 1323 (Fla. 1994). Thus, renunciation under the rationale of the above cited case law appears to have no adverse effect on the contestant, even if the contestant was unsuccessful in the action. « Ch. 3 », « § 3.2 », « B », « 4 » 1 Litigation Under FL Probate Code § 3.2.B.4 (2022)

4. In Terrorem Clause An “in terrorem clause,” a clause in a will that purports to revoke or reduce a beneficiary’s devise if the beneficiary contests the will or institutes other proceedings relating to the estate, is void under F.S. 732.517. The

statute is broad in scope and makes any penalty for contest unenforceable. The statute was held constitutional by the circuit court in Estate of Dinallo, Case No. 91-3645.06 (Fla. 15th Cir. July 1, 1992). The appeal was dismissed by stipulation. The District Court of Appeal, Fourth District, in In re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990), considered F.S. 732.517 to be valid and supportive in determining a collateral question. « Ch. 3 », « § 3.2 », « B », « 5 » 1 Litigation Under FL Probate Code § 3.2.B.5 (2022)

5. Dependent Relative Revocation The total revocation of a probated will by reason of defective execution, incapacity, or other grounds generally acts to revive the most recently executed previous will of the decedent, inasmuch as in most cases the revocation of the previous will was accomplished by the revocation clause in the purported last will. Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940); First Union National Bank of Florida, N.A. v. Estate of Mizell, 807 So. 2d 78 (Fla. 5th DCA 2002). Representation of an heir at law excluded by the decedent in a series of wills, therefore, can be difficult and can involve a series of actions. See §§ 3.2.B.1.a–3.2.B.1.b. This doctrine of “dependent relative revocation” generally will not operate to revive a prior will if the last will revokes all prior wills and only the distributive provisions of the last will are invalid. However, under limited circumstances, a will that partially fails may cause the revival of portions of a previous will of the decedent. See In re Estate of Jones, 352 So. 2d 1182 (Fla. 2d DCA 1977). The doctrine requires a finding that the testator intended to revoke the prior will only if the new will were to be deemed valid and that the testator would have preferred the earlier will to intestacy. Denson v. Fayson, 525 So. 2d 432 (Fla. 3d DCA 1988); In re Estate of Lubbe, 142 So. 2d 130 (Fla. 2d DCA 1962), 95 A.L.R. 2d 1246, overruled on other grounds 359 So. 2d 425. Grounded in the axiom of probate law that intestacy should be avoided whenever possible, courts have observed that the doctrine of dependent relative revocation is “a rule of presumed intention” that creates a rebuttable presumption that the testator would have preferred to have a prior will effectuated over statutory intestacy. Estate of Lubbe, 142 So. 2d at 134. See Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th

DCA 2005). As more recently explained by the court in In re Estate of Murphy, 184 So. 3d 1221 (Fla. 2d DCA 2016), “[t]he presumption’s application hinges on whether ‘the provisions of the present invalid will are sufficiently similar to the former will.’ ” Id. at 1227–1228, quoting Wehrheim, 905 So. 2d at 1008. Thus, similarity between the prior will and the contested will supports the presumption. This does not, however, mean the beneficiaries are substantially the same. The exclusion of children under a prior will and the contested will is a similarity. Wehrheim. In Murphy, the court determined that in cases of undue influence, if a prior will is sufficiently similar to an invalidated will, the presumption under doctrine of dependent relative revocation, i.e., that testator would have preferred to have a prior will effectuated over statutory intestacy, arises but may be rebutted by evidence that the revocation clause was not invalidated by undue influence and that it was not intended by the testator to be conditional on the validity of the testamentary provisions of the will. Thus, once the presumption arises, the burden of proof shifts to the opponent to show the revocation clause was not the product of undue influence. That burden requires a showing that the testator held an independent unaffected intention to revoke the otherwise affected will. « Ch. 3 », « § 3.2 », « B », « 6 • 1 Litigation Under FL Probate Code § 3.2.B.6 (2022)

6. Caveat F.S. 731.110 governs the filing of caveats in probate proceedings and Fla. Prob. R. 5.260 sets forth the procedural requirements for filing a caveat. The statute provides that an interested person concerned that an estate may be administered or a will probated without his or her knowledge may file a caveat with the court. F.S. 731.110(1). “A caveat may be filed either before or after the death of the person whose estate is to be administered, with the exception of caveats of creditors, who may only file after death.” Crescenzo v. Simpson, 239 So. 3d 213, 214–215 (Fla. 2d DCA 2018). The filing of a caveat has “the effect of precluding the admission of the will to probate” until the party filing it has the opportunity to litigate his or her challenge. Barry v. Walker, 103 Fla. 533, 137 So. 711, 714 (1931). Rule 5.260(f) requires service of formal notice on any caveator other than a creditor before admission of the will to probate. See F.S. 731.110(3). Thus,

when an interested person other than a creditor files a caveat and challenges the will, the probate court must make a determination on the challenge to the will before appointing a personal representative and admitting the will to probate. Crescenzo. Service should be made under F.S. 733.2123 and Rule 5.040. As previously stated, however, Rule 5.260(f) and F.S. 731.110(3) provide that there is no requirement that a caveator be served with formal notice of its own petition for administration. If a contest is anticipated, the filing of a caveat in the court having jurisdiction of the administration is desirable. There is a decided disadvantage faced by a contestant of a will that has been admitted to probate. By virtue of the appointment, a personal representative has easy access to all records of the decedent. The proponent also has the use of estate funds to defend the contest. A caveat before probate eliminates these advantages. See § 3.2.B.2.a. « Ch. 3 », « § 3.2 », « C » 1 Litigation Under FL Probate Code § 3.2.C (2022)

C. Attorney’s Relationship With Client « Ch. 3 », « § 3.2 », « C », • 1 » 1 Litigation Under FL Probate Code § 3.2.C.1 (2022)

1. General Considerations The general considerations applicable to the attorney’s relationship with a client in a will contest are the same as in any other type of litigation. The most important consideration is to keep the client informed of the status of the case by regular conferences, status letters, and copies of all pleadings in the case. A clear fee agreement at the initial consultation, confirmed by letter, will preclude a dispute on this subject later. Estimates of the time that will be expended should be made cautiously, inasmuch as these actions can easily become more involved than may appear likely at the commencement of proceedings. When an attorney is acting as the designated personal representative and as attorney for the estate, F.S. 733.617(6) provides that the attorney is entitled to both compensation as personal representative as well as fees for legal services rendered. However, if the attorney prepared or supervised execution of a will which designates the lawyer or a person related to the lawyer as personal representative, then no compensation can be awarded for serving as

personal representative in the absence of written disclosure executed prior to the will. The statute sets both the procedures and disclosures required. At the present time, there does not appear to be a rule or statute requiring disclosure of compliance or noncompliance with the statute. However, ethics would require disclosure to the court and interested parties of noncompliance. For a general discussion of the attorney-client relationship, see Chapter 1 of FLORIDA CIVIL PRACTICE BEFORE TRIAL (Fla. Bar 14th ed. 2022). « Ch. 3 », « § 3.2 », « C », « 2 » 1 Litigation Under FL Probate Code § 3.2.C.2 (2022)

2. Contingent Fee Arrangements In most circumstances, fee arrangements in will contest matters are not contingent, and the setting of fees is based on the usual practice under F.S. 733.6171 and Rule 4-1.5 of the Rules Regulating The Florida Bar. Some circumstances exist, however, such as apparent lengthy litigation, substantial uncertainty in evaluating a legal position, or the client’s inability or unwillingness to commit to a firm fee arrangement, that would make a contingent fee appropriate. Rule 4-1.5 does not prohibit contingent fees in contested probate matters. The concept was approved by the Florida Supreme Court in Watts v. Newport, 150 Fla. 288, 7 So. 2d 104 (1942), modified 9 So. 2d 417. In any contingent fee arrangement with a client, care should be taken to retain the right to petition the probate court for fees whether or not the action is successful. The agreement must be in writing and signed by the client. Rule 4-1.5(f)(2). The attorney must render a full accounting to the client at the conclusion of the matter. Rule 4-1.5(f)(1). Appropriate consideration should be given to ultimate judicial approval of the fee and authorization for its payment to the attorney by the personal representative. Collection of an earned contingent fee or firm fee from an out-of-state client can be difficult in some instances. That difficulty may be minimized by procuring from the client an appropriate assignment or authorization for the personal representative to remit the fee directly to the attorney from the client’s distributive share of the estate. « Ch. 3 », « § 3.2 », « C », « 3 » 1 Litigation Under FL Probate Code § 3.2.C.3 (2022)

3. Fees Set By Court An attorney who has rendered services to an estate may apply for fees to be paid from the estate. F.S. 733.106(3). In general, the services must be of benefit to the estate. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953), 40 A.L.R. 2d 1399. This benefit may be “an enhancement in value or an increase in the assets of the estate,” or it may result from “the intent of the decedent [being] established and his estate properly divided.” Segal v. Levine, 489 So. 2d 868, 869 (Fla. 3d DCA 1986). Attorneys’ fees may also be allowed to a nominated personal representative or a proponent of a will if the will is offered for probate in good faith. F.S. 733.106(2); In re Estate of Weinstein, 339 So. 2d 700 (Fla. 3d DCA 1976). The “good faith” required by the statute is that of the proponent, not the attorney. In re Estate of Hand, 475 So. 2d 1337 (Fla. 3d DCA 1985). These two tests differ to the extent that the awarding of fees may depend on the identity of the petitioner and the subsection under which the fees are requested. See, e.g., In re Estate of Rayhill, 516 So. 2d 26 (Fla. 3d DCA 1987), in which no attorneys’ fees were proper under F.S. 733.106(2) because the personal representative had acted in bad faith, but the attorney was permitted to show specific services that were of benefit to the estate, and Cushing v. Estate of Reynolds, 489 So. 2d 1204 (Fla. 3d DCA 1986), in which an attorney’s petition for fees for the unsuccessful attempt to probate a will was denied under F.S. 733.106(3), even though the court noted that an award of fees would have been proper if the proponent of the will had petitioned for the attorney’s fees under F.S. 733.106(2). The criteria for assessment of fees for attorneys and personal representatives in probate actions, as stated by the Florida Supreme Court in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991) (i.e., hourly rate, times hours expended), do not appear to apply in considering fees for extraordinary services incident to will contests or other adversary proceedings. But see Robert Rauschenberg Foundation v. Grutman, 198 So. 3d 685 (Fla. 2d DCA 2016) (declining to apply the lodestar method to calculate attorneys’ fees to trustee’s fees). See § 3.3.H. F.S. 733.6171 provides for fees to an attorney who is employed by the personal representative and sets forth the criteria for determining reasonable

compensation. The “benefits or detriments resulting” from the attorney’s services are one of the criteria. F.S. 733.6171(5). This statute is authority for allowance of fees incurred in defense of a will. F.S. 733.106(1) provides: “In all probate proceedings costs may be awarded as in chancery actions.” An unsuccessful contestant who is a beneficiary under a contested will may also have the legal fees of the successful proponent assessed against his or her share of the estate. F.S. 733.106(4). In the case of a pour-over will to a trust, those fees may be assessed against the contestant’s interest in the trust assets when the validity of both the will and trust are in issue. Estate of Paulk v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988). Because legal fees and costs may be substantial, this risk must be considered before filing a contest, particularly if the bequest to the contestant is significant. The assessment of such fees has been held to be dependent upon a showing of bad faith or inequitable conduct. In re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990). However, as explained by the court in Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016), the inequitable conduct doctrine “is a rarely applicable doctrine that applies only in ‘those extreme cases where a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons.’ ” Id. at 267, quoting Nedd v. Gary, 35 So. 3d 1028, 1030 (Fla. 4th DCA 2010). In Anderson, the court held that this doctrine did not apply to warrant the award of attorneys’ fees and costs to the estate following the testator’s son’s unsuccessful will contest when the son challenged the will based on the allegation that the testator lacked capacity and had revoked the will by defacement and obliteration, and, although the evidence supported the court’s decision to uphold the will, the case was not so clear cut as to render the son’s litigation a matter of bad faith. F.S. 733.106(3) provides that “[a]ny attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” Florida courts have interpreted this provision as requiring that a lawyer’s services benefit the estate, Samuels v. Estate of Ahern, 436 So. 2d 1096, 1097 (Fla. 4th DCA 1983), which includes “services that enhance the value of the estate, as well as services that successfully give effect to the testamentary intention set forth in the will,” Estate of Brock, 695 So. 2d 714, 717 (Fla. 1st DCA 1996). Accord Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009); Dew v. Nerreter, 664 So. 2d 1179 (Fla. 5th DCA 1995). See

Hampton v. Estate of Allen, 198 So. 3d 954 (Fla. 5th DCA 2016) (specific devisee of real estate under testator’s will was entitled to award of attorneys’ fees from testator’s estate for fees that specific devisee incurred in successfully defending prospective purchaser’s specific-performance action concerning testator’s real estate; real estate was transferred to specific devisee in accordance with testator’s intent, as embodied in his will). F.S. 733.106(3)–(4) does not authorize the imposition of personal liability for fees against an unsuccessful contestant. The potential liability for fees is limited to the contestant’s share of the estate as a beneficiary. Dourado v. Chousa, 604 So. 2d 864 (Fla. 5th DCA 1992). See also Bennett v. Berges, 50 So. 3d 1154 (Fla. 4th DCA 2010). The offer of judgment statute, F.S. 768.79, has been held to be inapplicable to will revocation proceedings. Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000). The practitioner should note that before September 28, 2011, Fla. R. Civ. P. 1.525 applied to adversary probate proceedings, requiring the motion for attorneys’ fees and costs to be filed within 30 days of the rendition of the final judgment. Hays v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009). However, following the modification of Fla. Prob. R. 5.025(d)(2), effective September 28, 2011, Rule 1.525 is no longer applicable in adversary probate proceedings. Finnegan v. Compton, 154 So. 3d 370 (Fla. 4th DCA 2014). See § 3.2.G.3. Failure to allege entitlement to assessment of fees against the wrongdoer’s share of the estate serves as a waiver of the right to first assert the claim after trial. Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). See Wintter & Associates v. Kanowsky, 992 So. 2d 434 (Fla. 4th DCA 2008) (beneficiary was not entitled to recover attorneys’ fees absent having pled entitlement to such fees). However, such claim for fees can be noticed in a number of ways other than a literal motion or demand. See Zurro v. Wells Fargo Bank, N.A., 209 So. 3d 27 (Fla. 2d DCA 2016) (discussing and applying Stockman exception). The court in In re Estate of Paris, 699 So. 2d 301, 302 (Fla. 2d DCA 1997), held that a motion for assessment of fees under F.S. 733.106(3) may be filed “at any time during the pendency of the estate” when the services

involved contest of the will and other matters benefiting the estate. In the event of appeal, the petition to assess attorneys’ fees for appellate services is properly filed in the trial court and not in the appellate court. Geldi v. MacCabe, 243 So. 3d 360 (Fla. 2d DCA 2018); In re Estate of Gray, 626 So. 2d 971 (Fla. 1st DCA 1993). For a thorough discussion of compensation disputes, see Chapter 11 of this manual. « Ch. 3 », « § 3.2 », « C », « 4 » 1 Litigation Under FL Probate Code § 3.2.C.4 (2022)

4. Representing One Of Multiple Interested Parties On occasion, there are a number of beneficiaries who may benefit from the attorney’s representation of only one client. Obviously, a lawyer may represent any interested party regardless of the total number of potential beneficiaries. Contingent fee arrangements in these cases generally are not fair or satisfactory, because parties not sharing in the fee derive benefit from the service. In these cases, a firm fee arrangement, with reservation of the right to petition the court to fix fees for the services rendered to the estate, is the preferable course of action. If there is no conflict of interest, it likewise is permissible to represent multiple parties whose interests are the same to minimize the total fee impact on the estate that would result from separate attorneys representing each beneficiary. In cases having multiple attorneys, there appear to be no ethical considerations that prohibit sharing and pooling the attorneys’ efforts to accomplish the common goals of the clients and to minimize fees. « Ch. 3 », « § 3.2 », « C », « 5 » 1 Litigation Under FL Probate Code § 3.2.C.5 (2022)

5. Conflicts Of Interest Conflicts of interest can arise in the representation of multiple clients. For example, a child’s potential share may be one half of the estate, whereas a grandchild’s share may be one tenth. Great difficulty can be experienced, particularly in settlement negotiations, because parties who have little to gain may be willing to settle the action for a far less proportionate amount than would be agreeable to major beneficiaries.

The attorney who represents both “innocent” beneficiaries and a beneficiary accused of undue influence will encounter serious ethical problems. It is apparent that an attempt to limit revocation to the testamentary clause attributable to the alleged wrongdoer, in order to preserve testamentary clauses benefiting innocent beneficiaries, creates a conflict. Failure to take that approach, on the other hand, would be prejudicial to the innocent beneficiaries. Representation of a spouse and children in a will contest can create a conflict of interest because of the spouse’s elective share right under F.S. Chapter 732. If the spouse’s elective share exceeds the possible benefit of a will contest, a conflict exists, because obviously it is to the spouse’s benefit to make the election and avoid the expense of a will contest. A conflict may result from representation of several heirs at law in a proceeding to revoke a will when a previous will exists that bequeaths the heirs’ shares differently than an intestate distribution. The attorney must decide whether to attempt to revive the previous will or to claim that intestacy should result. See § 3.2.B.1.a. It should be obvious from the foregoing discussion that representation of multiple parties must be carefully analyzed to ensure that no conflict exists either in the immediate representation or in the ultimate result. « Ch. 3 », « § 3.2 », « C », « 6 • 1 Litigation Under FL Probate Code § 3.2.C.6 (2022)

6. Malpractice Malpractice may occur as frequently in probate litigation as in any other area of practice. Disregarding the statute of limitations is probably the most common cause of malpractice claims in probate litigation. Limitation periods in probate matters are of relatively short duration. For example, a proceeding to contest a will admitted to probate must be filed on or before the date that is three months from the date the contestant is served with the notice of administration. F.S. 733.212(3). This is too little time in which to conduct extensive correspondence and investigation. If sufficient information is available to justify the action, the contest should be commenced as soon as possible. The contestant must rely on amendment of the petition to bring in subsequently discovered matter.

The proponent of a will must ensure that all beneficiaries are served with the notice of administration. Failure to do this extends the time to contest, for those parties who have not been served, to the date of discharge of the personal representative. F.S. 733.109(1). The practitioner must determine, as a matter of judgment, the desirability of serving potentially interested but not indispensable parties. In representing a non-heir contestant who claims under a prior will, for example, one should consider whether intestate heirs should be made parties. If they are not, it appears that the heirs retain the right to contest any will, which leads to multiple adversary proceedings and client displeasure. That risk should be discussed and confirmed with the client to avoid the potential of a later malpractice claim. If the client is a significant beneficiary under a will being contested, the client should be informed that, if the contest fails, it is possible the client’s bequest may be charged the attorneys’ fees incurred by the proponent in defending against the contest. Failure to so inform the client could result in a malpractice claim. See Shear v. Hornsby & Whisenand, P.A., 603 So. 2d 129 (Fla. 3d DCA 1992). One of the examples of malpractice for the inexperienced probate lawyer or the busy lawyer, can be found in Fla. Prob. R. 5.401. Rule 5.401(a) requires an objection to a petition for discharge or final accounting to be filed within 30 days after the service of the later of a petition for discharge or final accounting. Rule 5.401(c) requires service of the objection on the personal representative and interested parties no later than 30 days after the last date on which the petition or accounting was served on the objector. Rule 5.401(d) provides any interested person may set a hearing on the objection and serve notice of hearing to all interested persons within 90 days of filing of the objection. If the notice of hearing is not timely served, the objections shall be deemed abandoned, and the personal representative may proceed to make distributions. There is no provision for extension of time. An objector should timely file objection and not delay setting the hearing and service of the notice of hearing. Because 30 days are allowed within which to serve the objection, there appears to be no reason why the notice of hearing cannot be served with the objection. It should be clear that diligence and adequate preparation are essential to

avoid malpractice in probate litigation. « Ch. 3 », « § 3.2 », « D » 1 Litigation Under FL Probate Code § 3.2.D (2022)

D. Pleadings « Ch. 3 », « § 3.2 », « D », • 1 » 1 Litigation Under FL Probate Code § 3.2.D.1 (2022)

1. Petition For Revocation Of Probate « Ch. 3 », « § 3.2 », « D », • 1 », • a » 1 Litigation Under FL Probate Code § 3.2.D.1.a (2022)

a. In General The petition for revocation of probate may be filed by any interested party under F.S. 733.109(1) and must state the interest of the petitioner and the grounds for revocation. Because these are the only allegations required, the pleading need not be lengthy. It is desirable, however, to allege the general jurisdictional facts and background. Time limitations as to the filing of a will contest have generally been strictly enforced. Lack of knowledge of the facts or concealment of the facts by an alleged wrongdoer are not sufficient to constitute “excusable neglect,” which would otherwise permit an untimely contest of a will. All Children’s Hospital v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000). A will contestant who files a probate complaint that contains allegations that would otherwise support a petition to revoke probate, but which complaint fails to request that relief, is entitled to amend the complaint to seek revocation of probate, which will relate back to the filing of the initial complaint and is not time barred. Winslow v. Deck, 225 So. 3d 276 (Fla 4th DCA 2017) (alleged sole beneficiary of testator’s second will was entitled to amend her timely-filed pleadings to correct technical defects for seeking revocation of probate of first will that was admitted to probate, because nothing indicated that alleged beneficiary abused privilege to amend, that there would have been prejudice to opposing party by permitting leave to amend, or that amendment would have been futile). « Ch. 3 », « § 3.2 », « D », • 1 », « b » 1 Litigation Under FL Probate Code § 3.2.D.1.b (2022)

b. Form For Petition IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION IN RE: ESTATE OF _________ _________, Petitioner, vs.

File No. ___ Adversary Proceeding No. ___

_________, as Personal Representative, et al., Respondents.

COMMENT: Fla. Prob. R. 5.025(d)(5) requires the probate caption and an extension, which includes the name of the first petitioner and the first respondent.

PETITION FOR REVOCATION OF PROBATE OF WILL Petitioner,

(name), alleges:

1. Petitioner is the [state relationship to decedent] and sole heir at law of the decedent, (name). COMMENT: This allegation is necessary to establish standing. See §§ 3.2.B.1.a–3.2.B.6. If the contestant is a beneficiary under a prior will, that allegation should be made and a copy of the will attached. The proponent of the will should move to dismiss if there is not a sufficient showing that the contestant is an interested party who has standing. A child of a living child of the decedent, for example, is not an heir at law who would benefit by intestacy. 2. The purported Last Will and Testament of the decedent admitted

to probate in this court, dated ______, is not the valid Last Will and Testament of the decedent and the probate of that will should be revoked on the following grounds: a. The decedent did not possess testamentary capacity to execute a will on (date), and was not mentally competent to understand the nature and extent of [his] [her] estate, the natural objects of [his] [her] bounty, or the effect of the purported will. b. Alternatively, the will was the result of the exercise of undue influence by Respondent, (name), upon the decedent. [State additional facts to support the allegation, such as [Respondent, (name), was a person standing in a fiduciary relationship with the decedent, in that [he] [she] possessed a general power of attorney to act for the decedent, was active in the procurement of the will of the decedent, is a major beneficiary under the will, was present and directed the execution of the will by the decedent, deprived the decedent of independent advice and counsel, and so controlled the mind of the decedent that the will was the product of the mind of the third party and not of the mind of the decedent.].] COMMENT: The pleader should allege facts that apply to the case in question. See §§ 3.2.A.3.a–3.2.A.3.b. The above facts should not be alleged if they do not apply. It does not help the case to make allegations that cannot be proved. c. Petitioner is without knowledge as to whether the will was executed in accordance with F.S. 732.502, and it is Respondent’s burden to prove due execution of the will. COMMENT: This allegation always should be made to ensure that the proponent will have the burden to prove due execution. See F.S. 733.107; §§ 3.2.A.1–3.2.A.2.d. The proponent should seek to have that issue resolved promptly by summary judgment. 3. The persons interested in this estate are as follows: _________ _________ _________

COMMENT: List personal representatives, all beneficiaries under the will, and the surviving spouse. Beneficiaries under a previous will may be listed. It is good practice to join heirs at law. 4. Petitioner renounces any devise or interest that [he] [she] may have under the purported will. This renunciation is made as a condition to contesting the will of the decedent and is a qualified renunciation under the case law of Florida. COMMENT: If known, prior wills exist excluding the contestant, the petitioner should consider an allegation that such prior wills are invalid on stated grounds, or that the prior wills would not be revived if the probate of the last will is revoked. Cates v. Fricker, 529 So. 2d 1253 (Fla. 2d DCA 1988), discussed in § 3.2.B.1.a, imposes the burden on the contestant to show the invalidity of prior wills. The case does not reflect an affirmative obligation to plead the issue in order to establish standing. Although the petitioner could omit these allegations and address the issue if raised as a motion to dismiss or an affirmative defense by the proponent, it must be recognized that a contestant bears the burden of proving standing. Failure to meet that burden can be fatal even if the proponent fails to allege lack of standing. Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005). In re Estate of Murphy, 184 So. 3d 1221 (Fla. 2d DCA 2016) disagreed with Wehrheim to the extent that court held that extrinsic evidence could not be considered in cases involving undue influence. 5. Petitioner has been required to obtain the services of the undersigned attorney to represent [him] [her] in this cause and has incurred and will incur expenses for legal fees and costs herein. WHEREFORE Petitioner demands that the probate of the purported will of the decedent executed on (date), be revoked, and that the court determine assessment of reasonable attorneys’ fees and costs incurred by Petitioner and all other proper relief. COMMENT: If the petitioner’s standing arises out of a prior will, allegations of that fact should be made and the request for relief should include a request that the prior will be admitted to probate as the decedent’s Last Will and Testament. This request may be in the form of a

counterpetition for administration, alleging the elements set forth in the probate form available from Florida Lawyers Support Services, Inc.© (available at www.flssi.org). It is not required that interested parties be named in the petition. The inclusion of paragraph 3 is suggested because it compels direct consideration of the identity of required and optional respondents and is a convenient checklist for service of process. Failure to serve an interested party is a serious jurisdictional defect and may expose an otherwise completed will contest to relitigation with the omitted party. /s/ ____________ (name of petitioner) Petitioner /s/ ____________ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar number ___ « Ch. 3 », « § 3.2 », « D », • 1 », « c • 1 Litigation Under FL Probate Code § 3.2.D.1.c (2022)

c. Service Of Petition « Ch. 3 », « § 3.2 », « D », • 1 », « c •, • i » 1 Litigation Under FL Probate Code § 3.2.D.1.c.i (2022)

i. In General As in any civil case, the probate court must have jurisdiction of the parties to render an effective judgment. The two aspects to be considered are the identity of the necessary respondents and the method of service on them. « Ch. 3 », « § 3.2 », « D », • 1 », « c •, « ii » 1 Litigation Under FL Probate Code § 3.2.D.1.c.ii (2022)

ii. Parties

The petition must be served on the personal representative and on all interested parties, which includes any person who reasonably may be expected to be affected by the outcome of the proceedings. F.S. 731.201(23). The decedent’s spouse and all beneficiaries under the probated will are necessary parties. Heirs at law are deemed essential parties. The personal representative is an interested party. Beneficiaries under previous wills are probably not necessary parties, but if they are to be bound by the proceedings, it is prudent to join them as parties in most cases. If the contestant alleges the existence of prior wills in the petition for revocation, or if the matter is raised by affirmative defenses or motion to dismiss, those beneficiaries should be served. The filing of a petition for revocation does not extend the time for a spouse to elect a spouse’s share under Part II of F.S. Chapter 732. See F.S. 732.2135. If the attorney represents a spouse in the contest, a petition to extend the time for election should be filed under F.S. 732.2135, to preserve that right. The practitioner should note that F.S. 732.2135(2) was amended to provide that within the time period under subsection (1), “or 40 days after the date of termination of any proceeding which affects the amount the spouse is entitled to receive under [F.S.] 732.2075(1), whichever is later, but no more than 2 years after the decedent’s death,” the surviving spouse or an attorney in fact or guardian of the property of the surviving spouse may petition the court for an extension of time for making an election. Ch. 2017-121, § 9, Laws of Fla. The practitioner should remember that any party not joined in the action may not be bound by the court’s judgment. « Ch. 3 », « § 3.2 », « D », • 1 », « c •, « iii • 1 Litigation Under FL Probate Code § 3.2.D.1.c.iii (2022)

iii. Methods Of Service Per Fla. Prob. R. 5.040, formal notice must be served on all respondents in all adversary proceedings, except as provided in proceedings pursuant to F.S. 825.1035. Rule 5.040 provides a variety of methods of service including by mail, personal service by the sheriff, or publication. Service by mail requiring a receipt appears to be the most expeditious for both in-state and out-of-state parties. Caution is indicated in cases in which the receipt is signed by an “agent” of the addressee. In such cases, alternative methods of service should probably be considered. F.S. 731.301(2) provides that formal

notice is sufficient to acquire jurisdiction over a person receiving formal notice. Rule 5.040(a)(4) provides that service of formal notice is “complete on receipt of the notice.” “If a document is served in the manner provided for service of formal notice, service is completed on receipt of the document, and proof of service shall be in the manner set forth in subdivision (a)(4).” Rule 5.040(e). F.S. 731.301 no longer provides that proof of service can be shown by evidence that the addressee refused delivery. If delivery is refused, alternative methods of service should be pursued. All receipts for service by certified mail should be carefully examined. If there is any doubt as to the effectiveness of the service, the alternative service procedures under F.S. Chapters 48 and 49 should be considered. However, a party who has filed a response, without contest of jurisdiction, is deemed to have waived objections to service. In many cases, interested parties may support the petition or may not wish to take an active part. F.S. 731.302 permits these parties to file a consent or waiver, which eliminates the need to serve them. « Ch. 3 », « § 3.2 », « D », « 2 » 1 Litigation Under FL Probate Code § 3.2.D.2 (2022)

2. Reply To Petition « Ch. 3 », « § 3.2 », « D », « 2 », • a » 1 Litigation Under FL Probate Code § 3.2.D.2.a (2022)

a. Standard Grounds Proceedings to revoke a will are an adversary proceeding under Fla. Prob. R. 5.025, and, after formal notice, the proceedings are conducted similarly to lawsuits under the Florida Rules of Civil Procedure. Pleadings, motions, and affirmative defenses, therefore, should be in accordance with the civil rules. The reply to the petition for revocation should admit or deny each allegation. Any defense permitted under Fla. R. Civ. P. 1.140(b) should be asserted in the responsive pleading or by motion. The attorney should be careful in admitting any allegation of the petition unless absolutely certain of the fact. Because admitted allegations do not require proof, the admission of a fact not readily provable by the contestant, such as standing to sue, familial

relationship, or close contact with the decedent, is disadvantageous. In a number of instances, references by a decedent to his or her “child,” “uncle,” or similar relation are not indicative of blood relationship. The relationship could be nonexistent or could be derived from marriage. « Ch. 3 », « § 3.2 », « D », « 2 », « b » 1 Litigation Under FL Probate Code § 3.2.D.2.b (2022)

b. Special Grounds The practitioner should not overlook the possibility of asserting defenses based on special grounds. Among these are: failure to join indispensable parties; defects in service of process; failure to file within the permitted time; failure to show that an action based on undue influence affects all parts of the will; the existence of previous wills that exclude the contestant; and failure to renounce a bequest under the will. In some cases, elements of an estoppel or waiver may be present and should be pled. « Ch. 3 », « § 3.2 », « D », « 2 », « c • 1 Litigation Under FL Probate Code § 3.2.D.2.c (2022)

c. Attack On Standing Of Petitioner If a petitioner lacks standing to sue, the merits of the petition are immaterial. The attorney should investigate and require proof of the allegations of the contestant’s standing as an interested party. For example, it is not uncommon to have a contest filed by a grandchild seeking to establish intestacy when the contestant’s parent is living. The attorney should not assume that the allegations of intestate relationship are true. If the petition does not allege affirmatively all facts necessary to establish an intestate heir’s standing, the attorney should file a motion to dismiss. If standing is asserted based on status as a devisee under a previous will,

the attorney should compel production of the alleged former will to ensure that the document exists and that it complies on its face with the execution requirements of F.S. 732.502. If the contestant claims as an intestate heir and there is a will or series of wills executed before the final will that exclude the contestant, an affirmative response attaching the previous wills and alleging lack of standing should be filed. This defense notifies the contestant of a burden to overcome a series of wills and could be the basis for summary judgment in the proponent’s favor. For a discussion of standing in will contest cases, see §§ 3.2.B.1.a– 3.2.B.6. « Ch. 3 », « § 3.2 », « D », « 3 • 1 Litigation Under FL Probate Code § 3.2.D.3 (2022)

3. Motions « Ch. 3 », « § 3.2 », « D », « 3 •, • a » 1 Litigation Under FL Probate Code § 3.2.D.3.a (2022)

a. In General All motions permitted under the Florida Rules of Civil Procedure (except Fla. R. Civ. P. 1.525) are permitted in probate proceedings. Fla. Prob. R. 5.025(d)(2). The use of motions is a valuable practice. Motions should not be used to educate the opposing party, but to pinpoint issues and compel appropriate allegations of fact. « Ch. 3 », « § 3.2 », « D », « 3 •, « b » 1 Litigation Under FL Probate Code § 3.2.D.3.b (2022)

b. Motion To Dismiss A motion to dismiss is most appropriate to compel the contestant to allege facts sufficient to establish standing as an interested party, or to compel attachment of a former will under which the contestant may claim standing. See Fla. R. Civ. P. 1.130. A motion to dismiss is also appropriate when the petition was not filed within the time permitted by statute, or if it fails to include a renunciation of any benefits under the probated will. If undue influence is alleged as a ground for revocation without stating the identity of the alleged wrongdoer, a motion to dismiss will sometimes compel the allegation to be made. Generally, a motion to dismiss based on the

general ground of failure to allege sufficient facts to constitute a cause of action for undue influence is not desirable, inasmuch as little is gained by having the contestant go into great detail concerning acts of undue influence. While opinions differ, the objective of a motion to dismiss should be to require the contestant to allege facts that may be difficult or impossible to prove later, or to attack standing, jurisdiction, or service of process. If a motion to dismiss is granted with leave to file an amended petition, the amendment relates back to the date of the original petition for purposes of determining if the petition is timely filed. In re Estate of Snyder, 562 So. 2d 403 (Fla. 4th DCA 1990). « Ch. 3 », « § 3.2 », « D », « 3 •, « c » 1 Litigation Under FL Probate Code § 3.2.D.3.c (2022)

c. Summary Judgment Fla. R. Civ. P. 1.510 was substantially amended, effective May 01, 2021, to adopt Fed. R. Civ. P. 56 and federal case law regarding summary judgement. In re: Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d 72 (Fla. 2021) The rule states: “The summary judgement standard provided for in this rule shall be construed and applied in accordance with the federal summary judgement standard.” Rule 1.510(a). “[T]hose applying new [Rule] 1.150 must recognize that the correct test for the existence of a genuine factual dispute is whether ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” In re: Amendments to Florida Rule of Civil Procedure 1.510, 317 So. 3d at 75, quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The procedural requirement of the amended rule substantially differs from the prior rule. Notice of the motion must be served by the movant at least 40 days before the time fixed for the hearing. The nonmovant must serve a response that includes the nonmovant’s supporting factual position at least 20 days before the time fixed for the hearing. There is no provision for the movant to file a reply, but it appears reasonable that the movant can do so during the 20 days before the hearing. A suggested form of notice of hearing is as follows: _________

File No. ___

Petitioner, vs.

Adversary Proceeding No. ___

_________, as Personal Representative of the Estate of _________, and (Interested Parties), Respondents. _________/

NOTICE OF HEARING ON MOTION FOR SUMMARY JUDGEMENT TO: _________, as Personal Representative of the Estate of ____________, (and all other interested parties). TAKE NOTICE THAT the time fixed for hearing of the Petitioner’s _________ Motion for Summary Judgement is the _________ day of ______, 20___, at _________ o’clock ___M, before the Honorable Circuit Court Judge _________, in chamber at ____________. Be advised that Florida Rule of Civil Procedure 1.150(c)(5) provides in party: “At least (20) days before the time fixed for the hearing, the nonmovant must serve response which includes the nonmovants’ supporting factual position …” BE GOVERNED ACCORDINGLY. DATED: ___ (Certificate of Service) /s/ ____________ (name of attorney) Attorney for Petitioner (address and phone number) (e-mail address(es))

Florida Bar number ___ COMMENT: The statement concerning the time to respond is not mandatory but given the history of statutes and rules which require such statements, it appears appropriate to include the information. Many affidavits in opposition to summary judgment are based on hearsay or other inadmissible evidence. It is recommended that an objection to potentially barred affidavits or depositions be in writing and be filed in advance of the summary judgment hearing to ensure that the objection will be of record, particularly if no court reporter is retained. The objection should be as precise as possible. A minimal objection could be made in the following form: OBJECTION TO AFFIDAVIT OF_________ Petitioner objects to the affidavit of _________ filed by Respondent in support of the motion for summary judgment. The affidavit is based on hearsay and not affiant’s personal knowledge, and the documents attached as exhibits are not authenticated as required by F.S. 90.902. « Ch. 3 », « § 3.2 », « D », « 3 •, « d • 1 Litigation Under FL Probate Code § 3.2.D.3.d (2022)

d. Objections On Jurisdictional Grounds A motion is the appropriate method of attacking a petition that is defective on jurisdictional grounds. A party confronted with defective service or the failure to join indispensable parties should correct those issues before responding affirmatively to the merits. Otherwise, the cause can develop a substantial pleading file or proceed to trial during a period when an interested party may not be subject to the jurisdiction of the court. Actions against a personal representative or trustee that seek to claim damages against the fiduciary individually require that service of process be made upon the individual. Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015). Likewise, service on an individual is not service on that individual in the capacity of personal representative, and appropriate objection should be made. « Ch. 3 », « § 3.2 », « E » 1 Litigation Under FL Probate Code § 3.2.E (2022)

E. Discovery « Ch. 3 », « § 3.2 », « E », • 1 » 1 Litigation Under FL Probate Code § 3.2.E.1 (2022)

1. Application Of Florida Rules Of Civil Procedure Discovery is as available in probate litigation as it is in other civil matters. Fla. Prob. R. 5.080(a) adopts substantially all of the rules of deposition and discovery under the Florida Rules of Civil Procedure. The rule specifically provides that the court has broad discretion to assess costs of discovery against any party or beneficiary. Rule 5.080(b). Rule 5.080(c) clearly provides that most of the discovery procedures may be utilized even if no adversary proceeding is pending. This can be helpful in determining the factual basis for a contest. However, pending discovery does not toll the time for contest. Rule 5.025 provides that adversary proceedings be conducted in accordance with Florida Rules of Civil Procedure as nearly as practical, except for Rule 1.525, which relates to motions for fees and costs. One of the most effective discovery rules in probate litigation is the request for admissions under Fla. R. Civ. P. 1.370. See FLORIDA CIVIL PRACTICE BEFORE TRIAL §§ 16.6.A–16.6.F (Fla. Bar 15th ed. 2022) for further discussion. « Ch. 3 », « § 3.2 », « E », « 2 » 1 Litigation Under FL Probate Code § 3.2.E.2 (2022)

2. Form For Notice Of Motion Seeking Assessment Of Costs COMMENT: Fla. Prob. R. 5.080(b) gives broad discretion to the trial court for assessment of attorneys’ fees and costs incurred in the course of discovery. Opposing counsel may not have considered that possibility, and a notice concerning an intention to seek fees and costs may be appropriate. A suggested form is set out below. (Party Designation)

(Title of Court)

NOTICE UNDER FLORIDA PROBATE RULE 5.080

Respondent, (name), through [his] [her] undersigned attorney, gives notice to (name), Petitioner, that Respondent will seek an assessment of [his] [her] attorneys’ fees and costs incurred in connection with any and all discovery conducted by Petitioner in the above-entitled action, pursuant to the provisions of Florida Probate Rule 5.080.

(Certificate of Service) /s/ ____________ (name of attorney) Attorney for Respondent (address and phone number) (e-mail address(es)) Florida Bar number ___ « Ch. 3 », « § 3.2 », « E », « 3 • 1 Litigation Under FL Probate Code § 3.2.E.3 (2022)

3. Interested Witnesses Even though the Dead Person’s Statute, F.S. 90.602, has been repealed, interested persons are not barred from testifying as to communications with a deceased person, other than under such objections as may be available under the hearsay rule. See F.S. 90.801–90.805. See also § 3.2.F.4.c. « Ch. 3 », « § 3.2 », « F » 1 Litigation Under FL Probate Code § 3.2.F (2022)

F. Trial « Ch. 3 », « § 3.2 », « F », • 1 » 1 Litigation Under FL Probate Code § 3.2.F.1 (2022)

1. Jury Trial A notice of any hearing that is intended to be evidentiary must disclose that fact. Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012). No right to a jury trial in probate matters is provided by either the Florida Statute or the Florida Probate Rules or the Florida Rules of Civil Procedure. Nor is there a

right to a jury trial in will contest cases. See Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981). See also § 10.3.B.6 of this manual. Article I, § 22, of the Florida Constitution applies to actions in which a jury trial was allowable before implementation of the first state constitution; probate cases previously were not the subject of trial by jury. Lavey v. Doig, 25 Fla. 611, 6 So. 259 (1889). Fla. R. Civ. P. 1.430 applies only to jury trials as declared by the Florida Constitution or by the Florida Statutes. The trial court, however, may exercise its discretion to permit a trial by jury in an advisory capacity, as an aid in determining disputed issues of fact. Allen; In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976). The trial court may reject the jury’s findings. See §§ 10.4.A–10.4.B of this manual. The considerations in electing to request a jury trial basically are those applicable to any civil action. See FLORIDA CIVIL TRIAL PRACTICE Chapter 3 (Fla. Bar 14th ed. 2021). « Ch. 3 », « § 3.2 », « F », « 2 » 1 Litigation Under FL Probate Code § 3.2.F.2 (2022)

2. Nonjury Trial Most will contest cases are conducted by the court without a jury. As in jury trials, the notice of hearing in a nonjury matter that is intended to be an evidentiary hearing must disclose that fact. Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012). If the action is being heard by an experienced probate judge, there are advantages to a nonjury trial, including expeditious handling of the trial, greater ability to accommodate gaps or dislocations in the presentation of testimony, the diminished likelihood of a mistrial, and the relative ease of trying a nonjury case. In those jurisdictions where the traits of the particular judge involved may create a disadvantage for one side or the other, a jury trial is a possible alternative. « Ch. 3 », « § 3.2 », « F », « 3 » 1 Litigation Under FL Probate Code § 3.2.F.3 (2022)

3. Pretrial Conference And Mediation Pretrial conferences with the court are the rule in jury cases, generally. The advantages of pretrial conferences are so great that a pretrial conference in all will contest cases is strongly recommended. It may be provided by

agreement of the attorneys or by motion. Although discovery discloses many aspects of an opponent’s case, a pretrial conference with exchange of witness lists and documents should cover most gaps and expedite the trial. Fla. R. Civ. P. 1.200 permits a pretrial conference in any case. Pretrial conferences are discussed in detail in Chapter 17 of FLORIDA CIVIL PRACTICE BEFORE TRIAL (Fla. Bar 14th ed. 2022). Mediation is permitted under Rule 1.710 and is applicable to adversary probate proceedings under Fla. Prob. R. 5.025(d)(2). The success of mediation in general civil litigation should not be ignored. Many adversary probate matters could be resolved through mediation. Mediation has the potential to permit the parties to agree on compromises and solutions that would not be available in a judgment. Face-to-face meeting of the adversaries in mediation may overcome the bitterness and family antagonism that otherwise pushes an adversary proceeding to trial. The procedure is sometimes overlooked, but definitely could be of benefit. « Ch. 3 », « § 3.2 », « F », « 4 » 1 Litigation Under FL Probate Code § 3.2.F.4 (2022)

4. Testimony « Ch. 3 », « § 3.2 », « F », « 4 », • a » 1 Litigation Under FL Probate Code § 3.2.F.4.a (2022)

a. Interested Witnesses Parties interested in the action are subject to the same impeachment techniques used in any other type of litigation. The extent and nature of the witness’s interest should be the subject of cross-examination. The attorney may want to ask the witness to acknowledge that the witness will stand to lose benefits if his or her testimony is not accepted. On the other hand, the party calling the interested witness should inquire as to the witness’s interest in the case, in order to minimize possible impeachment on cross-examination. « Ch. 3 », « § 3.2 », « F », « 4 », « b » 1 Litigation Under FL Probate Code § 3.2.F.4.b (2022)

b. Expert Testimony The testimony of doctors, nurses, and other professionals has great weight in most cases. In contests involving a will executed by an elderly

individual, it is probable that some medical attention was sought during the periods before and after execution. If so, the doctor’s notes and office records concerning the testator should be examined. These records frequently disclose information not related orally by the doctor. Hospital records often contain observations on the patient’s condition and the names of the attendants making the notes. Nursing homes and assisted living facilities often maintain records similar to hospital records, and these likewise are valuable sources of information. All of these sources should be consulted, particularly in a contest involving allegations of incompetency. Hypothetical questions are of some help in will contest matters. Although these questions must contain a reasonable representation of the facts, they need not conform exactly to the evidence, but may reflect any reasonable theory of the effect of the evidence. See Mutual Ben. Health & Accident Ass’n v. Bunting, 133 Fla. 646, 183 So. 321 (1938). Expert testimony is not conclusive of any issue, as demonstrated in Dozier v. Smith, 446 So. 2d 1107 (Fla. 2d DCA 1984), in which two experts unequivocally testified that the signature of the testatrix was a forgery, but the witnesses to the will testified that the testatrix signed the document. The trial court’s finding of forgery was reversed on appeal on the ground that as a matter of law, expert testimony, standing alone, is insufficient to overcome the unimpeached testimony of eyewitnesses. However, the Florida Supreme Court in Boyd v. Gosser, 78 Fla. 64, 82 So. 758 (1919), 6 A.L.R. 500, did not apply this rule when several disputed signatures were so identical as to be strongly presumptive of tracing, and the testimony of eyewitnesses as to the genuineness of the signatures contained improbable statements. As explained in Ellis v. Warner, 2018 U.S. Dist. LEXIS 10649, *12, 2018 WL 4846762, *6 (S.D. Fla. 2018), “Florida courts are reluctant to invalidate a properly-witnessed will as a forgery, even when a handwriting expert concludes that the will is forged, because no matter how qualified the expert is, the expert’s report is merely secondary evidence to eyewitness testimony.” The case of In re Estate of Hammermann, 387 So. 2d 409 (Fla. 4th DCA 1980), involved a will executed just a few days before an examination of the testator by two psychiatrists, both of whom determined that the testator lacked mental capacity. The court rejected that expert testimony and accepted the contrary testimony of laypersons.

The attorney should insist on conferring personally with the expert before trial and should not rely on a written report or letter to reflect the expert’s true opinion. During the conference, the practitioner should concentrate on the areas that may result in impeachment of the expert’s opinion and should prepare the witness for cross-examination on the weak points of his or her testimony. There will be facts or circumstances adverse to a particular position in almost every case. These facts should be disclosed to give the expert time before trial to consider their impact on his or her opinion. The cross-examination is not the time for the expert to be confronted for the first time with adverse facts. For additional information on this topic, see Bicks & Russell, The Use of Forensic Document Examiners in Florida Will Contests, 71 Fla. Bar J. 48 (Oct. 1997). « Ch. 3 », « § 3.2 », « F », « 4 », « c » 1 Litigation Under FL Probate Code § 3.2.F.4.c (2022)

c. Dead Person’s Statute As noted in § 3.2.E.3, the Dead Person’s Statute, F.S. 90.602, has been repealed and is thus no longer applicable. As a result of the Florida Legislature’s repealed of F.S. 90.602, effective July 1, 2005, the “testimony of an interested person concerning an oral communication with a person since deceased is no longer inadmissible solely on the basis of the statute. The hearsay rule and other rules of disqualification are applicable to the testimony.” 1 FLA. PRAC., Evidence § 804.6. Because most testimony in will contests concerning a decedent’s communications involves “state of mind” or “intent,” such testimony would fall within exceptions to the hearsay rule under F.S. 90.803(3). In an attempt to protect the estate of a decedent, the Florida Legislature created a new subdivision (e) under F.S. 90.804(2) of the Florida Evidence Code: HEARSAY EXCEPTIONS.—The following are not excluded under [F.S.] 90.802, provided that the declarant is unavailable as a witness: * * * (e) Statement by deceased or ill declarant similar to one previously admitted.—In an action or proceeding brought against the personal

representative, heir at law, assignee, legatee, devisee, or survivor of a deceased person, or against a trustee of a trust created by a deceased person, or against the assignee, committee, or guardian of a mentally incompetent person, when a declarant is unavailable as provided in paragraph (1)(d), a written or oral statement made regarding the same subject matter as another statement made by the declarant that has previously been offered by an adverse party and admitted in evidence. The intent of this exception is to provide the estate with a method of rebutting hearsay statements of a decedent when similar statements have been admitted against his or her estate. The admission of the decedent’s will is not a statement that opens the door to the admission of a hearsay statement of the declarant under F.S. 90.804(2)(e). 1 FLA. PRAC., Evidence § 804.6. Generally, such a statute is procedural and retrospective. See Yaffee v. International Co., 80 So. 2d 910 (Fla. 1955); Johnson v. State, 371 So. 2d 556 (Fla. 2d DCA 1979); Kawasaki of Tampa, Inc. v. Calvin, 348 So. 2d 897 (Fla. 1st DCA 1977). A party should therefore be careful in offering statements of a decedent that are not within the hearsay exceptions, because that will open the door to other hearsay statements concerning the same subject matter. « Ch. 3 », « § 3.2 », « F », « 4 », « d » 1 Litigation Under FL Probate Code § 3.2.F.4.d (2022)

d. Rules Of Evidence The Florida Evidence Code, F.S. Chapter 90, should be reviewed carefully. There are specific provisions applicable to privileged communications, expert witnesses, opinion evidence, and related matters. Particular note should be taken regarding F.S. 733.107, which provides that “in any transaction or event to which the presumption of undue influence applies,” the presumption shifts the burden of proof under F.S. 90.301– 90.304. The statute is discussed in more detail in § 3.2.A.3.b. « Ch. 3 », « § 3.2 », « F », « 4 », « e » 1 Litigation Under FL Probate Code § 3.2.F.4.e (2022)

e. Lay Testimony Neighbors, friends, and other laypersons can provide information as to

the testator’s appearance, demeanor, responsiveness, and general physical and mental condition. A lay witness may express an opinion as to the mental competence of the testator if it is established that the witness had adequate opportunity to observe the testator’s manner and conduct. Connell v. Green, 330 So. 2d 473 (Fla. 1st DCA 1976). Lay witnesses tend to speak in generalities. It is the attorney’s job to direct the witnesses’ testimony to specific events. Statements such as, “He appeared normal,” or, “I didn’t observe anything unusual in her conduct,” are helpful but do not provide specific information. If the parties shopped together, for instance, all aspects of the activity should be explored. The attorney should have the witness relate each phase of the activity. Details showing competency or incompetency should be stressed. These would include, for example, rational selection of purchases, proficiency in handling money, use of credit cards, writing of checks, and conversations concerning purchases. Laypersons who had substantial contact with the decedent during relevant periods should be used as witnesses. It is obvious that the more contact the witness had, the greater the weight of the testimony. Lay witnesses acquainted with an elderly testator are often elderly themselves. The attorney should make sure that the witness is competent and has no obvious mental weaknesses. Gentle but probing cross-examination of a partially senile witness can produce contrary statements and utter confusion on the part of the witness. A proponent who presents an elderly senile witness as a close and dear friend of the decedent identifies the witness as one sharing traits with the decedent. The senility and confusion of the witness thus may suggest that the decedent also was feebleminded and confused. « Ch. 3 », « § 3.2 », « F », « 4 », « f » 1 Litigation Under FL Probate Code § 3.2.F.4.f (2022)

f. Attorney As Witness The attorney supervising the execution of the contested will is an indispensable witness in a contest. The lawyer’s testimony is relevant because it relates to the precise time the will was signed. Because of the opportunity for observation of the testator, the attorney’s opinion as to competency is admissible. Connell v. Green, 330 So. 2d 473 (Fla. 1st DCA

1976). Communications concerning a will by the testator to his or her attorney are not privileged after the demise of the testator. F.S. 90.502(4)(b); Seeba v. Bowden, 86 So. 2d 432 (Fla. 1956). The preferred practice appears to be for an attorney who anticipates testifying to decline to serve as advocate for either side of the controversy. See Rule Reg. Fla. Bar 4-3.7. However, in In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA 1990), the court held that an attorney representing a personal representative in a matter adverse to the interest of a beneficiary may testify and continue to represent the personal representative. See also Hiatt v. Estate of Hiatt, 837 So. 2d 1132 (Fla. 4th DCA 2003) (personal representative of estate was not entitled to have beneficiary’s counsel disqualified based on mere possibility that counsel would be called as witness in probate action; personal representative offered no evidence that counsel was necessary witness or that his testimony would be adverse to beneficiary’s position). The question arises as to whether the drafting attorney may continue to represent the personal representative in routine estate administration matters, but nevertheless testify as a witness in a contest concerning the will, if all parties in the litigation are represented by separate counsel. This type of testimony was permitted in In re Estate of Udell, 324 So. 2d 703 (Fla. 4th DCA 1976), in which the court held that former F.S. 90.602 did not bar the attorney from testifying if the fee arrangement for the routine administration services was quantum meruit. There was no criticism based on ethical considerations, which may be construed as tacit approval of the practice. However, the attorney who is a witness to a will is disqualified from acting as an advocate for a party involved in contest of the will. Eccles v. Nelson, 919 So. 2d 658 (Fla. 5th DCA 2006). There appears to be a distinction between a situation in which the attorney seeking to testify is an advocate for a party in an adversary proceeding, as was the case in Eccles, and a situation in which the testifying attorney represents the personal representative only in nonadversary, routine estate administration, as was the case in Udell. « Ch. 3 », « § 3.2 », « F », « 4 », « g • 1 Litigation Under FL Probate Code § 3.2.F.4.g (2022)

g. Depositions

Depositions in probate litigation may be introduced into evidence and have the same effect as in any other civil litigation. See Fla. R. Civ. P. 1.330. The deposition of a nonparty may be used under the exceptions provided by Rule 1.330(a)(3). Depositions of expert witnesses may be used as evidence under Rule 1.390. « Ch. 3 », « § 3.2 », « F », « 5 • 1 Litigation Under FL Probate Code § 3.2.F.5 (2022)

5. Documentary Evidence « Ch. 3 », « § 3.2 », « F », « 5 •, • a » 1 Litigation Under FL Probate Code § 3.2.F.5.a (2022)

a. In General It has been said that if a fact is repeated verbally by three witnesses at trial, the testimony has the weight of one authenticated document reciting the fact. Verbal testimony is transitory, often contradictory, and subject to defective recollection. Documents are tangible, not subject to variance, and not exposed to the vagaries of recollection. Thus, every effort should be made to procure admissible writings documenting an issue. « Ch. 3 », « § 3.2 », « F », « 5 •, « b » 1 Litigation Under FL Probate Code § 3.2.F.5.b (2022)

b. Writings Of Decedent Writings of the decedent offer evidence of daily activities, closeness to a beneficiary, ability to formulate and comprehend thoughts, ability to conduct business, and a variety of other matters. Holiday cards may contain brief notes of significance. « Ch. 3 », « § 3.2 », « F », « 5 •, « c » 1 Litigation Under FL Probate Code § 3.2.F.5.c (2022)

c. Medical Records Medical records are invaluable in evaluating competency. Every doctor, hospital, and extended care facility offering services to the decedent should be contacted and the records obtained. See § 3.2.F.4.b. « Ch. 3 », « § 3.2 », « F », « 5 •, « d » 1 Litigation Under FL Probate Code § 3.2.F.5.d (2022)

d. Previous Wills Previous wills of the decedent may be evidence of a common continuous testamentary plan or of an abrupt departure from a common plan and are significant in evaluating undue influence. Witnesses to former wills, and any attorneys involved in drafting them, may have valuable information. « Ch. 3 », « § 3.2 », « F », « 5 •, « e » 1 Litigation Under FL Probate Code § 3.2.F.5.e (2022)

e. Death Certificates Death certificates contain a variety of information, including the age, social security number, aliases, marital status, and last physician of the testator. See F.S. 382.008. F.S. 90.803(9), the hearsay exception statute for records of vital statistics, provides that death certificates are not inadmissible evidence. All portions of the death certificate are not admissible, however. Matters that recite an unverified opinion have been held to be inadmissible. Southern Life & Health Insurance Co. v. Medley, 161 So. 2d 19 (Fla. 3d DCA 1964), disapproved on other grounds 247 So. 2d 503. The cause of death is confidential under F.S. 382.008(6). « Ch. 3 », « § 3.2 », « F », « 5 •, « f » 1 Litigation Under FL Probate Code § 3.2.F.5.f (2022)

f. Government Records Government records will often disclose a testator’s activities. Medicare applications, applications for homestead exemption, income tax returns, voting registration and records, driver’s license applications or tests, car title transfers, calls for jury service, and county records are all sources of information that may reflect the decedent’s activities. « Ch. 3 », « § 3.2 », « F », « 5 •, « g • 1 Litigation Under FL Probate Code § 3.2.F.5.g (2022)

g. Records Of Activities Records of a testator’s general activities may come from many sources. Investigation of church membership, social or nationality clubs, insurance applications, civic work, membership in neighborhood associations, and bank accounts may be productive. The personal records of the decedent should be

examined to determine the types of activities that may be pertinent. Bank records, even if too remote in time to be material, may indicate the testator’s lifestyle. Employees of a beauty salon, barbershop, or health club may be excellent sources of information if the decedent regularly used the services of a particular establishment. « Ch. 3 », « § 3.2 », « G » 1 Litigation Under FL Probate Code § 3.2.G (2022)

G. The Judgment « Ch. 3 », « § 3.2 », « G », • 1 » 1 Litigation Under FL Probate Code § 3.2.G.1 (2022)

1. Elements Of Judgment The elements of a judgment should include a predicate reciting the date of the hearing, the appearances before the court, the findings of law and fact, and the pronouncement of the judgment itself. The judgment often contains a detailed statement of the evidence presented. It is prudent to request that the court reserve jurisdiction for the assessment and determination of attorneys’ fees. « Ch. 3 », « § 3.2 », « G », « 2 » 1 Litigation Under FL Probate Code § 3.2.G.2 (2022)

2. Recitation Of Facts The recitation of the facts may be as brief or as detailed as the court desires. Generally, the attorney for the party who prevails will be instructed by the court to prepare the proposed form of judgment. If the cause is appealed, the prevailing party must ensure that each fact found by the court is supported specifically by the evidence. If the appeal is based on the judgment being contrary to the weight of the evidence, detailed recitation of facts, supported by the record, will constitute a decided advantage for the appellee. « Ch. 3 », « § 3.2 », « G », « 3 » 1 Litigation Under FL Probate Code § 3.2.G.3 (2022)

3. Allowance Of Fees Generally, it is recommended that a prayer for assessment of fees be incorporated in one’s initial pleading. However, it has been held that this is

not a requirement in adversary probate proceedings. See In re Estate of Paris, 699 So. 2d 301 (Fla. 2d DCA 1997). An allowance of fees for probate litigation is permitted under F.S. 733.106(3) after informal notice to the personal representative and all persons bearing the burden of the fees. To be compensable, the services must be beneficial to the estate. Hampton v. Estate of Allen, 198 So. 3d 954 (Fla. 5th DCA 2016). Florida courts have interpreted benefit to include “services that enhance the value of the estate, as well as services that successfully give effect to the testamentary intention set forth in the will.” Estate of Brock, 695 So. 2d 714, 717 (Fla. 1st DCA 1996). Accord Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009); Dew v. Nerreter, 664 So. 2d 1179 (Fla. 5th DCA 1995). In Bonney v. Bonney, 94 So. 3d 702 (Fla. 4th DCA 2012), the court held that F.S. 733.106(3) was not implicated because the attorney was defending against ancillary claims of unjust enrichment and therefore did not render “services to an estate” within the meaning of the statute. Fees are also permitted under F.S. 733.106(2). See § 3.2.C.3 and Chapter 11 of this manual. Generally, it is preferable to file the motion for assessment of attorneys’ fees after the final judgment has been entered and to obtain a separate order directing payment. This permits prompt entry of the final judgment and commencement of the time to appeal. Fla. R. Civ. P. 1.525, which requires that a motion taxing costs and attorneys’ fees be served within 30 days of the filing of the judgment, is not applicable to probate matters. Fla. Prob. R. 5.025, which provides that adversary proceedings in probate matters must be conducted pursuant to the Florida Rules of Civil Procedure, specifically excludes Rule 1.525. Stone v. Stone, 132 So. 3d 377 (Fla. 4th DCA 2014). The amount of the fee allowed must be supported by evidence other than the testimony of the attorney performing the service. In re Estate of Cordiner, 497 So. 2d 920 (Fla. 2d DCA 1986). If the attorney represents the personal representative, the court may determine the attorney’s fees without presentation of expert testimony, including services rendered in adversary proceedings. F.S. 733.6175(4). See Hauser, Kramer & Leonard, Is Expert Testimony Really Needed in Attorneys’ Fees Litigation? 77 Fla. Bar J. 38 (Jan. 2003). In cases seeking disgorgement of alleged excessive fees paid to the personal representative’s attorney, service of formal notice on the attorney is necessary in order to acquire

personal jurisdiction on the attorney. Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015). As previously discussed, a prerequisite to assessment of attorneys’ fees against an unsuccessful will contestant, there must be a finding of “bad faith, wrongdoing, or frivolousness.” Levin v. Levin, 67 So. 3d 429 (Fla. 4th DCA 2011). See Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016) (award of attorneys’ fees and costs to estate was not warranted following testator’s son’s unsuccessful will contest when son challenged will based on allegation that testator lacked capacity and had revoked will by defacement and obliteration, and, although evidence supported court’s decision to uphold will, case was not so clear cut as to render son’s litigation matter of bad faith). The assessment of fees based on the offer of judgment statute, F.S. 768.79, is not proper in probate litigation. As noted in § 3.2.C.3, this statute has been held inapplicable in contest of will cases. Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000). An order fixing attorneys’ fees is a final order and the time for its appeal commences on the date of its rendition. In re Estate of Cook, 245 So. 2d 694 (Fla. 2d DCA 1971). See §§ 11.3.J–11.3.K of this manual. F.S. 733.609 permits assessment of fees against a party or personal representative individually in actions involving breach of fiduciary duty or challenging the exercise or nonexercise of a personal representative’s power. « Ch. 3 », « § 3.2 », « G », « 4 » 1 Litigation Under FL Probate Code § 3.2.G.4 (2022)

4. Form For Judgment (Party Designation)

(Title of Court)

JUDGMENT THIS CAUSE CAME ON TO BE HEARD in nonjury trial on (date). The petitioners seek revocation of the probate of the will of (name), the decedent, dated _________, on the ground that the

decedent was incompetent to make a testamentary disposition, or that the will was the product of undue influence. The court has heard the testimony and considered the evidence presented by the parties and makes the following findings of fact and law. 1. _________ executed a will on (date), in conformity with the laws of Florida, in which the bulk of [his] [her] estate was left to [his] [her] (state relationship of beneficiary to decedent). 2. Before execution of this will, the decedent had executed (number) other wills, in each of which [his] [her] basic testamentary plan was to provide that the bulk of [his] [her] estate would pass in equal shares to [his] [her] (state relationships). 3. The decedent died on (date), at the age of _________. During the year before death, [he] [she] underwent several operations and during the last few months of life required continuous attention. 4. The decedent’s (state relationship) came to live with [him] [her] about (number) years before [his] [her] demise, and acted as a companion, housekeeper, and practical nurse until the decedent’s death. During those years, the only contact between the decedent and [his] [her] (state relationships) was an annual exchange of Christmas cards. 5. The attorney who drew the decedent’s will dated ______ had represented [him] [her] for about (number) years and had drafted all (number) of the wills known to have been signed by the decedent. Although the (state relationship) called the attorney to arrange the appointments in connection with the last will and transported the decedent to the attorney’s office, [he] [she] was not present during the conferences. The original will was left by the decedent in the safekeeping of the attorney. 6. There is conflicting evidence as to the competency of the decedent at the time the final will was drawn. It is the opinion of the court, however, that the greater weight of the evidence establishes that the decedent was competent to make a testamentary disposition on (date)

and that [he] [she] understood the nature of the act, the general nature and extent of [his] [her] estate, and the natural objects of [his] [her] bounty. The court has not overlooked the decedent’s age, physical infirmities, and intermittent confusion. These factors are not considered sufficient to overcome the positive testimony of the drafting attorney, of the witnesses to the will, and of the decedent’s physician, and the other evidence submitted by the proponents. 7. The contestants contend that the decedent was the subject of undue influence exercised by the (state relationship) and that a presumption of undue influence has been established by [his] [her] active participation in preparation of the will, [his] [her] position of confidence with the decedent, and the fact that [he] [she] is the primary beneficiary. The court feels that a presumption of undue influence has not been established, inasmuch as the decedent received independent legal advice from [his] [her] attorney of many years during conferences at which the (state relationship) was not present. Even if one assumes, however, that the presumption did arise, it has been rebutted by the positive testimony of the drafting attorney and by the comments made by the decedent to several of [his] [her] neighbors to the effect that [he] [she] had changed [his] [her] will in order to recognize the services of (state relationship) to [him] [her] during [his] [her] hour of need. It is obvious from the evidence that the (state relationship) was the decedent’s favorite relative, that for many years [he] [she] was the one who was most attentive to the decedent, and that the (state relationship) saw the decedent only at rare intervals. The decedent’s decision to recognize those factors in [his] [her] will of (date) therefore is a logical process. 8. All of the evidence has not been detailed in this judgment. The court has considered all the evidence, and concludes the contestants have failed to meet their burden of proof. IT THEREFORE IS ADJUDGED that the petition to revoke the probate of the last will of the decedent, (name), dated ______ is denied, and the petition is dismissed with prejudice. It is further ordered that the court retains jurisdiction to determine and assess attorneys’ fees and costs as may be appropriate.

Ordered at _________ County, Florida, on (date). /s/ ____________ Circuit Judge Copies furnished to: COMMENT: Reservation of jurisdiction to assess fees and costs is desirable. See Young v. Altenhaus, 448 So. 2d 1039 (Fla. 3d DCA 1983), quashed in part on other grounds 472 So. 2d 1152. « Ch. 3 », « § 3.2 », « G », « 5 » 1 Litigation Under FL Probate Code § 3.2.G.5 (2022)

5. Forms For Orders Allowing Fees « Ch. 3 », « § 3.2 », « G », « 5 », • a » 1 Litigation Under FL Probate Code § 3.2.G.5.a (2022)

a. Order Assessing Fees Payable From Estate Assets (Party Designation)

(Title of Court)

ORDER This cause was heard on (date), on the petition of (name) for the allowance of attorneys’ fees for legal services rendered in the successful defense of a petition to revoke the probate of the decedent’s will dated _________. The court has considered the petition and heard the testimony of the petitioner and the expert witness as to the reasonableness of the fee requested, and has determined that the services were of benefit to this estate. The court finds that the petitioner reasonably expended (number) hours in legal services and that a reasonable hourly rate for the legal services is $______ per hour. The court finds no grounds for enhancement or reduction of attorneys’ fees. IT THEREFORE IS ADJUDGED that the sum of $______ is fixed and determined as a reasonable fee for the legal services rendered by (name) in the defense of the proceedings to revoke the decedent’s will.

IT IS FURTHER ADJUDGED that this fee is to be paid from the assets of this estate, and the personal representative is authorized and directed to pay the fee. Ordered at _________ County, Florida, on

(date).

/s/ ____________ Circuit Judge Copies furnished to: COMMENT: The order awarding attorneys’ fees should recite the specific findings required by Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) (court’s approval of federal lodestar method and fee-shifting). See In re Estate of Platt, 586 So. 2d 328 (Fla. 1991); De Loach v. Westman, 506 So. 2d 1142 (Fla. 2d DCA 1987). « Ch. 3 », « § 3.2 », « G », « 5 », « b • 1 Litigation Under FL Probate Code § 3.2.G.5.b (2022)

b. Order Assessing Fees Payable From Assets Passing To Contestants Of Will COMMENT: As noted in § 3.2.C.3, fees may be assessed against the estate interest of an unsuccessful party. In such cases, the court may direct that the fee be paid from the unsuccessful party’s share of the estate, and the order should include such a provision. The following is a suggested form assessing fees against monetary legacies of the unsuccessful contestants. (Party Designation)

(Title of Court)

ORDER DETERMINING ATTORNEYS’ FEES AND ASSESSMENT This cause came on to be heard on the petition of the personal representative for taxation of attorneys’ fees. The court has considered the petition and heard the evidence and determines: 1. The court has jurisdiction under F.S. 733.106 and 733.6171 to

determine attorneys’ fees rendered by the attorney for the personal representative in connection with the will contest herein and to direct from what part of the estate same shall be paid. 2. The (number) contestants were unsuccessful in their contest of the decedent’s will. The court finds that the contestants’ claims were frivolous and unsupported by the facts, which could have been determined pre-suit by a minimal investigation. 3. The attorney for the personal representative has expended over (number) hours in defense of the will, which the court determines to be a reasonable time for the services rendered. The attorney for the personal representative has charged for [his] [her] time at the rate of $______ per hour, which the court finds to be a reasonable hourly rate. The petition has requested assessment of fees in the sum of $______, which the court determines to be reasonable. IT IS THEREFORE ORDERED that reasonable compensation for the services of the attorney for the personal representative in connection with the will contest is $______, which compensation shall be paid from the assets of this estate. IT IS THEREFORE ORDERED that the aforesaid fees shall be assessed against the part of this estate passing to the contestants under Article ___ of the decedent’s will. Accordingly, the sum of $______ shall be charged to the bequests of each of the (number) contestants, and upon distribution each of their bequests shall be reduced by $______. Ordered at _________ County, Florida, on

(date).

/s/ ____________ Circuit Judge Copies furnished to: « Ch. 3 », « § 3.2 », « G », « 6 • 1 Litigation Under FL Probate Code § 3.2.G.6 (2022)

6. Rehearing Fla. Prob. R. 5.020(d) provides that a motion for rehearing must be served not later than 15 days after the date of filing of the order. Fla. R. App.

P. 9.020(h)(2)(C) provides that a timely motion for rehearing will toll the time for appeal, “until the motions are either withdrawn or resolved by the rendition of an order disposing of the last such motion.” The attorney should note that a motion filed within 15 days but not served within 15 days is not a timely motion and will not toll the time for appeal. Cunningham v. Kohr, 199 So. 3d 1136 (Fla. 1st DCA 2016); Pennington v. Waldheim, 669 So. 2d 1158 (Fla. 5th DCA 1996). « Ch. 3 », « § 3.2 », « H • 1 Litigation Under FL Probate Code § 3.2.H (2022)

H. Settlement Of Will Contest « Ch. 3 », « § 3.2 », « H •, • 1 » 1 Litigation Under FL Probate Code § 3.2.H.1 (2022)

1. Partial Settlement Partial settlement of will contests occurs most frequently in cases involving multiple parties. There is no statute prohibiting settlement of issues with some, but not all, of the opposing parties. An opportunity to settle the contest with all but one of the opposing parties offers strategic advantages, because the remaining litigant then would have to bear the expense and risk of the litigation alone. Settlements may take many forms, ranging from an outright cash payment to a percentage of a party’s ultimate recovery. The partial settlement may be conditioned on the successful completion of the litigation by a party. The form for a settlement set out in § 3.2.H.3 may be adapted to accommodate a partial settlement. « Ch. 3 », « § 3.2 », « H •, « 2 » 1 Litigation Under FL Probate Code § 3.2.H.2 (2022)

2. Complete Settlement Complete settlements are more common than partial settlements in probate litigation. The considerations in arriving at a settlement of a will contest are basically the same as in any other type of litigation. The size of the estate, the probabilities of success, and the expense of continuing litigation are major factors. The practitioner should note, however, that all “interested” parties may not be parties to the litigation, and a contemplated “complete” settlement may not be as complete as first appears. For example, litigation between heirs at law and beneficiaries under a decedent’s last will

may not include beneficiaries under former wills as parties. A settlement between the litigants would not bar a subsequent contest by beneficiaries under previous wills unless they had been made parties to the cause, joined in the settlement, or are time barred. In cases involving a contest before probate, a notice of administration is not served, and beneficiaries under previous wills, therefore, are not barred. Even if a notice of administration is served on some parties, beneficiaries under previous wills who are not served with the notice are not barred from filing a contest. These elements must be considered in the form of the settlement to ensure that the agreement is final and to avoid having to explain to a client why a “settled” case may be the subject of further litigation. A procedure that affords protection in this regard involves conditioning the settlement on the service of the notice of administration on all persons having a potential interest in the estate, with due observance of the passage of the time permitted to file a contest. It perhaps is desirable in will contests that arise before probate to procure the appointment of a curator to serve notice of the action on every conceivable contestant. The practitioner must be careful not to create controversy with persons who are not anticipated to be real adversaries. The practitioner should be careful when using e-mails in settlement negotiations. E-mails are often used to outline the general terms of a settlement, but with the intent that no agreement is reached pending approval of the final settlement documents, which often contain additional terms. It should be made clear that e-mail exchanges do not constitute the complete agreement, the details of which will be subject to review and change. Florida courts have held that e-mails that contain the “essential and material terms of the settlement” are binding. Warrior Creek Development, Inc. v. Cummings, 56 So. 3d 915, 916 (Fla. 2d DCA 2011). Federal courts within the Eleventh Circuit have likewise held that a binding settlement agreement can be reached via e-mail. See Calderon v. Springs Landscape & Maintenance, Inc., 2018 WL 5098976 (S.D. Fla. 2018), and cases cited therein. The practitioner should be clear that e-mails will not be deemed to contain all essential and material terms of the settlement, provided that is the practitioner’s intent. « Ch. 3 », « § 3.2 », « H •, « 3 • 1 Litigation Under FL Probate Code § 3.2.H.3 (2022)

3. Form For Settlement COMMENT: This form is directed to settlement of probate litigation in which beneficiaries under a previous will were not parties to the litigation and no notice of administration was served at the time of the settlement. However, the circumstances indicate that there is a minimal risk of a contest by any other person. The stipulation refers to an escrow agreement that is included as a separate form. The stipulation is intended to be filed with and approved by the court. The escrow agreement ordinarily is not filed in the proceedings. (Party Designation)

(Title of Court)

STIPULATION AND SETTLEMENT The parties to this action stipulate as follows: 1. The petition by (name) seeking probate of a (date) will of the decedent, (name), or alternatively seeking an order that the decedent’s estate pass by intestacy, is withdrawn and shall be dismissed with prejudice and without taxation of costs. 2. The contest of the decedent’s will dated ______, by (name), is withdrawn, and [he] [she] consents to the admission of the will of the decedent dated _________, to probate and the appointment of the personal representative named in that instrument. (Name) waives all notices in connection with the will’s admission to probate, appointment of the personal representative, or the administration of the estate, and agrees for [himself] [herself] and [his] [her] heirs and assigns that the will shall not be contested, opposed, or impaired in any way, but shall be deemed the last will of the decedent for all purposes. [He] [She] waives all claims, demands, actions, and right to file any claim in the estate. 3. (Name) releases any claim, demand, or action that may pertain or relate to matters arising by reason of inter vivos transfers by the testator, (name). 4. This stipulation incorporates by reference the terms of an escrow agreement of even date in which (name), attorney for the

proponent,

(name), is escrow agent.

5. This stipulation is subject to approval of the court, and all parties waive notice and consent to the entry of any order needed to carry out the intent of this stipulation. Executed on

(date). /s/ ____________ Print name: /s/ ____________ Print name:

STATE OF FLORIDA COUNTY OF _________ The foregoing instrument was acknowledged before me on (date), by (name of person acknowledging), who is personally known to me or who presented (type of identification) as identification, and by (name), who is personally known to me or who presented (type of identification) as identification. /s/ ____________ Notary Public (Seal)

ESCROW AGREEMENT In connection with the settlement of certain litigation involving the estate of (name), in the Circuit Court, ________________ County, Florida, in Probate Case _________, and the stipulation entered into between the parties on this date, it is agreed: 1. In complete discharge, release, and settlement of all claims, demands, and actions by (name of contestant) arising in any way in connection with the estate or affairs of (name), deceased, (name), residuary beneficiary, under the will of the decedent dated ______, agrees to pay to the contestant the sum of $______ and the contestant agrees to accept this sum in full settlement of all disputes

concerning the decedent’s estate or affairs. 2. This sum is payable conditioned on the admission of the will to probate and publication of notice to creditors, and the understanding that the enforceable claims duly filed in the estate by third parties will not exceed a total of $______. It is also conditioned on the understanding that no contest of the will or claim based on a contract to make a will shall be filed prior to the discharge of the personal representative, or if any claims or contest is filed, that the ultimate disposition will be in favor of the will beneficiary and that [he] [she] will be the residuary beneficiary of the estate. 3. To assure the contestant that the settlement proceeds will be available for remittance upon fulfillment of the above conditions and entry of order of final discharge in the estate, (name) will deposit with [his] [her] attorney, (name), the sum of $______. Upon fulfillment of the above conditions and after entry of order of final discharge, the attorney shall disburse that sum to the attorney for the contestant, (name of attorney), who may disburse it further as [he] [she] and [his] [her] client, (name), may agree. It is anticipated that no further contest or claims will be filed and that disbursement of the proceeds from escrow will occur about (number) months from this date, but disbursement of the escrow funds will be deferred in all events until fulfillment of the above conditions. It will not be necessary that the escrow fund be maintained in an interest-bearing account, but if it is so maintained, all interest earned will be included in the disbursement of the escrow funds. 4. If the foregoing conditions are not fulfilled, the sum of $______ shall be disbursed to (name) and $______ shall be disbursed to (name). Executed on

(date). /s/ ____________ Print name: /s/ ____________ Print name:

STATE OF FLORIDA COUNTY OF _________ The foregoing instrument was acknowledged before me on (date), by (name of person acknowledging), who is personally known to me or who has produced (type of identification) as identification, and by (name), who is personally known to me or who has produced (type of identification) as identification. /s/ ____________ Notary Public (Seal) COMMENT: The foregoing stipulations provide for dismissal of the will contest because, under paragraph 4, the contestant will receive a smaller payment from the escrow even if the conditions are not fulfilled. In some cases, settlements will be substantial, the funds necessary to pay the settlement may be available only from the estate, or the potential for other litigation is significant. In such cases, the conditions may be incorporated in the settlement stipulation and approved by the court. The practitioner may then include provisions for vacating the stipulation if the conditions are not fulfilled, and to reinstate the parties to their original positions. Even if the case is settled, the will contest petition should be timely filed and left in pending status during the period before consummation of the settlement. The agreement must be adapted to the circumstances. The purpose is to ensure that the final disposition will be as intended, and to provide acceptable remedies or alternatives if third parties file proceedings that disrupt the compromise. It is a mistake to assume a settlement is final unless one is absolutely certain that all interested parties are either parties to the agreement or time barred. The hazard is demonstrated by the discovery of a prior or subsequent will creating rights not known to exist at the time of settlement.

« Ch. 3 », « § 3.3 • 1 Litigation Under FL Probate Code § 3.3 (2022)

§ 3.3. TRUST CONTESTS « Ch. 3 », « § 3.3 •, • A » 1 Litigation Under FL Probate Code § 3.3.A (2022)

A. In General The remainder of this chapter discusses contests of the testamentary aspects of an inter vivos trust. The use of pour-over wills and inter vivos trusts to accomplish testamentary disposition has increased dramatically. Although many of the trial considerations of a will contest are applicable to trust litigation, there can be substantial differences. The following comments are not intended to be exhaustive, but rather to acquaint the practitioner with the generally significant differences. The Florida Trust Code, F.S. Chapter 736, which became effective July 1, 2007, controls most trust matters. « Ch. 3 », « § 3.3 •, « B » 1 Litigation Under FL Probate Code § 3.3.B (2022)

B. Grounds « Ch. 3 », « § 3.3 •, « B », • 1 » 1 Litigation Under FL Probate Code § 3.3.B.1 (2022)

1. Execution Or Qualification « Ch. 3 », « § 3.3 •, « B », • 1 », • a » 1 Litigation Under FL Probate Code § 3.3.B.1.a (2022)

a. Trust Executed Prior To October 1, 1995 The law before passage of F.S. Chapter 736 indicated that the testamentary provisions of a trust executed before October 1, 1995, that did not comply with the provisions for execution of a will or the requirements for disposition of an interest in real property, were valid as to the disposition of tangible or intangible property but were not valid as to the disposition of real

property. A divided Florida Supreme Court in Zuckerman v. Alter, 615 So. 2d 661 (Fla. 1993), discussed the effect of a testamentary disposition of assets in a pre-October 1995, unwitnessed trust, and held that the trust may dispose of tangible or intangible property. Whether Zuckerman is still the controlling law is uncertain, but the practitioner should consider this case if confronted with this rare issue. The practitioner should note that a trust with testamentary provisions, executed before October 1, 1995, but amended thereafter, is invalid if the amendment is not executed with the formalities required for a will. Greensburg Public Library v. Alzheimer’s Lifeliners Ass’n, Inc., 787 So. 2d 947 (Fla. 2d DCA 2001). « Ch. 3 », « § 3.3 •, « B », • 1 », « b » 1 Litigation Under FL Probate Code § 3.3.B.1.b (2022)

b. Trust Executed On Or After October 1, 1995 The testamentary aspects of a trust executed on or after October 1, 1995, by a settlor domiciled in Florida at the time of execution, are invalid unless the instrument is executed by the settlor with the formalities for the execution of a will, which are set forth in F.S. 732.502. F.S. 736.0403(2)(b). The execution provisions of former F.S. 737.111 continue to remain in force for trusts executed on or after October 1, 1995, but before July 1, 2007. F.S. 736.0403(4). An improperly witnessed trust executed by a Florida resident is therefore ineffective to make a testamentary disposition of property, regardless of its character. « Ch. 3 », « § 3.3 •, « B », • 1 », « c • 1 Litigation Under FL Probate Code § 3.3.B.1.c (2022)

c. Execution Considerations If the trust is executed before October 1, 1995, witnesses are not required for testamentary disposition of tangible or intangible personal property, but such an unwitnessed trust will not effectively dispose of real estate. It is therefore possible that a pre-October 1, 1995, trust may be valid in one respect and invalid in another. If the trust is executed on or after October 1, 1995, execution with the formalities of a will is required for a valid testamentary disposition. F.S.

736.0403(4), 737.111 (2006). See Greensburg Public Library v. Alzheimer’s Lifeliners Ass’n, Inc., 787 So. 2d 947 (Fla. 2d DCA 2001). If the decedent has executed a pour-over will, with execution formalities, to an unwitnessed inter vivos trust executed on or after October 1, 1995, the validity of the will disposition is questionable, particularly if the pour-over will contains provisions that negate the incorporation of the trust provisions in the will. It could be effectively argued that such a situation is analogous to a will that leaves the residue to a nonexistent beneficiary, or alternatively, that the trust disposition is ineffective and results in intestacy. In some cases, this result may be avoided if the will contains incorporation of the trust by reference. See F.S. 732.512. In Swan v. Florida National Bank of Miami, 445 So. 2d 622 (Fla. 3d DCA 1984), the decedent’s will devised the residue of his estate to a testamentary trust created under his wife’s will. There was no testamentary trust under the wife’s will and thus intestacy resulted. As noted above, it could be argued that a will devise to a defectively executed trust would produce the same result if the trust is not incorporated in the will. « Ch. 3 », « § 3.3 •, « B », « 2 » 1 Litigation Under FL Probate Code § 3.3.B.2 (2022)

2. Statutory Grounds « Ch. 3 », « § 3.3 •, « B », « 2 », • a » 1 Litigation Under FL Probate Code § 3.3.B.2.a (2022)

a. Elements For Contest The same elements that apply to contest of a will are applicable to contest of a trust. Under F.S. 736.0406, fraud, duress, mistake, or undue influence may be asserted as grounds for contest. There is no provision in the Florida Trust Code similar to F.S. 732.501, which requires a testator to be 18 years of age (or an emancipated minor) and of sound mind. However, general law as to the inability of an incompetent person or a minor to contract should be applicable to execution of a trust. See F.S. Chapter 743. Contest of a trust may not be commenced until the trust is irrevocable. That limitation does not apply to the guardian of the property of an incapacitated settlor. F.S. 736.0207.

Effective July 1, 2014, in any contest of a trust, the contestant has the burden of establishing the grounds for invalidity. F.S. 736.0207(1). This amendment applies to all cases commenced on or after July1, 2014. The practitioner should note that the settlor of an inter vivos trust is generally not subject to rules limiting trust actions, such as the requirement of renunciation and estoppel. Gossett v. Gossett, 182 So. 3d 694 (Fla. 4th DCA 2016); Fintak v. Fintak, 120 So. 3d 177 (Fla. 2d DCA 2013). « Ch. 3 », « § 3.3 •, « B », « 2 », « b » 1 Litigation Under FL Probate Code § 3.3.B.2.b (2022)

b. Fraud, Duress, And Undue Influence The legal considerations pertaining to fraud, duress, and undue influence in the creation of a trust are the same as those involved in the contest of a will, which are discussed in § 3.2.A.3.b. However, once a revocable trust has been validly created, third parties may not contest the settlor’s revocation of the trust on grounds of undue influence during the settlor’s lifetime. Florida National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1985). The Florida Supreme Court’s decision in Genova has also been applied to a contest filed after the death of the settlor. MacIntyre v. Wedell, 12 So. 3d 273 (Fla. 4th DCA 2009). The question arises as to whether an action based on malicious interference with expectation of inheritance could be a remedy in such a situation. See DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981), aff’d 675 F.2d 670, in which the Florida Supreme Court held that a claim for malicious interference can be pursued by a tort action if there is no adequate remedy in probate. The action is based on “the equitable maxim that no wrong shall be without a remedy.” Id. at 219. The court in Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980), allowed such an action in a case when a caregiver purported to maliciously interfere with a decedent’s intent to amend a trust. In Wells v. Wells, 24 So. 3d 579, 582 (Fla. 4th DCA 2009), the court upheld a contestant’s standing to pursue a declaratory judgment action, which sought a determination that a trust amendment was invalid based on “breach of fiduciary duty” and “wrongful influence with testamentary/trust expectancy.” For a discussion of a cause of action for tortious interference of a testamentary expectancy in a trust case, see Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018).

« Ch. 3 », « § 3.3 •, « B », « 2 », « c » 1 Litigation Under FL Probate Code § 3.3.B.2.c (2022)

c. Mistake; Reformation As Remedy In the law of wills, it is now possible under F.S. 732.615 to reform a will defectively drafted due to a scrivener’s error or a mistake. However, in the law of trusts, it has long been held that an inter vivos trust is not a testamentary will substitute and is not testamentary. Zuckerman v. Alter, 615 So. 2d 661 (Fla. 1993). Broad modification and reformation of trusts is legislatively sanctioned under F.S. 736.04113–736.0417. The court in In re Estate of Robinson, 720 So. 2d 540 (Fla. 4th DCA 1998), in what was a case of first impression, held that a unilateral drafting mistake in a trust with testamentary aspects may be reformed after the settlor’s death, provided the reformation is not contrary to the interest of the settlor. The scrivener’s testimony is admissible for such purposes. In rare cases, the factual situation may support an attack on a trust based on reformation. For example, a settlor’s trust provides for all his or her numerous nieces and nephews by name, but a scrivener’s error in the last amendment or restatement results in the omission of his or her favorite nephew. Testimony indicates the settlor consistently expressed the intent to treat all his or her nieces and nephews equally. This situation may enable reformation of the trust to include the excluded nephew. In any event, clear and convincing proof of the drafting error is required. Robinson; Popp. See also F.S. 736.0415. The practitioner should note that in addition to case law, F.S. 736.0410– 736.0416 of the Florida Trust Code provide a number of opportunities for reformation or modification of a trust. However, reformation is not a remedy to modify a trust to do what the settlor would have done if he or she had foreseen a change of circumstance. For example, a significant change in the value of the assets after execution of the trust will not justify reformation. Morey v. Everbank, 93 So. 3d 482 (Fla. 1st DCA 2012). « Ch. 3 », « § 3.3 •, « B », « 2 », « d » 1 Litigation Under FL Probate Code § 3.3.B.2.d (2022)

d. Unenforceable Trusts A ground for contesting the validity and enforceability of a trust arises under F.S. 736.1512 where the trust is a community property trust executed during marriage. The action may be brought by the spouse against whom enforcement is sought based on a number of specific grounds recited in the statute. « Ch. 3 », « § 3.3 •, « B », « 2 », « e • 1 Litigation Under FL Probate Code § 3.3.B.2.e (2022)

e. Gifts To Lawyers And Other Persons F.S. 732.806 applies to trusts just as it does to wills. See § 3.2.A.3.c. Time will tell if F.S. 732.806 is constitutional. « Ch. 3 », « § 3.3 •, « B », « 3 • 1 Litigation Under FL Probate Code § 3.3.B.3 (2022)

3. Revocation « Ch. 3 », « § 3.3 •, « B », « 3 •, • a » 1 Litigation Under FL Probate Code § 3.3.B.3.a (2022)

a. By Writing Effective for trusts created on or after July 1, 2007, a settlor may revoke or amend the trust if the trust does not expressly provide that it is irrevocable. F.S. 736.0602(1). For trusts created before July 1, 2007, the power to revoke a trust is exercisable only if the trust document reserves that power or the settlor is the sole beneficiary. Revocation must be in accordance with the requirements of the reserved revocation power. In most cases, the trust requires the revocation to be in writing. Delivery of notice of revocation to the trustee is not necessary unless required by the trust instrument. Macfarlane v. First National Bank of Miami, 203 So. 2d 57 (Fla. 3d DCA 1967). Because a trust is, in essence, an agreement between the settlor and trustee, it appears that the revocation need not be witnessed if the trust does not impose that requirement. However, one could argue that revocation of the trust is a “testamentary aspect” of the trust under F.S. 736.0403 that must be witnessed in accordance with F.S. 732.502. This argument can be easily avoided by

compliance with the witnessing statute. « Ch. 3 », « § 3.3 •, « B », « 3 •, « b • 1 Litigation Under FL Probate Code § 3.3.B.3.b (2022)

b. By Act In some cases, an original of an inter vivos revocable trust cannot be located. In the law of wills, a will may be revoked by destruction, F.S. 732.506, and the inability to locate an original will that was in the testator’s possession creates a presumption of revocation by destruction. See § 3.2.A.4.b. No similar statute or presumption exists in the law of trusts. Destruction of the original trust by the settlor, with the intention to revoke, appears to be ineffective unless permitted by the terms of the trust. Macfarlane v. First National Bank of Miami, 203 So. 2d 57 (Fla. 3d DCA 1967). The trust provisions could be reestablished under F.S. 71.011. It has been held that a contestant seeking to prove revocation of a Totten trust by oral testimony has an “exceedingly heavy” burden. Litsey v. First Federal Savings & Loan Ass’n of Tampa, 243 So. 2d 239, 243 (Fla. 2d DCA 1971), 46 A.L.R. 3d 477. That same burden appears to exist in proving revocation of a trust by destruction. Despite the foregoing, it may be possible to overcome the failure of a settlor to effectively revoke a trust when the intent to revoke is clear and the deficiency in the revocation is technical. The Florida Supreme Court in In re Estate of Tolin, 622 So. 2d 988 (Fla. 1993), imposed a constructive trust for the benefit of persons who would have inherited if a codicil had been properly revoked. In imposing this constructive trust, the court stated the general rule that “[a] constructive trust is properly imposed when, as a result of a mistake in a transaction, one party is unjustly enriched at the expense of another.” Id. at 990. By analogy, the reasoning of Tolin could be applied in the case of a defective revocation of trust. But see Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2d DCA 2017) (constructive trust was improper remedy for trust amendment providing for devise of residence to beneficiary that was improperly executed due to lack of second witness’s signature). The court in In re Estate of Algar, 383 So. 2d 676 (Fla. 5th DCA 1980), held that joint and mutual wills, which recited that they could not be changed

without the written consent of the parties, could be revoked by mutual destruction of the wills. The court held that, regardless of the will language, the parties could change the wills in any form they wished, by mutual agreement. The difficulty in utilizing this case to argue that a trust may be revoked by destruction is the absence of a statute sanctioning revocation of a trust by destruction. In addition, the Algar court pointed out that revocation of a will in violation of a contract creates a breach of contract claim but does not affect the validity of a subsequently executed will. As noted in § 3.3.B.2.a, F.S. 736.0207 provides that an action concerning validity or revocation of a revocable trust may not be commenced before the settlor’s death but does not prohibit such action by a guardian of an incapacitated settlor. Also, the Florida Legislature added subsection (1) under F.S. 736.0207, which places the burden of establishing the grounds for invalidity of a trust on the contestant. Ch. 2014-127, § 7, Laws of Fla. Under F.S. 744.441(1)(k), a court may authorize a guardian to pursue such action before the settlor’s death. The statute creates a rebuttal presumption that such action would not be in the ward’s best interest if a revocation relates solely to a devise. « Ch. 3 », « § 3.3 •, « C » 1 Litigation Under FL Probate Code § 3.3.C (2022)

C. Commencement Of Trust Proceedings « Ch. 3 », « § 3.3 •, « C », • 1 » 1 Litigation Under FL Probate Code § 3.3.C.1 (2022)

1. Independent Action Actions seeking to invalidate a trust are the subject of independent civil actions governed by the Florida Rules of Civil Procedure, not by the Florida Probate Rules. F.S. 736.0201(1). « Ch. 3 », « § 3.3 •, « C », « 2 • 1 Litigation Under FL Probate Code § 3.3.C.2 (2022)

2. Consolidation The filing of a single petition in probate contesting the decedent’s will and the decedent’s inter vivos trust is technically not proper. However, Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1989), involved

such a joint proceeding when the will and trust were executed on the same date. The court approved the single petition on the basis that the trust was incorporated into the will. The court in Martin v. Martin, 687 So. 2d 903, 906 (Fla. 4th DCA 1997), called into doubt part of Hogarth’s holding: Although we agree that affirmance was proper in Hogarth, we would not necessarily have done so on the rationale of the third district, which was that the probate court had jurisdiction because the trust was incorporated by reference into the will. If the third district meant that all revocable inter vivos trusts are incorporated by reference into the wills which pour over, we would disagree. Thus, Martin suggests that the proper procedure is a separate civil action attacking the trust, which, under appropriate circumstances, may be consolidated with a probate will contest proceeding. This procedure appears most appropriate when the contested will and trust are executed on the same date or close in time, because the factual circumstances are related in time. Consolidation is more difficult if there is a substantial time interval between the dates of execution of the trust and will. « Ch. 3 », « § 3.3 •, « D » 1 Litigation Under FL Probate Code § 3.3.D (2022)

D. Venue « Ch. 3 », « § 3.3 •, « D », • 1 » 1 Litigation Under FL Probate Code § 3.3.D.1 (2022)

1. In General Typically, venue of a civil cause lies where the cause of action arose, where the property is located, or where the defendant resides. F.S. 47.011. F.S. 736.0204(1) confirms this concept. « Ch. 3 », « § 3.3 •, « D », « 2 • 1 Litigation Under FL Probate Code § 3.3.D.2 (2022)

2. Expansion Of Venue In addition to venue for actions and proceedings concerning trusts under F.S. 736.0204(1), venue in trust proceedings is proper in “[a]ny county where

the beneficiary suing or being sued resides or has its principal place of business” or “[t]he county where the trust has its principal place of administration.” F.S. 736.0204(2)–(3). In effect, a beneficiary who is dissatisfied with a trust can bring the action in his or her county of residence and compel the trustee to defend in that venue. Additionally, because beneficiaries of a trust are indispensable parties in actions to set aside the trust, Fulmer v. Northern Central Bank, 386 So. 2d 856 (Fla. 2d DCA 1980), it appears that the beneficiaries suing may select any suing beneficiary’s residence as the county of venue. Because contingent beneficiaries are included as indispensable parties, the choice of venue may be considerably expanded. It is much more convenient to litigate in the county of one’s residence and F.S. 736.0204 affords the opportunity to do so. « Ch. 3 », « § 3.3 •, « E » 1 Litigation Under FL Probate Code § 3.3.E (2022)

E. Service Of Process « Ch. 3 », « § 3.3 •, « E », • 1 » 1 Litigation Under FL Probate Code § 3.3.E.1 (2022)

1. Statutory Service The methods of service under F.S. Chapters 48 and 49 apply to service on a trustee and indispensable parties to the action. « Ch. 3 », « § 3.3 •, « E », « 2 • 1 Litigation Under FL Probate Code § 3.3.E.2 (2022)

2. Formal Notice The court in In re Estate of Black, 528 So. 2d 1316 (Fla. 2d DCA 1988), acknowledged that trust proceedings are governed by the Florida Rules of Civil Procedure, and that an inter vivos trust exists apart from the decedent’s estate. The court held that formal notice could be used for service of process on the personal representative of the estate (who was also trustee of the trust under the pour-over provisions of the will) as to contests of the will and his acts as personal representative, including liability for transfer of estate assets to the trust after the decedent’s death, if the will should be revoked. However, personal jurisdiction over the trustee, as a fiduciary or individually, cannot be acquired by the use of formal notice. See In re Estate of Stisser, 932 So. 2d 400 (Fla. 2d DCA 2006).

The fact that a contestant who is a resident in Florida may be a beneficiary of a foreign trust does not authorize service of process on the trustee by formal notice under the Florida Probate Rules. Manufacturers National Bank of Detroit v. Moons, 659 So. 2d 474 (Fla. 4th DCA 1995). See §§ 3.3.F.1–3.3.F.2. « Ch. 3 », « § 3.3 •, « F » 1 Litigation Under FL Probate Code § 3.3.F (2022)

F. Foreign Trust « Ch. 3 », « § 3.3 •, « F », • 1 » 1 Litigation Under FL Probate Code § 3.3.F.1 (2022)

1. Limitation On Florida Proceedings In some cases, a trust has been executed in a foreign jurisdiction by a settlor who subsequently becomes a resident of Florida. Such a trust often recites that the law of the foreign jurisdiction controls. On the settlor’s death, the successor trustee is often a nonresident of Florida. Historically, foreign trusts were addressed under F.S. 736.0205, which provided that, if a party objects, the court could not entertain proceedings under F.S. 736.0201 for a trust registered or having its principal place of administration in another state, except under limited circumstances. However, effective October 1, 2013, F.S. 736.0205 was repealed. The practitioner should now look to F.S. 736.0202 for guidance regarding judicial proceedings and foreign trusts. Under F.S. 736.0202(2)(a), the court obtains personal jurisdiction over a trustee, trust beneficiary, or other person regardless of whether or not he or she is a citizen or resident of Florida, if he or she, through an agent, does any of the following acts related to a trust: Accepts trusteeship of a trust having its principal place of administration in this state at the time of acceptance. Moves the principal place of administration of a trust to this state. Serves as trustee of a trust created by a settlor who was a resident of this state at the time of creation of the trust or serves as trustee of a trust having its principal place of administration in this state. Accepts or exercises a delegation of powers or duties from the trustee of

a trust having its principal place of administration in this state. Commits a breach of trust in this state, or commits a breach of trust with respect to a trust having its principal place of administration in this state at the time of the breach. Accepts compensation from a trust having its principal place of administration in this state. Performs any act or service for a trust having its principal place of administration in this state. Accepts a distribution from a trust having its principal place of administration in this state with respect to any matter involving the distribution. The court may exercise this jurisdiction, whether found within or outside Florida, to the maximum extent allowed by the state Constitution or the federal Constitution. F.S. 736.0202(2)(b). In the case of a trust executed by a Florida resident who is both the trustee and settlor, the place of administration is clearly Florida if the trust does not provide otherwise. See F.S. 736.0202(1). F.S. 736.0108(6) provides that notice of change of place of administration must be served on the beneficiary. However, if a non-Florida resident is the successor trustee and does not provide such notice, does the place of administration remain in Florida? This could be significant, particularly if the beneficiaries are Florida residents whose interests normally would be adverse to proceedings in a foreign jurisdiction. « Ch. 3 », « § 3.3 •, « F », « 2 • 1 Litigation Under FL Probate Code § 3.3.F.2 (2022)

2. Exceptions To Limitations In Saffan v. Saffan, 588 So. 2d 684 (Fla. 3d DCA 1991), the court held that personal jurisdiction could be obtained over a foreign trustee when the settlor was a Florida resident, executed the trust and amendments in Florida, and adopted Florida law as controlling, and the trust corpus was located in Florida during the settlor’s lifetime. The ruling is based on the concept that the situs of an inter vivos trust is the settlor’s residence at the time of creation of the trust. Although the case comports with logic, the court did not discuss

or apparently consider the effect of F.S. 736.0202 or the definition of principal place of administration under F.S. 736.0108. In Lampe v. Hoyne, 652 So. 2d 424 (Fla. 2d DCA 1995), the court held that personal jurisdiction over a foreign trustee based on assertion of substantial activities within Florida under F.S. 48.193, was not acquired under that statute. The plaintiff did not allege jurisdiction based on the situs of the trust, which was executed in Florida. The court, therefore, did not rule on the situs question or the applicability of Saffan. The opinion, however, impliedly would recognize the ruling of Saffan if properly brought before the court. The court in In re Estate of McMillian, 603 So. 2d 685 (Fla. 1st DCA 1992), specifically considered former F.S. 737.203 (now F.S. 736.0202) and held that the statute does not require a Florida court to decline adjudication of a foreign trust. However, in that case, the trust was to be funded with Florida estate assets, the foreign trustee joined in the personal representative’s petition to determine beneficiaries, and the identification of the trust beneficiaries was governed by Florida law. For further discussion regarding the court’s jurisdiction and foreign trusts, see § 3.3.F.1. It appears that a nonresident trustee should object to Florida proceedings attacking the trust if it is beneficial to do so. « Ch. 3 », « § 3.3 •, « G » 1 Litigation Under FL Probate Code § 3.3.G (2022)

G. Standing To Contest « Ch. 3 », « § 3.3 •, « G », • 1 » 1 Litigation Under FL Probate Code § 3.3.G.1 (2022)

1. Interest In Trust « Ch. 3 », « § 3.3 •, « G », • 1 », • a » 1 Litigation Under FL Probate Code § 3.3.G.1.a (2022)

a. Heir At Law There is no specific provision in F.S. Chapter 736 that defines “interested person.” However, F.S. 731.201 provides that the definitions in the Florida Probate Code also apply to the Florida Trust Code. The term “interested person” is defined in F.S. 731.201(23). An heir at law obviously would benefit if the testamentary provisions of the trust are held invalid and

intestacy would result. However, intestacy is a matter of probate law under F.S. 731.201, which provides that any part of the estate not disposed of by will passes to the decedent’s heirs. See F.S. 731.201(20). There is therefore a serious question as to whether an heir at law has direct standing to contest a trust, because intestacy would produce assets subject to probate administration. The possession and control of estate assets lies with the personal representative of the estate under F.S. 733.607, or an administrator ad litem under F.S. 733.308. All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000), is analogous, in holding that a will beneficiary is precluded from individually seeking to recover assets that would be property of the estate if the action were successful. The proper course appears to be to require the heir to procure appointment of a representative of the estate to pursue an action seeking to set aside a trust in order to reach intestacy. « Ch. 3 », « § 3.3 •, « G », • 1 », « b » 1 Litigation Under FL Probate Code § 3.3.G.1.b (2022)

b. Beneficiary Under Trust A beneficiary under the trust appears to have standing to contest trust amendments that have diminished the beneficiary’s prior trust interests. F.S. 736.0201(4)(e) provides that the court has power to ascertain beneficiaries, determine any question relating to the trust administration, and generally to exercise declaratory judgment powers. If the trust has been amended to exclude or reduce the interest of beneficiaries previously provided for under the trust, there would be standing to contest for purposes of reviving the prior trust provision. In those cases that involve multiple amendments that have excluded the beneficiary, the general rule in Cates v. Fricker, 529 So. 2d 1253 (Fla. 2d DCA 1988), applies: the beneficiary would have to attack all of the amendments executed after the instrument that contained a provision for him or her in order to maintain standing. See § 3.2.B.1.b. « Ch. 3 », « § 3.3 •, « G », • 1 », « c • 1 Litigation Under FL Probate Code § 3.3.G.1.c (2022)

c. Contractual Rights A contestant who has been excluded from inheritance by a will or trust contrary to the decedent’s obligation under a contract to make a testamentary

disposition does not appear to have standing to contest the trust on that ground. As discussed in § 3.2.B.1.c, the breach of contract to make a will creates the right to assert a claim as a creditor but is not grounds to contest a will executed in breach of the contract. The same reasoning should apply to trusts. A potential trap is created for a contestant who would contest a trust on the basis that it violates a contractual obligation of the decedent. F.S. 733.707(3) provides that a revocable trust is liable for “obligations of the decedent’s estate to the extent the estate is insufficient to pay them.” At first blush it would appear that a creditor has a direct claim against a trust. However, the court in In re Estate of Read, 766 So. 2d 393 (Fla. 2d DCA 2000), held that an “enforceable claim” (see F.S. 733.707(3) (1997)) meant a timely filed claim against the estate in a probate proceeding. See also Tobin v. Damian, 723 So. 2d 396 (Fla. 4th DCA 1999). If no probate has been initiated by the decedent’s survivors, a creditor may open an estate proceeding under F.S. 733.202 as an interested person under F.S. 731.201(23). Because of the delays incident to litigation and possible appeals, the claimant’s ability to open an estate and file a claim could be lost and time-barred two years after the decedent’s death under F.S. 733.710(1). The bar can result in inability to enforce the claim, even if the claimant has recovered judgment in a civil proceeding. May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000), aff’d 245 F.3d 1281. The concept that claims are the subject of the probate administration is continued under F.S. 736.05053, which requires a trustee of a trust described in F.S. 733.707(3) to pay the personal representative any amounts the personal representative certifies are required to pay claims. « Ch. 3 », « § 3.3 •, « G », « 2 » 1 Litigation Under FL Probate Code § 3.3.G.2 (2022)

2. Filing Requirements And Limitations The Florida Trust Code is consistent with the Florida Probate Code in providing that no action contesting a trust can be commenced until the trust is irrevocable, except for an action by a guardian of the property of an incapacitated person. F.S. 736.0207. Most trusts provide that they are irrevocable upon the settlor’s demise. As noted in § 3.3.B.2.b, the contest of a living settlor’s revocation of the settlor’s revocable trust, on grounds of

undue influence, is not permitted during the settlor’s lifetime. Florida National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1985). The ruling in Ullman v. Garcia, 645 So. 2d 168 (Fla. 3d DCA 1994), that such an action is not permitted during the settlor’s lifetime, even if initiated by the settlor’s guardian, is no longer applicable under F.S. 736.0207 and 744.441. Generally, the four-year statute of limitations under F.S. 95.11(3) is applicable to trust actions. F.S. 95.11(p). There is a provision that enables a trustee to shorten the usual time limitations under F.S. Chapter 95. F.S. 736.0604(2) provides that an action to contest a trust may not be commenced six months after the trustee “sent” a person a copy of the trust notice informing a person of the trust existence, the trustee’s name and address, and the time allowed to commence a proceeding. In the absence of such a notice, the four-year statute of limitations under F.S. 95.11(3)(p) is applicable. “Sending of a document” is addressed in F.S. 736.0109. Permissible methods are first-class mail, personal delivery, delivery to last known address, a properly directed facsimile or other electronic message, or posting on a secure electronic account or website in accordance with subsection (3) of the statute. Certified mail is not listed, but any method of notice reasonably suitable under the circumstances and likely to result in receipt of the notice is acceptable. Whether it is necessary to show actual receipt of the notice is not clear, but it appears that F.S. 736.0604(2) requires only proper sending of notice, not actual receipt by the addressee. There is a presumption that a notice properly addressed, stamped, and mailed was timely received by the addressee. Brake v. State, Unemployment Appeals Commission, 473 So. 2d 774 (Fla. 3d DCA 1985). However, in Taplin v. Taplin, 88 So. 3d 344 (Fla. 3d DCA 2012), the court held that actual receipt of the notice is required, citing F.S. 736.1008 as it relates to the four-year limitation period for bringing an action against a trustee for breach of trust. The court also held that the four-year limitation period under F.S. 95.11(3)(o) is inapplicable to actions for breach of trust. As it relates to a document sent solely by posting on an electronic account or website, such document is not deemed sent unless the sender complies F.S. 736.0109(3). The sender has the burden of proving compliance with F.S.

736.0109(3). The following is a suggested form of limitations notice:

LIMITATIONS NOTICE OF TRUST (Name), a resident of _________ County, Florida, who died on ______, was the settlor of a trust dated ______, which exists, a copy of which is attached to this notice, together with all amendments thereto, if any. The name and address of the trustee of the trust is: ____________ ____________ ____________

F.S. 736.0604 provides that an action to contest the validity of the trust is barred if not commenced within the earlier of the time provided by F.S. Chapter 95, or within six months after the trustee sent this notice to an addressee. Be governed accordingly. Signed on

(date).

/s/ ____________ _________, Trustee (Certificate of Service)

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the foregoing Limitations Notice of Trust was furnished to the addressee listed above by certified U.S. mail, postage prepaid, on (date). /s/ ____________ Attorney for Trustee However, the time limitations under the Florida Probate Code may affect the ultimate viability of a trust contest. For example, a will (or codicils) offered for probate may provide for pour-over disposition to the trust and

further provide that the trust is incorporated in the will, in the event the trust is ineffective for any reason. If notice of administration is served on the contestant and no timely contest of the will is filed, the will then becomes incontestable. A civil action that seeks invalidation of the trust, if successful, would result in the trust provisions being incorporated in the will and require disposition of the estate in accordance therewith. Under those circumstances, it can argue that the trust contestant lacks standing because the contestant would not benefit if the trust is set aside. Cates v. Fricker, 529 So. 2d 1253 (Fla. 2d DCA 1988). However, if the contest involves an amendment to the trust and the probated will was executed before the contested amendment, it appears that the doctrine of incorporation by reference in the will would not be applicable, even if the will attempts to incorporate the trust and all subsequent amendments. F.S. 732.512(1) requires that, to be incorporated in the will, a writing must be in existence at the time the will is executed. From a proponent’s standpoint, it is good practice to cause the pour-over will to be re-executed or confirmed by codicil whenever the trust is amended, to ensure that the doctrine of incorporation by reference will be applicable. Consideration should also be given to probate of that will and service of notice of administration on potential contestants, to shorten the time for contest. The practitioner should note that trust actions based on undue influence have been determined to fall within the “delayed discovery doctrine” under F.S. 95.11(3) and may be filed up to 12 years from the date of discovery of undue influence. Flanzer v. Kaplan, 230 So. 3d 960 (Fla. 2d DCA 2017). The same doctrine has been applied to undue influence actions in guardianship actions. In re Guardianship of Rekasis, 545 So. 2d 471 (Fla. 2 DCA 1989). At first blush this might create cause for concern as to how one can determine the date undue influence was secretly committed over the years before the settlor’s death. The Rekasis court resolved that issue by declaring as a matter of law that facts giving rise to a cause of action based on undue influence do not become discoverable by the exercise of reasonable diligence until the termination of the influence. Undue influence necessarily terminates upon the death of the victim. It is doubtful that the delayed discovery doctrine will be applicable to

contest of wills. Efforts to apply that doctrine in probate have been rejected. All Children’s Hospital v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000). The court specifically held that failure to file a timely will because the alleged wrong doer concealed essential facts to establish undue influence was not grounds to excuse an untimely objection. See Rubel, “Delayed Discovery Doctrine,” Fla. Bar ActionLine, p. 23 (Fall 2018). « Ch. 3 », « § 3.3 •, « G », « 3 » 1 Litigation Under FL Probate Code § 3.3.G.3 (2022)

3. Renunciation Of Benefits The equitable rule concerning renunciation of benefits in a trust contest is consistent with the renunciation required in will contests discussed in §§ 3.2.B.3.a–3.2.B.3.b. The Florida Supreme Court in Barnett National Bank of Jacksonville v. Murrey, 49 So. 2d 535 (Fla. 1950), 21 A.L.R. 2d 1452, held that a trust contestant must renounce benefits under the contested trust and return any benefits received, as a condition to contest of the trust. The case indicates that the benefit received should be returned promptly and the contestant must not be guilty of laches. As in the case of wills, the renunciation is not an absolute forfeiture of the contestant’s rights under the trust if he or she is not successful in the contest. In Gossett v. Gossett, 182 So. 3d 694 (Fla. 4th DCA 2016), the court held that renunciation of benefits and return of benefits was not required when the contestant’s interest under contested amendments to the trust and all prior amendments was greater than the amounts distributed to him. In Fintak v. Fintak, 120 So. 3d 177 (Fla. 2d DCA 2013), the District Court of Appeal, Second District, held that the renunciation rule does not apply in situations that involve a settlor of a self-settled, inter vivos trust. The court stated “it is axiomatic that one who funds a trust with his or her own assets does not have to renounce any benefits received as a condition precedent to instituting a challenge to the validity of the trust … because there can be no gift or devise to a settlor/beneficiary of a self-settled trust because his or her interest does not derive from the trust itself.” Id. at 183. « Ch. 3 », « § 3.3 •, « G », « 4 • 1 Litigation Under FL Probate Code § 3.3.G.4 (2022)

4. In Terrorem Clause

F.S. 736.1108 provides that a trust provision penalizing one for contesting the trust is unenforceable for trusts created on or after October 1, 1993. F.S. 736.1108(2) provides that a revocable trust is “created when the right of revocation terminates.” « Ch. 3 », « § 3.3 •, « H » 1 Litigation Under FL Probate Code § 3.3.H (2022)

H. Fees In Trust Actions « Ch. 3 », « § 3.3 •, « H », • 1 » 1 Litigation Under FL Probate Code § 3.3.H.1 (2022)

1. Reasonable Fees A trustee engaged in litigation cannot appear pro se—representation by an attorney is required. EHQF Trust v. S & A Capital Partners, Inc., 947 So. 2d 606 (Fla. 4th DCA 2007). “It is well-settled that attorney’s fees are not recoverable absent a statute or a contract that specifically authorizes their recovery.” Erorentals, LLC v. Yu, 275 So. 3d 746, 747 (Fla. 3d DCA 2019). Additionally, fees may be awarded in cases in which equity would allow fees from an estate or fund created or that has benefited from the legal services. See Estate of Hampton v. Fairchild-Florida Construction Co., 341 So. 2d 759 (Fla. 1977) (establishing award of attorneys’ fees under “common fund” theory of recovery). F.S. 736.1006 permits assessment of costs and the court has discretion to “direct from what part of the trust the costs shall be paid.” F.S. 736.1004 makes it clear that attorneys’ fees are assessable against a trustee for breach of fiduciary duty. F.S. 736.1005 permits assessment of fees when any attorney has rendered services to a trust. Reasonable trustee fees are determined under the factors set forth by the Florida Supreme Court in West Coast Hospital Ass'n v. Florida National Bank of Jacksonville, 100 So. 2d 809 (Fla. 1958), not under Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), i.e., (reasonable hourly rate) x (reasonable hours expended). Robert Rauschenberg Foundation v. Grutman, 198 So. 3d 685 (Fla. 2d DCA 2016). Costs and fees cannot be assessed against a trustee individually if the

trustee is not named in the petition or complaint as a party in the capacity as both trustee and individually, and allegations made concerning the individual claim. Grasso v. Grasso, 143 So. 3d 1050 (Fla. 2d DCA 2014). Service of the petition on the trustee and individually must be made. Kozinski v. Stabenow, 152 So. 3d 650 (Fla. 4th DCA 2014). Generally, a party is not entitled to recover attorneys’ fees in a trust action when entitlement to fees has not been pled. Wintter & Associates, P.A. v. Kanowsky, 992 So. 2d 434 (Fla. 4th DCA 2008), citing Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). However, there are two exceptions to the requirement that entitlement to fees must be plead. “First, ‘[w]here a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.’ ” Nathanson v. Morelli, 169 So. 3d 259, 261 (Fla. 4th DCA 2015), quoting Stockman, 573 So. 2d at 838. “Second, ‘for cases that are dismissed before the filing of an answer,’ the Florida Supreme Court has held ‘that a defendant’s claim for attorney fees is to be made either in the defendant’s motion to dismiss or by a separate motion which must be filed within [30] days following a dismissal of the action.’ ” Id., quoting Green v. Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261, 1263 (Fla. 1998). Thus, if the other party is on notice of a claim to entitlement to fees and acquiesces to that claim or otherwise fails to object to the failure to plead such entitlement, or if the claim is dismissed before filing an answer, the entitlement to fees is not required to be pled. Generally, under F.S. 736.0802(10), a party is not required to obtain a court order to prohibit a trustee from paying attorneys’ fees from trust assets. There is an exception, however, under F.S. 736.0802(10)(b), which provides that if a claim or defense is made based on breach of trust against a trustee, a court order is required. A “reasonable showing by evidence” must be made by the challenger of the general rule to provide a reasonable basis for the court to conclude there has been a breach of trust. Id. See also Covenant Trust Co. v. Guardianship of Ihrman, 45 So. 3d 499 (Fla. 4th DCA 2010). « Ch. 3 », « § 3.3 •, « H », « 2 » 1 Litigation Under FL Probate Code § 3.3.H.2 (2022)

2. Powers Of Trustee F.S. 736.0816(15) grants a trustee power to pay expenses incurred in the administration and protection of the trust estate. This statute enables a trustee to pay legal expenses incurred by the trustee directly but does not authorize the assessment of fees incurred by a contesting beneficiary against the trust. Frymer v. Brettschneider, 710 So. 2d 10 (Fla. 4th DCA 1998) (construing predecessor statute to F.S. 736.0816(15)). « Ch. 3 », « § 3.3 •, « H », « 3 » 1 Litigation Under FL Probate Code § 3.3.H.3 (2022)

3. Legal Services Rendered To Trust F.S. 736.1005 authorizes the allowance of legal fees by court order for services rendered to a trust. The statute applies to the fees incurred by a third party if the services benefit the trust. Except when the trustee is an adverse party, an attorney representing a party other than the trustee must give notice in writing to the trustee of the attorney’s retention by an interested party and the attorney’s entitlement to fees under the statute. Failure to do so can result in reduction of the fees for services rendered before the notice. F.S. 736.1005(3). See In re Guardianship of Bloom, 227 So. 3d 165, 171–172 (Fla. 2d DCA 2017) (“we hold that an applicant for attorney’s fees under [F.S.] 736.1005 must serve an application for attorney’s fees to the parties identified in the statute contemporaneously with the filing of the application with the court”) « Ch. 3 », « § 3.3 •, « H », « 4 • 1 Litigation Under FL Probate Code § 3.3.H.4 (2022)

4. Chancery Considerations F.S. 736.1006(1) provides that “[i]n all trust proceedings, costs may be awarded as in chancery actions.” The rule in chancery cases is that assessment of costs follows the result of the action. However, the fact that one may prevail is not conclusive as to fee and cost entitlement, particularly if the fees and costs exceed the benefit to the trust. Nalls v. Millender, 721 So. 2d 426 (Fla. 4th DCA 1998). It has been held that former F.S. 737.627 permits the assessment of fees against only the interest that the losing party may have in the trust and does not authorize assessment of fees against one who has no interest in the trust. Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA

1999). However, fees and costs may be paid from other assets of the party, in the discretion of the court, in cases involving breach of fiduciary duty, the trustee’s powers, or proceedings arising under F.S. 736.0410–736.0417. « Ch. 3 », « § 3.3 •, « I • 1 Litigation Under FL Probate Code § 3.3.I (2022)

I. Trial Considerations The general comments in this chapter concerning trial of will contests, discovery, testimony, and evidence are generally applicable to trust contests. Because trust litigation is essentially an independent civil case, the right to jury trial, which generally is not available in will contest litigation, may be a consideration. See Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999); Epstein v. Epstein, 519 So. 2d 1042 (Fla. 3d DCA 1988). F.S. 736.08165 provides that during a contest of the trust, the trustee must administer the trust as if no proceeding has been initiated. However, a trustee must not make distributions to a beneficiary “in contravention of the rights of those persons who may be affected by the outcome of the proceeding,” during a contest of the trust, except upon approval of court after notice to all interested parties. It is prudent, early in the proceedings, to procure an order of court that would specifically restrain distribution or to take some action to ensure that the trustee is aware of this restriction. Footnotes — Chapter 3: *

J.D. with honors, 1958, George Washington University. Mr. George Wilsey is a member of The Florida Bar and the St. Petersburg Bar Association, and a Fellow of the American College of Trust and Estate Counsel. He is an attorney with Fisher & Wilsey, P.A., in St. Petersburg. **

J.D., 1992, University of Florida. Mr. Steven Wilsey is a member of The Florida Bar and the St. Petersburg Bar Association, and is a Florida Certified Public Accountant. He is an attorney with Fisher & Wilsey, P.A., in St. Petersburg.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 4 » 1 Litigation Under FL Probate Code Ch. 4 (2022)

Chapter 4 RIGHTS OF THE SURVIVING FAMILY AMY B. BELLER* JORJA M. WILLIAMS** Contents § 4.1. INTRODUCTION § 4.2. SPOUSAL RIGHTS PROCURED BY FRAUD, DURESS, OR UNDUE INFLUENCE § 4.3. ELECTIVE SHARE A. For Decedents Dying Prior To October 1, 2001 B. For Decedents Dying On Or After October 1, 2001 1. In General 2. The “Elective Estate” 3. How Right Exercised 4. Determination Of Entitlement 5. Determination Of Amount 6. Additional Considerations § 4.4. EXEMPT PROPERTY A. In General B. How Right Exercised § 4.5. FAMILY ALLOWANCE A. In General B. How Right Exercised § 4.6. PRENUPTIAL AGREEMENTS AND WAIVER A. Before Florida Probate Code B. Florida Probate Code Provisions § 4.7. POSTNUPTIAL AGREEMENTS

§ 4.8. PRETERMITTED SPOUSES A. In General B. How Status Established § 4.9. PRETERMITTED CHILDREN A. In General B. How Status Established § 4.10. RIGHTS RESULTING FROM MARRIAGE TERMINATION § 4.11. RECEIPT OF PROPERTY BY KILLER (SLAYER STATUTE) § 4.12. NONMONETARY RIGHTS § 4.13. FLORIDA UNIFORM DISPOSITION OF COMMUNITY PROPERTY RIGHTS AT DEATH ACT « Ch. 4 », • § 4.1 » 1 Litigation Under FL Probate Code § 4.1 (2022)

§ 4.1. INTRODUCTION This chapter deals with the rights of the decedent’s surviving spouse and children that may become the subject of litigation under the Florida Probate Code. It does not address rights that are essentially nonadversarial in nature, such as the right to disclaim under F.S. Chapter 739. A discussion of additional rights of the surviving spouse and children not within the scope of this chapter may be found in other chapters of this manual, particularly Chapters 2 (Intestate Succession), 5 (Jointly Held Assets), and 8 (Homestead Litigation). These rights are also discussed in PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022) and in BASIC ESTATE PLANNING IN FLORIDA (Fla. Bar 10th ed. 2020). Homestead rights and issues require close examination in the context of determining spousal rights. While touched upon in this chapter, Chapter 8 of this manual provides a comprehensive analysis of all relevant homestead concerns.

« Ch. 4 », « § 4.2 » 1 Litigation Under FL Probate Code § 4.2 (2022)

§ 4.2. SPOUSAL RIGHTS PROCURED BY FRAUD, DURESS, OR UNDUE INFLUENCE Effective October 1, 2010, F.S. 732.805 addresses the issue of spousal rights procured by fraud, duress, or undue influence. The following analysis is based on (and in large part paraphrases or directly quotes) a portion of the Florida House of Representatives Staff Analysis dealing with the bill (CS/CS/HB 1237) enacting F.S. 732.805. Before October 1, 2010, a marriage could be set aside by a court if the marriage was either void or voidable. A marriage was void under Florida law if: It was a bigamous marriage, F.S. 826.01; It was an incestuous marriage, F.S. 741.21 and 826.04; It was a marriage between persons of the same sex, F.S. 741.212; It was a common-law marriage entered into after January 1, 1968, F.S. 741.211; There was a prior existing marriage that was undissolved at the time the parties entered into the current marriage. Smithers v. Smithers, 765 So. 2d 117 (Fla. 4th DCA 2000); or One or both parties lacked the requisite mental capacity at the time the marriage was actually contracted. Bennett v. Bennett, 157 Fla. 627, 26 So. 2d 650 (1946); Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932). A marriage was voidable under Florida law if consent to the marriage was obtained by: undue influence, Arnelle v. Fisher, 647 So. 2d 1047 (Fla. 5th DCA 1994); duress, In re Ruff’s Estate, 32 So. 2d 840 (Fla. 1947), 175 A.L.R. 370

(when party alleged that he was forced to marry under threats of prosecution and violence, marriage was voidable); Tyson v. State, 83 Fla. 7, 90 So. 622 (1922) (evidence showed that marriage was procured by fraud and effected as result of coercion); or fraud, Cooper v. Cooper, 120 Fla. 607, 163 So. 35 (1935) (marriage voidable when marriage ceremony was procured by fraud). Florida case law was clear that an action challenging a marriage could be maintained after the death of the spouse only if the marriage was void. Kuehmsted. A voidable marriage could be attacked only in a direct proceeding during the life of the parties. Arnelle. As a result, a surviving spouse who procured a marriage by undue influence, duress, or fraud was still entitled to the legal benefits of a surviving spouse. Unless the marriage was void, a surviving family member could not challenge the marriage after the death of one spouse. In challenging a marriage, a party seeking to uphold the marriage could prove ratification, which is an action upholding the validity of the marriage. For example, a spouse may allege that a marriage is void because the spouse was so intoxicated at the marriage ceremony that he or she could not have consented to the marriage. However, if the spouses subsequently cohabited with each other and acted as if the marriage was valid, the spouse may have ratified the marriage. See Mahan v. Mahan, 88 So. 2d 545 (Fla. 1956), 57 A.L.R. 2d 1246. Similarly, if a spouse was defrauded in entering into a marriage and later learned of the fraud but stayed in the marriage and continued to act as if married, the spouse may have ratified the marriage. See Ball v. Ball, 160 Fla. 601, 36 So. 2d 172 (1948). Effective October 1, 2010, F.S. 732.805 provides a means for beneficiaries to challenge the decedent’s marriage on the grounds of fraud, duress, or undue influence, and if the court finds that the marriage was so procured, the surviving spouse is not entitled to: Elective share; Family allowance; Preference in appointment as personal representative; Intestate inheritance;

Homestead property; Exempt property; Inheritance as a pretermitted spouse; or Immunity from the presumption of undue influence. F.S. 732.805(1)(a), (1)(d). Additionally, the surviving spouse is not entitled to any of the following, unless such surviving spouse is specifically named in the document: Rights or benefits under a bond, life insurance policy, or other contractual arrangement; or Rights or benefits under a will, trust, or power of appointment. F.S. 732.805(1)(b)–(1)(c). If the court finds that the marriage was procured by fraud, duress, or undue influence, the probate court must distribute the decedent’s property as if the surviving spouse had predeceased the decedent. F.S. 732.805(2). The person contesting the marriage has the burden of proving fraud, duress, or undue influence by a preponderance of the evidence. F.S. 732.805(4). The surviving spouse has the burden to prove the defense of ratification, if applicable, by a preponderance of the evidence. Id. The prevailing party is entitled to taxable costs and attorneys’ fees. F.S. 732.805(5). In connection with disputes over the validity of a marriage, an insurance company, financial institution, or other obligor making a payment according to the terms of its policy or obligation is not liable for wrongful payment unless, before payment, it had actual written notice of a possible claim for fraud, duress, or undue influence. F.S. 732.805(6). Notice requirements are set forth in F.S. 732.805(6)(a)–(6)(c). F.S. 732.805(8) contains a four-year statute of limitations, which begins to run on the date of decedent’s death.

« Ch. 4 », « § 4.3 » 1 Litigation Under FL Probate Code § 4.3 (2022)

§ 4.3. ELECTIVE SHARE « Ch. 4 », « § 4.3 », • A » 1 Litigation Under FL Probate Code § 4.3.A (2022)

A. For Decedents Dying Prior To October 1, 2001 Effective January 1, 1976, the common-law rights of dower and curtesy were abolished by the Florida Probate Code, F.S. 732.111, and the concept of an elective share was created in Part II of F.S. Chapter 732. The law governing the elective share as it developed and applies to the estates of decedents who died before October 1, 2001, is discussed in detail in § 7.2, PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022). « Ch. 4 », « § 4.3 », « B • 1 Litigation Under FL Probate Code § 4.3.B (2022)

B. For Decedents Dying On Or After October 1, 2001 « Ch. 4 », « § 4.3 », « B •, • 1 » 1 Litigation Under FL Probate Code § 4.3.B.1 (2022)

1. In General In 1999, the Florida Legislature enacted a new elective share law, F.S. 732.201–732.2155. Additional changes were enacted in 2001 and later years, including significant changes that were effective on July 1, 2017. The revised legislation is effective for decedents dying on or after October 1, 2001. F.S. 732.2155(1); Estate of Heid v. Heid, 863 So. 2d 1259 (Fla. 5th DCA 2004). For an extensive analysis of the current law, see Chapter 7 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022). The surviving spouse of a person who dies domiciled in Florida has the right to take an elective share. F.S. 732.201. The elective share statutes were held to be constitutional in In re Estate of Magee, 988 So. 2d 1 (Fla. 2d DCA 2007). With respect to decedents who died prior to July 1, 2017, the elective

share is in addition to homestead, exempt property, and allowances as provided in Part IV of F.S. Chapter 732. F.S. 732.2105. With respect to decedents who died July 1, 2017 or later, homestead property is expressly included in the elective estate (F.S. 732.2035(2)) unless the surviving spouse has waived his or her homestead rights (F.S. 732.2045(1)(i)). The right to take an elective share may be waived, including by a valid prenuptial or postnuptial agreement. F.S. 732.702. Additionally, F.S. 732.2155(3) specifically provides that a waiver of elective share rights before the effective date of F.S. 732.2155 (i.e., before October 1, 1999) that is otherwise in compliance with F.S. 732.702 is effective to waive rights under the revised elective share statutes. « Ch. 4 », « § 4.3 », « B •, « 2 » 1 Litigation Under FL Probate Code § 4.3.B.2 (2022)

2. The “Elective Estate” The “elective estate” includes both probate assets and nonprobate assets of the decedent. See F.S. 732.2035. Assets that are excluded from the elective estate are enumerated in F.S. 732.2045, and valuation of the elective estate is set forth in F.S. 732.2055. The elective share is an amount equal to 30% of the elective estate. F.S. 732.2065. Basically (and very generally speaking), the following ten categories of property are included in determining the value of the elective share: the probate estate; homestead property; joint bank accounts, pay on death accounts, Totten trusts, and similar arrangements; property held in joint tenancy and tenancy by the entireties, other than accounts and securities; revocable trust and other revocable transfers; irrevocable transfers by decedent, including transfers with retained right to income or principal and retained right to discretionary principal distributions (excluding certain “safe harbors” addressed at § 7.4.B, PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022));

life insurance policies; pensions and retirement plans; transfers made within one year of decedent’s death, including gifts and certain transfers resulting from terminated rights or powers; and irrevocable transfers to an elective share trust. For an exhaustive discussion of property included in the elective estate and the computation of the elective share for decedents dying on or after October 1, 2001, and on or after July 1, 2017, see PRACTICE UNDER FLORIDA PROBATE CODE, supra. Property excluded from the elective share is addressed at § 7.4.B of that manual. Sources of property from which the elective share is to be paid are addressed in F.S. 732.2075 and 732.2085 (see § 7.5 of the afore-referenced manual), and valuation of the property used to satisfy the elective share is addressed in F.S. 732.2095 (see § 7.4.D of the aforereferenced manual). « Ch. 4 », « § 4.3 », « B •, « 3 » 1 Litigation Under FL Probate Code § 4.3.B.3 (2022)

3. How Right Exercised The right of election may be exercised by the surviving spouse or, with approval of the court having jurisdiction of the probate proceeding, by an attorney-in-fact or guardian of the property of the surviving spouse. F.S. 732.2125. “Before approving the election, the court shall determine that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime.” Id. This suggests that the election must be claimed during the surviving spouse’s lifetime. The right to share in the decedent’s estate is not lost if the surviving spouse dies after the election but before the court determines the amount of the elective share. See In re Estate of Hiley, 262 So. 2d 476 (Fla. 4th DCA 1972). The election must be filed on or before the earlier of the date that is (1) six months after the date of service of a copy of the notice of administration on the surviving spouse, or on an attorney-in-fact or guardian of the property of the surviving spouse, or (2) two years after death. F.S. 732.2135(1). Unless service of the notice of administration is waived by the surviving spouse, when the surviving spouse is also a personal representative, the notice of

administration is deemed to be served on the surviving spouse on the earliest of the following dates: (1) the date on which the surviving spouse acknowledges in writing receipt of the notice of administration; (2) the date on which the notice of administration is first served on any other person entitled to service of the notice of administration (or the first among multiple persons entitled to service); or (3) the date that is 30 days after the letters of administration are issued. Fla. Prob. R. 5.2405(a). Upon petition brought within the period to elect, and for good cause, the court can extend the time to make an election. F.S. 732.2135(2). A petition to extend the time for making the election, or for approval to make the election, tolls the time for making the election. F.S. 732.2135(4). As of July 1, 2017, the surviving spouse can file a request for extension up to 40 days after the date of termination of any proceeding which affects the amount the spouse is entitled to receive under F.S. 732.2075(1) (the amount of the elective share). F.S. 732.2135(2). The election may be withdrawn at any time within eight months after the decedent’s death and before the court’s order of contribution. F.S. 732.2135(3). Rule 5.360 sets forth procedures for implementing the elective share law. Under this rule, upon receipt of an election, the personal representative must serve a copy of the election within 20 days together with a notice of election on interested persons “in the manner provided for service of formal notice.” Rule 5.360(b)(3). The notice of election must state that persons receiving the notice may be required to contribute toward satisfaction of the elective share; that objections must be served within 20 days of service; and that if no objection is timely served, an order determining entitlement may be granted without further notice. Id. To object, an interested person must serve an objection, stating with particularity the grounds on which the objection is based, within 20 days of service of the notice. Rule 5.360(b)(4). The objection must be served on the surviving spouse and the personal representative. The personal representative, in turn, “must promptly serve a

copy of the objection on all other interested persons” not previously served “with a copy of the objection.” Id. The law provides for the court to determine the elective share and contribution. F.S. 732.2145(1). Contributions will “bear interest at the statutory rate beginning 90 days after the order of contribution.” Id. The duty of the personal representative to collect contribution is addressed in F.S. 732.2145(2). A personal representative may be relieved of the duty of enforcing contribution if the court finds it is impracticable in view of the improbability of obtaining a judgment, improbability of collecting under a judgment, or otherwise. F.S. 732.2145(3). The petition must state the grounds, and notice must be served on interested persons. Rule 5.360(e). The surviving spouse has an independent right to collect the elective share, and a resulting judgment shall include the surviving spouse’s costs and reasonable attorneys’ fees. F.S. 732.2145(4). « Ch. 4 », « § 4.3 », « B •, « 4 » 1 Litigation Under FL Probate Code § 4.3.B.4 (2022)

4. Determination Of Entitlement If no objection is timely served, the court will enter an order determining entitlement to the elective share. Fla. Prob. R. 5.360(c)(1). If there is a timely served objection, the court will determine entitlement to the elective share after notice and hearing. Rule 5.360(c)(2). An order determining entitlement to elective share is not final and appealable. See In re Estate of Magee, 902 So. 2d 909 (Fla. 2d DCA 2005). « Ch. 4 », « § 4.3 », « B •, « 5 » 1 Litigation Under FL Probate Code § 4.3.B.5 (2022)

5. Determination Of Amount If the court finds entitlement, the personal representative is to file and serve a petition to determine the amount of the elective share. The petition must give the names and addresses of each direct recipient of assets; provide a description of the proposed asset distribution to satisfy the elective share, including the time and manner of distribution; and identify each direct recipient (if any) from whom a contribution will be required, stating the amount sought. Fla. Prob. R. 5.360(d)(1). “The inventory of the elective

share estate required by rule 5.340, together with the petition, must be served within 60 days after entry of the order determining entitlement to the elective share on all interested persons, in the manner provided for service of formal notice.” Rule 5.360(d)(2). If the personal representative does not file the petition to determine the amount of the elective share within 90 days from rendition of the entitlement order, the petition may be filed by the electing spouse or by the agent, guardian of the property, or personal representative of the electing spouse. Rule 5.360(d)(3). An interested person may object to the petition to determine the amount of the elective share or method of satisfaction by serving an objection within 20 days after service of that petition. The objection must state the grounds with particularity. The objection is served on the personal representative and the surviving spouse. The personal representative must serve a copy of the objection on interested persons who have not been served. Rule 5.360(d)(4). The order determining the amount of elective share and contribution must (1) set forth the amount of the elective share, (2) identify assets to be distributed to the surviving spouse, and (3) if contribution is necessary, specify the amount of contribution for which each direct recipient is liable. Rule 5.360(d)(6). Interest on the unpaid elective share starts accruing at the statutory rate on any portion of the elective share not satisfied within two years of the date of the decedent’s death, regardless of whether an order of contribution was entered. F.S. 732.2145(1). Liability for interest falls upon the estate and any direct recipients of property required to contribute toward payment of the elective share. Effective July 1, 2016, F.S. 732.201 was amended to add the following sentence: “The election does not reduce what the spouse receives if the election were not made and the spouse is not treated as having predeceased the decedent.” The Florida House of Representatives Staff Analysis dated March 7, 2016, dealing with CS/CS/CS/SB 540, states in part: “The intent of the amendment is to clarify that a probate court should depart from the decedent’s estate plan only when the surviving spouse would otherwise receive less than the elective share amount. In other words, the amendment is

intended to clarify that an elective share is a floor, not a ceiling, on the amount of assets which the surviving spouse may receive from the decedent’s estate.” « Ch. 4 », « § 4.3 », « B •, « 6 • 1 Litigation Under FL Probate Code § 4.3.B.6 (2022)

6. Additional Considerations The Committee Note to the 2001 revision of Fla. Prob. R. 5.360 states the following: A proceeding to determine entitlement is not a specific adversary proceeding under Rule 5.025(a) but may be declared adversary. A proceeding to determine the amount and contribution is a specific adversary proceeding under Rule 5.025(a). Service of process may be required to obtain jurisdiction over direct recipients who are not otherwise interested persons and who have not voluntarily submitted themselves to jurisdiction. A personal representative is not required to make impractical or extended searches for property entering into the elective estate and for the identities of direct recipients. Fla. Ethics Op. 76-16 provides “guidance regarding the duties of an attorney with respect to spousal rights.” The following Florida appellate opinions have addressed issues concerning the revised elective share statute: Discovery of financial information. In McDonald v. Johnson, 83 So. 3d 889 (Fla. 2d DCA 2012), the court granted a writ of certiorari quashing a probate court order that had denied a surviving spouse’s discovery request pursuant to Fla. R. Civ. P. 1.351 seeking information from the decedent’s company that was not party to the probate proceeding. Quoting In re Estate of Sauey, 869 So. 2d 664, 665 (Fla. 4th DCA 2004), the McDonald court held that “[d]iscovery of financial information ‘is relevant to the decision of whether or not to even seek an elective share.’ ” Id. at 891. Nonmarital property. Also in McDonald, the court addressed the

definition of “nonmarital asset” (held in a trust) as found in F.S. 732.2155(6)(c), and its reference to F.S. 61.075. Elective share trust. For an example of a will that was held to not create an elective share trust, see Janien v. Janien, 939 So. 2d 264 (Fla. 4th DCA 2006). As of July 1, 2017, revised F.S. 738.606 provides that a trust that omits a provision allowing the spouse to convert unproductive property into productive property will be deemed to include such provision by statutory default, thus allowing such trust to qualify as an elective share trust. Fla. R. App. P. 9.170 provides that an order that determines an amount and orders contribution in satisfaction of the elective share is a final appealable order. Rule 9.170(b)(16). In Dinkins v. Dinkins, 120 So. 3d 601, 602 (Fla. 5th DCA 2013), a decedent’s living trust provided a “[c]onditional [s]pecific [b]equest of [c]ash” to the effect that the surviving spouse would take an additional $5 million if she waived her right to the elective share. The surviving spouse argued that this provision was an unlawful penalty clause under F.S. 736.1108(1). The District Court of Appeal, Fifth District, held that this provision was not an unlawful penalty clause, and that “under a clause providing an alternative to a statutory minimum benefit [such as an elective share], to receive the alternative devise, the beneficiary must forfeit the right to receive the statutory benefit” in order to take the alternative devise. Id. at 603. As of July 1, 2017, F.S. 732.2151 provides a probate judge with significant discretion in assessing attorneys’ fees and costs in connection with elective share proceedings. In addition, if the personal representative fails to file a petition to determine the amount of the elective share as required, the surviving spouse’s fees and costs in preparing such petition may be paid from the estate.

« Ch. 4 », « § 4.4 » 1 Litigation Under FL Probate Code § 4.4 (2022)

§ 4.4. EXEMPT PROPERTY « Ch. 4 », « § 4.4 », • A » 1 Litigation Under FL Probate Code § 4.4.A (2022)

A. In General In addition to being entitled to protected homestead, statutory entitlements, property passing under the will or by intestacy, the elective share, and the family allowance, the surviving spouse, or if there is no surviving spouse, the children of a decedent domiciled in Florida may take, subject to any perfected security interest: (a) Household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death. (b) Two motor vehicles as defined in s. 316.003(40) [which defines “motor vehicle” as a “self-propelled vehicle not operated upon rails or guideway, but not including any bicycle, motorized scooter, electric personal assistive mobility device, personal delivery device, swamp buggy, or moped”], which do not, individually as to either such motor vehicle, have a gross vehicle weight in excess of 15,000 pounds, held in the decedent’s name and regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. (c) All qualified tuition programs authorized by s. 529 of the Internal Revenue Code of 1986, as amended, including, but not limited to, the Florida Prepaid College Trust Fund advance payment contracts under s. 1009.98 and the Florida Prepaid College Trust Fund participation agreements under s. 1009.981. (d) All [death] benefits paid pursuant to s. 112.1915. F.S. 732.402(2). See § 2.3.D of this manual. If there is no surviving spouse, the children of the decedent have the right to exempt property. There is no requirement in the statute that they be minor children or that they be supported by the decedent.

Property determined to be exempt under F.S. 732.402 is excluded from the value of the estate before residuary, intestate, pretermitted, or elective shares are determined. F.S. 732.402(7). There have been few appellate opinions construing exempt property questions since the Florida Probate Code was enacted. Probate judges have exercised discretion in determining the meaning of “usual place of abode,” “regularly used,” and “immediate family.” The District Court of Appeal, First District, held that as F.S. 732.402 is “plain and without ambiguity, the statute must be enforced according to its terms.” Killings v. Estate of Burks, 473 So. 2d 827, 829 (Fla. 1st DCA 1985). “[F.S] 732.402 is not intended to, and does not, deprive the surviving family members or third parties of their existing rights to personal property within the decedent’s home at the time of the decedent’s death.” In re Estate of Grant, 558 So. 2d 208, 209 (Fla. 2d DCA 1990). The decedent’s death does not transform the personal property of others into property of a decedent that is subject to administration. Id. Therefore, the surviving spouse and children are not compelled to file a petition for determination of exempt property to preserve rights in personal property when they claim prior ownership of these items. However, if the personal property is in the possession of the personal representative, there may be an obligation to file a statement of claim under F.S. 733.702(1) to maintain a claim of ownership. If the personal property is not in the possession of the personal representative, and the personal representative does have the right to take possession of property of the decedent, the personal representative is entitled to maintain an action to recover the property. Id. It should be noted that if the decedent specifically or demonstratively devises property, it is not to be included in exempt property. F.S. 732.402(5); Babcock v. Estate of Babcock, 995 So. 2d 1044 (Fla. 4th DCA 2008). However, if a person to whom the property is so devised would otherwise be entitled to it as exempt property, that person can have the court determine it to be exempt property (and thus exempt from claims except for perfected security interests). F.S. 732.402(5). « Ch. 4 », « § 4.4 », « B • 1 Litigation Under FL Probate Code § 4.4.B (2022)

B. How Right Exercised

A petition for determination of exempt property must be filed on or before the later of the date that is four months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will or involving any other matter affecting any part of the estate subject to a designation of exempt property. F.S. 732.402(6). See Fla. Prob. R. 5.2405 for service of the notice of administration on a person who is personal representative. It has been held that this time period may be extended when the personal representative fails to serve a copy of the notice of administration and estate inventory on the surviving spouse. In re Estate of Dubin, 536 So. 2d 1186 (Fla. 4th DCA 1989). The petition to determine exempt property must be verified, describe the property and the basis on which it is claimed as exempt property, and set forth the name and address of the surviving spouse or, if none, the children, and year of birth for minors. Rule 5.406(b). The court will determine each item of exempt property and its value, and order surrender to the person entitled to it. Rule 5.406(c). The petitioner is deprived of due process rights if the petition is denied without notice and an opportunity to be heard. Martini v. Estate of Conner, 113 So. 3d 147 (Fla. 2d DCA 2013). Under Fla. R. App. P. 9.170(b)(13), an order determining exempt property is a final appealable order.

« Ch. 4 », « § 4.5 » 1 Litigation Under FL Probate Code § 4.5 (2022)

§ 4.5. FAMILY ALLOWANCE « Ch. 4 », « § 4.5 », • A » 1 Litigation Under FL Probate Code § 4.5.A (2022)

A. In General If the decedent was domiciled in Florida at the time of death, the surviving spouse and the lineal heirs (ascendants and descendants) whom the decedent was obligated to support, or who in fact were being supported by the decedent, are entitled to a “reasonable” allowance from the estate for their maintenance during administration. The maximum allowable amount is $18,000. F.S. 732.403. It may be paid in a lump sum or in installments. Id. The family allowance is not automatic but may be awarded after notice and hearing. Family allowance is paid to the surviving spouse, if living, for the use of the spouse and dependent lineal heirs. If the surviving spouse is not living, it is paid to the lineal heirs or persons having their care and custody. If any lineal heir is not living with the surviving spouse, the allowance may be made partly to the lineal heir (or guardian or other person having the heir’s care and custody) and partly to the surviving spouse, based on their needs. F.S. 732.403. Probate judges exercise discretion in granting or denying the family allowance and, in the absence of a clear abuse of that discretion, their rulings will be affirmed by the appellate courts. See Levine v. Feuer, 152 So. 2d 784 (Fla. 3d DCA 1963). In making the determination, courts have considered items such as standard of living, availability of other means of support, existence of life insurance benefits, and support actually given during the decedent’s life. Although a need for the allowance need not be demonstrated, the reasonableness of the amount awarded must be established. Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005), citing DeSmidt v. DeSmidt, 563 So. 2d 193 (Fla. 2d DCA 1990). Attorneys’ fees can be awarded in a proceeding for family allowance. In Hoyt v. Hoyt, 814 So. 2d 1254 (Fla. 2d DCA 2002), the surviving spouse

petitioned for a lump-sum family allowance, and the probate court entered an order declaring the allowance reasonable and immediately payable. When payment had not been made a year later, the surviving spouse moved for an order to compel payment, and subsequently for attorneys’ fees. The District Court of Appeal, Second District, directed payment of fees based on In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965) (benefit to estate by requiring recalcitrant personal representative to perform duties), and Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998) (fees approved based on “inequitable conduct doctrine”). The family allowance is in addition to protected homestead and exempt property. The family allowance is not chargeable against either the elective share or any benefit or share passing to the surviving spouse or dependent lineal heirs by intestate succession or will, unless the will provides otherwise. F.S. 732.403. If awarded, the family allowance has a class 5 priority for payment under F.S. 733.707(1)(e). « Ch. 4 », « § 4.5 », « B • 1 Litigation Under FL Probate Code § 4.5.B (2022)

B. How Right Exercised Regarding a procedure for exercising the right to a family allowance, Fla. Prob. R. 5.407 provides that an interested person may file a verified petition to determine the allowance, stating the names and addresses of the decedent’s surviving spouse and lineal heirs who were being supported or who were entitled to be supported by the decedent at the time of his or her death, stating the year of birth of those who are minors, and, for each person for whom an allowance is sought, the adult person’s name (or minor child’s initials) and relationship to the decedent; the basis on which the allowance is claimed; and the amount sought. A petition should be filed, and a hearing set, as soon as practicable, because some courts view a delay in proceeding on a petition for family allowance as some indication of a lack of need, which may affect a determination of what is a “reasonable” amount.

Under Fla. R. App. P. 9.170(b)(13), effective January 1, 2012, an order determining family allowance is a final appealable order. This appears to overrule the holding in Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005), that the probate court retained the authority to reexamine and modify an award of family allowance during the administration of the estate.

« Ch. 4 », « § 4.6 » 1 Litigation Under FL Probate Code § 4.6 (2022)

§

4.6. PRENUPTIAL WAIVER

AGREEMENTS

AND

« Ch. 4 », « § 4.6 », • A » 1 Litigation Under FL Probate Code § 4.6.A (2022)

A. Before Florida Probate Code Prior to adoption of the Florida Probate Code, F.S. Chapter 732, a substantial body of case law developed relating to prenuptial agreements. The leading case was Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962). This opinion set forth two general facts that must be considered in determining the validity of a prenuptial agreement: (1) the signing of the agreement, and (2) the terms of the agreement. The court held that, regardless of the provisions made for the wife in the agreement, it must be established that she signed freely and voluntarily. The court also held that it was preferable, but not a prerequisite for a valid agreement, that the spouse sign upon competent and independent advice. It held that the terms of a prenuptial agreement are enforceable if one of three conditions is met: (1) the agreement contains a fair and reasonable provision for the spouse or, if not, (2) the other spouse, before signing the agreement, made a full and frank disclosure of their worth, or, if disclosure was not made, (3) at the time the agreement was made, the waiving spouse had a general and approximate knowledge of the other spouse’s property. « Ch. 4 », « § 4.6 », « B • 1 Litigation Under FL Probate Code § 4.6.B (2022)

B. Florida Probate Code Provisions There are different standards for the validity of a prenuptial agreement in the probate context as opposed to a dissolution of marriage context. For a discussion of standards applicable to dissolution of marriage, see DRAFTING MARRIAGE CONTRACTS IN FLORIDA (Fla. Bar 13th ed. 2021), particularly §§ 2.5–2.6, which deal with the Florida Uniform Premarital Agreement Act, F.S. 61.079, effective October 1, 2007. The practitioner should note that this Act

“does not alter the construction, interpretation, or required formalities of, or the rights or obligations under, agreements between spouses under s. 732.701 or s. 732.702.” F.S. 61.079(10). Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962) (discussed in § 14.6.C.1), was superseded in the probate context by the adoption of the Florida Probate Code. The standard for the validity of a prenuptial agreement in probate is now found in F.S. 732.702. The statute was upheld against constitutional attack in Estate of Roberts, 388 So. 2d 216 (Fla. 1980). F.S. 732.702(1) provides that one or more of the following rights may be waived, wholly or partly, by the surviving spouse in a written contract, agreement, or waiver: Elective share; Intestate share; Pretermitted spouse share; Homestead rights; Exempt property rights; Family allowance rights; and Preference in appointment as personal representative of an intestate estate. Unless the waiver provides otherwise, a waiver of “all rights,” or equivalent language, is a waiver of rights to all of the above items. See Weisfeld-Ladd v. Estate of Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006). It is not, however, a waiver of the right of a surviving spouse to serve as personal representative when so named by the decedent’s will. Estate of Kenton v. Kenton, 423 So. 2d 531 (Fla. 5th DCA 1982). According to the District Court of Appeal, First District, if the prenuptial agreement is unambiguous, the trial court should not take parol evidence to decipher its meaning but should allow the document to speak for itself. Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009) (agreement held valid; language used was equivalent to waiver of “all rights”). The District Court of Appeal, Fourth District, has held that the creation of

a trust agreement directing a trustee to set aside “as much property as is necessary to satisfy the [w]ife’s elective share” did not modify the prenuptial agreement since the language of the prenuptial agreement unambiguously waived the wife’s elective share and the trust agreement was not signed by both parties. Wilson v. Wilson as Trustee of Paul C. Wilson Living Trust, 279 So. 3d 160 (Fla. 4th DCA 2019). Generally, the provisions of F.S. 732.702 in effect on the decedent’s date of death apply, with the result that a surviving spouse may by prenuptial agreement waive rights that are subsequently created by the legislature. Estate of De Garcia v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981). However, F.S. 732.2155(3) specifically provides that a waiver of elective share rights before the effective date of F.S. 732.2155 (October 1, 1999) that is otherwise in compliance with F.S. 732.702 is effective to waive rights under the revised elective share statutes. No consideration other than the execution of the written agreement, contract, or waiver is necessary. F.S. 732.702(3). A spouse can waive homestead rights in his or her own property by contracting to take action inconsistent with those rights. Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014). A warranty deed splitting real property into two one-half tenancy in common interests was held to constitute a waiver of homestead rights by a wife in the husband’s one-half interest in the property, for purposes of the constitutional homestead devise restrictions. Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015). If a surviving spouse has made a valid waiver of homestead before the decedent’s death and all children are adults, the adult children have no claim to homestead. Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991); Jacobs v. Jacobs, 633 So. 2d 30 (Fla. 5th DCA 1994). The property maintains its character as homestead when held in an inter vivos trust for the benefit of a protected person and is not available for payment of expenses that the estate cannot pay, Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006), unless otherwise directed in the trust or will, Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008). Waiver of homestead, including a discussion of the Stone case, can be found in § 8.3.E of this manual.

In response to Stone, the Florida Legislature enacted F.S. 732.7025, effective July 1, 2018, which provides that a spousal waiver of the homestead devise restrictions in a deed shall be by language substantially similar to the following: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.” F.S. 732.7025(1). The implication is that a waiver of “hereditaments” in a deed is not an effective waiver of homestead rights for restrictions on devise. A waiver of spousal rights under F.S. 732.702 must be signed by the waiving party in the presence of two subscribing witnesses. F.S. 732.702(1). However, this requirement for witnesses applies only to contracts, agreements, or waivers signed by Florida residents after January 1, 2002. An agreement or waiver signed by a nonresident of Florida, either before or after the law’s effective date, is valid in Florida if valid when executed under the laws of the state or country where executed, whether or not the decedent is a Florida resident at time of death. F.S. 732.702(1). No disclosure of a spouse’s financial assets is required if the written agreement, contract, or waiver is executed before marriage. F.S. 732.702(2). Additionally, a disclosure that is inaccurate or even fraudulent is not a basis on which to contest the validity of a prenuptial agreement. Stregack v. Moldofsky, 474 So. 2d 206 (Fla. 1985); Foster v. Estate of Gomes, 27 So. 3d 145 (Fla. 5th DCA 2010). It is unclear whether accurate disclosure would be required if the prenuptial agreement conditioned the parties’ mutual waiver of rights on disclosure. In re Estate of Aaronson, 578 So. 2d 845 (Fla. 4th DCA 1991). Although a prenuptial agreement cannot generally be attacked after death on the basis of lack of financial disclosure, it may be attacked on other bases. See, e.g., Ellis First National Bank of West Pasco v. Downing, 443 So. 2d 337 (Fla. 2d DCA 1983), in which the court invalidated a prenuptial agreement on the grounds of incompetency and coercion. However, a showing of a grossly disproportionate benefit to one spouse, together with a showing that circumstances surrounding the execution were coercive, does not raise a presumption of undue influence or overreaching on the part of the other spouse and does not shift the burden of proof to that spouse to come forward with evidence on the issue of voluntariness. Evered v. Edsell, 464

So. 2d 1197 (Fla. 1985) (presumption of undue influence or overreaching does not apply to prenuptial agreements contested in probate (as opposed to agreement contested in dissolution of marriage proceeding)). If there is an oral prenuptial agreement that was later reduced to writing and signed after marriage, two cases have held that there is no asset disclosure requirement. See Trapani v. Gagliardi, 502 So. 2d 957 (Fla. 2d DCA 1987); Flagship National Bank of Miami v. King, 418 So. 2d 275 (Fla. 3d DCA 1982). But see the concurring opinion of Judge Altenbernd in In re Estate of Spangenberg, 561 So. 2d 315 (Fla. 2d DCA 1990). See also § 4.7 of this manual. A prenuptial agreement is a valid contract, enforceable against a decedent’s estate. To assert the rights under the prenuptial agreement, a claim must be timely filed in accordance with F.S. 733.705. In Gridley v. Galego, 698 So. 2d 273 (Fla. 2d DCA 1997), the decedent was obligated by an antenuptial agreement to provide a trust fund for support, but instead devised an annuity. The surviving spouse took the position that because the terms of the antenuptial agreement were not followed, the agreement should be rescinded and the surviving spouse should be allowed to take her elective share. The District Court of Appeal, Second District, held that the decedent’s noncompliance affected only the method of performance but did not negate the antenuptial agreement. The court affirmed the trial court’s order to establish a trust fund for the surviving spouse. See also Shuck v. Bank of America, N.A., 862 So. 2d 20 (Fla. 2d DCA 2003). After marriage, a premarital agreement may be amended, revoked, or abandoned only by written agreement signed by the parties. F.S. 61.079(6). The amended agreement, revocation, or abandonment is enforceable without consideration. Id. A provision in a prenuptial agreement for the award of attorneys’ fees and costs to the prevailing party in litigation regarding the validity or enforceability of the prenuptial agreement is enforceable. Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005). Prenuptial agreements are also discussed in § 2.2.A.7.f of this manual.

« Ch. 4 », « § 4.7 » 1 Litigation Under FL Probate Code § 4.7 (2022)

§ 4.7. POSTNUPTIAL AGREEMENTS There are different standards for the validity of a postnuptial agreement in the probate context as opposed to a dissolution of marriage context. For a discussion of standards applicable to dissolution of marriage, see Chapter 6 of DRAFTING MARRIAGE CONTRACTS IN FLORIDA (Fla. Bar 13th ed. 2021). Under F.S. 732.702, there is basically one difference in the requirements of a prenuptial agreement and a postnuptial agreement. While no asset disclosure is required for a prenuptial agreement, a “fair disclosure” of financial assets of the spouse is required for a postnuptial agreement. F.S. 732.702(2). In Oliveira v. Sturm, 610 So. 2d 108 (Fla. 3d DCA 1992), it was held that a petition for simplified dissolution of marriage did not act as a fair disclosure of assets when an uninsured motorist policy was not included on the deceased spouse’s financial affidavit. A postnuptial agreement can be attacked on the basis that it is the result of undue influence. Zoldan v. Zohlman, 915 So. 2d 235 (Fla. 3d DCA 2005). (The postnuptial agreement, however, was not found to be the result of undue influence by the appellate court in Zoldan.) A postnuptial property settlement agreement waiving spousal rights to take against the will or estate is not abrogated by the parties’ later reconciliation. In re Estate of Duggan, 639 So. 2d 1071 (Fla. 4th DCA 1994). A decedent may die leaving both a prenuptial agreement and a postnuptial agreement. One court has held that if the postnuptial agreement is invalid for failure to make financial disclosures required by F.S. 732.702(2), the rights under the valid prenuptial agreement will be enforced. In re Estate of Shore, 605 So. 2d 951 (Fla. 4th DCA 1992). Postnuptial agreements are also discussed in § 2.2.A.7.f of this manual.

« Ch. 4 », « § 4.8 » 1 Litigation Under FL Probate Code § 4.8 (2022)

§ 4.8. PRETERMITTED SPOUSES « Ch. 4 », « § 4.8 », • A » 1 Litigation Under FL Probate Code § 4.8.A (2022)

A. In General If a testator marries after executing a valid will, the surviving spouse is entitled to receive a share in the estate equal in value to that which the surviving spouse would have received by intestacy, unless any of the following apply: A prenuptial or postnuptial agreement exists, under which provision has been made for, or waived by, the surviving spouse. The will provides for the surviving spouse. The will discloses an intention not to provide for the spouse. F.S. 732.301, 732.507(1). The share of the estate that is assigned to the pretermitted spouse is determined in accordance with F.S. 733.805. F.S. 732.301. The Florida Supreme Court has refused to judicially amend the statute to give third-party beneficiaries of a mutual will creditor status vis-à-vis a pretermitted spouse. Via v. Putnam, 656 So. 2d 460 (Fla. 1995). It has been held that a will executed before marriage has not “provided for” a surviving spouse unless the testator provided for the person by will and that provision was made in contemplation of marriage to that person. Estate of Ganier v. Estate of Ganier, 418 So. 2d 256 (Fla. 1982). If a testator’s last will that provides for the surviving spouse is held to be invalid because of undue influence, the surviving spouse may become pretermitted under a prior valid will. See Hoffman v. Kohns, 385 So. 2d 1064 (Fla. 2d DCA 1980), disapproved on other grounds 460 So. 2d 895. The court in Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001), held that the law of a testator’s domicile, not Florida’s pretermitted spouse

statute, governs the disposition of the testator’s Florida real property when the nondomiciliary testator did not provide in his will that Florida law should be applied to distribute the Florida real property. The practitioner should note that the seminal will-drafting malpractice case in Florida, McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976), dealt with a failure to ascertain and advise regarding a pretermitted spouse situation. See also Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So. 2d 1221 (Fla. 3d DCA 1991), approved 612 So. 2d 1378. « Ch. 4 », « § 4.8 », « B • 1 Litigation Under FL Probate Code § 4.8.B (2022)

B. How Status Established A petition to determine status as a pretermitted spouse is in the nature of a proceeding to determine beneficiaries and, as such, is an adversary proceeding under Fla. Prob. R. 5.025. Formal notice must be given to all interested persons, the proceedings must be conducted as nearly as practicable as are lawsuits of a civil nature, and the Florida Rules of Civil Procedure are to govern. Rule 5.025(d). If a will beneficiary later becomes the testator’s spouse, he or she has the burden of proving that the provision in the will was not made in contemplation of marriage. Estate of Ganier v. Estate of Ganier, 418 So. 2d 256 (Fla. 1982). The governing statute, F.S. 732.301, does not place a time limitation on asserting the right to take as a pretermitted spouse, and the right presumably can be raised at any time during the administration until final distribution and discharge. It seems wise, nevertheless, for a surviving spouse eligible to take as a pretermitted spouse, and who intends to do so, to seek a judicial determination of pretermitted spouse status early in the administration of the estate.

« Ch. 4 », « § 4.9 » 1 Litigation Under FL Probate Code § 4.9 (2022)

§ 4.9. PRETERMITTED CHILDREN « Ch. 4 », « § 4.9 », • A » 1 Litigation Under FL Probate Code § 4.9.A (2022)

A. In General A child born or adopted after the testator has made a valid will is entitled to receive a share in the estate equal in value to a child’s intestate share, unless any of the following apply: The will provides for a child born or adopted after the making of the will; By way of advancement, the child has received a part of the decedent’s property equivalent to a child’s intestate share; It appears from the will that the omission was intentional; or The testator had one or more children when the will was made and devised substantially all of the estate to the other parent of the pretermitted child, which parent survived the testator and is entitled to take under the will. F.S. 732.302, 732.507(1). A child who is not specifically named in a will but inherits from the will in the form of a class gift as a child of the decedent, is not “omitted” for purposes of F.S. 732.302. Estate of Maher v. Iglikova, 138 So. 3d 484 (Fla. 3d DCA 2014). A trial court was affirmed in rejecting parol evidence, and finding no right as a pretermitted child, when the decedent father executed a will and first codicil before child was born, then executed a second codicil after the child was born that republished all the terms of the original will and first codicil but made no provision for the child. Azcunce v. Estate of Azcunce, 586 So. 2d 1216 (Fla. 3d DCA 1991). Paternity may be established in the course of probate proceedings,

including in an action to determine a pretermitted child. Holmen v. Holmen, 697 So. 2d 866 (Fla. 4th DCA 1997). Finally, the practitioner should be aware that a provision outside of the Florida Probate Code may have an impact on pretermitted child status. F.S. 742.17(4) states: “A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.” This provision was enacted in 1993. To date, there have been no state or appellate court opinions regarding this subsection. « Ch. 4 », « § 4.9 », « B • 1 Litigation Under FL Probate Code § 4.9.B (2022)

B. How Status Established The discussion in § 4.8.B regarding the pretermitted spouse applies also in establishing status as a pretermitted child.

« Ch. 4 », « § 4.10 » 1 Litigation Under FL Probate Code § 4.10 (2022)

§ 4.10. RIGHTS RESULTING FROM MARRIAGE TERMINATION The Florida Probate Code states that any provision of a will that affects the testator’s spouse becomes void upon divorce, dissolution, or annulment of the marriage. F.S. 732.507(2). Unless the will or the dissolution or divorce judgment expressly provides otherwise, the will is “construed as if the spouse died at the time of the dissolution of marriage.” Id. See Carroll v. Israelson, 169 So. 3d 239 (Fla. 4th DCA 2015), for a discussion of the word “affects” in the context of this statute. F.S. 732.507(2) applies only when the marriage predates the will. See Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018) (statute inapplicable where will was executed two years prior to marriage). But see § 4.8 of this manual discussing will executed “in contemplation of marriage.” Likewise, the Florida Trust Code states that any provision of a revocable trust that affects the settlor’s spouse becomes void upon dissolution of marriage. F.S. 736.1105. Unless the trust instrument or the dissolution or divorce judgment expressly provides otherwise, the trust is administered and construed as if the settlor’s spouse had died at the time of the dissolution of marriage. Id. The Florida Trust Code does not have a similar statute voiding irrevocable trust provisions affecting a settlor’s spouse upon dissolution of marriage. See Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016). Effective July 1, 2012 (for decedents dying on or after July 1, 2012), and regardless of when the specific beneficiary designation was made, F.S. 732.703 addresses the effect of divorce, dissolution, or invalidity of marriage on the disposition of certain non-trust and nonprobate assets at death. A designation made by (or on behalf of) a decedent, before a dissolution of marriage or declaration of invalidity by court order, that provides for payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse, is void upon the marriage being judicially dissolved or declared invalid before the decedent’s death. The decedent’s

interest in the asset passes as if the former spouse predeceased the decedent. F.S. 732.703(2). For example, it is possible that a policy that appears to be payable to a named surviving beneficiary (i.e., former spouse) may be properly payable to a secondary beneficiary (such as a child or children) or to the estate (in the absence of a secondary, successor or contingent beneficiary being named in the governing instrument). F.S. 732.703(2) applies to the following assets in which a Florida resident has an interest at the time of the resident’s death: (a) A life insurance policy, qualified annuity, or other similar tax-deferred contract held within an employee benefit plan. (b) An employee benefit plan. (c) An individual retirement account described in s. 408 or s. 408A of the Internal Revenue Code of 1986, including an individual retirement annuity described in s. 408(b) of the Internal Revenue Code of 1986. (d) A payable-on-death account. (e) A security or other account registered in a transfer-on-death form. (f) A life insurance policy, annuity, or other similar contract that is not held within an employee benefit plan or a tax-qualified retirement account. F.S. 732.703(3). F.S. 732.703(2) does not apply to the following: (a) To the extent that controlling federal law provides otherwise; (b) If the governing instrument is signed by the decedent, or on behalf of the decedent, after the order of dissolution or order declaring the marriage invalid and such governing instrument expressly provides that benefits will be payable to the decedent’s former spouse; (c) To the extent a will or trust governs the disposition of the assets and s. 732.507(2) or s. 736.1105 applies; (d) If the order of dissolution or order declaring the marriage invalid requires that the decedent acquire or maintain the asset for the benefit of a former spouse or children of the marriage, payable upon the death of the

decedent either outright or in trust, only if other assets of the decedent fulfilling such a requirement for the benefit of the former spouse or children of the marriage do not exist upon the death of the decedent; (e) If, under the terms of the order of dissolution or order declaring the marriage invalid, the decedent could not have unilaterally terminated or modified the ownership of the asset, or its disposition upon the death of the decedent; (f) If the designation of decedent’s former spouse as a beneficiary is irrevocable under applicable law; (g) If the governing instrument is governed by the laws of a state other than this state; (h) To an asset held in two or more names as to which the death of one coowner vests ownership of the asset in the surviving coowner or coowners; (i) If the decedent remarries the person whose interest would otherwise have been revoked under this section and the decedent and that person are married to one another at the time of the decedent’s death; or (j) To state-administered retirement plans under chapter 121. F.S. 732.703(4). In dealing with the effect of divorce or dissolution on disposition of assets, definitions of eight terms, such as “asset” and “beneficiary,” are set forth in F.S. 732.703(1). The issue of payor liability (and non-liability) is addressed in F.S. 732.703(5), (6), and (7). F.S. 732.703(5) provides forms of affidavits that can be presented to the payor. It is of paramount importance to the estate, surviving spouse, and children that action be taken as quickly as possible to contact the payor in order to prevent distribution to a beneficiary who is not entitled to the proceeds. Once such a distribution is made, if it is under circumstances in which there is no payor liability, the remedy would be to pursue the funds from that “beneficiary,” and not from the statutorily protected payor.

« Ch. 4 », « § 4.11 » 1 Litigation Under FL Probate Code § 4.11 (2022)

§ 4.11. RECEIPT OF PROPERTY BY KILLER (SLAYER STATUTE) Prior to the amendment to F.S. 732.802, effective in 1982, a beneficiary had to be convicted of one of the degrees of murder for a forfeiture of inheritance rights to occur. With the 1982 amendment, the statute was changed from a “murder” statute to a “killer” statute. Now, a person who “unlawfully and intentionally kills or participates in procuring the death of the decedent” forfeits inheritance and other rights. F.S. 732.802(1). Under the prior law, a conviction of voluntary manslaughter would not cause forfeiture of an inheritance; under the revised law effective in 1982, such a conviction would probably effect a forfeiture. See Nable v. Estate of Godfrey, 403 So. 2d 1038 (Fla. 5th DCA 1981). The forfeiture applies to the following rights: Benefits under the decedent’s will; Benefits under the Florida Probate Code; Survivorship rights in all forms of co-ownership with survivorship (a severance is effected), including tenancy by the entireties; Benefits under a life insurance policy, bond, or other contractual arrangement; A life estate in homestead property; and Any other acquisition of property or interest. F.S. 732.802(1)–(4). Under the Slayer Statute, estate property passes as if the killer had predeceased the decedent. F.S. 732.802(1). A conviction of murder in any degree is conclusive that the person was a killer for purposes of this statute. In the absence of a murder conviction, the court will make a determination based on the greater weight of the evidence. F.S. 732.802(5). In other words, a criminal case judgment is not determinative unless the criminal case results

in a murder conviction. Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995), citing In re Estate of Howard, 542 So. 2d 395 (Fla. 1st DCA 1989). Furthermore, a criminal judgment is not a prerequisite to a civil determination. A civil court can determine, by the greater weight of the evidence, whether the killing was unlawful and intentional, even if the killer was never tried criminally. Congleton. The Slayer Statute also has a provision to protect the rights of a bona fide purchaser for consideration, without knowledge, from the killer, along with a provision to protect insurance companies, banks, and other obligors who have made payment without written notice of a claim under the statute. F.S. 732.802(6). The right of survivorship of a tenancy by the entireties is terminated under F.S. 732.802(2) when one spouse is convicted of murder of the other spouse. Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987). Capoccia was reaffirmed by LoCascio v. Sharpe, 23 So. 3d 1209, 1211 (Fla. 3d DCA 2010), quoting Capoccia, 505 So. 2d at 624, which further stated, “[t]he slayer statute is not, as presently written, a forfeiture statute awarding all of a killer’s property to the estate of the victim. Nor does the pre-statutory equitable principle that ‘no one shall be permitted to profit by his own wrongdoing’ include any such forfeiture of the killer’s separate property.” Regarding application of the statute to a joint tenancy with right of survivorship, see Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008). Regarding Totten trust accounts, see Lopez v. Rodriguez, 574 So. 2d 249 (Fla. 3d DCA 1991). Regarding the interplay of the Slayer Statute with the Florida Wrongful Death Act, F.S. 768.16–768.26, see Cosman v. Rodriguez, 153 So. 3d 371 (Fla. 2d DCA 2014). Currently, neither Florida public policy nor any applicable statute extends the Slayer Statute to disinherit the killer’s heirs. Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA 2015); In re Estate of Benson, 548 So. 2d 775 (Fla. 2d DCA 1989). Cases discussing the effect of an appeal of a murder conviction on the operation of F.S. 732.802 include Barber v. Parrish, 963 So. 2d 892 (Fla. 1st DCA 2007), Cohen v. Cohen, 567 So. 2d 1015 (Fla. 3d DCA 1990), and

Prudential Insurance Company of America, Inc. v. Baitinger, 452 So. 2d 140 (Fla. 3d DCA 1984), and generally hold that the trial court’s adjudication of guilt is final for purposes of F.S. 732.802, even if appellate remedies have not been exhausted regarding the conviction. See also American United Life Insurance Co. v. Barber, 2008 U.S. Dist. LEXIS 31056, 2008 WL 1766916 (M.D. Fla. 2008), addressing all three of these cases. Attorneys’ fees are awardable under F.S. 733.106(3) for successfully defending against a slayer statute claim. Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009). F.S. 732.802 is also discussed in §§ 7.5.B.2 and 11.2.C.3 of this manual.

« Ch. 4 », « § 4.12 » 1 Litigation Under FL Probate Code § 4.12 (2022)

§ 4.12. NONMONETARY RIGHTS In addition to rights dealing primarily with pecuniary matters, the surviving spouse and children may have certain other rights. These include: the right to make an anatomical gift of all or any part of the body of the decedent, subject to various exceptions. See § 1.2.A.5 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022); the right to priority in appointment as personal representative in intestate estates, F.S. 733.301(1)(b)1, (1)(b)3; and the right to possession of the body for legal disposition, subject to various exceptions. See § 1.2.A of PRACTICE UNDER FLORIDA PROBATE CODE, supra; and FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018) at Law Note 1. Cremated remains are not “property” as defined in F.S. 731.201(32), and therefore not subject to partition. Wilson v. Wilson, 138 So. 3d 1176 (Fla. 4th DCA 2014). If the surviving spouse is qualified and willing to act, no consideration need be given to a person selected by a majority in interest of the heirs under F.S. 733.301(1)(b)2 or heir nearest in degree under F.S. 733.301(1)(b)3. See Senopoulos v. Senopoulos, 253 So. 3d 1228 (Fla. 1st DCA 2018). However, the court has the inherent authority to evaluate a person’s fitness for serving as personal representative. Id.

« Ch. 4 », « § 4.13 • 1 Litigation Under FL Probate Code § 4.13 (2022)

§ 4.13. FLORIDA UNIFORM DISPOSITION OF COMMUNITY PROPERTY RIGHTS AT DEATH ACT In 1992, the Florida Uniform Disposition of Community Property Rights at Death Act, F.S. 732.216–732.228, was adopted. The Act gives a degree of legal recognition to a surviving spouse’s community property rights emanating from the laws of a community property state. The Act may be briefly summarized as follows: It applies to personal property and to real property (except real property held as tenants by the entireties) which (1) was community property, (2) was acquired with income or proceeds from community property, or (3) is traceable to community property. F.S. 732.217. Rebuttable presumptions apply to certain specific property. F.S. 732.218. On the death of a married person, one half of the property to which the community property legislation applies is the property of the surviving spouse, not subject to testamentary disposition by the decedent. The other half is not subject to the surviving spouse’s elective share right. F.S. 732.219, 732.2045(1)(f). However, to the extent the decedent’s interest is paid to or for the benefit of the surviving spouse, the decedent’s one-half interest is applied toward satisfaction of the elective share. F.S. 732.2075(1)(c). The Act specifically provides that the personal representative or a beneficiary of the decedent shall institute an action to perfect title to property that is held by the surviving spouse at the time of the decedent’s death. F.S. 732.221. The Act does not set a deadline to institute such action. A purchaser-for-value or lender dealing with either a surviving spouse, personal representative or beneficiary of the decedent who has apparent

title, takes his or her interest in the property free of any rights under the Act. F.S. 732.222. The Act provides for the ability of the surviving spouse to move for perfection of title of community property held by the decedent at the time of death. F.S. 732.223. The Act does not affect rights of creditors. F.S. 732.224. Married persons may sever or alter their interests in property to which the Act would otherwise apply. Reinvestment of such property in real property located in Florida that is or becomes homestead creates a conclusive presumption that the spouses have agreed to terminate the community property attribute of the reinvested property. F.S. 732.225. The Act does not authorize a person to dispose of property by will, if it is held under limitations by law preventing such testamentary disposition by that person. F.S. 732.226. Homestead is defined for purposes of the Act to refer only to property, the descent and devise of which is restricted by Article X, § 4(c), of the Florida Constitution. F.S. 732.227. The Act is to be applied and construed to make uniform the law with respect to the subject treated. F.S. 732.228. In a recent decision, the District Court of Appeal, Fourth District, held that a wife’s petition to confirm her 50% community property interest in the decedent’s estate was a “claim” as that term is defined in F.S. 731.201, and therefore, the wife had a maximum of two years after the decedent’s death to file her claim. Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018). On rehearing, however, the Fourth District granted the wife’s motion to certify to the Florida Supreme Court the following question of great public importance: Whether a surviving spouse’s vested community property rights are part of the deceased spouse’s probate estate making them subject to the estate’s claims procedures, or are fully owned by the surviving spouse and therefore not subject to the estate’s claims procedures. Id. at 859. The Florida Supreme Court declined to exercise jurisdiction.

Johnson v. Townsend, 2019 Fla. LEXIS 2049, 2019 WL 6248012 (Fla. 2019). As a result, practitioners should assert the surviving spouse’s rights under this Act in accordance with the statutes and limitations periods applicable to “creditor” claims as provided in F.S. 733.705. For further discussion of community property, see Chapter 14 of BASIC ESTATE PLANNING IN FLORIDA (Fla. Bar 10th ed. 2020); Mullin, Understanding the Testamentary Effects of Community Property Rules, 79 Fla. Bar J. 49 (Jan. 2005). In addition, Florida practitioners should be aware that effective July 1, 2021, the Florida Community Property Trust Act enables married couples to receive a full step-up in income tax basis upon the death of the first spouse on assets maintained in a qualifying community property trust. The new Act is codified in F.S. Chapter 736 (F.S. 736.1501–736.1512). Footnotes — Chapter 4: *

J.D., 1992, Hofstra University. Ms. Beller is a member of The Florida Bar and the Palm Beach County and South Palm Beach County bar associations. She is Florida Bar Board Certified in Wills, Trusts, and Estates, is a fellow of the American College of Trust and Estate Counsel (ACTEC), and is certified by the Florida Supreme Court as a Circuit Civil Mediator. Ms. Beller is a member of Beller Smith, P.L., in Boca Raton. **

J.D., 2008, LL.M. in Taxation, 2012, University of Florida. Ms. Williams is a member of The Florida Bar, the Real Property, Probate and Trust Law Section and Tax Law Section. She is a member of The Kelley Law Firm, PL, in Fort Lauderdale.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 5 » 1 Litigation Under FL Probate Code Ch. 5 (2022)

Chapter 5 JOINTLY HELD ASSETS W. FLETCHER BELCHER* Contents § 5.1. INTRODUCTION § 5.2. FORMS OF COMMON OWNERSHIP A. In General B. Tenancy In Common 1. Creation 2. Characteristics C. Joint Tenancy 1. Creation 2. Characteristics a. Unities b. Severance c. Survivorship D. Tenancy By The Entireties 1. Creation a. Real Property b. Personal Property 2. Characteristics a. Unities b. Severance c. Survivorship § 5.3. CREATION OF JOINT INTERESTS BY GIFT A. In General B. Essential Elements Of Gifts Inter Vivos And Causa Mortis

1. In General 2. Intent 3. Delivery 4. Acceptance C. Presumptions And Burdens Of Proof Applicable To Gift Issues 1. In General 2. Gift Presumptions a. Presumption Arising From Joint Titling Or Registration b. Presumption Arising From Relationship Of Parties c. Donee’s Possession Of Property 3. Overcoming Gift Presumptions; Burden Of Proof 4. Treatment Of Presumptions Under Florida Evidence Code 5. Presumption Of Undue Influence § 5.4. MULTIPLE-PARTY ACCOUNTS A. Ownership Prior To Death Of Any Party 1. In General 2. Statutes Or Account Documentation Not Controlling 3. Establishing Ownership Interest 4. Accountability And Withdrawal Authorization B. Ownership By Survivorship 1. In General 2. Joint Account Survivorship Theories 3. Joint Account Statutes And Presumptions Of Survivorship a. In General b. Savings Associations (1965–1992) c. Banks (1971–1992) d. Contrast Between Former Statutes (Pre-1992) e. Consolidated Statute (Since 1992) f. Pay-On-Death Account Statute (Since 1995) g. Severance Of Survivorship Accounts h. Convenience Accounts § 5.5. TOTTEN TRUST ACCOUNTS A. Creation And Characteristics

B. Revocation § 5.6. FLORIDA UNIFORM TRANSFER-ON-DEATH SECURITY REGISTRATION ACT « Ch. 5 », • § 5.1 » 1 Litigation Under FL Probate Code § 5.1 (2022)

§ 5.1. INTRODUCTION This chapter discusses jointly held assets and is developed around the concept of survivorship. The emphasis is on providing the practitioner with a review of the controlling principles applied by the courts to determine whether, on the death of one co-owner, that person’s interest will pass immediately to the surviving tenant(s) by operation of law, or whether it will become a probate asset subject to administration and distribution to the deceased owner’s heirs or devisees. Consideration is also given to the ownership rights and interests of the respective parties, and their accountability to each other, before the death of any co-owner. Brief treatment is also given to multiple-party bank accounts, Totten trust accounts, as well as pay-on-death (POD) and transfer-on-death (TOD) arrangements.

« Ch. 5 », « § 5.2 » 1 Litigation Under FL Probate Code § 5.2 (2022)

§ 5.2. FORMS OF COMMON OWNERSHIP « Ch. 5 », « § 5.2 », • A » 1 Litigation Under FL Probate Code § 5.2.A (2022)

A. In General In determining the applicability of the doctrine of survivorship, the practitioner should initially attempt to classify the particular form of cotenancy as a tenancy in common, a joint tenancy, or a tenancy by the entireties. These concepts are discussed below. Totten trust bank accounts, the pay-on-death account statute, and the Florida Uniform Transfer-on-Death Security Registration Act are also discussed because of their relationship to co-ownership and the doctrine of survivorship. « Ch. 5 », « § 5.2 », « B » 1 Litigation Under FL Probate Code § 5.2.B (2022)

B. Tenancy In Common « Ch. 5 », « § 5.2 », « B », • 1 » 1 Litigation Under FL Probate Code § 5.2.B.1 (2022)

1. Creation The essence of the creation of a tenancy in common is the absence of an intent that, on the death of a cotenant, his or her undivided fractional interest in jointly held property should automatically pass to the surviving cotenant, rather than to the decedent’s heirs or devisees. The early common law favored joint tenancies with right of survivorship over tenancies in common. At common law, the creation of a tenancy in common required restrictive or explanatory words so as to expressly limit the estate of the grantees to a tenancy in common, and not as joint tenants. Florida National Bank of Jacksonville v. Gann, 101 So. 2d 579 (Fla. 2d DCA 1958). In the absence of such language, the default or presumed result was a joint tenancy with right of survivorship. In other words, at common law, the default form of co-ownership between non-spouses acquired in any manner

except inheritance was joint tenancy with right of survivorship, not tenancy in common. The principal incident of such a tenancy was the right of survivorship, by which the entire tenancy passed to the survivor(s) on the death of a tenant. However, since 1829, legislation has provided that the doctrine or presumption of the right of survivorship shall not prevail in Florida. That statute, now F.S. 689.15, essentially reversed the common law rule by making tenancies in common the presumed/default form of co-ownership between non-spouses in the absence of express language providing for survivorship. Accordingly, a devise, transfer, or conveyance of an interest in real or personal property made to two or more persons (except in cases of estates by the entireties between spouses) creates a tenancy in common unless the instrument creating the estate expressly provides for the right of survivorship. F.S. 689.15. In 1992, the common law presumption favoring survivorship was statutorily reinstated with respect to multiple-party bank accounts by the enactment of F.S. 655.79. F.S. 689.15 and its abolition of the common law presumption of survivorship continue to apply to other types of property. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). When a mortgage designates the individual mortgagees as joint tenants with right of survivorship and not as tenants in common, but the promissory note that it secures designates the two individuals as payees, with no other language, the terms of the note prevail, and under F.S. 689.15, the note is held by the payees as tenants in common, and not as joint tenants with right of survivorship. Lewis v. Estate of Turcol, 709 So. 2d 186 (Fla. 5th DCA 1998). A married couple may hold property as tenants in common. Beal Bank. A tenancy in common may be created by a conveyance of real property to husband and wife manifesting an intent that they are to hold in that manner. Dixon v. Davis, 155 So. 2d 189 (Fla. 2d DCA 1963). A devise to a couple that includes the designation “his wife” after the wife’s name creates a tenancy in common when they were divorced at the time of the devise. In re Estate of McGlone, 436 So. 2d 441 (Fla. 4th DCA 1983). A husband and wife holding as tenants by the entirety become tenants in common on dissolution of their marriage or upon severance for other reasons, F.S. 689.15. A husband

and wife holding as joint tenants with right of survivorship may become tenants in common on a severance of the joint tenancy. The use of the word “and” or the word “or” between the names of the husband and wife will not be determinative of whether they hold as tenants in common, joint tenants with right of survivorship, or tenants by the entireties. See Beal Bank and cases cited therein. See also Smith v. Hindery, 454 So. 2d 663 (Fla. 1st DCA 1984), disapproved on other grounds 493 So. 2d 433; Marine Midland Bank-New York v. Arms, 409 So. 2d 215 (Fla. 4th DCA 1982). « Ch. 5 », « § 5.2 », « B », « 2 • 1 Litigation Under FL Probate Code § 5.2.B.2 (2022)

2. Characteristics “The common law characterized tenants in common as each owning a separate fractional share in undivided property.” United States v. Craft, 535 U.S. 274, 279–280, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002). Unity of possession (i.e., each tenant is entitled to possession, joint ownership, and control of property) is the only distinguishing feature of an estate in common. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). Each tenant owns an undivided interest but is entitled to possession of the whole. Andrews v. Andrews, 155 Fla. 654, 21 So. 2d 205 (1945). Tenants in common each have the unilateral right to use the property, exclude third parties from the property, receive a pro rata portion of the income from the property, obtain partition of the property, alienate their share through sale or gift, place encumbrances on their share, and, on their death, pass their share to their beneficiaries or heirs by will or intestate succession. Craft; Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008). The share or interest of a tenant in common is fully subject to the claims of his or her creditors. Pegram v. Pegram, 821 So. 2d 1264 (Fla. 2d DCA 2002). It is presumed that tenants in common have equal interests in the property they own. Martinez v. Ward, 19 Fla. 175 (1882). That rebuttable presumption, in turn, is based upon the underlying presumptions that the cotenants’ contributions were equal and that there was no gifting of contributions or interests between them. However, those presumptions may be overcome by evidence of facts that are contrary to the presumed fact. For example, absent a family relationship between the cotenants or other

evidence of donative intent, evidence of unequal contributions will overcome the presumption of equal shares and establish a presumption of unequal shares that are proportionate to the contributions. If the unequal contributions are between cotenants in a family relationship, it is presumed that the excess contribution was a gift and that their shares are equal. Additionally, even absent the existence of a family relationship between the cotenants, evidence of a completed gift between them, including the element of intent, will establish that their shares are not proportionate to their contributions. See Orth, Presumed Equal: Shares of Cotenants, 37 ACTEC Law Journal 3 (Winter 2011) and § 5.3 of this manual. Tenants in common are fully accountable to each other to the extent that they take or withdraw more than their share of the fund or property. See § 5.4.A.4. « Ch. 5 », « § 5.2 », « C » 1 Litigation Under FL Probate Code § 5.2.C (2022)

C. Joint Tenancy « Ch. 5 », « § 5.2 », « C », • 1 » 1 Litigation Under FL Probate Code § 5.2.C.1 (2022)

1. Creation As discussed in § 5.2.B.1, F.S. 689.15 provides that the doctrine of the right of survivorship does not prevail in Florida. Thus, although a joint tenancy may be created in real or personal property by gift, purchase, or devise, it may be created only when there is an express provision for the right of survivorship, except in the case of multiple-party deposit accounts under F.S. 655.79. A joint tenancy cannot be created by intestate succession. Additionally, the four co-existing unities—possession, interest, title, and time —are also necessary and requisite to the creation and continuation of a joint tenancy. LaPierre v. Kalergis, 257 So. 2d 33 (Fla. 1972); First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971); Kozacik v. Kozacik, 157 Fla. 597, 26 So. 2d 659 (1946). The placement of personal property in a safe-deposit box leased in the names of husband and wife, standing alone, is insufficient to create a joint tenancy. Bechtel v. Estate of Bechtel, 330 So. 2d 217 (Fla. 2d DCA 1976). In connection with the creation of joint bank accounts with right of

survivorship, early cases held that signature cards were not to be construed as vesting title or creating a right of survivorship unless they contained unequivocal language to show that the survivor was to take title at the death of the other. A provision that all funds on deposit shall be payable to either or to the survivor was insufficient to create a joint account with right of survivorship. Cerny v. Cerny, 152 Fla. 333, 11 So. 2d 777 (1943); Lynch v. Murray, 139 F.2d 649 (5th Cir. 1944). For purposes of satisfying the requirement of F.S. 689.15 that the instrument creating the joint tenancy expressly provide for a right of survivorship, more recent cases hold that language indicating that the account is payable to the survivor is sufficient, and that the court will look at all of the instruments that were a part of the transaction (e.g., depository agreement, signature card, savings passbook, ledger sheets, rules and regulations of the financial institution) to find the required language, and that its omission from some of the documents is not fatal to the creation of a joint tenancy account with right of survivorship. See In re Brandle’s Estate, 65 So. 2d 27 (Fla. 1953); Crawford v. McGraw, 61 So. 2d 484 (Fla. 1952); Crabtree v. Garcia, 43 So. 2d 466 (Fla. 1949); Fortman v. Freedom Federal Savings & Loan Ass’n of Tampa, 403 So. 2d 985 (Fla. 2d DCA 1981); Teasley v. Blankenberg, 298 So. 2d 431 (Fla. 4th DCA 1974). As to multiple-party deposit accounts, the issue was mooted by the enactment of F.S. 655.79 in 1992, restoring the common law doctrine and presumption of survivorship for such accounts. See § 5.4.B.3.e for a discussion of the current status of survivorship in the context of multipleparty bank accounts. As stated in § 5.2.B.1, the use of the word “and” or the word “or” between the names of the husband and wife on a signature card will not be determinative regarding whether they hold as tenants in common, joint tenants with right of survivorship, or tenants by the entireties. See Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), and the other cases cited in § 5.2.B.1. When an automobile or mobile home is registered in Florida in the names of two or more persons as co-owners and their names are separated by the word “or” on the title documentation, it is held in a joint tenancy and each titleholder has statutorily conferred legal rights, including the right to possess and use the property, the right of survivorship, and the right to unilaterally encumber or sell the property. F.S. 319.22(2)(a)1a; Christensen v. Bowen,

140 So. 3d 498 (Fla. 2014). « Ch. 5 », « § 5.2 », « C », « 2 • 1 Litigation Under FL Probate Code § 5.2.C.2 (2022)

2. Characteristics « Ch. 5 », « § 5.2 », « C », « 2 •, • a » 1 Litigation Under FL Probate Code § 5.2.C.2.a (2022)

a. Unities Four unities are necessary for the creation and continuation of a joint tenancy: 1. Possession (i.e., each joint tenant is entitled to possession, joint ownership, and control of the property). Christensen v. Bowen, 140 So. 3d 498 (Fla. 2014). In Connell v. Connell, 93 So. 3d 1140 (Fla. 2d DCA 2012), the District Court of Appeal, Second District, held that the unity of possession necessary to create joint ownership by husband and wife in expensive jewelry designed for a man was not present when the items were purchased by the husband for his personal and exclusive use. 2. Interest (i.e., the interests of each joint tenant must be identical; the share or interest of each joint tenant must be the same as that of the other joint tenant or tenants. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001); Johnson v. Landefeld, 138 Fla. 511, 189 So. 666 (1939)). “If the shares of the cotenants were not equal, the unity of interest would be lacking and the estate could not be a joint tenancy.” Orth, Presumed Equal: Shares of Cotenants, 37 ACTEC Law Journal 3 (Winter 2011). 3. Title (i.e., the interest of each joint tenant must have originated from the same conveyance or instrument). The required unities of title and time have given rise to the use of a straw man in cases where the grantor or transferor already owns the property and subsequently attempts to create a joint tenancy with another person through a two-step transfer through a straw man. Although F.S. 689.11(1)(b) makes conveyances of real property from one spouse to both spouses effective to create a tenancy by the entireties, the terms of that statute do not appear to be applicable to transfers of personal property or transfers between non-spouses.

4. Time (i.e., the interest of each joint tenant must have commenced simultaneously). See Beal Bank and cases cited therein; Kozacik v. Kozacik, 157 Fla. 597, 26 So. 2d 659 (1946). See also Kuebler v. Kuebler, 131 So. 2d 211 (Fla. 2d DCA 1961). For the creation of a joint tenancy with right of survivorship, the decisions of the Florida Supreme Court have continued to uphold the necessity of compliance with the common law unities. See Beal Bank, SSB, 780 So. 2d at 53 (For joint tenancies, “the owners’ interests in the property must be identical, the interests must have originated in the identical conveyance, and the interests must have commenced simultaneously.”); LaPierre v. Kalergis, 257 So. 2d 33 (Fla. 1972); First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971); Kozacik v. Kozacik, 26 So. 2d 659 (Fla. 1946). However, several district court decisions have not adhered to that requirement and are in conflict with those Supreme Court decisions. See Simon v. Koplin, 159 So. 3d 281 (Fla. 2d DCA 2015), which misconstrued F.S. 689.15 as abolishing the common law unities requirement if the instrument of transfer satisfies the statute by expressly providing for survivorship; Ratinska v. Estate of Denesuk, 447 So. 2d 241 (Fla. 2d DCA 1983); D.A.D., Inc. v. Moring, 218 So. 2d 451 (Fla. 4th DCA 1969). See § 5.2.C. In a joint tenancy with right of survivorship, each person has his or her own individual interest (“per my”), which shares are presumed to be equal for purposes of alienation. Beal Bank; Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So. 2d 1227 (Fla. 4th DCA 2002). As in the case of a tenancy in common, the undivided fractional interest of a joint tenant is freely alienable, may be mortgaged or encumbered, and is subject to the claims of creditors. Hurlbert v. Shackleton, 560 So. 2d 1276 (Fla. 1st DCA 1990); McDowell v. Trailer Ranch, Inc., 421 So. 2d 751 (Fla. 4th DCA 1982). A joint tenant whose interest is with right of survivorship has an interest that is subject to execution on a judgment lien. AmSouth Bank of Florida v. Hepner, 647 So. 2d 907 (Fla. 1st DCA 1994). Because each joint tenant owns a share rather than the whole, a creditor of one of the joint tenants may attach that tenant’s portion of the property to recover his or her individual debt. Beal Bank; Branch Banking & Trust Co. v. Maxwell, 2012 U.S. Dist. LEXIS 132104, 2012 WL 4078407 (M.D. Fla. 2012).

Joint tenants are fully accountable to each other to the extent that they take or withdraw more than their share of the fund or property. See § 5.4.A.4. « Ch. 5 », « § 5.2 », « C », « 2 •, « b » 1 Litigation Under FL Probate Code § 5.2.C.2.b (2022)

b. Severance Severance is the conversion of a joint tenancy to a tenancy in common. A severance occurs when any joint tenant engages in conduct that is inconsistent with one or more of the unities required to create and maintain a joint tenancy with right of survivorship. An act of a joint tenant that destroys any of the four essential unities (i.e., possession, interest, title, or time) operates as a severance of the joint tenancy, extinguishes the right of survivorship, and transforms it into a tenancy in common. Kozacik v. Kozacik, 157 Fla. 597, 26 So. 2d 659 (1946); Wittock v. Ramponi, 446 So. 2d 271 (Fla. 4th DCA 1984); Wiggins v. Parson, 446 So. 2d 169 (Fla. 5th DCA 1984); Harelik v. Teshoney, 337 So. 2d 828 (Fla. 1st DCA 1976). Unlike a tenancy by the entireties, several cases have held that a joint owner’s withdrawal of funds from a joint bank account terminates the joint tenancy nature of the funds and severs the right of survivorship as to the funds withdrawn. Kowalski v. Rosenbaum, 255 So. 3d 963 (Fla. 2d DCA 2018), citing Wiggins, 446 So. 2d 169 (Fla. 5th DCA 1984). For a joint tenant with right of survivorship to alienate or transfer his or her individual interest in the joint tenancy, the estate must first be severed (i.e., converted to a tenancy in common, with each tenant possessing an equal fractional share). United States v. Craft, 535 U.S. 274, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002). However, severance automatically accompanies a conveyance or any other overt act indicating an intent to sever. Id. It is well settled that a joint tenant’s conveyance of his or her interest to a stranger, or merely entering into a specifically enforceable contract to convey, severs the joint tenancy, for by such act the unity of title is destroyed and the unity of possession is gone. Kozacik; Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995); Foucart v. Paul, 516 So. 2d 1035 (Fla. 5th DCA 1987). A conveyance of a joint tenant’s interest to himself or herself and the tenant’s spouse will sever the joint tenancy. Wittock. Similarly, it was held in Schlossberg v. Estate of Kaporovsky, 303 So. 3d 982 (Fla. 4th DCA 2020), and Countrywide Funding Corp. v. Palmer, 589 So. 2d 994 (Fla. 2d DCA

1991), that even a joint tenant’s conveyance of his interest to himself will terminate the joint tenancy and create a tenancy in common. However, severance does not automatically occur on the execution of a contract to sell that is executed by all joint tenants, unless there is an indication in the contract, or from the circumstances, that the parties intend to sever and terminate the joint tenancy. Weise v. Kizer, 435 So. 2d 381 (Fla. 5th DCA 1983). Following the severance resulting from a transfer by a cotenant to a stranger, the stranger and the remaining (former) joint tenant would hold as tenants in common. A void attempt by one joint tenant to transfer or convey his or her undivided interest in property held in joint tenancy with right of survivorship does not alter or sever the joint tenancy and the right of survivorship continues in the property. Perrott v. Frankie, 605 So. 2d 118 (Fla. 2d DCA 1992) (attempted fraudulent transfer by one joint tenant of his interest was void and did not cause severance of joint tenancy). Joint tenants may sever and terminate their joint tenancy by mutual agreement. Kozacik; Foucart. The making of an agreement and joint will by a husband and wife providing that one half of their jointly held survivorship accounts and securities were to be given to named persons on the death of either spouse and that the remaining one half would pass to the surviving spouse effectively severed the jointly held assets in In re Estate of Waks, 386 So. 2d 307 (Fla. 4th DCA 1980). Any joint tenant who unlawfully and intentionally kills another joint tenant thereby effects a severance so that the share of the decedent passes as the decedent’s property and the killer has no rights by survivorship. F.S. 732.802(2). See §§ 2.2.A.5 and 4.11 of this manual. See also Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008), and Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987). The filing of an action by one joint tenant against another to partition real property held in a joint tenancy with right of survivorship does not sever the joint tenancy. Mercurio v. Headrick, 983 So. 2d 773 (Fla. 1st DCA 2008). With regard to the severance of joint bank accounts, see § 5.4.B.3.g. « Ch. 5 », « § 5.2 », « C », « 2 •, « c • 1 Litigation Under FL Probate Code § 5.2.C.2.c (2022)

c. Survivorship

The predominant characteristic of a joint tenancy is the right of survivorship whereby, on the death of a joint tenant, the deceased tenant’s undivided fractional interest automatically passes to the surviving tenant by operation of law without being subject to devise or to the laws of descent and distribution. For purposes of survivorship, each joint tenant owns the whole (“per tout”), so that on the death of one tenant, the remainder of the estate passes to the survivor. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001); Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So. 2d 1227 (Fla. 4th DCA 2002). See also Cerny v. Cerny, 152 Fla. 333, 11 So. 2d 777 (1943); Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941); Hilton v. Upton, 204 So. 2d 352 (Fla. 1st DCA 1967), dealing with the application of the right of survivorship in the context of estates by the entireties. In D.A.D., Inc. v. Moring, 218 So. 2d 451 (Fla. 4th DCA 1969), the court held that a valid mortgage given by a joint tenant to encumber his interest terminated on his death and was not thereafter enforceable against the surviving joint tenant, who then owned the entire property. A better approach would have been for the court to conclude that the act of mortgaging the joint tenant’s interest resulted in a severance and converted the joint tenancy into a tenancy in common, thereby permitting the mortgage to survive the death of the mortgagor tenant. Unlike a tenancy by the entireties, a joint owner’s withdrawal of funds from a joint bank account terminates the joint tenancy nature of the funds and severs the right of survivorship as to the funds withdrawn. Kowalski v. Rosenbaum, 255 So. 3d 963 (Fla. 2d DCA 2018), citing Wiggins, 446 So. 2d 169 (Fla. 5th DCA 1984). « Ch. 5 », « § 5.2 », « D • 1 Litigation Under FL Probate Code § 5.2.D (2022)

D. Tenancy By The Entireties « Ch. 5 », « § 5.2 », « D •, • 1 » 1 Litigation Under FL Probate Code § 5.2.D.1 (2022)

1. Creation « Ch. 5 », « § 5.2 », « D •, • 1 », • a » 1 Litigation Under FL Probate Code § 5.2.D.1.a (2022)

a. Real Property

In 1913, the Florida Supreme Court was called upon to determine whether an estate by the entireties existed in Florida. In English v. English, 66 Fla. 427, 63 So. 822 (1913), after observing that tenancies by the entireties existed at common law and that the common law has been expressly declared by statute to be of force in this state, the court answered the question in the affirmative. A tenancy by the entireties may exist only between spouses and may best be described as a joint tenancy modified by the common-law doctrine that the spouses are one person. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001); Quick v. Leatherman, 96 So. 2d 136 (Fla. 1957); Bailey v. Smith, 89 Fla. 303, 103 So. 833 (1925), receded from on other grounds 780 So. 2d 45; English. In the absence of a contrary expression of intent, a tenancy by the entireties arises in real property whenever an estate vests by gift, purchase, or descent in two persons who are then spouses, and it is not necessary that the instrument creating the estate specify an estate or tenancy by the entireties, describe the parties as spouses, or even refer to their marital relation. American Central Ins. Co. of St. Louis, Mo. v. Whitlock, 122 Fla. 363, 165 So. 380 (1936); Ramos v. Estate of Ramos, 329 So. 3d 172 (Fla. 3d DCA 2021); Aderhold v. Aderhold, 983 So. 2d 43 (Fla. 1st DCA 2008); In re Estate of Silvian, 347 So. 2d 632 (Fla. 4th DCA 1977). Ownership of real property in the names of both spouses vests title in them as tenants by the entireties. Beal Bank; Losey v. Losey, 221 So. 2d 417 (Fla. 1969). In real property, intent to hold the property as a tenancy by the entireties is presumed. Beal Bank; First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971), receded from on other grounds 780 So. 2d 45; Losey. The presumed intent of spouses to hold real property as tenants by the entireties may be overcome only by express language showing a contrary intent or by evidence of fraud and may not be rebutted by other extrinsic evidence of contrary intent. Bridgeview Bank Group v. Callaghan, 84 So. 3d 1154 (Fla. 4th DCA 2012). The same rule applies when real property is conveyed jointly to spouses and a third party with no other expression of intent in the instrument. In Aderhold, a deed to the spouses, as “husband and wife,” and the husband’s mother was effective to convey an undivided one-half interest to the spouses, as tenants by the entireties, and the remaining one-half interest to the

husband’s mother. Because of the unity of person, the spouses are regarded as but one person. Id. Accordingly, there were only two grantees (i.e., spouses and husband’s mother), each of whom acquired an undivided onehalf interest as a tenant in common with respect to the other. A similar case, Bermudez y Santos v. Bermudez y Santos, 773 So. 2d 568 (Fla. 3d DCA 2000), reached the wrong result with respect to the interest of the spouses and the manner in which it was held by them. In Bermudez y Santos, the court held that a deed to spouses and the husband’s mother (that did not specify the manner in which they were to hold their interests) effectively conveyed an undivided one-half interest to the husband’s mother and undivided onequarter interests to each of the spouses, all as tenants in common. F.S. 689.15 and its predecessors, which abolished the doctrine or presumption of survivorship in this state and established the requirement that an instrument creating a joint tenancy with right of survivorship expressly provide for the right of survivorship, are expressly inapplicable to the creation of estates or tenancies by the entireties. Bailey; English; In re Estate of Silvian. See also Hilton v. Upton, 204 So. 2d 352 (Fla. 1st DCA 1967). Accordingly, an estate by the entireties may be created without any express provision for the right of survivorship. As noted in § 5.2.B.1, subject to statutory provisions concerning the titling of motor vehicles and mobile homes, the use of the word “and” or the word “or” between the names of the spouses will not be determinative as to whether they hold as tenants in common, joint tenants with right of survivorship, or tenants by the entireties. See Beal Bank and cases cited therein. See also Smith v. Hindery, 454 So. 2d 663 (Fla. 1st DCA 1984), disapproved on other grounds 493 So. 2d 433; Marine Midland Bank-New York v. Arms, 409 So. 2d 215 (Fla. 4th DCA 1982). A conveyance to spouses will create an estate by the entireties even when the parties did not have any intent as to what technical estate was to be created. American Central Ins. Co. of St. Louis, Mo. But see Bermudez y Santos. A remainder interest in real property held by husband and wife is held by them as tenants by the entireties. Sunshine Resources, Inc. v. Simpson, 763 So. 2d 1078 (Fla. 4th DCA 1999). When one spouse holds title to real estate, including homestead, a tenancy by the entireties may be created by a conveyance made by that

spouse to the other spouse in which the purpose to create the estate is stated (and the grantee spouse need not execute the conveyance), or by a conveyance to both spouses. F.S. 689.11(1). See Clampitt v. Wick, 320 So. 3d 826 (Fla. 2d DCA 2021). Spouses may hold a joint life estate as tenants by the entireties, and such an estate may be created through such a conveyance. Matthews v. McCain, 125 Fla. 840, 170 So. 323 (1936); Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008). However, in the case of homestead property, such a conveyance will be ineffectual to transfer any remainder or other interest in the property to a third party unless the conveyance is executed by both spouses. Clemons. F.S. 689.11(1) creates a limited statutory exception to requiring satisfaction of the common law unities of time and title to create a tenancy by the entireties in real property. However, that statute appears to be inapplicable to transfers of personal property and to transfers between non-spouses. « Ch. 5 », « § 5.2 », « D •, • 1 », « b • 1 Litigation Under FL Probate Code § 5.2.D.1.b (2022)

b. Personal Property An estate by the entireties may exist in personal property as well as in real property, although there is some confusion in the cases as to the extent to which personal property could be so held at common law. See Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001) and cases cited therein. See also AmSouth Bank of Florida v. Hepner, 647 So. 2d 907 (Fla. 1st DCA 1994); Sheldon v. Waters, 168 F.2d 483 (5th Cir. 1948). The rule that personal property may be held in an estate by the entireties is particularly applicable to choses in action payable jointly to spouses. See Bailey v. Smith, 89 Fla. 303, 103 So. 833 (1925), receded from on other grounds 780 So. 2d 45. Estates by the entireties have been found to exist in shares of stock, Cacciatore v. Fisherman’s Wharf Realty Limited Partnership, 821 So. 2d 1251 (Fla. 4th DCA 2002); In re Estate of Silvian, 347 So. 2d 632 (Fla. 4th DCA 1977); Leone v. Putnam, 466 F.2d 512 (5th Cir. 1972); bank accounts, Beal Bank; Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951); Bailey; Gibson v. Wells Fargo Bank, N.A., 255 So. 3d 944 (Fla. 2d DCA 2018); Morse v. Kohl, Metzger, Spotts, P.A., 725 So. 2d 436 (Fla. 4th DCA 1999); Thomas J. Konrad & Associates, Inc. v. McCoy,

705 So. 2d 948 (Fla. 1st DCA 1998); Snyder v. Dinardo, 700 So. 2d 726 (Fla. 2d DCA 1997). certificates of deposit, Norman v. Bank of Hawthorne, 321 So. 2d 112 (Fla. 1st DCA 1975) (reversing summary judgment holding that certificate of deposit was not held as tenants by entireties); promissory notes, mortgages, assignments of mortgage, and agreements for deed, American Central Ins. Co. of St. Louis, Mo. v. Whitlock, 122 Fla. 363, 165 So. 380 (1936); Vandenberg v. Wells, 721 So. 2d 453 (Fla. 5th DCA 1998); Burke v. Coons, 136 So. 2d 235 (Fla. 2d DCA 1962); F.S. 689.115, 697.01; checks payable to spouses, Glasser v. Columbia Federal Savings & Loan Ass’n of Miami Shores, 197 So. 2d 6 (Fla. 1967); Gibson v. Wells Fargo Bank, N.A., 255 So. 3d 944 (Fla. 2d DCA 2018); motor vehicles and mobile homes, AmSouth Bank of Florida; Smith v. Hindery, 454 So. 2d 663 (Fla. 1st DCA 1984), disapproved on other grounds 493 So. 2d 433; Roger Dean Chevrolet, Inc. v. Fischer, 217 So. 2d 355 (Fla. 4th DCA 1969), superseded by statute as stated in 891 So. 2d 1075 (but see the exception below regarding the application of F.S. 319.22 to the ownership of automobiles and mobile homes registered in Florida); bearer bonds, Estate of Fields v. Fields, 581 So. 2d 1387 (Fla. 3d DCA 1991) (purchase of bearer bonds with joint funds of husband and wife, and their placement in couple’s joint deposit box, created tenancy by entireties); compare Rader v. First National Bank in Palm Beach, 42 So. 2d 1 (Fla. 1949); Bechtel v. Estate of Bechtel, 330 So. 2d 217 (Fla. 2d DCA 1976); and art objects and household furnishings, Robinson v. Robinson, 651 So. 2d 1271 (Fla. 4th DCA 1995). Under F.S. 689.115, any mortgage encumbering real property, or assignment of mortgage, made to two persons who are husband and wife, creates a tenancy by the entireties in the mortgage and in the obligation it secures unless a contrary intention appears in the mortgage or assignment. Vandenberg. Under F.S. 697.01, an agreement for deed is deemed to be a

mortgage. As noted in §§ 5.2.B.1 and 5.2.D.1.a, as a general rule the use of the word “and” or the word “or” between the names of spouses will not be determinative as to whether they hold as tenants in common, joint tenants with right of survivorship, or tenants by the entireties. However, there is one notable exception to the general rule stated in the preceding paragraph. Since the amendment to F.S. 319.22 in 1979, the creation of an estate by the entireties in an automobile or mobile home registered in Florida requires registration in the names of spouses connected by the word “and.” Because intent as well as observance of formal requirements is necessary, the use of the conjunction “and” on a motor vehicle or mobile home title naming both spouses does not conclusively establish an estate by the entireties. AmSouth Bank of Florida. This rule may have been changed by the Florida Supreme Court in Beal Bank. Extrinsic evidence cannot establish an estate by the entireties in a motor vehicle or mobile home when a Florida title is held in the names of spouses connected by the disjunctive form “or.” Xayavong v. Sunny Gifts, Inc., 891 So. 2d 1075 (Fla. 5th DCA 2005); AmSouth Bank of Florida. Xayavong also held that the rule of construction or presumption established by Beal Bank (that a tenancy by the entireties is created by a transfer of personal property to spouses with the four requisite unities) must give way to a statute that specifies how to create a co-ownership interest in personal property and thus, is inapplicable to motor vehicles and mobile homes registered in the names of both spouses in the alternative by the use of the word “or.” As noted in § 5.2.D.2.a, all four of the unities required for the creation of a joint tenancy, as set forth in § 5.2.C.2.a, must also be present for the creation of a tenancy by the entireties. In addition, a fifth unity is also necessary for the creation of a tenancy by the entireties: the unity of “person.” That is, the tenants must be spouses, so that they may be regarded as one person in law. The unity of person is based on marriage and intent. Beal Bank. Insofar as spouses may hold either as tenants by the entireties or as joint tenants with right of survivorship, and all of the unities (other than unity of person) are necessarily present in both cases, it is essential to recognize what distinguishes one form of ownership from the other. The simple answer is “intent.” To create a tenancy by the entireties, the spouses must intend to

hold in that manner. This does not mean that the spouses are required to use, or even be familiar with, tenancy by the entireties terminology. See id. The intent requirement is merely that they intend to hold the property in a manner that is generally consistent with the qualities and characteristics of that type of ownership: as one person, with each taking the whole of the property. Thus, the intent component of the unity of person relates to whether the spouses intend for their identical interests to be indivisible ownership of the whole as one person, or separate undivided, but divisible, shares of the whole. See Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So. 2d 1227 (Fla. 4th DCA 2002). Whether an estate by the entireties exists as the result of the acquisition of property by and in the names of both spouses must be determined by a consideration of the nature and terms of the transaction as portraying the intent of the parties. In re Guardianship of Medley, 573 So. 2d 892 (Fla. 2d DCA 1991), disapproved on other grounds 780 So. 2d 45. The fact that distinguishes the opening of a bank account by spouses as tenants by the entireties, rather than as joint tenants with right of survivorship, is their intention to establish an entireties account. Morse. Whether the parties created a tenancy by the entireties in a bank account (i.e., whether they were each taking the whole of the account so that transfers could not be made without the consent of both of them) is the ultimate fact question. Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995). The most comprehensive enumeration of factors and circumstances that may properly be considered in determining whether spouses intended to hold a bank account as tenants by the entireties is found in Sitomer, 660 So. 2d at 1115: In determining whether an entireties account has been created so that transfer of funds by one spouse would not end the other’s interest in those funds, courts will consider it significant: (1) that both parties contributed to the account, cf. Winters v. Parks, 91 So. 2d 649, 650 (Fla.1956); (2) that both parties made use of the account, id. at 650; [In re Estate of] Lyons, 90 So. 2d [39,] 40 [Fla. 1956]; (3) that there is testimony that both spouses “owned” the account, Marine Midland Bank-New York v. Arms, 409 So. 2d 215 (Fla. 4th DCA 1982); (4) that funds from the account went to pay marital expenses, see Robinson v. Robinson, 651 So. 2d

1271, 1273–74 (Fla. 4th DCA 1995); cf. Winters, 91 So. 2d at 650 (finding no tenancy by the entirety where the husband “dealt with the funds, making investments and buying property as any individual would with his own money”); (5) that the parties made statements indicating their intentions concerning the account, such as to protect it from creditors of one of them, Terrace Bank of Florida v. Brady, 598 So. 2d 225, 228 (Fla. 2d DCA 1992); McGillen v. Gumpman, 171 So. 2d 69, 70 (Fla. 3d DCA 1965), and (6) that the accounts were opened with the “intention that each spouse … should have the use of all or any part of the balance at any time and that upon the death of either any remainder should immediately become the property of the survivor,” Hagerty v. Hagerty, 52 So. 2d 432, 434 (Fla.1951). Additionally, Beal Bank suggests that evidence of an intent to create an entireties bank account may include a belief or intent by the spouses that they both are joint owners, own the account together, are entitled to the account, possess the account equally, control the account, have equal access to the account, have the same interest in the account, can write checks on the account, and can withdraw any or all of the account; that the account belongs to both of them as a whole; that everything in the account is the property of both of them; that the account was not derived from property owned solely by either of them; that marital expenses are paid from the account; and, if the signature card does not specify a tenancy by the entireties, that they never heard of such a tenancy and do not know what type of account to ask for due to their lack of clear understanding of the difference between different forms of co-ownership. An arrangement for individual withdrawal from a joint account of spouses does not defeat a clearly expressed intent to establish an estate by the entireties. Id.; Snyder. See also First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971), receded from on other grounds 780 So. 2d 45. Such unilateral withdrawals are permitted by a tenant by the entireties on the theory that he or she is also acting as the agent of the nonwithdrawing spouse. Hagerty. The inability of one spouse to unilaterally dispose of money in an entireties bank account (without consent of the other) is not an element of the estate, it is the legal consequence of it. Beal Bank. In the face of unambiguous evidence of individual ownership of personal

property by one spouse and the absence of any instrument transferring ownership or creating an estate by the entireties, a party’s stated intent to establish a tenancy by the entireties is not controlling. Sackett v. Shahid, 722 So. 2d 273 (Fla. 1st DCA 1998). Also, a wife’s joinder, shortly before her husband’s death, in a contract to sell residential real property owned solely by him, coupled with evidence that the husband intended to use the proceeds to purchase a new residence as tenants by the entireties with his wife, was insufficient to establish an intent to receive the proceeds as tenants by the entireties in In re Estate of Cardini, 305 So. 2d 71 (Fla. 3d DCA 1975). The ease of proving the creation of tenancies by the entireties in personal property was enhanced dramatically in 2001 by the landmark Beal Bank decision of the Florida Supreme Court. Long before Beal Bank, the Florida Supreme Court adopted different standards of proof for establishing tenancies by the entireties in real property and personal property. Id. In the absence of a contrary expression of intent appearing in the instrument of conveyance itself, a tenancy by the entireties in real property is created whenever an estate vests by gift, purchase, or descent into persons who are then in-fact spouses, and this rule may not be overcome by extrinsic evidence. Moreover, it is not necessary for the instrument to specify tenancy by the entireties, to describe the parties as spouses, or to even refer to their marital relation. In determining whether personal property was held as a tenancy by the entireties, the pre-Beal standard required that the intention of the parties had to actually be proved. Id. In other words, before Beal Bank, unlike in the case of real property, there was no rule of construction or presumption that a tenancy by the entireties was created by a transfer of personal property to spouses even though the four unities required for a joint tenancy with right of survivorship were satisfied. The intention to create such a tenancy in personal property had to be proved without the benefit of the presumption that was applicable to real property. See id.; First National Bank of Leesburg; In re Estate of Lyons; Hagerty; Bailey; Sackett. In First National Bank of Leesburg, the Florida Supreme Court gave the following explanation for the significant historical distinction in the application of the entireties doctrine to real and personal property:

In realty matters, where property is acquired specifically in the name of the husband and wife, we consider it to be a rule of construction that a tenancy by the entireties is created, although fraud may be proven. … But in personalty matters, a different standard obtains: not only must the form of the estate be consistent with entirety requirements, but the intention of the parties must be proven. The reason for this double standard is easily understood. Realty matters are matters of record which occur infrequently, and which generally involve formal transactions necessarily requiring consent of both spouses. Personalty, on the other hand, is generally not under mandate of record; it may easily be passed by either spouse without mutual consent or without knowledge of the other spouse; finally, it may change hands with great frequency, as in the case of the checking account. … Another reason for the distinction is that the application of entireties concepts to personalty becomes exceedingly complex as the nature of the personalty increases in sophistication, and the judicial mind seeks to require greater safeguards lest the tenancy be abused. Thus in our bank account cases, we have required the demonstration of intention. Id. at 780. As noted, this distinction was eliminated by Beal Bank, which involved a dispute between a married couple and a creditor of one of the spouses concerning whether any portion of various bank accounts held by both spouses was available to satisfy the obligations of one spouse. The ultimate issue in the case was whether the accounts were held as tenancies by the entireties, which revolved around the matter of intent, and whether the presumptions of intent that favor tenancies by the entireties in cases of real property should also be applicable to personal property. The court held that public policy considerations favor recognizing a presumption in favor of tenancies by the entireties in cases in which a married couple jointly owns personal property. Although not expressly articulated, the unmistakable policy underlying the Beal Bank presumption favoring tenancies by the entireties in personal property is to protect the property and its married owners from creditors, other than to those to whom joint debts of both spouses are owed. The policy considerations enumerated by the court as supporting the presumption

include the recognition of a legitimate expectation of married couples that accounts they hold jointly as a married couple should be no different than a home they own jointly as a married couple, greater uniformity and predictability, and less confusion and litigation. Id. Beal Bank eliminated any lingering distinctions between real property and personal property held jointly by spouses. Gibson v. Wells Fargo Bank, N.A., 255 So. 3d 944 (Fla. 2d DCA 2018), citing Cacciatore v. Fisherman’s Wharf Realty Ltd. Partnership, 821 So. 2d 1251 (Fla. 4th DCA 2002), quoting Beal Bank, 780 So. 2d at 58–59 (“ ‘Beal Bank indicated that the time had come to eliminate that disparity and to accord to personal property in general (not just bank accounts) the same presumption of tenancy by the entireties when jointly owned by husband and wife as that accorded real property jointly owned by husband and wife” and adopted a presumption “shifting the burden to the creditor to prove by a preponderance of evidence that a tenancy by the entireties was not created.’ ”). Beal Bank adopted a presumption “shifting the burden to the creditor to prove by a preponderance of evidence that a tenancy by the entireties was not created” and affirmed that “ ‘property held by husband and wife as tenants by the entireties belongs to neither spouse individually, but each spouse is seized of the whole.’ ” Gibson, 255 So. 3d at 949, quoting Beal Bank, 780 So. 2d at 53. Beal Bank “ ‘expressly concluded that strong policy reasons exist for extending the tenancy by the entireties presumption to jointly owned marital personal property, not just to financial accounts.’ ” Gibson, 255 So. 3d at 947, quoting In re Daniels, 309 B.R. 54, 59 (Bankr. M.D. Fla. 2004). Beal Bank established the following specific presumptions for bank accounts titled in the joint names of spouses, provided that all four of the unities required to establish a joint tenancy with right of survivorship (i.e., unities of possession, interest, time, and title) are present: When the signature card or other account documentation expressly states that the account is held as a tenancy by the entireties, the intent to create such a tenancy, and its creation, are conclusively presumed. The express designation ends all further inquiry into the form of ownership, and extrinsic evidence of lack of intent to establish a tenancy by the entireties will not be considered. When the intent of the spouses to establish a tenancy by the entireties bank account is clearly and

unambiguously reflected by an express designation on the signature card, a tenancy by the entireties is thereby established and it is error to proceed to evaluate the manner in which the account was used by considering the personal facts and circumstances surrounding the parties’ opening and use of the account. Morse. When the signature card or other account documentation is silent with respect to the type of ownership intended, or it expressly states that the account is held as a joint tenancy with right of survivorship and there is no express disclaimer of a tenancy by the entireties, the intent to create a tenancy by the entireties, and its creation, are rebuttably presumed. When a married couple holds money in a jointly-titled bank account, a rebuttable presumption arises in favor of a tenancy by the entireties, unless the terms of the account expressly disclaim the tenancy by the entireties form of ownership. Kowalski v. Rosenbaum, 255 So. 3d 963 (Fla. 2d DCA 2018). Even when no presumption arises, a party may always prove the existence of a tenancy by the entireties. Kowalski. This rebuttable presumption is one that affects the burden of proof under F.S. 90.304 of the Florida Evidence Code and shifts to the party opposing entireties ownership the burden of proving, by a preponderance of the evidence, that a tenancy by the entireties was not intended. For this purpose, the parties are permitted to resort to proof by extrinsic evidence of intent. Obviously, none of the presumptions will apply if the owner or transferor lacks capacity, or the transaction is the product of undue influence or other fraud. When the signature card or other account documentation expressly disclaims that the account is held as a tenancy by the entireties (either by an express statement that tenancy by the entireties is not intended, or an express selection of another form of ownership on account documentation that affirmatively provides an option to select tenancy by the entireties), it is presumed that a tenancy by the entireties was not intended or created. In such cases, the type and effect of the presumption that arises depends on whether the financial institution inhibited entireties ownership by either expressly precluding it or merely failing to offer it. If the institution did not inhibit such ownership, the presumption is conclusive, and the inquiry is over. In other words, in that circumstance, the express designation ends all further inquiry into

the form of ownership, and extrinsic evidence of intent to establish a tenancy by the entireties will not be considered. In Wexler v. Rich, 80 So. 3d 1097 (Fla. 4th DCA 2012), the District Court of Appeal, Fourth District, held that a designation as a joint account with right of survivorship on an account agreement that also offered an alternate designation as a tenancy by the entireties account created a joint tenancy with right of survivorship as a matter of law. If the institution inhibited such ownership, it is rebuttably presumed that there was no intent to create a tenancy by the entireties and that such a tenancy was not created. This rebuttable presumption is one that affects the burden of proof under F.S. 90.304 of the Florida Evidence Code and shifts to the party asserting entireties ownership the burden of proving, by a preponderance of the evidence, that a tenancy by the entireties was intended. For this purpose, the parties are permitted to resort to proof by extrinsic evidence of intent. In 2008, following the Beal Bank decision, the legislature amended F.S. 655.79(1) (which creates a statutory presumption of survivorship for multiple-party bank accounts) to provide that “[a]ny deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.” The rebuttable presumptions established by Beal Bank for personal property are not applicable to the creation of a tenancy by the entireties in real property. Bridgeview Bank Group v. Callaghan, 84 So. 3d 1154 (Fla. 4th DCA 2012). See § 5.3.C.4 for a discussion of the treatment of rebuttable presumptions under the Florida Evidence Code. The presumption of intent that Beal Bank applied to a bank account applies to all types of personal property, and the titling of a stock certificate in the names of both spouses creates a presumption of tenancy by the entireties which shifts the burden of proof to the party contending that the stock was not so held. Cacciatore. Caution should be exercised in utilizing Cacciatore with regard to the nature of the presumption because it overstates the applicability of the presumption established by the Florida Supreme Court in Beal Bank. The presumed fact in Beal Bank is merely that the spouses intended to hold as tenants by the entireties, which is an element of the unity of person. To obtain the Beal Bank presumption of intent, the parties seeking

to obtain the benefit of the presumption have the burden of establishing that the four unities of possession, interest, title, and time are present, and that the owners are spouses. Cacciatore erroneously states that the party urging the absence of entireties ownership has the burden of proving the nonexistence of one or more of the required unities, thereby implying that the existence of all of the required unities is presumed. Under Beal Bank, the only presumed fact is the intent component of the unity of person, and that presumed fact is the only fact that the party urging the absence of entireties ownership has the burden of disproving. The theoretical underpinnings of tenancies by the entireties suit a contemporary ethos because “ ‘the distinctive feature of a tenancy by the entireties, that husband and wife hold property as an indivisible unit, renders this form of ownership equally well-suited to the concept of modern-day marriage as a partnership between equals.’ ” Gibson, 255 So. 3d at 946, quoting Beal Bank, 780 So. 2d at 52 n.7. In Berlin v. Pecora, 968 So. 2d 47 (Fla. 4th DCA 2007), shares of stock and limited partnership interests issued in the name of the husband alone were found to be held by the husband and wife as tenants by the entireties. In litigation with another shareholder and limited partner after the husband’s death, the wife asserted that the stock and limited partnership interests had actually been owned by them jointly as tenants by the entireties. The court held that although corporate records provide a “prima facie” evidentiary basis for determining that the husband was the sole owner of the interests in question, citing Sackett, such evidence is not conclusive and may be overcome by evidence that the interests were jointly owned. The court also held that the lower court’s findings that the bank accounts were jointly owned, that the stock and partnership interests were purchased with funds from the joint bank accounts, that those interests were jointly owned, that the husband and wife intended to hold those interests as tenants by the entireties, and that those interests were held by them as tenants by the entireties, were supported by competent substantial evidence that (1) she and her husband had an understanding that they would hold bank accounts, stock, and real estate jointly as tenants by the entireties; (2) the interests in question had been purchased with funds from their joint bank accounts; and (3) the husband and third parties had engaged in conversations in which the wife was identified as a limited partner or joint tenant in the businesses to which the interests

related. The court recognized that, under Beal Bank, joint bank accounts were presumed to have been owned as tenants by the entireties, and that the purchase of property with entireties property or its proceeds may also create a tenancy by the entireties in the purchased property. The court cited several cases in support of its holding. Whether the parties created a tenancy by the entireties in a bank account—whether they were each taking the whole of the account—is a question of fact. Kowalski. In a questionable decision, clearly driven by compelling equitable considerations, the court in Romano v. Olshen, 153 So. 3d 912 (Fla. 4th DCA 2014), concluded that the presumption in favor or tenancy by the entireties established by Beal Bank was applicable only in proceedings between a thirdparty creditor and the husband and/or wife as debtor, and not in a proceeding when the husband and wife (or their guardianship or estate) are opposing parties. Resolution of the ultimate issue of ownership should be consistent regardless of the parties involved. « Ch. 5 », « § 5.2 », « D •, « 2 • 1 Litigation Under FL Probate Code § 5.2.D.2 (2022)

2. Characteristics « Ch. 5 », « § 5.2 », « D •, « 2 •, • a » 1 Litigation Under FL Probate Code § 5.2.D.2.a (2022)

a. Unities The two forms of ownership—joint tenancy with the right of survivorship and tenancy by the entireties—are similar and share many of the same characteristics. Kowalski v. Rosenbaum, 255 So. 3d 963 (Fla. 2d DCA 2018). As previously noted, the four unities listed in § 5.2.C.2.a in connection with the creation of a joint tenancy must also be present for the creation of a tenancy by the entireties, and in addition to these four unities (possession, interest, title, and time), a fifth unity is also necessary: the unity of “person.” That is, the tenants must be spouses, making them one person in law, and they must intend to hold the property in a manner that is generally consistent with the qualities and characteristics of that type of ownership: as one person, with each taking the whole of the account. See Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001) and cases cited therein. See also Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727 (1941); Sackett v. Shahid, 722

So. 2d 273 (Fla. 1st DCA 1998); Snyder v. Dinardo, 700 So. 2d 726 (Fla. 2d DCA 1997). In addition to the four essential characteristics of form of a joint tenancy, a tenancy by the entirety possesses one more—the unity of marriage (i.e., unity of person). Kowalski. A unique aspect of a tenancy by the entirety is that each spouse is seized of the whole or the entirety, and not of a share, moiety, or divisible part. Id. Property held by spouses as tenants by the entireties belongs to neither spouse individually, but each spouse holds the whole or the entirety (“per tout”), and not a share, moiety, or divisible part. Beal Bank; First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971), receded from on other grounds 780 So. 2d 45; Wilson v. Florida National Bank & Trust Co. at Miami, 64 So. 2d 309 (Fla. 1953). Because each spouse owns the whole or the entirety, rather than a share, both spouses are indispensable parties to a foreclosure action against property held by them as tenants by the entirety, even if only one of them is the borrower. Miller v. Washington Mutual Bank, 184 So. 3d 558 (Fla. 4th DCA 2016). In the case of certain interspousal conveyances of real property, there appears to be a way around the required unities of title and time. As noted in § 5.2.D.1.a, F.S. 689.11(1) provides that a spouse holding title to real estate may create a tenancy by the entireties by a conveyance to the other spouse in which the purpose to create the estate is stated, or by a conveyance to both spouses. This statutory exception does not appear to apply to transfers of personal property or to transfers between non-spouses. A tenancy by the entireties may best be described as a joint tenancy modified by the common-law doctrine that spouses are one person. The distinguishing characteristic of a tenancy by the entireties is the unity of person (i.e., the tenants must be husband and wife, making them one person in law). Accordingly, there is but one estate and, in contemplation of law, it is held by one person. Beal Bank; Bailey v. Smith, 89 Fla. 303, 103 So. 833 (1925), receded from on other grounds 780 So. 2d 45; Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995). Because of the unity of person, a deed to spouses and the husband’s parent conveys an undivided one-half interest to the spouses, as tenants by the entireties, and the remaining one-half interest to the husband’s parent. Aderhold v. Aderhold, 983 So. 2d 43 (Fla. 1st DCA

2008). For purposes of an estate by the entireties, the required unities create the need for both spouses to join in any transfer of the property to a third party. AmSouth Bank of Florida v. Hepner, 647 So. 2d 907 (Fla. 1st DCA 1994). In the case of a tenancy by the entireties bank account, the nonseverability doctrine preserves the entireties status of funds even after one spouse renames the account or transfers money from it without the consent of the other. Beal Bank; Sitomer. An estate by the entireties is beyond the exclusive control of either spouse and is therefore beyond the reach of creditors to the extent that it cannot be seized and sold on execution for the separate debts of either spouse, and a judgment against one spouse does not become a lien on the estate. Winters v. Parks, 91 So. 2d 649 (Fla. 1956), receded from on other grounds 780 So. 2d 45; Newman v. Equitable Life Assur. Soc. of the United States, 119 Fla. 641, 160 So. 745 (1935); Williams v. M & R Construction of North Florida, Inc., 305 So. 3d 353 (Fla. 1st DCA 2020). When property is held as a tenancy by the entireties, only the creditors of both spouses, jointly, may attach the entireties property; the property is not divisible on behalf of one spouse alone, and therefore it cannot be reached to satisfy the obligation of only one spouse. Beal Bank; Winters; Sitomer. A spouse whose interest is by the entireties does not have an interest that is subject to execution on a judgment lien against either tenant alone. Miller; Pegram v. Pegram, 821 So. 2d 1264 (Fla. 2d DCA 2002); Sitomer; AmSouth Bank of Florida; Hurlbert v. Shackleton, 560 So. 2d 1276 (Fla. 1st DCA 1990); Neu v. Andrews, 528 So. 2d 1278 (Fla. 4th DCA 1988). As noted in § 5.2.D.1.a, a remainder interest in real property held by spouses as tenants by the entireties is not available to satisfy a judgment against one spouse alone. Sunshine Resources, Inc. v. Simpson, 763 So. 2d 1078 (Fla. 4th DCA 1999). The principles and concepts pertaining to the unity of person are closely related to the below materials concerning severance of tenancies by the entireties. Under Florida law, there is a rebuttable presumption that a tax refund issued jointly to spouses after filing a joint return and deposited to their joint account is held in a tenancy by the entireties (TBE) property, regardless of whose economic activity the refund is related to. In Gibson v. Wells Fargo Bank, N.A., 255 So. 3d 944 (Fla. 2d DCA 2018), funds attributable to a joint

income tax refund of more than $2 million issued to both spouses (based upon their joint tax return) and deposited into their joint TBE account were found to be held in a tenancy by the entirety and were not subject to garnishment by a creditor to satisfy the individual debt of only one spouse. In Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376 (1920), superseded by statute as recognized 403 B.R. 914, the Florida Supreme Court adopted the following reasoning in support of the rule precluding unilateral alienation of an estate by the entireties: “We are of the opinion that from the peculiar nature of this estate, and from the legal relation of the parties, there must be unity of estate, unity of possession, unity of control, and unity in conveying or [e]ncumbering it; and it necessarily and logically results that it cannot be seized and sold upon execution for the separate debts of either the husband or the wife. The estate is placed beyond the exclusive control of either of the parties, or the reach of creditors, unless it can be successfully attacked and set aside for fraud. Any other rule would create injustice and hardship. If the husband can dispose of the estate during their joint lives, the wife is deprived of the enjoyment without her consent. * * * The property belongs as much to the wife as to the husband, and she has just as clear, undoubted, and equitable a right to the use and enjoyment of the property during the existence of the marriage, as she has to succeed to the estate upon the death of her husband. * * * The right of the wife to the joint enjoyment of the estate during the marriage is as valuable and sacred as the right of taking the entire estate by survivorship upon the death of her husband. The rights of the wife in the joint property are as sacred as those of the husband, and should be as firmly secured, guarded, and protected by the law as are his. There is an equity in equality; but there is gross in[e]quity and injustice in permitting the husband to deprive the wife of the use and enjoyment of an estate that does not belong exclusively to either, but to both, and which belongs as much to the wife as to the husband.” Id. at 378, quoting Chandler v. Cheney, 37 Ind. 391 (1871). In a bankruptcy case, the debtors purchased a homestead held in a tenancy by the entireties with funds that had been fraudulently transferred into a tenancy by the entireties bank account. A monetary judgment was

entered against the debtors based on this fraudulent transfer. Notably, the transfer was not avoided. The court held that although this scenario may preclude the debtors from claiming a constitutional homestead exemption (under Fla. Const. Art. X, § 4(a)(1)) because of 11 U.S.C. § 522(o), the debtors were not prevented from claiming a tenancy by the entireties homestead exemption. The exemption was voidable, not automatically void. In re Davis, 403 B.R. 914 (Bankr. M.D. Fla. 2009). In In re Planas, 199 B.R. 211 (Bankr. S.D. Fla. 1996), the court held that entireties property owned by a debtor and the debtor’s spouse was not exempt if they had any joint debt. See Chaneles, Tenancy by the Entireties: Has the Bankruptcy Court Found a Chink in the Armor? 71 Fla. Bar J. 22 (Feb. 1997). However, the appellate court held that only debts to joint creditors could be satisfied from entireties property. In re Planas, 1998 U.S. Dist. LEXIS 20524, 1998 WL 757988 (S.D. Fla. 1998). Two separate judgments (one against the husband and the other against the wife) held by a sole creditor do not constitute a joint debt. In re Davis. A “joint” debt does not include an individual creditor of one spouse working together with an individual creditor of the other spouse to levy on entireties property; it means the creditor seeking to levy on the property must hold a joint debt owed by both spouses. Williams. There is one notable exception to the rule that entireties property is beyond the reach of the creditors of either spouse alone. In United States v. Craft, 535 U.S. 274, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002), the United States Supreme Court held that a federal tax lien against one spouse alone will attach to his or her interest in entireties property because the individual rights of each spouse alone in such property are sufficient to constitute “property” or “rights to property” under the federal tax lien statute, IRC § 6321. Absent a contrary agreement between the spouses, the proceeds of sale, as well as mortgage loan proceeds, rent, and income derived from entireties property, are ordinarily deemed to be held the same way, and either spouse taking possession holds the same for the benefit of both. Passalino v. Protective Group Securities, Inc., 886 So. 2d 295 (Fla. 4th DCA 2004), citing Brown v. Hanger, 368 So. 2d 63 (Fla. 3d DCA 1979) (proceeds of sale held in trust account); Sunshine Resources, Inc. (rental income); Crawford v.

United States Fidelity & Guaranty Co., 139 So. 2d 500 (Fla. 1st DCA 1962) (proceeds of derivatives); Sheldon v. Waters, 168 F.2d 483 (5th Cir. 1948) (proceeds of sale). In Lerner v. Lerner, 113 So. 2d 212 (Fla. 2d DCA 1959), the husband and wife each deposited their separately earned funds into a joint account that they held as tenants by the entireties and also acquired real estate as tenants by the entireties. At the husband’s request, the wife joined him in the execution of a deed conveying certain entireties real property to a newly formed corporation, the nature of which was not revealed to the wife. Without the knowledge or consent of the wife and without any consideration to her, the husband received shares of the corporation’s stock issued in his individual name and transferred or assigned them to his brother as a gift without consideration. In addition, without the wife’s knowledge or consent, the husband withdrew funds from the entireties bank account and gave them to his brother as a gift without consideration. The court held that the tenancy by the entireties was preserved in both the shares of stock and in the funds and permitted the surviving wife to recover them from her deceased husband’s brother. In Brown, the husband and wife owned real estate as tenants by the entireties. On the sale of the real estate, the husband received the proceeds of sale and placed them in an individually held bank account, from which they were subsequently transferred without consideration to a trustee for the benefit of a third party. The husband died and the wife was permitted to recover the funds from the trustee, whom the court characterized as trustee “for the entireties estate.” Id. at 64. In In re Estate of Fields, 581 So. 2d 1387 (Fla. 3d DCA 1991), bearer bonds were found to have been held by spouses as tenants by the entireties when the bonds had been purchased through the husband’s sole brokerage account with funds from their joint savings account and were kept in their joint safe-deposit box until the husband’s death. Spouses are fully accountable to each other for any entireties funds or property that either of them takes or withdraws. See § 5.4.A.4. Each tenant by the entireties owes to the other the highest degree of confidence and trust. Neu. « Ch. 5 », « § 5.2 », « D •, « 2 •, « b »

1 Litigation Under FL Probate Code § 5.2.D.2.b (2022)

b. Severance An important attribute separating a joint tenancy from a tenancy by the entirety is that in a tenancy by the entirety neither spouse may sever or forfeit any part of the estate without the assent of the other, so as to defeat the right of the survivor. Kowalski v. Rosenbaum, 255 So. 3d 963 (Fla. 2d DCA 2018), citing Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995). A purported mortgage on property held by spouses as tenants by the entirety is not valid if the signature of one spouse is a forgery. Wells Fargo Bank, N.A. v. Rutledge, 230 So. 3d 550 (Fla. 2d DCA 2017). Severance is the termination of a tenancy by the entireties and its conversion to a tenancy in common. A severance occurs when both spouses engage in some conduct that is inconsistent with one or more of the unities required to create and maintain a tenancy by the entireties. Examples include divorce or agreement between the spouses, which need not be explicit and may be inferred from their conduct. Passalino v. Protective Group Securities, Inc., 886 So. 2d 295 (Fla. 4th DCA 2004). For purposes of an estate by the entireties, the applicable unities create the need for both spouses to join in any transfer of the property to a third party. AmSouth Bank of Florida v. Hepner, 647 So. 2d 907 (Fla. 1st DCA 1994). In the case of a tenancy by the entireties bank account, the nonseverability doctrine preserves the entireties status of funds even after one spouse renames the account or transfers money from it without the consent of the other. Beal Bank; Sitomer. Neither spouse can forfeit, sell, encumber, lease, or otherwise alienate any part of the entireties estate without the assent of the other, so as to defeat the rights of the other, and there can be no severance of the estate by the act of either, or partition of the property, during their joint lives. Stanley v. Powers, 123 Fla. 359, 166 So. 843 (1936); English v. English, 66 Fla. 427, 63 So. 822 (1913); Kowalski; Sitomer; Smith v. Hindery, 454 So. 2d 663 (Fla. 1st DCA 1984), disapproved on other grounds 493 So. 2d 433; Sheehan v. Hubbard, 378 So. 2d 1238 (Fla. 2d DCA 1980). A tenancy by the entireties may be severed or terminated and converted to a tenancy in common by divorce or by mutual agreement of the spouses.

F.S. 689.15; Rader v. First National Bank in Palm Beach, 42 So. 2d 1 (Fla. 1949); Demorizi v. Demorizi, 851 So. 2d 243 (Fla. 3d DCA 2003); Snow v. Mathews, 190 So. 2d 50 (Fla. 4th DCA 1966); Sheldon v. Waters, 168 F.2d 483 (5th Cir. 1948). In Snow, a tenancy by the entireties in real estate was severed and the spouses became tenants in common when they entered into a separation agreement executed in conformity with the requirements for the execution of deeds, which provided that they would become tenants in common on the execution of the agreement and that the property would be sold and the proceeds divided equally. In Rader, both spouses separately, but simultaneously, instructed their common bank to purchase $5,000 worth of United States Treasury Bonds from the joint bank account they held as tenants by the entireties. Although the bonds, totaling $10,000, were placed in the spouses’ joint safe-deposit box after delivery, there was evidence that each spouse considered one half of the bonds to be his or her separate property. The court held that the parties in effect assented to a dissolution and severance of the estate by the entireties when they acted in concert by separately, but simultaneously, ordering the bonds. In Vining v. Martyn, 726 So. 2d 336 (Fla. 4th DCA 1999), the wife’s acquiescence with her husband in the pledge of borrowed entireties funds to secure the payment of her husband’s sole obligations was inconsistent with her claim of an entireties interest in those funds and caused her to lose that interest. A severance of the tenancy will also necessarily result from the spouses’ joint conveyance of the entireties property to a third party or from an interspousal conveyance of the entireties property, which destroys the unities of possession and title. Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941); Kowalski. F.S. 689.11 provides that a conveyance of real estate, including homestead, made by one spouse to the other shall convey the legal title to the grantee spouse in all cases in which it would be effectual if the parties were not married, and that the grantee need not execute the conveyance. See Clampitt v. Wick, 320 So. 3d 826 (Fla. 2d DCA 2021). By accepting delivery of the instrument of conveyance, the grantee spouse is deemed to have consented to the severance and termination of the estate by the entireties, notwithstanding his or her failure to join in the execution of the instrument. Hunt.

A transfer of entireties property by spouses to their joint trust that grants the power to amend, modify, or revoke solely to the husband terminates the tenancy by the entireties in the transferred property. Rollins v. Alvarez, 792 So. 2d 695 (Fla. 5th DCA 2001). However, the transfer of proceeds of sale of entireties property in trust to an attorney’s trust account to be held for the spouses does not destroy any of the required unities or sever or terminate the tenancy by the entireties. Passalino. In Eichman v. Paton, 393 So. 2d 655 (Fla. 1st DCA 1981), a husband’s felonious assault on his wife was found to have dissolved the unity of person and warranted a severance by judicial intervention. Any tenant by the entireties who unlawfully and intentionally kills the other tenant thereby effects a severance of the interest of the decedent so that the decedent’s share passes as the decedent’s property and the killer has no rights by survivorship. F.S. 732.802(2). By power of attorney or contract, one spouse may be expressly authorized by the other to alienate or encumber property held by them as tenants by the entireties. F.S. 708.09, 709.2201(2)(b); First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971), receded from on other grounds 780 So. 2d 45. However, the mere existence of an estate by the entireties does not imply an agency in either spouse to do or perform any act that terminates the estate or changes the character of the property so held, Glasser v. Columbia Federal Savings & Loan Ass’n of Miami Shores, 197 So. 2d 6 (Fla. 1967); Lerner v. Lerner, 113 So. 2d 212 (Fla. 2d DCA 1959), although the use of the word “or” in an instrument creating an estate by the entireties in the husband “or” wife may constitute an immediate expression of authority of agency for either to act for both, Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951). For a transfer of entireties property by only one spouse to be effectual, there must be clear and convincing evidence that, with full knowledge of the facts, one spouse constituted the other as his or her agent; that the transaction was done with the full knowledge, assent, and acquiescence of the appointing spouse; and that the transfer does not terminate the appointing spouse’s interest in the estate or otherwise adversely affect his or her interest. Murray v. Sullivan, 376 So. 2d 886 (Fla. 1st DCA 1979). Assent or acquiescence may take the form of bringing a lawsuit to enforce the instrument in question.

Sheehan; Williams v. Noel, 105 So. 2d 901 (Fla. 3d DCA 1958). The mere incapacity of a spouse will not sever or terminate an estate by the entireties. However, in cases in which either spouse owning entireties property becomes incapacitated, any net rent or payments received on account of the property are to be equally divided between them and the share of an incapacitated spouse is to be paid to the guardian. F.S. 744.457(1)(c)– (1)(d). Moreover, when one or both tenants by the entireties are incapacitated, the circuit court may authorize the sale, transfer, or encumbrance of the property for expediency or necessity and, in such cases, the guardian of the incapacitated spouse executes the conveyance of the entireties property on behalf of the ward, the proceeds of sale are equally divided between the spouses, and the share of an incapacitated spouse is paid to the guardian. F.S. 744.447, 744.457(1)(a)–(1)(b). Generally, the proceeds from the sale of tenancy by the entireties property are also held as a tenancy by the entireties and are owned in total by both spouses. Kowalski, citing Passalino. However, the character of the proceeds from the disposition of entireties property may change if the parties intend and a tenancy by the entireties can be terminated by agreement of the owners, and that agreement need not be explicit, but may be inferred from the conduct of the parties. For example, in Kowalski, the court found that a tenancy by the entireties in funds on deposit in a financial account (that were proceeds of entireties property) was severed because the spouses no longer intended to hold the funds as tenants by the entirety, as evidenced by the fact that they were separated and had been living separate lives for many years, the account was titled in the name of the wife alone, the wife controlled access to and the disbursement of the funds, the wife made substantial disbursements from the account to the husband, and that the spouses intended and believed that each of them owned a divisible part (one-half)—and not the whole of the funds. Such testimony indicates that the parties were not intending to each own the whole of the money but rather that they each intended to own a divisible part of the money, consistent with the fact that they had separated and were living separate lives. The entireties character of property is terminated when the spouses accept the maintenance of sole control by one of them so that the other party can no longer exercise control over the property. Kowalski, citing Passalino. « Ch. 5 », « § 5.2 », « D •, « 2 •, « c •

1 Litigation Under FL Probate Code § 5.2.D.2.c (2022)

c. Survivorship The practical effect and application of the right of survivorship to tenancies by the entireties is essentially the same as in the case of joint tenancies. In both instances, the deceased spouse’s property interest is subject neither to devise nor to the laws of descent and distribution. Regero v. Daugherty, 69 So. 2d 178 (Fla. 1954); Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941); Bailey v. Smith, 89 Fla. 303, 103 So. 833 (1925), receded from on other grounds 780 So. 2d 45; Bendl v. Bendl, 246 So. 2d 574 (Fla. 3d DCA 1971). There is, however, a significant theoretical distinction between joint tenancies and tenancies by the entireties with regard to survivorship. A joint tenant owns an undivided fractional interest in the whole and, on his or her death, the right of survivorship causes that interest to automatically pass to the surviving joint tenant(s) by operation of law. This is not the case with respect to a tenancy by the entireties. As noted in § 5.2.D.2.a, a tenancy by the entireties is best described as a joint tenancy modified by the common-law doctrine that spouses are one person. The distinguishing characteristic of a tenancy by the entireties is the unity of person. Insofar as each spouse is equally seized of the entire estate while both of them are alive, the death of one does not transfer any new or greater estate to the surviving spouse; the interest of the deceased spouse merely ceases. Lopez v. Lopez, 90 So. 2d 456 (Fla. 1956); Bendl. The surviving spouse is said to retain the entire estate relieved of the interest of the deceased spouse. Newman v. Equitable Life Assur. Soc. of the United States, 119 Fla. 641, 160 So. 745 (1935). On the death of one spouse, the entire estate goes to the survivor, but the survivor takes no new estate because there is a mere change in the person holding, and not an alteration of the estate held. Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376 (1920). In Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792 (1932), the Florida Supreme Court went so far as to say that, in the case of tenancies by the entireties, unlike joint tenancies, the survivor does not take by right of survivorship, but continues to hold the whole by virtue of his or her original title.

« Ch. 5 », « § 5.3 » 1 Litigation Under FL Probate Code § 5.3 (2022)

§ 5.3. CREATION OF JOINT INTERESTS BY GIFT « Ch. 5 », « § 5.3 », • A » 1 Litigation Under FL Probate Code § 5.3.A (2022)

A. In General Although joint interests in property may be created by purchase, inheritance, devise, survivorship, or gift inter vivos or causa mortis, much of the litigation on the subject arises from the creation, or attempted creation, of these interests by gift. If the donor satisfies the requisites for the creation of a valid gift, the donee will effectively acquire a joint interest in the property as a tenant in common, joint tenant, or tenant by the entireties, and, in the latter two cases, may ultimately become the sole owner by operation of the right of survivorship. On the other hand, if the gift requisites are not satisfied by the donor, the prospective donee acquires no present interest in the property and no right of survivorship. « Ch. 5 », « § 5.3 », « B » 1 Litigation Under FL Probate Code § 5.3.B (2022)

B. Essential Elements Of Gifts Inter Vivos And Causa Mortis « Ch. 5 », « § 5.3 », « B », • 1 » 1 Litigation Under FL Probate Code § 5.3.B.1 (2022)

1. In General The essential requirements of a valid gift inter vivos or causa mortis are present donative intent (i.e., donor must have clear and unmistakable present intent to then pass title to property interest to donee); delivery (i.e., donor must make actual or constructive delivery of property to donee under circumstances that constitute surrender of dominion and control by donor and confer right to reduce property to possession of donee); and

acceptance by the donee. See Chase Federal Savings & Loan Ass’n v. Sullivan, 127 So. 2d 112 (Fla. 1961); Webster v. St. Petersburg Federal Savings & Loan Ass’n, 155 Fla. 412, 20 So. 2d 400 (1945); Leonard v. Campbell, 138 Fla. 405, 189 So. 839 (1939); Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997); Williams v. Williams, 255 So. 2d 273 (Fla. 4th DCA 1971). In the case of gifts causa mortis, there is an additional requirement that the gift be made in contemplation of the donor’s death from a present illness or impending danger. While a gift inter vivos is unconditional and irrevocable, a gift causa mortis is revocable by the donor’s survival of the impending danger, by the donor outliving the donee, or by a deficiency of the deceased donor’s assets to pay his or her debts. Leonard. In other words, although a gift causa mortis is a present gift, it is subject to defeasance on the occurrence of a condition subsequent. « Ch. 5 », « § 5.3 », « B », « 2 » 1 Litigation Under FL Probate Code § 5.3.B.2 (2022)

2. Intent The essential requirement that the donor possess the intent to make a present gift cannot be overemphasized. An intention on the part of the donor to vest ownership in the donee on the occurrence of a future event or otherwise in the future is insufficient to satisfy the intent requirement for a valid gift. In re Slawson’s Estate, 41 So. 2d 324, 327 (Fla. 1949), quoting 38 C.J.S. Gifts § 15 (“ ‘a mere intention to give in the future, however well shown, gives rise to no obligation which the law will recognize or enforce’ ”); Siegel v. Siegel, 967 So. 2d 349, 352 (Fla. 3d DCA 2007) (“Although [husband] may have intended to make a gift of some or all of the money in [the brokerage account titled in his name alone] at some time in the future [because he intended to use it for “their” daughter’s wedding and for “their” retirement], he never actually made a gift of any part of it [to the wife].”); Rasmussen v. Rasmussen, 909 So. 2d 969, 970 (Fla. 2d DCA 2005) (husband’s intent that wife’s rights would come into existence only “in the event of death or separation” contemplated a conditional, future transfer and was therefore ineffective); Kuebler v. Kuebler, 131 So. 2d 211, 215 (Fla. 2d DCA 1961) (there must be an “intent then and there to pass title”). See also Ritter v. Shamas, 452 So. 2d 1057 (Fla. 3d DCA 1984); Winner v. Winner,

370 So. 2d 845 (Fla. 3d DCA 1979). Moreover, if the intention of the donor is that nothing is to vest in the donee until the donor’s death, the transaction is testamentary in character and will fail unless it conforms with the formal requirements of law relating to testamentary disposition of property. Williams v. Williams, 255 So. 2d 273 (Fla. 4th DCA 1971); Kuebler. See also Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011), addressing an annuity in the husband’s name with the wife as beneficiary. For there to be a present inter vivos gift in the context of a joint account, an intention must exist that each party is to have a present, equal right to withdraw the funds. Chase Federal Savings & Loan Ass’n v. Sullivan, 127 So. 2d 112 (Fla. 1961). The intention to make a gift of the balance of a bank account to the survivor at the death of the donor, when the donor retains the control and beneficial interest in the fund during lifetime and does not intend for it to become effective until his or her death, does not affect a gift. Webster v. St. Petersburg Federal Savings & Loan Ass’n, 155 Fla. 412, 20 So. 2d 400 (1945). See also Chase Federal Savings & Loan Ass’n; Leonard v. Campbell, 138 Fla. 405, 189 So. 839 (1939). In Varela v. Bernachea, 917 So. 2d 295 (Fla. 3d DCA 2005), the court held that the depositor’s addition of his girlfriend as a joint tenant to his cash management account and his consent to her receiving a check card that she used to access the account established his intent to make a gift of a one-half interest in the account. « Ch. 5 », « § 5.3 », « B », « 3 » 1 Litigation Under FL Probate Code § 5.3.B.3 (2022)

3. Delivery For there to be a valid gift, there must be an irrevocable surrender of dominion over the res; a delivery that does not confer the present right to reduce the res into possession of the donee is insufficient. Siegel v. Siegel, 967 So. 2d 349 (Fla. 3d DCA 2007); Kuebler v. Kuebler, 131 So. 2d 211 (Fla. 2d DCA 1961). In other words, there must be an immediate vesting of some interest in the donee, complete and irrevocable, and if the donor withholds divestiture, it is not a legal gift. See Siegel and cases cited therein. As noted in § 5.3.B.1, one of the essential requirements of a valid gift inter vivos or causa mortis is that the donor must make actual or constructive

delivery of the property to the donee under circumstances that constitute a surrender of dominion and control by the donor and confer the right to reduce the property to the possession of the donee. A delivery that does not confer the present right to reduce the res into the possession of the donee is insufficient. Ritter v. Shamas, 452 So. 2d 1057 (Fla. 3d DCA 1984); Kuebler. Although a letter written and signed by the owners of shares of stock pledging a certain percentage of the shares to an employee of the corporation is sufficient to satisfy the intent element for a valid gift, it does not satisfy the delivery requirement. Ennis v. Phillips, 890 So. 2d 313, 314 (Fla. 4th DCA 2005) (“[I]n assessing the validity of a gift of securities, the common law looks to formalities in determining if a transfer has been effectuated requiring the securities [to] be delivered or a transfer be made on the corporate books and records.”). However, the requirement of delivery, has been relaxed to a considerable extent in connection with the creation of joint interests by gift. In Spark v. Canny, 88 So. 2d 307, 311 (Fla. 1956), the Florida Supreme Court stated that the rules relating to gifts inter vivos cannot be strictly and literally applied in determining whether a joint bank account with right of survivorship has been established. Thus, the very nature of a joint bank account is such that one essential element of a gift inter vivos is missing—that of surrender of dominion and control by the donor—since each party has an equal right to withdraw the funds on deposit. … Nor is the rule as to “delivery” of the gift applicable in this situation. This is so because the thing given is not the money, in specie, on deposit in the joint bank account; it is a gift of an interest in the funds on deposit equal to that of the donor. Thus, at least in the creation of joint accounts by gift, the delivery may be constructive or symbolic, and dominion and control may be shared by the donor, rather than totally surrendered to the donee. Id.; Winterton v. Kaufmann, 504 So. 2d 439 (Fla. 3d DCA 1987); Panzirer v. Deco Purchasing & Distributing Co., 448 So. 2d 1197 (Fla. 5th DCA 1984). The requirement “that the object [the gift] or [the] indispensable document had to be in actuality delivered and accepted has, at least since the Spark case, been discarded.” Maier v. Bean, 189 So. 2d 380, 382 (Fla. 2d DCA 1966). Granting access to a jointly titled cash management account through a check

card is sufficient to satisfy the delivery requirement. Varela v. Bernachea, 917 So. 2d 295 (Fla. 3d DCA 2005). Also, the requirement of delivery may be satisfied by the donor’s delivery of a direction to a third party to make a transfer or distribution. Naylor v. U.S. Trust Company of Florida, 711 So. 2d 1350 (Fla. 2d DCA 1998). In Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951), which concerned the creation of estates by the entireties in bank accounts by gift, the Florida Supreme Court observed that requiring the donor spouse to surrender dominion over the account would be utterly inconsistent with the unities of possession, interest, and person peculiar to estates by the entireties. At least two cases have deemphasized the importance of delivery insofar as they relate to the creation of interests in joint bank accounts by gift. In Gray v. Landmark Union Trust Bank of St. Petersburg, N.A., 364 So. 2d 1256 (Fla. 2d DCA 1978), the court held that passbook presentation clauses are for the purpose of preventing payment to one who is not a depositor and may be waived by the bank insofar as they are not intended to protect a depositor against withdrawals by a codepositor. In Maier, the court concluded that the donee’s refusal to accept possession of the passbook and her failure to personally withdraw funds from the account did not clearly and convincingly refute the presumption that she had the right to make withdrawals, and that the nonuse of that right did not imply its nonexistence. In Graham v. Ducote Federal Credit Union, 213 So. 2d 603 (Fla. 1st DCA 1968), the court held that retention of possession of a credit union account passbook by the joint account donor did not defeat the joint account when the funds could be withdrawn without presentment of the passbook and the donor and donee resided in the same house. « Ch. 5 », « § 5.3 », « B », « 4 • 1 Litigation Under FL Probate Code § 5.3.B.4 (2022)

4. Acceptance Under appropriate circumstances, acceptance of a gift by a donee may be presumed. Naylor v. U.S. Trust Company of Florida, 711 So. 2d 1350 (Fla. 2d DCA 1998). « Ch. 5 », « § 5.3 », « C • 1 Litigation Under FL Probate Code § 5.3.C (2022)

C. Presumptions And Burdens Of Proof Applicable To Gift Issues

« Ch. 5 », « § 5.3 », « C •, • 1 » 1 Litigation Under FL Probate Code § 5.3.C.1 (2022)

1. In General Gift issues may arise whenever a potential donee has possession of or apparent title to property, or both, or an interest therein for which he or she did not give full consideration. The potential donor may have directly transferred the property to the potential donee or provided some or all of the consideration to a third party who made the transfer. There is a presumption of equitable ownership or resulting trust arising when there is evidence that one party has paid all or a considerable part of the purchase price, O’Donnell v. Marks, 823 So. 2d 197 (Fla. 4th DCA 2002), since “ ‘[o]ne who provides the purchase price or a part thereof is presumed to be an equitable owner unless a contrary intent is ascertainable from the dealings of the parties.’ ” Williams v. Dept. of Health & Rehabilitative Services, 522 So. 2d 951, 954 (Fla. 1st DCA 1988), quoting Waters v. Waters, 310 So. 2d 452, 454 (Fla. 3d DCA 1975). The ultimate burden of proof to establish all facts essential to the validity of a gift is on the one claiming to be the donee of the property. Lowry v. Florida National Bank of Jacksonville, 42 So. 2d 368 (Fla. 1949); Stigletts v. McDonald, 135 Fla. 385, 186 So. 233 (1938); Burke v. Coons, 136 So. 2d 235 (Fla. 2d DCA 1962). Moreover, when the claim of gift is supported, if at all, not by direct proof but only by circumstantial evidence, or the claim of gift is not asserted until after the death of the alleged donor, the claim must be sustained by clear and satisfactory evidence of every element necessary to establish the gift. Lowry; Stigletts; Rich v. Hallman, 106 Fla. 348, 143 So. 292 (1932); Burke. This is also true in the case of gifts causa mortis, and the evidence must be much stronger and clearer than proof of a gift inter vivos. Gifts causa mortis are not regarded with favor by the law, and because of the possibility of fraud, they are tested by strict rules; in such cases, proof of compliance must be clear and convincing. Josephson v. Kuhner, 139 So. 2d 440 (Fla. 1st DCA 1962). « Ch. 5 », « § 5.3 », « C •, « 2 » 1 Litigation Under FL Probate Code § 5.3.C.2 (2022)

2. Gift Presumptions

« Ch. 5 », « § 5.3 », « C •, « 2 », • a » 1 Litigation Under FL Probate Code § 5.3.C.2.a (2022)

a. Presumption Arising From Joint Titling Or Registration There is broad authority for the proposition that, when a joint account is established with funds contributed by one person, there is a presumption that a gift was made. Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008); Varela v. Bernachea, 917 So. 2d 295 (Fla. 3d DCA 2005); Sackett v. Shahid, 722 So. 2d 273 (Fla. 1st DCA 1998); Thomas J. Konrad & Associates, Inc. v. McCoy, 705 So. 2d 948 (Fla. 1st DCA 1998); Hagopian v. Zimmer, 653 So. 2d 474 (Fla. 3d DCA 1995). Funds on deposit in a financial institution are presumed to belong to the person or entity named on the account. Branch Banking & Trust Co. v. Ark Development/Oceanview, LLC, 150 So. 3d 817 (Fla. 4th DCA 2014). When an asset is registered or titled jointly, there is a strong presumption of joint ownership. Escudero v. Hasbun, 689 So. 2d 1144 (Fla. 3d DCA 1997); Hagopian; Barlow v. Dept. of Health & Rehabilitative Services, 512 So. 2d 1069 (Fla. 1st DCA 1987). Taking title to property in joint names creates a presumption of gift. See Julia and cases cited therein. However, this presumption does not arise when property is purchased by one spouse in the names of both if they have a marital agreement that specifically designates how the jointly held property is to be distributed. Turchin v. Turchin, 16 So. 3d 1042 (Fla. 4th DCA 2009). Under Florida law, there is a rebuttable presumption that a tax refund issued jointly to spouses after filing a joint return and deposited to their joint account is TBE property, regardless of whose economic activity the refund is related to Gibson. When a transfer of property is made to one person and the purchase price is paid by another, a resulting trust arises in favor of the person who paid the purchase price. RESTATEMENT (SECOND) OF TRUSTS § 440 (Am. Law Ins. 1959). However, a resulting trust does not arise where a transfer of property is made to one person and the purchase price is paid by another if the person by whom the purchase price is paid manifests an intention that no resulting trust should arise. RESTATEMENT (SECOND) OF TRUSTS § 441. RESTATEMENT (SECOND) OF TRUSTS § 441, comment e, states, in part: “The fact that the payor takes title to property in the name of himself and another jointly is an indication of an intention of the payor to make a

beneficial gift of an undivided interest in the property to the other person; and in the absence of evidence of a different intention of the payor, the other person does not hold his interest upon a resulting trust for the payor. This is true whether the transfer was made to the payor and the other person as joint tenants or tenants in common.” Fernandez v. Marrero, 282 So. 3d 928, 931 (Fla. 3d DCA 2019). The fact that the person by whom the purchase price is paid or the consideration is furnished takes title to property in the name of that person and another person or persons jointly is an indication of an intention of the payor to make a beneficial gift of an undivided interest in the property to the other person, and it is presumed that a gift of an interest in the property was intended. O’Donnell v. Marks, 823 So. 2d 197 (Fla. 4th DCA 2002); Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997). This is true whether the transfer was made to the payor and the other person as joint tenants or as tenants in common. O’Donnell. Funds contributed to a joint bank account by one of the owners of the account are presumed to be a gift to the other owners of the account. In re Guardianship of Cosio, 753 So. 2d 134 (Fla. 2d DCA 2000); De Soto v. Guardianship of De Soto, 664 So. 2d 66 (Fla. 3d DCA 1995). See also RESTATEMENT (SECOND) OF TRUSTS § 441 Comment e (ALI 1959). Moreover, it is presumed that each party owns an equal interest. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001); Julia; Joseph v. Chanin, 940 So. 2d 483 (Fla. 4th DCA 2006); De Soto. Special rules pertaining to joint asset gift issues between spouses have evolved from both the courts and the legislature in connection with marital property and equitable distribution determinations. Early cases held that when property owned or purchased by one spouse was placed in the joint names of both spouses, it was presumed that a gift of an undivided interest to the other spouse was intended. Powell v. Metz, 55 So. 2d 915 (Fla. 1952); Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951); Kollar v. Kollar, 155 Fla. 705, 21 So. 2d 356 (1945); Kronfeld v. Kronfeld, 761 So. 2d 411 (Fla. 3d DCA 2000); In re Estate of Silvian, 347 So. 2d 632 (Fla. 4th DCA 1977). In 1976, the Florida Supreme Court abandoned the gift presumption arising from joint titling or registration in cases in which all of the consideration for the acquisition of real property held as tenants by the entireties was supplied by one spouse from a source clearly unconnected with the marital

relationship. Ball v. Ball, 335 So. 2d 5 (Fla. 1976). In 1979, the same rule (i.e., no presumption) was extended by a District Court of Appeal, Fourth District, to personal property titled or registered in the names of the spouses. Mitchell v. Mitchell, 368 So. 2d 628 (Fla. 4th DCA 1979). However, effective October 1, 1988, the gift presumption that had been abandoned by Ball was restored by statute, but only with respect to real property. The current (2018) version of that statute provides that: All real property held by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. If, in any case, a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital. F.S. 61.075(6)(a)2. See Robertson v. Robertson, 593 So. 2d 491 (Fla. 1992); Cintron v. King, 961 So. 2d 1010 (Fla. 4th DCA 2007); Stough v. Stough, 933 So. 2d 603 (Fla. 1st DCA 2006); Rice v. Corry, 854 So. 2d 772 (Fla. 2d DCA 2003). Accordingly, all real property held by spouses as tenants by the entireties is presumed to be a marital asset, even if acquired with the nonmarital funds of one spouse. Erdman v. Erdman, 301 So. 3d 316 (Fla. 5th DCA 2019), citing F.S. 61.075(6)(a)2. In order to overcome this presumption where entireties property was acquired with the nonmarital funds of one spouse, that spouse has the burden of proving that no gift to the other party was intended. “ ‘[S]tanding alone, evidence that one spouse provided nonmarital funds to purchase a marital home is insufficient to prove that the spouse did not intend a gift.’ ” Erdman, 301 So. 3d at 319, quoting David v. David, 58 So. 3d 336, 338 (Fla. 5th DCA 2011). “If the subject property is jointly titled, and the parties’ conduct during the marriage demonstrates joint ownership, the party asserting that no gift was intended must do more than make an ‘unsubstantiated claim, raised for the first time during a dissolution proceeding.’ ” Erdman, 301 So. 3d at 319, quoting Cattaneo v. Cattaneo, 803 So. 2d 889, 890–891 (Fla. 5th DCA 2002). See also Robertson; Jurasek v. Jurasek, 67 So. 3d 1210 (Fla. 3d DCA 2011); Cintron; Rutland v. Rutland, 652 So. 2d 404 (Fla. 5th DCA 1995). Notwithstanding the statutory restoration of the gift presumption with respect to entireties real property in 1988, from the time of the Mitchell decision in 1979 until 2008, the gift presumption was inapplicable to

entireties personal property. See Alvarez v. Plana, 974 So. 2d 1126 (Fla. 5th DCA 2008) (addition of wife’s name on husband’s brokerage account established with his separate nonmarital property that had not been commingled with marital property did not create gift presumption in favor of wife and she did not carry her burden to prove gift when she was not even aware of existence of account until after commencement of dissolution proceeding); Crouch v. Crouch, 898 So. 2d 177 (Fla. 5th DCA 2005) (husband’s addition of wife’s name to brokerage account created with his own premarital funds did not create presumption of gift of interest in account to wife); Katz v. Katz, 666 So. 2d 1025 (Fla. 4th DCA 1996) (decedent’s deposit of premarital property into joint account maintained with wife did not create presumption that gift was intended, and wife had no interest in securities purchased by decedent in his name alone with funds from joint account). See also Archer v. Archer, 712 So. 2d 1198 (Fla. 5th DCA 1998). Accordingly, during that period (1979 to 2008), there was no gift presumption with respect to separate nonmarital personal property that was placed into joint ownership between the spouses during the marriage (either as a joint tenancy with rights of survivorship or as a tenancy by the entireties), except in cases where the property had been commingled with marital personal property to the extent that it became nontraceable (i.e., incapable of being specifically identified as the earlier separate property). Lakin v. Lakin, 901 So. 2d 186 (Fla. 4th DCA 2005); Archer. See also O’Neil v. Drummond, 824 So. 2d 1032 (Fla. 1st DCA 2002). In the absence of such commingling, the burden was on the donee to prove that a gift was intended. If such commingling had occurred, the burden would be on the presumed donor to prove that no gift was intended. Archer. In Crouch, the District Court of Appeal, Fifth District, recognized that in Beal Bank the Florida Supreme Court eliminated the distinction between real property and personal property in the creation of tenancies by the entireties, and observed that F.S. 61.075 preserved a distinction between real property and personal property in establishing gifts between spouses. The Crouch court concluded that it was for the legislature, not the courts, to change that statutory distinction if it so desired, and the legislature did so in 2008. Effective July 1, 2008, following the decision in Beal Bank, the legislature restored the gift presumption with respect to entireties personal

property by enacting F.S. 61.075(6)(a)3, which provides: All personal property titled jointly by the parties as tenants by the entireties, whether acquired prior to or during the marriage, shall be presumed to be a marital asset. In the event a party makes a claim to the contrary, the burden of proof shall be on the party asserting the claim that the subject property, or some portion thereof, is nonmarital. Accordingly, with respect to all real and personal property held by a husband and wife as tenants by the entireties, F.S. 61.075(6)(a)2 and (6)(a)3 now create a presumption of marital property, regardless of who paid for it. See Robertson and its progeny. This statutory gift presumption is a presumption affecting the burden of proof under F.S. 90.302(2) and may be overcome only if the presumed donor proves that no gift was intended by clear and convincing evidence. F.S. 61.075(6)(a)4; Sorgen v. Sorgen, 162 So. 3d 45 (Fla. 4th DCA 2014); Swickle v. Swickle, 723 So. 2d 310 (Fla. 4th DCA 1999); Heim v. Heim, 712 So. 2d 1238 (Fla. 4th DCA 1998). A decision to commingle funds in a joint account with a spouse creates a rebuttable presumption that the contributing spouse intended one-half of the funds to be a gift to his or her spouse. Sorgen; Stough v. Stough, 18 So. 3d 601 (Fla. 1st DCA 2009). “ ‘[W]hen one spouse deposits funds into a joint account where they are commingled with other funds so as to become untraceable, a presumption is created that the spouse made a gift to the other spouse of an undivided one-half interest in the funds.’ ” Knecht v. Palmer, 252 So. 3d 842 (Fla. 5th DCA 2018), quoting Sorgen, 162 So. 3d at 47. The gift presumption arising from joint titling or registration is not limited to situations in which there is a special relationship between the donor and donee. The gift presumption arising from joint titling or registration is not limited to situations in which there is a special relationship between the donor and donee. Persons whose names appear in the joint titling or registration of an asset have a due process right to reasonable notice and the opportunity to be heard prior to the entry of a court order affecting any interest they may claim. Flegal v. Guardianship of Swistock, 169 So. 3d 278 (Fla. 4th DCA 2015). « Ch. 5 », « § 5.3 », « C •, « 2 », « b » 1 Litigation Under FL Probate Code § 5.3.C.2.b (2022)

b. Presumption Arising From Relationship Of Parties If property owned or paid for by one party is transferred into the name of another, a presumption of gift is raised only if the transferee can show that the party owning or paying for the property was under a legal or moral obligation to provide for the transferee, that the transferee is the natural object of the transferor’s bounty, or that the payor stands in a position of in loco parentis to the transferee. Frank v. Eeles, 152 Fla. 869, 13 So. 2d 216 (1943); Maliski v. Maliski, 664 So. 2d 341 (Fla. 5th DCA 1995); Abreu v. Amaro, 534 So. 2d 771 (Fla. 3d DCA 1988). Under those cases, a presumption of gift only arises when title is taken in the name of the spouse, child, or other natural object of the bounty of the person who made the transfer or paid the purchase price is paid, Medary v. Dalman, 69 So. 2d 888 (Fla. 1954). « Ch. 5 », « § 5.3 », « C •, « 2 », « c • 1 Litigation Under FL Probate Code § 5.3.C.2.c (2022)

c. Donee’s Possession Of Property Although a donee’s possession of property claimed to have been gifted to the donee may be circumstantial evidence of a gift, such possession “ ‘has little if any weight on the question of a gift [when] the claimant has had access to the property and effects of the alleged donor during [the donor’s] last sickness or after [the donor’s] death.’ ” Stigletts v. McDonald, 135 Fla. 385, 186 So. 233, 236 (1938), quoting Maxler v. Hawk, 233 Pa. 316 (Pa. 1912). « Ch. 5 », « § 5.3 », « C •, « 3 » 1 Litigation Under FL Probate Code § 5.3.C.3 (2022)

3. Overcoming Gift Presumptions; Burden Of Proof Once evidence sufficient to establish a presumption of gift has been presented, the party claiming that there was no gift then has the burden of proving so with evidence that one or more of the required gift elements were not present. See Robertson v. Robertson, 593 So. 2d 491 (Fla. 1992) and its progeny. The essential elements required for a valid gift are discussed in §§ 5.3.B.1–5.3.B.4. The presumption of joint ownership and gift that arises from joint titling

or registration may be rebutted by evidence that the purchaser did not intend to make a present gift of an interest in the property, that the purchaser continued to maintain exclusive dominion and control over the property, that the second name was included in the title for the convenience of the purchaser, or of a subsequent change in the respective ownership interests of the parties, as when the entire equitable ownership becomes vested in one of the title holders by virtue of their agreement. In re Guardianship of Cosio, 753 So. 2d 134 (Fla. 2d DCA 2000); Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997); Escudero v. Hasbun, 689 So. 2d 1144 (Fla. 3d DCA 1997); Hagopian v. Zimmer, 653 So. 2d 474 (Fla. 3d DCA 1995); Barlow v. Dept. of Health & Rehabilitative Services, 512 So. 2d 1069 (Fla. 1st DCA 1987). Evidence that jointly titled property was paid for with the separate nonmarital assets of one spouse or tenant does not rebut the gift presumption that arises from joint titling or registration. Jurasek v. Jurasek, 67 So. 3d 1210 (Fla. 3d DCA 2011). Although the gift presumption arising from joint titling or registration can be overcome by the unrebutted testimony of the transferor, Lyons v. Lyons, 687 So. 2d 837 (Fla. 2d DCA 1996), or by the testimony or admission of the transferee that the intent or purpose of the transfer was merely to create or provide for survivorship, Hill v. Hill, 675 So. 2d 168 (Fla. 5th DCA 1996), the presumption cannot be overcome by the transferor’s unsubstantiated claim that, at the time of transfer, no gift was intended, particularly if that claim was preceded by conduct evincing gift or joint ownership, Kollar v. Kollar, 155 Fla. 705, 21 So. 2d 356 (1945). See Hay v. Hay, 944 So. 2d 1043, 1046 (Fla. 4th DCA 2006) (husband’s testimony that he placed wife’s name on deed merely to ensure that she would have that property if something happened to him was insufficient to rebut gift presumption when wife testified he told her that “[t]his is our house” and that he had purchased it for both of them and their children); Stough v. Stough, 933 So. 2d 603 (Fla. 1st DCA 2006) (wife’s testimony that she did not intend to make gift and placed husband’s name on deed solely for purposes of survivorship so that, in event something happened to her, their children would have place to live, was insufficient to overcome gift presumption); Cattaneo v. Cattaneo, 803 So. 2d 889 (Fla. 5th DCA 2002) (husband’s testimony that he had property jointly titled to demonstrate to Immigration and Naturalization Service that his marriage to resident of Trinidad was not fraud was insufficient to overcome statutory presumption of gift). See also Rutland v. Rutland, 652 So. 2d 404

(Fla. 5th DCA 1995), receded from on other grounds 772 So. 2d 52; Claughton v. Claughton, 483 So. 2d 447 (Fla. 3d DCA 1986); Laws v. Laws, 364 So. 2d 798 (Fla. 4th DCA 1978). But see Hill (husband’s testimony that he had titled home jointly with wife for estate planning purposes was sufficient to overcome gift presumption when it was corroborated by wife). Once the gift presumption arises, it can only be overcome by “clear, positive and unequivocal,” “clear and convincing,” or “conclusive” evidence that one or more of the required gift elements was not present. Powell v. Metz, 55 So. 2d 915, 916 (Fla. 1952); Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951), superseded by statute on other grounds 137 So. 2d 587; Kollar; Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008); Varela v. Bernachea, 917 So. 2d 295 (Fla. 3d DCA 2005); Rutenberg v. Rutenberg, 334 So. 2d 633 (Fla. 2d DCA 1976). Effective July 1, 2008, the requirement that the gift presumption arising from spouses holding real property as tenants by the entireties or titling personal property jointly as tenants by the entireties can only be rebutted by “clear and convincing evidence” was confirmed by statute. F.S. 61.075(6)(a)4. It is entirely possible for one set of circumstances to give rise to multiple presumptions, some of which may conflict with others. For example, presumptions of ownership based upon possession or titling may conflict with gift-related presumptions of ownership based upon payment or contribution. Presumptions of ownership based upon payment or contribution may conflict with gift-related presumptions based upon the existence of a family or special relationship with the person in whose name title is taken and the person providing the payment or consideration for the transaction. It is possible for one presumption to rebut another. In circumstances where that might be the case, it is essential to fully and carefully analyze each presumption, as well as its relationship to and impact upon other applicable presumptions. In analyzing potentially conflicting presumptions, it must be recognized that there cannot be a presumption unless the finder of fact has believed the evidence of the predicate facts and accepted them as true. Accordingly, there can be no conflicting presumptions unless the finder of fact has accepted the predicate facts for those presumptions as true. « Ch. 5 », « § 5.3 », « C •, « 4 » 1 Litigation Under FL Probate Code § 5.3.C.4 (2022)

4. Treatment Of Presumptions Under Florida Evidence Code “[A] presumption is an assumption of fact [(‘presumed fact’)] which the law makes from the existence of another fact or group of facts found or otherwise established [(‘established fact’)].” F.S. 90.301(1). Through the use of a legally recognized presumption, a critical fact that may be difficult or impossible to prove by direct evidence may be established. Legal presumptions may be created by case law or statute. In contrast to a presumption, an inference is a legally permissible deduction of fact (“inferred fact”) that the finder of fact, in its discretion, may logically draw from another fact or group of facts that are found to exist or are otherwise established (“established fact”). In contrast to an inference, the distinguishing characteristic of a rebuttal presumption is that a fact that is presumed to exist, unless rebutted, is mandatory and binding on the trier of fact. A fact that is presumed to exist is also established prima facie. Jefferson v. State, 264 So. 3d 1019, 1027 (Fla. 2d DCA 2018), quoting BLACK’S LAW DICTIONARY (10th ed. 2014) (“Prima facie” is defined as “ ‘[s]ufficient to establish a fact or raise a presumption unless disproved or rebutted; based on what seems to be true on first examination, even though it may be later proved to be untrue.’ ”). Even for purposes of summary judgment proceedings, a party may rely on a presumed fact that has not been rebutted on the record. Barsan v. Trinity Financial Services, LLC, 258 So. 3d 516 (Fla. 3d DCA 2018). A rebuttable presumption may be rebutted by the production of evidence “ ‘which fairly and reasonably tends to show that the real fact is not as presumed.’ ” Padilla v. Schwartz, 199 So. 3d 516, 518 (Fla. 4th DCA 2016), quoting Gulle v. Boggs, 174 So. 2d 26, 28–29 (Fla. 1965). Although the Florida Evidence Code does not identify or create any specific presumptions, it does recognize two distinct types of rebuttable presumptions: those affecting the burden of proof (i.e., “burden shifters”) and those affecting the burden of producing evidence (i.e., “bubble bursters”). A presumption affecting the burden of proof (i.e., presumptions that are established to implement public policy), which “imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.” F.S. 90.302(2). A presumption affecting the burden of proof places the burden of persuasion on the party opposing the presumed fact. Gross v. Zimmerman, 197 So. 3d

1248 (Fla. 4th DCA 2016), citing F.S. 90.302(2). A presumption affecting the burden of producing evidence (i.e., a presumption established primarily to facilitate the determination of the particular action, rather than to implement public policy, F.S. 90.303) disappears on the introduction of credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact, “in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption.” F.S. 90.302(1). The initial significance of both types of rebuttable presumptions (i.e., presumptions affecting the burden of producing evidence and those affecting the burden of proof) arises from the fact that when the fact or group of facts (“established fact”) giving rise to the “presumed fact” is established, and there is an absence of credible evidence sufficient to sustain a finding of the nonexistence of the “presumed fact,” the “presumed fact” remains unrebutted and must be found to exist, regardless of the type of presumption. A presumption affecting the burden of producing evidence does not shift the burden of proof, nor does it require the party against whom it is invoked to disprove the “presumed fact”; it merely affects the burden of producing evidence by requiring the party against whom it is invoked to introduce credible evidence sufficient to sustain a finding of the nonexistence of the “presumed fact” or to suffer the consequences of the establishment of the “presumed fact.” F.S. 90.302(2). The application of a presumption affecting the burden of producing evidence is avoided if the “established fact” giving rise to the “presumed fact” is not proved or, if it is proved, it is rebutted by the mere introduction of credible evidence sufficient to sustain a finding of the nonexistence of the “presumed fact.” A presumption merely affecting the burden of producing evidence disappears on the introduction of credible or competent substantial evidence sufficient to sustain a finding of the nonexistence of the “presumed fact.” When credible evidence sufficient to sustain a finding of the nonexistence of a fact presumed by a presumption affecting the burden of producing evidence, the existence or nonexistence of the presumed fact must be determined from the evidence without regard to the presumption. Heard v. Perales, 247 So. 3d 533 (Fla. 4th DCA 2018), citing F.S. 90.302(1). The term “competent substantial evidence” does not relate to the quality,

character, convincing power, probative value, persuasiveness, or weight of the evidence, but merely refers to the existence of some (quantity) evidence and to the legality and admissibility of that evidence. “Competency” refers to its admissibility under legal rules of evidence, and “substantial” requires that there be some (but more than a mere iota or scintilla) real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative, or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, “tending to prove”) as to each essential element of the offense charged. Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996). This requires evidence that fairly and reasonably tends to show that the real fact is not as presumed. Circumstantial evidence is sufficient; direct evidence is not required. Id. In the case of a presumption affecting the burden of proof, the presumption is not rebutted unless competent substantial evidence sufficient to sustain a finding of the nonexistence of the “presumed fact” is introduced, and the finder of fact is persuaded by that evidence to find the nonexistence of the “presumed fact.” In In re Estate of Carpenter, 253 So. 2d 697, 703 (Fla. 1971), the Florida Supreme Court quoted the following portion of its opinion in Leonetti v. Boone, 74 So. 2d 551, 552 (Fla. 1954), with approval: “A presumption of law which arises upon the pleading or during the course of the trial after the introduction of evidence may aid a party in the discharge of the burden of proof cast upon him and shift to his adversary the burden of explanation or of going on with the case, but does not, as a general rule, shift the burden of proof; a presumption simply changes the order of proof to the extent that one upon whom it bears must meet or explain it away. … A presumption which operates in the plaintiff’s favor casts upon the defendant the burden of producing evidence to meet the plaintiff’s prima facie case, and not the burden of proof in the sense of the risk of nonpersuasion, which remains with the plaintiff throughout the trial.” The gift presumption arising from joint titling or registration is a presumption affecting the burden of proof that places the burden of proof on the person claiming that there was no gift. See § 5.3.C.3. A comprehensive judicial explanation and analysis of the purpose and application of rebuttable

presumptions under the Florida Evidence Code is found in Universal Insurance Company of North America v. Warfel, 82 So. 3d 47 (Fla. 2012). « Ch. 5 », « § 5.3 », « C •, « 5 • 1 Litigation Under FL Probate Code § 5.3.C.5 (2022)

5. Presumption Of Undue Influence In the landmark case of In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court confirmed that the existence of a confidential relationship between a testator and a substantial beneficiary, coupled with “active procurement” of the will by or on behalf of the beneficiary, raises a presumption that the will was the product of undue influence and is therefore invalid. The same rule is clearly applicable to inter vivos gifts when a confidential relationship exists between the donor and donee and the donee is active in the procurement of the purported gift. See Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997); Deshambo v. Baratz, 421 So. 2d 748 (Fla. 4th DCA 1982); Lee v. Patton, 342 So. 2d 542 (Fla. 3d DCA 1977). See also Thomas for Fennell v. Lampkin, 470 So. 2d 37 (Fla. 5th DCA 1985) and cases cited therein. F.S. 733.107(2) and Fla. Prob. R. 5.275(b) strengthen the presumption of undue influence by clarifying that it shifts the burden of proof on the issue of undue influence to the person against whom the presumption operates. When the rebuttable presumption of undue influence arises on a showing that someone in a fiduciary or confidential relationship was active in the procurement of a devise or gift in his or her favor, the statute imposes the burden of proving that there was no undue influence upon the alleged influencer. Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004). The presentation of credible and competent substantial evidence sufficient to raise the rebuttable presumption that the instrument was the product of undue influence shifts the burden of proof to the proponent of the instrument to establish the nonexistence of undue influence by a preponderance of the evidence. Kellar v. Estate of Kellar, 257 So. 3d 1044 (Fla. 4th DCA 2018). F.S. 733.107(2) was amended, effective July 1, 2014, to further clarify that the presumption of undue influence shifts the burden of proof in all of the types of transactions and events to which it is applicable (i.e., all inter vivos and testamentary donative transfers). Ch. 2014-127, § 3, Laws of Fla.

« Ch. 5 », « § 5.4 » 1 Litigation Under FL Probate Code § 5.4 (2022)

§ 5.4. MULTIPLE-PARTY ACCOUNTS « Ch. 5 », « § 5.4 », • A » 1 Litigation Under FL Probate Code § 5.4.A (2022)

A. Ownership Prior To Death Of Any Party « Ch. 5 », « § 5.4 », • A », • 1 » 1 Litigation Under FL Probate Code § 5.4.A.1 (2022)

1. In General This portion of the chapter is concerned with the nature and extent of the interest, if any, of a party to a multiple-party account during the period from the creation of the account until the death of a party. The issue of survivorship is not relevant to the determination of the extent of one’s interest during this period. In the case of multiple-party accounts, both with and without survivorship, a named party may own no interest, an undivided fractional or percentage interest, or the total interest in the account. “The issue here is how to determine what share a tenant … is entitled to.” Julia v. Russo, 984 So. 2d 1283, 1285 (Fla. 4th DCA 2008). In the case of a tenancy by the entireties, each spouse owns the whole. « Ch. 5 », « § 5.4 », • A », « 2 » 1 Litigation Under FL Probate Code § 5.4.A.2 (2022)

2. Statutes Or Account Documentation Not Controlling Joint account statutes do not control, regulate, or specify the nature or extent of the ownership interest of a party to a multiple-party account during the lives of the parties. Banking statutes concerning joint accounts are designed primarily to regulate and protect financial institutions and are not necessarily conclusive of the ownership of deposited money. See In re Guardianship of Medley, 573 So. 2d 892 (Fla. 2d DCA 1991), disapproved on other grounds 780 So. 2d 45, and cases cited therein. See also Gray v. Landmark Union Trust Bank of St. Petersburg, N.A., 364 So. 2d 1256 (Fla. 2d DCA 1978). Those statutes do not determine ownership of withdrawn funds but do establish that a bank is not liable for having paid them as they

are titled. Jones v. Barnett Bank of Volusia County, 670 So. 2d 1195 (Fla. 5th DCA 1996). A clear example of such a bank protection statute is F.S. 655.78(1), which provides: Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons may be paid to, or on the order of, either or any of such persons or to, or on the order of, the guardian of the property of any such person who is incompetent, whether the other or others are competent. The check or other order for payment to any such person or guardian is a valid and sufficient release and discharge of the obligation of the institution for funds transferred thereby. This statute shields financial institutions from liability and is intended to protect financial institutions from liability for the disbursement of funds from a multiple-party account to any of the parties named on the account and, as between the parties named on the account, the statute has no bearing on their relationship or ownership rights. Columbia Bank v. Turbeville, 143 So. 3d 964 (Fla. 1st DCA 2014). Similarly, signature cards, customer agreements, and other documentation associated with the opening of multiple party accounts, or the issuance of stock, is not determinative of the nature or extent of the actual ownership interests of the parties. See Berlin v. Pecora, 968 So. 2d 47 (Fla. 4th DCA 2007) (shares of stock and limited partnership interests issued in name of husband alone found to be held by husband and wife as tenants by entireties); see also § 5.2.D.1.b. « Ch. 5 », « § 5.4 », • A », « 3 » 1 Litigation Under FL Probate Code § 5.4.A.3 (2022)

3. Establishing Ownership Interest It is fundamental that, before the death of the depositor of a multipleparty account and the operation of any right of survivorship, a party cannot have an ownership interest in the account unless that party contributed in some manner to the account or was the donee of a completed present gift of an interest in the account from the depositor. The principles by which a party can acquire such an interest by gift are set forth in detail in §§ 5.3.A–§

5.3.C.5. In many instances, the application of the presumptions concerning gifts will be determinative of ownership issues. In multiple party accounts (other than entireties accounts), funds belong to the parties in proportion to the net contributions by each to the sums on deposit. Romano v. Olshen, 153 So. 3d 912 (Fla. 4th DCA 2014); Joseph v. Chanin, 940 So. 2d 483 (Fla. 4th DCA 2006). As noted in § 5.3.C.2.a, in the absence of proof of the respective amounts or portions contributed by each party, it is presumed that each party owns an equal interest. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001); Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008); Joseph; Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So. 2d 1227 (Fla. 4th DCA 2002); De Soto v. Guardianship of De Soto, 664 So. 2d 66 (Fla. 3d DCA 1995). « Ch. 5 », « § 5.4 », • A », « 4 • 1 Litigation Under FL Probate Code § 5.4.A.4 (2022)

4. Accountability And Withdrawal Authorization In multiple party accounts (other than entireties accounts), each tenant has the right, against the other, only to his or her individual interest in the account during the lifetime of the joint tenants. Joseph v. Chanin, 940 So. 2d 483 (Fla. 4th DCA 2006). Withdrawal of funds from a bank account may form the basis of an action for conversion “ ‘if the specific money in question can be identified.’ ” Id. at 486, quoting Allen v. Gordon, 429 So. 2d 369, 371 (Fla. 1st DCA 1983). See also Brand v. Old Republic National Title Insurance Co., 797 So. 2d 643 (Fla. 3d DCA 2001). A joint tenant may bring a conversion action against another joint tenant who wrongfully appropriates more than his or her share of the money from a joint tenancy account. See Joseph and cases cited therein. When funds owned by one person are deposited into a jointly-titled financial account so that the other person named on the account can manage and access the funds solely for the benefit and convenience of the owner, the withdrawal of those funds by the non-owner for his or her own use constitutes conversion and, if the non-owner occupies a position of trust and confidence with the owner, constitutes a breach of fiduciary duty. Columbia Bank v. Turbeville, 143 So. 3d 964 (Fla. 1st DCA 2014). Under appropriate circumstances, a conversion claim may even be made against a third party to whom funds from a joint account have been

transferred. See Joseph, 940 So. 2d at 485 (“where a joint tenant in a bank account wrongfully transfers funds to a third party, the other joint tenant may maintain a cause of action for conversion against the third party who (1) holds the identifiable funds and (2) refuses a demand to restore the funds to the other joint tenant”). See also Uhl v. Holbruner, 146 Fla. 133, 200 So. 359 (1941) (donee liable for conversion when donor of converted bonds had no title to convey and donee refused demand to return them); RESTATEMENT (SECOND) OF TORTS §§ 223, 229, 237 (ALI 1965). Also, when a joint owner wrongfully transfers funds from a joint account, the co-owner may obtain the imposition of a constructive trust on the funds in the hands of the third party who has not engaged in any wrongful conduct. Browning v. Browning, 784 So. 2d 1145 (Fla. 2d DCA 2001); Joseph. Signature cards, customer agreements, and other documentation used to establish multiple-party accounts universally contain language authorizing each party to unilaterally withdraw funds from the account. See Detwiler v. Bank of Central Florida, 736 So. 2d 757 (Fla. 5th DCA 1999) (when terms of joint securities account agreement specifically authorize custodian of account to deliver account proceeds to any owner of account, custodian is conclusively authorized to do so without consent of other account owners). Notwithstanding those provisions, which are for the protection of financial institutions, all parties to multiple party accounts remain fully accountable for any withdrawals they make that invade or impinge on the interest of another party. This rule of accountability applies to all multiple party accounts. A joint tenant’s withdrawal of more than his or her share from the account is wrongful as between the parties to the account and the withdrawing joint tenant is liable to the remaining joint tenant for his or her share of the withdrawn funds. Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So. 2d 1227 (Fla. 4th DCA 2002). The real accountability issue is the nature and extent of each party’s respective interest in the account. As noted at § 5.2.D.2.b, in the case of a tenancy by the entireties bank account, the nonseverability doctrine preserves the entireties status of funds even after one spouse renames the account or transfers money from it without the consent of the other. Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001); Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995). In the case of an entireties bank account, as between the spouses it is clear that one may not transfer money from the account without the consent of the

other. See Wexler v. Rich, 80 So. 3d 1097 (Fla. 4th DCA 2012). An arrangement for individual withdrawal from a joint account between spouses does not defeat a clearly expressed intent to establish an estate by the entireties. Beal Bank; Snyder v. Dinardo, 700 So. 2d 726 (Fla. 2d DCA 1997). See also First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971), receded from on other grounds 780 So. 2d 45. As noted at § 5.2.D.1.b, such unilateral withdrawals are permitted by a tenant by the entireties on the theory that he or she is also acting as the agent of the nonwithdrawing spouse. Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951). As previously noted, the inability of one spouse to unilaterally dispose of money in an entireties bank account (i.e., without consent of the other) is not an element of the estate, it is the legal consequence of it. Beal Bank. Signature card withdrawal authorizations for joint accounts, whereby either party is authorized to make withdrawals, protect financial institutions and provide convenience for the parties, and such an authorization is irrelevant to the ownership of the account or of funds withdrawn under the authorization. In re Guardianship of Medley, 573 So. 2d 892 (Fla. 2d DCA 1991), disapproved on other grounds 780 So. 2d 45. In the case of a tenancy by the entireties or a joint tenancy with right of survivorship, and notwithstanding the contractual right of either owner to withdraw from the account, the interest of one joint owner in the funds will survive its transfer and continue when it is withdrawn by one owner and appropriated to his or her use without the consent of both owners, and the withdrawing owner remains fully accountable to the other. Sandler v. Jaffe, 913 So. 2d 1205 (Fla. 4th DCA 2005); In re Estate of Herring, 670 So. 2d 145 (Fla. 1st DCA 1996); In re Guardianship of Medley; Wiggins v. Parson, 446 So. 2d 169 (Fla. 5th DCA 1984); McGillen v. Gumpman, 171 So. 2d 69 (Fla. 3d DCA 1965); Lerner v. Lerner, 113 So. 2d 212 (Fla. 2d DCA 1959). But see Simpson v. Schoenemann, 263 So. 2d 854 (Fla. 1st DCA 1972), which involved joint accounts between husband and wife when the account documents gave each spouse the right to withdraw all or any part of the account. The court held that the wife was within her contractual rights in closing the accounts before she died and the husband was precluded from recovering the account proceeds from the deceased wife’s niece, to whom the proceeds had been transferred. It is important to note the distinction between the concepts of severance and accountability. Beal Bank, which did not

involve issues of accountability between owners, overruled In re Guardianship of Medley to the extent that the latter case held that a joint survivorship account cannot be severed by the wrongful act of one tenant and that the account documentation does not affect the ownership status of the account. See also Brown v. Hanger, 368 So. 2d 63 (Fla. 3d DCA 1979), and Lerner, discussed in § 5.2.D.2.a. In cases in which one spouse brings a tort claim for damages against the other spouse based on alleged conversion or theft from a joint account, the defense of interspousal immunity is often asserted. See McAdam v. Thom, 610 So. 2d 510 (Fla. 3d DCA 1993), quashed 626 So. 2d 184. However, in Waite v. Waite, 618 So. 2d 1360 (Fla. 1993), the Florida Supreme Court held that the doctrine of interspousal immunity no longer remains a part of Florida’s common law. See F.S. 655.78, which protects financial institutions in situations in which it permits the withdrawal of funds from a multiple-party account by less than all of the parties to the account. The relationship between a financial institution and the parties to a joint account does not in any manner shape the relationship between the parties themselves. Columbia Bank v. Turbeville, 143 So. 3d 964 (Fla. 1st DCA 2014); Sandler. See also § 5.4.B.3.g regarding severance of survivorship accounts. « Ch. 5 », « § 5.4 », « B • 1 Litigation Under FL Probate Code § 5.4.B (2022)

B. Ownership By Survivorship « Ch. 5 », « § 5.4 », « B •, • 1 » 1 Litigation Under FL Probate Code § 5.4.B.1 (2022)

1. In General The following sections discuss the interest, if any, acquired by a party to a multiple-party account by operation of law on the death of another party to that account. « Ch. 5 », « § 5.4 », « B •, « 2 » 1 Litigation Under FL Probate Code § 5.4.B.2 (2022)

2. Joint Account Survivorship Theories

In Webster v. St. Petersburg Federal Savings & Loan Ass’n, 155 Fla. 412, 20 So. 2d 400 (1945), the Florida Supreme Court held that, in order for the survivor of a joint account to be entitled to the account balance as against the deceased depositor’s personal representative, the evidence must show one of the following: That a joint tenancy with right of survivorship was created in the deposit between the deceased depositor and the account survivor (i.e., joint tenancy theory). See Chase Federal Savings & Loan Ass’n v. Sullivan, 127 So. 2d 112 (Fla. 1961); Spark v. Canny, 88 So. 2d 307 (Fla. 1956); Crawford v. McGraw, 61 So. 2d 484 (Fla. 1952); Maier v. Bean, 189 So. 2d 380 (Fla. 2d DCA 1966). That the deceased depositor made a gift of the deposit to the account survivor (i.e., gift theory requiring an intention of depositor to absolutely relinquish dominion of joint account to person named in account, together with present delivery and surrender of control over funds to donee). See Chase Federal Savings & Loan Ass’n; Spark; Williams v. Williams, 255 So. 2d 273 (Fla. 4th DCA 1971). That the deceased depositor created a trust in the deposit for the use and benefit of the account survivor (i.e., trust theory requiring present executed gift of equitable title to account survivor/beneficiary without reference to its taking effect at some future time, while legal title is transferred to third person or retained by depositor/settlor to be held for purposes of trust). See id. That the deposit transaction with the financial institution created a contract between the deceased depositor and the financial institution for the benefit of the account survivor (i.e., contract theory). See In re Brandle’s Estate, 65 So. 2d 27 (Fla. 1953); Crawford; Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951); Crabtree v. Garcia, 43 So. 2d 466 (Fla. 1949); In re Estate of Combee, 583 So. 2d 708 (Fla. 2d DCA 1991), approved 601 So. 2d 1165; King v. Estate of King, 554 So. 2d 600 (Fla. 1st DCA 1990). In reference to the above-described joint account theories, the Florida Supreme Court has observed that, “[p]rior to 1965, several different approaches had been taken by the courts in this state to address the question

of entitlement to assets in joint accounts with rights of survivorship. This created much uncertainty in the law surrounding survivorship rights.” In re Estate of Gainer, 466 So. 2d 1055, 1057 (Fla. 1985). See also In re Estate of Combee. It now seems clear that the legislature intended that joint bank account survivorship issues be resolved under a contract theory rather than under the former theory relating to gifts. Id. See also Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994). « Ch. 5 », « § 5.4 », « B •, « 3 • 1 Litigation Under FL Probate Code § 5.4.B.3 (2022)

3. Joint Account Statutes And Presumptions Of Survivorship « Ch. 5 », « § 5.4 », « B •, « 3 •, • a » 1 Litigation Under FL Probate Code § 5.4.B.3.a (2022)

a. In General It was in the context of the uncertainty in the law regarding joint accounts with right of survivorship (discussed in § 5.4.B.2), and a growing legislative concern regarding judicial determinations that attempts to create joint survivorship accounts were ineffective because of failure to comply with technical common-law gift requirements, that the Florida Legislature took action. However, over the years, bank protection statutes have been expanded beyond their original purpose so that they now contain provisions touching on survivorship rights in joint accounts. Doran v. Gainer, 443 So. 2d 473 (Fla. 5th DCA 1984), rev’d in part 466 So. 2d 1055; Drozinski v. Straub, 383 So. 2d 301 (Fla. 2d DCA 1980). The essence of joint account statutes is to provide a simple and informal probate substitute for creating testamentary gifts of joint account balances by survivorship, even though the requirements of the statute of Wills and for common-law gifts or other joint account theories have not been satisfied. The ultimate significance of the current joint account statutes, which have been evolving since 1965 and are discussed in the following sections, arises from their creation of a purely statutory right of survivorship that is not in any way dependent on establishing any of the common-law elements necessary to create a joint tenancy with right of survivorship or to make a present gift. Additionally, it cannot be overemphasized that the current joint account statutes relate only to the right of survivorship and bank protection and have

no effect whatsoever on the ultimate ownership rights or interests of the respective parties to the particular joint account as between themselves, during their lives. Extensive comments regarding the history and development of joint account theories and statutes may be found in In re Estate of Combee, 583 So. 2d 708 (Fla. 2d DCA 1991), approved 601 So. 2d 1165, and in Judge Ervin’s dissenting opinion in King v. Estate of King, 554 So. 2d 600 (Fla. 1st DCA 1990). « Ch. 5 », « § 5.4 », « B •, « 3 •, « b » 1 Litigation Under FL Probate Code § 5.4.B.3.b (2022)

b. Savings Associations (1965–1992) The 1965 Legislature enacted the predecessor of F.S. 665.063(1)(a) (1991), providing that, in the absence of fraud or undue influence, the following consequences arose from the opening or holding of a savings account at a savings association in the names of two or more persons in such form that the funds were payable to either of them or to their survivor or survivors: The account was the property of such persons as joint tenants. The funds on deposit in the account could be paid to any one of such persons during their lifetime or to any one of the survivors of them after the death of any of them. In any action or proceeding to which either the association or the survivor(s) were a party, the opening of the account constituted conclusive evidence of the intention of all parties to the account to vest title in the survivor(s). See In re Estate of Combee, 583 So. 2d 708 (Fla. 2d DCA 1991), approved 601 So. 2d 1165; In re Estate of Gainer, 579 So. 2d 739 (Fla. 1st DCA 1991), disapproved 601 So. 2d 1165. A careful reading of F.S. 665.063(1)(a) (1991) indicates that the conclusive presumption did not purport to apply to ownership rights in general, but only to the right or incident of survivorship on the death of a depositor, and only in actions or proceedings to which either the savings association or the survivor or survivors was a party. See Doran v. Gainer,

443 So. 2d 473 (Fla. 5th DCA 1984), rev’d in part 466 So. 2d 1055; Drozinski v. Straub, 383 So. 2d 301 (Fla. 2d DCA 1980). Accordingly, there are numerous cases dealing with ownership rights in joint accounts in which the parties were still alive at the time of the litigation or the disputed transaction and the court declined to apply the statute. See In re Guardianship of Medley, 573 So. 2d 892 (Fla. 2d DCA 1991), disapproved on other grounds 780 So. 2d 45; In re Guardianship of Tanner, 564 So. 2d 180 (Fla. 3d DCA 1990); Seidl v. Estate of Michelsen, 487 So. 2d 336 (Fla. 4th DCA 1986); Doran; Allen v. Gordon, 429 So. 2d 369 (Fla. 1st DCA 1983); Drozinski; Constance v. Constance, 366 So. 2d 804 (Fla. 3d DCA 1979). By enacting the conclusive presumption of survivorship, the legislature intended to put to rest the uncertain results occurring with litigation predicated on the theory of gifts or other theories utilized by the courts and sought to provide certainty to the nature of the joint accounts with right of survivorship. In re Estate of Gainer; Drozinski. The Florida Supreme Court has upheld the constitutionality of the conclusive presumption of F.S. 665.063(1)(a). In re Estate of Gainer, 466 So. 2d 1055 (Fla. 1985). That statute and its conclusive presumption were only applicable to savings association accounts opened in such form that the money in the account was payable to the survivor or survivors. Gentzel v. Estate of Buchanan, 419 So. 2d 366 (Fla. 1st DCA 1982). See also In re Estate of Clement, 568 So. 2d 1297 (Fla. 2d DCA 1990); In re Estate of Heyes, 515 So. 2d 377 (Fla. 4th DCA 1987). F.S. 665.063 was repealed effective July 1, 1992, by § 1 of Chapter 91307, Laws of Florida, and, effective July 3, 1992, by § 194 of Chapter 92303, Laws of Florida. « Ch. 5 », « § 5.4 », « B •, « 3 •, « c » 1 Litigation Under FL Probate Code § 5.4.B.3.c (2022)

c. Banks (1971–1992) The 1971 Legislature enacted the predecessor to F.S. 658.56 (1991), providing that, in the absence of proof of fraud, undue influence, or clear and convincing proof of a contrary intent, the opening or maintenance of an account at a bank in the names of two or more persons when the funds on deposit were payable to one or more of them or to the surviving account

holder(s), created a rebuttable presumption that such persons intended that the account balance vest in the surviving account holders on the death of any of them. The statute further provided that, in the absence of such proof, the account balance would vest in the surviving account holders. Lastly, the statute created a presumption that the creator of the joint account intended that all funds become the sole property of the joint account holder on the death of the depositor. Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994). F.S. 658.56 did not apply to accounts held by husband and wife as tenants by the entireties. First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971), receded from on other grounds 780 So. 2d 45. The statute and its rebuttable presumption of survivorship were applicable to bank accounts only when the documentation contained language indicating survivorship. In re Estate of Heyes, 515 So. 2d 377 (Fla. 4th DCA 1987). See also Merkle v. Cannata, 642 So. 2d 811 (Fla. 2d DCA 1994) and cases cited therein; Gentzel v. Estate of Buchanan, 419 So. 2d 366 (Fla. 1st DCA 1982). This approach reconciled F.S. 658.56 and 665.063(1)(a) (1991), with 689.15 (1995). The First and Fifth district courts of appeal have reached a different conclusion on this point. In Rosecrans v. Eden, 538 So. 2d 970 (Fla. 5th DCA 1989), by holding that the presumption of survivorship was applicable to an account opened in the names of two persons with no survivorship language, the court appears to have overlooked the precondition of F.S. 658.56, as well as F.S. 689.15, that the account be payable to the surviving account holders. In In re Estate of Herring, 670 So. 2d 145 (Fla. 1st DCA 1996), F.S. 658.56 was construed to permit the opening of an account in two names without words of survivorship to create a presumption of survivorship. The court acknowledged that the law in this area appeared to be muddled and inconsistent. In exchange for the statutory burden of having to prove, by clear and convincing evidence, that survivorship was not intended by the depositor, F.S. 658.56 permitted the estate to introduce parol evidence. In re Estate of Combee, 583 So. 2d 708 (Fla. 2d DCA 1991), approved 601 So. 2d 1165. Thus, even in cases in which there is no ambiguity and the account documents clearly indicate that survivorship is intended, the depositor’s estate may introduce parol evidence to prove that survivorship was not intended. Caputo v. Nouskhajian, 871 So. 2d 266 (Fla. 5th DCA 2004). In

Caputo, the court recognized that “accounts are commonly established jointly for a myriad of reasons not associated with an intent to divest the account owner’s estate of any right to the account in the event of death.” Id. at 269. In In re Estate of Gainer, 579 So. 2d 739 (Fla. 1st DCA 1991), disapproved 601 So. 2d 1165, the District Court of Appeal, First District, misinterpreted the “contrary intent” required by the statute as a basis for overcoming the presumption of survivorship. The court interpreted that requirement as pertaining to the intent to make a present gift, rather than to the intent that there be a right of survivorship. This decision was disapproved in In re Estate of Combee, 601 So. 2d 1165 (Fla. 1992). Consistent with the language of the statute, the Florida Supreme Court held that “contrary intent” refers only to a lack of intent for survivorship and cannot be established merely by showing that no present common-law inter vivos gift was completed. Id. See also Davis. F.S. 658.56 was repealed effective July 1, 1992, by § 1 of Chapter 91307, Laws of Florida, and, effective July 3, 1992, by § 189 of Chapter 92303, Laws of Florida. « Ch. 5 », « § 5.4 », « B •, « 3 •, « d » 1 Litigation Under FL Probate Code § 5.4.B.3.d (2022)

d. Contrast Between Former Statutes (Pre-1992) In the case of accounts maintained at banks under F.S. 658.56 (1991), survivorship could be defeated by proof of contrary intent (i.e., no survivorship intended), while that could not be done with savings association accounts under F.S. 665.063(1)(a) (1991). In re Estate of Gainer, 579 So. 2d 739 (Fla. 1st DCA 1991), disapproved 601 So. 2d 1165; Gentzel v. Estate of Buchanan, 419 So. 2d 366 (Fla. 1st DCA 1982). Also, F.S. 665.063(1)(a) purported to extend to the rights of the parties during their lives, as well as to the rights of survivors, whereas F.S. 658.56 dealt only with the rights of survivors. « Ch. 5 », « § 5.4 », « B •, « 3 •, « e » 1 Litigation Under FL Probate Code § 5.4.B.3.e (2022)

e. Consolidated Statute (Since 1992) In 1992, the legislature enacted the current multiple-party bank account

statute, F.S. 655.79, which is applicable to all financial institutions. Ch. 91307, § 1, Ch. 92-303, §§ 48, 189, 194, Laws of Fla. Under F.S. 655.79, an account in the names of two or more persons creates a presumption that such persons intended to provide that, on the death of any one of them, all rights in the account vest in the surviving person(s), unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of the account. Karr v. Vitry, 135 So. 3d 372 (Fla. 5th DCA 2014); Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997). In contrast to its predecessor statutes (F.S. 658.56 and 665.063), F.S. 655.79 does not require the presence of any survivorship language to give rise to the presumption of survivorship. Karr. Prior to the enactment of F.S. 689.15, a survivorship account could not be established without documentation providing for survivorship. When account documentation does provide for survivorship, which is quite common in the case of multipleparty accounts, there is no need to rely upon the statutory presumption of survivorship in F.S. 655.79. The current statute further provides that the presumption may be overcome only by proof of fraud, undue influence, or clear and convincing proof of an intent contrary to survivorship and that, in the absence of such proof, on the death of any such person, all rights in the account vest in the surviving person(s), notwithstanding the absence of proof of any donative intent or delivery, possession, dominion, control, or acceptance on the part of any person; or that the statute may constitute or cause a vesting or disposition of property or rights therein that is testamentary in nature and, which, except for the statute, would or might otherwise be voidable and is violative of the Statute of Wills). The principal difference between the language in F.S. 658.56 (1991) and F.S. 655.79 is the omission from F.S. 655.79 of the words “payable to or on the order of one or more of them or the surviving account holder or holders.” In re Estate of Herring, 670 So. 2d 145 (Fla. 1st DCA 1996). Under F.S. 655.79, the common-law doctrine of the right of survivorship (which Florida abolished long ago by the enactment of F.S. 689.15), is reinstated for multiple-party accounts at financial institutions, and a survivorship account may be created by merely opening an account in two or more names, notwithstanding the absence of language indicating survivorship. A typical

multiple-party account is now presumed to be a survivorship account even though the signature card and other documentation pertaining to the account contain no indication of that consequence. F.S. 655.79 also substitutes a rebuttable presumption of survivorship for the conclusive presumption that previously governed survivorship accounts at savings associations. This statutory rebuttable presumption of survivorship actually shifts the burden of proof to the estate to prove, by clear and convincing evidence, that survivorship was not intended. In re Estate of Combee, 601 So. 2d 1165 (Fla. 1992). The foregoing analysis of the consolidated statute, F.S. 655.79, was adopted and incorporated into the opinion in Regions Bank v. Hyman, 91 F. Supp. 3d 1234 (M.D. Fla. 2015). It has been held that insofar as F.S. 655.79 is applicable to both the “opening” of an account and to the “maintenance” of an account, that statute became applicable to all existing accounts being maintained on its effective date, July 3, 1992. In re Estate of Herring. However, a careful reading and analysis of the statute will reflect that its sole reference to the “maintenance of an account” appears in the context of a provision that the presumption of survivorship does not arise if a signature card executed in connection with the maintenance of an account expressly provides otherwise. When a joint bank account with right of survivorship is established with the funds of one person, a gift of the funds remaining in the account after the death of the creator is presumed, although the presumption may be overcome by clear and convincing evidence to the contrary. Spark v. Canny, 88 So. 2d 307 (Fla. 1956); Varela v. Bernachea, 917 So. 2d 295 (Fla. 3d DCA 2005); Hagopian v. Zimmer, 653 So. 2d 474 (Fla. 3d DCA 1995); Teasley v. Blankenberg, 298 So. 2d 431 (Fla. 4th DCA 1974). As noted in § 5.2.D.1.b, in 2008, following the Florida Supreme Court’s decision in Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001), the legislature amended F.S. 655.79(1) to provide that: “[a]ny deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.” Gibson v. Wells Fargo Bank, N.A., 255 So. 3d 944 (Fla. 2d DCA 2018), which followed Beal and the amendment to F.S. 655.79(1), construed that statute in accordance with its plain language and clear meaning (i.e., any deposit or account made in the name of two persons who are husband and

wife shall be considered a tenancy by the entirety unless otherwise specified in writing). « Ch. 5 », « § 5.4 », « B •, « 3 •, « f » 1 Litigation Under FL Probate Code § 5.4.B.3.f (2022)

f. Pay-On-Death Account Statute (Since 1995) In 1994, the Florida Legislature enacted a “pay-on-death” statute (F.S. 655.82), containing a comprehensive framework for specifying, determining, and regulating the right of access of various classes or categories of interested persons to funds on deposit in financial institution accounts on the basis of specific designations made by the depositor in a contract of deposit. In 2001, the Totten trust statute (F.S. 655.81), which had codified the “tentative trust doctrine,” in 1992, was repealed and replaced by the “pay-on-death” statute (F.S. 655.82). See Ch. 2001-243, §§ 3, 20, Laws of Fla.; F.S. 655.825. The relationship between Totten trust accounts and pay-on-death accounts is reflected in F.S. 655.825(1), which provides that: Because deposits in trust are also accounts with a pay-on-death designation as described in [F.S.] 655.82, it is the intent of the Legislature that the provisions of [F.S.] 655.82 shall apply to and govern deposits in trust. References to former [F.S.] 655.81 in any depository agreement shall be interpreted after the effective date of this act as references to [F.S.] 655.82. Under the pay-on-death statute, the creation of an account contemplates a contract of deposit between a “depositor” and an “institution.” F.S. 655.82(1) (a). The contract of deposit must name one or more “parties” (i.e., persons who have the present right to receive payment from account), and it may also name one or more “beneficiaries” (i.e., persons to whom sums on deposit in account are payable after death of all parties). F.S. 655.82(1)(b), (1)(f), (1) (h)1. Although a pay-on-death or Totten trust account is not, in the strictest sense, a testamentary device and is not subject to the formal execution requirements of wills, its survivorship feature unmistakably functions as a will substitute in that it has no effect until the death of the depositor, insofar as it does not transfer ownership of funds to a beneficiary until the depositor’s death. Keul v. Hodges Blvd. Presbyterian Church, 180 So. 3d

1074 (Fla. 1st DCA 2015). The beneficiary of a pay-on-death account has no right to sums on deposit during the lifetime of any party. F.S. 655.82(2). The interest of a beneficiary may be extinguished by changing the contract of deposit or withdrawing all funds from the account at any time before the death of all parties. In most cases, the depositors and the parties will be identical, although that is not necessary. Significantly, the pay-on-death statute provides for two distinct types of survivorship rights. The first form of survivorship is that which may exist between multiple parties who share present ownership and right of access to the account. F.S. 655.82(1)(e)–(1)(f). The statute uses the term “survivorship” to refer to this right, which is the equivalent of the right of survivorship incident to a common-law joint tenancy with right of survivorship. F.S. 655.82(1)(e), (3)(a). The second form of survivorship provided for by the statute is the expectancy of a named beneficiary (single or multiple), not connected to any presently vested ownership or right of access to the account, to become an owner of the account balance on the death of all parties. F.S. 655.82(1)(b), (1)(h), (3)(b). The statute uses the term “pay-ondeath” to refer to this right, which is similar to the right of a Totten trust beneficiary (see § 5.5.A), and to the statutory right of survivorship created by F.S. 655.79 and its predecessors. The term “beneficiary” also includes one or more persons for whom one or more parties are, by the terms of the account, named as “trustee,” provided that there is no subject of the trust other than the sums on deposit in the account. F.S. 655.82(1)(b), (1)(h)2. The comprehensive framework of the statute contemplates and provides for the creation of the following types of accounts: Single-party accounts with no pay-on-death designation. At the death of the party, ownership passes as part of the party’s estate. See F.S. 655.82(9). Single-party accounts with a pay-on-death designation in favor of one or more beneficiaries. A “beneficiary” is a person to whom sums on deposit in an account are payable after the death of all parties. F.S. 655.82(1)(b). The beneficiary has no right to sums on deposit during the lifetime of any party. F.S. 655.82(2). At the death of the party, ownership passes to the designated pay-on-death beneficiary or beneficiaries and is not part of the party’s estate. See F.S. 655.82(9).

“Persons” who may be designated as a beneficiary include non-natural persons such as corporations and trusts. Belanger v. The Salvation Army, 556 F.3d 1153 (11th Cir. 2009). Multiple-party tenancy in common (i.e., no right of survivorship) accounts with no pay-on-death designation. Designation of an account as a tenancy in common establishes that the account is without right of survivorship. F.S. 655.82(4). A “multiple-party account” is an account payable on request to one or more of two or more parties. F.S. 655.82(1) (e). “A pay-on-death designation in a multiple-party account without right of survivorship is ineffective.” F.S. 655.82(4). At the death of a party, the share or interest of the deceased party passes as part of the party’s estate. Although this type of account is recognized by the statute, it is not favored by the statute and, unlike other types of accounts, model language to create such an account has not been included in the statutory example form of a contract of deposit. See F.S. 655.82(9). Multiple-party accounts with right of survivorship and no pay-on-death designation. A “multiple-party account” is “an account payable on request to one or more of two or more parties.” F.S. 655.82(1)(e). At the death of a party, ownership passes to the surviving party or parties. See F.S. 655.82(1)(b), (1)(h)1, (3)(a), (9). Multiple-party accounts with right of survivorship and pay-on-death designation in favor of one or more beneficiaries. At the death of a party, ownership passes to the surviving party or parties. See id. A “beneficiary” is a person “to whom sums on deposit in an account are payable on request after death of all parties.” F.S. 655.82(1)(b). The beneficiary has no right to sums on deposit during the lifetime of any party. F.S. 655.82(2). At the death of the last surviving party, ownership passes to the surviving designated pay-on-death beneficiary or beneficiaries and is not part of the last surviving party’s estate. F.S. 655.82(3)(b), (9). If two or more beneficiaries survive, sums on deposit belong to them in equal and undivided shares, and there is no right of survivorship in the event of death of a beneficiary thereafter. If no beneficiary survives, sums on deposit belong to the estate of the last surviving party. F.S. 655.82(3)(b). As with single-party accounts, “persons” who may be designated as a beneficiary include non-natural persons such as corporations and trusts. Belanger.

If there is no personal representative for a deceased party on an account with a pay-on-death designation, and the deceased party was the survivor of all other persons named on the account either as a party or beneficiary, an institution may pay the account balance directly to the heirs or devisees of the deceased party. F.S. 655.82(6)(c). A pay-on-death designation may be invalidated if it was the product of undue influence, fraud, duress, or overreaching, and the probate court has the authority to require the designated beneficiary of a pay-on-death account to return the account funds to the estate if the designation was the product of undue influence. Keul, citing F.S. 733.812. The pay-on-death statute contains a broad bank protection provision that payment made according to its terms “discharges the institution from all claims for amounts so paid, whether or not the payment is consistent with the beneficial ownership of the account as between parties, beneficiaries, or their successors.” F.S. 655.82(7). If the legislature desires to encourage or promote the use of F.S. 655.82, which has the desirable attribute of requiring the depositor to express his or her intent regarding ownership and survivorship at the time of creation of the account, it should repeal F.S. 655.79. The practitioner should note that the legislature, in Chapter 2001-243, § 20, Laws of Florida, repealed F.S. 655.81, the “Totten trust” statute. The Totten trust concept is included within the term “beneficiary” and covered by the “pay-on-death” statute, F.S. 655.82, and by F.S. 655.825 (deposits in trust; applicability of F.S. 655.82 in place of former F.S. 655.81). Given the close relationship between “Totten trust” accounts and “payon-death” accounts, a very persuasive argument can be made that the liberal principles governing the revocation of Totten trust accounts, discussed above, should be fully applicable to the revocation of beneficiary designations for pay-on-death accounts. However, Brown v. Brown, 149 So. 3d 108 (Fla. 1st DCA 2014), held that extrinsic evidence that the owner of a pay-on-death account intended for the account to go to someone other than the designated beneficiary will not defeat the beneficiary’s right to receive the account upon the owner’s death (i.e., the presumption and rebuttal provisions that are applicable to multiple-party accounts under F.S. 655.79—that survivorship is rebuttably presumed and will prevail unless overcome by clear and

convincing evidence of contrary intent—do not apply to pay-on-death accounts under F.S. 655.82). The statute does not provide for agency accounts when an agent has the authority to access the account of a principal for his or her benefit or convenience. Convenience accounts are provided for in F.S. 655.80 and are discussed in § 5.4.B.3.h. « Ch. 5 », « § 5.4 », « B •, « 3 •, « g » 1 Litigation Under FL Probate Code § 5.4.B.3.g (2022)

g. Severance Of Survivorship Accounts Unlike a tenancy by the entireties, several cases have held that a joint owner’s withdrawal of funds from a joint bank account terminates the joint tenancy nature of the funds withdrawn so as to destroy the joint character and sever the right of survivorship as to the funds withdrawn; furthermore, the conveyance by a joint tenant to a stranger destroys the unities of possession and title. Connell v. Connell, 93 So. 3d 1140 (Fla. 2d DCA 2012); Wexler v. Rich, 80 So. 3d 1097 (Fla. 4th DCA 2012); Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So. 2d 1227 (Fla. 4th DCA 2002); Wiggins v. Parson, 446 So. 2d 169 (Fla. 5th DCA 1984). Other decisions have concluded that the “wrongful” withdrawal by one party (i.e., withdrawal of more than that party’s share or moiety) will not sever the joint tenancy or terminate the right of survivorship in the account or in the withdrawn funds. See In re Guardianship of Medley, 573 So. 2d 892 (Fla. 2d DCA 1991); Wiggins (Cowart, J. dissenting); McGillen v. Gumpman, 171 So. 2d 69 (Fla. 3d DCA 1965). It appears that these latter decisions have been overruled by Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001). In any event, and notwithstanding any severance of the joint tenancy, a withdrawing joint tenant remains liable and accountable to the other joint owner for that person’s share. Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995); In re Guardianship of Medley; Wiggins. The intervening mental incapacity of a joint tenant does not sever or terminate a joint tenancy, although his or her guardian is authorized to make withdrawals from the ward’s joint bank account for the purpose of paying for necessities. Drozinski v. Straub, 383 So. 2d 301 (Fla. 2d DCA 1980); In re Guardianship of Williams, 313 So. 2d 411 (Fla. 1st DCA 1975). The Florida Guardianship Law, F.S. Chapter 744, contemplates that, even after the death

of the ward, a guardian will continue to perform services and be able to access the guardianship estate, including jointly-titled funds, for the payment of professional fees and other necessary expenses. Romano v. Olshen, 153 So. 3d 912 (Fla. 4th DCA 2014). However, the making of withdrawals from a joint account is the exercise of a personal right and a guardian is not authorized to draw on those funds absent an order of the Guardianship court after a finding of need. Drozinski. In Metzger v. First National Bank of Clearwater, 585 So. 2d 372, 373 (Fla. 2d DCA 1991), the court affirmed as “entirely correct” an order entered in a guardianship proceeding providing that no money was to be disbursed from joint accounts owned by a husband and his incapacitated wife absent a court order, and that the husband and the guardian of his wife’s property had the right to draw on those accounts only on a showing of need, as determined by the guardianship court. With regard to the severance of joint tenancies and tenancies by the entireties, see §§ 5.2.C.2.b and § 5.2.D.2.b. « Ch. 5 », « § 5.4 », « B •, « 3 •, « h • 1 Litigation Under FL Probate Code § 5.4.B.3.h (2022)

h. Convenience Accounts Much confusion and litigation has resulted from the use of joint checking and savings accounts as convenience accounts, when the depositor merely intended to have one or more other persons be authorized to make deposits to and withdrawals from the account on behalf of and for the convenience of the depositor, rather than intending to transfer any present interest in the account to the other person or creating a right of survivorship. In such cases, the creation of a joint account for the convenience of the depositor is inconsistent with the essential requirement of present or future donative intent and there is no valid gift, although the documents used in connection with the creation of joint accounts frequently indicate that joint ownership and survivorship are intended. See Spark v. Canny, 88 So. 2d 307 (Fla. 1956). For this reason, the ownership of funds on deposit at the death of the depositor is the subject of frequent litigation between the depositor’s estate and the other person or persons named on the account. The appropriate method of implementing the depositor’s intent to

establish a convenience account is by use of a power of attorney in conjunction with the depositor’s individual account, or by the creation of a statutory convenience account under F.S. 655.80, which provides for the creation of convenience accounts (other than certificates of deposit) in the name of one individual who is the principal, and in which one or more other individuals are designated as agents with limited authority to make deposits and to withdraw funds from such accounts, which are the sole property of the principal and in which the agents have no interest.

« Ch. 5 », « § 5.5 » 1 Litigation Under FL Probate Code § 5.5 (2022)

§ 5.5. TOTTEN TRUST ACCOUNTS « Ch. 5 », « § 5.5 », • A » 1 Litigation Under FL Probate Code § 5.5.A (2022)

A. Creation And Characteristics In 1956, the Florida Supreme Court adopted the “Totten” or “tentative” trust doctrine from the New York case of In re Totten, 71 N.E. 748 (N.Y. 1904). Totten explains the operation and effect of the doctrine as follows: A deposit by one person of his [or her] own money in his [or her] own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his [or her] lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. Id. at 752. Subsequent Florida case law has reaffirmed the Totten trust doctrine in its totality, including the principle that such a deposit or account merely creates a rebuttable presumption that an absolute trust is to be created as to the account balance on hand at the death of the depositor. Vargas v. Vargas, 659 So. 2d 1164 (Fla. 3d DCA 1995); Lopez v. Rodriguez, 574 So. 2d 249 (Fla. 3d DCA 1991); Serpa v. North Ridge Bank, 547 So. 2d 199 (Fla. 4th DCA 1989); Litsey v. First Federal Savings & Loan Association of Tampa, 243 So. 2d 239 (Fla. 2d DCA 1971), 46 A.L.R. 3d 477; First National Bank of Tampa v. First Federal Savings & Loan Association of Tampa, 196 So. 2d 211 (Fla. 2d DCA 1967); Valdes v. Muniz, 164 So. 2d 876 (Fla. 2d DCA 1964). The Florida Trust Code, F.S. Chapter 736, is not applicable to Totten trust accounts. F.S. 736.0102(2). The depositor of a Totten trust account maintains complete dominion and

control over the account during his or her lifetime. Saporta v. Saporta, 766 So. 2d 379 (Fla. 3d DCA 2000). The depositor may withdraw from the account without constraint and the prospective beneficiary has no standing to object. Beane v. SunTrust Banks, Inc., 47 So. 3d 922 (Fla. 4th DCA 2010). Because of this control, the depositor is regarded as the owner insofar as his or her creditors are concerned, and they can reach the deposit while the depositor is living and, under a revocation theory, as a part of the depositor’s estate on death if there are insufficient probate assets to otherwise settle claims against the estate (i.e., if the trust is revoked as a matter of law). Kearney v. Unibay Co., 466 So. 2d 271 (Fla. 4th DCA 1985); RESTATEMENT (SECOND) OF TRUSTS § 58 Comment d (ALI 1959). A beneficiary’s interest in a Totten trust account is clearly testamentary in nature and the Totten or tentative trust doctrine is an exception to the Statute of Wills. Ownership vests in the beneficiary only on the owner’s death. Saporta. The beneficiary of a Totten trust does not have any control over ownership of the trust property until the owner’s death. Ullman v. Garcia, 645 So. 2d 168 (Fla. 3d DCA 1994). The interest of the designated beneficiary is merely tentative and does not vest until the death of the depositor, survived by the beneficiary. Nahar v. Nahar, 656 So. 2d 225 (Fla. 3d DCA 1995). On death, Totten trust accounts pass directly to the beneficiary and not to the owner’s estate and are not subject to probate or liable for the estate’s costs of administration, unless there is an effective revocation (see § 5.5.B). Id.; Nahar v. Nahar, 576 So. 2d 862 (Fla. 3d DCA 1991). The Totten trust doctrine is a firmly established rule of law in Florida, Litsey, and has even been codified by statute on more than one occasion. It was first codified in 1992, by F.S. 655.81(1), which provided that: When a deposit is made by any person describing himself as, and making such deposit as, trustee for another and no other or further notice of the existence and terms of a legal and valid trust than such description has been given in writing to the institution, the deposit or any part thereof, together with the dividends or interest thereon, may, in the event of the death of the person so described as trustee, be paid to the person for whom the deposit was thus stated to have been made.

In 1994, the Florida Legislature enacted a second “pay-on-death” (POD) statute (F.S. 655.82) containing a comprehensive framework for specifying, determining, and regulating the right of access of various classes or categories of interested persons (i.e., depositors/owners and beneficiaries) to funds on deposit in financial institution accounts on the basis of specific designations made by the depositor in a contract of deposit. In 2001, the Totten trust statute (F.S. 655.81), which had initially codified the “tentative trust doctrine,” in 1992, was repealed and replaced by the more comprehensive 1994 “pay-on-death” statute (F.S. 655.82) and F.S. 655.825 (deposits in trust; applicability of F.S. 655.82 in place of former F.S. 655.81. The relationship between Totten trust accounts and pay-on-death accounts is reflected in F.S. 655.825(1), which provides that: Because deposits in trust are also accounts with a pay-on-death designation as described in [F.S.] 655.82, it is the intent of the Legislature that the provisions of [F.S.] 655.82 shall apply to and govern deposits in trust. References to former [F.S.] 655.81 in any depository agreement shall be interpreted after the effective date of this act as references to [F.S.] 655.82. « Ch. 5 », « § 5.5 », « B • 1 Litigation Under FL Probate Code § 5.5.B (2022)

B. Revocation Insofar as a Totten trust is merely a tentative trust, it is revocable at the will of the depositor/owner/grantor at any time before his or her death. Barnard v. Gunter, 625 So. 2d 56 (Fla. 3d DCA 1993). Partial revocation occurs every time there is a withdrawal by the depositor. Serpa v. North Ridge Bank, 547 So. 2d 199 (Fla. 4th DCA 1989). Upon revocation of a Totten trust account, the tentative interest of the beneficiary is terminated. Barnard. No formalities are required for the revocation of a Totten trust and, indeed, the owner may revoke it at any time by any decisive act of disaffirmance. Vargas v. Vargas, 659 So. 2d 1164 (Fla. 3d DCA 1995). An agreement between the owner and the financial institution specifying the method for changing title to the account is solely for the protection of the bank and is not a limitation on the owner’s power to revoke. Id. “[A] bank’s failure or neglect to effectuate the requested title change pursuant to its

internal procedures cannot serve to limit the power of an owner to revoke a Totten Trust by any decisive act of disaffirmance.” Id. at 1166. The following acts or circumstances are sufficient to terminate or revoke a Totten trust: An oral declaration of revocation or disaffirmance by the depositor, although the burden on one seeking to prove revocation by oral statements alone is exceedingly heavy. Vargas; Serpa. A provision in the owner’s will that clearly evinces an intention to revoke the trust, such as a specific disposition of the Totten trust funds. However, language of a general nature, such as a devise of “any and all funds on deposit” or a residuary devise (even if it includes “my bank accounts”) is insufficient to manifest the requisite intention to revoke. Serpa. The inadequacy of the depositor’s probate assets to satisfy the testamentary gifts, funeral and administration expenses, taxes, and other charges. Id. See Kearney v. Unibay Co., 466 So. 2d 271 (Fla. 4th DCA 1985); RESTATEMENT (SECOND) OF TRUSTS § 58 Comment d (ALI 1959). The depositor’s delivery of the Totten trust passbook to a third party, or the owner’s delivery to the bank of a letter authorizing transfer of the Totten trust account to a third party. Vargas. The depositor’s delivery to an attorney of a document expressly revoking a Totten trust, even though the document was not published during the owner’s lifetime. Terner v. Rand, 417 So. 2d 303 (Fla. 3d DCA 1982). The dissolution of marriage where one spouse is the depositor, and the other spouse is the beneficiary. F.S. 732.703. A Florida circuit court, citing Serpa, has held that a Totten trust is revoked, as a matter of law, if the estate assets are insufficient to pay administrative, funeral, and medical expenses, and may be revoked by the owner’s oral declaration and conduct. Rice v. Schember, 15 FLW C17 (Fla. 6th Jur. Cir. Pinellas Co. 1990). Similarly, Comments d and e of § 58 of the Restatement state that:

[C]reditors of a person who makes a savings deposit upon a tentative trust can reach his interest, since he has such extensive powers over the deposit as to justify treating him as in substance the unrestricted owner of the deposit. So also, on the death of the depositor if the deposit is needed for the payment of his debts, his creditors can reach it. So also, if it is needed it can be applied to the payment of his funeral expenses and the expenses of the administration of his estate, if he has not sufficient other property which can be applied for these purposes. * * * [Also], the surviving spouse of a person who makes a savings deposit upon a tentative trust can include the deposit in computing the share to which such surviving spouse is entitled. The incapacity of the depositor does not revoke or terminate the trust account, although the depositor’s guardian may be authorized by the court to access the funds on deposit in such an account if it is necessary for the ward’s proper care and support. First National Bank of Tampa v. First Federal Savings & Loan Ass’n of Tampa, 196 So. 2d 211 (Fla. 2d DCA 1967). When a Totten trust account is created by two depositors who designate themselves as co-trustees for a named beneficiary, the depositors are coowners with right of survivorship until the death of one, at which time the surviving depositor becomes sole owner, with all of the rights that the two depositors previously held jointly, including the right to revoke the trust. Barnard. It appears that a co-owner may not unilaterally revoke the trust during the life of the other co-owner unless the documentation pertaining to the account confers that right. However, when a Totten trust account is opened by one owner with his or her funds, in the names of the owner and another person as trustees for a named beneficiary under circumstances in which the owner did not intend to relinquish any control or make a gift or confer any survivorship rights in favor of the cotrustee, the cotrustee has no beneficial interest in the account and no power to revoke the trust and, on the death of the depositor, the account should be held in trust until the death of the surviving cotrustee, at which time it should be paid to the named beneficiary. Abbale v. Lopez, 511 So. 2d 340 (Fla. 3d DCA 1987). In the case of a Totten trust account established by two depositors as a

tenancy by the entireties or a joint tenancy with right of survivorship “in trust for” a third party, and notwithstanding the contractual right of each depositor to withdraw from the account, the interest of each depositor in the funds will continue when they are withdrawn by the other owner and appropriated to his or her own use without the consent of both, and the interest of the beneficiary will continue until it is properly revoked or until the death of the surviving depositor, at which time the beneficiary becomes the owner of the remaining funds. In re Guardianship of Medley, 573 So. 2d 892 (Fla. 2d DCA 1991), disapproved on other grounds 780 So. 2d 45. In the case of a Totten trust with two owners, the murder of one by the other will not revoke the trust so as to terminate the interest of the innocent beneficiary. Lopez v. Rodriguez, 574 So. 2d 249 (Fla. 3d DCA 1991). A decision from the New York Court of Appeals (the same court that decided the landmark case of In re Totten, 71 N.E. 748 (N.Y. 1904)) held that a spouse who broadly waived property rights in a separation agreement was nevertheless entitled to the proceeds of Totten trust accounts kept by her former husband. At the former husband’s death, the former wife claimed the proceeds on the basis that the former husband had never revoked the trusts. The court upheld the wife’s claim, holding that the broad language of the separation agreement regarding final division of all items of property owned by the parties did not contain an explicit waiver of beneficiary status in the Totten trust accounts. Eredics v. Chase Manhattan Bank, N.A., 790 N.E.2d 1166 (N.Y. 2003). See also Cooper v. Muccitelli, 682 So. 2d 77 (Fla. 1996); Smith v. Smith, 919 So. 2d 525 (Fla. 5th DCA 2006); Luszcz v. Lavoie, 787 So. 2d 245 (Fla. 2d DCA 2001).

« Ch. 5 », « § 5.6 • 1 Litigation Under FL Probate Code § 5.6 (2022)

§ 5.6. FLORIDA UNIFORM TRANSFER-ONDEATH SECURITY REGISTRATION ACT In 1994, in addition to enacting the “pay-on-death” (POD) statute (F.S. 655.82), the Legislature also adopted the Florida Uniform Transfer-on-Death Security Registration Act, codified as F.S. 711.50–711.512. The Act applies to any “security” that is “registered” in “beneficiary form” by owners dying on or after January 1, 1995. F.S. 711.512. The essence of the Act is that, on the death of a sole owner, or the last to die of all multiple owners, the ownership of any security that is registered in beneficiary form passes to the designated beneficiary or beneficiaries who survive all owners. F.S. 711.507. The Act broadly defines “security” to include any interest in real or personal property that may be the subject of ownership. F.S. 711.501(6), (9). “Register” means to issue a certificate showing the ownership of a security, or to initiate or transfer an account showing ownership of securities. F.S. 711.501(7). “Beneficiary form” means a registration of a security that indicates the present owners of the security and their intention regarding the beneficiary or beneficiaries who will become the owners of the security upon the death of the present owners. F.S. 711.501(1). A security “is registered in beneficiary form when the registration includes a designation of a beneficiary to take the ownership at the death of the owner or the deaths of all multiple owners.” F.S. 711.504. “Registration in beneficiary form may be shown by the words ‘transfer on death’ or the abbreviation ‘TOD,’ or by the words ‘pay on death’ or the abbreviation ‘POD,’ after the name of the registered owner and before the name of a beneficiary.” F.S. 711.505. Illustrations of various registrations in beneficiary form are set forth in F.S. 711.51(2). Substitution of beneficiaries may be indicated by appending the letters “LDPS” (lineal descendants per stirpes) to the name of the primary beneficiary. Such a designation “substitutes a deceased beneficiary’s descendants who survive the owner for a beneficiary who fails to so survive, the descendants to be identified and to share in accordance with the law of the beneficiary’s domicile at the owner’s

death governing inheritance by descendants of an intestate.” F.S. 711.51(1). Just as in the case of a Totten trust or pay-on-death account, “[t]he designation of a transfer-on-death beneficiary on a registration in beneficiary form has no effect on ownership until the owner’s death,” and “[a] registration of a security in beneficiary form may be canceled or changed at any time by the sole owner or all then-surviving owners without the consent of the beneficiary.” F.S. 711.506. A transfer-on-death designation is a will substitute that has no effect until the death of the owner insofar as it does not transfer ownership of funds to a beneficiary until the owner’s death. Keul v. Hodges Blvd. Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015). Registration in beneficiary form may be obtained only in cases of sole ownership by one individual or multiple ownership as joint tenants with right of survivorship, as tenants by the entireties, or as owners of community property held in survivorship form, and not as tenants in common. F.S. 711.502. “Until division of the security after the death of all owners, multiple beneficiaries surviving the death of all owners hold their interests as tenants in common. If no beneficiary survives the death of all owners, the security belongs to the estate of the deceased sole owner or the estate of the last to die of all multiple owners.” F.S. 711.507. The application of the Act clearly contemplates the presence of three parties: the owner, the registering entity, and the beneficiary. The legal effect of the registration in beneficiary form is based on the theory of contract between the owner and the registering entity. F.S. 711.508(1)–(2), 711.509(1), 711.51(1). Footnotes — Chapter 5: *

J.D., 1968, Stetson University. Mr. Belcher is a member of The Florida Bar. He is the former Chair of the Real Property, Probate and Trust Law Section of The Florida Bar, and the Probate and Trust Litigation Committee. Mr. Belcher is also a former Fellow of the American College of Trust and Estate Counsel. He practices in St. Petersburg.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 6 » 1 Litigation Under FL Probate Code Ch. 6 (2022)

Chapter 6 CREDITORS’ CLAIMS PAMELA O. PRICE* Contents § 6.1. INTRODUCTION § 6.2. THREE-MONTH/THIRTY-DAY CLAIM STATUTE A. In General B. Jurisdictional Statute Of Nonclaim Versus Statute Of Limitations 1. Significance Of Issue 2. Pre-May Decision 3. May Decision 4. Post-May Decision C. Extension Of Time For Filing Claim § 6.3. TWO-YEAR NONCLAIM STATUTE A. In General B. Notice § 6.4. CLAIMS AGAINST REVOCABLE TRUSTS § 6.5. OBJECTIONS A. Statutory Requirements B. Service Of Objection C. Failure To Serve Objection D. Extension Of Time For Filing Or Serving Objection 1. In General 2. Good Cause E. Failure To File Objection § 6.6. INDEPENDENT ACTION A. Statutory Requirement

B. Failure To File Independent Action C. Time For Filing Independent Action D. Extension Of Time For Filing Independent Action 1. In General 2. Good Cause E. Where Independent Action Must Be Brought F. Necessary Parties G. Notice Of Independent Action H. Action Pending At Death I. Priority Of Judgment § 6.7. PAYMENT OF CLAIMS A. Petition For Compulsory Payment B. Interest C. Attorneys’ Fees § 6.8. ACTION WHEN NO CLAIM FILED A. Liens On Specific Property; Counterclaims; Insurance B. Trust Claims § 6.9. EXECUTIONS AND LEVIES § 6.10. TOLLING STATUTE OF LIMITATIONS § 6.11. APPEALS « Ch. 6 », • § 6.1 » 1 Litigation Under FL Probate Code § 6.1 (2022)

§ 6.1. INTRODUCTION This chapter deals with contested creditors’ claims. For a discussion of claims generally, including what claims must be filed, and when and where they must be filed, see Chapter 8 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022).

« Ch. 6 », « § 6.2 » 1 Litigation Under FL Probate Code § 6.2 (2022)

§ 6.2. THREE-MONTH/THIRTY-DAY CLAIM STATUTE « Ch. 6 », « § 6.2 », • A » 1 Litigation Under FL Probate Code § 6.2.A (2022)

A. In General Generally speaking, claims against a decedent’s estate are barred if not filed in the probate proceeding on or before the later of the date that is 3 months after … first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor, even though the personal representative has recognized the claim or demand by paying a part of it or interest on it or otherwise. F.S. 733.702(1). See Fla. Prob. R. 5.490. An attorney filing a creditor claim must do so electronically. Fla. R. Gen. Prac. & Jud. Admin. 2.520(a), 2.525. The timely submission of a document to the clerk will not excuse an attorney’s failure to timely file the claim electronically. United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA 2016) (noncompliance Rule 2.520(f) governing technical requirements for filing of documents applied only to paper documents that fell within exception to mandatory electronic filing rule). Claims that must be filed include claims of the state and its subdivisions, claims that are due, claims that are not yet due, contingent claims, claims for funeral and burial expenses, claims for personal property in the possession of the personal representative, claims for community property, and claims for damages, including, but not limited to, an action founded on fraud or other wrongful act or omission of the decedent. F.S. 733.702(1). See Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018). F.S. 733.702(3) provides that any claim that is not timely filed “is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed. An extension may be granted only upon

grounds of fraud, estoppel, or insufficient notice of the claims period.” To obtain an extension of the period for filing claims, both the claim and the motion for an extension must be filed before the expiration of the two-year limitations period under F.S. 733.710. May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000); Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009). However, the Florida Supreme Court has held it is necessary for an ascertainable creditor, who was not served with notice to creditors, to file for an extension of time to file a claim because the claim is timely if filed within two years after the decedent’s death under F.S. 733.710. See Jones v. Golden, 176 So. 3d 242 (Fla. 2015). The burden is on the creditor to establish it is a reasonably ascertainable creditor. Cantero v. Caswell, 305 So. 3d 37 (Fla. 3d DCA 2019). See § 6.2.C for a detailed discussion of the motion for extension of time for filing claims. A claim must be filed even if there is an action pending against the decedent at the time of the decedent’s death. F.S. 733.702(2) provides that no cause of action will survive the death of the person against whom the claim may be made, whether or not an action is pending at the death of the person, unless the claim is filed within the time required by F.S. 733.701–733.710. No independent action or declaratory action may be brought on a claim that was not timely filed unless the probate court grants an extension of time to file the claim. F.S. 733.702(3). Claims must be filed in the probate proceeding. Although former F.S. 733.16(1) permitted the filing of a lawsuit as an alternative to the filing of a claim in the probate action, this provision was repealed before the revision of the Florida Probate Code in 1976. The Florida Supreme Court has held that the filing of an independent action before the expiration of the nonclaim period, when no claim was filed in the probate proceeding, was not sufficient compliance with the claim-filing requirements of F.S. 733.702, thus barring the claim. Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991). See also In re Estate of Danese, 641 So. 2d 423 (Fla. 1st DCA 1994). Furthermore, the pendency of an action at the time of death and the substitution of the personal representative does not relieve the creditor of the claim-filing requirement. F.S. 733.702(2). Baillargeon v. Sewell, 33 So. 3d 130 (Fla. 2d DCA 2010). Even if a decedent was a party to a binding arbitration agreement, the claimant is not relieved of the necessity of filing a claim in the probate court. Wylie v. Investment Management & Research Inc., 629 So. 2d 898 (Fla. 4th

DCA 1994). After the court in Agency for Health Care Administration v. Estate of Johnson, 743 So. 2d 83 (Fla. 3d DCA 1999), held that a lien filed in the public records constituted a claim, F.S. 733.702(1) was amended to expressly provide that the claim must be filed in the probate proceeding. See May. Neither the Florida Statutes nor the Florida Probate Rules expressly address class action claims, but this issue has been considered by the courts. In Baillargeon, the court held that the probate code does not authorize the filing of class action claims. A member of a class may not file a claim on behalf of unknown members; rather, each creditor must file its own claim. A claim may not be amended after the nonclaim period to add the names and addresses of additional creditors. In re Estate of Gay, 294 So. 2d 668 (Fla. 4th DCA 1974). A timely filed claim may be amended as long as it is a mere change in form. It may not be amended to add new causes of actions or new claims. See In re Estate of Grist, 83 So. 2d 860 (Fla. 1955), 56 A.L.R. 2d 623; Black v. Walker, 140 Fla. 48, 191 So. 25 (1939); Estate of Shearer ex rel. Shearer v. Agency for Health Care Administration, 737 So. 2d 1229 (Fla. 5th DCA 1999). A timely filed claim may not be amended to add additional creditors. Baillargeon. In In re Estate of Barnett, 549 So. 2d 1166 (Fla. 4th DCA 1989), the court held that the 30-day limit on filing claims following service of the notice of administration on a creditor, if ending after the three-month publication period, was constitutional. “Notice of administration” has since been replaced by “notice to creditors,” but the result is the same. F.S. 733.702. « Ch. 6 », « § 6.2 », « B » 1 Litigation Under FL Probate Code § 6.2.B (2022)

B. Jurisdictional Statute Of Nonclaim Versus Statute Of Limitations « Ch. 6 », « § 6.2 », « B », • 1 » 1 Litigation Under FL Probate Code § 6.2.B.1 (2022)

1. Significance Of Issue A statute of limitations bars untimely claims only if a party asserts the

operation of the statute of limitations as an affirmative defense, whereas a statute of nonclaim is jurisdictional and operates as an automatic bar to untimely claims. Thames v. Jackson, 598 So. 2d 121 (Fla. 1st DCA 1992), disagreed with on other grounds 771 So. 2d 1143. Failure to plead that the statute of limitations has expired constitutes waiver. The Florida Supreme Court has “held that [F.S.] 733.702 is a statute of limitations and that [F.S.] 733.710 is a jurisdictional statute of nonclaim, which cannot be waived or extended.” Jones v. Golden, 176 So. 3d 242, 245 (Fla. 2015), citing May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000). « Ch. 6 », « § 6.2 », « B », « 2 » 1 Litigation Under FL Probate Code § 6.2.B.2 (2022)

2. Pre-May Decision The Florida Supreme Court historically held that F.S. 733.702, as it related to the timely filing of claims, was not a jurisdictional statute of nonclaim, but a statute of limitations. Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986). In Barnett, the personal representative confirmed to the creditor, Barnett Bank, both verbally and in writing, that it would pay the bank’s note without the necessity of its filing a formal claim. When the debt was not paid, the bank filed its claim; this filing was well after the expiration of the time-period for filing claims. The personal representative did not respond to the claim and did nothing until after the bank obtained an ex parte order from the trial court requiring the personal representative to pay the claim. It is noteworthy that the personal representative did not even file a petition for rehearing after the entry of the ex parte order. In holding that the statute was a statute of limitations, the court pointed out that a claim filed after the statute of limitations has run is barred only if the statute of limitations is raised as an affirmative defense or appears on the face of a prior pleading, such as a motion to strike or dismiss, or by way of objection. The creditor, if such a defense is raised, would then have an opportunity to file a reply containing an avoidance, such as estoppel or fraud, under Fla. R. Civ. P. 1.100. In Barnett, the personal representative failed to raise the affirmative defense of the statute of limitations at the trial level and thus waived the defense. The Florida Legislature amended F.S. 733.702 and 733.705 in 1988 and

again in 1989 in response to Barnett and Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). Chs. 88-340, § 6, 89-340, § 5, Laws of Fla. Pope was codified and F.S. 733.702 was made self-operating to bar a late-filed claim unless the creditor came forward to request and obtain an extension of time to file the claim. This would then prohibit what happened in Barnett, when the creditor got an order requiring that its claim be paid without notice to the personal representative. The amendments to F.S. 733.702 restricted the grounds for extending the time to file claims to insufficient notice (Pope) and the traditional grounds of fraud and estoppel. See Adams v. Hackensack Trust Co., 156 Fla. 20, 22 So. 2d 392 (1945); Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961). See also Chapter 8 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022). « Ch. 6 », « § 6.2 », « B », « 3 » 1 Litigation Under FL Probate Code § 6.2.B.3 (2022)

3. May Decision Following the 1988 and 1989 amendments to F.S. 733.702, the Florida Supreme Court considered this issue again in May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000). In May, the Florida Supreme Court answered the following certified question: WHETHER SECTION 733.702 AND SECTION 733.710 OF THE FLORIDA STATUTES CONSIDERED SEPARATELY AND/OR TOGETHER OPERATE AS STATUTES OF NONCLAIM SO THAT IF NO STATUTORY EXCEPTION EXISTS, CLAIMS NOT FORMALLY PRESENTED WITHIN THE DESIGNATED TIME PERIOD ARE NOT BINDING ON THE ESTATE, OR DO THEY ACT AS STATUTES OF LIMITATIONS WHICH MUST BE PLEADED AND PROVED AS AFFIRMATIVE DEFENSES IN ORDER TO AVOID WAIVER. Id. at 1145. The court in May stated that, though it continues to hold as it did in Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986), F.S. 733.702 is a statute of limitations, F.S. 733.702 “operates to bar untimely claims against an estate even if the [failure to timely file the claim] is not asserted in an objection in the probate proceedings on the basis of

timeliness.” May, 771 So. 2d at 1153. The court further held that F.S. 733.710 is a jurisdictional statute of nonclaim, which cannot be waived or extended. In May, the creditor individually and as personal representative of his wife’s estate, obtained the appointment of an administrator ad litem for the deceased tortfeasor before the appointment of a personal representative for the deceased tortfeasor so the creditor could pursue his personal injury action and a wrongful death action against the deceased tortfeasor. After the commencement of the personal injury/wrongful death action, relatives of the deceased tortfeasor petitioned for appointment as personal representatives. The creditor then petitioned to have the administrator ad litem appointed as personal representative of the tortfeasor’s estate, and in the petition recited the creditor’s actions for personal injury and wrongful death. The relatives of the deceased tortfeasor were appointed co-personal representatives of his estate and published notice of administration approximately 22 months after the date of his death. The creditor filed a formal claim in the estate proceedings more than three months after the first publication of notice of administration and more than two years after the decedent’s death. The copersonal representatives then filed a proof of claim admitting the creditor’s claim in an “undetermined amount.” Thereafter, judgment of liability was entered against the deceased tortfeasor and the car owner for $1,106,522.70 in the separately pending personal injury/wrongful death action. Later, the copersonal representatives paid the balance of the estate assets ($2,648.44) to the creditor and were discharged by the probate court. Following the conclusion of the personal injury/wrongful death action and after the discharge of the co-personal representatives, the administrator ad litem of the deceased tortfeasor’s estate filed a bad-faith action in circuit court against the insurer (INIC) for the deceased tortfeasor. This action was removed to federal court. The deceased tortfeasor’s insurer defended on the grounds that the creditor did not file a timely claim against the estate in the probate proceeding. It is not clear whether the creditor was served with a copy of the notice of administration; however, the federal district court found that the creditor had actual notice of the administration of the tortfeasor’s estate. The insurer argued that because the tortfeasor’s estate had no liability for the claims, it had no liability to the creditor arising out of a bad-faith claim.

The administrator ad litem asserted that (1) the creditor’s petition for appointment of an administrator ad litem and counterpetition of administration filed in the deceased tortfeasor’s probate proceedings satisfied F.S. 733.703 and provided sufficient notice of the claim under F.S. 733.702 and 733.710; (2) the co-personal representatives waived the time limitations of F.S. 733.702 and 733.710 by failing to raise noncompliance with those statutes as an affirmative defense in the personal injury/wrongful death action, by filing a proof of claim, and by making partial payment on the claim; and (3) even if the tortfeasor’s estate was not liable for the excess judgment, the potential bad-faith action was an asset of the estate that the estate’s representatives were obligated to collect on behalf of creditors. In answering the certified question, the Florida Supreme Court held that F.S. 733.702(3) operates to bar untimely claims against an estate, even if the time period set forth in F.S. 733.702(1) is not asserted in an objection in the probate proceedings on the basis of timeliness. However, the court further held that given the fact that the time period set forth in F.S. 733.702(1) may be extended based on fraud, estoppel, or insufficient notice, F.S. 733.702 serves as a statute of limitations, because a true jurisdictional statute of nonclaim cannot be extended. May, citing Barnett (determining that creditors would lose right to assert valid claims even if estoppel or fraud existed if F.S. 733.702 is statute of nonclaim), and Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163, 166 (Fla. 4th DCA 1996) (“jurisdictional statutes of nonclaim operate to bar untimely claims without any action by the opponent and deprive the court of the power to adjudicate them”). The Florida Supreme Court then stated that although F.S. 733.702 operates to bar untimely claims against an estate, even if an objection is not asserted in the probate proceedings, F.S. 733.702(1) is waived in a separate action outside of the probate proceedings if not raised as an affirmative defense. Such waiver in a separate action does not necessarily render a judgment obtained in that action recoverable from an estate, however, because section 733.706, Florida Statutes (1991), provides: Except upon approval by the court, no execution or other process shall issue on or be levied against property of the estate. An order

approving execution or other process to be levied against property of the estate may be entered only in the estate administration proceeding. Claims on all judgments against a decedent shall be filed in the same manner as other claims against estates of decedents. This section shall not be construed to prevent the enforcement of mortgages, security interests, or liens encumbering specific property. * * * Thus, the ultimate result where an estate waives or does not affirmatively assert the protection of section 733.702 in a separate action and an adverse party obtains a judgment against the estate in that action, but has not filed a timely claim against the estate in the probate proceedings, is that the sole possibility for recovery against the estate is for the probate court to grant an extension of time for the filing of a claim on the grounds of fraud, estoppel, or insufficient notice. May, 771 So. 2d at 1154. The court explained that when the time period for filing claims in the probate proceeding has not yet expired when the answer is filed in the separate action, the party relying on the statute should move to allow the filing of a supplemental pleading to assert the statute as an affirmative defense. May, citing Fla. R. Civ. P. 1.190(d) and (e). The court in May held that F.S. 733.710 is a jurisdictional statute of nonclaim, which is not subject to waiver or extension in the probate proceedings. The intent of the legislature in the wake of Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988), was to create a self-executing statute of repose. Specifically, the court stated: “Clearly, section 733.710 creates a self-executing, absolute immunity to claims filed for the first time, as here, more than 2 years after the death of the person whose estate is undergoing probate. It does not depend on the [personal representative] timely objecting to a late claim, and the claimant cannot avoid it by showing, as he could for the nonclaim period under section 733.702, fraud or estoppel or insufficiency of notice. The absence of a provision authorizing enlargements of the repose period, together with the provision in section 733.702(5) negating any use of the

enlargement provision to extend the repose period, make it clear to us that the lapse of the 2-year period erects an absolute jurisdictional bar to latefiled claims that the probate judge lacks the power to ignore. It obviously represents a decision by the legislature that 2 years from the date of death is the outside time limit to which a decedent’s estate in Florida should be exposed by claims on the decedent’s assets.” May, 771 So. 2d at 1156, quoting Comerica, 673 So. 2d at 165–167. (The practitioner should note that F.S. 733.702(5) (1991) was renumbered 733.702(6), but then redesignated as 733.702(5), effective January 1, 2009. See Ch. 2006-312, § 26, Laws of Fla. and Ch. 2010-4, § 21, Laws of Fla.) The court stated that the estate may waive the time period set forth in section 733.710 in a separate action outside of the probate proceedings. However, unlike section 733.702, a creditor that has obtained a judgment in a separate action cannot recover against the estate unless the creditor has filed a claim in the probate proceedings within two years of the decedent’s death. This is so because the probate court lacks the authority to extend the time period set forth in section 733.710. May, 771 So. 2d at 1157 n.12. In applying F.S. 733.702 and 733.710 to the facts of the case, the Florida Supreme Court held that the petition for administrator ad litem and the counter-petition for appointment as personal representative substantially satisfied the requirements of Fla. Prob. R. 5.490(a) regarding the form of claims, pointing out that if the form of a claim is defective, it may be amended. F.S. 733.704; Rule 5.490(e). The filing of these petitions (constituting a claim) occurred within two years of the deceased tortfeasor’s death and therefore satisfied the requirement of F.S. 733.710. The court held that the time limit of F.S. 733.702 was not met because it required claims to be filed within three months after the publication of notice of administration, and the petitions constituting the claims were filed before notice of administration was published. The court specifically mentioned that it expressed no opinion regarding any possible problems with the representative proceedings used in the probate proceeding and the personal injury/wrongful death action because

they were not raised by the parties. May. To summarize, the Florida Supreme Court in May held that: (1) section 733.702, Florida Statutes (1991) is a statute of limitations that bars untimely claims even if the issue of timeliness is not asserted in an objection in the probate proceedings, but that such limitation may be extended by the probate court based on fraud, estoppel, or insufficient notice; [and] (2) section 733.710 Florida Statutes (1991), is a jurisdictional statute of nonclaim that is not subject to waiver or extension in the probate proceedings. May v. Illinois National Insurance, 245 F.3d 1281, 1282 (11th Cir. 2001). « Ch. 6 », « § 6.2 », « B », « 4 • 1 Litigation Under FL Probate Code § 6.2.B.4 (2022)

4. Post-May Decision After the Florida Supreme Court’s decision in May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000), the 2002 Legislature amended F.S. 733.702 to permit a claim to be filed before the notice to creditors is published as well. See In re Estate of Koshuba, 993 So. 2d 983 (Fla. 2d DCA 2007). The District Court of Appeal, Third District, recently emphasized that although May held that F.S. 733.702 “is a statute of limitations that cannot be waived in a probate proceeding by failure to object to a claim on timeliness grounds,” and F.S. 733.710 “is a jurisdictional statute of nonclaim that is not subject to waiver or extension in a probate proceeding,” May, 771 So. 2d at 1145, May is limited to actions brought in probate court against the estate. In re: Estate of Arroyo v. Infinity Indemnity Insurance Co., 211 So. 3d 240 (Fla. 3d DCA 2017). See also Dobal v. Perez, 809 So. 2d 78 (Fla. 3d DCA 2002), and In re Estate of Fleming, 786 So. 2d 660 (Fla. 4th DCA 2001), holding that F.S. 733.710 is a jurisdictional statute of nonclaim that cannot be waived or extended even for fraud. Most recently, the Florida Supreme Court addressed F.S. 733.702 and 733.710 in Jones v. Golden, 176 So. 3d 242 (Fla. 2015). In Jones, the court resolved a conflict between the Fourth District and the First and Second Districts, concluding that claims of known or reasonably ascertainable

creditors of an estate who were not served with a copy of the notice to creditors as required under F.S. 733.702 are timely if filed within the twoyear period of repose under F.S. 733.710. See § 6.2.C. « Ch. 6 », « § 6.2 », « C • 1 Litigation Under FL Probate Code § 6.2.C (2022)

C. Extension Of Time For Filing Claim As previously stated, in general, a claim against an estate must be filed “on or before the later of the date that is [three] months after … first publication of notice to creditors or … 30 days after the date of service on a creditor” who is required to be served. Known or reasonably ascertainable creditors are also required to be served with a copy of the notice to creditors. F.S. 733.702(1). The statute, therefore, provides two distinct and different limitation periods for the filing of claims against an estate: (1) for unknown and not reasonably ascertainable creditors, i.e., “unknown creditors”; and (2) for creditors “required to be served with a copy of the notice to creditors,” i.e., known or reasonably ascertainable creditors. Id. Jones v. Golden, 176 So. 3d 242 (Fla. 2015). The limitations period applicable to unknown creditors under F.S. 733.702(1) begins to run upon publication of the notice to creditors and ends three months after the date of the first publication. Jones. An unknown creditor who fails to file its claim within the applicable period set forth in F.S. 733.702(1) will be barred from recovery against the estate unless the creditor obtains an extension of time to file the claim. F.S. 733.702(3). Regardless, the claim must be filed before the date that is two years after the decedent’s death or it is barred. F.S. 733.710. The three-month time period begins to run on the date of first publication of notice to creditors, not the day after, and Fla. R. Gen. Prac. & Jud. Admin 2.514 does not apply since the statute specified the method of computing time. Herman v. Bennett, 278 So. 3d 178 (Fla. 1st DCA 2019). Under F.S. 733.702(3), a claim is barred if not timely filed, even when no objection is made, unless the court has granted an extension of time to file the claim if there is evidence of fraud, estoppel, or insufficient notice of the claims period. See Harbour House Properties, Inc. v. Estate of Stone, 443 So. 2d 136 (Fla. 3d DCA 1983) (estoppel); Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961) (same). Both the petition for extension of time to file a claim

and the claim should be filed before the expiration of the two-year period of F.S. 733.710 or the claim will be barred. Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009), citing May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000). In contrast, a known or reasonably ascertainable creditor who is not served with a copy of the notice to creditors may simply file its claim, provided the claim is filed before the expiration of the two-year period of F.S. 733.710. In this instance, an extension of time to file the claim is unnecessary because the claim period under F.S. 733.702(1) never begins to run. Jones. Regardless, F.S. 733.710 is a jurisdictional statute of nonclaim that cannot be extended, and limits claims against an estate to two years after the death of a decedent. See Lerma-Fusco v. Smith, 220 So. 3d 562 (Fla. 5th DCA 2017), citing Jones. Under F.S. 733.2121, a personal representative must make a diligent search for creditors who are reasonably ascertainable and promptly serve them with a copy of the notice to creditors. Although no time limit is specified for this search, if the personal representative subsequently learns of a creditor and does not wish to wait to the end of the two-year period to find out whether the creditor will file a claim, the personal representative must serve the creditor with a notice to file a claim during the time periods set forth in F.S. 733.702, or forever be barred. See also Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016). Insufficient notice of the claims period is a concept introduced by the United States Supreme Court in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988). Before Pope, notice to creditors by publication was considered sufficient in the administration of decedents’ estates. However, Pope held that notice by publication was not sufficient for due process purposes when the creditor was known or reasonably ascertainable. Creditors who were known or reasonably ascertainable were required to be given actual notice. This notice could be given by mail. Under Pope, a creditor who was not served with notice of administration but who was required by Pope to be so served, would not be barred by the three-month limitation after the publication of notice authorized by F.S. 733.702 (1987). See Thames v. Jackson, 598 So. 2d 121 (Fla. 1st DCA 1992), disagreed with 771 So. 2d 1143.

In response to Pope, the Florida Probate Rules were amended to require that the personal representative serve a copy of the notice of administration on all known creditors, Fla. Prob. R. 5.240(a), and to specify the requirements of a petition for extension of time, Rule 5.495. Rule 5.495 was subsequently deleted as it became unnecessary when F.S. 733.702 (1990) was amended to add insufficient notice of the claims period as a ground for the extension of time to file a claim. Notice of administration formerly served as notice to both creditors and beneficiaries. The 2001 Legislature separated the notice into two, “notice to creditors” for creditors and “notice of administration” for beneficiaries. Prior case law regarding the service and effect of notice of administration on creditors should apply to the replacement notice to creditors unless there has been a specific statutory change. See F.S. 733.2121 (notice to creditors) and Rule 5.241 (notice to creditors); F.S. 733.212 (notice of administration). In Jones v. Sun Bank/Miami, N.A., 609 So. 2d 98 (Fla. 3d DCA 1992), the court held that the mere possibility that a conjectural claimant would file a claim against the estate is insufficient to show that the claimant was a reasonably ascertainable creditor. The court determined that it is not the personal representative’s duty to speculate about a creditor’s status and refused to interpret Pope as requiring the personal representative to determine identities of persons or entities with whom a decedent had business dealings within several years before his death. In Jones, the creditor had purchased property from the decedent more than three years before the decedent’s death and had not notified the decedent of any potential claim. In U.S. Trust Company of Florida Savings Bank v. Haig, 694 So. 2d 769 (Fla. 4th DCA 1997), the District Court of Appeal, Fourth District, held that a contingent creditor holding a guaranty was not entitled to service of the notice of administration. In that case, the contingent claim was based on some future event to establish liability. The personal representative knew of the guaranty but had no knowledge that the creditor was asserting a claim. Later, in Miller v. Estate of Baer, 837 So. 2d 448 (Fla. 4th DCA 2003), the District Court of Appeal, Fourth District, held that there was no abuse of discretion when the trial court ruled that the creditor was known or reasonably ascertainable and the claim was not a contingent claim (which would not be entitled to notice under Haig) when the 1996 decedent was

liable as general partner and as guarantor for a debt of a partnership, and the death of the decedent constituted a default under the loan. Effective January 1, 2002, F.S. 733.212 was rewritten and F.S. 733.2121 was created to separate the notice of administration from the notice to creditors. At the same time, the notice to creditors provisions were amended and added a provision for unmatured, contingent, or unliquidated claims and now provides: The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors. Impracticable and extended searches are not required. [Emphasis added.] F.S. 733.2121(3)(a). This amendment was noted by the Miller court but was not applicable to that case. In Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876 (Fla. 4th DCA 2003), the court held that there was no abuse of discretion when the trial court ruled that a creditor who was listed in the decedent’s checkbook for the preceding year as receiving payments of $1,500 each quarter was entitled to be served with notice of administration. Quoting the Florida Supreme Court in Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980), the court stated that “ ‘[d]iscretion … is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.’ ” Strulowitz, 839 So. 2d at 881. The practitioner should note that Strulowitz was decided under the statutes and rules in effect in 2000; the 2002 amendments would not change this result. In Faerber v. D.G., 928 So. 2d 517 (Fla. 2d DCA 2006), a mere allegation by counsel that a potential plaintiff in a lawsuit against the decedent’s estate was reasonably ascertainable was held insufficient to justify such finding by the court. The issue was remanded for an evidentiary hearing to determine whether the identity of the complainant was known to or reasonably ascertainable by the personal representative. In Simpson v. Estate of Simpson, 922 So. 2d 1027 (Fla. 5th DCA 2006),

the probate court was not permitted to adjudicate the merits of a claim at the hearing on a petition to extend time to file a claim for insufficient notice of the claims period. In this case, the personal representative knew the identity of the claimant and the existence of the claim. The court held the merits of the claim should be determined in an independent action. Several courts have held that when a civil lawsuit is pending against the decedent at his or her death and the personal representative has actual knowledge of it, the personal representative is required to serve the creditor with notice of administration (now, notice to creditors). For example, in In re Estate of Ortolano, 766 So. 2d 330 (Fla. 4th DCA 2000), a creditor who had litigation pending against the decedent at the time of the decedent’s death was entitled to service of the notice of administration when the personal representative had actual knowledge of the pending litigation. The fact that the deceased’s liability had not yet been determined in the pending litigation did not make the claim contingent within the meaning of Haig, because the claim was known and did not depend on some future event. The court’s holding in Ortolano was also based on estoppel due to the failure of the personal representatives to file a suggestion of death in the ongoing civil suit under Fla. R. Civ. P. 1.260(a)(2), or otherwise notify the plaintiff of the defendant’s death. In citing Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961), the court stated: “Where the legal representative of the decedent’s estate has knowledge of the pendency of a suit against the deceased, it has the duty to inform the attorneys of record of the decedent’s death.” Ortolano, 766 So. 2d at 332. Similarly, in Foster v. Cianci, 773 So. 2d 1181 (Fla. 2d DCA 2000), the court held that the personal representative of an estate, who had knowledge of a personal injury claim against the decedent, was not relieved of the responsibility to provide actual notice of the necessity of filing her claim in the probate proceeding. Because of the pending litigation, the claim was not contingent. The practitioner should note that following the 2002 amendment to F.S. 733.2121, the contingent nature of a claim is no longer an issue; service of notice to known or reasonable ascertainable creditors is required regardless of whether the claim is contingent. See, e.g., Longmire v. Estate of Ruffin, 909 So. 2d 443 (Fla. 4th DCA 2005) (actual notice was required when creditor

was co-plaintiff with decedent, but facts gave rise to crossclaim in personal injury action; because of pending litigation, claim was not contingent claim). See also Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010) (service of notice to creditors on creditor’s “personal injury” attorney representing creditor in personal injury action against decedent was sufficient; court noted that creditor had actual notice). However, service of notice to creditors is not required for “conjectural” claims. See, e.g., Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015) (creditor who did not notify decedent, decedent’s counsel, or decedent’s wife of claim against decedent’s estate for tort action was not reasonably ascertainable creditor entitled to personal service of notice to creditors but was merely “conjectural” creditor). The District Court of Appeal, Fourth District, again visited this issue in Longmire. The court held that a personal injury claim was not a contingent claim and actual notice was required when the creditor was a co-plaintiff with the decedent, but the facts gave rise to a crossclaim. The District Court of Appeal, Second District, in Foster v. Cianci, 773 So. 2d 1181 (Fla. 2d DCA 2000), held that a creditor is entitled to be served with notice of administration even though the creditor knew the estate was being probated, and the personal representative had actual knowledge of the pending litigation from service of the complaint by the creditor. The court based its decision on Rule 5.240 and F.S. 733.212(4)(a) (1999), which require the personal representative to serve notice of administration on reasonably ascertainable creditors. The court also held that because of the pending litigation, the claim was not contingent within the meaning of Haig. Rule 5.241 now applies to notice to creditors. Former Rule 5.495 was repealed and thus did not apply to Ortolano and Foster. Former Rule 5.495 required a verified statement alleging either (1) that the creditor did not have actual knowledge of those matters relating to creditors’ claims required to be set forth in the notice of administration during the period allowed for filing claims against the estate, or (2) facts sufficient to obtain relief under Rule 1.540(b). Because Rule 5.495 was repealed, mistake or excusable neglect under Rule 1.540(b) is no longer applicable to permit an extension of time. Former Rule 5.495 applied to Thames, In re Estate of Hill, 582 So. 2d 701 (Fla. 1st DCA 1991), In re Estate of Gleason, 631 So. 2d 321 (Fla. 4th DCA 1994), and In re Estate of Danese, 641 So. 2d 423 (Fla. 1st

DCA 1994), which are discussed below. In Thames, the District Court of Appeal, First District, had previously noted that, in light of Pope, former F.S. 733.702 (1985) did not automatically bar a creditor’s claim when the creditor was not served with notice of administration. The court, in holding that the creditor who had filed a petition for extension of time to file his claim was entitled to an evidentiary hearing, noted that the creditor’s knowledge of the probate proceeding might be relevant to the determination. The court held that Rule 5.495 required that a creditor establish the absence of actual knowledge in order to file a claim that would otherwise be barred under F.S. 733.702. Rule 5.495 has since been repealed. In Hill, the court denied a motion for extension of time to file a claim when the personal representative did not serve a notice of administration on a known creditor (who was relying on former Rule 5.495), when the creditor did not allege that it lacked timely knowledge of those matters relating to creditors’ claims required to be set forth in the notice of administration. In Hill, the court also found that the creditor did not establish excusable neglect. With the repeal of Rule 5.495, mistake or excusable neglect are no longer applicable. In Gleason, the court denied a known creditor’s motion to reopen an estate when the creditor was not served with a notice of administration. The court noted that the estate had been closed for 14 months and that the creditor had been litigating against Gleason at the time of his death and was represented by counsel who was aware of the estate administration proceeding. See Danese (motion to reopen estate to file claim denied when litigation was filed against personal representative within three-month claim period of F.S. 733.702). (The bar of F.S. 733.710 was not an issue in Gleason, Danese, and Thames because the decedent’s death in each case occurred before 1989.) Generally, the petition for extension of time to file a claim may be filed at any time during the estate administration proceedings, provided it is filed within two years after the decedent’s death. Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009). However, the personal representative or an interested person may shorten this time by serving on the creditor a notice to file a petition for extension of time or be forever barred. The creditor is then

limited to 30 days from service of the notice to file its petition. F.S. 733.702(3). The court in American & Foreign Insurance Co. v. Dimson, 645 So. 2d 45 (Fla. 4th DCA 1994), held that a creditor’s attorney was not entitled to notice of administration (now, notice to creditors) until the attorney entered an appearance of record in the probate proceeding. In Dimson, an insurance company had a pending action against the decedent in New York. The personal representative served the company with actual notice of administration. The company, through its own clerical oversight, failed to direct the notice of administration to its attorney. The court held that service of notice of administration on the creditor was proper and that the estate was not required to send notice to the creditor’s attorney. In Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th DCA 2005), the court held that formal notice may be served on the attorney when the interested person has made a request for its attorney to receive estate papers. The court in Grainger, held that service of notice to creditors on the creditor’s “personal injury” attorney representing the creditor in a personal injury suit against the decedent was sufficient. The court noted that the creditor had actual notice. Exceptions to the claim-filing requirement are discussed briefly in §§ 6.8.A–6.8.B. In addition to insufficient notice of the claims period, the time for filing claims may be extended based on fraud or estoppel. For a further discussion of grounds permitting an extension of time for filing claims, see Chapter 8 of PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022).

« Ch. 6 », « § 6.3 » 1 Litigation Under FL Probate Code § 6.3 (2022)

§ 6.3. TWO-YEAR NONCLAIM STATUTE « Ch. 6 », « § 6.3 », • A » 1 Litigation Under FL Probate Code § 6.3.A (2022)

A. In General F.S. 733.710(1) provides that, “[n]otwithstanding any other provision of the [Florida Probate Code], [two] years after the death of a person, neither the decedent’s estate, the personal representative, if any, nor the beneficiaries of the estate shall be liable for any claim or cause of action against the decedent.” This applies to both administered and unadministered estates. As discussed in § 6.2.B.3, the Florida Supreme Court held in May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000), that F.S. 733.710 is a jurisdictional statute of nonclaim that is not subject to waiver or extension in the probate proceedings, stating that the intent of the legislature was to create a self-executing statute of repose. It imposes an absolute jurisdictional bar. The time-period may not be enlarged for any reason. The grounds of fraud, estoppel, and insufficient notice of the claims period are not available to extend the time period for filing under F.S. 733.710. Jones v. Golden, 176 So. 3d 242 (Fla. 2015); May; In re Estate of Fleming, 786 So. 2d 660 (Fla. 4th DCA 2001). Even if the estate waives the F.S. 733.710 bar in a separate action by a creditor outside of the probate proceeding, the creditor obtaining the judgment in the separate action cannot recover against the estate unless the creditor had filed a claim in the probate proceedings within two years after the decedent’s death. May. See also Dobal v. Perez, 809 So. 2d 78 (Fla. 3d DCA 2002); Fleming (F.S. 733.710 is jurisdictional statute of nonclaim that cannot be waived for fraud, estoppel, or insufficiency of notice). In Buettner v. Cellular One, Inc., 700 So. 2d 48 (Fla. 1st DCA 1997), the court held that F.S. 733.710 barred a claim against the decedent’s employer for the decedent’s negligence when no claim was filed against the decedent’s estate within the limitations period set by that statute. The bar was based on the doctrine that when a principal’s liability rests solely on the doctrine of

respondeat superior, a principal cannot be held liable if the agent is exonerated. Further, the two-year statute of limitation of F.S. 733.702 barred an action in a quiet title suit by a plaintiff against her father’s estate regarding the title her mother received from his estate since the plaintiff had not filed a claim for it in the estate proceedings within two years of his death. Ortiz v. Weiss, 282 So. 3d 949 (Fla. 3d DCA 2019). Creditors who have timely filed their claims under F.S. 733.702 within the two-year period are not barred even though their claims remain pending after the two-year period expires. F.S. 733.710(2). Furthermore, F.S. 733.710 does not automatically bar a creditor who failed to file a claim within two years of the decedent’s death in an ancillary proceeding in Florida if the creditor filed its claim timely in the domiciliary proceeding. Staum v. Rubano, 120 So. 3d 109 (Fla. 4th DCA 2013) (creditor sought to compel an accounting and transfer of assets to domiciliary estate). This two-year limitation does “not affect the lien of any duly recorded mortgage or security interest or the lien of any person in possession of personal property or the right to foreclose and enforce the mortgage or lien.” F.S. 733.710(3). The District Court of Appeal, Fourth District, has held that although F.S. 733.710 bars claims against the decedent’s estate if the claims are not filed within the two-year period, it does not bar a plaintiff from pursuing a cause of action to establish liability of the decedent and recovery under the decedent’s casualty insurance. Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997). This grafting of the provision of F.S. 733.702(4)(b) onto F.S. 733.710 was commented on favorably by the Florida Supreme Court in May. See also § 6.8.A. But see Wald v. State Farm Mutual Isnurance Co., 2013 U.S. Dist. LEXIS 188673, 2013 WL 9636854 (M.D. Fla. 2013), citing May, in which the court held that F.S. 733.710’s bar applies in bad faith actions against an insurance company to recover for an excess judgment. In Wald, the court rejected the argument that a footnote “in May impliedly supports the ‘position that a judgment creditor can still bring a third-party bad-faith claim directly against the insurer even if the estate claim is filed late.’ ” Wald, 2013 U.S. Dist. LEXIS 188673 at *17, 2013 WL 9636854 at *6. Declaring this argument to be a mischaracterization of the footnote in May, the court in Wald stated:

When read in the proper context, Footnote 3 sets forth the general rule that a judgment creditor can bring a third-party bad faith claim against an insurer. … The leap that Wald makes—from a general statement about the availability of a third-party bad faith claim, to an inference that a third party can bring such a claim even if he files the claim against the estate too late—is unsupportable. Id. at *7. In Tsuji v. Fleet, 326 So. 3d 143 (Fla. 1st DCA 2021), the District Court of Appeal, First District, has cited conflict with the Fourth District in Pezzi, noting that under the nonjoinder statute, F.S. 627.4136(1), a plaintiff may not file a direct action against a liability insurer without first obtaining a settlement or verdict against the insured. In Tsuji, the plaintiffs were injured by an automobile driven by an employee of a company. The employee died shortly after the accident. The plaintiffs did not file claims against the deceased employee’s estate prior to the expiration of the two-year statute of limitation of F.S. 733.710. Quoting Buettner, 700 So. 2d at 48, in denying the plaintiffs’ claims, the court stated “ ‘when a principal’s liability rests solely on the doctrine of respondeat superior, a principal cannot be held liable if the agent is exonerated.’ ” Tsuji, 326 So. 3d at 149. If there is no estate administration proceeding pending, the creditor is not powerless. The creditor may petition the court for the appointment of a personal representative. See F.S. 733.301. The creditor should do so before the expiration of the two-year period of F.S. 733.710 and should then file a claim within the time prescribed by F.S. 733.702 and 733.710. The case of May is an example of how not to proceed. The creditor in May did not file a “Statement of Claim” within the two-year period following the decedent’s death. Instead, the creditor filed a petition for appointment of an administrator ad litem and petition for appointment of a personal representative, which the court said contained substantially the information required by Fla. Prob. R. 5.490(a) and thus constituted a claim. However, the creditor in May lost because the probate pleadings, even though held to constitute a claim, were not filed within three months after the notice of administration was published, but rather before it was published, so the creditor had not complied with F.S. 733.702 (1991). Notice of administration was not published until approximately 22 months after the decedent’s death.

If the petitions containing all the information necessary for a claim had been filed within the time limit required by both F.S. 733.702 and 733.710, the claim would have been allowed. As previously noted, however, in response to May, F.S. 733.702 was amended to permit the filing of a claim before the publication of notice of administration (now, notice to creditors). « Ch. 6 », « § 6.3 », « B • 1 Litigation Under FL Probate Code § 6.3.B (2022)

B. Notice Before July 1, 1989, F.S. 733.710 was a three-year statute of limitations that applied only to unadministered estates. That time period has been shortened to two years, and now applies to administered estates as well. A creditor may not avoid this two-year statute of limitations by asserting insufficient notice of the claims period, fraud, or estoppel. See F.S. 733.702(5); May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000). In Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988), the United States Supreme Court distinguished between self-executing statutes of limitations, such as F.S. 733.710, and the type of statute of limitations involved in the claim statute, F.S. 733.702, when legal proceedings themselves trigger the time bar. With a self-executing statute of limitations there is not sufficient state action for the due process clause of the United States Constitution to come into play. However, when the time bar is triggered by the legal proceedings, there is sufficient state involvement for the due process clause to apply. The result is that notice meeting due process standards is required with the three-month claims limitations statute (F.S. 733.702) but is not required for the two-year nonclaim statute (F.S. 733.710). As discussed in § 6.2.B.2, the Florida Supreme Court held in May that F.S. 733.710 is a jurisdictional statute of nonclaim that automatically bars untimely claims and is not subject to waiver or extension in the probate proceedings.

« Ch. 6 », « § 6.4 » 1 Litigation Under FL Probate Code § 6.4 (2022)

§ 6.4. CLAIMS AGAINST REVOCABLE TRUSTS F.S. 733.707(3) provides that certain assets of the decedent’s revocable trusts are subject to expenses of administration and obligations of the decedent’s estate. In Tobin v. Damian, 723 So. 2d 396 (Fla. 4th DCA 1999), the court held that a creditor does not have a direct cause of action against a decedent’s revocable trust described in F.S. 733.707(3) for a tort claim against the decedent. The court noted that the creditor had not filed against the decedent’s estate and did not have an enforceable claim against the estate. In In re Estate of Read v. A.D.K. Properties, 766 So. 2d 393 (Fla. 2d DCA 2000), the court held that the creditor of a decedent must first obtain an enforceable claim against the estate to be able to recover from the decedent’s revocable trust described in F.S. 733.707(3). The lack of a pending probate proceeding did not excuse this requirement. The court pointed out that when no probate proceeding was pending, the creditor was free to open the estate itself by filing a petition for appointment of a personal representative. See F.S. 733.301. F.S. 737.306(4) (1999), applied by the courts in Tobin and Read, provided that two years after the death of a settlor of a trust described in F.S. 733.707(3), neither the trust, the trustee, nor the beneficiary of the trust is liable for any claim against the settlor that was not timely filed against the settlor’s estate within two years of the settlor’s death. After Tobin and Read, F.S. 737.306(4) was replaced with F.S. 737.3061 (with the enactment of the Florida Trust Code, effective July 1, 2006, F.S. 737.3061 was replaced by F.S. 736.1014), providing that a creditor may not file or continue a direct action against a revocable trust, or the trustee or any beneficiary of the trust that is dependent on the individual liability of the settlor. Rather, any claim against the decedent must be filed in the probate proceeding of the decedent’s estate; if the assets of the decedent’s estate are insufficient to pay the expenses of administration and obligations of the decedent’s estate, the personal representative is entitled to payment from the trustee of the

revocable trust in the amount required to satisfy the insufficiency. F.S. 733.607(2). If the personal representative does not act to satisfy the insufficiency, a petition should be filed in the probate court to require the personal representative to do so. See Shuck v. Bank of America, N.A., 862 So. 2d 20 (Fla. 2d DCA 2003). Not all assets of the revocable trust are subject to payment of expenses of administration and obligations of the estate. See F.S. 733.607(2), 733.707(3), 733.805, 736.05053. Before 2002, F.S. 773.607(2) and 773.703(3) provided for payment of expenses of administration and enforceable claims of the decedent’s creditors. The legislative staff analysis to Chapter 2001-226, § 130, Laws of Florida, provided that the change in language from “enforceable claims of the decedent’s creditors” to “obligations of the decedent’s estate” was intended to expand the items payable from a revocable trust to include “items such as funeral expenses, debts and taxes with preference under federal law, and family allowance.” Florida Staff Analysis, H.B. 137, § 130 (April 3, 2001) (amending F.S. 733.607). An unenforceable claim against the decedent’s estate such as one due to failure to timely file a claim, is not an “obligation” of the decedent’s estate. Although a claim is required to be filed for funeral expenses, it is not a claim of the “decedent’s” creditors. Furthermore, debts and taxes under federal law are not barred by the nonclaim statute. United States v. Summerlin, 310 U.S. 414, 60 S. Ct. 1019, 84 L. Ed. 1283 (1940); Ruza v. Estate of Ruza, 132 So. 2d 308 (Fla. 3d DCA 1961). Under F.S. 733.808(4), insurance proceeds payable to a revocable trust are not subject to expenses of administration of the decedent’s estate and obligations of the decedent’s estate, or for contribution required from a trust under F.S. 733.607(2) unless the trust agreement expressly directs that F.S. 733.808(4) does not apply. Ch. 2014-127, § 5, Laws of Fla. See also F.S. 736.05053. The 2014 Amendment to F.S. 733.808(4), which requires the express reference to subsection (4) to waive the exemption of insurance proceeds payable to a revocable trust, legislatively overruled Morey v. Everbank, 93 So. 3d 482 (Fla. 1st DCA 2012), is given retroactive effect.

« Ch. 6 », « § 6.5 » 1 Litigation Under FL Probate Code § 6.5 (2022)

§ 6.5. OBJECTIONS « Ch. 6 », « § 6.5 », • A » 1 Litigation Under FL Probate Code § 6.5.A (2022)

A. Statutory Requirements The personal representative or any interested person may object to any claim by filing a written objection on or before the expiration of four months of the first publication of notice to creditors or within 30 days after the timely filing or amendment of a claim, whichever occurs later. F.S. 733.705(2). The objection, which must be filed with the probate court, must be in writing and must contain a statement that the creditor is limited to 30 days from the date of service of the objection within which to bring an action on the claim. See Fla. Prob. R. 5.041, 5.496. In In re Estate of Cadgene, 938 So. 2d 581, 583 (Fla. 2d DCA 2006), the court held that Florida does not recognize the concept of a “partial objection.” The failure to file an independent action barred the entire claim. The creditor’s estoppel argument on appeal failed because there was no record that it was properly presented to the probate court and supported by sufficient evidence. An objection to a claim also “constitutes an objection to an amendment of that claim unless the objection is withdrawn.” F.S. 733.705(2). « Ch. 6 », « § 6.5 », « B » 1 Litigation Under FL Probate Code § 6.5.B (2022)

B. Service Of Objection The person filing an objection must serve a copy of it on the claimant. If the objection is filed by an interested person other than the personal representative, the person filing the objection must also serve the personal representative. Fla. Prob. R. 5.496(b). The objection must include a certificate of service. Id. Service must be made as provided in Rule 5.041 and Fla. R. Gen. Prac. & Jud. Admin. 2.516, or Rule 5.040(d). Rule 2.516(b) provides that when a party is represented by an attorney, service must be

made on the attorney of record unless service on the party is ordered by the court. An interested person is deemed a party for the purpose of Rule 2.516(b). Rule 5.041. Service of the objection on the personal representative must be made on the personal representative’s attorney. Except when serving formal notice or when making service in the manner of formal notice, service is complete when made in the manner required by Rule 2.516. Service on an attorney for a party must be made by e-mail unless excused by the court. Rule 2.516(b). The requirement that the objection be served within 10 days after filing was deleted from Rule 5.496, effective January 1, 2011. However, as previously stated, the objection is required to include a certificate of service. « Ch. 6 », « § 6.5 », « C » 1 Litigation Under FL Probate Code § 6.5.C (2022)

C. Failure To Serve Objection The failure to serve a copy of the objection as required constitutes an abandonment of the objection. F.S. 733.705(2). In In re Estate of Robins, 463 So. 2d 273 (Fla. 2d DCA 1984), the personal representative was required to pay a creditor’s claim when the claimant had actual notice of the objection, but the objection was not served in the manner required by the statute. The attorney for the personal representative had mailed the objection to the claimant by regular mail, but the claimant did not receive it because it was mailed to an incorrect address. It did not matter that the incorrect address was the address the claimant gave on its claim. At that time, F.S. 733.705(2) (1981) required that “the person filing it … serve a copy of the objection by registered or certified mail … or delivery to the claimant … or the claimant’s attorney of record.” Although the method of service has been changed since Robins, the case still stands for the proposition that if an objection is not served as required, the objection is considered abandoned and payment of the claim will be ordered. See In re Estate of Maxcy, 178 So. 2d 43 (Fla. 2d DCA 1965). Effective January 1, 2002, F.S. 733.705(2) was amended to permit the court for good cause to extend the time to serve an objection to a claim. If a single claim has been filed jointly by more than one claimant, the objection must be served on each claimant. The claim will be deemed admitted as to any claimant not served with the objection. In Kata v. Hayden,

544 So. 2d 315 (Fla. 2d DCA 1989), a claim was signed jointly by two creditors. An objection was filed against each claim, but the objection was served on only one of the creditors. The objection to the claim filed by the creditor who was not served with the objection was considered abandoned. « Ch. 6 », « § 6.5 », « D » 1 Litigation Under FL Probate Code § 6.5.D (2022)

D. Extension Of Time For Filing Or Serving Objection « Ch. 6 », « § 6.5 », « D », • 1 » 1 Litigation Under FL Probate Code § 6.5.D.1 (2022)

1. In General A personal representative or other interested party who fails to file or serve an objection within the time prescribed may be able to get an extension of time to do so. The petition for extension of time should be filed in the probate court. This extension of time may be granted for good cause, F.S. 733.705(2), and only after notice, Fla. Prob. R. 5.041. This time limit operates as a rule of judicial procedure. See In re Estate of Norregaard, 220 So. 2d 653 (Fla. 3d DCA 1969). The petition for an extension of time to file an objection may be granted even if the petition was not filed until after the time period for filing the objection has elapsed. In re Estate of Keerl, 451 So. 2d 872 (Fla. 2d DCA 1984). « Ch. 6 », « § 6.5 », « D », « 2 • 1 Litigation Under FL Probate Code § 6.5.D.2 (2022)

2. Good Cause An unsworn petition that is unaccompanied by affidavits or other evidence is insufficient to establish good cause. Powell v. ChancyStoutamire, Inc., 546 So. 2d 1135 (Fla. 1st DCA 1989); In re Estate of Dezso, 382 So. 2d 399 (Fla. 4th DCA 1980). Ignorance of the law on the part of the personal representative or the personal representative’s counsel is not sufficient to establish good cause. In re Estate of Dudley, 374 So. 2d 1111 (Fla. 4th DCA 1979); In re Estate of Elliott, 798 So. 2d 13 (Fla. 1st DCA 2001). But see In re Estate of Meigs, 177 So. 2d 246 (Fla. 1st DCA 1965) (probate judge found that good cause existed because of procedural confusion at hearing; appellate court upheld decision).

The failure of the court clerk to furnish a copy of the creditor’s claim to the personal representative has been held sufficient to establish good cause to extend the time for filing objections. Cohen v. Majestic Distilling Co., 765 So. 2d 276 (Fla. 4th DCA 2000). The practitioner should note that Fla. Prob. R. 5.490 now requires the clerk to furnish a copy of the claim to the attorney for the personal representative. The creditor is required to furnish the clerk with an extra copy of the claim so that the clerk may do this. Lulling the personal representative into a false sense of security concerning the settlement of his claims was sufficient for the court to find good cause in In re Estate of Norregaard, 220 So. 2d 653 (Fla. 3d DCA 1969). However, the mere fact that negotiations exist is insufficient: “[N]egotiations are commonplace both before and after litigation is commenced. So long as the parties deal with each other at arm’s length, and no undue advantage is taken by one of the other, settlement negotiations do not operate to suspend the running of applicable statutes of limitations or modify the rules of judicial procedure affecting jurisdiction.” Dudley, 374 So. 2d at 1113, quoting In re Estate of Kemp, 177 So. 2d 757, 762 (Fla. 1st DCA 1965). The cases dealing with good cause in the context of extension of time for filing an independent action are relevant and are frequently cited by the courts in cases dealing with objections. See Dudley; Norregaard. See also § 6.6.D.2. « Ch. 6 », « § 6.5 », « E • 1 Litigation Under FL Probate Code § 6.5.E (2022)

E. Failure To File Objection If the personal representative does not object to a creditor’s timely filed claim, the claim is deemed admitted. The probate court is thereafter without the power to reject the claim. Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955) (asserted statute of limitations bar); Rainier v. Calhoun, 510 So. 2d 999 (Fla. 3d DCA 1987) (alleged illegal contract). See Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986). A motion to strike that does not meet the requirements of F.S. 733.705 and Fla. Prob. R. 5.496 is not an objection. Fernandez-Fox v. Estate of Lindsay, 972 So. 2d 281 (Fla. 5th DCA 2008).

« Ch. 6 », « § 6.6 » 1 Litigation Under FL Probate Code § 6.6 (2022)

§ 6.6. INDEPENDENT ACTION « Ch. 6 », « § 6.6 », • A » 1 Litigation Under FL Probate Code § 6.6.A (2022)

A. Statutory Requirement The claimant has 30 days from the date of service of the objection to bring (1) an independent action on the claim, (2) a declaratory action to establish the validity and amount of an unmatured claim that is not yet due but that is certain to become due in the future, or (3) a declaratory action to establish the validity of a contingent claim on which no cause of action has accrued on the date of service of the objection and that may or may not become due in the future. F.S. 733.705(5). The objection does not “mature” or otherwise accelerate the claim. Before 1986, F.S. 733.705 provided that the filing of the objection on an unmatured claim matured the claim for the purpose of bringing an action on it. There was some confusion about whether this meant that it accelerated an unmatured claim, or whether it just meant that there was a ripe controversy capable of adjudication. This was cleared up by the legislative amendments in 1986 to F.S. 733.705(4) (now 733.705(5)). « Ch. 6 », « § 6.6 », « B » 1 Litigation Under FL Probate Code § 6.6.B (2022)

B. Failure To File Independent Action If the claimant does not bring an independent action within the 30-day period, or within the extension period granted by the probate court, “the claim is barred without court order.” F.S. 733.705(5). As a matter of practice, a personal representative may need to take action to dispose of the unpaid claim of record so that the personal representative can obtain an order of discharge. This may be handled early in the proceedings through a motion to strike the claim based on the failure of the claimant to file an independent action. The claimant should immediately file a motion for an extension of time to file the independent action for good cause if it wishes to be heard on that point. See Powell v. Chancy-Stoutamire, Inc., 546 So. 2d 1135 (Fla. 1st DCA 1989).

As an alternative, the personal representative may serve the creditor with a copy of the petition for distribution and discharge. This may be done by formal notice, or the personal representative may simply serve it and then notice it for hearing. The claimant would have an opportunity to file a motion to extend time for filing the independent action. It may be difficult for the creditor to establish good cause at this point in the proceeding if the estate will be prejudiced by the claimant’s delay in requesting the extension. See Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986). See § 6.6.D.2 for a discussion of what constitutes good cause for granting an extension of time to file an independent action. « Ch. 6 », « § 6.6 », « C » 1 Litigation Under FL Probate Code § 6.6.C (2022)

C. Time For Filing Independent Action As noted in § 6.6.A, a claimant has 30 days after the date of service of the objection to bring either an independent action or a declaratory action. F.S. 733.705(5). The court may extend the time for filing an independent action for good cause. Id. This 30-day time limit operates not as a statute of nonclaim but as a rule of judicial procedure. Dohnal v. Syndicated Offices Systems, 529 So. 2d 267 (Fla. 1988); In re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (1938). Furthermore, this 30-day time limit supersedes the time limit for a motion for substitution of the personal representative for the decedent in a pending action under Fla. R. Civ. P. 1.260. See Field v. Newsom, 170 So. 2d 50 (Fla. 3d DCA 1965) (dealing with predecessor statutes and rule). The 30-day time limit is computed under Fla. R. Gen. Prac. & Jud. Admin. 2.514. See Fla. Prob. R. 5.042(a). This means that if service of the objection is by mail, five days are added to the period unless service is made by formal notice or in the manner provided for formal notice. Rule 2.514(b). Effective January 1, 2019, the five-day period after service no longer applies when service of the objection is made by e-mail. Id. « Ch. 6 », « § 6.6 », « D » 1 Litigation Under FL Probate Code § 6.6.D (2022)

D. Extension Of Time For Filing Independent Action « Ch. 6 », « § 6.6 », « D », • 1 » 1 Litigation Under FL Probate Code § 6.6.D.1 (2022)

1. In General F.S. 733.705(5) provides that the personal representative may agree to an extension of time for the creditor to file an independent action without court order. The extension by the personal representative must be in writing before the 30-day period expires. A motion for extension of time may be heard only by the probate court. F.S. 733.705(11); Poncier v. State, Dept. of Health & Rehabilitative Services, Division of Family Services, 284 So. 2d 463 (Fla. 3d DCA 1973). This motion for extension of time may be filed after the time for filing the action has expired. In re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (1938); Golden v. Atlantic National Bank of Jacksonville, 481 So. 2d 16 (Fla. 1st DCA 1986), disapproved on other grounds 537 So. 2d 1370. The failure to obtain an order from the probate court granting an extension of time before filing the independent action could be fatal. « Ch. 6 », « § 6.6 », « D », « 2 • 1 Litigation Under FL Probate Code § 6.6.D.2 (2022)

2. Good Cause Whether good cause exists to grant an extension of time for filing the independent action depends on the facts and circumstances of the particular case. The probate court’s determination will be upheld on review unless the court abused its discretion. Dohnal v. Syndicated Offices Systems, 529 So. 2d 267 (Fla. 1988); Johnson v. Estate of Fraedrich, 472 So. 2d 1266 (Fla. 1st DCA 1985). If the hearing on good cause was not transcribed and there is no record reflecting the evidentiary basis for the probate court’s finding, the probate court will be upheld. Sun First National Bank of Orlando v. Santarsiero, 401 So. 2d 946 (Fla. 5th DCA 1981). In 1938, the Florida Supreme Court said that the adjudication of good cause “ ‘is to be governed by a given standard of judicial action’ … contemplating ‘a substantial reason, one that affords a legal excuse,’ or a ‘cause moving the court to its conclusion, not arbitrary or contrary to all the evidence,’ and not mere ‘ignorance of law, hardship on petitioner, and reliance on [another’s] advice’ ” [internal citations omitted]. In re Estate of Goldman, 79 So. 2d 846, 848 (Fla. 1955). This has been reaffirmed over the years. Dohnal; In re Estate of Elliott, 798 So. 2d 13 (Fla. 1st DCA 2001).

An understanding between counsel for the creditor and the personal representative that a lawsuit could be delayed while settlement negotiations were explored was sufficient to support a finding of good cause in Black v. Brammer, 440 So. 2d 24 (Fla. 4th DCA 1983), and Sessions v. Jelks, 194 So. 2d 307 (Fla. 1st DCA 1967). However, the mere fact that settlement negotiations exist, without more, will not be sufficient. In re Estate of Kemp, 177 So. 2d 757 (Fla. 1st DCA 1965). See Sireci v. Deal, 603 So. 2d 35 (Fla. 3d DCA 1992). Lulling the creditor into a false sense of security, which results in its failure to timely file an independent action, has been the basis for finding good cause in a number of cases. Dept. of Revenue v. Florida National Bank, 516 So. 2d 1147 (Fla. 5th DCA 1987); Black; In re Estate of Wilisch, 384 So. 2d 223 (Fla. 3d DCA 1980); Sessions. However, in a case in which the creditor entered into negotiations with the attorney for the decedent’s insurance company but not with the personal representative or his attorney, the court held that good cause did not exist, finding that the creditor had not been lulled into a false sense of security by the personal representative that his claim would be paid. In re Estate of Kemp. See also Johnson. In Kelly Assisted Living Services, Inc. v. Estate of Reuter, 681 So. 2d 813 (Fla. 3d DCA 1996), when a creditor filed duplicate claims and the personal representative objected to both claims on the basis that they were duplicate claims and moved to strike both claims after the period for filing an independent action had expired, the court found good cause and permitted the creditor to file an independent action. Generally, ignorance of the law is no excuse. In re Estate of Goldman; In re Estate of Elliott; Devine v. Kirkovich, 754 So. 2d 789 (Fla. 3d DCA 2000) (ignorance of law held to be no excuse for pro se litigant who erroneously believed filing of motion to strike objection in probate action tolled period for filing independent action). See In re Jeffries’ Estate, 136 Fla. 410, 181 So. 833 (1938). However, the courts have retreated from that doctrine in a few instances. In two cases arising shortly after the 1976 constitutional change moving jurisdiction of probate matters to the circuit courts, the courts granted an extension of time when the creditors filed the action in the wrong court due to procedural “confusion.” Bell v. Harris, 366 So. 2d 765, 766 (Fla. 1st DCA 1979); In re Estate of Pridgeon, 349 So. 2d 741, 742 (Fla. 1st DCA

1977). “Confusion” was also the underlying excuse of a creditor when a personal representative filed a motion to strike, as well as an objection, and scheduled the hearing on the motion to strike after the expiration of the 30 days from service of the objection. In re Estate of Matchett, 394 So. 2d 437 (Fla. 5th DCA 1981). The court in In re Estate of Matchett gave lip service to the creditor being “misled” by the personal representative by the motion to strike. Id. at 439. Judge Melvin, in his dissenting opinion, pointed out that the objection was clear, that the personal representative did nothing to induce the creditor to believe that her claim would be willingly paid, and that ignorance of the laws and rules of procedure are insufficient to establish good cause. Reliance on In re Estate of Matchett could be hazardous. See First Bank & Trust Company of Jacksonville v. Bush, 226 So. 2d 438 (Fla. 1st DCA 1969). Clerical error has been the basis for relief in a number of cases in which the delay was not substantial and there was no prejudice to the estate. In Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986), the attorney for the creditor filed the independent action in the wrong court (the probate court) on the last day. The attorney was a last-minute replacement for the creditor’s prior attorney who had filed the claim. The court found that “[d]ue to the rush, he did not catch the error in the caption of the pleading,” apparently causing it to be filed in the wrong court. Id. at 45. The court pointed out that there was no substantial delay, the personal representative knew about the lawsuit because it had been filed in the probate proceeding, and there was no prejudice to the estate. The Florida Supreme Court, in Dohnal, upheld the trial court’s finding of good cause when there was a clerical error, the creditor proceeded with diligence, and there was evidence of no prejudice to the estate. See also St. John’s Hospital & Health Center v. Toomey, 610 So. 2d 62 (Fla. 3d DCA 1992) (correcting misnomer in plaintiff’s name relates back to date complaint was originally filed when estate had actual knowledge of identity of plaintiff and estate was not prejudiced by amendment); Horn v. Air Sal, Inc., 519 So. 2d 1106 (Fla. 3d DCA 1988) (good cause shown when clerical error in calendaring by secretary was made after proper instructions, and when no prejudice shown to estate). This emphasis on showing no prejudice to the estate may be a harbinger of a liberalization of the good cause standard, so that insubstantial excuses might be considered “good cause” if there is no prejudice to the estate. On the other hand, this concept could be used to deny an extension for an otherwise good cause when there would be prejudice to the estate. This

remains to be seen. Diligence may be an important factor in the determination of good cause. In Exchange National Bank of Winter Haven v. Field, 338 So. 2d 889 (Fla. 2d DCA 1976), creditors whose contention was that they wanted to wait until after the inventory was filed did not establish good cause when they waited until three months after the inventory was filed to request the extension. In Goldman, there was no good cause when there was an 11-month delay before the creditor petitioned for an extension. In cases in which there was no substantial delay and the estate suffered no prejudice or surprise, good cause has frequently been found. Kelly Assisted Living Services, Inc. (employees misunderstood scope of motion to dismiss duplicate claims); Dohnal (clerical error); Horn (secretarial error in calendaring); Williams (lawyer error due to rush when prior lawyer withdrew); In re Estate of Oxford, 372 So. 2d 1129 (Fla. 2d DCA 1979) (error due to change in counsel); Bell (confusion about applicable law because of constitutional change). However, the mere fact that the creditor was diligent and there is no prejudice to the estate, without more, should not be enough. The court in In re Estate of Yerex, 651 So. 2d 220 (Fla. 4th DCA 1995), considered economic factors in determining that “good cause” existed for failing to timely file an independent action. In concluding that good cause existed, the court reasoned that avoiding unnecessary attorneys’ fees and costs was reasonable when the creditor’s claim was contingent on the personal representative suing the creditor. Evidence of good cause must be presented to the probate court. The mere argument of counsel will not do. In re Estate of Elliott; Powell v. ChancyStoutamire, Inc., 546 So. 2d 1135 (Fla. 1st DCA 1989); Harrigan v. Harrison, 423 So. 2d 1024 (Fla. 4th DCA 1982). The cases dealing with good cause in the context of extending the time for filing objections to claims are relevant in this context as well. See § 6.5.D.2. « Ch. 6 », « § 6.6 », « E » 1 Litigation Under FL Probate Code § 6.6.E (2022)

E. Where Independent Action Must Be Brought The independent action may not be filed in the probate court. Williams v.

Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986); In re Estate of Fornash, 372 So. 2d 128 (Fla. 2d DCA 1979); Bell v. Harris, 366 So. 2d 765 (Fla. 1st DCA 1979). The action may be filed in any court of competent jurisdiction. There is no requirement that the independent action be filed in Florida. Poulsen v. First National Bank of Palm Beach, 407 So. 2d 338 (Fla. 4th DCA 1981) (action brought in Wyoming); S. J. Landau Corp. v. Estate of Riesner, 372 So. 2d 1134 (Fla. 2d DCA 1979) (action brought in New York). Furthermore, there is no requirement per se that the independent action be brought in the United States. In re Estate of Brown, 421 So. 2d 752 (Fla. 4th DCA 1982). In In re Estate of Brown, the decedent during his lifetime had instituted an action in Bermuda and the creditor filed a counterclaim. The personal representative objected to the claim filed in the probate proceeding and substituted himself for the decedent in the Bermuda action. Under these facts the court held that the personal representative could not assert that the forum was ineffective for an independent action. The court pointed out that “a Bermuda judgment is valid here under the principles of comity … if the Bermuda court had jurisdiction and the judgment resulted from procedures which would render it valid had it been litigated in this Court.” Id. at 754. See Ogden v. Ogden, 159 Fla. 604, 33 So. 2d 870 (1948). Accordingly, a judgment under an “independent action” obtained in a foreign jurisdiction would be subject to the same challenges and limitations and be afforded the same recognition as foreign judgments in other proceedings in this state. In Lewsadder v. Estate of Lewsadder, 757 So. 2d 1221 (Fla. 4th DCA 2000), the filing of a demand for arbitration satisfied the requirement for filing an independent action when the agreement between the decedent and the creditor provided for mandatory arbitration. More recently, a creditor who filed an adversary proceeding in probate court to enforce its claim was permitted to transfer its action to the proper division of circuit court, because the time for filing an independent action had expired (after filing the adversary proceeding in probate court). West v. West, 126 So. 3d 437 (Fla. 4th DCA 2013), citing F.S. 733.705(5) (2011). « Ch. 6 », « § 6.6 », « F » 1 Litigation Under FL Probate Code § 6.6.F (2022)

F. Necessary Parties

The creditor must name all co-personal representatives as defendants in the independent action. The lawsuit may not be brought against just one of several personal representatives. See Alpert v. Alpert, 425 So. 2d 193 (Fla. 3d DCA 1983). « Ch. 6 », « § 6.6 », « G » 1 Litigation Under FL Probate Code § 6.6.G (2022)

G. Notice Of Independent Action The personal representative is required to file in the probate proceeding a notice that an independent action has been filed. Fla. Prob. R. 5.065(a). The purpose of the rule is to give notice to beneficiaries and other creditors potentially affected by the pending lawsuit. « Ch. 6 », « § 6.6 », « H » 1 Litigation Under FL Probate Code § 6.6.H (2022)

H. Action Pending At Death The pendency of an action against a decedent at the time of his or her death does not relieve the creditor of the necessity of filing a claim in the probate action. F.S. 733.702(2) provides that no cause of action will survive the death of a person against whom the claim may be made, whether or not an action is pending at the death of the person, unless the claim is filed in the probate proceeding within the time provided in Part VII of F.S. Chapter 733. Lasater v. Leathers, 475 So. 2d 1329 (Fla. 5th DCA 1985); Roberts v. Jassy, 436 So. 2d 394 (Fla. 2d DCA 1983). Compare Scutieri v. Estate of Revitz, 510 So. 2d 1003 (Fla. 3d DCA 1987) (legislatively overruled by 1988 and 1989 amendments to F.S. 733.702(3), see § 6.2.B.2). The substitution of the personal representative for the decedent as a party in a lawsuit commenced before the decedent’s death meets the requirement of an independent action. It is not necessary to start another. In Cloer v. Shawver, 177 So. 2d 691 (Fla. 1st DCA 1965), the court held that the mere filing of the motion for substitution of the personal representative as a party was sufficient when the personal representative was not served with notice of the motion until after expiration of the time period for bringing the independent action. The motion for substitution was filed within the time period for bringing the action. The court pointed out that the filing of a complaint commences the action, not the service of the complaint, so the

filing of the motion should suffice. See Lewsadder v. Estate of Lewsadder, 757 So. 2d 1221 (Fla. 4th DCA 2000). See also Shessel v. Estate of Calhoun, 573 So. 2d 962 (Fla. 3d DCA 1991) (appeal pending at decedent’s death met requirement of independent action when personal representative was substituted as party defendant). The personal representative in In re Estate of Klotz, 394 So. 2d 509 (Fla. 5th DCA 1981), was not required to file an objection to a claim when the creditor filed suit against the personal representative before filing the claim in the probate proceeding. The personal representative answered the complaint, denying liability. The creditor then petitioned the probate court for payment of its claim because no objection was filed in the probate proceeding. The District Court of Appeal, Fifth District, stated that the purpose of an objection is to shorten the time limit for commencing an action. Because the action was commenced by the creditor even before the claim was filed, the court held that the filing of the objection would be an empty exercise that accomplished nothing. The better practice would be for the personal representative to follow the statute and not rely on In re Estate of Klotz. When an objection has been filed to a claim based on an existing judgment against the decedent, the creditor is required to bring an independent action to determine the validity of the judgment. The judgment may have been partially or fully satisfied. Furthermore, judgments generally may be collaterally attacked based on lack of jurisdiction or fraud. See Fla. R. Civ. P. 1.540. See also Hogan v. Howard, 716 So. 2d 286 (Fla. 2d DCA 1998) (nothing suggests that personal representative cannot object to claim based on judgment under F.S. 733.705(2) or that such claim is exempt from requirement of 30-day independent action under F.S. 733.705(4)); Nichols v. Nichols, 613 So. 2d 137 (Fla. 4th DCA 1993) (foreign judgment, domesticated in Florida, can be collaterally attacked based on extrinsic fraud). « Ch. 6 », « § 6.6 », « I • 1 Litigation Under FL Probate Code § 6.6.I (2022)

I. Priority Of Judgment A judgment in an independent action does not change the class of priority of a claim. F.S. 733.705(5). If the assets of the estate are insufficient to pay all obligations in full, the expenses of administration and debts of the estate

are paid according to the priorities set out in F.S. 733.707. Certain assets of the decedent’s revocable trust may be liable for the insufficiency under F.S. 733.607(2), 733.707(3), 736.05053. See § 6.4.

« Ch. 6 », « § 6.7 » 1 Litigation Under FL Probate Code § 6.7 (2022)

§ 6.7. PAYMENT OF CLAIMS « Ch. 6 », « § 6.7 », • A » 1 Litigation Under FL Probate Code § 6.7.A (2022)

A. Petition For Compulsory Payment F.S. 733.705(1) provides that the personal representative must pay all claims within one year from the date of first publication of notice to creditors. The time must be extended for claims in litigation, unmatured claims, and contingent claims for the period necessary to dispose of them as set forth in F.S. 733.705(5)–(8). Furthermore, the court may extend the time for payment on a showing of good cause. The claimant may petition the probate court to require the personal representative to pay the claim. This does not change the priority of the claim. The petition will not be granted if it appears that the estate may be insufficient to pay all debts and expenses with a higher priority. Even in an apparently solvent and liquid estate, the personal representative cannot be compelled to pay the debts of the decedent until after the expiration of five months from the first publication of notice to creditors. F.S. 733.705(1). This five-month time period approximates the time period for filing claims and objections to claims after the amendments to F.S. 733.702 engendered by the decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988) (if personal representative discovers name and address of creditor before expiration of three-month nonclaim period and serves notice on creditor on last day of three-month period, creditor has 30 days to file claim). The statute does not require the payment at the expiration of five months, but rather before the expiration of one year (absent good cause or other enumerated conditions). The liquidity of the estate is obviously among the factors the court would consider. When a part of a proposed settlement provides for the accelerated payment of the creditor’s claim, the personal representative must show that the assets of the estate will be sufficient to pay all claims having the same or greater priority. Carlton v. Carlton, 578 So. 2d 820 (Fla. 2d DCA 1991).

« Ch. 6 », « § 6.7 », « B » 1 Litigation Under FL Probate Code § 6.7.B (2022)

B. Interest Interest is payable on written obligations of the decedent that provide for the payment of interest. Interest on these obligations is at the rate stated in the written obligation. Oreal v. Steven Kwartin, P.A., 189 So. 3d 964 (Fla. 4th DCA 2016). Interest on other claims is at the judgment rate. See F.S. 55.03. However, interest on these other claims does not begin to accrue until after five months from first publication of the notice to creditors. F.S. 733.705(9). If the personal representative does not publish the notice to creditors within a reasonable time after the commencement of administration, interest will begin to accrue five months after the date the personal representative reasonably should have published it. Rainier v. Calhoun, 534 So. 2d 735 (Fla. 3d DCA 1988). Unless the terms of a contract explicitly provide for a specific interest rate to apply to a judgment entered on the debt, the contractual interest rate terminates at judgment, and the statutory post-judgment interest rate applies instead. Whitehurst v. Camp, 699 So. 2d 679 (Fla. 1997). « Ch. 6 », « § 6.7 », « C • 1 Litigation Under FL Probate Code § 6.7.C (2022)

C. Attorneys’ Fees A creditor who brings an action against a personal representative within five months of publication of the notice on any claim to which the personal representative has not filed an objection (at the time of filing the action) cannot recover attorneys’ fees and costs. F.S. 733.705(1). See Estate of Cadden v. Schickedanz, 855 So. 2d 651 (Fla. 4th DCA 2003); Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999).

« Ch. 6 », « § 6.8 » 1 Litigation Under FL Probate Code § 6.8 (2022)

§ 6.8. ACTION WHEN NO CLAIM FILED « Ch. 6 », « § 6.8 », • A » 1 Litigation Under FL Probate Code § 6.8.A (2022)

A. Liens On Specific Property; Counterclaims; Insurance A creditor who fails to file its claim may be able to recover under F.S. 733.702(4). The statute permits a creditor, in limited circumstances, to proceed against a specific fund or property to recover on a debt. The general assets of the estate beyond the specific fund or debt are not liable for any deficiency relating to the unfiled claim. A creditor may enforce a mortgage, security interest, or other lien on the property of the decedent. F.S. 733.702(4)(a). However, the creditor’s recovery in that situation is limited to the specific property on which the creditor has a lien. The estate would not be liable for any deficiency if no claim was filed against the estate. Clark v. Fullerton, 130 Fla. 150, 177 So. 851 (1937); Martinez v. Kennedy Real Estate of Labelle, Inc., Pension Trust, 565 So. 2d 399 (Fla. 2d DCA 1990). A mortgagee who files a claim on a note in the probate proceeding is not making an election to rely solely on the general assets of the estate but may foreclose the mortgage. See In re Estate of Simpson, 113 So. 2d 766 (Fla. 2d DCA 1959). As in a nonprobate case, the creditor would be entitled to only one satisfaction of the debt. F.S. 733.702(4)(a) should also apply to security interests in specific property under the Florida Uniform Commercial Code and to statutory liens in specific property. If the lien is on personal property, the lien could be foreclosed or could be enforced by replevin. See Zeidel v. Estate of Rosenberg, 357 So. 2d 259 (Fla. 3d DCA 1978). The liens that may be enforced under F.S. 733.702(4)(a) are liens on specific property. A general judgment lien is not a lien on specific property. Gilpen v. Bower, 152 Fla. 733, 12 So. 2d 884 (1943). F.S. 733.706 specifically requires that claims on judgments against the decedent be filed with the probate court. Claims based on judgments obtained against the decedent during the decedent’s lifetime are a Class 8 debt entitled to the

lowest priority under F.S. 733.707(1)(h). A general judgment lien should not be enforceable against the property of the estate, because the effect would be to elevate the debt of the judgment creditor to a priority higher than its statutory class or to elevate it above those in the same class. See Gilpen; Cumberland & Liberty Mills v. Keggin, 139 Fla. 133, 190 So. 492 (1939). See also § 6.9. The decedent’s casualty insurance is another fund potentially available. F.S. 733.702(4)(b) provides that the failure of a creditor to file a claim does not bar the creditor from proceeding in an independent action to reach any casualty insurance that the decedent had that provided coverage for the action complained of. Liability is limited to the extent of the insurance coverage, and the estate has no liability for any deficiency. In Kent Insurance Co. v. Estate of Atwood, 481 So. 2d 1294 (Fla. 1st DCA 1986), the creditor insurance company was permitted to seek contribution from the decedent’s insurance company for personal injury claims the creditor’s company was required to pay. Because it had not filed a claim against the decedent’s estate, its recovery could not exceed the policy limits. This same result was reached in Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997), in which no claim was filed, and the action was not commenced until after the expiration of the two-year limitation period in F.S. 733.710. Compare In re Estate of Arroyo v. Infinity Indemnity Insurance Co., 211 So. 3d 240 (Fla. 3d DCA 2017) (bad faith action against insurance company barred because estate lacked authority to settle personal injury action); Wald v. State Farm Mutual Automobile Insurance Co., 2013 U.S. Dist. LEXIS 188673, 2013 WL 9636854 (M.D. Fla. 2013) (bad faith action against insurance company to recover excessive judgment barred because claim was not timely filed). The court in Jennings v. Prudential Insurance Company of America, 402 So. 2d 1367 (Fla. 1st DCA 1981), considered life insurance on the life of the decedent to be “casualty” insurance. See. F.S. 733.702(3)(b). In Jennings, the decedent had assigned a life insurance policy to the bank as security for a loan. The debt was discharged in bankruptcy during the decedent’s lifetime, but the bank remained the owner of the policy. The court held that the bank was the owner of the policy and did not have to file a claim in the estate to collect the proceeds of the insurance. A creditor who has not timely filed a claim against the estate may file a crossclaim or counterclaim in an independent action instituted by the estate.

However, the creditor’s recovery may not exceed the estate’s recovery in such action. F.S. 733.702(4)(c). This provision was added to the Florida Probate Code in 1985 in response to the decision in Gates Learjet Corp. v. Moyer, 459 So. 2d 1082 (Fla. 4th DCA 1984). Before that time, a creditor who failed to file its claim against the estate within the time for filing claims was barred from raising a counterclaim in an action brought by the estate after the nonclaim period. In Gates, the personal representative of the estates of a pilot and copilot killed in a plane crash sued the manufacturer of the plane after the expiration of the nonclaim period. The manufacturer had not timely filed claims in either estate proceeding. In each case, the manufacturer crossclaimed for contribution against the other pilot who was a codefendant. The court held that the crossclaims were barred for failure to comply with the claim statute, except to the extent of any liability insurance. See Price v. Davis, 180 So. 2d 474 (Fla. 3d DCA 1965). In Davis v. Starling, 799 So. 2d 373 (Fla. 4th DCA 2001), a debtor was permitted to bring a declaratory action for recoupment against the decedent’s estate more than two years after the decedent’s death to lessen the amount due on its mortgage debt for misrepresentation by the decedent. The court stated that “[t]his kind of defensive use of recoupment is not barred by any period governing its assertion as an independent cause of action, so long as the underlying debt is still actionable.” Id. at 377. Until December 31, 2008, the Florida Department of Revenue was permitted to file a claim for taxes due under F.S. Chapter 199 (intangible taxes) after the expiration of the nonclaim period, provided it did so within 30 days after the service of the inventory. F.S. 733.702(5) (2005). The department could file a claim or amend its previously filed claim within 30 days after service on the department of the estate tax return or any amended or supplemental inventory or amended or supplemental estate tax return, concerning the additional information disclosed. This did not extend the time limit under F.S. 733.710. Id. Effective January 1, 2009, however, F.S. 733.702(5) was repealed. Chs. 2006-312, § 26, 2010-4, § 21, Laws of Fla. « Ch. 6 », « § 6.8 », « B • 1 Litigation Under FL Probate Code § 6.8.B (2022)

B. Trust Claims The courts have held in a number of instances that the claim statute, F.S.

733.702, does not apply to property held by the decedent for the benefit of another under a “trust exception” or “beneficial ownership exception” or “specifically identifiable property exception.” The underlying basis for this exception is that the trust property is not considered a part of the decedent’s estate. Sewell v. Sewell Properties, 159 Fla. 570, 30 So. 2d 361 (1947). When the decedent is holding property for another as trustee, the claims statute does not apply if the trust fund can be traced; if the trust fund cannot be traced, the beneficiary must file a claim. Cooey v. Cooey, 132 Fla. 716, 182 So. 202 (1938). The trust nature of the property continues even if transferred as long as it is traceable and not transferred into the hands of a bona fide purchaser. Sewell. In Sewell, the failure to file a claim against the estate of the “trustee” was not a bar to a claim filed against the estate of the transferee who was not a bona fide purchaser. If the trust fund cannot be traced, the claims statute applies and will bar recovery if no claim was filed. Staley v. Jackson, 154 So. 2d 349 (Fla. 2d DCA 1963), superseded by statute on other grounds 502 So. 2d 1297. Failure to file a claim for the recovery of property held by the decedent in a constructive trust is not barred by the claim statute, F.S. 733.702 (former F.S. 733.16), or by the statute of limitations, F.S. 733.710 (former F.S. 734.29). Enforcement of a constructive trust is barred by laches. Fisher v. Creamer, 332 So. 2d 50 (Fla. 3d DCA 1976). The practitioner should note that although F.S. 733.16 has been replaced by F.S. 733.702 and F.S. 734.29 has been replaced by F.S. 733.710, Fisher should continue to apply. The court in Velzy v. Estate of Miller, 502 So. 2d 1297 (Fla. 2d DCA 1987), conducted a lengthy analysis of the law on this subject. The facts of the case were that the title to a boat held by the parties as tenants by the entireties was not mentioned in a divorce decree. As a result, the boat became owned by the divorced husband and wife as tenants in common. The former husband had the title changed into his name alone. The former wife did not file a claim against the former husband’s estate within the period provided by F.S. 733.702. The court held that the former wife’s claim was barred by the failure to file a claim against the decedent’s estate. The key in Velzy was that the decedent had asserted beneficial ownership in the disputed property before his death.

In its analysis of the law on the subject, the Velzy court pointed out that there have been numerous amendments to the claim statute since the early cases espousing the “trust theory” exception. These statutory changes have narrowed the trust exception, although some of the early exceptions have now been codified in other parts of the statute. The court succinctly concluded: We, therefore, conclude that the “trust exception” or “equitable title to specifically identifiable property” exception to the requirements of the nonclaim statute, as those exceptions pertain to recovery of property from an estate, have effectively been limited to those situations where the decedent clearly held the property on behalf of the actual owner either by way of an express trust or some other clearly defined means. In other words, if a decedent asserted beneficial ownership of the property before his death, a claim to the property would be barred unless filed according to [F.S.] 733.702. The reason being that the dispute as to ownership, creating the cause of action, arose before the decedent’s death because the decedent, prior to his death, adversely claimed the property as his own. If, however, the decedent was merely in possession of the property but made no such assertion of ownership prior to his or her death, the assertion of ownership being made by the personal representative or heirs for the first time after the decedent’s death would not require the filing of a claim. [F.S.] 733.702. Id. at 1300. Velzy was followed in Scott v. Reyes, 913 So. 2d 13 (Fla. 2d DCA 2005), which held that the trust exception did not apply when the decedent transferred money held in joint accounts into his sole name before his death. Nor does the trust exception apply to money owed to a creditor. Lefkowitz v. Schwartz, 299 So. 3d 549 (Fla 5th DCA 2020). The District Court of Appeal, Fourth District, in Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018), has held that when a community property interest in real property a was held in the decedent’s name, the surviving spouse’s failure to a timely file claim against the estate of the decedent to recover her share of the community property under the Florida Uniform Disposition of Community Property Rights at Death Act, F.S.

732.216–732.228, was barred. In so holding, the court expressly ruled the trust claim exception did not apply. The court certified the following to the Florida Supreme Court as a question of great public importance: Whether a surviving spouse’s vested community property rights are part of the deceased spouse’s probate estate making them subject to the estate’s claims procedures, or are fully owned by the surviving spouse and therefore not subject to the estate’s claims procedures. Johnson, 259 So. 3d at 859. For further discussion of situations in which there may be recovery even though no claim has been filed against the estate, see PRACTICE UNDER FLORIDA PROBATE CODE (Fla. Bar 11th ed. 2022).

« Ch. 6 », « § 6.9 » 1 Litigation Under FL Probate Code § 6.9 (2022)

§ 6.9. EXECUTIONS AND LEVIES No execution or other process must issue on or be levied against property of the estate without the approval of the probate court. F.S. 733.706. This, however, does not prevent the enforcement of mortgages, security interests, or liens encumbering specific property. Id. Before the overhaul of the Florida Probate Code, effective in 1976, there was a total bar against levying against the property of an estate. See F.S. 733.19 (1973) and predecessor statutes. Cases decided under these earlier statutes upheld this bar. Cumberland & Liberty Mills v. Keggin, 139 Fla. 133, 190 So. 492 (1939) (liens of judgments obtained against decedent during decedent’s lifetime are not included in exception for enforcement of mortgages, security interests, or liens on specific property). See Brown v. Sweat, 149 Fla. 524, 6 So. 2d 538 (1942) (prohibition against levy against property of estate extended to interest of beneficiary in estate while it remained in hands of administrator). In Brown, the judgment sought to be enforced was against the sole beneficiary of the estate. A judgment creditor who perfected a garnishment against the judgment debtor’s bank account during the debtor’s lifetime was not barred by former F.S. 733.19 in Carratt v. Humphreys, 279 So. 2d 895 (Fla. 4th DCA 1973). Likewise, in Desiderio v. D’Agostino, 127 Fla. 377, 173 So. 682 (1937), when attachment was issued and levied on the defendant’s real estate during his lifetime, the court held that this created a specific lien on the attached real estate that could be enforced against the real estate after the defendant’s death. The result in these cases would probably be the same under present F.S. 733.706 because the key in both cases was that the lien had become a lien on specific property of the decedent before his death and was not merely a general judgment lien. A judgment creditor of the decedent is required to file a claim against the estate or be barred. The claim of the judgment creditor of the decedent is of the lowest priority. The lien of the judgment obtained against the decedent during his or her lifetime is a general lien and not a lien on specific property.

F.S. 733.706–733.707; Gilpen v. Bower, 152 Fla. 733, 12 So. 2d 884 (1943). Thus, the judgment creditor merely has a claim in the same manner as other general creditors of the lowest priority. A judgment creditor of the decedent who does not have a lien on specific property may not execute and levy on the assets of the estate by reason of the judgment obtained against the decedent. This is so even when proceedings supplementary were commenced during the decedent’s lifetime, but the decedent died during the pendency of the proceedings, before the order of execution was issued. Goldstein v. Braswell, 987 So. 2d 123 (Fla. 3d DCA 2008). The purpose of prohibiting execution and levy or other process against the assets of the estate is to prevent interference in the administration of these assets. Brown. If an objection is filed to the claim of any creditor and an action is brought by the creditor to establish the claim, a judgment establishing the claim gives it no priority over the claims of the class to which it belongs. F.S. 733.705(5). The rule is the same for judgments obtained when a lawsuit was brought before objection, and for actions brought to establish contingent claims. F.S. 733.705(5), (8). The purpose of the addition to the statute to permit levy on the property of the estate with the court’s consent is to permit levy when there is a judgment against the estate itself, when the underlying action is against the estate itself and not the decedent. Because F.S. 733.707 provides for the order of payment of expenses and obligations, the execution and levy should be permitted only when the payment of expenses and obligations having priority would not be jeopardized. To permit otherwise would elevate the debt of the judgment creditor to a priority higher than its statutory class or give it priority over others in the same class. The Florida Supreme Court in May v. Illinois National Insurance Co., 771 So. 2d 1143, 1154 (Fla. 2000), has explained that when a creditor of the decedent has failed to file a timely claim in the probate proceeding, yet has obtained a judgment against the estate on the debt in an independent action (through failure of the estate to assert the bar under F.S. 733.702 in the independent action), the “sole possibility for recovery against the estate is for the probate court to grant an extension of time for the filing of a claim on the grounds of fraud, estoppel, or insufficient notice.” When the claim is not filed within two years of the decedent’s death, F.S. 733.710 bars recovery, because

the probate court is without authority to extend the time period beyond the time in F.S. 733.710. May. See §§ 6.2.B.2–6.2.B.3. A beneficiary’s interest in a decedent’s estate may be subject to garnishment. In Murray v. Nationsbank of Florida, N.A., 846 So. 2d 548 (Fla. 4th DCA 2003), the district court upheld the probate court permitting the garnishment of a beneficiary’s interest when it found that garnishment would not interfere with the administration of the estate. The District Court of Appeal, Fourth District, stated that F.S. 733.706 changed the common-law rule that executors were not subject to garnishment on account of legacies payable to a debtor. The court certified conflict with Flanary v. Bailey, 591 So. 2d 308 (Fla. 5th DCA 1991), noting that the Flanary court had not considered statutory changes relevant to the cases it relied on.

« Ch. 6 », « § 6.10 » 1 Litigation Under FL Probate Code § 6.10 (2022)

§ 6.10. TOLLING STATUTE OF LIMITATIONS The death of the decedent tolls any statute of limitations that would run between the date of the decedent’s death and the date of the expiration of the nonclaim period. If a claim is timely filed, it must proceed as other claims against the estate notwithstanding the expiration of the time limit for commencement of the action. F.S. 733.104(2). In Estate of Geelhoed by & through Johnson, 543 So. 2d 332 (Fla. 4th DCA 1989), the mortgagor died before the time the statute of limitations had run on the note and mortgage. The mortgagee filed its claim against the estate after the statute of limitations had run but before the expiration of the claim period. The court held that the death of the debtor tolled the statute of limitations. See Estate of Cadden v. Schickedanz, 855 So. 2d 651 (Fla. 4th DCA 2003).

« Ch. 6 », « § 6.11 • 1 Litigation Under FL Probate Code § 6.11 (2022)

§ 6.11. APPEALS Fla. Prob. R. 5.100, as amended effective January 1, 2001, provides: “Appeal of final orders and discretionary appellate review of non-final orders are governed by the Florida Rules of Appellate Procedure.” Fla. R. App. P. 9.170(b), effective January 1, 2012, authorizes the review of orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. See former Rule 9.110(a)(2). The District Court of Appeal, Fourth District, has concluded that former Rule 9.110(a)(2) “does not abrogate prior case law holding that a party’s right of appeal arises when there is a termination of judicial labor on the issue involved as to that party.” In re Estate of Walters, 700 So. 2d 434, 435 n.1 (Fla. 4th DCA 1997). The District Court of Appeal, Second District, has concluded that it also “does not abrogate the prior case law holding that finality must be viewed from the perspective of the appellant who is challenging the order … ‘[It depends on] whether the Order appealed from finally determined the particular question as to such party.’ ” In re Estate of Nolan, 712 So. 2d 421, 423 (Fla. 2d DCA 1998), quoting Tyler v. Huggins, 175 So. 2d 239, 241 (Fla. 2d DCA 1965). Effective January 1, 2012, Rule 9.170 provides a list of appealable orders that finally determine a right or obligation. The list is not exclusive, and the general rule should continue to apply. A detailed discussion of appellate practice in probate is contained in Chapter 14 of this manual. For a discussion of appeals generally, see FLORIDA APPELLATE PRACTICE (Fla. Bar 11th ed. 2020). Footnotes — Chapter 6: *

J.D. with high honors, 1973, University of Florida. Mrs. Price is a member of The Florida Bar, the American and Orange County bar associations, and is a Fellow of the American College of Trust and Estate Counsel. She is Florida Bar Board Certified in Wills, Trusts and Estates. Mrs. Price is Of Counsel at GrayRobinson, P.A., in Orlando.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 7 » 1 Litigation Under FL Probate Code Ch. 7 (2022)

Chapter 7 WILL CONSTRUCTION MICHAEL D. SIMON* WILLIAM T. HENNESSEY** JOHN C. MORAN*** CHRISTINE B. SWEET**** Contents § 7.1. PRELIMINARY CONSIDERATIONS A. Necessity Of Probate B. Review Of Facts And Law C. Consideration Of Stipulated Construction § 7.2. JURISDICTION; CHOICE OF FORUM; JURY TRIAL OF RELATED ISSUES A. Circuit Court B. Federal Court C. Availability Of Jury Trial § 7.3. DRAFTING PETITION OR COMPLAINT A. Contents B. Parties C. Sample Petition For Construction Of Will D. Notice E. Form For Notice F. Form Proof of Service Of Formal Notice § 7.4. PROCEDURE A. In General

B. Waiver And Consent 1. In General 2. Sample Waiver And Consent C. Default § 7.5. RULES OF CONSTRUCTION A. In General B. Statutory Rules 1. Simultaneous Death Law 2. Antilapse; Deceased Devisee 3. Failure Of Testamentary Provision 4. Change In Securities; Accessions; Nonademption 5. Nonademption Of Specific Devises In Certain Cases 6. Exercise Of Power Of Appointment 7. Construction Of Terms 8. Ademption By Satisfaction 9. Devises To Multigenerational Classes Are Per Stirpes 10. Penalty Clause For Contest 11. Principal And Income 12. Reformation And Modification Of Wills C. Interpretative And Probative Rules 1. In General 2. Cardinal Rule—Intent Of Testator 3. Other Rules a. Choice Of Law; Realty And Personalty b. Intestacy Not Favored c. Will Construed As A Whole d. Clauses In Conflict e. Spouses And Blood Relatives Favored f. Republication Of Wills g. Date Of Construction h. Disinheritance § 7.6. ADMISSIBILITY OF EXTRINSIC EVIDENCE A. Latent And Patent Ambiguities

1. In General 2. Latent Ambiguity 3. Patent Ambiguity B. Examples Of Admissible Extrinsic Evidence C. Circumstances Surrounding Execution Of Will § 7.7. LAWYER’S AND PERSONAL REPRESENTATIVE’S COMPENSATION § 7.8. LIMITED JUDICIAL CONSTRUCTION OF TAX PROVISIONS RELATING TO SUSPENSION OF FEDERAL ESTATE TAX AND GST TAX FOR 2010 « Ch. 7 », • § 7.1 » 1 Litigation Under FL Probate Code § 7.1 (2022)

§ 7.1. PRELIMINARY CONSIDERATIONS « Ch. 7 », • § 7.1 », • A » 1 Litigation Under FL Probate Code § 7.1.A (2022)

A. Necessity Of Probate A will construction action is not “ripe” until the will at issue has been admitted to probate and any will contest has been resolved. Cody v. Cody, 127 So. 3d 753 (Fla. 1st DCA 2013). F.S. 733.213 provides that no construction proceeding may be maintained until the Will has been admitted to probate. This provision in the Florida Probate Code follows longstanding Florida constitutional and statutory law and applies whether the contemplated action is to be brought in the circuit court or in a federal district court. Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S. Ct. 10, 54 L. Ed. 80 (1909); First National Bank of Miami v. Risolia, 200 So. 2d 260 (Fla. 3d DCA 1967); In re Estate of Dahl, 125 So. 2d 332 (Fla. 2d DCA 1960); Strickland v. Peters, 120 F.2d 53 (5th Cir. 1941). Accordingly, before the will construction action is filed, the probate court already will have determined issues relating to proper execution, testamentary capacity, whether the will was revoked during the testator’s life, and whether the will was procured by fraud or undue influence. The validity of a will is a matter for the sole determination of a probate

court. Dahl. All courts of equity, however, have the power to construe wills. Id. Thus, although the validity of the will first must be determined by the probate division of the circuit court, there is no reason why the general jurisdiction division of the circuit court or the federal district court cannot construe a will after its admission to probate. See id. This assumes, however, that the circuit provides for a separate probate division as authorized by Article V, §§ 7 and 20(c)(10), of the Florida Constitution. Additionally, the closing of the probate action does not foreclose the court’s authority to construe a will when necessary to settle disputes between beneficiaries or when needed for further administration. Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016). « Ch. 7 », • § 7.1 », « B » 1 Litigation Under FL Probate Code § 7.1.B (2022)

B. Review Of Facts And Law If it becomes necessary to construe a will for the purpose of determining the rights of any interested party, the interested party may file either a bill in equity or a petition for construction in the estate administration proceedings. Ordinarily, it will not be in the best interest of the client to present a petition or complaint to the court asking for a construction without offering one or more alternative constructions. For this reason, it is wise to examine the facts and the law carefully before drafting and filing the pleadings. Occasionally, ambiguity in a will can be resolved by applying a rule of construction to the literal terms of the will. Although, in many cases, the lawyer will not have the good fortune to solve the client’s problem with a clearly dispositive rule of law, these rules should be reviewed first in all instances. See §§ 7.5.A–7.5.C.3.h. The ambiguity also may be ascribed a logical interpretation by reference to facts and circumstances extrinsic to the will. See §§ 7.7.A.1–7.7.C. With respect to the gathering of information, the Florida Probate Rules provide that many of the discovery provisions available under the Florida Rules of Civil Procedure are applicable to probate proceedings. See Fla. Prob. R. 5.080. This is true regardless of whether the proceedings are “adversary” under Rule 5.025. Rule 5.080(c). « Ch. 7 », • § 7.1 », « C • 1 Litigation Under FL Probate Code § 7.1.C (2022)

C. Consideration Of Stipulated Construction Because the will of every testator is unique, and the intent of the testator is paramount in construing a will, there are rarely any clearly dispositive rules or precedent that govern the construction of a will in a given instance. See §§ 7.5.A–7.5.C.3.h for a discussion of the applicable rules of construction. For this reason, it is often wise for all persons interested in the construction of a will to consider presenting a stipulated construction to the court for approval. The stipulated construction should represent a logical and fair interpretation of the provisions that are in question. This approach often permits a more detailed and “fine-tuned” judgment of construction than one made by the court after consideration of competing briefs and arguments. The potential tax consequences of a given construction must also be considered. Although it is the practice of the Internal Revenue Service (IRS) to refuse to be a party to proceedings for the construction of wills, the IRS is not bound in federal tax matters by a lower court’s determination of the construction of a will unless that determination has been affirmed by the state’s highest court. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967); Estate of Simpson v. Commissioner, ¶ 259 T.C.M. (RIA), 67 T.C.M. (CCH) 3062 (1994). Nevertheless, a court’s decree construing the terms of a will, even if based on a stipulation of all interested persons, ordinarily will be given considerable weight in the determination of the tax implications of the will under consideration. Bosch. In preparing a stipulation, care must be taken to avoid an agreed allocation of benefits among contending parties that amounts to a taxable gift by some parties to other parties. Any stipulation that does not represent a reasonably fair resolution of competing interests, taking into account the pertinent facts and law of the particular case, should be avoided to prevent adverse gift tax consequences. If, however, the parties are willing to incur the consequences, F.S. 733.815 permits interested persons to “agree among themselves to alter the interests, shares, or amounts to which they are entitled.” Any such private contract among interested persons must be in writing. Id.; Mullins v. Mullins, 274 So. 3d 513 (Fla. 5th DCA 2019). The potential benefits of a stipulated construction of a will should not lead the practitioner to the conclusion that a court may enter its judgment adopting any construction. If the provisions of the will are clear and

unambiguous, construction of the document is generally precluded. F.S. 732.6005; Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014); Owens v. Estate of Davis ex rel. Holzauser, 930 So. 2d 873 (Fla. 2d DCA 2006); Barley v. Barcus, 877 So. 2d 42 (Fla. 5th DCA 2004); Adkins v. Woodfin, 525 So. 2d 447 (Fla. 4th DCA 1988). However, effective July 1, 2011, in a significant departure from prior law, the Florida Probate Code was amended to permit the reformation of a will to correct mistakes and the modification of a will to achieve a testator’s tax objectives. See F.S. 732.615, 732.616. See also § 7.5.B.12 for a discussion of the changes in Florida law regarding the reformation and modification of wills. Because courts are generally not permitted to construe an unambiguous will, even a stipulated construction presented to the court should be accompanied by a well-reasoned argument addressing why that stipulation is necessary, appropriate, and proper under the circumstances. Aldrich. See, e.g., In re Estate of Reese, 622 So. 2d 157 (Fla. 4th DCA 1993), in which the trial court refused to approve a stipulated construction.

« Ch. 7 », « § 7.2 » 1 Litigation Under FL Probate Code § 7.2 (2022)

§ 7.2. JURISDICTION; CHOICE OF FORUM; JURY TRIAL OF RELATED ISSUES « Ch. 7 », « § 7.2 », • A » 1 Litigation Under FL Probate Code § 7.2.A (2022)

A. Circuit Court The most commonly used forum in Florida for proceedings involving construction of wills is the circuit court. In most judicial circuits in Florida, a probate division, separate from the general jurisdiction division of the circuit court, has been established, as authorized by Article V, § 7, of the Florida Constitution. In these circuits, reference should be made to any local rules or administrative orders requiring the filing of construction or other probaterelated proceedings in the probate division, as opposed to the general jurisdiction division. In most instances, it will be more efficient and economical to file the will construction proceeding as part of the probate proceeding. Interested persons in the probate proceeding may be served by formal notice rather than by service of process. See § 7.3.D. In addition, the probate judge generally will have more experience with the legal issues and analysis involved in a will construction proceeding. Except for any requirements of local rules, which sometimes assign such proceedings to the probate division (e.g., Palm Beach County), a separate action under F.S. Chapter 86 may be instituted in the civil division of the circuit court for a declaratory judgment construing the provisions of the will. See F.S. 86.041(3), which provides that any interested person may file for a declaratory judgment construing the provisions of a will. « Ch. 7 », « § 7.2 », « B » 1 Litigation Under FL Probate Code § 7.2.B (2022)

B. Federal Court In Markham v. Allen, 326 U.S. 490, 66 S. Ct. 296, 90 L. Ed. 256 (1946),

the United States Supreme Court recognized a “probate exception” to jurisdiction, stating that federal courts have no jurisdiction to probate a will or administer an estate. The Court explained, however, that federal courts have jurisdiction to entertain lawsuits to establish the claims of creditors, legatees and heirs, “so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court.” Id. at 494. The Court also noted that “a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court.” Id. Other courts have recognized federal jurisdiction over certain probate-related claims that do not attack a will, such as an action to construe a will. See, e.g., National Audubon Society, Inc. v. Marshall, 424 F.2d 717 (5th Cir. 1970). See also Byers v. Byers, 254 F.2d 205, 209 (5th Cir. 1958) (treating lawsuit as action for declaratory relief that was “a civil suit or controversy and was not a proscribed probate proceeding [because] [t]he suit did not attack the will”). In these cases, courts have held that federal jurisdiction requirements must be complied with relating to diversity of citizenship, amount involved, and similar issues. See 28 U.S.C. §§ 1332, 1391. Moreover, under these circumstances, it appears that the will must first be admitted to probate by the state circuit court. See § 7.1.A. In May 2006, in the wake of litigation surrounding the estate of Texas billionaire J. Howard Marshall II and his widow, well-known model and actress Anna Nicole Smith (since deceased), the United States Supreme Court clarified its opinion in Markham. Marshall v. Marshall, 547 U.S. 293, 126 S. Ct. 1735, 164 L. Ed. 2d 480 (2006). In reversing the Ninth Circuit Court of Appeals, the Court held that the “probate exception” to federal jurisdiction does not preclude an action for tortious interference with an expectancy filed by Vickie Lynn Marshall (aka Anna Nicole Smith). The Court opined that the Ninth Circuit, which had found that the federal proceedings interfered with the probate proceedings filed in Texas, applied the probate exception too broadly. Writing for a unanimous Court, Justice Ginsburg observed that the declaration in Markham that federal courts have jurisdiction as long as they do not “ ‘interfere with the probate proceedings’ ” is unclear and has resulted in lower federal courts construing those words “to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a

decedent’s estate.” Marshall, 547 U.S. at 311, quoting Markham, 326 U.S. at 494. The United States Supreme Court focused on the language in the Markham opinion, which directs federal courts to avoid “ ‘disturb[ing] or affect[ing] the possession of property in the custody of a state court.’ ” Marshall, 547 U.S. at 296, quoting Markham, 326 U.S. at 495. The Court explained that the “interference” language in Markham was “essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res.” Marshall, 547 U.S. at 311. Based on the foregoing reasoning, the Unites States Supreme Court took a narrower view of the probate exception than the Ninth Circuit, and provided the following guidance to the lower courts and to practitioners: [T]he probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent’s estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. Id. at 311–312. See Curtis v. Brunsting, 704 F.3d 406 (5th Cir. 2013); Kelly v. Ely, 2015 WL 1061720 (N.D. Fla. 2015). For a discussion of federal jurisdiction and the application of the probate exception, as established by the United States Supreme Court in Markham, see Goodstein v. Goodstein, 2019 U.S. Dist. LEXIS 19261, 2019 WL 1383656 (S.D. Fla. 2019), and Estate of Hibbard v. Hibbard, 2018 U.S. Dist. LEXIS 90431, 2018 WL 2445690 (M.D. Fla. 2018). In most instances, parties will not resort to federal courts for construction of a will. If the docket of the federal district court is less crowded than that of the circuit court, however, a quicker determination of the matter conceivably could be made in the federal court. Additionally, if it is necessary to obtain enforcement of a decree of construction in a nondomiciliary state, a federal judgment might be preferable because of the less cumbersome mechanism available for enforcing federal judgments in other states as compared to the enforcement of judgments of a sister state. For example, if the question of construction involves devolution of real property situated in another state, not only would the court trying the construction issues be required to apply the

law of the situs of the real estate, but presumably the judgment would have to be made enforceable and be recorded in the jurisdiction in which the real property is situated. « Ch. 7 », « § 7.2 », « C • 1 Litigation Under FL Probate Code § 7.2.C (2022)

C. Availability Of Jury Trial Probate courts traditionally have been considered courts of equity rather than courts of law. Accordingly, most probate issues are tried by the court without a jury. Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955); In re Estate of Howard, 542 So. 2d 395 (Fla. 1st DCA 1989); In re Estate of Ciccorella, 407 So. 2d 1044 (Fla. 3d DCA 1981). The construction of a will generally involves a mixture of questions of law and fact. At the discretion of the court, the factual questions in an equity case may be submitted to an advisory jury. Berg v. New York Life Insurance Co., 88 So. 2d 915 (Fla. 1956); Vista Centre Venture v. Unlike Anything, Inc., 603 So. 2d 576 (Fla. 5th DCA 1992). Courts have applied this principle in probate matters. See, e.g., In re Estate of Wartels, 338 So. 2d 48 (Fla. 3d DCA 1976), aff’d 357 So. 2d 708 (recognizing use of advisory jury in question of validity of antenuptial agreement renouncing homestead rights); In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976) (recognizing use of advisory jury in questions of testamentary capacity). Although there is no right to a jury trial in probate proceedings involving the construction of a will, the practitioner should ensure that a possible entitlement to a jury determination of one or more related or companion issues is not waived. The lawyer can explicitly reserve the right to a jury trial for the other issues in the initial pleading. If a demand for jury trial is anticipated, the lawyer should also check with the probate judge’s judicial assistant and the local rules to determine whether a jury trial will be permitted in the probate division. The subject of jury trials in probate litigation is discussed at more length in Chapter 10 of this manual.

« Ch. 7 », « § 7.3 » 1 Litigation Under FL Probate Code § 7.3 (2022)

§ 7.3. DRAFTING PETITION OR COMPLAINT « Ch. 7 », « § 7.3 », • A » 1 Litigation Under FL Probate Code § 7.3.A (2022)

A. Contents In most instances, the will construction action will be filed as part of the probate proceedings by way of a “petition” rather than a “complaint.” The petition should set forth the name of the petitioner, the petitioner’s interest in the estate, the names of all other persons having an interest in the estate, and the facts giving rise to the need for construction. Additionally, the petition should include the appropriate case caption for an adversary proceeding. Fla. Prob. R. 5.025. A sample petition is found in § 7.3.C. The petition should also set forth the most appropriate and proper construction of the ambiguity that is at issue. If there is more than one possible construction, the alternative constructions should be set forth in descending order of appropriateness. The practice of carefully delineating alternative constructions of a will is particularly recommended when the petitioner is interested beneficially in the outcome of the construction proceedings. Even when the petition is filed by the personal representative acting only as a stakeholder, it is still wise to provide the court with a thorough presentation of the petitioner’s alternatives and carefully considered views. This procedure enables other interested persons to determine whether they agree or disagree with the proposed construction. The petition does not have to be signed or verified by the petitioner. Rule 5.020(a). However, the petition must be signed by the lawyer of record for the petitioner. Id. If the will construction action is filed outside of the probate proceedings as a separate action under F.S. Chapter 86 or in federal court, the action will be styled as a “complaint” rather than as a “petition.” A complaint for declaratory judgment must be signed by the lawyer of record for the plaintiff.

Fla. R. Gen. Prac. & Jud. Admin. 2.515(a); Fed. R. Civ. P. 11(a). Because most practitioners will proceed in the probate division, the following discussion of procedural aspects focuses on the issues involved in properly preparing, filing, and serving a petition in the probate division of the circuit court. « Ch. 7 », « § 7.3 », « B » 1 Litigation Under FL Probate Code § 7.3.B (2022)

B. Parties Any “interested person” can file a will construction action. F.S. 731.201(23) defines an “interested person” as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” See Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012) (lost will case discussing distinction between interested person under F.S. 731.201(23) and disinterested witness under F.S. 733.207). The personal representative or one or more of the beneficiaries under the will are generally considered the proper parties with standing to file a will construction action. The petitioner should name all other interested persons as respondents so that all necessary parties are properly before the court. In a will construction action, interested persons would include the personal representative, if the personal representative is not the petitioner, and all will beneficiaries whose interests will be affected by the outcome of the construction proceeding. Frequently, situations arise in which some or all the beneficiaries of the estate are either minors, unborn, unascertained, or under a legal disability. To the extent there is no conflict of interest, these persons are bound by an order construing a will if they are adequately represented by another party having the same or greater quality of interest in accordance with the Florida Probate Code’s virtual representation provision, F.S. 731.303. See F.S. 731.303(1)(c). If there is a potential conflict of interest among the beneficiaries, the petitioner should ask the court to appoint a guardian ad litem in the petition for will construction. See Fla. Prob. R. 5.120(a). Rule 5.120 sets forth the procedural requirements for qualifying a guardian ad litem and the duties of the office. The guardian ad litem can be appointed at any stage in the proceedings if the court determines that representation of the interests of the minor, unborn, or unascertained beneficiaries, or beneficiaries under a

disability, would otherwise be inadequate. F.S. 731.303(4); Rule 5.120(a); Fla. R. Civ. P. 1.210(b). If there is no conflict, a guardian ad litem may be appointed to represent several persons or interests. F.S. 731.303(4); Rule 5.120(a). After appointment, the guardian ad litem must file an oath to discharge his or her duties faithfully. Rule 5.120(a). It is not necessary to serve any process on guardians ad litem, but they should “appear and defend as directed by the court.” Id. For the requirements of a petition for appointment of guardian ad litem, see Rule 5.120(b). See also § 8.5.D.1 of this manual. Guardians ad litem are fiduciaries and are entitled to compensation for the reasonable value of their services. They have perhaps an even higher duty than that which an ordinary guardian would have because guardians ad litem often do not know the identity of their clients. The specter of confrontation at a later date with a beneficiary who was “unascertained” and whom a guardian represented should reinforce the guardian’s resolve to represent the best interest of his or her client. Rodriguez v. Levin, 524 So. 2d 1107 (Fla. 3d DCA 1988). « Ch. 7 », « § 7.3 », « C » 1 Litigation Under FL Probate Code § 7.3.C (2022)

C. Sample Petition For Construction Of Will IN THE CIRCUIT COURT FOR GREEN COUNTY, FLORIDA PROBATE DIVISION IN RE: ESTATE OF JOHN SMITH Alice Smith, Petitioner, vs.

File Number 2016-1234

Raymond Smith and

Adversary Proceeding No. 007

James Smith, individually and as Co-Personal

Representatives, Respondents.

PETITION FOR CONSTRUCTION OF WILL Petitioner, Alice Smith, a person interested in the estate of John Smith, deceased, alleges: 1. Decedent, John Smith, died on or about December 1, 2021. 2. John Smith’s last will dated September 15, 2012, was admitted to probate by this Court on January 15, 2022. Letters of administration were issued to Raymond Smith and James Smith as co-personal representatives on January 15, 2021. A true copy of the will is attached as Exhibit “A”. 3. Petitioner is John Smith’s daughter and is a beneficiary designated in Article “FIFTH” of the decedent’s will. 4. John Smith was not survived by a spouse and was not survived by any children of any predeceased child. John Smith was survived by four children, all over the age of 18. The four children are Petitioner, Bill Smith, Raymond Smith, and James Smith. 5. Petitioner, Bill Smith, Raymond Smith, and James Smith are interested persons for purposes of this proceeding. 6. On August 1, 2021, four months before his death, John Smith deeded his farm in Davie, Florida (“Farm”), to his son, James Smith. At the time of this conveyance the Farm was worth approximately 25% of John Smith’s total estate. 7. Article “FIFTH” of the decedent’s will provides: “I give, devise and bequeath all of the rest, residue, and remainder of my estate, of whatever kind and wherever situated, as follows: (i) 25% to my son Raymond Smith (ii) 25% to my daughter Alice Smith; and (iii) 25% to my son Bill Smith.”

8. Article “FIFTH” of the decedent’s will is ambiguous in that it purports to dispose of the decedent’s residuary estate by disposing of 25% to Petitioner, 25% to Petitioner’s brother Bill Smith, and 25% to Petitioner’s brother Raymond Smith. There is no express disposition of the remaining 25% of the residuary estate necessary to constitute 100% of the decedent’s residuary estate. 9. There are at least two possible constructions of Article “FIFTH” of the decedent’s will: a. The most appropriate construction and the one most clearly consistent with the overall intent of the testator, as evidenced by the terms of the will and the testator’s inter vivos conveyance of his Farm to James Smith, is that the decedent intended his entire residuary estate to be divided equally among his three children other than James, who had received approximately 25% of the testator’s estate six weeks before the will was executed. This construction would require that one third of the residuary estate be distributed to each of the decedent’s three children other than James, i.e., to Petitioner, Bill Smith, and Raymond Smith. b. A second possible construction is that the decedent inadvertently failed to dispose of 25% of his residuary estate. This construction would require that 25% be distributed in accordance with the rules governing intestacy. Any intestate property would pass in equal shares to each of the four children of the testator surviving him. WHEREFORE, Petitioner respectfully requests this Court enter an order: (a) construing the provisions of Article “FIFTH” of the will of John Smith to require that the decedent’s residuary estate be distributed in equal shares to Petitioner, Bill Smith, and Raymond Smith; (b) in the alternative, determining that John Smith died intestate as to 25% of his residuary estate and in that event, determining that the 25% is distributable, as in intestacy, in equal shares to each of the decedent’s four surviving children: Petitioner, Bill Smith, James Smith, and Raymond Smith;

(c) awarding Petitioner her costs and attorneys’ fees under F.S. 733.106; and (d) awarding such other and further relief as this Court deems fair and just. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. /s/ Alice Smith Petitioner By: /s/ Charles Baroo Attorney for Petitioner 123 Main Street Seminole, Florida 31234 (904) 123-4567 [email protected] Florida Bar No. 123456 COMMENT: Signature of the interested person and verification of the petition are optional. See § 7.3.A. « Ch. 7 », « § 7.3 », « D » 1 Litigation Under FL Probate Code § 7.3.D (2022)

D. Notice Proceedings to construe a will in the probate division of the circuit court are deemed “adversary proceedings” and require formal notice to all interested persons. Fla. Prob. R. 5.025(a), (d)(1). The practitioner should note, however, that Rule 5.025(d)(1) was amended to provide an exception to the formal notice requirement as to proceedings under F.S. 825.1035 (Injunction for protection against exploitation of a vulnerable adult). In re: Amendments to Florida Probate Rules—2018 Fast-track Report, 253 So. 3d 983 (Fla. 2018). “ ‘Formal notice’ means a form of notice that is described in and served by a method of service provided under [Rule] 5.040(a).” F.S. 731.201(18). Formal notice must inform the person served that he or she must serve

written defenses on the person giving notice within 20 days after service of the notice. Rule 5.040(a)(1). If no written defenses are served within 20 days after service by formal notice, a default may be entered against the interested persons who have failed to respond in accordance with the Florida Rules of Civil Procedure. See Rules 5.025(d)(2), 5.040(a)(2); Fla. R. Civ. P. 1.500. Under F.S. 731.201(18), F.S. 731.301(1), and Rule 5.040, formal notice can be served as provided by Florida law for service of process, as permitted by the Florida Rules of Civil Procedure for service of process, by a commercial delivery service requiring a signed receipt, or by any form of mail requiring a signed receipt. The precise methods of service are delineated in Rule 5.040(a)(3). The typical procedure is to mail notice by certified mail, return receipt requested. Proof of service should be made by verified statement of the person giving the notice. Rule 5.040(a)(6). A signed receipt or other evidence should be attached that would satisfy the court that delivery was either made to the addressee or refused by the addressee or the addressee’s agent. Id. If service is made under F.S. Chapter 48 or Chapter 49, proof of service should be made as provided in those chapters. Rule 5.040(a)(6). Service by mail or by a delivery service is complete upon receipt of the notice. Rule 5.040(a)(5). The practitioner should note that a 2016 revision to Rule 5.040 was adopted by the Florida Supreme Court, creating new subdivision (e), which specifies when service in a manner provided for service of formal notice is completed. In re Amendments to Florida Probate Rules, 199 So. 3d 835 (Fla. 2016). “If a document is served in the manner provided for service of formal notice, service is completed on receipt of the document.” Rule 5.040(e). See §§ 7.3.E and 7.3.F, respectively, for sample forms for formal notice and the proof of service. Service of process by publication on unknown heirs is authorized by F.S. 49.011(5), (12), and 49.021(1). If the interested person is a minor whose disabilities of nonage are not removed and who is not represented by a lawyer, service must be on the persons designated to accept service of process under F.S. Chapter 48. Rule 5.040(a)(4)(D) (subdivision inserted in response to Cason ex rel. Saferight v. Hammock, 908 So. 2d 512 (Fla. 5th DCA 2005)). « Ch. 7 », « § 7.3 », « E »

1 Litigation Under FL Probate Code § 7.3.E (2022)

E. Form For Notice

« Ch. 7 », « § 7.3 », « F • 1 Litigation Under FL Probate Code § 7.3.F (2022)

F. Form Proof of Service Of Formal Notice (Party Designation)

(Title of Court)

PROOF OF SERVICE OF FORMAL NOTICE

I certify that on _________, true copies of the Formal Notice with a copy of the (insert title of pleading, such as “PETITION FOR CONSTRUCTION OF WILL”) were mailed by United States certified mail, return receipt requested, or were delivered in a manner permitted by Fla. Prob. R. 5.040 (a), to: Signed receipts or other evidence that delivery was made to, or refused by, the addressee or the addressee’s agent is attached. Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged are true, to the best of my knowledge and belief. By: /s/ Charles Baroo Attorney for Petitioner 123 Main Street Seminole, Florida 31234 (904) 123-4567 [email protected] Florida Bar No. 123456

« Ch. 7 », « § 7.4 » 1 Litigation Under FL Probate Code § 7.4 (2022)

§ 7.4. PROCEDURE « Ch. 7 », « § 7.4 », • A » 1 Litigation Under FL Probate Code § 7.4.A (2022)

A. In General After service of formal notice, proceedings to construe the will, “as nearly as practicable, must be conducted similar to suits of a civil nature including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.” Fla. Prob. R. 5.025(d)(2). « Ch. 7 », « § 7.4 », « B » 1 Litigation Under FL Probate Code § 7.4.B (2022)

B. Waiver And Consent « Ch. 7 », « § 7.4 », « B », • 1 » 1 Litigation Under FL Probate Code § 7.4.B.1 (2022)

1. In General In many situations, all interested persons agree on the most appropriate construction of the will. In this case, if court approval of the proposed stipulation is desired, it may make sense to prepare and file a petition and have all of the interested persons sign a waiver of formal notice and consent to the proposed construction in the petition. Formal notice of the petition may be waived by any “interested person, including a guardian ad litem, administrator ad litem, guardian of the property, personal representative, trustee, or other fiduciary, or a sole holder or all coholders of a power of revocation or a power of appointment.” F.S. 731.302. A sample waiver and consent is found in § 7.4.B.2. « Ch. 7 », « § 7.4 », « B », « 2 • 1 Litigation Under FL Probate Code § 7.4.B.2 (2022)

2. Sample Waiver And Consent IN THE CIRCUIT COURT FOR

GREEN COUNTY, FLORIDA PROBATE DIVISION IN RE: ESTATE OF JOHN SMITH Alice Smith, Petitioner, vs.

File Number 2016-1234

Raymond Smith and

Adversary Proceeding No. 007

James Smith, individually and as Co-Personal Representatives, Respondents.

RAYMOND SMITH’S WAIVER, CONSENT TO JURISDICTION AND RELIEF, AND JOINDER IN PETITION FOR CONSTRUCTION OF WILL The undersigned, Raymond Smith, hereby acknowledges and accepts receipt of a copy of the Petition for Construction of Will (the “Petition”), and joins in the request for relief sought by Petitioner, and in support thereof alleges: 1. I, Raymond Smith, am a beneficiary under the last will of John Smith, dated September 15, 2012. 2. I acknowledge receipt of a copy of the Petition, and consent to the jurisdiction of this court over my person and the subject matter of this action. I waive my right to object to venue. I waive any requirement that the Petition be served by formal notice. 3. I join in and consent to the relief requested in the Petition and agree that the most appropriate construction and the one most clearly

consistent with the overall intent of John Smith (the “Testator”) is that the Testator intended his entire residuary estate to be divided equally among his three children other than James. 4. Having been given the opportunity to consult with independent counsel, I waive my right to file written defenses or other responsive pleadings in this action and hereby agree and acknowledge that this case is at issue and ready for trial or final hearing. WHEREFORE, I, Raymond Smith, having submitted myself to the jurisdiction of this Court, and waived my right to file written defenses or other responsive pleadings, respectfully request that this Court enter an order granting the relief requested in the Petition and construing the testator’s will to divide his entire residuary estate equally among his three children other than James. Signed on March 31, 2022. /s/ Raymond Smith « Ch. 7 », « § 7.4 », « C • 1 Litigation Under FL Probate Code § 7.4.C (2022)

C. Default As previously noted, a petition for construction of a will is an adversary proceeding, Fla. Prob. R. 5.025(a), to be conducted similarly to suits of a civil nature and is governed by the Florida Rules of Civil Procedure. Rule 5.025(d)(2). This applies as well to the entry of defaults. Id. If no responsive pleading to the petition is filed within the 20-day time period provided by Rule 5.040, a default may be entered against the party failing to respond. The practitioner should note, however, that a default may not be entered unless a nonmilitary affidavit is filed. See 50 U.S.C. § 3931. For the procedure to obtain information on military status, see FLORIDA REAL PROPERTY LITIGATION § 5.3.D (Fla. Bar 10th ed. 2021).

« Ch. 7 », « § 7.5 » 1 Litigation Under FL Probate Code § 7.5 (2022)

§ 7.5. RULES OF CONSTRUCTION « Ch. 7 », « § 7.5 », • A » 1 Litigation Under FL Probate Code § 7.5.A (2022)

A. In General Certain construction problems have reoccurred with sufficient regularity to have been treated frequently in case law. Many of these decisions have been codified by statutes in various jurisdictions, including Florida. See F.S. Chapter 732, Part VI, encompassing F.S. 732.6005–732.616. See also Uniform Probate Code, Article II, Parts 6–7. The practitioner should keep in mind, however, that the primary objective in construing a will is the intent of the testator. McKean v. Warburton, 919 So. 2d 341 (Fla. 2006). The principal rule of will construction is that the testator’s intent, as expressed in the will, controls the legal effect of the testator’s dispositions. F.S. 732.6005(1). See Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014); Cody v. Cody, 127 So. 3d 753 (Fla. 1st DCA 2013); Glenn v. Roberts, 95 So. 3d 271 (Fla. 3d DCA 2012); SPCA Wildlife Care Center v. Abraham, 75 So. 3d 1271 (Fla. 4th DCA 2011); Littell v. Law Firm of Trinkle, Moody, Swanson, Byrd & Colton, 345 F. App’x 415 (11th Cir. 2009) (construing trust agreement). See also § 7.5.C.2. Accordingly, a contrary intention expressed in the will generally overrides the common law or statutory rules of construction. F.S. 732.6005(1). Mosgrove v. Mach, 133 Fla. 459, 182 So. 786 (1938) (noting that intention of testator is general rule in exposition of wills). « Ch. 7 », « § 7.5 », « B » 1 Litigation Under FL Probate Code § 7.5.B (2022)

B. Statutory Rules « Ch. 7 », « § 7.5 », « B », • 1 » 1 Litigation Under FL Probate Code § 7.5.B.1 (2022)

1. Simultaneous Death Law

F.S. 732.601(1) provides generally that “[w]hen title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.” The statute also makes exceptions and deals with specific problems. For example, if joint tenants with the right of survivorship die simultaneously, the tenancy is severed and one half passes to the heirs of each joint tenant. F.S. 732.601(3). Likewise, if the insured and the beneficiary of a life insurance policy die simultaneously, the proceeds of a policy are distributed as if the insured had survived the beneficiary. F.S. 732.601(4). The sufficiency of the evidence to conclude that there were not simultaneous deaths is a matter to be determined by the trial court. In re Estate of Shine, 389 So. 2d 1191 (Fla. 4th DCA 1980). The general operation of the statute, however, may be superseded by a provision in a will. F.S. 732.601. A will provision of this type is naturally subject to judicial interpretation. See Silver v. Schroeder, 474 So. 2d 857 (Fla. 3d DCA 1985). « Ch. 7 », « § 7.5 », « B », « 2 » 1 Litigation Under FL Probate Code § 7.5.B.2 (2022)

2. Antilapse; Deceased Devisee At common law, a gift to a beneficiary who either was dead at the time of the execution of the will, failed to survive the testator, or was required by the will or by operation of law to be treated as though he or she predeceased the testator was said to “lapse.” See, e.g., Lorenzo v. Medina, 47 So. 3d 927 (Fla. 3d DCA 2010). In such instances, the lapsed gift would pass according to the residuary clause unless a contrary intent appeared in the will. Florida’s “antilapse statute,” F.S. 732.603, is intended to abrogate this doctrine in instances in which the decedent makes a gift to a devisee who is a close relative. Under F.S. 732.603(1), unless a contrary intent appears in the will, a devisee’s surviving descendants may take on the devisee’s behalf when the devisee (a) Is dead at the time of the execution of the will; (b) Fails to survive the testator; or

(c) Is required by the will or by operation of law to be treated as having predeceased the testator. The antilapse statute applies when the original devisee is the testator’s grandparent or a descendant of the grandparent. Id. Under these circumstances, “a substitute gift is created in the devisee’s surviving descendants who take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator.” Id. See ADMINISTRATION OF TRUSTS IN FLORIDA § 7.2 (Fla. Bar 11th ed. 2022). Additionally, when a power of appointment is exercised by will, unless a contrary intent appears in the will or document creating the power of appointment, a substitute gift is created in the appointee’s surviving descendants who take per stirpes the property to which the appointee would have been entitled had they survived the testator. F.S. 732.603(2). Again, this applies to appointees who are the testator’s grandparents or descendants of the testator’s grandparents when the appointee (a) Is dead at the time of the execution of the will or the creation of the power; (b) Fails to survive the testator; or (c) Is required by the will, the document creating the power, or by operation of law to be treated as having predeceased the testator. Id. “Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an object of a power for the object, a surviving descendant of a deceased object of a power of appointment may be substituted for the object whether or not the descendant is an object of the power.” Id. F.S. 732.603 applies only to outright devises and appointments. F.S. 732.603(4). Devises and appointments in trust may be treated differently and are subject to the provisions of the Florida Trust Code. Id.; F.S. 736.1106. For a thorough examination of those provisions, see ADMINISTRATION OF TRUSTS IN FLORIDA, supra, Chapter 7. The practitioner should note that the antilapse statute also applies when a devisee or beneficiary is deemed to predecease the decedent by operation of law, such as by the “slayer statute,” F.S. 732.802, or the simultaneous death

statute, F.S. 732.601. If the statute is inapplicable and no substitute devisee is designated in the will, the testamentary disposition to the predeceased devisee will fall into the residue of the estate. F.S. 732.604(1). See Hulsh v. Hulsh, 431 So. 2d 658 (Fla. 3d DCA 1983); In re Estate of Wagner, 423 So. 2d 400 (Fla. 2d DCA 1982); In re Estate of Skinner, 397 So. 2d 1193 (Fla. 4th DCA 1981). A person who would have been a devisee under a class gift, had the person survived the testator, remains a member of the class regardless of whether the person’s death occurred before or after the will was executed. F.S. 732.603(3)(b)4(b). « Ch. 7 », « § 7.5 », « B », « 3 » 1 Litigation Under FL Probate Code § 7.5.B.3 (2022)

3. Failure Of Testamentary Provision If the antilapse statute, F.S. 732.603, is not applicable (see § 7.5.B.2), a nonresiduary devise that fails becomes part of the residue. F.S. 732.604(1). Furthermore, if the residue is devised to two or more persons and the devise to one of the residuary devisees fails for any reason, that devise passes to the other residuary devisees in proportion to their interests in the residue. F.S. 732.604(2). If a residuary devise fails, Florida follows the common-law rule that the residue passes under the rules of intestate succession. See In re Estate of Bovee, 626 So. 2d 1096 (Fla. 1st DCA 1993); Swan v. Florida National Bank of Miami, 445 So. 2d 622 (Fla. 3d DCA 1984). The same rule applies if the will contains no residuary clause. See In re Estate of Guess, 213 So. 2d 638 (Fla. 3d DCA 1968). « Ch. 7 », « § 7.5 », « B », « 4 » 1 Litigation Under FL Probate Code § 7.5.B.4 (2022)

4. Change In Securities; Accessions; Nonademption F.S. 732.605 controls when specifically devised securities increase or decrease in value through stock splits, dividends, and other distributions. See In re Estate of Howard, 393 So. 2d 81 (Fla. 4th DCA 1981) (statute applies to stock split); McPhee v. Estate of Bahret, 501 So. 2d 1319 (Fla. 2d DCA 1986) (securities obtained as result of reorganization are included in specific

devise). The statute provides that, if the testator intended a specific devise of certain securities rather than their equivalent value, the specific devisee is entitled to (a) As much of the devised securities as is a part of the estate at the time of the testator’s death. (b) Any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options. (c) Securities of another entity owned by the testator as a result of a merger, consolidation, reorganization, or other similar action initiated by the entity. (d) Securities of the same entity acquired as a result of a plan of reinvestment. F.S. 732.605(1). See also Brundage v. Bank of America, 996 So. 2d 877 (Fla. 4th DCA 2008) (discussing similar provision in Florida Trust Code, F.S. 736.1107). It is important to note that the statute applies only when the testator devises a specific number of securities such as “50 shares of XYZ stock.” It does not include devises that simply provide for a gift of a specific dollar amount of securities such as “$500 worth of XYZ stock.” See F.S. 732.605(1). F.S. 732.605 will not entitle a specific devisee to a cash dividend declared and paid at a date before the testator’s death. In re Vail’s Estate, 67 So. 2d 665 (Fla. 1953). « Ch. 7 », « § 7.5 », « B », « 5 » 1 Litigation Under FL Probate Code § 7.5.B.5 (2022)

5. Nonademption Of Specific Devises In Certain Cases At common law, the doctrine of ademption applied to nullify a specific devise made in a will when the property at issue was no longer in the estate at the time of the testator’s death. See In re Estate of Walters, 700 So. 2d 434 (Fla. 4th DCA 1997). F.S. 732.606 sets forth two exceptions to the general common-law rule with respect to ademption arising when the testator sells or

otherwise disposes of a specifically devised asset. First, if the specifically devised property was sold by a guardian of the property, or if a condemnation award or insurance proceeds were paid to a guardian of the property, the specific devisee of the property is entitled to the pecuniary equivalent of the net sales price, the condemnation award, or the insurance proceeds. F.S. 732.606(1). Second, a devisee of a specific bequest is entitled to proceeds that remain unpaid at the time of the testator’s death from the sale of the property, a condemnation award, fire or casualty insurance proceeds, or foreclosure. F.S. 732.606(2). These two exceptions operate independently. Ott v. Ott, 418 So. 2d 460 (Fla. 4th DCA 1982). If the conditions of one of the statutory exceptions can be met, the intent of the testator is irrelevant. Owen v. Wilson, 399 So. 2d 498 (Fla. 5th DCA 1981). However, when circumstances described by F.S. 732.606 do not exist, evidence of the testator’s intent is admissible. In re Estate of Budny, 815 So. 2d 781, 783 (Fla. 2d DCA 2002) (“[e]xtrinsic evidence can prevent the ademption of a specific bequest if the bequeathed property can be traced to existing assets and if the evidence reflects that the testator did not intend by his disposal of the property to alter the testamentary scheme contained in his will”). See In re Estate of Jones, 472 So. 2d 1299 (Fla. 2d DCA 1985). « Ch. 7 », « § 7.5 », « B », « 6 » 1 Litigation Under FL Probate Code § 7.5.B.6 (2022)

6. Exercise Of Power Of Appointment F.S. 732.607 provides that “[a] general residuary clause in a will, or a will making general disposition of all the testator’s property, does not exercise a power of appointment held by the testator unless specific reference is made to the power or there is some other indication of intent to include the property subject to the power.” Furthermore, when a donor specifies a method for exercising the power, the method specified must be strictly complied with or the attempted exercise of the power will fail. See, e.g., Cessac v. Stevens, 127 So. 3d 675 (Fla. 1st DCA 2013) (donee’s failure to abide by donor’s requirements invalidated exercise of power of appointment); Talcott v. Talcott, 423 So. 2d 951 (Fla. 3d DCA 1983) (testator failed to exercise power in manner required by trust). However, the statute is inapplicable when the instrument creating the power of appointment clearly evidences the donor’s intent that the power may be exercised absent specific reference. Stewart v.

United States, 512 F.2d 269 (5th Cir. 1975). The practitioner should note that the exercise of a testamentary power of appointment is ineffective during the power holder’s lifetime. Richardson v. Richardson, 524 So. 2d 1126 (Fla. 5th DCA 1988). In Vetrick v. Keating, 877 So. 2d 54 (Fla. 4th DCA 2004), the District Court of Appeal, Fourth District, addressed many interesting issues relating to the construction of a testamentary power of appointment. The testator in Vetrick gave his surviving spouse the testamentary power to appoint property to his children. In her will, the surviving spouse exercised this power of appointment by appointing a portion of the property in trust for the benefit of the testator’s daughter, with the remainder passing to the testator’s daughter’s children upon her death. The daughter objected to the exercise of this power. In particular, the daughter argued that the power of appointment required that the property be distributed outright to her, not through a further trust. She claimed that the creation of a separate trust, with discretionary powers in the trustee, essentially delegated the power of appointment to the new trustee. The daughter also argued that the devise of the residue to her children at her death exceeded the power of appointment because the power of appointment was limited to the testator’s children. The Vetrick court held that, absent a stated intention to the contrary in the instrument, the surviving spouse could exercise the power of appointment by creating a further trust with the testator’s daughter as a life beneficiary. Regarding the remainder, the court agreed that the attempted disposition to the testator’s daughter’s children upon her death was invalid because it exceeded the power granted by the testator. However, the court held that the disposition of the remainder could be severed, such that the court could give effect to the valid portion of the power of appointment granting Judith a life estate. In determining whether the exercise of the power should be severed, the court looked to the intent of the testator and his surviving spouse as reflected in the overall estate plan. The result was that the testator’s daughter’s assets remained in trust with the residue passing under the default provisions of the testator’s will. « Ch. 7 », « § 7.5 », « B », « 7 » 1 Litigation Under FL Probate Code § 7.5.B.7 (2022)

7. Construction Of Terms

When determining whether class gift terminology and terms of relationship include adopted persons and persons born out of wedlock, “[t]he laws used to determine paternity and relationships for the purposes of intestate succession apply.” F.S. 732.608. Reference must therefore be made to the rules codified in F.S. 732.108. See Lewis v. Green, 389 So. 2d 235 (Fla. 5th DCA 1980), 11 A.L.R. 4th 927, for an example of the application of the rules of intestate succession concerning adopted children. The concept of republication by codicil may have an impact on the application of generic terms to the language in a will. See § 7.5.C.3.f. In Azcunce v. Estate of Azcunce, 586 So. 2d 1216 (Fla. 3d DCA 1991), a child was born after the execution of the original will but before execution of a codicil to the will. The court determined that the child was not pretermitted because republication causes the date of the will to be updated to that of the codicil. Although the republication concept is not absolute in its application, it always applies when the codicil expressly adopts the terms of the prior will. Id. « Ch. 7 », « § 7.5 », « B », « 8 » 1 Litigation Under FL Probate Code § 7.5.B.8 (2022)

8. Ademption By Satisfaction At common law, “ademption by satisfaction” occurred when the decedent satisfied a gift made under his or her will before death. This concept is similar to “advancements” under the law of intestacy. F.S. 732.609 provides that property given by a testator to a person during the testator’s lifetime is treated as a satisfaction of a devise to that person only if (1) the will provides for a deduction of the lifetime gift, (2) the testator declares in a contemporaneous writing that a deduction should be made for the gift, or (3) the devisee acknowledges satisfaction in writing. For purposes of satisfaction, the property should be valued at the time the devisee came into possession or enjoyment of the gift, or at the time of the death of the testator, whichever occurs first. Id. See Schneider v. Shinn, 636 So. 2d 110 (Fla. 3d DCA 1994). « Ch. 7 », « § 7.5 », « B », « 9 » 1 Litigation Under FL Probate Code § 7.5.B.9 (2022)

9. Devises To Multigenerational Classes Are Per Stirpes “Unless the will provides otherwise, all devises to descendants, issue, and

other multigenerational classes shall be per stirpes.” F.S. 732.611. See In re Estate of Benson, 548 So. 2d 775 (Fla. 2d DCA 1989). For further discussion of per stirpes distribution, see § 2.3.C of this manual. « Ch. 7 », « § 7.5 », « B », « 10 » 1 Litigation Under FL Probate Code § 7.5.B.10 (2022)

10. Penalty Clause For Contest F.S. 732.517 provides that “[a] provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Dinkins v. Dinkins, 120 So. 3d 601 (Fla. 5th DCA 2013). See § 3.2.B.4 of this manual for further discussion of “in terrorem” clauses. « Ch. 7 », « § 7.5 », « B », « 11 » 1 Litigation Under FL Probate Code § 7.5.B.11 (2022)

11. Principal And Income The Florida Uniform Principal and Income Act, F.S. Chapter 738, sets forth detailed rules for determining whether a receipt or expenditure is properly allocable to income or principal for estate accounting purposes. These rules do not always answer each question definitively. In-depth treatment of F.S. Chapter 738 is beyond the scope of this chapter. « Ch. 7 », « § 7.5 », « B », « 12 • 1 Litigation Under FL Probate Code § 7.5.B.12 (2022)

12. Reformation And Modification Of Wills When a will is presented for construction, the court can construe it only in the form in which it was left by the testator, read in light of the surrounding circumstances. In re Estate of McGahee, 550 So. 2d 83 (Fla. 1st DCA 1989); Pancoast v. Pancoast, 97 So. 2d 875 (Fla. 2d DCA 1957). See also In re Estate of Parker, 110 So. 2d 498 (Fla. 1st DCA 1959). Before July 1, 2011, it was the law of Florida that no court of law or equity could reform or rewrite a will. See, e.g., Owens v. Estate of Davis ex rel. Holzauser, 930 So. 2d 873 (Fla. 2d DCA 2006); In re Estate of Robinson, 720 So. 2d 540 (Fla. 4th DCA 1998); In re Estate of Barker, 448 So. 2d 28 (Fla. 1st DCA 1984). But see § 7.5.C.3.c, citing In re Estate of Reese, 622 So.

2d 157 (Fla. 4th DCA 1993) (court recognized general rule prohibiting reformation, but granted petition to construe will that divided testamentary trust into several new trusts, including certain tax-exempt trusts, to minimize federal tax liability), and In re Estate of Wood, 226 So. 2d 46, 50 (Fla. 2d DCA 1969) (courts can construe will to include additional words that were omitted “by inadvertence or oversight,” but that “are essential to the expression of the testator’s manifest intention”). As previously noted in § 7.1.C, in a significant departure from prior law, the Florida Probate Code was amended, effective July 1, 2011, to permit a court to reform a will, even if its terms are unambiguous, to correct the terms of a will if it is shown by clear and convincing evidence that the terms of the will were affected by a mistake. F.S. 732.615. “In determining the testator’s original intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.” Id. Under this statute, interested persons can now petition the court to fix a mistake in a will to conform the document to the testator’s true intent. See Eisenpresser v. Koenig, 239 So. 3d 90 (Fla. 4th DCA 2018) (personal representative’s lawyer’s closing argument statement that personal representative, who was also will beneficiary, had originally purchased and gifted particular item of jewelry in testator’s estate did not constitute evidence that would support reformation of will to grant that piece of jewelry to personal representative, after statement of personal property attached to will unambiguously bequeathed that piece of jewelry to different beneficiary). See also F.S. 736.0415 (reformation of trusts to correct mistakes). Similarly, the 2011 Florida Legislature also added F.S. 732.616, which permits any interested person to petition the court to modify a will to achieve the testator’s tax objectives in a manner that is not contrary to the testator’s probable intent. Although this procedure had been available for trusts since 2007, it only became applicable to wills in 2011. See F.S. 736.0416, the corresponding statute in the Florida Trust Code. Actions to reform a will and to modify a will are both specific adversary proceedings under Fla. Prob. R. 5.025(a). Accordingly, the proceedings, as nearly as practicable, are conducted like civil suits and are governed by the Florida Rules of Civil Procedure. Rule 5.025(d)(2).

« Ch. 7 », « § 7.5 », « C • 1 Litigation Under FL Probate Code § 7.5.C (2022)

C. Interpretative And Probative Rules « Ch. 7 », « § 7.5 », « C •, • 1 » 1 Litigation Under FL Probate Code § 7.5.C.1 (2022)

1. In General Although the foregoing statutory rules in many cases are dispositive of the question at issue in construing a will, there are will provisions that are uniquely ambiguous, and thus cannot be dealt with conclusively by any specific rule of law. In such an instance, the interpretative rules in §§ 7.5.C.2–7.5.C.3.h may assist in the resolution of these problems. « Ch. 7 », « § 7.5 », « C •, « 2 » 1 Litigation Under FL Probate Code § 7.5.C.2 (2022)

2. Cardinal Rule—Intent Of Testator As noted at § 7.5.A, the cardinal interpretative rule applicable in construction is that the intention of the testator as expressed in the will controls the legal effect of the testator’s dispositions. See Aldrich v. Basile, 136 So. 3d 530, 535 (Fla. 2014), quoting Adams v. Vidal, 60 So. 2d 545, 547 (Fla. 1952) (“ ‘in construing a will the intention of the testator is the controlling factor and it should be gleaned from the four corners of the will unless the language employed by the testator is ambiguous, in which case the testimony of competent witnesses may be received and considered as an aid to the court in its quest for the testator’s intent’ ”); Glenn v. Roberts, 95 So. 3d 271, 272 (Fla. 3d DCA 2012), quoting Bryan v. Dethlefs, 959 So. 2d 314, 317 (Fla. 3d DCA 2007), and Sorrels v. McNally, 89 Fla. 457, 105 So. 106, 109 (1925) (“the polestar of will interpretation is the testator’s intent, which is ‘ascertained from the four corners of the document through consideration of all the provisions of the will taken together, rather than from detached portions or any particular form of words’ ”); Ebanks v. Ebanks, 198 So. 3d 712 (Fla. 2d DCA 2016) (testator executed his will simultaneous with his marital settlement agreement so language in will directing that assets be passed according to beneficiary designations naming former wife were evidence of clear intent); Owens v. Estate of Davis ex rel. Holzauser, 930 So. 2d 873, 874 (Fla. 2d DCA 2006) (“A testator’s intent as expressed in his will

controls the legal effect of his dispositions.”); In re Estate of Roberts, 367 So. 2d 269, 271 (Fla. 3d DCA 1979) (“the intention of the testator is the polar star by which a probate court sets chart and compass”). See also SPCA Wildlife Care Center v. Abraham, 75 So. 3d 1271 (Fla. 4th DCA 2011); Cody v. Cody, 127 So. 3d 753 (Fla. 1st DCA 2013); Morgan v. Cornell, 939 So. 2d 344 (Fla. 2d DCA 2006). This rule has been codified in the Florida Probate Code. See F.S. 732.6005(1). Many cases stating this general proposition are cited in Smith, 1 FLORIDA PROBATE CODE MANUAL Chapter 3 (Lexis Pub. 2015), and BELCHER’S REDFEARN WILLS AND ADMINISTRATION IN FLORIDA Chapter 8 (Thomson/West 2021–2022 ed.). See also In re Estate of Tolin, 622 So. 2d 988 (Fla. 1993); Romaniello v. Romaniello, 760 So. 2d 1083 (Fla. 5th DCA 2000). This rule of construction has been criticized on the ground that it does not give helpful or dispositive guidance in many construction cases that arise. As stated in Thomas & Smith, 2 FLORIDA ESTATES PRACTICE GUIDE Construction of Wills Chapter 16 (LexisNexis 2014 ed.): While the courts state that the intent of the testator controls, it must be admitted that this conclusion has little practical value in many cases. Normally, the intention of the testator must be ascertained from the will itself. The prime difficulty, however, is that ordinarily the words used in the will are not those of the testator, but rather those of the person whom the testator has selected to draft the instrument on his or her behalf. The words used may carry out the testator’s actual intention, or they may not. This fact indicates the difficulties encountered in construing unusual wills and in particular, in construing wills in the light of previous legal authority. It is therefore safe to say that precedents are of but little value in determining most questions involving testamentary construction. Little light is cast upon the clear interpretation of the language used in one will by a decision construing similar language in another. Despite the difficulties inherent in applying this basic rule of construction, the principle remains. The intention of the testator is to be inferred from a consideration of the will as a whole, read in light of the surrounding circumstances, and is not to be determined by arbitrary conjecture or by consideration of detached portions of the will. Williams v.

Williams, 152 Fla. 255, 9 So. 2d 798 (1942); Glenn; Wilson v. First Florida Bank, 498 So. 2d 1289 (Fla. 2d DCA 1986). If the meaning of the will is plain and unambiguous, judicial construction of the will is not permitted. Barley v. Barcus, 877 So. 2d 42 (Fla. 5th DCA 2004); In re Estate of Budny, 815 So. 2d 781 (Fla. 2d DCA 2002); Robinson v. Robinson, 676 So. 2d 511 (Fla. 4th DCA 1996). The difficulty lies in determining whether the document is actually ambiguous. See, e.g., In re Estate of Riggs, 643 So. 2d 1132 (Fla. 4th DCA 1994) (reversing trial court after finding there was no ambiguity in will to be construed); Campbell v. Campbell, 489 So. 2d 774, 777 (Fla. 3d DCA 1986) (“the argument is, as usual, only over whether an ambiguity in fact exists”). The issue of whether a will is ambiguous is a question of law. Miami Children’s Hospital Foundation, Inc. v. Estate of Hillman, 101 So. 3d 861 (Fla. 4th DCA 2012); Stewart v. KHD Deutz of America, Corp., 980 F.2d 698 (11th Cir. 1993). In determining whether the language of a will is ambiguous, “the language must also be interpreted in light of the circumstances surrounding its execution. Whether or not the will is ambiguous on its face, the court is required to receive and consider evidence of the circumstances surrounding its execution in determining testamentary intent.” In re Estate of McGahee, 550 So. 2d 83, 86 (Fla. 1st DCA 1989). If an ambiguity is found, the proper construction of the document becomes a question of fact, and extrinsic evidence can be used to determine the intent of the testator. SPCA Wildlife Care Center; Ocean Reef Club, Inc. v. UOP, Inc., 554 F. Supp. 123 (S.D. Fla. 1982). When looking to extrinsic evidence, intent may be inferred from numerous factors, including the circumstances surrounding the execution of the will, relationship to the beneficiaries, motives, and influences. McGahee; In re Estate of Howard, 393 So. 2d 81 (Fla. 4th DCA 1981). « Ch. 7 », « § 7.5 », « C •, « 3 • 1 Litigation Under FL Probate Code § 7.5.C.3 (2022)

3. Other Rules « Ch. 7 », « § 7.5 », « C •, « 3 •, • a » 1 Litigation Under FL Probate Code § 7.5.C.3.a (2022)

a. Choice Of Law; Realty And Personalty In general, the law of the testator’s domicile governs the construction of will provisions dealing with the disposition of personal property. In re Estate of Binkow, 120 So. 2d 15 (Fla. 3d DCA 1960), 80 A.L.R. 2d 1100. In contrast, the law of the situs of real estate governs the construction of a will dealing with real estate. Jones v. Habersham, 107 U.S. (17 Otto) 174, 2 S. Ct. 336, 27 L. Ed. 401 (1883). If a will devises property situated in more than one state, the courts in each state should construe it as if the property were devised by separate wills. Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215 (1940), 131 A.L.R. 1018; In re Estate of Swanson, 397 So. 2d 465 (Fla. 2d DCA 1981); Riley v. Doing, 66 F. Supp. 825 (S.D. Fla. 1946). See also In re Estate of Barteau, 736 So. 2d 57 (Fla. 2d DCA 1999), in which the court held that Florida courts have jurisdiction to determine the validity of a will when it is presented in Florida for purposes of devising Florida real property even though the domiciliary administration is pending, and the will is admitted to probate in a foreign country. Thus, the will of a nonresident that conveys realty in Florida is to be construed in accordance with the laws of Florida. Moreover, Florida courts are not bound by the construction of the courts of another state concerning realty in Florida. See In re Estate of Barteau, and cases cited therein. « Ch. 7 », « § 7.5 », « C •, « 3 •, « b » 1 Litigation Under FL Probate Code § 7.5.C.3.b (2022)

b. Intestacy Not Favored Courts prefer any reasonable construction of a will over an interpretation that results in intestacy or partial intestacy. Koerner v. Borck, 100 So. 2d 398 (Fla. 1958); Elmore v. Elmore, 99 So. 2d 265 (Fla. 1957) (Terrell, Chief Justice, dissenting); In re Smith, 49 So. 2d 337 (Fla. 1950); Glenn v. Roberts, 95 So. 3d 271 (Fla. 3d DCA 2012); SPCA Wildlife Care Center v. Abraham, 75 So. 3d 1271 (Fla. 4th DCA 2011); Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005). Indeed, this rule of construction is so powerful that it even gave birth to another rule, the doctrine of relative revocation, which raises a rebuttable presumption that a decedent would have preferred to have a prior will effectuated over being doomed to statutory intestacy. In re: Estate of Murphy, 184 So. 3d 1221 (Fla. 2d DCA 2016). Nevertheless, the failure of a testator’s will to dispose of all his or her

property may result in partial intestacy. See Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014) (after-acquired property was subject to laws of intestate succession). Also, the practitioner should note that a portion of a will may be declared void while the balance remains valid. F.S. 732.5165. This would result, for example, if only a portion of the will were the result of fraud, duress, mistake, undue influence, or insane delusion. Id. Proceedings to void a will must be brought by those served within the time limitations prescribed under F.S. 733.212 and 733.2123. See Chapter 3 of this manual. « Ch. 7 », « § 7.5 », « C •, « 3 •, « c » 1 Litigation Under FL Probate Code § 7.5.C.3.c (2022)

c. Will Construed As A Whole In construing a will, the whole instrument must be considered, and review of the entire testamentary scheme must be undertaken so that the testator’s general plan can be ascertained. See Cartinhour v. Houser, 66 So. 2d 686 (Fla. 1953); Bryan v. Dethlefs, 959 So. 2d 314 (Fla. 3d DCA 2007); Diana v. Bentsen, 677 So. 2d 1374 (Fla. 1st DCA 1996); Dutcher v. Estate of Dutcher, 437 So. 2d 788 (Fla. 2d DCA 1983). As explained by the Florida Supreme Court, “the intent of the testator as it may be revealed by what he has written [is] to be measured by the language he selected and used, not in isolated words, clauses or paragraphs, but in the entire instrument from the first letter to the last period.” Luxmoore v. Wallace, 145 Fla. 325, 199 So. 492, 495 (1941). See Vigliani v. Bank of America, N.A., 189 So. 3d 214 (Fla. 2d DCA 2016), quoting Pounds v. Pounds, 703 So. 2d 487, 488 (Fla. 5th DCA 1997) (court “ ‘should not resort to isolated words and phrases’ ”); Grant v. Bessemer Trust Company of Florida, Inc., 117 So. 3d 830, 835 (Fla. 4th DCA 2013) (“testator’s intent is to be measured by the language he selected and used by looking at the entire instrument, not isolated words, clauses or paragraphs”); Glenn v. Roberts, 95 So. 3d 271, 272 (Fla. 3d DCA 2012) (testator’s intent ascertained by considering all provisions of will, taken together, “rather than from detached portions or any particular form of words”). Under certain circumstances, however, a court may transpose, insert, or eliminate words to effectuate the intent of the testator. See Massachusetts Audubon Society v. Ormond Village Improvement Ass’n, 152 Fla. 1, 10 So.

2d 494 (1942) (when bequest was to trustees of Anderson and Price Memorial Building, improvement association that had erected building and placed across front words “Anderson-Price Memorial” was equivalent to legatee named and was intended beneficiary under will); In re Estate of Reese, 622 So. 2d 157 (Fla. 4th DCA 1993) (granting petition to divide testamentary trust into several new tax-exempt trusts to effectuate decedent’s stated intent to minimize federal tax liability); In re Estate of Wood, 226 So. 2d 46, 50 (Fla. 2d DCA 1969) (in carrying out intentions of testator, courts can even “construe a will as if words were inserted therein when such words were omitted solely by inadvertence or oversight and are essential to the expression of the testator’s manifest intention”). « Ch. 7 », « § 7.5 », « C •, « 3 •, « d » 1 Litigation Under FL Probate Code § 7.5.C.3.d (2022)

d. Clauses In Conflict Two clauses in a will must be construed in harmony, if possible, and both given effect. In re Estate of Rogers, 180 So. 2d 167 (Fla. 2d DCA 1965). If there are two clauses that cannot be reconciled, the latter should prevail. Elliott v. Krause, 531 So. 2d 74 (Fla. 1988); Jureski v. Scaduto, 882 So. 2d 1061 (Fla. 4th DCA 2004); Romaniello v. Romaniello, 760 So. 2d 1083 (Fla. 5th DCA 2000); Diana v. Bentsen, 677 So. 2d 1374 (Fla. 1st DCA 1996); In re Estate of Rogers. The first provision should be rejected only so far as necessary to give effect to the latter. Jureski, citing In re McMillan’s Estate, 158 Fla. 898, 30 So. 2d 534 (1947), and Dutcher v. Estate of Dutcher, 437 So. 2d 788 (Fla. 2d DCA 1983). When an interest is clearly and expressly conveyed by one clause of a will, the devise or bequest will not be considered taken away or diminished by subsequent words unless they are equally clear and decisive of the testator’s intention. See Diana; In re Estate of Rogers. See also Thomas & Smith, 2 FLORIDA ESTATES PRACTICE GUIDE Construction of Wills Chapter 16 (LexisNexis 2014 ed.). The theory for this holding is that when a testator positively makes a devise or bequest, there can be no intent in his or her mind to take it away or cut it down. In Romaniello, the District Court of Appeal, Fifth District, addressed the issue of whether a specific gift of “personal property” included all intangible personal property of the decedent. Article II of the decedent’s will provided:

“I hereby give all my furnishings and personal property to DONNA ROMANIELLO, if she survives me.” Id. at 1084. The residuary estate was devised to the decedent’s daughter in Article III. The appellant argued that the term “personal property” included the intangible personal property of the decedent. The trial court rejected this construction of the will. The trial court found that the use of the word “furnishings,” under the principle of ejusdem generis, clarified that the decedent intended only tangible personal property to pass to the appellant. The principle of ejusdem generis provides that when general words follow an enumeration of specific persons or specific things, the general words are not to be construed in their widest extent but are to be held as applying only to the persons or things of the same general kind or class as those specifically mentioned. See In re Estate of Horne, 171 So. 2d 14 (Fla. 2d DCA 1965). The trial court held that the two clauses of the decedent’s last will were in conflict because if the term “personal property” was given its broadest meaning it would effectively eliminate the need for the residuary clause, because the appellant would receive the entire estate. The trial court emphasized that the residuary clause “should prevail as it is the last statement of the testator’s intent.” Romaniello, 760 So. 2d at 1085. In affirming, the appellate court held that the appellant’s interpretation of “personal property” would lead to the disinheritance of the decedent’s daughter, which “could not have been the intention of [the testator].” Id. The court noted that the decedent had expressly disinherited other members of her family in her will and could have easily disinherited her daughter if she so desired; thus, the decedent’s failure to do so reflected her intention to give the bulk of her estate to her daughter through the residuary clause. « Ch. 7 », « § 7.5 », « C •, « 3 •, « e » 1 Litigation Under FL Probate Code § 7.5.C.3.e (2022)

e. Spouses And Blood Relatives Favored All other considerations being equal, a construction of a will that favors blood relatives or a surviving spouse of the testator should be adopted rather than a construction favoring strangers to the testator. In re Estate of Rogers, 180 So. 2d 167, 171 (Fla. 2d DCA 1965) (“[t]he surviving spouse is a favorite of the law in the construction of a will”). This rule also favors descendants as against collaterals. In re Bellows, 480 N.Y.S.2d 925 (App.

Div. 1984), aff’d 483 N.E.2d 130. Such a construction is not necessarily applicable, however, if the language of the will itself is inconsistent and is not at least equally susceptible to an interpretation favoring the blood kindred as opposed to an interpretation favoring the stranger. Holloway v. Collee, 247 F. 598 (S.D. Fla. 1918), aff’d 255 F. 43. In Doe v. Doe, 20 So. 3d 892, 900 (Fla. 2d DCA 2009), the District Court of Appeal, Second District, dealt with the construction of the term, “descendants by blood,” in a trust agreement. The trustees brought an action against the settlor’s grandchildren for an order determining whether one granddaughter was related to the settlor by blood such that she would receive a class gift made to “only children and descendants by blood.” Id. at 894. The underlying facts in Doe were that one of the settlor’s sons had a daughter, who was the granddaughter at the center of the controversy, six months after he was married. Four years after the daughter’s birth, the settlor’s son divorced. He acknowledged his paternity and agreed to pay child support payments as part of a separation agreement. However, 28 years after the divorce, DNA testing revealed that the daughter was not the biological offspring of the settlor’s son. Six years later the settlor died without altering the trust’s language. The Doe court concluded that the granddaughter was the legitimate child of one of the settlor’s sons, and thus, qualified as one of the settlor’s “descendants by blood.” Id. at 900. Despite the DNA testing, which demonstrated that the grandchild was not related to the settlor, the court interpreted “descendants by blood” to be a legal term of art that means “lineal descendants of the settlor.” See also Timmons v. Ingrahm, 36 So. 3d 861 (Fla. 5th DCA 2010) (dealing with construction of term “lineal descendants” in trust agreement). « Ch. 7 », « § 7.5 », « C •, « 3 •, « f » 1 Litigation Under FL Probate Code § 7.5.C.3.f (2022)

f. Republication Of Wills A will may be republished by codicil or by reexecution of the will itself. F.S. 732.5105, 732.511. In general, the effect of republication is to make a will valid as of the date of the codicil or the reexecution. Azcunce v. Estate of Azcunce, 586 So. 2d 1216 (Fla. 3d DCA 1991). The statutory rule of

republication may at times yield to the contrary intent of the testator, but not if the codicil expressly adopts the terms of the prior will. Id. When considering republication of a will, the practitioner should be certain to consider the possible effects it may have on the construction of a will. For example, in Azcunce, republication of a prior will by codicil precluded a child born after the execution of the original will, but before execution of the codicil, from taking a pretermitted share of the estate. Because the effect of republication by codicil was to make a will valid as of the date of the codicil, the child, who was born before the execution of the codicil, was not pretermitted. « Ch. 7 », « § 7.5 », « C •, « 3 •, « g » 1 Litigation Under FL Probate Code § 7.5.C.3.g (2022)

g. Date Of Construction A will takes effect immediately upon the death of the testator. Estate of Murphy, 340 So. 2d 107 (Fla. 1976); Sternberg v. Florida Nat. Bank of Jacksonville, 114 Fla. 580, 154 So. 844 (1934). The will must be construed in conformity with the laws of Florida and with the rules of will construction as announced by the Florida Supreme Court. Riley v. Doing, 66 F. Supp. 825 (S.D. Fla. 1946). Generally, the construction of a will is controlled by the law in effect at the time of the testator’s death. 80 AM. JUR. 2d Wills § 1148. “However, where applicable law is to be looked to as a circumstance surrounding the execution of a will in order to ascertain the testator’s intention, it is the law in effect at the time of making the will that is pertinent.” Id. See also Karasek v. William J. Lamping Trust, 909 So. 2d 552 (Fla. 4th DCA 2005) (construing testamentary trust under statutes in existence at time trust was executed). « Ch. 7 », « § 7.5 », « C •, « 3 •, « h • 1 Litigation Under FL Probate Code § 7.5.C.3.h (2022)

h. Disinheritance A testator may disinherit an heir by express provision in a will coupled with a valid distribution of all the assets of the estate. J.E.W. v. Estate of Doe, 443 So. 2d 249 (Fla. 1st DCA 1984). Conversely, if a will fails, in whole or in part, thereby requiring distribution through intestate succession, the testator’s mere expression of an intent to disinherit an heir will not prevent

the statutory distribution. In re Estate of Barker, 448 So. 2d 28 (Fla. 1st DCA 1984), citing In re Estate of Levy, 196 So. 2d 225 (Fla. 3d DCA 1967).

« Ch. 7 », « § 7.6 » 1 Litigation Under FL Probate Code § 7.6 (2022)

§

7.6. ADMISSIBILITY EVIDENCE

OF

EXTRINSIC « Ch. 7 », « § 7.6 », • A »

1 Litigation Under FL Probate Code § 7.6.A (2022)

A. Latent And Patent Ambiguities « Ch. 7 », « § 7.6 », • A », • 1 » 1 Litigation Under FL Probate Code § 7.6.A.1 (2022)

1. In General As discussed in § 7.5.C.2, a will is to be construed according to the intent of the testator as expressed in the will. Accordingly, an effort must first be made to construe the will by an examination of the terms of the will itself. If the meaning of the document is plain and unambiguous, extrinsic evidence is inadmissible and judicial construction is precluded. Owens v. Estate of Davis ex rel. Holzauser, 930 So. 2d 873 (Fla. 2d DCA 2006); Barley v. Barcus, 877 So. 2d 42 (Fla. 5th DCA 2004). Only if an ambiguity or uncertainty arises that cannot be explained satisfactorily by the terms of the will itself may extrinsic evidence be admitted to explain the terms of the will. In re Estate of Budny, 815 So. 2d 781 (Fla. 2d DCA 2002); In re Estate of Riggs, 643 So. 2d 1132 (Fla. 4th DCA 1994); Campbell v. Campbell, 489 So. 2d 774 (Fla. 3d DCA 1986). Ambiguities in the terms of the will may be categorized under the headings of either latent ambiguities or patent ambiguities, although some courts have rejected these labels. See id. Although the opinion is brief, the court in Garcia v. Celestron, 2 So. 3d 1061 (Fla. 3d DCA 2009), identifies the common steps involved in litigating an ambiguous will and presenting parol evidence at trial. « Ch. 7 », « § 7.6 », • A », « 2 » 1 Litigation Under FL Probate Code § 7.6.A.2 (2022)

2. Latent Ambiguity A latent ambiguity arises when the application of the words of a will to

the subject matter of the devise or the devisee renders the will ambiguous. See Kernkamp v. Bolthouse, 714 So. 2d 655 (Fla. 5th DCA 1998). A latent ambiguity is not obvious from the language of the document. Fine Arts Museums Foundation v. First National in Palm Beach, a Division of First Union National Bank of Florida, 633 So. 2d 1179 (Fla. 4th DCA 1994). Latent ambiguities “are either cases of equivocation or misnomer and misdescription.” 96 C.J.S. Wills § 999; Scheurer v. Tomberlin, 240 So. 2d 172 (Fla. 1st DCA 1970). Because the ambiguity is disclosed by reference to facts that do not appear on the face of the will, extrinsic evidence is admissible to resolve the ambiguity. Harbie v. Falk, 907 So. 2d 566 (Fla. 3d DCA 2005); In re Estate of Walters, 700 So. 2d 434 (Fla. 4th DCA 1997); In re Estate of Lenahan, 511 So. 2d 365 (Fla. 1st DCA 1987). “To this end, the court may hear evidence of the circumstances, situation and surroundings of the testator when the will was made and the state and description of [the testator’s] property.” Kernkamp, 714 So. 2d at 656. « Ch. 7 », « § 7.6 », • A », « 3 • 1 Litigation Under FL Probate Code § 7.6.A.3 (2022)

3. Patent Ambiguity A patent ambiguity occurs when the provisions of the will itself are conflicting or unclear. The traditional view is that extrinsic evidence is not admissible to resolve a patent ambiguity because “[t]he intention of the testator must be gathered from the words of his [or her] will.” Perkins v. O’Donald, 77 Fla. 710, 82 So. 401, 404 (1919). However, the District Court of Appeal, Third District, has rejected this rule, finding that the “clearlypreferable view … ascribes no significance to the ancient, essentially meaningless distinctions between kinds of ambiguity.” Campbell v. Campbell, 489 So. 2d 774, 778 (Fla. 3d DCA 1986) (dismissing Perkins court’s distinction between patent and latent ambiguities as mere dictum). See also Independent Mortgage & Finance, Inc. v. Deater, 814 So. 2d 1224 (Fla. 3d DCA 2002) (quoting and applying rule from Campbell); First Union National Bank of Florida, N.A. v. Frumkin, 659 So. 2d 463 (Fla. 3d DCA 1995) (when there is patent ambiguity, courts are free to consider extrinsic evidence concerning testator’s intent); In re Estate of Rice, 406 So. 2d 469 (Fla. 3d DCA 1981) (extrinsic evidence bearing on testator’s intent is admissible if there is patent or latent ambiguity in will).

Other district courts have not directly addressed the issue. Rather, they have simply held that extrinsic evidence is admissible to resolve ambiguities without characterizing the “type” of ambiguity involved. See, e.g., Dutcher v. Estate of Dutcher, 437 So. 2d 788, 789 (Fla. 2d DCA 1983) (“where there is an ambiguity in a will, extrinsic evidence is admissible”). While other courts have held that extrinsic evidence is admissible to explain latent ambiguities without addressing whether it is admissible to explain patent ambiguities. See, e.g., Harbie v. Falk, 907 So. 2d 566 (Fla. 3d DCA 2005). See also Kernkamp v. Bolthouse, 714 So. 2d 655, 656 (Fla. 5th DCA 1998) (“[i]n cases of a latent ambiguity, evidence will be received to prove which of the persons or subjects so described was intended by the testator”); Fine Arts Museums Foundation v. First National in Palm Beach, a Division of First Union National Bank of Florida, 633 So. 2d 1179, 1181 (Fla. 4th DCA 1994) (“where a latent ambiguity exists, extrinsic evidence reflecting the testator’s intent is admissible”); In re Estate of Lenahan, 511 So. 2d 365, 371 (Fla. 1st DCA 1987) (“extrinsic evidence is admissible … to explain latent ambiguities”). The cases within the districts themselves even appear in conflict. Compare Fine Arts Museums Foundation (extrinsic evidence is admissible to explain latent ambiguities), with Souder v. Johnson, 501 So. 2d 745 (Fla. 4th DCA 1987) (extrinsic evidence is not admissible if there is no latent or patent ambiguity). The Second District, for example, has indicated that extrinsic evidence is inadmissible to resolve a patent ambiguity in a contract, as it would amount to rewriting the contract. Crown Management Corp. v. Goodman, 452 So. 2d 49 (Fla. 2d DCA 1984). In another case, the same court also indicated that “in case of ambiguity, extrinsic evidence is admissible to explain the intent of the testator.” Wilson v. First Florida Bank, 498 So. 2d 1289, 1291 (Fla. 2d DCA 1986). Thus, the law in this area remains unsettled as courts decide whether to retain the distinction between patent and latent ambiguities expressed in Perkins, or to abandon it in favor of the more modern view expressed in Campbell, allowing extrinsic evidence to resolve any ambiguities. « Ch. 7 », « § 7.6 », « B » 1 Litigation Under FL Probate Code § 7.6.B (2022)

B. Examples Of Admissible Extrinsic Evidence

In situations involving ambiguous instruments, all the evidence that tends to develop the intentions of the parties should be before the court, rather than having the case disposed of on the pleadings. In re Estate of Pitakos, 183 So. 2d 696 (Fla. 2d DCA 1966). If the provisions of the will are ambiguous, a court can consider the ties and affection between a testator and the devisees and motives that may have reasonably influenced disposition of the estate. Chin v. Estate of Chin, 15 So. 3d 894 (Fla. 3d DCA 2009); In re Estate of Howard, 393 So. 2d 81 (Fla. 4th DCA 1981); In re Estate of Rogers, 180 So. 2d 167 (Fla. 2d DCA 1965). If the will was executed simultaneously with other documents, the terms of the other documents may be used to demonstrate the testator’s intent in the will. Ebanks v. Ebanks, 198 So. 3d 712 (Fla. 2d DCA 2016). « Ch. 7 », « § 7.6 », « C • 1 Litigation Under FL Probate Code § 7.6.C (2022)

C. Circumstances Surrounding Execution Of Will In attempting to determine the intent of the testator when the will provisions are ambiguous, it is proper to consider “all circumstances surrounding the execution of the will, the condition, nature, and extent of the property devised, the testator’s relationship and attitudes toward the members of his family and to the beneficiaries of the will, their financial condition and in general the relationship between all the parties concerned.” Pancoast v. Pancoast, 97 So. 2d 875, 876 (Fla. 2d DCA 1957). See In re Estate of McGahee, 550 So. 2d 83, 86 (Fla. 1st DCA 1989) (“[i]n determining whether the language of the entire document manifests the decedent’s testamentary intent, the language must also be interpreted in light of the circumstances surrounding its execution”); Kernkamp v. Bolthouse, 714 So. 2d 655, 656 (Fla. 5th DCA 1998) (“the court may hear evidence of the circumstances, situation and surroundings of the testator when the will was made and the state and description of [the testator’s] property”). See also In re Estate of Lenahan, 511 So. 2d 365 (Fla. 1st DCA 1987).

« Ch. 7 », « § 7.7 » 1 Litigation Under FL Probate Code § 7.7 (2022)

§

7.7. LAWYER’S AND PERSONAL REPRESENTATIVE’S COMPENSATION

A beneficiary’s lawyer may be awarded fees from the estate if the lawyer’s services benefit the estate. F.S. 733.106(3). However, before fees may be awarded to a lawyer under F.S. 733.106(3), the probate court must in fact determine that the estate was benefited by the services of the lawyer. Feldheim v. Scott, 579 So. 2d 291 (Fla. 3d DCA 1991). The services of the lawyer benefit the estate if they result in an enhanced value or increase in the assets of the estate, or if they result in effectuating or establishing the intent of the decedent. Hampton v. Estate of Allen, 198 So. 3d 954 (Fla. 5th DCA 2016); Duncombe v. Adderly, 991 So. 2d 1013 (Fla. 4th DCA 2008); Baumer v. Howard, 542 So. 2d 400 (Fla. 1st DCA 1989); Segal v. Levine, 489 So. 2d 868 (Fla. 3d DCA 1986). For example, validating the bequest rights of certain beneficiaries has been held to be “carrying out the testator’s intent” and, therefore, benefiting the estate, despite the fact that the validated bequests resulted in a large estate tax. In re Estate of McCune, 223 So. 2d 787, 789 (Fla. 4th DCA 1969). On the other hand, there is no benefit to an estate for services rendered in challenging a will provision so as to enable a surviving spouse to claim an elective share. Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988). Moreover, if a lawyer’s efforts are duplicative of those of the fiduciary, they are not beneficial to the estate and fees should not be awarded. Franklin v. Stettin, 579 So. 2d 245 (Fla. 3d DCA 1991). See also Harding v. Rosoff, 951 So. 2d 912 (Fla. 4th DCA 2007) (contingent beneficiary not entitled to recover fees and costs from estate when litigation thwarted testator’s intent); In re Estate of Simon, 549 So. 2d 210 (Fla. 3d DCA 1989) (attorneys’ fees not awarded when action did not benefit estate, but instead caused prolonged litigation and delay in administration). F.S. 733.617 sets forth presumed reasonable compensation for a personal representative based on a set percentage of the probate estate’s value. In addition to fees computed as a percentage of the estate, F.S. 733.617(3)

provides that a personal representative is entitled to such further compensation as the court may deem reasonable for any extraordinary services. Because a construction proceeding ordinarily is not involved in the administration of an estate, compensation for the personal representative for services in construction proceedings should be computed separately. See F.S. 733.617(3)(b) (litigation on behalf of estate is example of extraordinary services). Similarly, lawyers for the personal representative are entitled to reasonable compensation for their services without court order. F.S. 733.6171(1). F.S. 733.6171(3) provides that attorneys’ fees for ordinary services based on the set schedule in the statute are presumed reasonable. The statute allows additional compensation for any extraordinary services provided by the lawyer to the estate. F.S. 733.6171(4). A construction proceeding appropriately would fall within the category of extraordinary services. F.S. 733.6171(4)(a) (involvement in will construction is extraordinary service). Attorneys’ fees may be awarded for services performed at both the trial and the appellate levels. See Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981). Under F.S. 733.6175(2), attorneys’ fees and costs of the personal representative’s lawyer incurred in court proceedings to determine compensation are paid from the assets of the estate unless the request for fees is substantially unreasonable. However, the lawyer for the personal representative cannot recover fees and costs if the lawyer hires another law firm to litigate over the reasonableness of his or her attorneys’ fees. In re Estate of Good, 696 So. 2d 876 (Fla. 4th DCA 1997). The determination of the appropriateness and the amount of such fees is made by the probate court. In re Estate of Gray, 626 So. 2d 971 (Fla. 1st DCA 1993); In re Estate of Udell, 501 So. 2d 1286 (Fla. 4th DCA 1987). If fees or costs are to be paid from the estate, the probate court may also direct the part of the estate from which they will be paid. F.S. 733.106(4). Carman v. Gilbert, 641 So. 2d 1323 (Fla. 1994); Estate of Paulk v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988). The District Court of Appeal, Fourth District has held that before exercising its discretionary powers under F.S. 733.106(4), the trial court must determine that there has been bad faith or inequitable conduct on the part of the beneficiaries of that

part of the estate. Levin v. Levin, 67 So. 3d 429 (Fla. 4th DCA 2011), citing In re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990). But see Williams v. King, 711 So. 2d 1285 (Fla. 5th DCA 1998), in which the court upheld an award of fees against a beneficiary’s interest in the estate because her efforts were frivolous and without merit. The court also held, however, that the lawsuit was not totally frivolous or “so bereft of basis in law or fact as to warrant fees against her personally.” Id. at 1286. See PRACTICE UNDER FLORIDA PROBATE CODE § 15.4.S (Fla. Bar 11th ed. 2022). If the client has a beneficial interest in the estate and the magnitude of the beneficial interest largely depends on the result of the construction proceeding, it may be appropriate to consider the suitability of a contingent fee arrangement. This is particularly true when the client may be unable to afford representation on a fee basis geared primarily to an hourly rate, without regard to the outcome. For comprehensive treatment of the subject of attorneys’ and personal representatives’ compensation disputes, see Chapter 11 of this manual.

« Ch. 7 », « § 7.8 • 1 Litigation Under FL Probate Code § 7.8 (2022)

§ 7.8. LIMITED JUDICIAL CONSTRUCTION OF TAX PROVISIONS RELATING TO SUSPENSION OF FEDERAL ESTATE TAX AND GST TAX FOR 2010 Wills and trust agreements frequently contain provisions designed to eliminate, minimize, or defer the payment of federal estate tax and federal generation-skipping transfer (GST) tax. Often, these provisions are phrased in terms of a formula intended to produce the optimal tax result under the law prevailing at the time the formula is applied. In 2001, however, the Internal Revenue Code was amended by the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), Pub. L. No. 107-16, 115 Stat. 38, to increase the federal estate tax and GST exemptions gradually over time to $3,500,000 in 2009 and to reduce the maximum estate tax rate from 55% to 45% over the same period. Additionally, the federal estate tax and GST tax (but not the gift tax) were rendered inapplicable in 2010. However, due to certain legislative budget rules, the 2001 Legislation contained a sunset provision whereby the 2001 Amendments were scheduled to expire on December 31, 2010. Congress did not allow the federal estate tax to be repealed. Instead, on December 17, 2010, the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (TRUIRJCA), Pub. L. No. 111-312, 124 Stat. 3296, was enacted which, among other provisions; (1) extended the sunset of EGTRRA until December 31, 2012; (2) reinstated the estate tax (and GST tax) retroactively to January 1, 2010, with a $5,000,000 estate exclusion amount and 35% tax rate (and a $5,000,000 GST exemption amount and 0% GST tax rate for 2010); and (3) granted estates of decedents dying in 2010 an election for the estate tax (as modified) not to apply and, instead, for the carry-over basis provisions under Section 1022 of the Internal Revenue Code to apply. Many practitioners were concerned that the 2010 suspension of the federal estate tax and GST tax could lead to unintended results and meaningless provisions in wills and trusts with formula clauses. Before the

enactment of TRUIRJCA, the 2010 Florida Legislature, in response to this concern, added F.S. 733.1051 to the Florida Probate Code and F.S. 736.04114 to the Florida Trust Code. These statutes provide a mechanism for fiduciaries and beneficiaries to request that a court construe certain taxrelated provisions in a will or trust that may be ambiguous or lead to unintended results caused by the suspension of the federal estate tax and GST tax for 2010. In the case of a will, the personal representative or a person who is or may be a beneficiary may apply to the court for an order construing certain tax provisions to define the respective shares or determine beneficiaries, in accordance with the intention of a testator. F.S. 733.1051(1). In the case of a trust, the trustee or any qualified beneficiary may seek an order construing certain tax provisions to define the respective shares or determine beneficiaries, in accordance with the intention of a settlor. F.S. 736.04114(1). To apply, the “disposition” under the will or trust must occur during the limited period of time during which the federal estate tax and GST tax are suspended, which is January 1, 2010, until the earlier of December 31, 2010, or the date that an act becomes law that repeals or otherwise modifies the current federal estate tax laws. F.S. 733.1051(2), 736.04114(2). Given the enactment of TRUIRJCA, which retroactively reinstated the estate tax and gave estates of decedents dying anytime in 2010 the ability to elect for the estate tax not to apply, it is uncertain which estates would be covered by these particular statutes. A technical reading of the definition of “applicable period” under the statutes would likely lead to the conclusion that the “applicable period” is January 1, 2010 through December 16, 2010. However, it is possible for estates of any decedent dying in 2010 to have not been subject to federal estate tax by reason of the election allowed under TRUIRJCA, and to continue to have the interpretive problems sought to be addressed by these statutes. See Vigliani v. Bank of America, N.A., 189 So. 3d 214 (Fla. 2d DCA 2016). Footnotes — Chapter 7: *

Biographical information for Mr. Simon appears on page 2-1 of this manual.

** ***

Biographical information for Mr. Hennessey appears on page 2-1 of this manual. Biographical information for Mr. Moran appears on page 2-1 of this manual.

****

J.D., cum laude, 2013, University of Florida. Ms. Sweet is a member of The Florida Bar and the Jacksonville Bar Association. She is a member of the Real Property, Probate and Trust Law Section of The Florida Bar. Ms. Sweet is an attorney with Gunster, Yoakley & Stewart, P.A., in Jacksonville.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 8 » 1 Litigation Under FL Probate Code Ch. 8 (2022)

Chapter 8 HOMESTEAD LITIGATION BRIAN J. FELCOSKI* JON SCUDERI** Contents § 8.1. INTRODUCTION § 8.2. DEFINING HOMESTEAD A. Constitutional Provisions B. Statutory Provisions 1. F.S. 731.201—Homestead Defined 2. F.S. 732.401—Descent Of Homestead 3. F.S. 732.4015—Devise Of Homestead 4. F.S. 732.4017—Inter Vivos Transfer Of Homestead 5. F.S. 736.1109—Testamentary And Revocable Trusts: Homestead Protections 6. F.S. 736.151—Homestead Property C. Applicable Law D. Form Of Ownership Of Property E. Possession Of Homestead By Personal Representative And Homestead Lien § 8.3. CONTEXTS IN WHICH HOMESTEAD ISSUES ARISE A. In General B. Tax Exemption Issues C. Title Issues 1. Inter Vivos Alienation Of Property 2. Inheritance Of Property 3. Devise Of Property

D. Exemption From Claims Of Creditors Issues E. Waivers Of Homestead Protection § 8.4. DETERMINATION OF HOMESTEAD STATUS A. Presumptions; Burden Of Proof B. Importance Of Time Of Execution Of Instrument In Determining Homestead C. Factual Issues To Be Determined 1. In General 2. Residency 3. Family Status § 8.5. PLEADING AND PROCEDURE A. In General B. Notice Of Proceedings 1. Necessity Of Providing Notice 2. Form For Notice C. Searching For Interested Persons 1. Necessity Of Search 2. Form For Affidavit Of Diligent Search And Inquiry 3. Form For Notice Of Action D. Guardians Ad Litem 1. In General 2. Form For Petition For Appointment 3. Form For Order Of Appointment 4. Form For Oath E. Petition And Order Regarding Determination Of Homestead Status F. Notice Of Taking Possession Of Protected Homestead « Ch. 8 », • § 8.1 » 1 Litigation Under FL Probate Code § 8.1 (2022)

§ 8.1. INTRODUCTION Florida law on homestead has been a complicated area from its inception in the Constitution of 1868, and it was made even more so with a 1984

change in the Florida Constitution that broadened the constitutional definition of the term “homestead.” Homestead issues may arise in many different circumstances, and the definitions and considerations may vary from one circumstance to another. The scope of this chapter is limited to homestead litigation in probate. For discussions of homestead property from other perspectives, see PRACTICE UNDER FLORIDA PROBATE CODE Chapter 19 (Fla. Bar 11th ed. 2022); ASSET PROTECTION IN FLORIDA Chapters 2, 5, and 6 (Fla. Bar 7th ed. 2022); THE FLORIDA BAR PROBATE SYSTEM (Fla. Bar 5th ed. 2018); Seiden, An Update on the Legal Chameleon: Florida’s Homestead Exemption and Restrictions, 40 U. Fla. L. Rev. 919 (1988); Maines & Maines, Our Legal Chameleon Revisited: Florida’s Homestead Exemption, 30 U. Fla. L. Rev. 227 (1978). Additional assistance may be found in seminar materials of The Florida Bar and in the many publications of the Attorneys’ Title Fund Services, LLC. The practitioner is cautioned to review the most current case law in this complicated and ever-evolving field.

« Ch. 8 », « § 8.2 » 1 Litigation Under FL Probate Code § 8.2 (2022)

§ 8.2. DEFINING HOMESTEAD « Ch. 8 », « § 8.2 », • A » 1 Litigation Under FL Probate Code § 8.2.A (2022)

A. Constitutional Provisions As indicated in the various sections of this chapter, homestead litigation may require consideration of constitutional as well as statutory provisions. The applicable constitutional provisions are found in Article X, § 4, of the Florida Constitution, which provides: (a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person: (1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family; (2) personal property to the value of one thousand dollars. (b) These exemptions shall inure to the surviving spouse or heirs of the owner. (c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to

an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law. Section 4(a) provides an exemption from forced sale of (1) homestead real property, and (2) personal property up to a total value of $1,000. If a real property homestead is located outside a municipality, up to 160 acres of the homestead, improvements, and contiguous land may be protected. If it is within a municipality, however, the exemption is limited to the residence and contiguous land totaling one-half acre in area. This distinction becomes extremely important, therefore, for those who live in unincorporated areas outside of municipalities. See, e.g., Davis v. Davis, 864 So. 2d 458 (Fla. 1st DCA 2004); In re Estate of Thornton, 259 So. 2d 760 (Fla. 3d DCA 1971). Residential appurtenances, including separate buildings used for garage, pool, storage, or laundry, are deemed to be part of a homestead. White v. Posick, 150 So. 2d 263 (Fla. 2d DCA 1963). Similarly, a mobile home permanently affixed to real estate qualifies as homestead. Davis; Gold v. Schwartz, 774 So. 2d 879 (Fla. 4th DCA 2001). Crops are deemed to be part of homestead realty. Adams v. Adams, 158 Fla. 173, 28 So. 2d 254 (1946). A condominium may be homestead, see, e.g., Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012) (condominium subject to long-term leasehold interest qualified as “homestead” exempt from forced sale). Effective July 1, 2021, a cooperative apartment may also qualify as homestead. F.S. 719.103(25) was amended and now makes clear that an interest in a cooperative property is an interest in real property. Prior to that statutory change, the owner of a cooperative apartment had only a stock interest in the cooperative, not an interest in the realty. Thus, the interest was not subject to homestead law as to descent. In re Estate of Wartels, 357 So. 2d 708 (Fla. 1978); Walters v. Agency for Health Care Administration, 288 So. 3d 1215 (Fla. 3d DCA 2019). But see Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002) (co-op constitutes homestead property for purposes of exemption from forced sale by creditors). The District Court of Appeal, Third District, in Phillips v. Hirshon, 958 So. 2d 425 (Fla. 3d DCA 2007), certified the question to the Florida Supreme Court of whether Wartels was still applicable given the subsequent legislative changes to Florida’s coop laws. The Third District also certified conflict with the Fifth District in

Southern Walls. The Florida Supreme Court originally accepted jurisdiction but subsequently discharged it and dismissed the review proceeding. Levine v. Hirshon, 980 So. 2d 1053 (Fla. 2008). The change to F.S. 719.103 seems to have clarified the issue. A party who owns in excess of 160 contiguous acres of rural land may sell a part of it without complying with the spousal joinder requirements applicable to a deed of homestead property. The presumption is that the instrument alienating the property in question “operates as a selection of homestead to the exclusion of the alienated property from the land from which homestead may be selected.” Frase v. Branch, 362 So. 2d 317, 319 (Fla. 2d DCA 1978). Property that has a mixed residential/commercial use may be homestead. Davis. If an “imaginary line” could sever the residence from the commercial portion of the property, the homestead exemption from forced sale would extend only to the residence, not to the commercial portion. See, e.g., Anderson v. Letosky, 304 So. 3d 801 (Fla. 2d DCA 2020) (homestead was protected even though homeowner rented rooms to tenants); Menard v. University Radiation Oncology Associates, LLP, 976 So. 2d 69 (Fla. 4th DCA 2008) (finding of homestead as to portion of debtor’s property used as residence, but excluding portion leased to other occupants); Thompson v. Hibner, 705 So. 2d 36 (Fla. 3d DCA 1998) (affirming determination of homestead status because evidence failed to prove that separate structure was income-producing property at time creditors obtained judgments sued upon); First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So. 2d 1152 (Fla. 2d DCA 1992) (finding of homestead as to residential unit of triplex, but excluding two rental units of triplex). See also In re Englander, 95 F.3d 1028 (11th Cir. 1996). In In re Steffen, 406 B.R. 139 (Bankr. M.D. Fla. 2009), the bankruptcy court held that the debtors’ 4.82-acre homestead property, which was located outside a municipality and included a warehouse used in the debtors’ business and a building rented to a third party, was exempt pursuant to the homestead provision of the Florida Constitution. When spouses are separated, they may have different homesteads. Spouses in an intact marriage, however, may have only one homestead. Law v. Law, 738 So. 2d 522 (Fla. 4th DCA 1999). Furthermore, it is the place of actual residence of the party and not the

filing of a claim for exemption that determines whether the property constitutes homestead. DiGiorgio v. DiGiorgio, 48 So. 3d 968 (Fla. 3d DCA 2010). « Ch. 8 », « § 8.2 », « B » 1 Litigation Under FL Probate Code § 8.2.B (2022)

B. Statutory Provisions « Ch. 8 », « § 8.2 », « B », • 1 » 1 Litigation Under FL Probate Code § 8.2.B.1 (2022)

1. F.S. 731.201—Homestead Defined Effective January 1, 2002, the legislature added the term “protected homestead” to the list of definitions contained in the Florida Probate Code. See F.S. 731.201. The definition was amended in 2012. F.S. 731.201(33) provides: “Protected homestead” means the property described in s. 4(a)(1), Art. X of the State Constitution on which at the death of the owner the exemption inures to the owner’s surviving spouse or heirs under s. 4(b), Art. X of the State Constitution. For purposes of the code, real property owned in tenancy by the entireties or in joint tenancy with rights of survivorship is not protected homestead. This amendment became effective July 1, 2012, and is applicable to all proceedings pending before or commenced on or after July 1, 2012. « Ch. 8 », « § 8.2 », « B », « 2 » 1 Litigation Under FL Probate Code § 8.2.B.2 (2022)

2. F.S. 732.401—Descent Of Homestead The Florida Supreme Court addressed the constitutionality of F.S. 732.401(1) regarding descent of homestead in King v. Ellison, 648 So. 2d 666 (Fla. 1995). In King, the court held that there is no conflict between Article X, § 4(c), of the Florida Constitution and F.S. 732.401(1) that would render the statute unconstitutional. In so holding, the court noted that Article X, § 4(c), of the Florida Constitution places a restraint on the devise of homestead but is silent concerning disposition of homestead improperly devised. F.S. 732.401(1) addresses this issue by providing how the homestead will descend

under these circumstances. F.S. 732.401 was amended in 2010 and 2012. The 2010 amended statute was a significant change in Florida’s homestead law. Before the 2010 amendments, maintaining a life estate could be a burden on the surviving spouse. Under the amended statute, in lieu of accepting a life estate, the surviving spouse may elect to take an undivided one-half interest in the homestead property as a tenant in common. The right of election must be made within six months of the decedent’s date of death and while the surviving spouse is still alive. The election is irrevocable and may be exercised as specified in the statute. The statute provides for the allocation of expenses both before and after the election. The 2012 Amendments clarify the time for making the election by a lawyer in fact or guardian of the property of the surviving spouse. The time for making the election is governed by the statute and is not subject to Fla. Prob. R. 5.042(b)(2), which permits an enlargement of time for good cause shown. Samad v. Pla, 267 So. 3d 476 (Fla. 2d DCA 2019). The statute specifies that a disclaimer may not be used to divest remaindermen of their right to a remainder estate. F.S. 732.401 provides: (1) If not devised as authorized by law and the constitution, the homestead shall descend in the same manner as other intestate property; but if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes. (2) In lieu of a life estate under subsection (1), the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes. (a) The right of election may be exercised: 1. By the surviving spouse; or

2. With the approval of a court having jurisdiction of the real property, by an attorney in fact or guardian of the property of the surviving spouse. Before approving the election, the court shall determine that the election is in the best interests of the surviving spouse during the spouse’s probable lifetime. (b) The election must be made within 6 months after the decedent’s death and during the surviving spouse’s lifetime. The time for making the election may not be extended except as provided in paragraph (c). (c) A petition by an attorney in fact or by a guardian of the property of the surviving spouse for approval to make the election must be filed within 6 months after the decedent’s death and during the surviving spouse’s lifetime. If the petition is timely filed, the time for making the election shall be extended for at least 30 days after the rendition of the order allowing the election. (d) Once made, the election is irrevocable. (e) The election must be made by filing a notice of election containing the legal description of the homestead property for recording in the official record books of the county or counties where the homestead property is located. The notice must be in substantially the following form:

ELECTION OF SURVIVING SPOUSE TO TAKE A ONE-HALF INTEREST OF DECEDENT’S INTEREST IN HOMESTEAD PROPERTY STATE OF ________ COUNTY OF ________ 1. The decedent, ________, died on ______. On the date of the decedent’s death, the decedent was married to ________, who survived the decedent. 2. At the time of the decedent’s death, the decedent owned an interest

in real property that the affiant believes to be homestead property described in s. 4, Article X of the State Constitution, which real property being in ________ County, Florida, and described as: (description of homestead property). 3. Affiant elects to take one-half of decedent’s interest in the homestead as a tenant in common in lieu of a life estate. 4. If affiant is not the surviving spouse, affiant is the surviving spouse’s attorney in fact or guardian of the property, and an order has been rendered by a court having jurisdiction of the real property authorizing the undersigned to make this election. ________________ (Affiant) Sworn to (or affirmed) and subscribed before me by means of physical presence or online notarization this ________________ day of (month), (year), by (affiant) (Signature of Notary Public) (Print, Type, or Stamp Commissioned Name of Notary Public) Personally Known OR Produced Identification (Type of Identification Produced) (3) Unless and until an election is made under subsection (2), expenses relating to the ownership of the homestead shall be allocated between the surviving spouse, as life tenant, and the decedent’s descendants, as remaindermen, in accordance with chapter 738. If an election is made, expenses relating to the ownership of the homestead shall be allocated between the surviving spouse and the descendants as tenants in common in proportion to their respective shares, effective as of the date the election is filed for recording. (4) If the surviving spouse’s life estate created in subsection (1) is disclaimed pursuant to chapter 739, the interests of the decedent’s descendants may not be divested. (5) This section does not apply to property that the decedent owned in tenancy by the entireties or in joint tenancy with rights of survivorship.

« Ch. 8 », « § 8.2 », « B », « 3 » 1 Litigation Under FL Probate Code § 8.2.B.3 (2022)

3. F.S. 732.4015—Devise Of Homestead F.S. 732.4015 provides: (1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or a minor child or minor children, except that the homestead may be devised to the owner’s spouse if there is no minor child or minor children. (2) For the purposes of subsection (1), the term: (a) “Owner” includes the grantor of a trust described in [F.S.] 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor. (b) “Devise” includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestead. (3) If an interest in homestead has been devised to the surviving spouse as authorized by law and the constitution, and the surviving spouse’s interest is disclaimed, the disclaimed interest shall pass in accordance with chapter 739. F.S. 732.4015 was amended in 1992 to include the language set forth in subsection (2). This statutory revision has the effect of casting the grantor of a revocable inter vivos trust as the “owner” of homestead and making the disposition of property by trust a “devise” if the property would have been the grantor’s homestead if it had been titled in the grantor’s individual name. If the statutory conditions are met, the restrictions on devise in what is now F.S. 732.4015(1) would therefore control the disposition of this trust property. The amendment codified Florida case law prohibiting avoidance of the constitutional restrictions on the devise of homestead through the use of a revocable trust. See Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914); In re Estate of Johnson, 397 So. 2d 970 (Fla. 4th DCA 1981). F.S. 732.4015 was also amended in 2010 to add subsection (3), which clarifies that a surviving spouse’s disclaimed interest in homestead passes in

accordance with F.S. Chapter 739. « Ch. 8 », « § 8.2 », « B », « 4 » 1 Litigation Under FL Probate Code § 8.2.B.4 (2022)

4. F.S. 732.4017—Inter Vivos Transfer Of Homestead The 2010 Florida Legislature also enacted F.S. 732.4017, addressing inter vivos transfers of homestead property, effective October 1, 2010, which provides: (1) If the owner of homestead property transfers an interest in that property, including a transfer in trust, with or without consideration, to one or more persons during the owner’s lifetime, the transfer is not a devise for purposes of s. 731.201(10) or s. 732.4015, and the interest transferred does not descend as provided in s. 732.401 if the transferor fails to retain a power, held in any capacity, acting alone or in conjunction with any other person, to revoke or revest that interest in the transferor. (2) As used in this section, the term “transfer in trust” refers to a trust under which the transferor of the homestead property, alone or in conjunction with another person, does not possess a right of revocation as that term is defined in s. 733.707(3)(e). A power possessed by the transferor which is exercisable during the transferor’s lifetime to alter the beneficial use and enjoyment of the interest within a class of beneficiaries identified only in the trust instrument is not a right of revocation if the power may not be exercised in favor of the transferor, the transferor’s creditors, the transferor’s estate, or the creditors of the transferor’s estate or exercised to discharge the transferor’s legal obligations. This subsection does not create an inference that a power not described in this subsection is a power to revoke or revest an interest in the transferor. (3) The transfer of an interest in homestead property described in subsection (1) may not be treated as a devise of that interest even if: (a) The transferor retains a separate legal or equitable interest in the homestead property, directly or indirectly through a trust or other arrangement such as a term of years, life estate, reversion, possibility of reverter, or fractional fee interest;

(b) The interest transferred does not become a possessory interest until a date certain or upon a specified event, the occurrence or nonoccurrence of which does not constitute a power held by the transferor to revoke or revest the interest in the transferor, including, without limitation, the death of the transferor; or (c) The interest transferred is subject to divestment, expiration, or lapse upon a date certain or upon a specified event, the occurrence or nonoccurrence of which does not constitute a power held by the transferor to revoke or revest the interest in the transferor, including, without limitation, survival of the transferor. (4) It is the intent of the Legislature that this section clarify existing law. The statute clarifies that a transfer of homestead property is not considered a devise, provided the transferor does not retain the power to revoke the transfer or revest title to the property. A transfer to a trust will not be considered a devise if there is no right of revocation. The statute provides that certain powers to alter a trust or its beneficiaries do not constitute a right of revocation. Furthermore, the transfer will not be considered a devise if the transferor retains a separate interest in the property, the interest transferred does not become possessory until some point in the future (whether specific or contingent), or the transferred interest lapses. As noted in subsection (4), the statute is intended to clarify existing law in Florida and should eliminate the uncertainty that existed regarding certain lifetime transfers of homestead property. « Ch. 8 », « § 8.2 », « B », « 5 » 1 Litigation Under FL Probate Code § 8.2.B.5 (2022)

5. F.S. 736.1109—Testamentary And Revocable Trusts: Homestead Protections Effective July 1, 2021, F.S. 736.1109 was created to remove some of the pitfalls for Florida residents that choose to hold homestead property in a revocable trust. The statute says: (1) If a devise of homestead under a trust violates the limitations on the

devise of homestead in s. 4(c), Art. X of the State Constitution, title shall pass as provided in s. 732.401 at the moment of death. (2) A power of sale or general direction to pay debts, expenses, and claims within the trust instrument does not subject an interest in the protected homestead to the claims of decedent’s creditors, expenses of administration, and obligations of the decedent’s estate as provided in s. 736.05053. (3) If a trust directs the sale of property that would otherwise qualify as protected homestead, and the property is not subject to the constitutional limitations on the devise of homestead under the State Constitution, title shall remain vested in the trustee and subject to the provisions of the trust. (4) This section applies only to trusts described in s. 733.707(3) and to testamentary trusts. (5) This section is intended to clarify existing law and applies to the administration of trusts and estates of decedents who die before, on, or after July 1, 2021. Id. The statute is self-explanatory. A proceeding to determine the homestead status of real property owned by a trust may be filed in the settlor’s probate proceeding, provided the settlor was treated as the owner of the interest held in trust under F.S. 732.4015. F.S. 736.0201(7). The proceeding will be governed by the Florida Probate Rules. Id. « Ch. 8 », « § 8.2 », « B », « 6 • 1 Litigation Under FL Probate Code § 8.2.B.6 (2022)

6. F.S. 736.151—Homestead Property Effective July 1, 2021, the Florida Legislature enacted the Community Property Trust Act. F.S. 76.151 provides that homestead property held subject to a community property trust may continue to qualify as homestead. F.S. Chapter 222 should be consulted in connection with any questions concerning levy and execution on property that is alleged to be a homestead. See also §§ 8.4.A–8.4.C.3 below and Chapters 2 and 5 of ASSET PROTECTION IN FLORIDA (Fla. Bar 7th ed. 2022).

When there is a conflict between a provision in the constitution as to homestead and mere statutory enactment, the former will prevail. Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d DCA 1978). « Ch. 8 », « § 8.2 », « C » 1 Litigation Under FL Probate Code § 8.2.C (2022)

C. Applicable Law In determining whether a parcel of realty is subject to devise or whether devise is limited or proscribed, it is important to compare the date of the decedent’s death with the particular Florida constitutional provision then applicable. This is vital when researching case law in preparation for litigation. See, e.g., Robbins v. Robbins, 411 So. 2d 1024 (Fla. 2d DCA 1982), in which the date of the deed in question (and the corresponding constitutional provision to be applied) was of critical importance. The law to be applied in determining the disposition of property upon the death of a person is the law in effect as of the date of the person’s death. Jones v. Jones, 412 So. 2d 387 (Fla. 2d DCA 1982). « Ch. 8 », « § 8.2 », « D » 1 Litigation Under FL Probate Code § 8.2.D (2022)

D. Form Of Ownership Of Property A fee simple interest in property is not a prerequisite to gaining homestead status. Ownership interests that may be subject to homestead status include an undivided interest, an equitable interest, a beneficial interest, a leasehold interest, a legal life estate, and the right of possession. See F.S. 222.05; Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946); Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012). See also PRACTICE UNDER FLORIDA PROBATE CODE §§ 19.2.B.4–19.2.B.6 (Fla. Bar 11th ed. 2022); Seiden, An Update on the Legal Chameleon: Florida’s Homestead Exemption & Restrictions, 40 U. Fla. L. Rev. 919 (1988). As noted in § 8.2.A, ownership of a cooperative apartment unit may now qualify for homestead status under Article X, § 4, of the Florida Constitution. The title to real property held as a tenancy by the entireties passes from a deceased spouse to the survivor by operation of law because of the nature of an estate by the entireties, and not by reason of the constitutional or statutory provisions. Title held as joint tenancy with rights of survivorship also passes

by operation of law and is not subject to the restrictions on devise. F.S. 732.401(5); Marger v. De Rosa, 57 So. 3d 866 (Fla. 2d DCA 2011). « Ch. 8 », « § 8.2 », « E • 1 Litigation Under FL Probate Code § 8.2.E (2022)

E. Possession Of Homestead By Personal Representative And Homestead Lien The personal representative may take possession of the protected homestead for limited purposes. F.S. 733.608(2) provides: If property that reasonably appears to the personal representative to be protected homestead is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status. If the personal representative takes possession of that property, any rents and revenues may be collected by the personal representative for the account of the heir or devisee, but the personal representative shall have no duty to rent or otherwise make the property productive. This was a significant change from prior law. Before January 1, 2002, the personal representative generally had no right to take possession of homestead real property, which generally is not subject to administration proceedings or probate court jurisdiction. Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938); Walker v. Redding, 40 Fla. 124, 23 So. 565 (1898). But see Monks v. Smith, 609 So. 2d 740 (Fla. 1st DCA 1993) (because homestead passed by virtue of devise rather than by operation of law, it was asset of estate notwithstanding that beneficiary entitled to homestead received it free of claims of estate creditors). It appears that property that was the homestead of the decedent could be subjected to the creditors of the decedent’s estate if the property is devised (as permitted by law) to beneficiaries who are not the decedent’s “heirs.” See § 8.3.C.3; PRACTICE UNDER FLORIDA PROBATE CODE §§ 19.4.A.1–19.4.A.3 (Fla. Bar 11th ed. 2022). The 2002 change is considered remedial in nature and applies to estates and homesteads for decedents who died before the effective date of the amendment to the statute (i.e., January 1, 2002). Harrell v. Snyder, 913 So.

2d 749 (Fla. 5th DCA 2005). The statute does not give the personal representative any authority to sell the homestead. Id. Fla. Prob. R. 5.404 requires the personal representative to file in the probate proceeding a notice of the act of taking possession of protected homestead. If the personal representative spends funds or incurs obligations to preserve, maintain, insure, or protect “protected homestead,” the personal representative is entitled to a lien on that property and its revenues to secure repayment of expenditures or obligations incurred. F.S. 733.608(3). The expenditures or obligations constitute a debt to the personal representative. Id. The court having jurisdiction of the decedent’s probate estate has jurisdiction to adjudicate the amount of the debt after formal notice to those persons appearing to have an interest in the property. F.S. 733.608(3)(a). The persons having an interest in the homestead property are not personally liable for the debt. F.S. 733.608(3)(b). The personal representative may enforce the debt by (1) foreclosing on the lien provided for in the statute, (2) offsetting some portion of the debt against probate property that would be distributable to a person having an interest in the protected homestead, or (3) offsetting the debt against revenues from the property. Id. The personal representative has a lien on protected homestead to secure repayment of the debt if the personal representative records a notice of lien in the public records. F.S. 733.608(4). The personal representative must file the notice of lien in the probate proceeding, but failure to do so does not affect the validity of the lien. The personal representative must serve this notice of lien on those persons appearing to have an interest in the protected homestead. Id. The contents of the notice are set forth in F.S. 733.608(4). Substantial compliance with that subsection renders the notice effective. Effective January 1, 2006, Rule 5.402 was created to address the filing and content requirements in the probate proceeding for the notice of lien on protected homestead, and Rule 5.403 was created to address probate proceedings to determine the amount of the lien on protected homestead. It is error for the trial court to impose a lien when the statutory requirements have not been met. See Golden & Cowan, P.A. v. Estate of Locascio, 41 So. 3d 1113 (Fla. 3d DCA 2010) (law firm not entitled to personal representative’s lien when law firm was neither personal representative, curator, nor counsel

for either personal representative or curator). See also Herrilka v. Yates, 13 So. 3d 122 (Fla. 4th DCA 2009). The lien terminates on the earliest of (1) recording a satisfaction or release signed by the personal representative in the public records of the county where the property is located, (2) the discharge of the personal representative on completion of the probate administration, (3) one year from the recording of the notice of lien in the public records unless a proceeding to determine the debt or enforce the lien has been filed, or (4) entry of an order releasing the lien. F.S. 733.608(5). The practitioner should consult F.S. 733.608 for additional provisions regarding the right to a homestead lien. These provisions apply to estates of decedents dying after June 12, 2003. F.S. 733.608(13).

« Ch. 8 », « § 8.3 » 1 Litigation Under FL Probate Code § 8.3 (2022)

§ 8.3. CONTEXTS IN WHICH HOMESTEAD ISSUES ARISE « Ch. 8 », « § 8.3 », • A » 1 Litigation Under FL Probate Code § 8.3.A (2022)

A. In General Homestead questions arise in a variety of contexts. These cases may be divided into three basic classes: (1) those dealing with exemption of the homestead from taxation; (2) those dealing with exemption of the homestead from levy by creditors; and (3) those dealing with title to the property in question. The first category is beyond the general scope of this chapter and is discussed only briefly. The other two categories involve probate litigation issues and are discussed below. « Ch. 8 », « § 8.3 », « B » 1 Litigation Under FL Probate Code § 8.3.B (2022)

B. Tax Exemption Issues The “homestead exemption” from ad valorem taxation is granted in Article VII, § 6(a), of the Florida Constitution. This provision allows a tax exemption to “[e]very person who has the legal or equitable title” to real property, if the property is “the permanent residence of the owner, or another legally or naturally dependent upon the owner.” See Baldwin v. Henriquez, 279 So. 3d 328 (Fla. 2d DCA 2019). This constitutional definition of homestead differs from that of Article X, § 4, of the constitution, which forms the basis for the homestead provisions related to the alienation, devise, and descent of homestead property. Because of this, the “homestead tax exemption” area has developed its own body of law. This field is related, but not identical, to that discussed in this chapter. For an in-depth discussion of the tax exemption on homestead, see Chapter 6 of ASSET PROTECTION IN FLORIDA (Fla. Bar 7th ed. 2022). « Ch. 8 », « § 8.3 », « C » 1 Litigation Under FL Probate Code § 8.3.C (2022)

C. Title Issues « Ch. 8 », « § 8.3 », « C », • 1 » 1 Litigation Under FL Probate Code § 8.3.C.1 (2022)

1. Inter Vivos Alienation Of Property Article X, § 4(c), of the Florida Constitution provides that “[t]he owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift.” From the perspective of probate litigation, the joinder requirement means that it may be necessary or advisable to review inter vivos conveyances made by a person during the term of his or her marriage, to determine whether valid title was passed. If the deed is subject to attack because of the absence of the spouse’s joinder, the property may still be part of the estate of the decedent on his or her death. See, e.g., Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008) (husband’s conveyance of life estate to himself and his wife as tenants by entireties was valid, but his attempt to convey remainder interest to his daughter was ineffective without wife’s joinder); Nordman v. McCormick, 715 So. 2d 310 (Fla. 5th DCA 1998) (deed of homestead from owner to his wife in 1917 was void under 1885 Florida Constitution because wife did not join in deed); Sigmund v. Elder, 631 So. 2d 329 (Fla. 1st DCA 1994) (affirming trial court ruling that surviving spouse had only life estate in property purportedly held as tenants by entireties because 1962 deed by deceased spouse into joint names of both spouses was void under provisions of Florida Constitution in effect at time of deed). If a mortgage is similarly invalid, the “mortgagee” would still be a creditor of the estate but would have no security interest in the homestead property. In Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015), a husband and wife owned property titled in both their names. The husband and wife then executed a warranty deed conveying the property to themselves as tenants in common, each holding an undivided one-half interest. The husband subsequently transferred his one-half interest to his qualified personal residence trust (QPRT) pursuant to F.S. 732.4017. The husband did not survive the term of the QPRT, and the property reverted back to his estate. A subsequent disposition of the property under the terms of his will constituted a devise subject to the constitutional restrictions on devises. Here, however, the wife had waived her homestead rights by executing the deed splitting the

property into two one-half tenancy-in-common interests and transferring her interest into her QPRT. The husband was therefore free to devise his interest in the homestead property without any constitutional restrictions. In Lyons v. Lyons, 155 So. 3d 1179 (Fla. 4th DCA 2015), the husband and wife quitclaimed their residence to the wife alone. Their children were adults. In 1993, the wife quitclaimed the residence to a QPRT. Subsequent to the husband passing away, the wife executed a quitclaim deed seeking to convey the residence to herself and her daughter. When challenged, the wife argued that the 1993 deed to the QPRT was void ab initio because the husband never signed the deed. The court disagreed, stating that the wife did not have standing to assert the husband’s constitutional rights. Article X, § 4(c), of the Florida Constitution protects the nonowner spouse, which, in this case, was the husband. The court further noted that it would be absurd to allow the person who created the infirmities in the deed to then attack the deed’s validity. « Ch. 8 », « § 8.3 », « C », « 2 » 1 Litigation Under FL Probate Code § 8.3.C.2 (2022)

2. Inheritance Of Property If the homestead definition in Article X, § 4(a), of the Florida Constitution is met, the provisions of the constitution and the enabling statute, F.S. 732.401, must be considered. The statute requires that if the property is not devised as permitted by law (see § 8.3.C.3), the homestead property “shall descend in the same manner as other intestate property.” F.S. 732.401(1). If the decedent is survived by a spouse and one or more descendants, however, “the surviving spouse shall take a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death per stirpes.” Id. As noted in § 8.2.B.2, effective October 1, 2010, the surviving spouse can elect to take an undivided one-half interest in the homestead property as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death. A person who proves that the decedent “virtually adopted” him or her is an “heir” of the decedent and entitled to a share of an intestate estate including the homestead. Williams v. Dorrell, 714 So. 2d 574 (Fla. 3d DCA 1998). In applying these provisions to a particular estate, consideration must be

given not only to the factual issues related to homestead discussed in this chapter, but also to the family relationship and survivorship issues developed in Chapter 2. Although a surviving spouse’s interest may be limited to a life estate, the surviving spouse can obtain a constructive trust against the homestead for cash contributions the spouse made for maintenance and upkeep of the property. Breausche v. Prough, 592 So. 2d 1211 (Fla. 2d DCA 1992). « Ch. 8 », « § 8.3 », « C », « 3 • 1 Litigation Under FL Probate Code § 8.3.C.3 (2022)

3. Devise Of Property If a decedent dies testate, Article X, § 4(c), of the Florida Constitution and F.S. 732.4015 must be considered in determining whether the homestead property may be devised under the decedent’s will. See § 8.2.B.3. With respect to the devise of property, the constitution provides that “[t]he homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child.” In Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012), the decedent conveyed his condominium to his revocable trust. The condominium had become his homestead before he passed away. Upon his death, because his spouse survived him, the homestead passed outside the trust as it was not subject to disposition through the trust. Furthermore, the surviving spouse was not entitled to reimbursement from the remaindermen for the amount she paid to satisfy the mortgage on the homestead before the decedent’s death, even though she believed she was the titleholder to the property. To have a valid devise of the homestead to the surviving spouse under these provisions, the devise to the spouse must constitute the decedent’s entire interest in the homestead property. This is true for both the “quality” of the devise, In re Estate of Finch, 401 So. 2d 1308 (Fla. 1981), and the “quantity” of the devise, In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987); Iandoli v. Iandoli, 504 So. 2d 426 (Fla. 4th DCA 1987). The homestead generally must be devised outright, and directly to the surviving spouse. A devise of homestead property to a revocable inter vivos trust was permitted when the surviving spouse was the sole trustee and sole beneficiary

of the inter vivos trust, resulting in a merger, in In re Estate of Donovan, 550 So. 2d 37 (Fla. 2d DCA 1989). The decedent’s ability to devise the homestead property may be affected by a marital agreement executed by the surviving spouse, as noted in § 8.3.E. Of course, a testator can devise the homestead anyway he or she chooses, provided there is no spouse or minor children, even if the testator is survived by heirs. Webb v. Blue, 243 So. 3d 1054 (Fla. 1st DCA 2018) (homestead devised to friend). F.S. 732.4015, as amended in 1992, is more than a mere restatement of the constitutional provision. It brings the disposition of property through a revocable trust into the statutory restrictions on devising homestead property. « Ch. 8 », « § 8.3 », « D » 1 Litigation Under FL Probate Code § 8.3.D (2022)

D. Exemption From Claims Of Creditors Issues Article X, § 4(b), of the Florida Constitution provides that the homestead exemptions “inure to the surviving spouse or heirs of the owner.” The effect of that provision is that the homestead property passes to the surviving spouse or heirs of the decedent without any liability for any debts of the decedent other than those listed in Article X, § 4(a), of the Florida Constitution. This result occurs even if the recipients of the property were not dependent on the decedent. Public Health Trust of Dade County v. Lopez, 531 So. 2d 946 (Fla. 1988). Because the constitutional provision is phrased in favor of the surviving spouse or “heirs” of the decedent, the question arises about whether the homestead becomes subject to the claims of creditors if the property is in fact devised by the decedent. If so, does it make any difference to whom the property is devised; i.e., if the devisee of the homestead is someone who is also an heir of the decedent, is the property subject to creditors’ claims? Before 1997, Florida’s appellate courts appeared to be settling on a rule that the homestead passed free of the claims of the decedent’s creditors if the devisees of the property were also heirs of the decedent who were entitled to receive property under the laws of intestacy. Davis v. Snyder, 681 So. 2d 1191 (Fla. 2d DCA 1996); Monks v. Smith, 609 So. 2d 740 (Fla. 1st DCA 1993); Bartelt v. Bartelt, 579 So. 2d 282 (Fla. 3d DCA 1991). But see Walker

v. Mickler, 687 So. 2d 1328 (Fla. 1st DCA 1997). However, in Snyder v. Davis, 699 So. 2d 999 (Fla. 1997), the Florida Supreme Court quashed the Second District’s decision in Davis and approved the First District’s opinion in Walker (see also Walker v. Mickler, 699 So. 2d 687 (Fla. 1997)). The court held that the homestead exemption from claims of creditors inures to the benefit of any devisee falling within the class of persons categorized as “heirs” in F.S. 732.103. In so holding, the court rejected the narrow entitlement definition that limited “heirs” to only those persons who actually inherit under the intestacy laws at the time of the decedent’s death. Thus, a devisee of homestead property who is within the class of potential heirs of the decedent under F.S. 732.103 is entitled to the homestead protection from creditors’ claims, even if that person is not an actual heir of the decedent at the time of the decedent’s death. See also Traeger v. Credit First National Ass’n, 864 So. 2d 1188 (Fla. 5th DCA 2004) (property passing to decedent’s stepson is entitled to homestead status despite stepson being in lower “class” of persons than decedent’s daughter under intestacy statutes); Moss v. Estate of Moss, 777 So. 2d 1110 (Fla. 4th DCA 2001) (brother and niece of deceased spouse of testator were included within definition of “heirs” for purposes of homestead protection even though those individuals would not have received share of estate had testator died without will). A homestead validly devised to the decedent’s child is also protected from forced sale to pay the expenses of administering the decedent’s estate. Thompson v. Laney, 766 So. 2d 1087 (Fla. 3d DCA 2000). In McKean v. Warburton, 919 So. 2d 341 (Fla. 2006), the Florida Supreme Court held that when the decedent is not survived by a spouse or minor child, the homestead passes to the residuary devisees who were the decedent’s heirs, not the general devisees, unless there is a specific testamentary disposition ordering the homestead to be sold and the proceeds to be made a part of the general estate. If the homestead may be devised and the decedent directs by will that the homestead property be sold and the proceeds distributed to any devisees (regardless of their relationship to the decedent), the constitutional prohibition on the enforcement of the claims of creditors does not apply. Id. In such a case, the decedent has actually made a devise of the proceeds

derived from the homestead, rather than the homestead itself. Knadle v. Estate of Knadle, 686 So. 2d 631 (Fla. 1st DCA 1997); Estate of Price v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987). See also Pajares v. Donahue, 33 So. 3d 700 (Fla. 4th DCA 2010). In In re Estate of Hamel, 821 So. 2d 1276 (Fla. 2d DCA 2002), the Second District declined to expand the holdings of the First District in Knadle and Price. The court held that the homestead protection inured to heirs for homestead property sold after the decedent’s death pursuant to a contract of sale executed by the testator before his death. The heirs did not lose the homestead protection when, before the entry of an order determining homestead, the heirs transferred title to the homestead property to the purchaser in compliance with the decedent’s contract for sale of the property and those heirs were entitled to receive the homestead property pursuant to the residuary clause in the decedent’s will. But see Boren v. Suntrust Bank, 46 So. 3d 1156 (Fla. 2d DCA 2010). In Boren, the decedent’s contractual interest in a condominium in which she held a life estate, which consisted of a buy-back agreement entitling her heirs to the sales proceeds of the condominium following termination of the life estate, was held to be not homestead property. The decedent did not own a home that could be devised to heirs, and the proceeds were included in the estate for purposes of calculating compensation of the personal representative and its lawyer. For a discussion of satisfying the homestead exemption requirements on proceeds received from a voluntary sale of the homestead property during life, see JBK Associates, Inc. v. Sill Bros. Inc., 191 So. 3d 879 (Fla. 2016), and Orange Brevard Plumbing & Heating Co. v. LaCroix, 137 So. 2d 201 (Fla. 1962). In HCA Gulf Coast Hospital v. Estate of Downing, 594 So. 2d 774 (Fla. 1st DCA 1992), a decedent devised her homestead property to her exhusband, as trustee of a spendthrift trust for the benefit of her sole heir, her daughter. The court held that the property remained exempt from the claims of the decedent’s creditors, just as it would have if it had passed directly to the daughter by devise or intestacy. The court noted that the benefit of the property inured entirely to the daughter, and the trustee “exercised nothing more than a supervisory interest in the homestead.” Id. at 776. That the intent was effected through a spendthrift trust “seems to us a matter of form rather than substance.” Id. If the decedent devises a life estate in the homestead to someone not an

heir with the remainder to someone who is an heir, the homestead exemption will inure to the remainder interest. The life estate, however, is subject to claims of the decedent’s creditors. Hubert v. Hubert, 622 So. 2d 1049 (Fla. 4th DCA 1993). Generally, a debtor who owns only a vested remainder interest in real property cannot claim a homestead exemption as to that remainder interest to protect the property from the debtor’s creditors. In re Plaster, 271 B.R. 202 (Bankr. M.D. Fla. 2001); In re Lewis, 226 B.R. 703 (Bankr. N.D. Fla. 1998). But see In re Williams, 427 B.R. 541 (Bankr. M.D. Fla. 2010) (homestead exemption was available to debtor who had vested remainder interest in residential property, because home was debtor’s residence on petition date); In re Hildebrandt, 432 B.R. 852 (Bankr. N.D. Fla. 2010) (receding from In re Lewis and finding that under certain circumstances, remainder interest can support homestead exemption). If a decedent’s homestead passes to the decedent’s minor children, they receive the property as heirs, free and clear of the debts of the decedent. If the children later sell the property, the proceeds are not subject to the claims of creditors of the decedent’s estate. The rule of Estate of Price does not apply, because the homestead estate has not been converted to dollars before it passes to and vests in the decedent’s minor children. In re Estate of Tudhope, 595 So. 2d 312 (Fla. 2d DCA 1992). See also Estate of Shefner v. ShefnerHolden, 2 So. 3d 1076 (Fla. 3d DCA 2009) (heir’s subsequent sale of homestead did not subject proceeds of sale to claims of estate’s creditors). Homestead property is exempt from forfeiture under the Florida RICO Act, F.S. 895.01 et seq. (see F.S. 895.05), because that Act is not within the exceptions to the homestead protections contained in the constitution. Butterworth v. Caggiano, 605 So. 2d 56 (Fla. 1992), 16 A.L.R. 5th 1118. Homestead property is also exempt from forfeiture under the Florida Forfeiture Act, F.S. 932.701 et seq. Tramel v. Stewart, 697 So. 2d 821 (Fla. 1997). The Florida Supreme Court in Tramel held that a constitutional amendment would be required before the state can forfeit a homestead based on criminal activity governed by the Florida Forfeiture Act. But see United States v. Fleet, 498 F.3d 1225 (11th Cir. 2007), in which the Eleventh Circuit, acknowledging an apparent conflict with Caggiano, found that the federal criminal forfeiture statute, 21 U.S.C. § 853(b), preempts Florida’s homestead

exemption. In Gepfrich v. Gepfrich, 582 So. 2d 743 (Fla. 4th DCA 1991), homestead property was found not to be exempt from an alimony obligation that predated the purchase of the homestead property. The court determined that the property owner had “unclean hands” and that the court “should not sanction such a blatantly defrauding scheme by permitting the former husband to hide behind the homestead exemption laws.” Id. at 744. See also Palm Beach Savings & Loan Ass’n v. Fishbein, 619 So. 2d 267 (Fla. 1993) (equitable lien may be established when funds obtained from one spouse’s fraud are used to invest in, purchase, or improve homestead despite other spouse’s innocence or ignorance of wrongdoing); Spector v. Spector, 226 So. 3d 256 (Fla. 4th DCA 2017) (homestead protection does not protect a former spouse when he has acted egregiously, reprehensibly or fraudulently); Flinn v. Doty, 214 So. 3d 683 (Fla. 4th DCA 2017) (equitable lien allowed to prevent unjust enrichment even in absence of fraud or egregious conduct); Zureikat v. Shaibani, 944 So. 2d 1019 (Fla. 5th DCA 2006) (lien was allowed when proceeds from fraudulent conduct were used to invest in, purchase, or improve homestead). In Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001), the Florida Supreme Court declined to extend its equitable lien jurisprudence and ruled that the homestead exemption protects a debtor’s homestead even if the homestead was acquired with nonexempt assets with the intent to hinder, delay, or defraud creditors. The court has invoked equitable principles to reach beyond the literal language of the exceptions only when funds obtained to invest in, purchase, or improve the homestead were obtained through fraud or egregious conduct (as opposed to simply being previously nonexempt assets). The court indicated that the legislature did not have the power to change the rights provided by the constitutional homestead exemption. The United States Congress, however, has the right to do so in connection with bankruptcy proceedings and has limited this homestead protection in such proceedings. See 11 U.S.C. §§ 522(o)–(p). In In re Bosonetto, 271 B.R. 403 (Bankr. M.D. Fla. 2001), the bankruptcy court held that the homestead exemption did not protect the half interest of the property kept in a revocable trust or the remaining half interest gifted to a daughter. However, two subsequent opinions from Florida district courts

have ruled to the contrary. In Callava v. Feinberg, 864 So. 2d 429 (Fla. 3d DCA 2004), the court held that a divorced wife was entitled to claim the constitutional exemption from foreclosure of an equitable lien on property in which she had a beneficial interest, but that was held in the name of a trustee. In Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006), the court found that the settlor’s residence titled in the settlor’s revocable trust was owned by a “natural person” and therefore was constitutionally protected homestead, and that protection inured to the settlor’s heirs. Subsequent bankruptcy decisions in the Middle District of Florida have declined to follow Bosonetto. In re Edwards, 356 B.R. 807 (Bankr. M.D. Fla. 2006). In contrast to Callava, the Second District in DeJesus v. A.M.J.R.K Corp., 255 So. 3d 879 (Fla. 2d DCA 2018), held that the property against which the judgment creditor held a lien was not entitled to homestead protection against forced sale, even though there was a natural person residing there, when the property was owned by a corporation and attempted transfers from the corporation to the natural person were unsuccessful. The court explained: Callava does not hold that a person need not own property to claim homestead protection. Callava merely holds that one’s ownership interest in the property need not be fee simple title in order to obtain the homestead exemption from the forced sale of the property to satisfy a judgment lien. While the judgment debtor in Callava had some ownership interest in the property—as a beneficiary of the trust that owned it—in the instant case [the natural person] has no ownership interest, either legal or equitable, in the property at issue. DeJesus, 255 So. 3d at 881. In Taylor v. Maness, 941 So. 2d 559 (Fla. 3d DCA 2006), the court held that a contract for sale of homestead property could not be enforced by specific performance when the wife would not sign the deed even though the property was titled in the husband’s name only. The court held that the wife had a beneficial homestead interest in the property. However, when both spouses have signed the contract to sell their homestead, Florida has a long history recognizing specific performance as a remedy to enforce the sales contract. Mirzataheri v. FM East Developers, LLC, 193 So. 3d 19 (Fla. 3d DCA 2016) (specific performance was not precluded as remedy).

In Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008), on rehearing en banc, the Third District held that homestead property titled in a trust may retain its homestead character. In this case, the trust transferred the homestead to the settlor’s probate estate. The settlor’s last will and testament devised the homestead to the settlor’s daughter and a separate parcel of land to the settlor’s son. The gifts to the daughter and son were each impressed with an obligation by the express terms of the will to pay an equal share of the estate’s debts should other assets of the estate be insufficient to pay those debts. The district court held that the homestead protection against claims of the decedent’s creditors did not inure to the daughter’s gift. The language in the will was the functional equivalent of ordering that the homestead be sold and the proceeds used to pay the estate’s debts. The court ruled that the settlor/testator had a right to have her intent carried out in the absence of any constitutional restriction. In Beltran v. Kalb, 63 So. 3d 783 (Fla. 3d DCA 2011), the father retained a homestead interest in the home even though it had been awarded to his wife in the marital dissolution action. The father never executed the quitclaim deed transferring his interest to the wife. Even though he no longer lived in the home, his daughter did. There was no showing that the father and his family had abandoned the property. Therefore, the homestead status continued, and the property was exempt from the father’s creditors. See also Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014). « Ch. 8 », « § 8.3 », « E • 1 Litigation Under FL Probate Code § 8.3.E (2022)

E. Waivers Of Homestead Protection The decedent and the decedent’s spouse may have entered into a marital agreement under F.S. 732.702 in which the surviving spouse waived all of his or her rights in the estate of the decedent. The statute provides that homestead property is one of these rights that may be waived. Such a waiver is the functional equivalent of the death of the surviving spouse, so that he or she is deemed to have predeceased the decedent. Hulsh v. Hulsh, 431 So. 2d 658 (Fla. 3d DCA 1983). This rule carries over to the homestead provisions, with the effect that the waiver may remove the homestead property from the strictures of Article X, § 4(c), of the Florida Constitution and F.S. 732.4015 that are discussed in § 8.3.C.3, thereby enabling the decedent to devise the

property if not survived by a minor child. If “a decedent is survived by no minor children and the surviving spouse has waived homestead rights, there is no constitutional restriction on devising homestead property.” City National Bank of Florida v. Tescher, 578 So. 2d 701, 703 (Fla. 1991). See also Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991). Effective July 1, 2018, F.S. 732.7025 provides for the waiver of homestead rights through a deed with respect to the devise restrictions contained in Article X, § 4(c), of the Florida Constitution. The statute provides: (1) A spouse waives his or her rights as a surviving spouse with respect to the devise restrictions under Article X, § 4(c), of the Florida Constitution if the following or substantially similar language is included in a deed: “By executing or joining this deed, I intend to waive homestead rights that would otherwise prevent my spouse from devising the homestead property described in this deed to someone other than me.” (2) The waiver language in subsection (1) may not be considered a waiver of the protection against the owner’s creditor claims during the owner’s lifetime and after death. Such language may not be considered a waiver of the restrictions against alienation by mortgage, sale, gift, or deed without the joinder of the owner’s spouse. Some cases have addressed whether, after the decedent’s death, a surviving spouse can waive homestead rights to receive a portion of the property under the decedent’s will. See, e.g., Jacobs v. Jacobs, 633 So. 2d 30 (Fla. 5th DCA 1994). The suggestion is that the surviving spouse’s post-death waiver would not be effective for purposes of receiving a portion of the homestead under the decedent’s will. See also In re Estate of Cleeves, 509 So. 2d 1256 (Fla. 2d DCA 1987), and § 8.2.B.2 for a discussion of the effect of a surviving spouse’s disclaimer (as opposed to waiver) of his or her interest in homestead. In Rutherford v. Gascon, 679 So. 2d 329 (Fla. 2d DCA 1996), the court held that a surviving spouse’s agreement with her deceased husband’s personal representative to accept a life estate in the decedent’s condominium did not constitute a waiver of her homestead rights in the property. The court relied on Cleeves for the proposition that there is no waiver of homestead if

the survivor unwittingly treats homestead property as part of the probate estate. In Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007), the Florida Supreme Court, declining to recede from prior opinions, held that the homestead exemption from creditors’ claims cannot be waived in an unsecured agreement. The waiver of the homestead exemption contained in the debtor’s fee agreement with his lawyers was held invalid because the waiver was not authorized by Article X, § 4, of the Florida Constitution, or any statute. The protection applies to the proceeds of any insurance recovery in the event a homestead is damaged by fire, wind, or flood. Quiroga v. Citizens Property Insurance Corp., 34 So. 3d 101 (Fla. 3d DCA 2010). However, the protection does not prohibit the assignment of post-loss insurance benefits due as a result of damage to homestead property. Speed Dry, Inc. v. Anchor Property & Casualty Insurance Co., 302 So. 3d 463 (Fla. 5th DCA 2020). In Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011), the debtor in bankruptcy elected not to claim the homestead exemption under Article X, § 4, of the Florida Constitution, even though the exemption was self-executing. The constitutional exemption ordinarily cannot be waived or lost unless the homestead is abandoned or alienated. However, bankruptcy adds another dimension. In Osborne, because the trustee’s administration of the bankruptcy estate was not obstructed by the existence of the homestead exemption, and because the debtor did not receive the benefits of the homestead exemption, the debtor was eligible to claim the F.S. 222.25(4) personal property exemption of $4,000. But see In re Valone, 784 F.3d 1398 (11th Cir. 2015) (declining to extend language in Osborne noting possibility that debtor who does not claim homestead exemption may yet receive its benefits to situations in which protection of home emanates from source other than homestead exemption). In Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015), discussed in § 8.3.C.1, a husband and wife owned property titled in both their names. The husband and wife then executed a warranty deed conveying the property to themselves as tenants in common, each holding an undivided one-half interest. The wife waived her homestead rights by executing the deed splitting the property into two one-half tenancy-in-common interests, and by transferring her interest into her qualified personal residence trust.

« Ch. 8 », « § 8.4 » 1 Litigation Under FL Probate Code § 8.4 (2022)

§ 8.4. DETERMINATION OF HOMESTEAD STATUS « Ch. 8 », « § 8.4 », • A » 1 Litigation Under FL Probate Code § 8.4.A (2022)

A. Presumptions; Burden Of Proof The constitutional homestead exemption from levy and execution is liberally construed in the interest of protecting the home. Quigley v. Kennedy & Ely Insurance, Inc., 207 So. 2d 431 (Fla. 1968); Cain v. Cain, 549 So. 2d 1161 (Fla. 4th DCA 1989). In view of the strength of the constitutional protection afforded homestead, it has been held that it is not waived by failure to resist a forced sale. White v. Posick, 150 So. 2d 263 (Fla. 2d DCA 1963). There is a factual presumption against abandonment of homestead; continuance of homestead status is liberally construed. Poppell v. Padrick, 117 So. 2d 435 (Fla. 2d DCA 1960). Although homestead exemption laws are to be liberally construed, they are not to be applied “so as to make them an instrument of fraud, or an imposition on creditors, nor as a means to escape honest debts.” Vandiver v. Vincent, 139 So. 2d 704, 708 (Fla. 2d DCA 1962). The rule of Vandiver was applied in Gepfrich v. Gepfrich, 582 So. 2d 743 (Fla. 4th DCA 1991), in which homestead property was found not to be exempt from an alimony obligation that predated the purchase of the homestead property. See § 8.3.D. A validly executed and recorded deed carries with it a presumption of validity. Saks v. Smith, 145 So. 2d 895 (Fla. 3d DCA 1962). Thus, if a person seeks to attack a deed of homestead property for lack of sufficient consideration, fraud, undue influence, or duress, the initial burden is on the party challenging the deed. Gregory v. Lloyd, 284 F. Supp. 264 (N.D. Fla. 1968). If there is an issue of fact about whether an instrument has been executed sufficiently to meet the requirements for alienation of homestead, the degree of proof required to alienate that homestead is extraordinarily high. In Heath v. First National Bank in Milton, 213 So. 2d 883, 888 (Fla. 1st DCA 1968), the court held that sufficient execution, for purposes of

alienation of homestead, must be proved by “unrefutable evidence.” The trial court’s determination of disputed questions of fact concerning homestead comes to the appellate court with a presumption of correctness. Weiss v. Stone, 220 So. 2d 403 (Fla. 3d DCA 1969). The burden on a losing party seeking to reverse on appeal is that of meeting the “clearly erroneous” test for reversal of a trial judge sitting as a trier of fact. The issue of the homestead status of property may be raised in a probate proceeding by filing a petition to determine homestead property, as discussed in § 8.5.E. The personal representative should not file a petition challenging the validity of the decedent’s transfer of homestead when there are no surviving members of the two protected classes under Article X, § 4(c), of the Florida Constitution. In re Estate of Morrow, 611 So. 2d 80 (Fla. 2d DCA 1992). Under F.S. 222.10, the circuit court has exclusive jurisdiction to determine the validity of a property owner’s claimed homestead exemption. Sepulveda v. Westport Recovery Corp., 145 So. 3d 162 (Fla. 3d DCA 2014). « Ch. 8 », « § 8.4 », « B » 1 Litigation Under FL Probate Code § 8.4.B (2022)

B. Importance Of Time Of Execution Of Instrument In Determining Homestead In construing a will to determine if it is defeated by a homestead claim, the date of its execution is irrelevant. The critical moment is the death of the testator, inasmuch as a will has no legal effect until the date of the testator’s death. Estate of Murphy, 340 So. 2d 107 (Fla. 1976); Jones v. Jones, 412 So. 2d 387 (Fla. 2d DCA 1982). Although a will is a transitory instrument, not effective until the testator’s passing, the contrary rule is applicable to a deed. The law applicable on the date of a purported conveyance by deed determines one’s vested right to homestead. See Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d DCA 1978). « Ch. 8 », « § 8.4 », « C • 1 Litigation Under FL Probate Code § 8.4.C (2022)

C. Factual Issues To Be Determined

« Ch. 8 », « § 8.4 », « C •, • 1 » 1 Litigation Under FL Probate Code § 8.4.C.1 (2022)

1. In General If there is a factual issue as to the physical extent of homestead when improved property is involved, the matter becomes a dispute of fact for the trial court to resolve. Weiss v. Stone, 220 So. 2d 403 (Fla. 3d DCA 1969). This would not preclude the court, however, in its discretion, from empaneling an advisory jury to decide particularly appropriate factual disputes upon which a case might turn. In re Estate of Wartels, 338 So. 2d 48 (Fla. 3d DCA 1976), aff’d 357 So. 2d 708. See §§ 10.4.A–10.4.B of this manual. « Ch. 8 », « § 8.4 », « C •, « 2 » 1 Litigation Under FL Probate Code § 8.4.C.2 (2022)

2. Residency Article X, § 4(a)(1), of the Florida Constitution provides that the homestead provisions are “limited to the residence of the owner or the owner’s family.” This has been interpreted to require that the property be the permanent place of residence, with the owner having the intent of remaining at the property for an indefinite period of time. Engel v. Engel, 97 So. 2d 140 (Fla. 2d DCA 1957). A nonresident alien who was living in Florida under a temporary visa was therefore precluded from claiming homestead, because he could not establish an intent to remain at the property indefinitely, in In re Cooke, 412 So. 2d 340 (Fla. 1982). Compare Grisolia v. Pfeffer, 77 So. 3d 732 (Fla. 3d DCA 2011). « Ch. 8 », « § 8.4 », « C •, « 3 • 1 Litigation Under FL Probate Code § 8.4.C.3 (2022)

3. Family Status If the owner of the property establishes permanent residence on the property, it is irrelevant whether any family members (or other persons) also reside there. Art. X, § 4(a), Fla. Const.; Seiden, An Update on the Legal Chameleon: Florida’s Homestead Exemption & Restrictions, 40 U. Fla. L. Rev. 919 (1988). The concept of “family” is still relevant, however. If the owner does not reside on the property, family members must do so to gain the exemption from creditors’ claims. The definition of “family” is therefore of

critical importance, but no definitions provide a completely accurate guide. Each case must be judged on its own particular facts. See id. The concept of family is also somewhat relevant in determining the ability of the owner to alienate or devise the property, and in determining the devolution of property not devised as permitted by law. This involves the questions of whether the owner is survived by a “spouse,” “descendants,” or “minor child.” These are “status-oriented” questions, determined under the rules developed in Chapter 2 of this manual.

« Ch. 8 », « § 8.5 • 1 Litigation Under FL Probate Code § 8.5 (2022)

§ 8.5. PLEADING AND PROCEDURE « Ch. 8 », « § 8.5 •, • A » 1 Litigation Under FL Probate Code § 8.5.A (2022)

A. In General The homestead provisions relating to the descent, distribution, and devise of property are self-executing; no action need be taken by the persons who are entitled to receive homestead property. Homestead is not a property right that must always be claimed within a certain time period during the estate administration to gain or retain the right (as is exempt property, for example). Rather, homestead is a status of the property itself. Mullins v. Mullins, 274 So. 3d 513 (Fla. 5th DCA 2019) (homestead protection of devised property from creditors exists even in absence of court order confirming exemption). This “status” nature of homestead creates title problems that may have a negative effect on the marketable title to residential property and may create potential liability problems for practitioners and personal representatives. As such, it is imperative that the personal representative petition the court to determine the status of any property that under any possible circumstances could be considered to be homestead property. This determination should be made by the court, rather than merely assumed by the lawyer or the personal representative. In Ford v. Ford, 581 So. 2d 203 (Fla. 5th DCA 1991), a petition for summary administration and a petition to determine homestead property were presented to the court. The petitioners claimed there were no assets in the estate and no homestead property. The District Court of Appeal, Fifth District, determined that the petition for summary administration should have been granted, because there was no real property in the estate. The court also held that the petition to determine homestead property must be denied, however; because there was no real property in the estate, “there is no authority for the probate court to determine homestead property.” Id. at 204. The court noted that the probate rules “are not a substitute for declaratory judgment actions or quiet title suits.” Id.

« Ch. 8 », « § 8.5 •, « B » 1 Litigation Under FL Probate Code § 8.5.B (2022)

B. Notice Of Proceedings « Ch. 8 », « § 8.5 •, « B », • 1 » 1 Litigation Under FL Probate Code § 8.5.B.1 (2022)

1. Necessity Of Providing Notice In petitioning the court to determine the homestead status of property, the personal representative (or any other interested person who is petitioning the court for its order) must be careful to search for and notify all interested persons, including any surviving spouse and descendants of the decedent. Because the homestead provisions no longer require the family of the decedent to have resided on the property with the decedent, the tendency may be to accept the family situation to be as it may at first appear. This could be misleading and dangerous. In In re Estate of Scholtz, 543 So. 2d 219 (Fla. 1989), for instance, the decedent had been separated from his spouse for approximately 30 years when he died. It could easily have appeared that the decedent was unmarried. Upon his death, however, the decedent’s surviving spouse was entitled to a life estate in the homestead property, with a vested remainder in his adult daughter. It is vital to provide notice of the petition to determine homestead property to all persons whose interests may be affected by the court’s determination. In Cavanaugh v. Cavanaugh, 542 So. 2d 1345 (Fla. 1st DCA 1989), the decedent’s heirs were able to petition the court to determine the homestead status of the property seven years after the decedent’s estate had been closed. The court held that the heirs were not barred by res judicata because they were not part of the administration of the decedent’s estate. The issues of collateral estoppel and laches were not dealt with in Cavanaugh. But see Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938), in which an estoppel defense to an assertion of homestead was rejected. Persons whose interests may be affected by a determination of homestead could include residual devisees, specific devisees of the alleged homestead property, heirs, and creditors of the estate if other estate assets are insufficient to satisfy the creditors’ claims. This will depend on the particular factual situation.

« Ch. 8 », « § 8.5 •, « B », « 2 • 1 Litigation Under FL Probate Code § 8.5.B.2 (2022)

2. Form For Notice IN THE CIRCUIT COURT FOR _________ COUNTY, FLORIDA PROBATE DIVISION IN RE: ESTATE OF _________,

File Number: ___

Deceased.

NOTICE OF HEARING TO: _________ YOU ARE HEREBY NOTIFIED that the undersigned will call up for hearing before the Honorable _________, judge of the above court, in the judge’s chambers in the _________ County Courthouse, the address of which is ____________, Florida, on (date), at ___o’clock [A.M.] [P.M.)], or as soon thereafter as same may be heard, the personal representative’s petition to determine homestead. Time set aside by the court is _________.

PLEASE GOVERN YOURSELVES ACCORDINGLY. I CERTIFY that a copy hereof has been furnished to the above addressees by on (date). If you are a person with a disability who needs any accommodation in order to participate in this proceeding, you are entitled, at no cost to you, to the provision of certain assistance. Please contact (identify applicable court personnel by name, address, and telephone number) at least 7 days before your scheduled court appearance, or immediately upon receiving this notification if the time before the scheduled appearance is less than 7 days; if you are hearing or voice impaired, call 711.

/s/ ____________ (name of attorney) (address and phone number) (e-mail address(es)) Florida Bar number________________ COMMENT: This is substantially the same as FLSSI Form No. P1.0530, modified to include the nature of the hearing. This and other forms are available from Florida Lawyers Support Services, Inc.© (FLSSI), P.O. Box 568157, 1320 N. Semoran Blvd., Orlando, FL 32856-8157, 407/515-1501 or 800/404-9278; www.flssi.org. « Ch. 8 », « § 8.5 •, « C » 1 Litigation Under FL Probate Code § 8.5.C (2022)

C. Searching For Interested Persons « Ch. 8 », « § 8.5 •, « C », • 1 » 1 Litigation Under FL Probate Code § 8.5.C.1 (2022)

1. Necessity Of Search The petitioner must make a diligent search to determine and locate any surviving spouse and descendants of the decedent, to ensure that they are notified of and bound by the court’s determination of the homestead status of the property. This may require using an heir-locating service in certain instances. An affidavit of diligent search and inquiry should be filed with the court, and the petitioner may wish to provide any unknown heirs with constructive notice through publication. « Ch. 8 », « § 8.5 •, « C », « 2 » 1 Litigation Under FL Probate Code § 8.5.C.2 (2022)

2. Form For Affidavit Of Diligent Search And Inquiry (Title of Estate)

(Name of Court)

AFFIDAVIT OF DILIGENT SEARCH AND INQUIRY

STATE OF FLORIDA COUNTY OF _________ Before me, the undersigned authority, personally appeared _________, who was sworn and says: 1. [He] [She] is the personal representative of the abovecaptioned estate. 2. After diligent search and inquiry to discover the names and residences of all heirs-at-law and devisees of (name), deceased, Affiant herewith sets forth their names and last known residence addresses: (insert names and addresses) 3. Affiant has taken the following actions to conduct a diligent search and inquiry: (insert description of actions taken) 4. Affiant believes that, in addition to those persons named above, there may be persons who are or may be interested as heirs-at-law or devisees in a proceeding to determine the homestead status of certain real property owned by the above-named decedent and whose names and residences, after diligent search and inquiry, are unknown to Affiant. /s/ ____________ Affiant Sworn to and subscribed before me on (date), by /s/ ____________

(name).

Notary Public—State of Florida (Name, typed or printed) Personally Known _________ OR Produced Identification ________________ Type of Identification Produced _________

(Seal) « Ch. 8 », « § 8.5 •, « C », « 3 • 1 Litigation Under FL Probate Code § 8.5.C.3 (2022)

3. Form For Notice Of Action (Title of Estate)

(Name of Court)

NOTICE OF ACTION TO: All Unknown Heirs and Devisees of _________, Deceased YOU ARE NOTIFIED that a petition to determine homestead has been filed in the above-captioned estate and you are required to serve a copy of your written response to it, if any, on (name), petitioner’s attorney, whose address is ____________, on or before (date), and to file the original with the clerk of this court either before service on petitioner’s attorney or immediately thereafter; otherwise, a default will be entered against you for the relief demanded in the petition, without further notice. Dated ______. /s/ ____________ Petitioner « Ch. 8 », « § 8.5 •, « D » 1 Litigation Under FL Probate Code § 8.5.D (2022)

D. Guardians Ad Litem « Ch. 8 », « § 8.5 •, « D », • 1 » 1 Litigation Under FL Probate Code § 8.5.D.1 (2022)

1. In General If minor children must be served with notice of the petition to determine homestead property, or if unknown or unascertained parties are involved, a guardian ad litem may be needed to represent the interests of those persons. This must be determined on a case-by-case basis, and the factual allegations set forth in the petition for appointment of the guardian ad litem should be tailored to the particular situation.

The practitioner must also consider the impact of the Servicemembers Civil Relief Act, 50 U.S.C. §§ 3901 et seq. If a person having an interest in the determination of homestead does not appear in the proceeding (whether or not properly served), that person’s interest may not be determined if he or she is in the military service unless the provisions of the Act are complied with. The Act requires, among other procedural matters, that an attorney ad litem be appointed. The importance of having all interested persons present before the court has been emphasized above. If the practitioner is unable to determine if an interested person exists or, if he or she does exist, whether that person is a member of the military service, the practitioner should comply with the provisions of the Act. « Ch. 8 », « § 8.5 •, « D », « 2 » 1 Litigation Under FL Probate Code § 8.5.D.2 (2022)

2. Form For Petition For Appointment (Title of Estate)

(Name of Court)

PETITION FOR APPOINTMENT OF GUARDIAN AD LITEM Petitioner, _________, as personal representative of the estate of _________, deceased, and pursuant to Fla. Prob. R. 5.120, petitions this court for the entry of an order appointing a guardian ad litem in this cause and in support shows the following: 1. (Name) died [testate] [intestate] on of ____________ County, Florida. 2. Letters of administration were issued to representative of the estate of ____________ on

(date), a resident

(name), as personal (date).

3. On (date), _________ filed a petition to determine homestead in this estate and also filed an affidavit indicating that there may be persons who are or may be interested as heirs at law or devisees and who after diligent search and inquiry are unknown to the affiant. 4. There are or may be persons who have claims against or interests in this estate as heirs or devisees of the decedent, whose names are not known to Petitioner. 5. It is necessary that a guardian ad litem now be appointed to

represent the interests of those persons whose identities or addresses are presently unknown or who are now unascertained and who may now have interests in this estate as heirs or devisees of the decedent. WHEREFORE, Petitioner respectfully demands that the court appoint some competent person to be selected by the court as guardian ad litem for the unknown heirs or devisees of the decedent, to represent these unknown persons and to defend their interests in, or claims against, this estate. Under penalties of perjury, I declare that I have read the foregoing, and the facts as alleged are true, to the best of my knowledge and belief. Executed on

(date). /s/ ____________ Petitioner /s/ ____________ (name of attorney) ____________ Attorney for Petitioner (address and phone number) (e-mail address(es)) Florida Bar number ___ « Ch. 8 », « § 8.5 •, « D », « 3 »

1 Litigation Under FL Probate Code § 8.5.D.3 (2022)

3. Form For Order Of Appointment (Title of Estate)

(Name of Court)

ORDER APPOINTING GUARDIAN AD LITEM This action was heard on the petition of the personal representative of this estate for an order appointing a guardian ad litem to represent the unknown heirs or devisees of the decedent, and THE COURT FINDS It is necessary that a guardian ad litem be appointed to represent unknown beneficiaries and defend their

respective rights and interests in the pending matter of a petition to determine homestead property. IT IS ADJUDGED: 1. (Name), an attorney admitted to practice before this court, be and is hereby appointed as guardian ad litem to represent the claims or interests of those persons whose identities are presently unknown, or who are now unascertained, and who may have interests in this estate as heirs at law or devisees of (name), deceased. 2. The guardian ad litem prepare and file [his] [her] oath that [he] [she] will faithfully discharge the duties of [his] [her] office, and thereafter make and file such defenses herein as [he] [she] may deem proper to protect the interests of the unknown or unascertained persons in all proceedings had in this estate on the petition to determine homestead property. ORDERED at ____________, Florida, on /s/___________

(date).

Circuit Judge Copies furnished to: _________ « Ch. 8 », « § 8.5 •, « D », « 4 • 1 Litigation Under FL Probate Code § 8.5.D.4 (2022)

4. Form For Oath (Title of Estate)

(Name of Court)

OATH OF GUARDIAN AD LITEM STATE OF FLORIDA COUNTY OF _________ Before me, the undersigned authority, personally appeared _________, who was sworn and says: 1. [He] [She] is the person who has been appointed as guardian ad litem to represent the claims or interests of those persons whose identities are presently unknown, or who are now unascertained, in the

matter of the petition to determine homestead property in the estate of (name), deceased, now pending before the above-styled court. 2. [He] [She] accepts that appointment and will represent the unknown or unascertained persons in these proceedings, and [he] [she] will faithfully discharge [his] [her] duties as guardian ad litem according to law. /s/___________ Guardian Sworn to and subscribed before me on (date), by (name). /s/___________ Notary Public—State of Florida (Name, typed or printed) Personally Known _________ OR Produced Identification _________ Type of Identification Produced _________ (Seal) « Ch. 8 », « § 8.5 •, « E » 1 Litigation Under FL Probate Code § 8.5.E (2022)

E. Petition And Order Regarding Determination Of Homestead Status A petition to determine homestead property will normally be filed by the personal representative, but it may be filed by any interested person. A petition may now be filed to determine the homestead status of real property owned by the trustee of a revocable trust when the deceased settlor was treated as the owner of the real property pursuant to F.S. 732.4015. The petition should be verified and should set forth the facts as to the decedent’s date of death, the decedent’s domicile at the time of death, the names of the surviving spouse and surviving descendants, the identity of any minor children, a legal description of the property owned by the decedent on which the decedent resided, how the real property was owned at the time of the decedent’s death, and any other facts in support of the petition. Fla. Prob. R.

5.405. The petitioner should be careful to give an accurate portrayal of the facts to the court to assist it in making its determination and to prevent any future challenge to the determination. This is not a specific adversary proceeding under Rule 5.025(a). Forms for the petition are FLSSI Form Nos. P-4.0410 (Intestate) and P-4.0420 (Testate), available as indicated in the Comment in § 8.5.B.2. It is critical that the proper order determining homestead status be utilized; FLSSI offers ten different orders (Form Nos. P-4.0454 through P4.0468). The various orders available from FLSSI are designed to take into account the method by which the property devolves and to whom it passes. « Ch. 8 », « § 8.5 •, « F • 1 Litigation Under FL Probate Code § 8.5.F (2022)

F. Notice Of Taking Possession Of Protected Homestead If the personal representative takes possession of what reasonably appears to be protected homestead pending determination of its status, the personal representative must file a notice that contains a legal description of the property, a statement of the limited purpose for holding the property, the name and address of the personal representative and the personal representative’s lawyer, and, if the personal representative is in possession, the date the personal representative took possession. Fla. Prob. R. 5.404(a)– (b). The notice must be served by formal notice on interested persons and on any person in actual possession of the property. Rule 5.404(c). A form for the notice is FLSSI Form No. P-4.0400, available as indicated in the Comment in § 8.5.B.2. Footnotes — Chapter 8: *

J.D., 1988, University of Miami. Mr. Felcoski is a member of The Florida Bar and the Dade County Bar Association and is a Fellow of the American College of Trust and Estate Counsel (ACTEC). He served as Chair for the Real Property, Probate and Trust Law Section of The Florida Bar and served as Probate Division Director and Chair of the section’s Legislation Committee and Trust Law Committee. Mr. Felcoski also served as a Co-Chair of the Ad Hoc Trust Code Revision Committee, which was responsible for the creation of a comprehensive Florida Trust Code. He is a past Chair of the Florida Probate Rules Committee. Mr. Felcoski is a shareholder in Goldman Felcoski & Stone, P.A. **

J.D., 1996, University of Florida. Mr. Scuderi is a member of The Florida Bar and the American Bar Association and is a Fellow of the American College of Trust and Estate Counsel (ACTEC). He currently serves as the Treasurer of the Real Property, Probate and Trust Law Section of

the Florida Bar and previously served as a Co-Chair of the Legislation Committee, Chair of the Probate and Trust Litigation Committee, Co-Chair of the Ad Hoc Study Committee on Spendthrift Trust Issues, and Co-Chair of The Florida Probate Rules Committee. He is a shareholder in Goldman Felcoski & Stone, P.A.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 9 » 1 Litigation Under FL Probate Code Ch. 9 (2022)

Chapter 9 REMOVAL OF PERSONAL REPRESENTATIVE AND SURCHARGE J. GRIER PRESSLY, III* JAMES G. PRESSLY, JR.** Contents § 9.1. INTRODUCTION AND SCOPE § 9.2. REVOCATION OF APPOINTMENT OR REFUSAL TO APPOINT VERSUS REMOVAL § 9.3. REMOVAL OF PERSONAL REPRESENTATIVE A. Statutory Grounds For Removal B. Judicial Construction Of Statutory Grounds For Removal C. Conflict Between Co-Personal Representatives And Hostility Of Beneficiaries As Additional Grounds For Removal D. Requirement That Estate Be Endangered E. Commencement Of Removal Proceedings F. Jurisdiction And Venue G. Standing To Bring Removal Action H. Timing I. Attorneys’ Fees And Costs J. Removal Of Personal Representative’s Attorney K. Jury Trial L. Right Of Appeal M. Accounting By Removed Personal Representative N. Delivery Of Assets And Records O. Administration Following Removal

§

9.4. SURCHARGE AND LIABILITY OF PERSONAL REPRESENTATIVE FOR MISMANAGEMENT A. Available Remedies B. Standard For Liability C. Specific Areas Of Personal Representative’s Liability 1. Operating Decedent’s Business 2. Investments 3. Claims And Litigation 4. Hiring Agents; Defense Of Advice Of Counsel D. Standing E. Conflict Of Interest Transactions F. Matters Barring Actions Against Personal Representative 1. Objection To Interim Accounting 2. Objection To Final Accounting G. Actions On Surety Bonds H. Exculpatory Clauses I. Appeals J. Attorneys’ Fees K. Liability Of Personal Representative’s Attorney To Beneficiaries Of Estate « Ch. 9 », • § 9.1 »

1 Litigation Under FL Probate Code § 9.1 (2022)

§ 9.1. INTRODUCTION AND SCOPE Actions for removal and surcharge of a personal representative are often tried in one proceeding. If not tried in a single proceeding, a surcharge action often will follow a removal action in the same estate. Removal and surcharge are discussed separately in this chapter, however. Sections 9.3.A–9.3.O deal with removal, and §§ 9.4.A–9.4.K with surcharge. Section 9.2 addresses the difference between removal actions and actions to revoke appointments or refusals to appoint.

« Ch. 9 », « § 9.2 » 1 Litigation Under FL Probate Code § 9.2 (2022)

§ 9.2. REVOCATION OF APPOINTMENT OR REFUSAL TO APPOINT VERSUS REMOVAL The courts have recognized a distinction between the standards to apply with respect to the qualifications of the personal representative at the time of initial appointment and the standards to apply in a removal action. Pontrello v. Estate of Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988). See also Padgett v. Estate of Gilbert, 676 So. 2d 440 (Fla. 1st DCA 1996); In re Estate of Snyder, 333 So. 2d 519 (Fla. 2d DCA 1976), 84 A.L.R. 3d 703. In Werner v. Estate of McCloskey, 943 So. 2d 1007 (Fla. 1st DCA 2006), the court held that an alleged conflict of interest would not be a bar to the initial appointment of a nominated personal representative and that the proper procedure is to assert the conflict of interest as a ground for removal after the personal representative named in the will is appointed. In Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000), however, broader discretion was granted to deny the appointment of a testator’s nominated personal representative where the record supported the conclusion that the nominated personal representative lacked the necessary qualities and characteristics. In Boyles v. Jimenez, 46 FLW D1991 (Fla. 4th DCA 2021), opinion withdrawn & superseded 330 So. 3d 953, the District Court of Appeal, Fourth District, reinforced the Schleider holding and reasoning in the context of both removal and refusal to appoint a nominated personal representative. The exercise of probate court discretion to deny appointment of a personal representative on the basis of an existing conflict of interest has been approved in the context of an intestate estate administration. Long v. Willis, 113 So. 3d 80 (Fla. 2d DCA 2013). In Delbrouck v. Eberling, 226 So. 3d 929 (Fla. 4th DCA 2017), the appellate court suggested that a probate court could properly exercise its discretion to refuse to appoint an individual, as a personal representative, who is found to have committed acts of undue influence involving the testator. For a discussion of how courts have treated the differences in Pontrello and Schleider, see Kirkpatrick, Treading on Sacred Ground: Denying the Appointment of a Testator’s Nominated Personal Representative, 63 Fla. L. Rev. 1041 (July 2011). For a discussion of cases distinguishing appointments in testate versus intestate cases, see Maurer, Avoiding Statutory Restrictions

on Appointment of Personal Representatives in Florida, 36 Nova L. Rev. 141 (Fall 2011). F.S. 733.301(1) establishes the preferences in appointing a personal representative in a testate estate as well as in an intestate estate. It is an abuse of discretion for the court to depart from the statutory order of preference unless the statutorily preferred person has been proven to be unfit to serve as personal representative. DeVaughn v. DeVaughn, 840 So. 2d 1128 (Fla. 5th DCA 2003), distinguishing Schleider and Padgett. Mere allegations of unfitness to serve are insufficient. There must be evidence in the record to support the court’s refusal to appoint the party having the statutory preference. Garcia v. Morrow, 954 So. 2d 656 (Fla. 3d DCA 2007). See Bowdoin v. Rinnier, 81 So. 3d 582 (Fla. 2d DCA 2012), in which the court held that serious allegations against the statutorily preferred appointee alone were insufficient and an evidentiary hearing must be held to consider the evidence that the statutorily preferred nominee was not qualified. In Long, the District Court approved the probate court’s exercise of discretion in refusing to appoint the individual (a lawyer) preferred by the majority in interest of the heirs in the intestate estate when the record supported the probate court’s finding that the lawyer’s prior participation in the probate proceedings constituted a conflict of interest that would make it difficult to administer the estate in the interest of all beneficiaries. F.S. 733.301(5) provides that letters of administration issued to a person who did not have priority for appointment as personal representative at the time of his or her appointment may be revoked. Priority for appointment is determined as of the time of the appointment. A person who was qualified to serve as personal representative and who was entitled to priority at the time of appointment may not be removed as personal representative simply because another person entitled to a higher priority later becomes qualified to serve. In re Estate of Fisher, 503 So. 2d 962 (Fla. 1st DCA 1987). But see Johnson v. Knight, 424 So. 2d 166 (Fla. 3d DCA 1983). See also PRACTICE UNDER FLORIDA PROBATE CODE §§ 1.3.B.2, 4.3.C.5.b (Fla. Bar 11th ed. 2022); In re Estate of Miller, 568 So. 2d 487 (Fla. 1st DCA 1990). The concurrent service of a personal representative and a curator is not permitted, because Florida law does not provide a procedure for resolving conflicting opinions between the two fiduciaries. The proper procedure is

removal of the personal representative and revocation or suspension of letters of administration prior to the curator’s appointment. Gordin v. Estate of Maisel, 179 So. 3d 518 (Fla. 4th DCA 2015). In an intestate estate, if there is a conflict between the choice of the majority in interest of the heirs and the heir nearest in degree, the probate court must select the former, F.S. 733.301(1)(b), and must remove a personal representative who failed to give notice of the petition for administration to the majority in interest of the heirs, F.S. 733.301(4); In re Estate of Anderson, 583 So. 2d 801 (Fla. 1st DCA 1991). The order of preference in an intestate estate, preferring the surviving spouse to the candidate selected by the majority in interest of the heirs, was strictly construed in Piloto v. Lauria, 45 So. 3d 565 (Fla. 4th DCA 2010). There, the domiciliary estate was in Venezuela and named the wife and children as heirs but did not appoint a personal representative. The children would receive the majority interest in the Florida property (which was real estate) and, relying on F.S. 734.102(1), they argued that they should choose the personal representative. In rejecting this argument, the court held that in the ancillary administration, the order of preference in F.S. 733.301(1)(b) should prevail. In a case of first impression, the court held that the natural guardian of minor intestate heirs cannot vote on the selection of the personal representative even though the minor children represent a majority in interest of the beneficiaries, holding that a court-appointed guardian of the property must cast the vote. Long v. Willis, 100 So. 3d 4 (Fla. 2d DCA 2011). In Hernandez v. Hernandez, 946 So. 2d 124, 127 (Fla. 5th DCA 2007), the court held that, in general, a dispute between the beneficiaries and the named personal representative is not sufficient to support a refusal to appoint the named personal representative, but that when “a dispute will cause unnecessary litigation and impede the estate’s administration, and either the person lacks the character, ability, and experience to serve or exceptional circumstances exist, the totality of circumstances may permit the court to refuse to appoint the personal representative named in the will.” See also Boyles.

« Ch. 9 », « § 9.3 » 1 Litigation Under FL Probate Code § 9.3 (2022)

§

9.3. REMOVAL REPRESENTATIVE

OF

PERSONAL « Ch. 9 », « § 9.3 », • A »

1 Litigation Under FL Probate Code § 9.3.A (2022)

A. Statutory Grounds For Removal F.S. 733.504 lists the causes for which a personal representative may be removed: Adjudication of incapacity or, even if no adjudication, physical or mental incapacity rendering the personal representative incapable of discharging his or her duties. Failure to comply with an order of the probate court unless the order is superseded on appeal. Failure to account for the sale of property or to produce for inspection the estate assets. See Fla. Prob. R. 5.160. Wasting or other maladministration of the estate. Failure to give bond or security. Conviction of a felony by an individual personal representative or insolvency of a corporate personal representative. Conflicting or adverse interests against the estate. The statute specifically provides that if a surviving spouse is serving as personal representative, that spouse’s election of family allowance, elective share, or exempt property is not considered substantial enough to constitute cause for removal. Revocation of probate of a will that names the personal representative. Removal of domicile from Florida if domicile was a requirement of initial appointment. Lack of present ability to qualify for appointment. See Rule 5.320.

« Ch. 9 », « § 9.3 », « B » 1 Litigation Under FL Probate Code § 9.3.B (2022)

B. Judicial Construction Of Statutory Grounds For Removal Failure to qualify: A personal representative may be removed for failure to qualify under F.S. 733.305, which allows corporations to serve only if they are trust companies, banking corporations, savings associations, or savings and loan associations. In re Estate of Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997). The probate court has no discretion to allow a legally unqualified personal representative to serve. Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004), disapproved in part 70 So. 3d 572. Mismanagement and failure of duty: Most of the reported cases relating to sufficiency of cause for removal deal with waste and mismanagement. Failure to object timely to a creditor’s claim, so that it is deemed allowed without requirement of proof of its merits, is sufficient cause for removal. Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955). Similarly, failure to defend an action against the estate by a creditor and allowing the entry of a default against the estate is cause for removal, even if the estate has no assets for payment of the creditor’s judgment. In re Estate of Freedman, 180 So. 2d 370 (Fla. 3d DCA 1965), 14 A.L.R. 3d 1029. Complete abdication of fiduciary responsibility by, in effect, allowing the personal representative’s lawyer to administer the estate has also been held sufficient for removal. Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953). A personal representative may be removed for failure to issue citation to those having a prior right to serve as personal representative of an intestate estate. In re Estate of Baker, 339 So. 2d 240 (Fla. 3d DCA 1976). A series of inappropriate actions and derelictions has been held sufficient to cause removal. In re Estate of Senz, 417 So. 2d 325 (Fla. 4th DCA 1982). Conflict of interest: The degree of conflicting or adverse interest sufficient to cause removal is subject to judicial discretion. Padgett v. Estate of Gilbert, 676 So. 2d 440 (Fla. 1st DCA 1996). Fla. Prob. R. 5.120(a) contemplates the appointment of an administrator ad litem in instances in which the personal representative has filed a claim against the estate. See Stilwell v. Estate of Crosby, 519 So. 2d 68 (Fla. 5th DCA 1988); Kastner v. Helm, 425 F. Supp. 771 (M.D. Fla. 1977). An administrator ad litem should be appointed when the personal representative has an interest that is

potentially adverse to the estate with respect to the apportionment of wrongful death proceeds between the estate and the survivors. Continental National Bank v. Brill, 636 So. 2d 782 (Fla. 3d DCA 1994). See also Lif v. In re: Estate of Lif, 325 So. 3d 968 (Fla. 3d DCA 2021). The procedure under the rule suggests that the filing of a creditor’s claim by the personal representative does not automatically cause removal, just as an elective share claim does not. See F.S. 733.504(9); In re Estate of Hammer, 499 So. 2d 853 (Fla. 4th DCA 1987). The filing of multiple, substantial claims against the estate by the personal representative, however, may warrant his or her removal. Kolb v. Levy, 104 So. 2d 874 (Fla. 3d DCA 1958). In Kolb, the court rejected the personal representative’s suggestion that the statutory provision for appointment of an administrator ad litem completely protects the personal representative from removal for filing claims against the estate. See also In re Estate of Sackett, 171 So. 2d 906 (Fla. 1st DCA 1965). Contrast Kolb with In re Estate of Hammer. In Hammer, the dissenting opinion notes that the claim filed by the personal representative would consume over half of the estate but notes that the majority nevertheless affirmed the probate judge’s decision to retain the personal representative. Other cases imply that the personal representative must be removed if a “conflicting or adverse interest” develops under F.S. 733.504(9). In re Estate of Gainer, 579 So. 2d 739 (Fla. 1st DCA 1991). It should be noted that In re Estate of Gainer was partially disapproved by the Florida Supreme Court in In re Estate of Combee, 601 So. 2d 1165 (Fla. 1992). In Vaughn v. Batchelder, 633 So. 2d 526 (Fla. 2d DCA 1994), the court held that when a personal representative had used the decedent’s power of attorney to transfer bank accounts to himself, that was sufficient to cause removal based on conflict of interest. « Ch. 9 », « § 9.3 », « C » 1 Litigation Under FL Probate Code § 9.3.C (2022)

C. Conflict Between Co-Personal Representatives And Hostility Of Beneficiaries As Additional Grounds For Removal There is some question as to whether the statutory grounds for removal in F.S. 733.504 are intended to be the exclusive grounds for which removal will lie. Conflicts between co-personal representatives and hostility of the beneficiaries toward the personal representative are not specifically

mentioned in the statute but have been the subject of litigation. In a case predating F.S. 733.504, the Florida Supreme Court recognized irreconcilable conflict between co-personal representatives as a valid basis for removal. Henderson v. Ewell, 111 Fla. 324, 149 So. 372 (1933). A case decided after enactment of the statute held that irreconcilable conflict could lead to wasting and maladministration and may therefore justify removal. Rand v. Giller, 489 So. 2d 796 (Fla. 3d DCA 1986). See also Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997), applying similar reasoning to removal of a cotrustee when irreconcilable differences impeded the administration of a trust and the fault could be ascribed to the removed cotrustee. A large number of the Florida appellate decisions on removal concern one co-personal representative’s attempt to remove another. These cases have led at least one court to criticize the practice of appointing co-personal representatives. Swartz v. Russell, 481 So. 2d 64 (Fla. 3d DCA 1986). See § 11.2.F of this manual. There is no clear guidance in the case law with regard to whether the grounds enumerated in the statute are exclusive. For example, in Anderson v. Anderson, 468 So. 2d 528 (Fla. 3d DCA 1985), a personal representative was accused of having murdered the decedent. The District Court of Appeal, Third District, without mentioning the enumerated grounds for removal, affirmed the probate court’s dismissal of the petition for removal. The focus of the opinion was on the retroactive application of F.S. 732.802 (1981). Disagreement between beneficiaries and the personal representative is not likely to support removal. Gresham v. Strickland, 784 So. 2d 578 (Fla. 4th DCA 2001). Likewise, intense dislike of the personal representative by the beneficiaries of the estate is not sufficient to justify removal. Parker v. Shullman, 843 So. 2d 960 (Fla. 4th DCA 2003). « Ch. 9 », « § 9.3 », « D » 1 Litigation Under FL Probate Code § 9.3.D (2022)

D. Requirement That Estate Be Endangered The use of the word “may” in F.S. 733.504 suggests that the mere allegation and proof of the existence of one or more of the listed grounds for removal is not necessarily sufficient to state a cause of action for removal. See In re Estate of Hammer, 499 So. 2d 853 (Fla. 4th DCA 1987). It must be shown that the estate assets and administration are endangered by the

personal representative continuing in office. In re Estate of Murphy, 336 So. 2d 697 (Fla. 4th DCA 1976). Actual, not potential, mismanagement must be proved. Parr v. Cushing, 507 So. 2d 1227 (Fla. 5th DCA 1987). There must be a “ ‘tangible and substantial reason to believe that damage will otherwise accrue to the estate.’ ” In re Estate of Anders, 209 So. 2d 269, 271 (Fla. 1st DCA 1968), quoting Kolb v. Levy, 104 So. 2d 874, 878 (Fla. 3d DCA 1958). To understand the judicial attitude toward the degree of damage to the estate necessary to sustain removal, the reader should contrast In re Estate of Murphy (late-filed accountings), in which the personal representative was not removed, with In re Estate of Senz, 417 So. 2d 325 (Fla. 4th DCA 1982) (failure to clip coupons; failure to invest estate funds at highest interest rates; late distributions; erroneous tax returns), in which removal was found to be appropriate. « Ch. 9 », « § 9.3 », « E » 1 Litigation Under FL Probate Code § 9.3.E (2022)

E. Commencement Of Removal Proceedings Fla. Prob. R. 5.440, which governs commencement of removal proceedings, provides that the removal proceeding is to be commenced by filing a petition stating the facts constituting grounds for removal. See Blechman v. Dely, 138 So. 3d 1110 (Fla. 4th DCA 2014). Rule 5.025(a) identifies a removal action as an adversary proceeding unless otherwise ordered by the court. The effect of designation as an adversary proceeding is that the petition for removal must be served by formal notice and thereafter the matter shall be conducted like a civil lawsuit, using the Florida Rules of Civil Procedure. Rule 5.025(d). It is essential that the moving party meticulously comply with the procedural requirements of serving formal notice. In re Estate of Odza, 432 So. 2d 740 (Fla. 4th DCA 1983). However, without citing Odza, Aguilar v. Aguilar, 15 So. 3d 803 (Fla. 2d DCA 2009) liberally construed the procedural requirements for the form and timing of service of the petition. Because the removal petition is a specifically designated adversary proceeding, all of the rules of civil procedure apply (with the exception of Fla. R. Civ. P. 1.525—Motions for Costs and Attorneys’ Fees; see Rule 5.025(d)(2)), including potential dismissal for failure to prosecute. Mangasarian v. Mercurio, 570 So. 2d 356 (Fla. 3d DCA 1990).

The probate rules, by providing that the rules of civil procedure apply to removal cases, clearly contemplate an evidentiary hearing on the merits. This is not, however, a strict requirement. In re Estate of Sackett, 171 So. 2d 906 (Fla. 1st DCA 1965). But see Swartz v. Russell, 481 So. 2d 64 (Fla. 3d DCA 1986). Failure to allow the personal representative an opportunity to present evidence is reversible error, requiring a new trial. Edelman v. Breed, 836 So. 2d 1092 (Fla. 5th DCA 2003). See Dribin v. Estate of Nolan, 801 So. 2d 249 (Fla. 4th DCA 2001). See also Kountze v. Kountze, 93 So. 3d 1164 (Fla. 2d DCA 2012) (trial court was reversed for removing trustee without notice or opportunity to be heard). « Ch. 9 », « § 9.3 », « F » 1 Litigation Under FL Probate Code § 9.3.F (2022)

F. Jurisdiction And Venue Formerly, F.S. 733.505 and Fla. Prob. R. 5.440(a) required the petition for removal to be filed in the court issuing letters of administration. See State ex rel. North v. Whitehurst, 145 Fla. 559, 1 So. 2d 175 (1941). The Florida Supreme Court, however, held that, notwithstanding the statutory direction to the contrary, an action for removal could be brought in the county of the personal representative’s residence. Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953). It should be noted that Laramore was an unusual situation in which the removal action was brought after the closing of the estate. Both F.S. 733.505 and Rule 5.440(a) have now been amended to provide that a removal action is to be filed in the court having jurisdiction over the estate administration. Temporary injunctions may be granted to a petitioner to freeze assets pending the resolution of the case. Landau v. Landau, 230 So. 3d 127 (Fla. 3d DCA 2017). But see American University of Caribbean v. Tien, 26 So. 3d 56 (Fla. 3d DCA 2010). The four-pronged test for a temporary injunction and the heavy burden of the moving party are analyzed in detail in Net First National Bank v. First Telebanc Corp., 834 So. 2d 944 (Fla. 4th DCA 2003). The court must make specific findings of fact regarding each of the elements. Kountze v. Kountze, 20 So. 3d 428 (Fla. 2d DCA 2009); Jouvence Center for Advanced Health, LLC v. Jouvence Rejuvenation Centers, LLC, 14 So. 3d 1097 (Fla. 4th DCA 2009). The probate court’s power to freeze assets extends to requiring an out-of-state beneficiary to return assets removed from

Florida before there has been a final determination as to ownership. Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004). The probate court has broad jurisdiction to grant relief and shape remedies even when the moving party fails to establish that removal is justified. See Cohen v. Schwartz, 538 So. 2d 922 (Fla. 3d DCA 1989). « Ch. 9 », « § 9.3 », « G » 1 Litigation Under FL Probate Code § 9.3.G (2022)

G. Standing To Bring Removal Action Fla. Prob. R. 5.440(a) provides that the court on its own motion or on the motion of any interested person may commence removal proceedings. The court has broad power to investigate the conduct of the personal representative and initiate removal proceedings. See State ex rel. Booth v. Byington, 168 So. 2d 164 (Fla. 1st DCA 1964), aff’d 178 So. 2d 1. The question of who is an “interested person” is to be determined on the facts and circumstances of each case. F.S. 731.201(23). A will contestant presumably is not an “interested person,” pending the outcome of the petition for revocation of probate. See F.S. 733.109(2); Rule 5.270(b). Similarly, a claimant whose pending litigation against the estate is unresolved has no standing. In re Estate of Shaw, 340 So. 2d 491 (Fla. 3d DCA 1976). There is some authority for the position that a contingent beneficiary might have standing. Barley v. Barcus, 877 So. 2d 42 (Fla. 5th DCA 2004); In re Estate of Anders, 209 So. 2d 269 (Fla. 1st DCA 1968). A guardian of the decedent has no standing in probate. SunTrust Bank, Nature Coast v. Guardianship of Nichols, 701 So. 2d 107 (Fla. 5th DCA 1997). It is difficult to divine from the Florida Probate Code, Florida Probate Rules, and case law a set of guidelines defining the degree of, or the certainty of, interest that must be evidenced to establish standing as an interested person. For example, in Cason ex rel. Saferight v. Hammock, 908 So. 2d 512 (Fla. 5th DCA 2005), the court granted standing to a cash devisee in a removal case even though there was clearly sufficient cash to satisfy the devise. The narrow ground relied on by the court was the simple fact that the cash devise had not yet been paid. Furthermore, in Delbrouck v. Eberling, 226 So. 3d 929 (Fla. 4th DCA 2017) the court recognized the standing of a party seeking revocation of probate and removal of a personal representative even though the party’s interest as a

beneficiary under the contested will was identical to the party’s intestate share. An action to remove personal representative may be waived in a premarital agreement. Smith v. Smith, 232 So. 3d 509 (Fla. 1st DCA 2018). In a removal action, unlike in a civil case, standing is not an affirmative defense that can be waived if not properly pled. Standing is an element of proof that must be established by the petitioner and is a specific requirement in F.S. 733.506. See Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005). « Ch. 9 », « § 9.3 », « H » 1 Litigation Under FL Probate Code § 9.3.H (2022)

H. Timing Letters of administration issued in error have been held to be voidable. Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA 2004). See also Jensen v. Estate of Gambidilla, 896 So. 2d 917 (Fla. 4th DCA 2005). However, another Florida court has impliedly ruled that improperly issued letters of administration are void. Under the prior version of F.S. 733.212(3), which instituted an express three-month statute of limitations to timely challenge the qualifications of the personal representative, the court in Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004), held that the threemonth notice of administration statute of limitations did not apply to bar an action to remove an incorrectly appointed personal representative. Somewhat inconsistently, the court in Angelus nevertheless awarded quantum meruit compensation to the removed personal representative. In partial conflict with Angelus is Hill v. Davis, 31 So. 3d 921 (Fla. 1st DCA 2010), which held that an action to disqualify a personal representative was required to be filed within the three-month statute of limitations period contained in the prior version of F.S. 733.212(3) when the factual basis to challenge the personal representative’s qualifications was known by the contestant within the three months. The Florida Supreme Court resolved the conflict in Hill v. Davis, 70 So. 3d 572 (Fla. 2011), in which Angelus was approved in part and disapproved in part. The court disapproved Angelus to the extent that it broadly held that the prior version of F.S. 733.212(3) did not apply to bar objections that a personal representative was never qualified to serve. The court approved Angelus to the extent that it involved fraud or

misrepresentation that was not revealed in the petition for administration. As a result of the Florida Supreme Court’s holding in Hill, the rule for a number of years was that unless there was fraud or misrepresentation in the petition for administration, the three-month deadline for filing objections to the qualifications of the personal representative applied even if the petition for administration showed on its face that the petitioner for appointment was not qualified. In 2015, the Florida Legislature amended the statutory scheme in the following two ways. F.S. 733.212(3) was amended to delete the reference to the three-month notice of administration statute of limitations as it applied to the challenge of the personal representative’s qualifications. Also, F.S. 733.3101 was amended to place an affirmative duty on an unqualified personal representative who was incorrectly appointed to resign immediately, and in so doing subjected the incorrectly appointed personal representative to personal liability for attorneys’ fees and costs in the event the personal representative fails to resign in compliance with the statute. See F.S. 733.3101(1), (3). The law applies to proceedings commenced on or after July 1, 2015. Prior to appointment, a personal representative must also sign an oath acknowledging that the personal representative has an ongoing duty to file and serve notice on all interested persons upon the occurrence of an event that would disqualify the personal representative. Fla. Prob. R. 5.320. There are instances in which a removal proceeding has been filed subsequent to entry of an order of final discharge. See Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953); In re Estate of Sackett, 171 So. 2d 906 (Fla. 1st DCA 1965). These cases are more properly characterized as actions to reopen the estate proceedings and to obtain appointment of a different personal representative for the subsequent administration. F.S. 733.903 and Rule 5.460 provide that the discharge of the personal representative does not prevent revocation of the order of discharge or subsequent issuance of letters of administration, if it becomes necessary that there be further administration for any reason. Letters of curatorship should not be issued to a curator when there are letters of administration pending in favor of a personal representative. Gordin v. Estate of Maisel, 179 So. 3d 518 (Fla. 4th DCA 2015). « Ch. 9 », « § 9.3 », « I »

1 Litigation Under FL Probate Code § 9.3.I (2022)

I. Attorneys’ Fees And Costs Costs in a removal action will be awarded, as in chancery actions, to the prevailing party. F.S. 733.106(1). Compare Landon v. Isler, 681 So. 2d 755 (Fla. 2d DCA 1996), with Furlong v. Raimi, 735 So. 2d 583 (Fla. 3d DCA 1999). In removal actions, the clarity of the result on costs is in sharp contrast to the uncertainty with regard to attorneys’ fees. The applicable statutes regarding awards of attorneys’ fees in removal actions are F.S. 733.106 and 733.612(19). There is little predictability as to how the courts will apply these statutes. The lawyer representing a successful petitioner in a removal action ought to be entitled to have his or her fees payable from the estate, because removal will be regarded perforce as a benefit to the estate. See F.S. 733.106(3); In re Estate of Eisenberg, 433 So. 2d 542 (Fla. 4th DCA 1983). See also Duncombe v. Adderly, 991 So. 2d 1013 (Fla. 4th DCA 2008) (fees awarded under F.S. 733.106(3) when named personal representative was not appointed due to potential conflict of interest). It may be that the lawyer is entitled to collect additional fees for time expended in obtaining the award of fees, on the principle that requiring a recalcitrant personal representative to perform his or her duties is itself a valuable service to the estate. Bitterman v. Bitterman, 685 So. 2d 861 (Fla. 4th DCA 1997), approved in part, disapproved in part 714 So. 2d 356. See also Hoyt v. Hoyt, 814 So. 2d 1254 (Fla. 2d DCA 2002). A successful removal action does not automatically entitle the prevailing petitioner to attorneys’ fees; the court must make a finding that the successful lawyer benefited the estate. Feldheim v. Scott, 579 So. 2d 291 (Fla. 3d DCA 1991). It should be noted that the Feldheim court cited F.S. 733.106(3) and did not even mention F.S. 733.609. If the action is unsuccessful, the losing petitioner’s lawyer will not be entitled to fees payable from the estate unless it can be shown that some service was rendered to the estate despite the failure to accomplish removal. In re Estate of Farris, 113 So. 2d 721 (Fla. 3d DCA 1959). The personal representative’s attorneys’ fees clearly should be payable from the estate if the personal representative is successful in defeating the removal action. F.S. 733.106(3); Anderson v. Anderson, 468 So. 2d 528 (Fla.

3d DCA 1985). However, one Florida case held that a personal representative’s legal fees could not be paid from the estate, even though he prevailed in the removal case. Goldworn v. Estate of Day, 452 So. 2d 659 (Fla. 3d DCA 1984). The practitioner should note that Goldworn does not state a general rule for two reasons. First, the probate court spoke disparagingly about the personal representative’s conduct. Second, the District Court of Appeal, Third District, acknowledged that the probate court’s order was discretionary, and had to be affirmed absent an abuse of discretion. Some confusion has arisen regarding F.S. 733.609. The plain language of the statute could restrict it to surcharge actions, but one case, Anderson, has applied it in a removal action. See Bonney v. Bonney, 94 So. 3d 702 (Fla. 4th DCA 2012), in which the court strictly construed F.S. 733.609 and denied fees. A lawyer who seeks to have his or her fees paid from the estate under F.S. 733.106 but who fails to include a request for the fee in the initial pleading is not barred from claiming the fee award. In re Estate of Paris, 699 So. 2d 301 (Fla. 2d DCA 1997). See also Sharp v. Barreto, 95 So. 3d 321 (Fla. 3d DCA 2012); Carman v. Gilbert, 615 So. 2d 701 (Fla. 2d DCA 1993), quashed on other grounds 641 So. 2d 1323. But see Stockman v. Downs, 573 So. 2d 835 (Fla. 1991). These holdings are discussed in more detail in § 11.2.K.1.f of this manual. That chapter broadly covers the issue of fee disputes. « Ch. 9 », « § 9.3 », « J » 1 Litigation Under FL Probate Code § 9.3.J (2022)

J. Removal Of Personal Representative’s Attorney Although there is no statutory authority for an action to remove the personal representative’s lawyer, a Florida court has stated in dictum that a probate court, in the exercise of its broad powers to protect an estate, could remove the lawyer. In re Estate of Anders, 209 So. 2d 269 (Fla. 1st DCA 1968). The lawyer for a removed personal representative may not be entitled to any fees for the lawyer’s services in connection with voidable acts by the removed personal representative that led to the removal. In re Estate of

Montanez, 687 So. 2d 943 (Fla. 3d DCA 1997). « Ch. 9 », « § 9.3 », « K » 1 Litigation Under FL Probate Code § 9.3.K (2022)

K. Jury Trial It is clear that there is no right to a jury trial in proceedings to remove a personal representative. Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981); In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965). The court, however, may empanel an advisory jury to resolve issues of fact in probate proceedings. In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976). See §§ 10.4.A–10.4.B of this manual. « Ch. 9 », « § 9.3 », « L » 1 Litigation Under FL Probate Code § 9.3.L (2022)

L. Right Of Appeal The probate court’s decision on a petition for removal is deemed a final order and may be appealed as a matter of right to the appropriate district court of appeal, even before the estate administration is complete. Fla. Prob. R. 5.100; Fla. R. App. P. 9.110(a)(2). However, an order temporarily removing a personal representative and appointing an administrator ad litem is not appealable. In re Estate of Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991). In Lif v. In re: Estate of Lif, 325 So. 3d 968 (Fla. 3d DCA 2021), the court dismissed the personal representative’s writ of certiorari filed in response to the trial court’s appointment of an administrator ad litem on the basis that the personal representative failed to show irreparable harm that could not be addressed on appeal of a final order. Denial of the personal representative’s motion to dismiss the removal action is not final and appealable. AutoOwners Insurance Co. v. Governor of Florida ex rel. Hall, 23 So. 3d 779 (Fla. 4th DCA 2009). For an extensive discussion of finality of probate orders, see the dissent in Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010). See also Naftel v. Pappas, 68 So. 3d 368 (Fla. 1st DCA 2011) (issuance of letters of administration is not appealable order that finally determines right or obligation of interested party, citing Rule 9.110(a)(2)); Rust v. Brown, 13 So. 3d 1105 (Fla. 4th DCA 2009) (order neither final nor appealable, nonfinal order). Pappas held that, instead, the order appointing the personal representative would constitute the appealable order. However,

in this case, formal notice had not been served, so the time for contesting the appointment was still open and the appellate issue was premature. Subsequent to these cases, the Florida Supreme Court adopted Rule 9.170, which explicitly lists appealable orders in probate, including orders removing or refusing to remove a fiduciary, Rule 9.170(b)(6); determining a petition or motion to revoke letters of administration, Rule 9.170(b)(1); granting or denying a petition for administration under F.S. 733.2123, Rule 9.170(b)(4); and discharging a fiduciary or the fiduciary’s surety, Rule 9.170(b)(22). See Creed & Richardson, New Appellate Rule for Probate and Guardianship Proceedings, 86 Fla. Bar J. 58 (Sept./Oct. 2012). The appellate court will not reverse an order removing a personal representative in the absence of a showing of clear error or clear abuse of discretion. Henderson v. Ewell, 111 Fla. 324, 149 So. 372 (1933). The probate court’s decision respecting fees awarded in a removal case arrives in the appellate court clothed with a strong presumption of correctness. See Goldworn v. Estate of Day, 452 So. 2d 659 (Fla. 3d DCA 1984). Appeals in probate cases are treated in Chapter 14 of this manual. « Ch. 9 », « § 9.3 », « M » 1 Litigation Under FL Probate Code § 9.3.M (2022)

M. Accounting By Removed Personal Representative A removed personal representative must file a complete account of his or her administration within 30 days of removal, unless the time is extended by the court. F.S. 733.508; Fla. Prob. R. 5.440(b). The probate rules relating to interim accountings are applicable to a removed personal representative who has filed an accounting. See Rule 5.345(a). The District Court of Appeal, Third District, has ruled that a removed personal representative cannot successfully assert the Fifth Amendment to avoid filing an accounting. Goethel v. Lawrence, 599 So. 2d 232 (Fla. 3d DCA 1992). The District Court of Appeal, Fourth District, adopted the reasoning in Goethel in a guardianship case, affirming a sentence of six months’ incarceration for a guardian held in contempt for failing to file an accounting upon removal. In re Wright, 668 So. 2d 661 (Fla. 4th DCA 1996). One of the rationales for the holding in Goethel was that the acceptance of appointment as personal representative carries with it the statutory

requirement to account. To the contrary, however, is Pisciotti v. Stephens, 940 So. 2d 1217 (Fla. 4th DCA 2006), in which the District Court of Appeal, Fourth District, reversed a trial court order compelling a removed personal representative to file an accounting over the assertion of a Fifth Amendment privilege against self-incrimination. The court noted that by allowing the assertion of the Fifth Amendment for deposition questions but then refusing to protect the personal representative from having to file an accounting would have the effect of negating the protection afforded for testimonial evidence. The dissent noted that the personal representative should be required to file an accounting but agreed that the Fifth Amendment should apply to deposition questions. The personal representative cannot defend a criminal action for theft of estate assets by asserting that he or she is stealing from himself or herself, but it could be asserted that the theft does not occur until the personal representative fails to account for and deliver the assets to the successor personal representative. See State v. Lahurd, 632 So. 2d 1101 (Fla. 4th DCA 1994). See also Williams v. State, 711 So. 2d 41 (Fla. 1st DCA 1998). « Ch. 9 », « § 9.3 », « N » 1 Litigation Under FL Probate Code § 9.3.N (2022)

N. Delivery Of Assets And Records The removed personal representative must, immediately after removal, deliver the estate assets and records to the successor or remaining personal representative. F.S. 733.509; Fla. Prob. R. 5.440(c). Rule 5.440(d) authorizes the probate court to subject the removed personal representative to contempt proceedings for failure to timely file an account and deliver the assets and records. The court’s contempt power includes the authority to sentence a recalcitrant removed personal representative to jail. It appears that incarceration may be used only to enforce requirements to deliver records and assets; jail time is inappropriate if the personal representative has insufficient funds to pay back money taken from the estate. Mueller v. Butterworth, 393 So. 2d 1158 (Fla. 4th DCA 1981). Exceedingly harsh financial penalties, in addition to commitment, can be levied on a defiant personal representative. See Logan v. Scheffler, 441 So. 2d 666 (Fla. 3d DCA 1983). Before it incarcerates the removed personal representative pursuant to a civil contempt order, the court must expressly

find that the contemnor has the ability to comply with the order. Jensen v. Estate of Gambidilla, 896 So. 2d 917 (Fla. 4th DCA 2005). « Ch. 9 », « § 9.3 », « O • 1 Litigation Under FL Probate Code § 9.3.O (2022)

O. Administration Following Removal In cases involving two or more personal representatives, upon removal of one, F.S. 733.509 suggests that the remaining personal representative is to complete the administration of the estate without appointment of a successor. If the removed personal representative is a sole personal representative, the probate court must appoint a successor as provided in F.S. 733.301. The successor personal representative has a duty to make certain that there is no remaining liability of the removed personal representative to the estate, even to the extent of bringing an action against the removed personal representative or his or her surety. Sessions v. Willard, 126 Fla. 848, 172 So. 242 (1937). In a case of first impression in Florida, the District Court of Appeal, First District, held that a successor personal representative even has the standing and duty to bring a legal malpractice claim on behalf of the estate against the lawyer who represented the predecessor personal representative. Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014). There has been uncertainty as to whether all of the acts of a personal representative who is found to have been improperly appointed and is removed are void. See In re Estate of Bush, 80 So. 2d 673 (Fla. 1955); In re Estate of Baker, 339 So. 2d 240 (Fla. 3d DCA 1976). The issue is whether the appointment of the removed personal representative was void ab initio. In re Estate of Cunningham, 104 So. 2d 748 (Fla. 3d DCA 1958). At least one court has now definitively answered that question. In Estate of Retzel v. CSX Transportation, Inc., 586 So. 2d 1247 (Fla. 1st DCA 1991), the court held that the letters of administration should be voided ab initio only when to rule otherwise would be detrimental to the estate. The court buttressed its opinion by further ruling that the acts of the successor would relate back to the inception of the estate. See also Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA 2004).

« Ch. 9 », « § 9.4 • 1 Litigation Under FL Probate Code § 9.4 (2022)

§

9.4. SURCHARGE AND LIABILITY OF PERSONAL REPRESENTATIVE FOR MISMANAGEMENT « Ch. 9 », « § 9.4 •, • A »

1 Litigation Under FL Probate Code § 9.4.A (2022)

A. Available Remedies When probate jurisdiction was vested in county court, many questions arose as to filing an action for mismanagement or waste of estate assets. Most of the jurisdictional problems were solved with the passage of F.S. 733.609 and 733.619. F.S. 733.609 provides that the personal representative is liable to interested persons for damage resulting from a breach of fiduciary duty. F.S. 733.619(4) provides that “[i]ssues of liability as between the estate and the personal representative individually may be determined in a proceeding for … surcharge.” A Florida probate court determination of liability for the personal representative bars a subsequent action against the personal representative in federal district court. Kaplan v. Kaplan, 624 F. App’x 680 (11th Cir. 2015). Unanswered questions remain regarding the right to a jury trial and punitive damages. The more likely result is that neither a jury trial nor punitive damages are available. A surcharge proceeding is specifically designated as adversarial. Fla. Prob. R. 5.025(a). The effect of designation as an adversary proceeding is that the petition must be served by formal notice and thereafter the matter shall be conducted like a civil lawsuit, using the Rules of Civil Procedure. Rule 5.025(d). There is no time limit as to when the petition must be served. Compare In re Estate of Odza, 432 So. 2d 740 (Fla. 4th DCA 1983), with Aguilar v. Aguilar, 15 So. 3d 803 (Fla. 2d DCA 2009). The surcharge petition must allege that relief is sought against the personal representative individually and must be served by formal notice on the personal representative. Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th

DCA 2015); Kozinski v. Stabenow, 152 So. 3d 650 (Fla. 4th DCA 2014). « Ch. 9 », « § 9.4 •, « B » 1 Litigation Under FL Probate Code § 9.4.B (2022)

B. Standard For Liability The general rule is set forth in F.S. 733.602(1), which provides that a “personal representative is a fiduciary who shall observe the standards of care applicable to trustees.” This is consistent with well-settled case law holding that a personal representative is held to the same standard of care as a trustee. Wohl v. Lewy, 505 So. 2d 525 (Fla. 3d DCA 1987). F.S. 733.612(4), dealing with transactions authorized for the personal representative, incorporates the Prudent Investor Act, F.S. 518.11. Thus, the case law and the statute are consistent in harmonizing the standards of care for trustees and personal representatives. « Ch. 9 », « § 9.4 •, « C » 1 Litigation Under FL Probate Code § 9.4.C (2022)

C. Specific Areas Of Personal Representative’s Liability « Ch. 9 », « § 9.4 •, « C », • 1 » 1 Litigation Under FL Probate Code § 9.4.C.1 (2022)

1. Operating Decedent’s Business Probably the most commonly litigated subject of claimed mismanagement is in connection with continuation of the decedent’s unincorporated business. F.S. 733.612(22) authorizes the personal representative to continue the decedent’s unincorporated business for up to four months if continuation is a reasonable means of preserving the value of the business, including good will, and thereafter by court order. Fla. Prob. R. 5.350 sets out the procedure for obtaining court approval of additional operation of the business. The rule also allows interested persons to petition the court to terminate the operation of the business. Delay in obtaining court authorization for prolonged continuation of the decedent’s business does not result in surcharge per se. See In re Estate of Wilson, 116 So. 2d 440 (Fla. 2d DCA 1959). F.S. 733.612(22) apparently allows the testator to overrule the requirement for a court order to continue the business, but such a will provision should be “ ‘in distinct and positive terms.’ ” Beck v. Beck, 383 So. 2d 268, 272 (Fla. 3d DCA 1980), quoting 31 AM. JUR. 2d Executors and

Administrators § 505. The Florida Supreme Court has held that a personal representative is not an insurer of the success of a business. First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370 (1931). In most reported cases the Florida courts have not found liability. See, e.g., In re Estate of Bridges, 282 So. 2d 197 (Fla. 1st DCA 1973). But see Beck. A personal representative must not personally gain from the sale of the business. In re Estate of Corbin, 391 So. 2d 731 (Fla. 3d DCA 1980). If the estate owns the stock in a closely held corporation or limited partnership units in a partnership, the personal representative’s conduct in managing the corporation or partnership is not within the subject matter jurisdiction of the probate court but is more properly the subject of a derivative action or separate partnership case. Parker v. Shullman, 906 So. 2d 1236 (Fla. 4th DCA 2005). « Ch. 9 », « § 9.4 •, « C », « 2 » 1 Litigation Under FL Probate Code § 9.4.C.2 (2022)

2. Investments The personal representative will be surcharged for failure to keep the estate assets income-producing during the estate administration. In re Estate of Feldstein, 292 So. 2d 404 (Fla. 3d DCA 1974). The mere fact, however, that the personal representative’s investments in securities decline in value will not make the personal representative liable for the decrease. Fulton v. First National Bank of Fort Myers, 290 So. 2d 498 (Fla. 2d DCA 1974). See also Barnett v. Barnett, 424 So. 2d 896 (Fla. 1st DCA 1983) (trustee not liable for decline in market value of stock). A bank fiduciary’s investment in its own proprietary mutual funds with management fees is not per se actionable. Berlinger v. Wells Fargo, N.A., 2015 U.S. Dist. LEXIS 141111, 2015 WL 6125529 (M.D. Fla. 2015). Option investments are per se violative of F.S. 518.11. In re Whittaker, 564 B.R. 115 (E.D. Mass. 2017). The personal representative’s prudent hiring of a professional investment advisor can insulate the personal representative from a surcharge claim even if the securities portfolio declines in value. Parker v. Shullman, 983 So. 2d 643 (Fla. 4th DCA 2008). See F.S. 518.112, providing protections for personal representatives who formally delegate their investment functions.

A federal district court in Florida addressed the issue of the liability of a fiduciary when there is not an actual loss in value of the securities account, but the securities did not gain as much as benchmark comparisons would suggest could have been achieved, and the court held there was no liability. Figel v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 24134, 2011 WL 860470 (S.D. Fla. 2011). Failure to timely sell securities in the face of a requirement to do so, however, will result in liability. Niles v. Mallardi, 828 So. 2d 1076 (Fla. 4th DCA 2002). Furthermore, failure to diversify a portfolio of securities, even if diversification will trigger capital gains taxes, can result in surcharge. F.S. 518.11(1)(c); In re Estate of Saxton, 686 N.Y.S.2d 573 (Surr. Ct. 1998). See also In re Estate of Janes, 681 N.E.2d 332 (N.Y. 1997); In re JP Morgan Chase Bank, N.A., 910 N.Y.S.2d 405 (Surr. Ct. 2010). But see Margesson v. Bank of New York, 738 N.Y.S.2d 411 (App. Div. 2002) where a fiduciary faced potential surcharge liability for diversifying under circumstances in which the projected increase in income under the newly diversified portfolio would not recoup the capital gains loss within the income beneficiary’s projected lifetime. See also In re Scheidmantel, 868 A.2d 464 (Pa. Super. Ct. 2005) for an extensive discussion of the merits of diversification and potential liability for a fiduciary who diversifies under unusual factual circumstances. Diversification should not be delayed or staged over an extended time unless the sale of the block of stock will adversely affect the market price. Courts have held that diversification of a concentrated position should be implemented within 30 days of assuming control of the securities. In re JP Morgan Chase Bank, N.A., 981 N.Y.S.2d 636 (Surr. Ct. 2013). See also In re Rowe, 712 N.Y.S.2d 87 (App. Div. 2000). But see In re JPMorgan Chase Bank, N.A., 20 N.Y.S.3d 499 (App. Div. 2015). A corporate fiduciary has been exonerated of surcharge liability for failure to diversify where its individual co-fiduciary (an investment professional) refused to follow the corporate fiduciary’s repeated suggestions to diversify. In the Matter of Wellington Trusts, 85 N.Y.S.3d 497 (App. Div. 2018). For a comprehensive discussion and analysis of a corporate fiduciary’s surcharge liability for failure to diversify a securities portfolio and the available defenses and computation of damages, see In re Will of Dumont, 791 N.Y.S.2d 868 (Surr. Ct. 2004), rev’d 809 N.Y.S.2d 360. Closely related to delay in diversification is the issue of delay in distribution of securities that decline in value while being retained. See In re Lasdon, 963 N.Y.S.2d 99 (App. Div. 2013).

The issue of whether a fiduciary has successfully achieved diversification with a portfolio of 10 stocks in diverse industries has not yet been decided in Florida. Other jurisdictions that have addressed this diversification issue have held that a list of 10 or fewer stocks does constitute sufficient diversification. See, e.g., In re Duffy, 885 N.Y.S.2d 401 (Surr. Ct. 2009); McFadden Trusts, 3 Fiduc. Rep. 3d 41 (Orphans’ Ct. 2012), and the later related case, McFadden Testamentary Trust, 2013 Phila. Ct. Com. Pl. LEXIS 81 (Pa. Com. Pl. 2013). Addressing the related issue of over-concentration in a particular stock against the internal guidelines of the corporate fiduciary, a New York court analyzed numerous cases and concluded that an overweight position in particular stocks is not per se actionable but can result in liability if other factors are present; for example, decreases in dividends and declining market value. See HSBC Bank USA, N.A. v. Knox, 947 N.Y.S.2d 292 (App. Div. 2012), citing Saxton, Janes, and Dumont. Conversely, diversification in the face of a recommendation in the instrument to retain overconcentrated stock can be surchargeable. In re JP Morgan Chase Bank, N.A., No. PT2006-013 (Okla. Dist. 2012). See also Kiziah, The Trustee’s Duty to Diversify: An examination of the developing case law, 36 ACTEC L. J. 357 (2010). Corporate fiduciaries are increasingly using their own investment instruments, including private equity and hedge funds, for investments of fiduciary funds. These investment instruments pay fees to the corporate fiduciaries. This creates a potential conflict of interest which has been cured by the addition of F.S. 736.0802(5)(a) to the Florida Trust Code. This protection may not be available for personal representatives under the Florida Probate Code. « Ch. 9 », « § 9.4 •, « C », « 3 » 1 Litigation Under FL Probate Code § 9.4.C.3 (2022)

3. Claims And Litigation A personal representative’s failure to object to a creditor’s claim, so that it is deemed allowed, is actionable. Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955). See also In re Estate of Freedman, 180 So. 2d 370 (Fla. 3d DCA 1965), 14 A.L.R. 3d 1029. Failure to serve a notice to creditors (formerly a notice of administration) on a claimant, and objecting to a claim that was later found to be a valid claim, are not surchargeable. Landon v. Isler, 681 So. 2d

755 (Fla. 2d DCA 1996). Similarly, failure to properly defend an action against the estate constitutes waste. In re Paine’s Estate, 128 Fla. 151, 174 So. 430 (1937). Failure to file appropriate actions to recover property for the estate is actionable. Ziering v. Berger, 209 So. 2d 681 (Fla. 3d DCA 1968). A personal representative’s release of an estate’s claim without adequate consideration is actionable. University Medical Center v. Zeiler, 625 So. 2d 120 (Fla. 5th DCA 1993). Bad-faith pursuit of vexatious and unsuccessful litigation has been held sufficient to justify surcharge. In re Estate of Lamb, 763 So. 2d 363 (Fla. 4th DCA 1998). One appellate court rejected an effort to surcharge a personal representative for the attorneys’ fees incurred by the estate when the personal representative successfully sued the estate (represented by an administrator ad litem) to foreclose on her mortgage on estate property. Brake v. Murphy, 636 So. 2d 72 (Fla. 3d DCA 1994). The court held that an unsuccessful foreclosure action could result in surcharge. (The court later vacated its affirmance based on ex parte communications between a party and the probate judge that had preceded the order of surcharge. Brake v. Murphy, 693 So. 2d 663 (Fla. 3d DCA 1997).) Before pursuing litigation on behalf of the estate, the personal representative may seek court approval to authorize the action or inaction. In In re Estate of Wejanowski, 920 So. 2d 190 (Fla. 2d DCA 2006), a personal representative sought approval from the probate court to pursue an appeal from an unfavorable trial court decision against the estate in an independent action. The probate court declined to approve in advance the expenditure of funds for the appeal. The District Court of Appeal, Second District, reversed and authorized the expenditure of funds for the appeal but essentially eliminated any protection for the personal representative in the event the appeals were later determined to have been taken in bad faith or were frivolous, by holding that the personal representative could be surcharged in that event. The special concurrence in Wejanowski criticized the practice of seeking court approval in advance, citing F.S. 733.602(2), which provides that a personal representative shall not be liable for any act of administration if the act was authorized at the time, and F.S. 733.612, which provides in subsection (20) that the personal representative has the power to prosecute or defend claims for the protection of the estate. The special concurrence used the majority’s decision as an example that seeking advance approval does not

insulate the personal representative from liability even if the action requested is authorized. In Disque v. Unger, 955 So. 2d 1121 (Fla. 4th DCA 2007), the District Court of Appeal, Fourth District, affirmed a probate judge’s sua sponte dismissal of a declaratory judgment action filed by a personal representative on the ground that pursuing the declaratory action would have no impact on the estate and would confer no financial benefit to the estate. A fiduciary’s attempts to protect itself from liability to the beneficiaries without making full disclosure can lead to claims of breach of fiduciary duty. First Union National Bank v. Turney, 824 So. 2d 172 (Fla. 1st DCA 2002). In those circumstances, the attorney-client privilege between fiduciary and counsel can be pierced under the crime-fraud exception. See F.S. 90.502(4) (a); Turney. Likewise, a fiduciary’s accounting that fails to make full disclosure will not bar a later action by a beneficiary against the fiduciary. See Turkish v. Brody, 221 So. 3d 1206 (Fla. 3d DCA 2016). « Ch. 9 », « § 9.4 •, « C », « 4 • 1 Litigation Under FL Probate Code § 9.4.C.4 (2022)

4. Hiring Agents; Defense Of Advice Of Counsel Personal representatives are given authority under F.S. 733.612(19) to employ “attorneys, accountants, auditors, appraisers, investment advisers, and others.” A personal representative who was not negligent in originally employing an agent will not be liable for subsequent defalcations by the agent. In re Estate of Rosenthal, 189 So. 2d 507 (Fla. 3d DCA 1966). The personal representative may not completely turn over the estate administration to a lawyer, however. Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953). The personal representative is not liable for any loss to the estate that results from the personal representative’s reasonable reliance on the advice of a professional. Wohl v. Lewy, 505 So. 2d 525 (Fla. 3d DCA 1987). This protection extends to prudent hiring of an investment advisor. Parker v. Shullman, 983 So. 2d 643 (Fla. 4th DCA 2008). See F.S. 518.112, providing protections for personal representatives who formally delegate their investment functions. But see Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015), declining to apply Wohl when a fiduciary failed to comply with clear statutory requirements.

« Ch. 9 », « § 9.4 •, « D » 1 Litigation Under FL Probate Code § 9.4.D (2022)

D. Standing F.S. 733.609 extends liability of the personal representative to “interested persons.” An interested person is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” F.S. 731.201(23). The same definition states that each case must be examined on its own facts to determine whether a person is interested. A creditor may bring a surcharge action. State v. Crawford, 23 Fla. 289, 2 So. 371 (1887); In re Estate of Novick, 526 So. 2d 200 (Fla. 4th DCA 1988). A contingent creditor who has not had its claim allowed by failure of the personal representative to object and who has not yet established it in a separate lawsuit against the estate has no standing to challenge the personal representative’s management of the estate assets. In re Estate of Shaw, 340 So. 2d 491 (Fla. 3d DCA 1976). A contingent beneficiary may have standing. See Barley v. Barcus, 877 So. 2d 42 (Fla. 5th DCA 2004); In re Estate of Anders, 209 So. 2d 269 (Fla. 1st DCA 1968). The vested (in interest) remainderman of a testamentary trust has standing to surcharge a personal representative even though not yet vested in possession. In re Estate of Watkins, 572 So. 2d 1014 (Fla. 4th DCA 1991). See also Richardson v. Richardson, 524 So. 2d 1126 (Fla. 5th DCA 1988); Berlinger v. Wells Fargo, N.A., 2016 U.S. Dist. LEXIS 23158, 2016 WL 740521 (M.D. Fla. 2016). But see Hayes v. Rogers, 50 So. 3d 73 (Fla. 4th DCA 2011). The future interest in an inter vivos trust conferred sufficient standing for remainder beneficiaries to sue the trustee for surcharge even where the trust settlor and trust protector intended to preclude a surcharge cause of action. Rachins v. Minassian, 251 So. 3d 919 (Fla. 4th DCA 2018). Even a party who is disinherited has standing to sue a fiduciary for surcharge pending the resolution of an action brought to invalidate the testamentary instruments. Cates v. Community Bank & Trust of Florida, 277 So. 3d 1095 (Fla. 5th DCA 2019). In In re Estate of Feldstein, 292 So. 2d 404 (Fla. 3d DCA 1974), the court held that even if the trust beneficiaries had no standing to bring a surcharge action against the personal representative, this was not a fatal defect inasmuch as the court on its own motion could have required an accounting

from the personal representative. « Ch. 9 », « § 9.4 •, « E » 1 Litigation Under FL Probate Code § 9.4.E (2022)

E. Conflict Of Interest Transactions F.S. 733.610 provides that a conflict of interest transaction engaged in by the personal representative, their spouse, agent, or lawyer is voidable by any interested person except one who has consented after fair disclosure, unless “(1) [t]he will or a contract entered into by the decedent expressly authorized the transaction; or (2) [t]he transaction is approved by the court after notice to interested persons.” This provision is much less elaborate than the statute in the Florida Trust Code, F.S. 736.0802, addressing transactions that could result in a trustee having a conflict of interest. A Florida appellate court has held that a conflict of interest transaction by a personal representative without court approval is a legal nullity. In re Estate of Salomon, 791 So. 2d 1150 (Fla. 3d DCA 2001). The fact that the personal representative had no bad motives or did not recognize the conflict of interest is no defense. Id. See Lehman v. Lucom, 78 So. 3d 592 (Fla. 4th DCA 2012) (ancillary personal representative surcharged for improperly using funds of ancillary estate to fund litigation in Panama involving domiciliary estate, citing F.S. 734.102). The basis for the court’s ruling in Lehman was that the ancillary estate assets should be used first for paying administration expenses and debts of the ancillary estate under F.S. 733.707. A personal representative should immediately seek an administrator ad litem when it becomes apparent that the personal representative is negotiating a transaction having a potential conflict of interest. See F.S. 733.308; Fla. Prob. R. 5.120. In the context of a trust, Florida courts have strictly construed the requirement for advance approval of a conflict of interest transaction and have imposed harsh remedies. See Brigham v. Brigham, 11 So. 3d 374 (Fla. 3d DCA 2009); Aiello v. Hyland, 793 So. 2d 1150 (Fla. 4th DCA 2001); Barnhart v. Hovde, 490 So. 2d 1271 (Fla. 5th DCA 1986). There is no reason that a court should not apply these cases in the context of an estate. The personal representative is held to the same standards of care as a trustee. F.S. 733.602(1). See § 9.4.B.

« Ch. 9 », « § 9.4 •, « F » 1 Litigation Under FL Probate Code § 9.4.F (2022)

F. Matters Barring Actions Against Personal Representative « Ch. 9 », « § 9.4 •, « F », • 1 » 1 Litigation Under FL Probate Code § 9.4.F.1 (2022)

1. Objection To Interim Accounting If the alleged mismanagement of the personal representative is reflected on an interim or final accounting and the interested person fails to file a timely objection, he or she may be barred from pursuing the personal representative. Fla. Prob. R. 5.345 authorizes the personal representative to elect at any time to file a verified interim accounting containing an account of all the receipts and disbursements of the estate since the date of the last accounting, and a statement of assets on hand at the end of the accounting period. The personal representative must serve notice of filing and a copy of the interim accounting on all interested persons. Rule 5.345(b). The notice instructs the person served that he or she must file any objection within 30 days. Id. The rule specifically provides that if no objection is timely filed to an interim accounting, the accounting will be deemed approved as filed. Rule 5.345(e). Although not specifically stated in the rule, presumably only interested persons who have received notice are considered to be barred from subsequently objecting to the interim accounting. « Ch. 9 », « § 9.4 •, « F », « 2 • 1 Litigation Under FL Probate Code § 9.4.F.2 (2022)

2. Objection To Final Accounting The procedure for final accountings is similar to that for interim accountings. See Fla. Prob. R. 5.400. F.S. 733.901(2) specifically bars a subsequent action against the personal representative by stating: “The discharge of the personal representative shall release the personal representative and shall bar any action against the personal representative, as such or individually, and the surety.” In Sims v. Barnard, 257 So. 3d 630 (Fla. 1st DCA 2018), the court acknowledged the res judicata effect of orders approving the final accounting and discharging the personal representative.

There appears to be a conflict between F.S. 733.901(2) and 733.903. The latter provides that the discharge of the personal representative does not prevent further administration of the estate. There are several Florida cases in which a plaintiff has been permitted to pursue an action in the circuit court after the probate proceedings were closed, notwithstanding the entry of an order finally discharging the personal representative. See Dacus v. Blackwell, 90 So. 2d 324 (Fla. 1956); Krivitsky v. Nye, 155 Fla. 45, 19 So. 2d 563 (1944); Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980). In Carraway v. Carraway, 883 So. 2d 834 (Fla. 1st DCA 2004), the District Court of Appeal, First District, granted a writ prohibiting the trial court from ruling on a petition for discharge because of a pending appeal involving the issue of the qualification of the personal representative. The district court noted that, if the lower court acted on the petition for discharge, “the substantive controversy is decided. This would sufficiently prejudice petitioner unless petitioner can later successfully reopen the estate. At this time, the record does not show that petitioner can maintain a successful claim to reopen the estate if the trial court grants the petition to discharge.” Id. at 835. In each of the cases in which the court held the order of final discharge of the personal representative not to be binding, there were procedural irregularities or facts constituting fraud or bad faith. See, e.g., Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990). But see In re Estate of Clibbon, 735 So. 2d 487 (Fla. 4th DCA 1998). There is broad language in some of the cases supporting the proposition that the court will exercise its equity jurisdiction to reach an equitable result despite the probate court’s order of discharge. See, e.g., Kittel v. Simmonite, 152 So. 2d 817 (Fla. 3d DCA 1963). The trend seems to be that the courts are split on giving effect to the protection afforded by F.S. 733.901(2). See, e.g., Van Dusen v. Southeast First National Bank of Miami, 478 So. 2d 82, 89, 91 (Fla. 3d DCA 1985), in which the court determined that the statute “does not serve as an absolute bar to suits” against a discharged personal representative, and that “the price of immunity is disclosure” on the final accounting. See also Kravitz v. Levy, 973 So. 2d 1274, 1276 (Fla. 4th DCA 2008) (“A claim may be brought against a personal representative in his individual capacity for breach of fiduciary duty

to the estate even after discharge, involving assets wrongfully withheld or disposed and of which the beneficiary had no notice.”). The court further noted that “a cause of action for breach of fiduciary duty against the personal representative, individually, does not accrue until discharge.” Id. Contrary to the cases that liberally permit tardy attacks on the personal representative is Thomas v. Thomas, 26 So. 3d 713 (Fla. 5th DCA 2010), strictly requiring objections to a final accounting to be filed within 30 days. Similarly, several attempts to reopen an estate were rejected in Betancourt v. Estate of Misdraji, 13 So. 3d 489 (Fla. 3d DCA 2009). « Ch. 9 », « § 9.4 •, « G » 1 Litigation Under FL Probate Code § 9.4.G (2022)

G. Actions On Surety Bonds F.S. 733.402(1) requires that the personal representative’s bond must be joint and several. In a case arising under the former devastavit statute, it was held that it was unnecessary to join the personal representative in an action against the surety. Dixon v. Travelers Indemnity Co., 174 So. 2d 53 (Fla. 3d DCA 1965). The action against the surety must be brought in the name of the Governor for the use of the party damaged. F.S. 733.402(1). Despite the statutory provision that the discharge of the personal representative bars any action against the surety, the same questions arise with respect to the extent of the protection afforded by F.S. 733.901(2) to the surety as arise regarding its protection for the personal representative. See Cone v. Benjamin, 150 Fla. 419, 8 So. 2d 476 (1942). See also § 9.4.F.2. The surety may be relieved from future liability on a petition of any interested person to the probate court. F.S. 733.405(1). The released surety remains liable for all acts occurring before discharge of the surety and the personal representative’s giving a new bond. F.S. 733.405(4). The liability of the surety is limited to the value of the assets of the estate. F.S. 733.404. « Ch. 9 », « § 9.4 •, « H » 1 Litigation Under FL Probate Code § 9.4.H (2022)

H. Exculpatory Clauses

Generally, Florida recognizes the doctrine that the creator of an interest may direct the fiduciary to manage the fund in a way that otherwise would be maladministration and thereby insulate the fiduciary from liability. Bacon v. Marden, 518 So. 2d 925 (Fla. 3d DCA 1988). However, this type of clause is strictly construed. To be effective, the clause must be specifically exculpatory and not a grant of power or omnibus clause. Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980). Compare Bacon with Sauter v. Bravo, 771 So. 2d 1213 (Fla. 4th DCA 2000). Closely related to exculpatory clauses are approvals by the beneficiaries of an investment policy that might otherwise be deemed imprudent. Although such approvals might estop the beneficiaries from later seeking to surcharge the personal representative, they may be regarded by the court as stale if not frequently reconfirmed. In re Estate of Saxton, 686 N.Y.S.2d 573 (Surr. Ct. 1998). See also In re Will of Dumont, 791 N.Y.S.2d 868 (Surr. Ct. 2004), rev’d 809 N.Y.S.2d 360. For an excellent discussion regarding the specificity required in an exculpatory clause, see Wood v. U.S. Bank, N.A., 828 N.E.2d 1072 (Ohio Ct. App. 2005). But see Puhl v. U.S. Bank, N.A., 34 N.E.3d 530 (Ohio Ct. App. 2015), distinguishing Wood on the grounds that in Wood, the instrument did not expressly grant the fiduciary authority to retain assets regardless of lack of diversification. On a statutory level, the Florida Probate Code imposes limits on the personal representative’s ability to rely upon an exculpatory clause in a will. F.S. 733.620 renders unenforceable exculpatory language in a will that relieves the personal representative of liability for breach of fiduciary duty committed in bad faith or with reckless indifference to the purposes of the will or the interests of interested persons, and exculpatory language that was inserted into the will as a result of abuse by the personal representative of a fiduciary or confidential relationship with the testator. See Reliance Trust Co. v. Candler, 751 S.E.2d 47 (Ga. 2013), discussing a statute similar to Florida’s F.S. 733.620 and applying it to a situation in which a trustee was given absolute discretion. The court concluded that this language nonetheless required the fiduciary to act in good faith and free from misconduct, arbitrariness, or lack of ordinary skill. A Florida decision has reinforced the protection afforded to a fiduciary who is granted wide discretion in the instrument. Turkish v. Brody, 221 So. 3d 1206 (Fla. 3d DCA 2016). « Ch. 9 », « § 9.4 •, « I » 1 Litigation Under FL Probate Code § 9.4.I (2022)

I. Appeals Appeals in surcharge cases are governed by Fla. R. App. P. 9.170. The rule has a nonexclusive list of appealable orders, including settling an account of a personal representative. Rule 9.170(b)(21). In addition, the rule broadly states that an order finally determining an obligation is appealable. Rule 9.170(b). An order compelling a trustee to account for the management of properties determined to belong to the estate has been ruled a nonfinal, non-appealable order where the order also contemplated further judicial labor concerning distribution of the subject properties and calculation of monies owed. Giller v. Giller, 319 So. 3d 690 (Fla. 3d DCA 2021). An unresolved issue is the apparent conflict between the Florida Probate Rules and the Florida Rules of Civil Procedure: the rules of civil procedure govern a surcharge case because it is deemed an adversarial proceeding, thus there is potential conflict between the special appellate rule for probate proceedings and the general appellate rule. « Ch. 9 », « § 9.4 •, « J » 1 Litigation Under FL Probate Code § 9.4.J (2022)

J. Attorneys’ Fees F.S. 733.609 provides for the award of costs and attorneys’ fees in surcharge actions, as in chancery actions, to the prevailing party. The courts will exercise broad discretion with respect to awarding fees and costs. The personal representative can be taxed personally with the attorneys’ fees and costs of an administrator ad litem, a successor personal representative, and the beneficiaries. Brake v. Murphy, 749 So. 2d 1278 (Fla. 3d DCA 2000). In In re Estate of Bridges, 282 So. 2d 197 (Fla. 1st DCA 1973), the complainant was denied relief in a surcharge action. Nevertheless, the court directed the estate to bear all of the costs and part of the attorneys’ fees of the petitioner. A court has also ordered the fees of the personal representative to be charged to the complaining beneficiary’s share of the estate, but not to the beneficiary individually. Williams v. King, 711 So. 2d 1285 (Fla. 5th DCA 1998). The decision in Bridges is consistent with F.S. 733.106(3), which provides that any lawyer who has rendered services to an estate may be awarded a fee payable by the estate. Clearly, the fees of a victorious personal representative’s lawyer are payable from the estate. Valleskey v. Flagship National Bank of Miami, 508 So. 2d 541 (Fla. 3d DCA 1987). Even a losing

personal representative is entitled to have his or her attorneys’ fees paid from the estate if the personal representative’s conduct does not rise to the level of being improper or in bad faith. In re Estate of Pearce, 507 So. 2d 729 (Fla. 4th DCA 1987). But see Goldworn v. Estate of Day, 452 So. 2d 659 (Fla. 3d DCA 1984). However, the court in In re Estate of Salomon, 791 So. 2d 1150 (Fla. 3d DCA 2001), held that a personal representative who had a conflict of interest and omitted stock from the estate inventory because she claimed ownership, could be held liable for the fees and costs of the appeal and any subsequent enforcement action. As noted in § 9.3.I, a lawyer who seeks to have his or her fees paid from the estate based on F.S. 733.106, but who fails to include a request for the fee in the initial pleading, is not barred from claiming the fee award. See also Chapter 11 of this manual, particularly § 11.2.C.2.b, which further treats the subject of attorneys’ fees in surcharge cases. « Ch. 9 », « § 9.4 •, « K • 1 Litigation Under FL Probate Code § 9.4.K (2022)

K. Liability Of Personal Representative’s Attorney To Beneficiaries Of Estate The privity defense has been considerably eroded in estate planning malpractice cases. See McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976). The court in Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA 2012), held that the right of beneficiaries to sue for pre-death legal malpractice is not limited to the preparation of wills but has been extended to other forms of estate planning, including erroneous formation of a family limited partnership. See also Erickson, Malpractice Exposure in Tax and Estate Planning Practice, 61 Fla. Bar J. 51 (Dec. 1987); Ellerson v. Moriarty, 331 So. 3d 767 (Fla. 2d DCA 2021); Dingle v. Dellinger, 134 So. 3d 484 (Fla. 5th DCA 2014). However, there is no Florida case law supporting the theory that the estate beneficiaries or creditors can sue the personal representative’s counsel for malpractice. One district court of appeal has held that an estate beneficiary may sue the lawyer and accountant for the personal representative for erroneous tax advice to the personal representative. Kinney v. Shinholser, 663 So. 2d 643 (Fla. 5th DCA 1995). A successor personal representative may sue the lawyer for the predecessor personal representative, but that does not erode the privity defense because the successor steps into the shoes of the

predecessor. Onofrio v. Johnston & Sasser, P.A., 782 So. 2d 1019 (Fla. 5th DCA 2001). See also Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014). The court has authority to order the personal representative’s lawyer to account for estate funds in the lawyer’s possession and to enforce the order through contempt. Morrison v. Estate of DeMarco, 833 So. 2d 180 (Fla. 4th DCA 2003). Footnotes — Chapter 9: *

J.D. with honors, 1999, University of Florida. Mr. Pressly, III is a member of The Florida Bar and the American and Palm Beach County bar associations. He is a partner in Pressly, Pressly, Randolph & Pressly, P.A., in Palm Beach. **

J.D. with high honors, 1972, University of Florida. Mr. Pressly, Jr. is a member of The Florida Bar and the American and Palm Beach County bar associations. He is a partner in Pressly, Pressly, Randolph & Pressly, P.A., in Palm Beach.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 10 » 1 Litigation Under FL Probate Code Ch. 10 (2022)

Chapter 10 JURY TRIALS IN PROBATE NICKLAUS J. CURLEY* ELIZABETH A. BOWERS STOOPS** Contents § 10.1. INTRODUCTION § 10.2. SOURCES OF RIGHT TO TRIAL BY JURY A. Florida Constitution B. Statute § 10.3. SCOPE OF CONSTITUTIONAL RIGHT TO TRIAL BY JURY A. In General B. Right Determined By Nature Of Controversy 1. In General 2. Legal Causes Of Action Generally—Right To Trial By Jury 3. Equitable Causes Of Action Generally—No Right To Trial By Jury 4. General Probate Proceedings—No Right To Trial By Jury 5. Particular Probate-Related Legal Causes Of Action—Right To Trial By Jury 6. Particular Probate-Related Equitable Proceedings—No Right To Trial By Jury C. Liberal Construction Of Right § 10.4. ADVISORY JURIES IN EQUITABLE PROCEEDINGS A. In General B. In Probate C. Procedure for Empaneling An Advisory Jury § 10.5. REVIEW OF ORDER DENYING OR STRIKING DEMAND FOR JURY TRIAL

§ 10.6. REMOTE JURY TRIALS « Ch. 10 », • § 10.1 » 1 Litigation Under FL Probate Code § 10.1 (2022)

§ 10.1. INTRODUCTION Jury trials are requested in various proceedings involving wills, trusts, gifts, and fiduciary relationships. These proceedings include will contests, trust contests, undue influence, actions for accounting, surcharge actions, claims for tortious interference with an expectancy, actions for the removal of a fiduciary, fee disputes, actions challenging the validity of inter vivos gifts, and requests for the imposition of a constructive trust. Traditionally, a probate court is a court of equity, which limits the party’s right to demand a jury. This chapter reviews the source and scope of the right to a jury trial in Florida in these various proceedings, and in particular the exceptions to the traditional non-jury stance.

« Ch. 10 », « § 10.2 » 1 Litigation Under FL Probate Code § 10.2 (2022)

§ 10.2. SOURCES OF RIGHT TO TRIAL BY JURY « Ch. 10 », « § 10.2 », • A » 1 Litigation Under FL Probate Code § 10.2.A (2022)

A. Florida Constitution It is the settled law of Florida that the right to a jury trial embraces “all causes of action, claims, and demands which, according to the course of [the common law], were entitled to be tried by jury at the time of the organization of our government.” Hughes v. Hannah, 39 Fla. 365, 22 So. 613, 615 (1897). The source of the constitutional right to trial by jury in a civil case is the Seventh Amendment to the United States Constitution and Article I, § 22 of the Florida Constitution. Florida’s first constitution, adopted in 1838 (which became effective in 1845), and all subsequent constitutions, have provided that “[t]he right of trial by jury shall be secure to all and remain inviolate.” B.J.Y. v. M.A., 617 So. 2d 1061, 1062 (Fla. 1993). With great uniformity, the authorities hold that constitutional provisions like Florida’s were “designed to preserve and guarantee the right of trial by jury in proceedings, according to the course of the common law, as known and practiced at the time of the adoption of the [Florida] Constitution.” Hawkins v. Rellim Inv. Co., 92 Fla. 784, 110 So. 350, 351 (1926). See also State v. Webb, 335 So. 2d 826 (Fla. 1976); Hughes; In re Estate of Howard, 542 So. 2d 395 (Fla. 1st DCA 1989). “When the right of trial by jury is secured by constitutional provision in general terms [as is the case in Florida], and without any qualification or restriction, it must be understood as retained in all those cases that were triable by jury according to the course of the common law.” Buckman v. State ex rel. Spencer, 34 Fla. 48, 15 So. 697, 699 (1894). “[I]t has been generally recognized that all causes of action, claims, and demands [that] … are included in the constitutional guaranty of trial by jury … must be preserved until otherwise provided by the constitution itself.” Hughes, 22 So. at 615. Accordingly, although the legislature may expand the right of trial by jury by

making it applicable to new causes of action or to existing causes of action that were not embraced by the right to jury trial in Florida in 1838, the legislature may not reduce the scope of the right that existed on that date. B.J.Y. That right can be diminished only by constitutional amendment. « Ch. 10 », « § 10.2 », « B • 1 Litigation Under FL Probate Code § 10.2.B (2022)

B. Statute The legislature, by statute, may confer a right to trial by jury for a particular claim or cause of action for which the Florida Constitution does not afford such a right. See Dept. of Agriculture & Consumer Services v. Bonanno, 568 So. 2d 24 (Fla. 1990); Cerrito v. Kovitch, 457 So. 2d 1021 (Fla. 1984). Examples include F.S. 65.061(1) (quiet title when defendant is in possession), 73.071(1) (eminent domain), 77.08 (garnishment), 77.16(1) (garnishment), and 86.071 (declaratory judgment).

« Ch. 10 », « § 10.3 » 1 Litigation Under FL Probate Code § 10.3 (2022)

§ 10.3. SCOPE OF CONSTITUTIONAL RIGHT TO TRIAL BY JURY « Ch. 10 », « § 10.3 », • A » 1 Litigation Under FL Probate Code § 10.3.A (2022)

A. In General The right to a jury trial does not include all disputes, because many of them were disposed of in the courts of common law without a jury. Hughes v. Hannah, 39 Fla. 365, 22 So. 613 (1897). “[I]t was never understood that the right of trial by jury, secured by [the] constitutional provision, extended to all cases, as there were many trials and proceedings according to the course of the common law in which juries did not participate.” Buckman v. State ex rel. Spencer, 34 Fla. 48, 15 So. 697, 699 (1894). In short, the action must have been recognized to have the right to trial by jury at the time the Florida Constitution was adopted. State v. Webb, 335 So. 2d 826 (Fla. 1976). Furthermore, the Constitutional protection does not extend to a right or remedy which was unknown at the time of the adoption of the first constitution. Whirley v. State, 450 So. 2d 836 (Fla. 1984). « Ch. 10 », « § 10.3 », « B » 1 Litigation Under FL Probate Code § 10.3.B (2022)

B. Right Determined By Nature Of Controversy « Ch. 10 », « § 10.3 », « B », • 1 » 1 Litigation Under FL Probate Code § 10.3.B.1 (2022)

1. In General The court in Wiggins v. Williams, 36 Fla. 637, 18 So. 859, 864 (1896), held that “it is the nature of the controversy between the parties, and its fitness to be tried by a jury according to the rules of the common law, that must decide the question.” In Cerrito v. Kovitch, 457 So. 2d 1021, 1022 (Fla. 1984), the court held that “[t]he right to a jury trial, in the absence of specific statutory authorization, depends upon whether the nature of the cause of action is legal or equitable.”

Whether the lawsuit is properly maintainable in law or in equity, or both, depends primarily upon the nature of the breach and the remedy sought, rather than on the relationship out of which the cause of action arose. Millennium Diagnostic Imaging Center, Inc. v. State Farm Mutual Automobile Insurance Co., 129 So. 3d 1086 (Fla. 3d DCA 2014); Vander Voort v. International Development & Holding Corp., 579 So. 2d 887 (Fla. 2d DCA 1991); King Mountain Condominium Ass’n, Inc. v. Gundlach, 425 So. 2d 569 (Fla. 4th DCA 1983); Beck v. Barnett National Bank of Jacksonville, 117 So. 2d 45 (Fla. 1st DCA 1960). Florida appellate courts have generally held that “an action seeking a money judgment is traditionally one at law.” 381651 Alberta, Ltd. v. 279298 Alberta, Ltd., 675 So. 2d 1385, 1387 (Fla. 4th DCA 1996). See also Hutchens v. Maxicenters, U.S.A., 541 So. 2d 618 (Fla. 5th DCA 1988). Conversely, actions to set aside real property conveyances are cognizable in equity. See 381651 Alberta, Ltd.; Raulerson v. Metzger, 375 So. 2d 576 (Fla. 5th DCA 1979); Bryant v. Small, 271 So. 2d 808 (Fla. 3d DCA 1973). In the end, the court should focus primarily on the nature of the relief requested. So, if a party seeks money damages, you are likely in a court of law. Alternatively, if a party seeks other types of relief, you are likely in a court of equity. See generally, Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987) (setting forth analysis court should use when considering this issue). In the event that an action intertwines both legal and equitable matters and it would be extremely difficult to sever the matters, a court may decide that all matters should be heard by a jury. F.R.W.P., Inc. v. Home Insurance Co., 450 So. 2d 914 (Fla. 4th DCA 1984) (declaratory action based on breach of contract); K.M.A. Associates, Inc. v. Meros, 452 So. 2d 580 (Fla. 2d DCA 1984) (legal malpractice and constructive trust); Vine v. Scarborough, 517 So. 2d 726 (Fla. 3d DCA 1987) (unjust enrichment and declaratory relief). On the other hand, when severance is possible and it is conducive to preserve the non-jury aspects of a case, practitioners should take advantage of Fla. R. Civ. P. 1.270. In cases that are difficult to label, it is important to remember that, when in doubt, courts are instructed to presume a jury trial is appropriate. O’Neal v. Florida A&M University, 989 So. 2d 6, 14 (Fla. 1st DCA 2008), quoting Hollywood, Inc. v. City of Hollywood, 321 So. 2d 65, 71 (Fla. 1975) (“ ‘Questions as to the right to a jury trial should be resolved, if at all possible,

in favor of the party seeking the jury trial.’ ”). « Ch. 10 », « § 10.3 », « B », « 2 » 1 Litigation Under FL Probate Code § 10.3.B.2 (2022)

2. Legal Causes Of Action Generally—Right To Trial By Jury The test in Florida “is whether the party seeking a jury trial is trying to invoke rights and remedies of the sort traditionally enforceable in an action at law.” King Mountain Condominium Ass’n, Inc. v. Gundlach, 425 So. 2d 569, 571 (Fla. 4th DCA 1983). The right does not extend to equitable demands that traditionally were enforced in the courts of chancery. Hughes v. Hannah, 39 Fla. 365, 22 So. 613 (1897). In Beck v. Barnett National Bank of Jacksonville, 117 So. 2d 45, 50 (Fla. 1st DCA 1960), however, the district court held that [t]he fact that a cause of action arose out of a fiduciary relationship … between the parties does not necessarily mean that … the action is one cognizable only in equity. The propriety of maintaining suits at law on causes of action arising out of former fiduciary relationships has been recognized. In Wiggins v. Williams, 36 Fla. 637, 18 So. 859, 864 (1896), the Florida Supreme Court recognized that [a] principle has been established in the jurisprudence of this country that new rights unknown to the common-law procedure of trial by jury may be created, and provision made for their determination in the absence of a jury, without violating the constitutional [right to trial by jury]. But, while it may be competent for the legislature to create new tribunals without common-law powers to adjudicate new rights without a jury, the mere change in form of an action will not authorize the submission of common-law rights to a court in which no provision is made to secure a trial by jury. In Ross v. Bernhard, 396 U.S. 531, 533, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970), the U.S. Supreme Court confirmed that the Seventh Amendment preserved the right to jury at common law “not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained

and determined, in contradistinction to those where equitable rights alone were recognized, and equitable remedies were administered. * * * In a jury sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.” Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 447, 7 L. Ed. 732 (1830). « Ch. 10 », « § 10.3 », « B », « 3 » 1 Litigation Under FL Probate Code § 10.3.B.3 (2022)

3. Equitable Causes Of Action Generally—No Right To Trial By Jury The court in King Mountain Condominium Ass’n, Inc. v. Gundlach, 425 So. 2d 569, 570 (Fla. 4th DCA 1983), observed that “it is … certain that the right to a jury trial applies only to legal, as opposed to equitable, causes of action.” The constitutional provision regarding trial by jury does not “have any reference to equitable demands enforced in the courts of chancery.” Hawkins v. Rellim Inv. Co., 92 Fla. 784, 110 So. 350, 351 (1926). In Hughes v. Hannah, 39 Fla. 365, 22 So. 613, 615 (1897), it was held that “[t]he qualification that the jury trial contemplated [by the Florida Constitution] must be according to the course of the common law confines it to legal rights and contentions, and it does not extend to equitable demands enforced in the courts of chancery.” In King Mountain Condominium Ass’n, Inc., the court held that the plaintiffs were not entitled to a jury trial on their claim for “damages” because it was “actually a claim seeking the restitution of unjust enrichment obtained through alleged misuse of the fiduciary relationship, and that such a claim [was] cognizable exclusively in equity [and that] the breach and the remedy sought … were equitable in nature.” Id. at 571. In Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987), the United States Supreme Court reviewed a decision denying a defendant’s demand for a jury trial. In Tull, the government sought civil penalties and injunctive relief under the Clean Water Act. The district court denied the defendant’s demand for jury trial. Subsequently, the district court determined the defendant was liable and imposed civil penalties and granted injunctive relief. The district court’s decision was affirmed on appeal.

The Supreme Court considered whether the government’s claims under the Clean Water Act invoked the Seventh Amendment right to a jury trial. After analyzing historically similar causes of action, the Supreme Court noted: We need not rest our conclusion on what has been called an “abstruse historical” search for the nearest 18th-century analog. See Ross v. Bernhard, 396 U.S. [531, 538 n.10, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970)]. We reiterate our previously expressed view that characterizing the relief sought is “[m]ore important” than finding a precisely analogous common-law cause of action in determining whether the Seventh Amendment guarantees a jury trial. Tull, 481 U.S. at 421. The Supreme Court held that a jury trial was required for the determination of liability under the Clean Water Act because the cause of action provided monetary relief, even though there were also “equitable” remedies available to the Government as well. In such a situation, if a “legal claim is joined with an equitable claim, the right to jury trial on the legal claim, including all issues common to both claims, remains intact. The right cannot be abridged by characterizing the legal claim as ‘incidental’ to the equitable relief sought.” Curtis v. Loether, 415 U.S. [189, 196 n.11, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974)]. Thus, petitioner has a constitutional right to a jury trial to determine his liability on the legal claims. Tull, 481 U.S. at 425. « Ch. 10 », « § 10.3 », « B », « 4 » 1 Litigation Under FL Probate Code § 10.3.B.4 (2022)

4. General Probate Proceedings—No Right To Trial By Jury Regarding matters to be determined by the probate court, it has been noted that “[h]istorically, [such] matters … are not subject to the constitutionally protected right to a jury trial.” In re Estate of Howard, 542 So. 2d 395, 397 (Fla. 1st DCA 1989). See also Vista Centre Venture v. Unlike Anything Inc., 603 So. 2d 576 (Fla. 5th DCA 1992); In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976); Osborn v. Griffin, 865 F.3d 417 (6th Cir. 2017).

On July 4, 1776, what is now known as probate jurisdiction was exercised in England by the ecclesiastical Courts of Ordinary. See PRACTICE UNDER FLORIDA PROBATE CODE § 3.2.A (Fla. Bar 11th ed. 2022). In Lavey v. Doig, 25 Fla. 611, 6 So. 259, 261 (1889), the Florida Supreme Court noted that “[t]he right to a jury trial did not exist in the ecclesiastical courts, nor, independent of statute, has it existed in the probate courts of this country, or other courts exercising the usual powers of courts of ordinary. The same is true of the chancery court.” See also In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965); In re Estate of Howard. The Florida Probate Code, which became effective January 1, 1976, made no change regarding the availability of jury trials. Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981). “Statutes governing probate matters and which do not provide a jury trial violate no rights secured or continued by the state or federal constitutions and are in full accord with the spirit of those instruments.” DuVal, 174 So. 2d at 588. See also Lavey. One of the few cases to consider this issue in depth is In re Estate of Howard. The District Court of Appeal, First District, considered whether the probate court erred in striking a party’s demand for a jury trial in a probate adversary proceeding arising out of a petition that sought to disqualify a murdering spouse under the slayer statutes. The appellate court affirmed the probate court’s decision and ruled that a cause of action under the slayer statute did not invoke the right to a jury trial. The appellate court went so far as to say that the mere fact that the probate code may encapsulate an issue which historically carries a right to jury trial (i.e., murder), it does not change the probate code’s equitable nature: Contrary to appellant’s assertions, however, the principle embraced by [F.S.] 732.802 is a principle of equity. See Ashwood v. Patterson, 49 So. 2d 848 (Fla. 1951) (“fundamental equitable principle that ‘no one shall be permitted to … take advantage of his own wrong … or profit by his own crime’ ”); Carter v. Carter, 88 So. 2d 153 (Fla. 1956); Prudential Insurance Company of America, Inc. v. Baitinger, 452 So. 2d 140 (Fla. 3d DCA 1984). Because the statute essentially codifies an equitable principle, it creates no jury-demandable issue. See Cerrito v. Kovitch, 457 So. 2d 1021 (Fla. 1984); King Mountain Condominium Association, Inc. v. Gundlach, 425 So. 2d 569 (Fla. 4th DCA 1982).

In re Estate of Howard, 542 So. 2d at 398. « Ch. 10 », « § 10.3 », « B », « 5 » 1 Litigation Under FL Probate Code § 10.3.B.5 (2022)

5. Particular Probate-Related Legal Causes Of Action—Right To Trial By Jury A right to trial by jury exists for the following probate-related causes of action: Action to determine the amount or validity of a claim against a decedent’s estate. Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955); Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981). See also F.S. 733.705(10). Action by former ward for money damages against former guardian for negligent discharge of fiduciary duties. Beck v. Barnett National Bank of Jacksonville, 117 So. 2d 45 (Fla. 1st DCA 1960). Action by personal representative of ward to surcharge ward’s former guardian for damages for breaches of fiduciary duties. In re Guardianship of Medley, 587 So. 2d 619 (Fla. 2d DCA 1991). Proceeding to determine dispute regarding attorneys’ fees or compensation when the amount is the subject of an express contract or agreement and is not based on quantum meruit. In re Estate of Sacks, 300 So. 2d 706 (Fla. 3d DCA 1974). Proceedings relating to wrongful death are “tried in the same manner and be governed by the same general principles of practice as it would have been had the injured person not died and was suing to recover damages for the wrongful act.” Gaboury v. Flagler Hospital, Inc., 316 So. 2d 642, 644 (Fla. 4th DCA 1975). Actions on a promissory note are actions at law and “carry with them the right to a jury trial upon proper demand.” Kinney v. Countrywide Home Loans Servicing, L.P., 165 So. 3d 691, 693 (Fla. 4th DCA 2015); Hobbs v. Florida First National Bank of Jacksonville, 480 So. 2d 153 (Fla. 1st DCA 1985). Actions under F.S. 772.11, Florida’s civil theft statute, including actions

for exploitation of an elderly person pursuant to F.S. 825.103, carry the right to a jury because civil theft was tried by jury at common law. Gokalp v. Unsal, 284 So. 3d 1097 (Fla. 4th DCA 2019); Standafer v. Schaller, 726 So. 2d 352 (Fla. 2d DCA 1999). Proceedings for tortious interference with an expectancy, which seek damages under a tort theory. Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018). « Ch. 10 », « § 10.3 », « B », « 6 • 1 Litigation Under FL Probate Code § 10.3.B.6 (2022)

6. Particular Probate-Related Equitable Proceedings—No Right To Trial By Jury No right to trial by jury exists for the following probate-related causes of action: Proceeding to contest a will. Lavey v. Doig, 25 Fla. 611, 6 So. 259 (1889); In re Estate of Ciccorella, 407 So. 2d 1044 (Fla. 3d DCA 1981); Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981). Interestingly, a right to trial by jury in all will contests existed in Florida by statute between 1853 and 1868. Lavey. Proceeding to determine reasonable fees or compensation by quantum meruit when the amount is not the subject of an express contract or agreement. In re Estate of Sacks, 300 So. 2d 706 (Fla. 3d DCA 1974); In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965). An attorney’s action for charging lien. Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88 (Fla. 3d DCA 1987). “However, if an attorney has not claimed a charging lien or there are no proceeds to which a lien can attach, [then] he nonetheless retains the right to sue the client on the contract in an action at law in which the client is entitled to a jury trial.” Id. at 93 n.7. Adversary proceeding to determine beneficiaries and seeking to disqualify a murdering spouse. In re Estate of Howard, 542 So. 2d 395 (Fla. 1st DCA 1989). Other adversary proceedings in probate (e.g., remove a personal representative or guardian; establish a lost, destroyed, or later-

discovered will; construe a will; cancel a devise; partition property for distribution; or determine the pretermitted share of a spouse or child). In rejecting the contention that the adversary proceeding provisions contained in the Florida Probate Code make jury trials available to resolve all fact issues in all adversary proceedings, the court in Allen held that “[s]uch a drastic departure from prior law should not be based on inferences from language employed by the Code.” Id. at 136. See also § 10.3.B.5. Action seeking restitution for unjust enrichment obtained through misuse of the fiduciary relationship. King Mountain Condominium Ass’n, Inc. v. Gundlach, 425 So. 2d 569 (Fla. 4th DCA 1983). Actions for fees to a prevailing party based on either statute or contract. Cheek v. McGowan Electric Supply Co., 511 So. 2d 977 (Fla. 1987). Action for the imposition of a constructive trust. But see Chenery v. Crans, 497 So. 2d 267 (Fla. 2d DCA 1986) Proceedings to obtain a partnership accounting or on objections to an accounting. Boyce v. Hort, 666 So. 2d 972 (Fla. 5th DCA 1996). Proceedings to determine elective share, family allowance, exempt property, homestead, apportionment of taxes, or apportionment of assets. « Ch. 10 », « § 10.3 », « C • 1 Litigation Under FL Probate Code § 10.3.C (2022)

C. Liberal Construction Of Right In Beck v. Barnett National Bank of Jacksonville, 117 So. 2d 45, 50 (Fla. 1st DCA 1960), the court noted that “[a] litigant’s right to trial by jury is a valuable one which should not be denied except for necessary and compelling reasons.” Accordingly, “ ‘[t]he constitutional right to a trial by jury is not to be narrowly construed. This right is not limited strictly to those specific proceedings in which it existed before the adoption of [the] constitution, but should be extended to proceedings of like nature as they may arise.’ ” B.J.Y. v. M.A., 617 So. 2d 1061, 1062 (Fla. 1993), quoting In re Forfeiture of 1978 Chevrolet Van VIN: CGD1584167858, 493 So. 2d 433, 435 (Fla. 1986). See also O’Neal v. Florida A&M University ex rel. Board of Trustees for Florida

A&M University, 989 So. 2d 6 (Fla. 1st DCA 2008). “The right of trial by jury exists as to those issues [that] were triable before a jury at common law, regardless of the form of suit or proceeding [that] may be devised or used for their solution.” Olin’s, Inc. v. Avis Rental Car System of Florida, 131 So. 2d 20, 21 (Fla. 3d DCA 1961). However, “[w]hat is essentially an equitable cause of action cannot be transformed into a legal cause of action simply by the use of legal terminology in the complaint.” Cerrito v. Kovitch, 457 So. 2d 1021, 1023 (Fla. 1984). Florida appellate courts have cautioned against efforts to disguise equitable claims as breaches of contract or breaches of fiduciary duties by including requests for damages, explaining that such efforts do not transform equitable claims into actions at law. Boyce v. Hort, 666 So. 2d 972 (Fla. 5th DCA 1996); Dahlawi v. Ramlawi, 644 So. 2d 523 (Fla. 3d DCA 1994). When equitable and legal causes of action arise from the same set of facts, the determination of the equitable claim in a non-jury preceding does not preclude demanding trial by jury in a later preceding. Chenery v. Crans, 497 So. 2d 267 (Fla. 2d DCA 1986); Hobbs v. Florida First National Bank of Jacksonville, 480 So. 2d 153 (Fla. 1st DCA 1985).

« Ch. 10 », « § 10.4 » 1 Litigation Under FL Probate Code § 10.4 (2022)

§ 10.4. ADVISORY JURIES IN EQUITABLE PROCEEDINGS « Ch. 10 », « § 10.4 », • A » 1 Litigation Under FL Probate Code § 10.4.A (2022)

A. In General As previously noted, there is no provision for trial by jury in chancery or in equitable actions. In “special cases,” however, a court can submit issues in equitable actions to a jury for the court’s own guidance. Hughes v. Hannah, 39 Fla. 365, 22 So. 613, 616 (1897); Wiggins v. Williams, 36 Fla. 637, 18 So. 859, 864 (1896). In all equitable actions the court may submit appropriate factual issues to a jury. Berg v. New York Life Insurance Co., 88 So. 2d 915 (Fla. 1956); Cooley v. Cody, 377 So. 2d 796 (Fla. 1st DCA 1979). Submitting questions of fact to a jury in cases involving equitable relief is within the trial judge’s discretion. Vista Centre Venture v. Unlike Anything, Inc., 603 So. 2d 576 (Fla. 5th DCA 1992); Gelco Corp. v. Campanile Motor Service, Inc., 677 So. 2d 952 (Fla. 3d DCA 1996). “[T]he submission of a factual question in an equity case to a jury is one in the discretion of the chancellor.” Berg, 88 So. 2d at 917. See Allstate Insurance Co. v. Vanater, 297 So. 2d 293 (Fla. 1974). Although “the court has the discretion to submit appropriate factual issues to a jury” in equitable actions, it may not place the resolution of the entire matter in the hands of the jury. Cooley, 377 So. 2d at 797. Also, insofar as jury verdicts in equitable actions are merely advisory, the trial judge is free to reject them. In re Estate of Fanelli, 336 So. 2d 631 (Fla. 2d DCA 1976). « Ch. 10 », « § 10.4 », « B » 1 Litigation Under FL Probate Code § 10.4.B (2022)

B. In Probate The court in In re Estate of Fanelli, 336 So. 2d 631, 632 (Fla. 2d DCA 1976), held that “[w]hile a party was not entitled as a matter of right to a jury

trial in probate proceedings under the former probate laws, there was nothing to prevent a probate judge from using an advisory jury to aid [the court] in resolving the issues.” Accordingly, Florida appellate courts have upheld the probate judge’s submission of factual issues to advisory juries in proceedings to determine a widow’s dower rights, In re Estate of Wartels, 338 So. 2d 48 (Fla. 3d DCA 1976), aff’d 357 So. 2d 708, and to revoke the probate of a will, In re Estate of Fanelli. « Ch. 10 », « § 10.4 », « C • 1 Litigation Under FL Probate Code § 10.4.C (2022)

C. Procedure for Empaneling An Advisory Jury The court, either on motion of a party or sua sponte, can empanel an advisory jury. The decision to empanel an advisory jury is within the discretion of the court. Accordingly, the court’s decision to sua sponte empanel an advisory jury or the court’s ruling on a party’s motion to empanel an advisory jury can only be reversed on appeal if the complaining party demonstrates the court committed an abuse of discretion. If a party desires the court to empanel an advisory jury, the party should file a motion in advance of trial that sets forth in detail how an advisory jury could assist the judge in resolving the factual issues that will be presented during trial. Practically, the motion needs to be fully briefed for the court with sufficient time remaining prior to trial to allow the probate court, which is unaccustomed to conducting jury trials, to rule on the motion, call a pool of potential jurors, and reserve appropriate facilities for trial, as some (most) probate judges do not have a courtroom equipped to hold a jury trial.

« Ch. 10 », « § 10.5 » 1 Litigation Under FL Probate Code § 10.5 (2022)

§ 10.5. REVIEW OF ORDER DENYING OR STRIKING DEMAND FOR JURY TRIAL An order denying or striking a demand for jury trial may be reviewed by direct appeal from a final order under Fla. R. App. P. 9.110. In addition, numerous cases have held that the right to jury trial may be enforced by petition for writ of mandamus prior to final hearing. Floyd v. Bentley, 496 So. 2d 862 (Fla. 2d DCA 1986). See also State, Dept. of Natural Resources v. Estech, Inc., 515 So. 2d 758 (Fla. 2d DCA 1987). However, the Florida Supreme Court has held that review by certiorari is inappropriate because a trial court’s order denying or striking a demand for jury trial does not cause an irreparable injury that cannot be remedied on direct appeal. Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998). But see Estech, Inc.

« Ch. 10 », « § 10.6 • 1 Litigation Under FL Probate Code § 10.6 (2022)

§ 10.6. REMOTE JURY TRIALS On March 9, 2020, Florida Governor Ron DeSantis issued Executive Order 20-52, which declared a state of emergency existed in Florida due to the Coronavirus Disease 2019 (COVID-19). Shortly thereafter, on March 13, 2020, Florida Supreme Court Chief Justice Charles T. Canady suspended all grand jury proceedings, jury selection proceedings, and civil and criminal trials beginning on March 16, 2020. See Fla. Admin. Order No. AOSC20-13 (March 13, 2020). As one can imagine the suspension of jury trials created considerable backlog in the Florida court system. In an attempt to reduce this burden, on June 3, 2020, five Florida trial-court circuits were selected to test remote technology to determine whether a remote jury trial proceeding was a viable alternative to an in-person proceeding. See Press Release, Supreme Court of Florida, Five Florida trial-court circuits selected for remote civil jury trial pilot programs (June 3, 2020). “The move toward remote ‘virtual’ hearings is a major historical shift in state court operations, which have relied heavily on in-person proceedings in the 175 years since Florida became a state in 1845.” See Press Release, Supreme Court of Florida. On February 17, 2021, Justice Canady issued a subsequent administrative order that provided “a judicial circuit may remotely conduct … [c]ivil jury trials if all parties consent to participating in the remote trial.” See Fla. Admin. Order No. AOSC20-23, A9, § III.B(1)a (Feb. 17, 2021). Footnotes — Chapter 10: *

J.D., cum laude, 2010, Stetson University. Mr. Curley is a member of The Florida Bar. He is a member of the Real Property, Probate and Trust Law Section and of the Florida Bar’s Probate Rules Committee. Mr. Curley is a Fellow with the American College of Trust and Estate Counsel. He is a partner with Gunster, Yoakley & Stewart, P.A., in West Palm Beach. **

J.D., magna cum laude, 2011, and LL.M. in Taxation, 2013, University of Florida. Mrs. Stoops is a member of The Florida Bar. She serves on the Executive Council of the Real Property, Probate and Trust Law Section of The Florida Bar. Mrs. Stoops is a partner with Gunster, Yoakley & Stewart, P.A., in West Palm Beach.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 11 » 1 Litigation Under FL Probate Code Ch. 11 (2022)

Chapter 11 COMPENSATION DISPUTES JEFFREY S. GOETHE* ANDRE R. PERRON** Contents § 11.1. INTRODUCTION § 11.2. THE LAW A. Time As Factor In Determining Reasonable Fee B. Understanding Operation Of Statutory Formula C. Attorneys’ Fees—Basis For Entitlement 1. Attorney Representing Personal Representative a. Attorney For The Serving Personal Representative b. Paralegal Compensation c. Attorney For Removed Or Resigning Personal Representative Or Unsuccessful Will Offeror 2. Attorney Representing Third Party a. Actions On Behalf Of Or Against The Estate i. In General ii. “Benefit To The Estate” Under F.S. 733.106(3) b. Surcharge Action Under F.S. 733.609 c. Disqualification Under F.S. 733.3101 3. Fees Under F.S. 57.105, 768.79, And 772.11 a. Fees Under F.S. 57.105 b. Fees Under F.S. 768.79 c. Fees Under F.S. 772.11 D. Attorneys’ Fees Charged Against Third Party E. Personal Representatives’ Fees—Basis For Entitlement

F. Fees For Multiple Personal Representatives G. Fees For Multiple Attorneys H. Fees When Attorney Is Also Personal Representative I. When And How Fees Are Paid J. Priority And Nature Of Fees K. Calculation Of “Reasonable Fee” 1. Fees Of Attorneys a. Historical Perspective Of Attorneys’ Fees For Probate Administration b. Current Law Of Attorneys’ Fees For Probate Administration c. Attorney As Expert Or Fact Witness d. Retroactive Effect Of F.S. 733.6171 e. Fees For Probate Litigation f. Pleading Requirements 2. Fees Of Personal Representatives a. Historical Perspective Of Personal Representatives’ Commissions b. Current Law Of Personal Representatives’ Commissions L. Need For Time Records 1. Introduction 2. Application M. Fee Contracts N. Fees To Obtain Fees O. Expert Witness Fee For Attorney/Witness P. Interest On Attorneys’ Fees Awarded But Unpaid Q. Interim Or Partial Fees R. Fees For Appellate Services 1. Introduction 2. Application § 11.3. PROCEDURE A. Parties B. How Proceeding Is Commenced 1. By Petition

2. By Objection To Petition For Discharge Or Final Accounting C. Nonadversary Versus Adversary Proceeding D. Pleading Requirements E. Discovery F. Burden Of Proof G. Getting To Final Hearing H. Settlement I. Final Hearing J. Final Order K. Appeal § 11.4. COLLECTION PROCEDURES AND CONSIDERATIONS A. Ethical Considerations B. Attorney’s Retaining Lien C. Charging Lien § 11.5. TAX CONSIDERATIONS § 11.6. IN RE ESTATE OF PLATT: AN ANALYSIS § 11.7. CONCLUSION « Ch. 11 », • § 11.1 » 1 Litigation Under FL Probate Code § 11.1 (2022)

§ 11.1. INTRODUCTION This chapter discusses disputes arising from objections to compensation of a personal representative and of the attorney and other agents of the personal representative. It tangentially covers the underlying law of compensation and the procedure by which fees are paid and fee objections are handled but is not intended as a primary source on these subjects. (The underlying law of compensation, as opposed to the law of fee disputes, is discussed at length in PRACTICE UNDER FLORIDA PROBATE CODE Chapter 15 (Fla. Bar 11th ed. 2022)). This chapter also discusses how compensation may be secured or enforced and the tax consequences to the estate of such compensation. See also §§ 3.2.C.1–3.2.C.4, 3.2.G.3, 7.7, 9.3.I, and 11.2.M of this manual, which discuss fee issues in connection with particular types of

actions. Fees incurred in appeals and appellate review of fee awards are discussed below and in §§ 14.21–14.26 of this manual. Except to the extent fee contracts are discussed (see § 11.2.M), discussion in this chapter generally assumes that there is no agreement regarding compensation or no unanimous consent by the persons bearing the impact of the fees and that there is an active or prospective objection to the compensation paid or proposed.

« Ch. 11 », « § 11.2 » 1 Litigation Under FL Probate Code § 11.2 (2022)

§ 11.2. THE LAW « Ch. 11 », « § 11.2 », • A » 1 Litigation Under FL Probate Code § 11.2.A (2022)

A. Time As Factor In Determining Reasonable Fee The history of the issue of determining reasonable attorneys’ fees is a patchwork. Before the effective date of the Florida Probate Code on January 1, 1976, compensation for attorneys performing legal services in probate administration was generally based on a percentage of the value of the estate assets or was based on the commissions charged by executors (personal representatives), which themselves were based on a percentage of the value of the estate assets. This was based on custom and common law. See In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958). In 1976, the first statute that dealt with the matter of probate attorneys’ fees became effective. F.S. 733.617 (1976). The language of this statute included the language found in the code of professional responsibility related to determination of a reasonable fee beginning with “the time and labor required.” See Florida Rules of Professional Conduct, Rules Reg. Fla. Bar 41.5(b)(1)(A); ABA Model Rule of Professional Conduct 1.5(a)(1); ABA Model Code of Professional Responsibility DR 2-106(B). This statute determined the method to set a reasonable fee for both the attorney and the personal representative. The statute provided that “one or more” of the listed factors could be used to determine a reasonable fee, so lawyers nearly universally ignored the “time” factor and continued to charge for legal services based on a percentage of the value of the assets of the estate, focusing instead on the statutory factor, “[t]he amount involved and the results obtained.” Ultimately, the Florida Supreme Court interpreted this statute to require that legal fees for probate administration be based solely on an hourly charge and to proscribe fees based solely on a percentage of the value of the estate.

In re Estate of Platt, 586 So. 2d 328 (Fla. 1991). See § 11.6 for an extensive discussion of Platt. In 1993, in direct response to the Platt decision, the Florida Probate Code was amended to add a new statute, F.S. 733.6171, which applied only to attorneys’ fees. That statute included a percentage-based element (combined with a time-based element), thereby partially overruling Platt. The statute was amended again in 1995 and that amendment deleted all reference to “time” as a factor to be considered. The 1995 Amendment fully overruled Platt in that regard and provided a totally percentage-based formula to determine attorneys’ compensation that is presumed to be reasonable, but one that can be tested and adjusted depending on consideration of eight specific factors, as well as “[a]ny other relevant factors,” as set forth in the statute. F.S. 733.6171(5). The “time and labor required” are not mentioned among the statutory factors. One purpose of the 1995 statutory change was to emphasize that the judicial trend toward obsequious allegiance to time as the cardinal factor in determination of a reasonable fee for probate administration was misdirected or outmoded in the probate discipline. The present statute contemplates that value billing is a more appropriate approach to determine reasonable compensation for probate legal services than is “time-clock” compensation. The intent of the statute is to measure the value of the services of the attorney to the probate administration. In that process, it rewards efficient delivery of legal services and fully eliminates “the notorious ‘billable hours’ syndrome, with its multiple evils of exaggeration, duplication, and invention.” Miller v. First American Bank & Trust, 607 So. 2d 483, 485 (Fla. 4th DCA 1992). However, it is the rare probate judge trying a fee dispute who does not ask for testimony about reasonable time expended in the administration. This most often occurs when attorneys’ fees are in dispute, and rarely occurs when personal representatives’ fees are in dispute, although there is probably no logical basis for a distinction between these types of fees. In the authors’ opinion, F.S. 733.6171(5)(i), which requires consideration of “[a]ny other relevant factors,” correctly permits consideration of time as a relevant factor. The factors required by the statute, each of which must be considered in the determination, are ranked loosely in order of importance and this factor is the last. It is there to provide ultimate flexibility in the process of determining a

reasonable fee, because probate administration is non-uniform. It is not an excuse to ignore the importance of the other required factors in the statute and, in such an instance, decide these disputes on the now-overruled lodestar approach. The 2021 Amendment to F.S. 733.6171 adds a disclosure requirement for attorneys who intend to rely upon the percentage-based method of compensation. As discussed further in § 11.2.B, an attorney who intends to charge a percentage-based fee will still be required to provide disclosures about the method of compensation at the beginning of the representation, and then information about the time expended or details about the services provided at the conclusion of the presentation. F.S. 733.6171(2)(b)5. If the attorney makes the required disclosures initially, the percentage-based fee will be presumed to be reasonable. Fees charged by attorneys in some types of matters, either by statute, rule, or practice, generally depend more on the amount involved than the time expended. Some examples are bond validation opinions, attorney’s title opinions, plaintiff’s negligence litigation, and probate administration. There is no suggestion here that attorneys and clients may not agree to compensation and payment based solely on an hourly fee or on any other measurement they select; however, absent such an agreement, the applicable statute does not permit the court to impose such a requirement on the attorney. This topic is discussed further at § 11.2.L. « Ch. 11 », « § 11.2 », « B » 1 Litigation Under FL Probate Code § 11.2.B (2022)

B. Understanding Operation Of Statutory Formula In any probate administration in which it is necessary for the court to determine or review the attorney’s fee to be charged, the court is required to first determine a fee that is presumptively reasonable. That presumptively reasonable starting point is determined by application of a percentage-based formula provided in F.S. 733.6171. The formula uses the nonexempt value of the inventory assets of the probate estate and the income earned during administration and applies a sliding scale percentage. The product of that calculation is a presumptively reasonable fee. The value of protected

homestead that passes to the spouse and descendants under F.S. 732.401 or that passes to heirs at law by intestacy or by devise under the will would not be included in the statutory fee base. See Snyder v. Davis, 699 So. 2d 999 (Fla. 1997), for discussion of the definition of exempt homestead. See also F.S. 731.201(33), which defines “protected homestead.” (The practitioner should note that legal services and advice relating to protected homestead are considered extraordinary services and reasonable compensation under F.S. 733.6171(4)(i) is appropriate.) Then, based on consideration of the eight specific factors, together with any other relevant factors, as set forth in the statute (see discussion on time expended in § 11.2.A), the presumptively reasonable fee previously determined may be adjusted either upward or downward as the facts of the particular probate may suggest. The statute is intended to set a fee norm and then provide a structured mechanism to be used in those instances that require deviation from the norm to determine a reasonable fee. However, if a separate written agreement regarding compensation exists between the attorney and the decedent, and the attorney who is a party to the agreement or who drafted the will is employed by the personal representative, the compensation paid shall not exceed the compensation provided in the agreement. F.S. 733.6171(6). An agreement with the decedent does not “set” the fee or bind the personal representative or the beneficiaries; it does, however, “cap” the fee. Id. However, such an agreement may be persuasive as a “relevant factor” to determine the amount of the fee if it is fair and reasonable under the circumstances at the time the fee is earned. F.S. 733.6171(5)(i). The operation of F.S. 733.6171 is discussed in detail in PRACTICE UNDER FLORIDA PROBATE CODE Chapter 15 (Fla. Bar 11th ed. 2022). Effective October 1, 2021, F.S. 733.6171 was amended to require disclosures about the attorney’s compensation. If an attorney intends to charge a fee based upon the statutory percentages, the attorney must make the following disclosures in writing: There is not a mandatory statutory attorney fee for estate administration. The attorney fee is not required to be based on the size of the estate, and the presumed reasonable fee provided in subsection (3) may not be appropriate in all estate administrations.

The fee is subject to negotiation between the personal representative and the attorney. The selection of the attorney is made at the discretion of the personal representative, who is not required to select the attorney who prepared the will. The personal representative shall be entitled to a summary of the ordinary and extraordinary services rendered for the fees agreed upon at the conclusion of the representation. The summary shall be provided by counsel and shall consist of the total hours devoted to the representation or a detailed summary of the services performed during the representation. F.S. 733.6171(2)(b)(1)–(2)(b)(5). The statute also provides that the attorney obtain the personal representative’s “timely” acknowledgment of the disclosure. F.S. 733.6171(2)(c). The existing requirements for the Petition for Discharge under Fla. Prob. R. 5.400(b)(4), include a disclosure of “the amount of compensation paid or to be paid to the personal representative’s attorney, … and the manner of determining that compensation.” Complying with the disclosure requirements will allow the presumption of reasonableness to stand, and for the payment of fees without court order, but will not eliminate disclosure to beneficiaries or the right of interested persons to object to the fees. « Ch. 11 », « § 11.2 », « C » 1 Litigation Under FL Probate Code § 11.2.C (2022)

C. Attorneys’ Fees—Basis For Entitlement « Ch. 11 », « § 11.2 », « C », • 1 » 1 Litigation Under FL Probate Code § 11.2.C.1 (2022)

1. Attorney Representing Personal Representative « Ch. 11 », « § 11.2 », « C », • 1 », • a » 1 Litigation Under FL Probate Code § 11.2.C.1.a (2022)

a. Attorney For The Serving Personal Representative “Except as provided in paragraph (2)(d), attorneys for personal representatives are entitled to reasonable compensation payable from the estate assets without court order.” F.S. 733.6171(1). In USSA Life Insurance

Co. v. Doss, 2016 WL 4443194 (M.D. Fla. 2016), the federal court emphasized that to have standing for attorneys’ fees under F.S. 733.6171(1) the reasonable compensation that may be awarded under the statute must actually be “payable from the estate assets.” Id. See also Goldworn v. Estate of Day, 452 So. 2d 659, 660 (Fla. 3d DCA 1984) (“It is axiomatic that an award of attorney’s fees from the estate funds presupposes the performance of services which were necessary or beneficial to the estate.”). In USSA Life Insurance Co., the court rejected the movant’s request for attorneys’ fees under F.S. 733.6171(1) when the movant sought to recover fees from the proceeds of a life insurance policy, which were not part of the estate assets. The attorney for the serving personal representative is entitled to the award of reasonable compensation from the estate, as contrasted to being entitled to compensation only from the client, the personal representative. To the extent that services are furnished that benefit the client but not the estate, the client/personal representative may be personally obligated to pay for those services. Compensation payable from the estate includes a reasonable attorney’s fee, reimbursement for allowable costs, and compensation for services of employees (including paralegals, see § 11.2.C.1.b) of the attorney. Baumann v. Estate of Blum, 898 So. 2d 1106 (Fla. 2d DCA 2005). The claim for the attorneys’ fees or cost reimbursement under F.S. 733.6171 is not required to be made through the client (the personal representative). The attorney has direct standing. This statute does not apply to a claim for reimbursement of attorneys’ fees by a person offering a will under F.S. 733.106(2) (see § 11.2.C.1.c). Although a claim for attorneys’ fees may be made directly by an attorney under F.S. 733.106(3), the attorney must show, in addition to the reasonable value of services furnished, that those services benefited the estate. This additional burden is not required under F.S. 733.6171, and it is difficult to envision a factual situation in which the personal representative’s attorney for the estate administration would petition for fees under F.S. 733.106(3) rather than F.S. 733.6171. F.S. 733.6171(5)(d) lists “[t]he benefits or detriments resulting to the estate or interested persons from the attorney’s services” as a factor for the upward or downward adjustment of the presumed, percentagebased fee. The attorney claiming compensation is not required to be a member of

The Florida Bar. In Bock v. Diener, 571 So. 2d 30 (Fla. 3d DCA 1990), a New Jersey resident and attorney who served as joint personal representative of a Florida estate also prepared the Form 706 estate tax return and handled the sale of New Jersey property. He was awarded a fee from the Florida probate administration. « Ch. 11 », « § 11.2 », « C », • 1 », « b » 1 Litigation Under FL Probate Code § 11.2.C.1.b (2022)

b. Paralegal Compensation Because the method to set or determine a reasonable fee for probate administration has moved away from a mandatory time-based determination, the issue of the time expended by a paralegal is not as important in computing a fee amount for ordinary services as it was previously. For instance, “time expended” is no longer mentioned as one of the specific factors to be considered in setting a fee. F.S. 733.6171. See § 11.2.A. If the attorney’s compensation is based in whole or in part on time expended (as it might be, for example, in the determination of a reasonable fee for extraordinary services, see F.S. 733.6171(4)), the time expended by nonclerical employees of the attorney, such as paralegals, is allowed to be calculated in the time-based compensation formula by applying rates applicable to the paralegal. Attorney rates may not be applied to services rendered by nonattorneys. With the changes effective October 1, 2021, an attorney who intends to charge a percentage-based fee must still provide a summary of “the total hours devoted to the representation or a detailed summary of the services performed during the representation.” F.S. 733.6171(2)(b)5. The summary should include the time expended by, or the services rendered by, paralegals. In determining a reasonable fee in an eminent domain case, which included time for paralegals and attorneys, the court in Dept. of Transportation, State of Florida v. Robbins & Robbins, Inc., 700 So. 2d 782, 785 (Fla. 5th DCA 1997), held: [T]his court has never held that paralegal time can be “blended” with attorney time to set a reasonable attorney rate. Further, it is not logical to use a paralegal to help on a client’s case because it is cheaper for the client, then seek to recoup the paralegal time at an attorney rate from the condemning authority. Coupling that with the admission that the

paralegal would not reap the benefit of this windfall shows that this “blending” is simply another method to increase the attorneys’ fees in the case. Some cases, based on F.S. 57.104 and on the law before the change in F.S. 733.617(1) in 1987 and 1988, questioned whether paralegal time could be allowed as a separate item in the attorney’s compensation. However, the Florida Supreme Court, in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), commented on the testimony of the appellant’s (the prevailing party’s) expert witness, who testified that he determined a reasonable fee using an hourly formula that included direct allowance for paralegal time at $75 per hour even though the paralegal services were furnished before the effective date of the statutory amendments. The court stated: “Usually, secretarial work is included in an attorney’s hourly fee while paralegal work may be charged separately.” Id. at 336. For a complete analysis of Platt, see § 11.6. The language in F.S. 733.617(1) (1991), which included compensation “for the services of the agents or employees of the person seeking compensation,” and the language in F.S. 733.6171(3)(b) (1993), which included compensation “for persons with special education, training, or experience who are employed by and work under the supervision of the attorney,” was dropped from the statute (F.S. 733.6171) as amended in 1995. This was done as a result of a complete restructuring of the statute into a percentage-based fee formula based on a percentage of the value of the estate and was not intended to exclude compensation for services provided by paralegals. Just as the attorney’s time was dropped as a factor in determining compensation, so was the paralegal’s time. In 2007, The Florida Supreme Court in In re Amendments To The Rules Regulating The Florida Bar—Florida Registered Paralegal Program, 969 So. 2d 360 (Fla. 2007), adopted an amendment to the Rules Regulating The Florida Bar, adding Chapter 20, Florida Registered Paralegal Program. This created the status of “Florida Registered Paralegal,” which is regulated by The Florida Bar and, thereby, indirectly by the Florida Supreme Court. It became effective March 1, 2008. A Florida Registered Paralegal is a person qualified by either combined work experience and education, or certification pursuant to completion of an examination administered by either the National Federation of Paralegal

Associations or the National Association of Legal Assistants. Provisions for grandfathering in certain paralegals who do not meet these requirements were initially included for a period of three years but ended March 1, 2011; thereafter all newly registered Florida Registered Paralegals are required to meet the stated requirements. The Florida Supreme Court stated in its 2007 adoption of the Florida Registered Paralegal Program: “Nothing contained herein shall be deemed relevant in charging or awarding fees for legal services rendered by nonlawyers under the supervision of a member of The Florida Bar, such fees being based on the nature of the services rendered and not the title of the person rendering the services.” Id. at 365. This may overstate the case. If paralegal services are compensated by agreement on an hourly basis, and presumably the attorney’s agreement is also for hourly compensation, the experience, knowledge, and qualifications of the paralegal must form a part of the determination of the reasonable hourly rate, and this registration status would be a factor (along with others) to be considered in determining that rate. « Ch. 11 », « § 11.2 », « C », • 1 », « c • 1 Litigation Under FL Probate Code § 11.2.C.1.c (2022)

c. Attorney For Removed Or Resigning Personal Representative Or Unsuccessful Will Offeror F.S. 733.106(2) authorizes payment of attorneys’ fees when the personal representative has been removed because the will, whether offered for or admitted to probate, was determined to be invalid. That statute and pertinent case law are discussed in PRACTICE UNDER FLORIDA PROBATE CODE § 15.4.W (Fla. Bar 11th ed. 2022). See also F.S. 733.502–733.509. Effective January 1, 2002, provisions were added to the Florida Probate Code relating to resigning and removed personal representatives, including provisions authorizing compensation for a resigned personal representative (F.S. 733.5036(2)) and for a removed personal representative (F.S. 733.508(2)). However, those provisions do not describe how that compensation is to be determined. F.S. 733.617, the statute that describes the method to determine reasonable personal representative compensation, contemplates a full administration, at least in-so-far as the application of subsection (2) relating to an award based on a percentage of the estate assets. F.S. 733.501(3) relating to compensation of a curator provides that

“[c]urators shall be allowed reasonable compensation for their services, and the court may consider the provisions of [F.S.] 733.617.” Although in proximity, F.S. 733.5036 and 733.508 do not contain similar language. Two cases that arose near the enactment date of F.S. 733.508 discussed compensating a removed personal representative without reference to the statute. In Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004), disapproved on other grounds 70 So. 3d 572, a nonresident nephew-in-law who was not qualified to have been appointed as personal representative was removed. The court indicated that he could be compensated for quantum meruit but without the presumption of a reasonable fee in F.S. 733.617. In Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA 2004), a distant heir at law of the decedent, who was qualified to serve, petitioned for appointment as personal representative of an intestate estate and was appointed. Later, the decedent’s two adopted stepchildren, who had not been given notice of the prior appointment, offered a previously unknown will for probate that designated them as the personal representatives and beneficiaries, and they obtained the removal of the serving personal representative. The court allowed a fee to the removed personal representative, finding that the earlier appointment was voidable and not void. More recently, the court in Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014), addressed several interesting issues. In Bookman, the successor to a removed personal representative brought suit in the civil division against the removed personal representative for breach of fiduciary duty and other causes, and also against her attorney for legal malpractice. The trial court granted summary judgment to the attorney on the malpractice claim on the grounds that the successor personal representative was not in privity with the attorney for the prior removed personal representative. The District Court of Appeal, First District, noting this to be a question of first impression, reversed the summary judgment, finding that the successor personal representative had “stepped into the shoes” of the removed personal representative and, therefore, privity was not an issue. Another interesting aspect of the Bookman case is that as part of the relief requested in the malpractice civil action, the successor personal representative asked that the prior administration attorney for the personal representative be ordered to disgorge the fees paid to him. The removed

personal representative moved to dismiss on the grounds that the only judge with subject matter jurisdiction to rule on his fees was the probate judge in the still-pending probate proceeding, citing language in F.S. 733.6175 to the effect that “[c]ourt proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process.” Following established authority, the trial judge held that although the successor personal representative “may have the right to pursue a claim for disgorgement of excessive fees” allegedly charged by the removed personal representative in the malpractice action, it was “more appropriate that such claim be made in the estate proceedings, which currently remain pending.” Bookman, 136 So. 3d at 1280. The appellate court affirmed this finding, noting that because the summary judgment on the malpractice claim had been reversed and the matter would be tried before the civil division judge, “[o]n remand, the [civil division] trial court, in its discretion and for the convenience of the court and the parties, may hold a joint trial of all the claims if it is shown that a joint trial will not prejudice a party or cause inconvenience.” Id. at 1281. The civil trial judge, being a circuit judge, can exercise all the subject matter jurisdiction provided by F.S. 26.012(2)(b) and Article V of the Florida Constitution, including the jurisdiction to determine the issue of probate fee disgorgement. « Ch. 11 », « § 11.2 », « C », « 2 » 1 Litigation Under FL Probate Code § 11.2.C.2 (2022)

2. Attorney Representing Third Party « Ch. 11 », « § 11.2 », « C », « 2 », • a » 1 Litigation Under FL Probate Code § 11.2.C.2.a (2022)

a. Actions On Behalf Of Or Against The Estate « Ch. 11 », « § 11.2 », « C », « 2 », • a », • i » 1 Litigation Under FL Probate Code § 11.2.C.2.a.i (2022)

i. In General The basis for the award of fees to the attorney for a person other than the personal representative is “benefit to the estate.” F.S. 733.106(3). Fees may be awarded from the estate to a person who, although the attorney for a beneficiary, has benefited the estate by representation of the client. Johnson

v. Burleson, 61 So. 2d 170 (Fla. 1952). See § 11.2.C.2.a.ii. Typical examples of such actions are successful will contests (see §§ 3.2.C.1–3.2.C.4 of this manual), will constructions (see § 7.7 of this manual), objections to accountings, recovery of jointly held assets or predeath gifts for the estate, and removal of personal representatives (see § 9.3.I of this manual). See § 11.5 for a discussion of the tax deductibility of such thirdparty fees. Effective July 1, 2011, F.S. 733.1061 requires fees and costs to be awarded “as in chancery” for will reformation to correct a mistake in order to carry out the testator’s intent under F.S. 732.615, and for a will modification to achieve a testator’s tax objective under F.S. 732.616. These proceedings must comply with the Florida Probate Rules for adversary proceedings. See Fla. Prob. R. 5.025. Similar to F.S. 733.106(3), the court may direct payment from a party’s interest, if any, in the estate, but different from that statute, the court may enter a personal judgment against a party, or both. F.S. 733.1061(2). F.S. 64.081 has an ancient history (back to 1844), allowing an award of attorney’s fees and costs “to plaintiff’s or defendant’s attorneys or to each of them commensurate with their services rendered and of benefit to the partition, to be determined on equitable principles in proportion to the party’s interest.” This may result in an award of fees to both parties. Fernandez-Fox v. Reyes, 79 So. 3d 895 (Fla. 5th DCA 2012). The award of this amount is a personal liability of the person against whom the award is made but may be paid out of the proceeds of the sale, provided a sale results. This is relevant because one of the remedies that can be had in the probate proceeding is a partition. See F.S. 733.814. Indeed, as recently recognized in his specially concurring opinion, Judge Conner stated that F.S. 64.081 “applies specifically to partition actions” and “[t]he case law interpreting [F.S.] 64.081 makes clear that costs incurred by both parties in partition actions are to be paid in proportion to the party’s interest in the property, subject to adjustment based on equitable principles.” Sherman v. Sherman, 279 So. 3d 188, 194 (Fla. 4th DCA 2019). A partition for the purposes of distribution is an adversary proceeding. Rule 5.025. It is important to note, however, that protected homestead is not an asset of the estate and is therefore not subject to partition under the Florida Probate Code. F.S. 733.608.

Under some circumstances, fees may also be awarded to attorneys for third parties (and against the estate) in claim litigation against the estate based on the liability of the decedent. Mostly, these circumstances relate to instances in which fees could have been awarded against the decedent under general law if he or she had survived. In certain instances, third parties who prevail in litigation against an estate may be entitled to recover their costs or attorneys’ fees. For example, when a claim against an estate is based on civil theft by the decedent, and judgment is rendered in favor of the claimant, F.S. 772.11 allows the successful plaintiff attorneys’ fees and costs. A 30-day written demand is a prerequisite. Also, successful plaintiffs in lawsuits against estates, as in other civil litigation, are entitled to their costs under F.S. 57.041. However, F.S. 733.705(1) provides: “If any person brings an action against a personal representative within … 5 months [from the first publication of notice to creditors] on any claim to which the personal representative has not filed an objection, the plaintiff shall not receive any costs or attorneys’ fees.” In Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999), when a claimant successfully sued an estate for civil theft although the action was brought before filing a claim in the estate, even though that claim after filing was subsequently objected to, the court held that F.S. 733.705(1) precluded an award of fees to the plaintiff. Although the plaintiff prevailed on her cause of action for civil theft and several other causes of action, the court held that F.S. 733.705, providing for a five-month grace period, prevailed over F.S. 772.11, which required only a 30-day period, as it related to estates of decedents, and also prevented an award of costs under F.S. 57.041. For additional discussion regarding civil theft, see § 11.2.C.3. See also Estate of Cadden v. Schickedanz, 855 So. 2d 651 (Fla. 4th DCA 2003), in which the court again confirmed the primacy of F.S. 733.705 as precluding an award of attorneys’ fees when an action was brought before the expiration of the fivemonth waiting period. In Snyder, the plaintiff, who was a 1/7th beneficiary of the trust, also filed an action against the personal representative/trustee alleging improper exercise of the trustee’s powers. The court found that the personal representative/trustee had not acted improperly. The successful personal representative/trustee then claimed attorneys’ fees against the plaintiff as

personal representative under F.S. 733.106 and as trustee under former F.S. 737.627. The fiduciary prevailed, and the court awarded fees and costs to the personal representative/trustee and ordered them charged against the 1/7th share of the plaintiff in the trust. The opinion reflected then-existing law that fees under these sections could not exceed the party’s interest in the estate or trust and could not be assessed as a personal judgment. See Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984). However, both F.S. 733.609 and 737.627 (now 736.1004) were amended, effective for proceedings commenced after June 12, 2003, to allow the court discretion to tax costs and attorneys’ fees as a personal judgment against a party in excess of that party’s interest in the estate or trust. See § 11.2.C.2.b. In Beseau v. Bhalani, 904 So. 2d 641 (Fla. 5th DCA 2005), when the estate was the plaintiff in a wrongful death claim for the decedent’s death and the defendant served and prevailed on an offer of judgment, the court held that it could assess attorneys’ fees against the estate under the statute but could not assess fees against the personal representative personally when the personal representative had no claim in the litigation personally. In some instances, fees must be pled to be awarded, and in other instances, they need not be pled. See Stockman v. Downs, 573 So. 2d 835 (Fla. 1991); Carman v. Gilbert, 615 So. 2d 701 (Fla. 2d DCA 1993), quashed on other grounds 641 So. 2d 1323. This matter is discussed in greater depth in § 11.2.K.1.e. Finally, it is interesting that the issue of entitlement to attorneys’ fees is considered by the appellate court de novo, Davis v. Estate of Davis, 77 So. 3d 703 (Fla. 3d DCA 2011), while the amount of attorneys’ fees awarded at the trial level is considered on appeal under the abuse of discretion standard, Nunez v. Allen, 292 So. 3d 814 (Fla. 5th DCA 2019); Shelly L. Hall, M.D., P.A. v. White, 97 So. 3d 907 (Fla. 1st DCA 2012). However, the issue of entitlement may not be appealed until the amount of the fee has been determined in the trial court, even though only the issue of entitlement is appealed. Reid v. Estate of Sonder, 63 So. 3d 7 (Fla. 3d DCA 2011). « Ch. 11 », « § 11.2 », « C », « 2 », • a », « ii • 1 Litigation Under FL Probate Code § 11.2.C.2.a.ii (2022)

ii. “Benefit To The Estate” Under F.S. 733.106(3)

The term “benefit to the estate” under F.S. 733.106(3) is very broadly defined and is not limited to furnishing services that bring about enhancement in the value or increase in assets of the estate. It also includes services that are successful in effectuating the testamentary intent of the testator. Hampton v. Estate of Allen, 198 So. 3d 954 (Fla. 5th DCA 2016); In re Estate of Lewis, 442 So. 2d 290 (Fla. 4th DCA 1984). But see In re Estate of Simon, 549 So. 2d 210 (Fla. 3d DCA 1989), in which two of the beneficiaries succeeded in surcharging the personal representative when the estate incurred interest and penalties for late filing of the estate tax return and succeeded in having a joint personal representative appointed (but failed in having the personal representative removed, and also failed with regard to numerous other objections to the final accounting). The beneficiaries in Simon claimed attorneys’ fees under F.S. 733.106(3) on the theory that they benefited the estate. However, the court found that the appellants had “caused prolonged litigation and delay in administration … [and] there was no evidence in the record of a net enhancement in value or increase in assets of the estate,” despite the fact that the beneficiaries’ action had resulted in the recovery of $4,522 in the surcharge action. Simon, 549 So. 2d at 213. An example of a successful litigant who was not entitled to an award of fees involved a situation in which a personal representative brought an action against the survivor of a joint account, claiming that the account was properly an estate asset. The personal representative was unsuccessful, and the joint holder retained the account. The joint holder then unsuccessfully applied to the probate court for an order under F.S. 733.106(3), claiming that she had effectuated the intent of the decedent by her successful defense. In a split decision, the District Court of Appeal, Fourth District, held that it was necessary that there be a construction of the will upholding or determining the testamentary intent that would benefit the estate, not a declaration of the decedent’s intent regarding ownership of nonprobate assets. Samuels v. Estate of Ahern, 436 So. 2d 1096 (Fla. 4th DCA 1983). The only benefit in Samuels was to the surviving joint account owner who was the attorney’s client. On the other hand, fees were awarded under that statute to the attorneys for an electing spouse when the personal representative failed to petition the court to set aside the elective share and the attorney for the spouse was required to do so. Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988),

citing Menz v. Estate of Menz, 381 So. 2d 375 (Fla. 1st DCA 1980). It appears that when the fiduciary failed to discharge his procedural duties and the attorney for the spouse was required to do so, these efforts benefited the estate. Fees were also awarded under F.S. 733.106(3) in a case in which the daughter of the decedent successfully objected to the appointment of her two siblings as personal representatives, claiming a conflict of interest. Duncombe v. Adderly, 991 So. 2d 1013 (Fla. 4th DCA 2008). Citing Samuels, the trial court denied the petition on the basis that there was no enhancement in value or an advancement of the testator’s intent, but the appellate court reversed, stating: “We do not read Samuels that narrowly. Preventing the appointment of a personal representative named in the will is a basis for the award of attorney’s fees.” Duncombe, 991 So. 2d at 1015. Finally, one of the most litigious estates in the Florida appellate system was the estate in Tillman, which involved four separate reported opinions in addition to one per curiam affirmance and one denial of certiorari without opinion. The Tillman cases began with a contested elective share claim based on an antenuptial agreement. The facts in Tillman revealed that the husband “had freely and voluntarily abandoned the agreement by destroying it with the intent to abandon it and that [his wife] had accepted the destruction of the agreement when she deposited the torn pieces in the garbage.” Id. at 731. Later, when the husband made his will, he specifically reaffirmed the revoked antenuptial agreement. Because of the specific testamentary affirmance, the personal representative opposed the widow’s claim of elective share. The court, however, found that the agreement had been revoked and allowed the elective share. Subsequently, the successful widow’s attorneys claimed that they should be allowed fees under F.S. 733.106(3) as having benefited the estate. The trial court agreed and applied a Rowe calculation and a (contingent fee) multiplier and awarded $375 per hour. See Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). The entitlement to (not the amount of) the fee was appealed, and the district court held that the attorneys’ efforts in nullifying the antenuptial agreement, which had been reaffirmed in the will, did not benefit the estate so as to entitle the attorneys to fees under

F.S. 733.106(3). Tillman. The result might have been different if the personal representative, without grounds to object to the elective share entitlement, had, in bad faith, objected to it or if the will had not reaffirmed the agreement. Under these circumstances, fees may alternatively be allowable under F.S. 733.609. See § 11.2.C.2.b. The practitioner should note that for probate proceedings initiated on or after July 1, 2017, F.S. 732.2151 adds a new basis for attorney’s fees and costs in elective share proceedings. The legislative history summarizes this significant amendment to the procedures for allocating attorneys’ fees and costs in elective share proceedings as follows: In current law, if the court determines that an election is made or pursued in bad faith, the court may assess attorneys’ fees and costs against the surviving spouse or the surviving spouse’s estate. [F.S. 732.2151] significantly expands the scope of this provision. The [statute] removes the bad faith requirement, and … does not limit assessments of attorney’s fees and costs to instances where someone makes or pursues an election. Under [F.S. 732.2151], the court may award fees and costs in any proceeding under the elective share statutes in which there is a dispute over: The [entitlement to or] the amount of the elective share; The property interests included in the elective or its value; or The satisfaction of the elective share. Moreover, [F.S. 732.2151] specifies that when the court award costs and fees, it may do one or more of the following: Direct payment from the estate; Direct payment from a party’s interest in the elective share or the elective estate; or Enter a judgment that can be satisfied from other property of a party. If the personal representative fails to file a petition to determine the amount of the elective share … , he or she may be liable for additional costs. Specifically, if the electing spouse or any of the other persons

mentioned in the [statute] file the petition that the personal representative failed to file, he or she may be awarded the reasonable costs, including attorney’s fees, incurred in connection with the preparation and filing of the petition. The changes to the attorney fee provisions apply to all proceedings commenced after July 1, 2017. The Professional Staff of the Committee on Rules, BILL ANALYSIS AND FISCAL IMPACT STATEMENT, CS/CS/SB 724 (April 12, 2017). As can be inferred from the above discussion, the case law is not sufficiently consistent to provide any firm definition of “benefit to the estate” or to announce a rule of law regarding recovery of fees under F.S. 733.106(3). In any event, F.S. 733.106(3) is construed very broadly to endow the trial judge with wide discretion to award fees to a litigant. See In re Estate of Farris, 113 So. 2d 721 (Fla. 3d DCA 1959). « Ch. 11 », « § 11.2 », « C », « 2 », « b » 1 Litigation Under FL Probate Code § 11.2.C.2.b (2022)

b. Surcharge Action Under F.S. 733.609 Another fee statute, which does not speak specifically in terms of benefit to the estate, is F.S. 733.609. This statute provides: (1) A personal representative’s fiduciary duty is the same as the fiduciary duty of a trustee of an express trust, and a personal representative is liable to interested persons for damage or loss resulting from the breach of this duty. In all actions for breach of fiduciary duty or challenging the exercise of or failure to exercise a personal representative’s powers, the court shall award taxable costs as in chancery actions, including attorney’s fees. (2) When awarding taxable costs, including attorney’s fees, under this section, the court in its discretion may direct payment from a party’s interest, if any, in the estate or enter a judgment which may be satisfied from other property of the party, or both. Id. This statute, also treated in § 9.4.J of this manual, rejects the “American

Rule” and adopts the “English Rule” relating to the award of attorneys’ fees to successful litigants. For a discussion of the English Rule, see Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). F.S. 733.609 extends liability of the personal representative to “interested persons.” An “interested person” is “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” F.S. 731.201(23). Thus, a beneficiary, creditor, or electing surviving spouse may file a petition to surcharge the personal representative for breach of fiduciary duty connected with the exercise or nonexercise by the fiduciary of his or her power and has broad coverage in such litigation. For example, assume a fiduciary wrongfully objects to a creditor’s claim and the creditor files an independent action, as required by statute, and prevails. If the objection was “improper or in bad faith,” fees may be awarded against the personal representative. An all-too-common reprehensible practice in the past has been a “blanket objection” to all filed claims. This was most often done when a personal representative was also the residuary beneficiary. Because a personal representative is a fiduciary owing duties to creditors as well as to beneficiaries, F.S. 733.602(1), a blanket objection to all claims is an indisputable breach of that fiduciary duty, and condoning of the practice by the attorney constitutes an example of bad legal advice. Unless a valid objection exists to each claim filed, the practice is a clear example of when the court must award fees to a successful creditor under F.S. 733.609. In Landon v. Isler, 681 So. 2d 755 (Fla. 2d DCA 1996), the court declined to award fees against the personal representative who objected to a claim, although the claimant was ultimately successful, because the court found that there was some basis for the objection. It seems logical that there should be some penalty assessed against an attorney for bad legal advice, especially because the attorney also owes duties to the creditors of the estate. In re Estate of Gory, 570 So. 2d 1381 (Fla. 4th DCA 1990). F.S. 57.105(4) refers to withdrawal, after demand, of the “challenged paper, claim, defense, contention, allegation, or denial.” That subsection should apply if the court determines that the objection is a “defense” or “denial.” See § 11.2.C.3 for a discussion of F.S. 57.105. An objection, even a blanket objection, may be a prudent and proper action for a fiduciary if the purpose is merely to preserve the right of

objection and the status quo while the fiduciary is able to obtain sufficient information that could not be sooner discovered to determine the validity of the claim. If the fiduciary unilaterally grants an extension of time to the creditor to file the independent action under F.S. 733.705(5) and it is clear that the objection is not intended to be in bad faith with the purpose of prejudicing the creditor’s ability to collect payment on a valid claim, that act would not constitute a breach of the fiduciary’s duty and would not support an award of fees under F.S. 733.609. Furthermore, because the intention of the statute is both to discourage baseless litigation and to impose a punishment on an offending fiduciary, the mere fact that a claim may be small should not limit a court in awarding a reasonable legal fee (without regard to the size of the claim) to a successful claimant. In fact, objection to small claims, especially when the personal representative may be a beneficiary of the estate, is too often used as a device to deprive small creditors of their right of payment because it is assumed that such a creditor will not proceed to enforce legal rights. This practice should be discouraged by courts through an award of reasonable attorneys’ fees to the creditor. See State Farm Fire & Casualty Co. v. Palma, 555 So. 2d 836 (Fla. 1990). Another example of an alleged breach of fiduciary duty could be a bad faith objection to entitlement to an elective share in the absence of a nuptial agreement. In either instance, presumably, the beneficiaries would then wish to surcharge the fiduciary for any fees charged against the estate. F.S. 733.609 is derived from Uniform Probate Code § 3-712. However, the UPC provision includes only the first sentence in subsection (1) and only allows attorneys’ fees against a personal representative. The Florida Legislature, in adopting F.S. 733.609, provided for the award of fees to either party in such actions. The few reported decisions have not assessed fees against unsuccessful beneficiary litigants, but instead have compensated the personal representative out of the estate. Valleskey v. Flagship National Bank of Miami, 508 So. 2d 541 (Fla. 3d DCA 1987); Anderson v. Anderson, 468 So. 2d 528 (Fla. 3d DCA 1985). But see Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999) (statute providing for recovery of attorneys’ fees by trustee for action challenging proper exercise of trustee’s powers was valid basis for awarding attorneys’ fees to decedent’s nephew, as trustee of decedent’s

revocable trust and personal representative of decedent’s estate, when decedent’s step-daughter, who unsuccessfully challenged trustee’s exercise of power, was one-seventh beneficiary of pour-over trust funded by decedent’s estate). Under F.S. 733.609(2), the burden of fees can be allocated among shares of the estate or awarded directly against litigating parties, even in excess of their shares of the estate. See Anderson v. McDonough, 189 So. 3d 266, 267 (Fla. 2d DCA 2016) (F.S. 733.609 “authorizes an award of fees to be paid from the estate and even from a specific portion of the estate. But it does not authorize the imposition of a fee award against a person beyond what may be paid from his or her share of the estate.”). In In re Estate of Simon, 549 So. 2d 210 (Fla. 3d DCA 1989), when multiple actions were brought against the personal representative under F.S. 733.609, the trial court was required to determine fees to be awarded against the personal representative only on those actions that were successful. F.S. 733.609 has been underutilized; the practitioner may expect to see much greater use of it in the future, especially with the increased interest in probate litigation and particularly surcharge. In Nalls v. Millender, 721 So. 2d 426 (Fla. 4th DCA 1998), the court examined the companion statute that applies to trust litigation, F.S. 737.627 (now 736.1004). When one of the trust beneficiaries sued the trustee alleging dereliction of duty and the beneficiary did not prevail in most of the allegations but was successful in one of them and obtained a judgment against the trustee for $2,199, it was not an abuse of its discretion for the court to decline to award the beneficiary any of the $8,650 in attorneys’ fees or $1,416.81 in costs claimed. « Ch. 11 », « § 11.2 », « C », « 2 », « c • 1 Litigation Under FL Probate Code § 11.2.C.2.c (2022)

c. Disqualification Under F.S. 733.3101 A personal representative who in not qualified to serve based on the requirements in F.S. 733.302–733.305 has a duty to resign. F.S. 733.3101. If the personal representative was initially qualified, but later becomes unqualified, the personal representative must give notice to interested persons that they may file a petition for removal within 30 days of service of the

notice. F.S. 733.3101(2). See Fla. Prob. R. 5.310. The standard for “qualified” is based on the requirements in F.S. 733.302–733.305. Failure to give notice or resign, as required, subjects the personal representative to attorneys’ fees and costs resulting from removal proceedings. F.S. 733.3101(3). The statute applies to a personal representative who did not know, but should have known, that he or she was not qualified to serve. Id. « Ch. 11 », « § 11.2 », « C », « 3 • 1 Litigation Under FL Probate Code § 11.2.C.3 (2022)

3. Fees Under F.S. 57.105, 768.79, And 772.11 « Ch. 11 », « § 11.2 », « C », « 3 •, • a » 1 Litigation Under FL Probate Code § 11.2.C.3.a (2022)

a. Fees Under F.S. 57.105 F.S. 57.105 offers some interesting (or, perhaps, frightening) opportunities to assess an attorney’s fee. Under that statute, a fee can be assessed as a sanction for bad faith or “frivolous” litigation. F.S. 57.105 provides, in relevant part: (1) Upon the court’s initiative or motion of any party, the court shall award a reasonable attorney’s fee, including prejudgment interest, to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim or defense at any time during a civil proceeding or action in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial: (a) Was not supported by the material facts necessary to establish the claim or defense; or (b) Would not be supported by the application of then-existing law to those material facts. However, in order for F.S. 57.105 to apply, it must be properly invoked. See Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016). The statute has passed constitutional review, see Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla. 1982), disapproved on other grounds 472 So. 2d 1145, and is contrary to the “American Rule,” see §

11.2.C.2.b. This remedy does not extend to every case in which a party prevails in a motion for summary judgment, in a motion to dismiss for failure to state a cause of action, in a motion for judgment on the pleadings, at an evidentiary hearing, or at trial. Merely losing is not sufficient to invoke the operation of the statute. Id. Voluntary dismissal does not insulate a party from a claim under the statute; however, voluntary dismissal itself will not support a claim under the statute, because it is the underlying claim that must be examined. Xerox Corp. v. Sharifi, 502 So. 2d 1003 (Fla. 5th DCA 1987). The practitioner should note, however, that the effect of a voluntary dismissal under Fla. R. Civ. P. 1.420(a)(1) is jurisdictional; voluntary dismissal terminates the litigation and instantaneously divests the court of its jurisdiction. Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013). See Estate of Williams v. Jursinski, 160 So. 3d 500 (Fla. 2d DCA 2015) (estate’s notice of voluntary dismissal terminated circuit court’s jurisdiction over lawyer). In analyzing a post-dismissal F.S. 57.105 sanction award, the Florida Supreme Court in Pino looked to Fed. R. Civ. P. 11, finding it to be nearly identical to F.S. 57.105. Specifically, Rule 11 requires that a motion for sanctions be submitted before the dismissal of the case for a court to have jurisdiction. The rule allows the party to withdraw the offending pleading. The Florida Supreme Court in Pino interpreted F.S. 57.105 similarly, requiring a F.S. 57.105 motion to be filed before a plaintiff’s dismissal for the trial court to have continuing jurisdiction to hear the motion. Similarly, Rule 1.525 requires a party seeking a judgment taxing costs, attorneys’ fees, or both to serve a motion no later than 30 days after filing of the judgment. However, Fla. Prob. R. 5.025 provides that Rule 1.525 does not apply to probate proceedings. Nevertheless, Pino would arguably apply to a request for F.S. 57.105 sanctions in the event an adversary proceeding within a probate proceeding is dismissed. In light of the Florida Supreme Court’s decision in Pino, the practitioner, in an abundance of caution, should file a F.S. 57.105 motion immediately after the 21-day advance service requirement to avoid forfeiture of F.S. 57.105 sanctions in the event of a dismissal by the plaintiff. See F.S. 57.105(4) (setting forth the “21-day safe harbor provision”); Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., 143 So. 3d 1182 (Fla. 4th DCA 2014). Arguably, however, the probate court’s continuing jurisdiction over the probate proceeding may make Pino inapplicable in the event of a dismissal of an adversary proceeding within the probate proceeding.

F.S. 57.105 applies not only to baseless allegations and claims, but also to baseless defenses asserted, as well as frivolous appeals. In Renfro v. Dodge, 520 So. 2d 690 (Fla. 4th DCA 1988), an action brought on an oral contract to make a will (which is precluded by F.S. 732.701), the lower court dismissed that count but allowed a quantum meruit count for services rendered to proceed to trial, where the jury rendered a verdict of $4,000. The plaintiff then appealed the dismissal of the contract counts. The defendant filed a motion with the District Court of Appeal, Fourth District, for award of F.S. 57.105 attorneys’ fees. The Fourth District explained: “The purpose of the statute is to discourage baseless claims, stonewall defenses, and sham appeals in civil litigation by placing a price tag through attorneys’ fees awards on losing parties who engage in such activities. Yet, courts must carefully balance invocation of the statute against the right of access to the courts guaranteed under the Florida Constitution. See Art. I, § 21, Fla. Const. Therefore, before an award can be made, the trial court must find that the losing party’s action or defense was frivolous. In sum, to justify an award against an unsuccessful plaintiff, the action must be so clearly devoid of merit, both on the facts and the law, as to be completely untenable.” Renfro, 520 So. 2d at 692, quoting United Companies Financial Corp. v. Hughes, 460 So. 2d 585, 587 (Fla. 2d DCA 1984). On its face, it appeared that the action on an oral contract to make a will, in direct contravention of the statute, was baseless; however, the Renfro court declined to impose such fees. This case illustrates the general reluctance of courts to award fees under F.S. 57.105. Before the amendment of F.S. 57.105, effective October 1, 1999, fees could be awarded in “any civil action in which the court finds that there was a complete absence of a justiciable issue of either law or fact raised by the complaint or defense of the losing party.” This standard was much more restrictive than the present standard, and courts often failed to award fees. In one case, the appellate court reversed a trial court, holding that “the trial court must find that there was a complete absence of justiciable issue of either law or fact raised by the defendant personal representative below. Additionally, in order to assess fees against the law firm, the trial court must also find that ‘the losing party’s attorney … [did not act] in good faith, based on the

representations of his or her client.’ ” Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716, 717 (Fla. 3d DCA 2000). Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980), was another case in which an oral contract to make (or not revoke) a will was alleged and is often cited as authority under the prior version of this statute. In defining “frivolous,” the court adopted the definition enunciated by the Florida Supreme Court in Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (1935): A frivolous appeal is not merely one that is likely to be unsuccessful. It is one that is so readily recognizable as devoid of merit on the face of the record that there is little, if any, prospect whatsoever that it can ever succeed. … It must be one so clearly untenable, or the insufficiency of which is so manifest on a bare inspection of the record and assignments of error, that its character may be determined without argument or research. [Internal citations omitted.] The Allen court went on to observe: On the basis of these definitions, in order to find a “complete absence of a justiciable issue of either law or fact” we hold that a trial court must find that the action is so clearly devoid of merit both on the facts and the law as to be completely untenable. [Emphasis added.] Id. at 175. See also Kelly v. Militana, 595 So. 2d 113 (Fla. 3d DCA 1992). This issue was addressed again by the Florida Supreme Court in Bitterman v. Bitterman, 714 So. 2d 356, 364–365 (Fla. 1998), in which the court stated: [It is] clear that fees recovered … based on [F.S.] 57.105 are not justified in this case. As this Court stated in Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501, 505 (Fla. 1982), [F.S.] 57.105 fees can only be awarded in cases where there is “a complete absence of a justiciable issue of either law or fact raised by the losing party.” Due to the uncertainty of the application of the 1993 changes [to F.S. 733.6171], it cannot be said that the claims raised … completely lacked any justiciable issue. However, the court allowed the same fees under the “inequitable conduct”

doctrine. See § 11.2.N. The 1999 Amendment to F.S. 57.105 appears to have lowered the standard to assess attorneys’ fees. Stated differently, “the post-1999 version of [F.S.] 57.105 … expanded the circumstances where fees should be awarded and the purpose is to deter meritless filings.” Davis v. Bailynson, 268 So. 3d 762, 769 (Fla. 4th DCA 2019). In Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005), there was a claim for a “reverse frivolous claim”— that is, a claim for filing a frivolous motion for an award of F.S. 57.105 fees. The court held that the modifications incorporated in the statute with the 1999 Amendment supported this reverse claim and awarded fees. The 1999 Amendment also imposed “a duty, or at least a penalty for failing to voluntarily dismiss a claim or a defense when it becomes clear that the claim or defense is untenable.” Mullins v. Kennelly, 847 So. 2d 1151, 1155 n.3 (Fla. 5th DCA 2003). The court in Wendy’s of N.E. Florida, Inc. v. Vandergriff, 865 So. 2d 520 (Fla. 1st DCA 2003), differentiated F.S. 57.105 (1999) as no longer requiring a party to show a complete absence of a justiciable issue of fact or law, but instead to allow recovery of fees for any claim or defense that is unsupported. As explained by the Fourth District: Section 57.105(1) provides for attorney’s fees as sanctions for being forced to participate in frivolous litigation. In determining whether to award such fees, “[t]he [trial] court determines if the party or its counsel knew or should have known that the claim or defense asserted was not supported by the facts or an application of existing law.” Blue Infiniti, LLC v. Wilson, 170 So. 3d 136, 140 (Fla. 4th DCA 2015). … Motions for attorney’s fees count as “claims.” See Albritton. Mark W. Rickard v. Nature’s Sleep Factory Direct, LLC, 261 So. 3d 567, 569 (Fla. 4th DCA 2018). Claims under F.S. 57.105 have rarely been successful in a fiduciary context. In Greenberg v. Van Dam, 833 So. 2d 810 (Fla. 3d DCA 2002), a successful defender of a will brought a proceeding under the statute against the unsuccessful will contestant. It had been determined that the decedent was incapacitated, and a limited guardianship was instituted shortly after the will in question was executed. In that guardianship, the committee did not indicate

that the alleged incapacitated person lacked the capacity to execute a will. Ultimately, in the will contest, a summary judgment was granted against the challenger and in favor of the will, concluding that there was testamentary capacity and an absence of undue influence. The trial court found that appellants were “unable to present a scintilla of evidence in support of [their] position.” Id. at 811. On appeal, the Third District reversed and remanded the trial court’s decision, finding that there were sufficient facts in the record to have raised the presumption of undue influence; as a matter of law, there was sufficient evidence to find that “the claim, when initially presented, was ‘supported by the material facts necessary to establish the claim.’ ” Id. at 812, quoting F.S. 57.105. See also In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). In a more recent case involving consolidated cases and fee awards in a probate matter, the court awarded sanctions based on a F.S. 57.105 motion on the ground that the appellants’ petition was time barred under F.S. 733.212(3). Shuck v. Smalls, 101 So. 3d 924 (Fla. 4th DCA 2012). The appellants failed to file the motion within three months of the appellants receiving the notice of administration. The court further indicated that F.S. 57.105 specifically allows the frivolousness of a claim to be measured either when the claim is initially presented to the court or at any time before trial. Alternatively, in McMonigle v. McMonigle, 932 So. 2d 369 (Fla. 2d DCA 2006), an estate beneficiary filed a statement of claim against an estate based on inter vivos transfers from the decedent to the now-personal representative. The beneficiary’s position was that these were loans and not gifts. The personal representative objected to the claim, and the beneficiary filed an independent action against the estate and the personal representative individually, seeking a declaratory judgment as to what interest the estate had in the alleged loan, and for a constructive trust. The beneficiary then filed a petition to remove the personal representative based on conflict of interest, alleging that the estate should bring the action to recover the “loan,” but the personal representative/debtor declined to do so. The probate court heard the petition, held that the transfers were gifts rather than loans, and dismissed the petition to remove the personal representative. The beneficiary then dismissed the civil action and the personal representative filed an F.S. 57.105 claim against the beneficiary for a baseless action. The court held that the

related petition to remove the personal representative, although unsuccessful, was not baseless and declined to assess fees against the beneficiary. A problem faced in this regard is that the personal representative, as an accused undue influencer, might not consent to the challenger’s examination of the decedent’s medical records regarding the issue of testamentary capacity. The only way a challenger may be able to access these records is to file a will contest, not knowing whether grounds for that contest exist. In Nasser v. Nasser, 975 So. 2d 531 (Fla. 4th DCA 2008), when the trial court found that the challenger had the right to file the action to investigate the matter (which was presumably subsequently dismissed), the Fourth District did not disturb this exercise of discretion in denying F.S. 57.105 fees when the lawsuit turned out to be baseless. As explained by the Fourth District in Chue v. Lehman, 21 So. 3d 890, 891–892 (Fla. 4th DCA 2009), “[o]n a motion for attorney’s fees pursuant to [F.S.] 57.105(1), the trial court must make ‘an inquiry into what the losing party knew or should have known during the fact-establishment process, both before and after suit is filed.’ … To award attorney’s fees under [F.S.] 57.105(1), the trial court must find that the action was ‘frivolous or so devoid of merit both on the facts and the law as to be completely untenable’ ” [emphasis added] [internal citations omitted]. Formerly, there was a question regarding the appropriate time to claim entitlement under F.S. 57.105. See discussions at § 11.2.K.1.f relating to pleading requirements on other claims for attorneys’ fees. The Florida Supreme Court has determined that it is not necessary to plead entitlement to attorneys’ fees under F.S. 57.105 in an answer; the matter may be subsequently raised by postjudgment motion. Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla. 1992). In Ganz, the court held: “ ‘It is only after the case has been terminated that a sensible judgment can be made by a party as to whether the adverse party raised nothing but frivolous issues in the cause.’ ” Id. at 872, quoting Autorico, Inc. v. Government Employees Insurance Co., 398 So. 2d 485, 487–488 (Fla. 3d DCA 1981). But see Suarez v. Bank of New York Mellon Trust Co., 325 So. 3d 205 (Fla. 2d DCA 2021), holding that Ganz was specific to subsection (1) of F.S. 57.105 (1991) and did not reach any conclusion as to what was then subsection (2) addressing contractual fee reciprocity to the prevailing party. Accordingly, the matter of attorneys’ fees

should be attended to promptly after the conclusion of the litigation. National Environmental Products, Ltd. v. Falls, 678 So. 2d 869 (Fla. 4th DCA 1996). As previously discussed, F.S. 57.105(4) imposes a 21-day advance service requirement before the motion to assess sanctions is filed, giving the respondent an opportunity to withdraw the “challenged paper, claim, defense, contention, allegation, or denial.” As previously stated, the notice should be given promptly to preserve one’s rights later to payment of attorneys’ fees. However, the statute provides that the motion “must be served but may not be filed with or presented to the court, unless within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation or denial is not withdraw or appropriately corrected.” Id. In Nature’s Sleep Factory Direct, LLC, the court determined that the fact that the defendants, who had filed a meritless motion for attorneys’ fees, withdrew their motion before the sanctions hearing (though after the 21-day safe harbor period) did not divest the trial court of jurisdiction to award sanctions under F.S. 57.105. Unsworn statements by the defendants’ lawyer that he could not get approval to revoke the defendants’ meritless motion for attorneys’ fees until after the statutory safe harbor period because the defendants’ sole officer was out of the country and unreachable, did not constitute evidence in the hearing on the plaintiffs’ motion for sanctions based on the meritless motion. The court stated, “the inability to reach one’s client does not excuse an attorney from the requirement to withdraw a frivolous motion under [F.S.] 57.105.” Nature’s Sleep Factory Direct, LLC, 261 So. 3d at 569. However, monetary sanctions under F.S. 57.105 may not be awarded against the losing party’s attorney “if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.” F.S. 57.105(3)(b). The practitioner should note the potential to assess one half of the fees directly against the attorney unless the attorney can show that the action was taken in good faith, based on the representations of the client. It is clear that unless this good faith defense is waived, there would be an irreconcilable conflict and the client would have to be referred to separate counsel for the proceeding.

Indeed, the Fifth District has addressed this conflict of interest: Because of this conflict of interest, it is, at a minimum, “incumbent upon the attorney facing the [F.S.] 57.105 proceeding to apprise the client of the conflict and the consequences of continued representation once the attorney has formed a reasonable belief that such representation will not be adversely affected. The attorney should document not only the disclosure, but also the client’s endorsement of the disclosure and the continuing representation.” Mullins v. Kennelly, 847 So. 2d 1151, 1156 (Fla. 5th DCA 2003), quoting Khoury v. Estate of Kashey, 533 So. 2d 908, 909 (Fla. 3d DCA 1988). See The Florida Bar v. Ward, 472 So. 2d 1159 (Fla. 1985). F.S. 57.105 has produced, and will continue to produce, an inordinate amount of litigation. See Hauser, ATTORNEY’S FEES IN FLORIDA Chapter 9 (Matthew Bender 2d ed. 2021). « Ch. 11 », « § 11.2 », « C », « 3 •, « b » 1 Litigation Under FL Probate Code § 11.2.C.3.b (2022)

b. Fees Under F.S. 768.79 An additional source of liability for attorneys’ fees is the offer of judgment statute, F.S. 768.79. The Florida Supreme Court has held that the language of F.S. 768.79, as well as Fla. R. Civ. P. 1.442, which implements the statute, “must be strictly construed because [they] are in derogation of the common law rule that each party pay its own fees.” Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003). Moreover, because an award under the statute serves as a penalty, the strict-construction rule must be applied “in favor of the one against whom the penalty is imposed,” and the statute must never be “extended by construction.” Sarkis v. Allstate Insurance Co., 863 So. 2d 210, 223 (Fla. 2003). The offer of judgment statute is rarely applicable in a fiduciary context because it is so rare that fiduciary litigation results in an action for “damages.” However, under some instances, this might be relevant. Any time an estate is a plaintiff (e.g., in all wrongful death actions), the personal representative is exposed to a potential offer of judgment, but only in his or her fiduciary capacity and not individually. Beseau v. Bhalani, 904 So. 2d 641 (Fla. 5th DCA 2005). If the action were one for surcharge against a

fiduciary by a beneficiary (see § 11.2.C.2.b), the provisions of this statute would likely apply. « Ch. 11 », « § 11.2 », « C », « 3 •, « c • 1 Litigation Under FL Probate Code § 11.2.C.3.c (2022)

c. Fees Under F.S. 772.11 In probate litigation a party may assert a claim for civil theft under F.S. 772.11, such as in a case to recover a joint account withdrawn before death or to recover tangible personal property belonging to the estate that was wrongfully taken or withheld. Effective October 1, 2014, F.S. 772.11 was reenacted to confirm its application to F.S. 825.103, which provides civil penalties for the exploitation of an elder person by an agent under a durable power of attorney, a guardian, or a noncorporate trustee. Previously, this was a less stringent standard for a fee award than the bad faith standard of F.S. 57.105. Ciaramello v. D’Ambra, 613 So. 2d 1324 (Fla. 2d DCA 1991). However, as a result of the 1999 Amendments to F.S. 57.105, the standards in the civil theft statute and F.S. 57.105 are now nearly identical. The only different element is the requirement for an act constituting criminal theft in F.S. 772.11(1). « Ch. 11 », « § 11.2 », « D » 1 Litigation Under FL Probate Code § 11.2.D (2022)

D. Attorneys’ Fees Charged Against Third Party F.S. 733.106(4) allows the judge to direct from what part of the estate fees must be paid. This matter must be presented to the circuit court because the probate court has exclusive jurisdiction over the settling of estates. Geldi v. MacCabe, 243 So. 3d 360 (Fla. 2d DCA 2018) (appellate court could not pass upon request for appellate attorneys’ fees under F.S. 733.106). The statute is used to penalize on one hand, and to make whole on the other, one or more beneficiaries when there is litigation between them or when fewer than all beneficiaries bring an unsuccessful action against the personal representative. Under the latter circumstance, it would unfairly penalize some beneficiaries if the personal representative’s attorneys’ fees were charged against the estate residuary. In that instance, this statute allows the probate court the discretion to allocate those fees against the share of the estate due the unsuccessful litigant. This differs in concept (albeit not in result) from

F.S. 733.609, which allows actual assessment (by way of personal judgment) against a litigant or apportionment among estate shares. Under F.S. 733.106(4), the fees are merely apportioned against a particular share of the estate. In one case, a testamentary trust beneficiary, who brought unsuccessful litigation, had his trust share charged with the fees incurred by the fiduciary in the successful defense of the action. Estate of Paulk v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988). In another case, the share of a beneficiary of a revocable trust was charged. Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999). See further comment in § 11.2.C.2.b. The District Court of Appeal, Fourth District, has found an implied condition in F.S. 733.106, which is that the person against whose share the fees are to be assessed must have brought or maintained the litigation in bad faith or have been guilty of other bad faith. In re Estate of Lane, 562 So. 2d 352 (Fla. 4th DCA 1990). This is an unfortunate extension of the language of the statute and, although the Third District affirmed the decision in Goodman v. Shapiro, 594 So. 2d 873 (Fla. 3d DCA 1992) on appeal, citing to Lane, the Fourth District’s opinion in Lane has not been followed in other districts, nor has it ever been cited in an opinion from another district. In 2009, the Fourth District expanded the grounds permitting fee shifting under the statute: “Engaging in essentially frivolous litigation would justify a court in assessing fees against the personal representative.” Geary v. Butzel Long, P.C., 13 So. 3d 149, 152 (Fla. 4th DCA 2009). As of the date of publication of this manual, the Fourth District remains the only district to read this additional requirement into the statute. See In re Estate of Shefner, 2 So. 3d 1076 (Fla. 3d DCA 2009), which makes no mention of any bad faith or frivolousness test to shift fees under F.S. 733.106(4). The Fourth District persistently and defensively adheres to this virtual addition to the statute. See Shuck v. Smalls, 101 So. 3d 924 (Fla. 4th DCA 2012). It is yet to be determined whether the Fourth District will also read a bad faith (or frivolous action) requirement into F.S. 733.1061, the fee allocation statute for will reformation or modification. See further comment at § 11.2.C.2.a. See also further comment in PRACTICE UNDER FLORIDA PROBATE CODE § 15.4.S (Fla. Bar 11th ed. 2022). In 2015, F.S. 733.106(4) was amended to provide that if costs and attorneys’ fees are to be paid under F.S. 733.6171(4), 736.1005, or 736.1006, the court, in its discretion, may direct from what part of the state such costs and fees must be paid. If the court directs an assessment against a person’s

part of the estate and such part is insufficient to pay the assessment in full, the court may direct payment from the person’s part of a trust, if any, if a pour-over will is involved and the matter is interrelated with the trust. F.S. 733.106(4)(a). The 2015 Legislature also amended F.S. 733.106(4), adding, in relevant part, new subsections (c) and (d), codifying the extent of the court’s discretion in assessing costs and attorneys’ fees: (c) In the exercise of its discretion, the court may consider the following factors: 1. The relative impact of an assessment on the estimated value of each person’s share of the estate. 2. The amount of costs and attorney fees to be assessed against a person’s part of the estate. 3. The extent to which a person whose part of the estate is to be assessed, individually or through counsel, actively participated in the proceeding. 4. The potential benefit or detriment to a person’s part of the estate expected from the outcome of the proceeding. 5. The relative strength or weakness of the merits of the claims, defenses, or objections, if any, asserted by a person whose part of the estate is to be assessed. 6. Whether a person whose part of the estate is to be assessed was a prevailing party with respect to one or more claims, defenses, or objections. 7. Whether a person whose part of the estate is to be assessed unjustly caused an increase in the amount of costs and attorney fees incurred by the personal representative or another interested person in connection with the proceeding. 8. Any other relevant fact, circumstance or equity. (d) The court may assess a person’s part of the estate without finding that the person engaged in bad faith, wrongdoing, or frivolousness. On the question of when entitlement to fees must be pled, see the

discussion in § 11.2.K.1.f. If the fees to be awarded against the losing party and charged against that party’s share of the estate under F.S. 733.106(4) exceed that party’s interest in the estate, no deficiency judgment for the difference may be entered. Dourado v. Chousa, 604 So. 2d 864 (Fla. 5th DCA 1992). But see Bennett v. Berges, 50 So. 3d 1154 (Fla. 4th DCA 2010) (court upheld fee order which stated that fees could come from appellants’ share of estate if appellants did not pay fees by date certain, imposing personal liability on appellants, when lower court orally pronounced in at least two hearings and one written order fees were awarded as sanction for bad faith conduct). If attorneys’ fees are assessed under F.S. 733.609, there would be no procedural limitation on either a personal judgment or deficiency judgment, which are specifically allowed by F.S. 733.609(2). « Ch. 11 », « § 11.2 », « E » 1 Litigation Under FL Probate Code § 11.2.E (2022)

E. Personal Representatives’ Fees—Basis For Entitlement Personal representatives’ fees are authorized by F.S. 733.617 (for a serving personal representative) and by F.S. 733.106(2) for a good-faith but unsuccessful will proponent (who is usually, but need not be, the nominated personal representative). However, only services performed that were necessary and that benefited the estate (or at the time undertaken were reasonably calculated to be necessary and to benefit the estate) will be compensated. The commission allowed by F.S. 733.617 would necessarily reflect the degree of efficiency, fairness, skill, and diligence with which the administration of the estate was conducted. The 1995 Amendment to F.S. 733.617, which added subsection (7), made it clear that the amount of compensation quantified in the statute can be adjusted upward or downward by the court after consideration of all the factors described in the statute. The personal representative is entitled to compensation for services rendered to the estate. Frequently, when a family member or beneficiary is designated in that capacity, it is an actual or perceived intention of the testator or testatrix that the person serve without compensation. Unless the will conditions appointment on service without compensation, or the person

renounces the entitlement, compensation is payable. If it is the intention that no compensation be paid, the will should specifically provide for the appointment of the person on the condition that he or she serve without compensation. When a family member or beneficiary is designated as a fiduciary, many contested matters (even beyond fee disputes) would be avoided if the drafting attorney provided in the document a specific direction, either authorizing compensation (and indicating how it should be computed) or prohibiting compensation. A clear direction by the testator regarding compensation of related fiduciaries could defuse numerous disagreements among siblings or beneficiaries. However, the factors listed in the statute to support additional compensation for extraordinary services should minimize the potential for disagreement. The thoughtful draftsperson will draft to avoid the potential for these future disputes. One of the extraordinary services for which the estate attorney is entitled to additional compensation is “[i]nvolvement in … any adversarial proceeding or litigation by or against the estate.” F.S. 733.6171(4) (a). It is interesting to speculate whether the attorney representing the personal representative in the administration of the estate, when there is a fee dispute, should be compensated if that person also drafted the will and could have avoided the dispute by drafting a fee clause into the document. F.S. 733.6171(5)(d) provides that factors to be considered on the issue of whether the attorney’s presumed reasonable compensation should be increased or decreased are “[t]he benefits or detriments resulting to the estate or interested persons from the attorney’s services.” Whether that provision refers to a welldrafted will that avoids problems in administration or a poorly drafted will that permits or encourages administration problems has not been addressed by case law. The discretion exercised by the court in determining a reasonable fee to be awarded will be overturned only in instances in which it is contrary to the manifest weight of the evidence. Sheffield v. Dallas, 417 So. 2d 796 (Fla. 5th DCA 1982). This requires a showing of abuse on the part of the trial court. In re Estate of Simon, 402 So. 2d 26 (Fla. 3d DCA 1981). This is also the standard of review for a fee awarded to a removed personal representative. Cooper v. Ford & Sinclair, P.A., 888 So. 2d 683 (Fla. 4th DCA 2004). The court is not compelled to make an award within the range set by the

expert testimony. In re Estate of Ryecheck, 323 So. 2d 51 (Fla. 3d DCA 1975). See also In re Estate of Harrell, 426 So. 2d 63 (Fla. 5th DCA 1983). See § 11.3.I. « Ch. 11 », « § 11.2 », « F » 1 Litigation Under FL Probate Code § 11.2.F (2022)

F. Fees For Multiple Personal Representatives F.S. 733.617(5) specifically provides for multiple fees for multiple personal representatives. The statute was upheld as constitutional in Marvin & Kay Lichtman Foundation v. Estate of Lichtman, 773 So. 2d 1232 (Fla. 3d DCA 2000). Two full commissions are allowed only if the value of the probate estate exceeds $100,000. F.S. 733.617 provides a mechanism to allocate the two commissions if there are more than two personal representatives. In that instance, it might be assumed that the personal representative to receive the one full commission would be the corporate joint personal representative (if there is one); however, that may not be the case. The cogent plea by Judge Nesbitt to limit the number of concurrent designated personal representatives, as stated in Nesbitt, One Personal Representative is Enough, 54 Fla. Bar J. 140 (Feb. 1980), should be required reading for any attorney drafting wills. A single personal representative has no other with whom to disagree; multiple personal representatives invite disagreement and dissension. See Swartz v. Russell, 481 So. 2d 64 (Fla. 3d DCA 1986). Every effort should be made to resist the widow’s or widower’s inclination to name all of the children as joint personal representatives. The client should be asked, “Do your children always agree on everything?” This well-considered policy position advanced by Judge Nesbitt may filter down to the question of whether more than one full fee should be payable from the estate. The addition in 1995 of subsection (7) to the statute, which provides the factors the court is to consider when increasing or decreasing a personal representative’s commission in appropriate circumstances, may override the seeming mandate in subsection (5) requiring payment of two full commissions in the case of two or more serving fiduciaries. Furthermore, if one or more family members are appointed to serve with a corporate fiduciary, the actual or perceived intention of the testator

regarding compensation to those family members may become an issue. See the commentary in § 11.2.E regarding the attorney’s responsibility to draft the will to include those intentions and how the attorney’s compensation might be affected. « Ch. 11 », « § 11.2 », « G » 1 Litigation Under FL Probate Code § 11.2.G (2022)

G. Fees For Multiple Attorneys The question of multiple attorneys’ fees is discussed in Brake v. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999); Centex-Rooney Construction Co. v. Martin County, 725 So. 2d 1255 (Fla. 4th DCA 1999); and In re Estate of Maxcy, 240 So. 2d 93 (Fla. 2d DCA 1970), and is covered in greater depth in PRACTICE UNDER FLORIDA PROBATE CODE § 15.4.T (Fla. Bar 11th ed. 2022). « Ch. 11 », « § 11.2 », « H » 1 Litigation Under FL Probate Code § 11.2.H (2022)

H. Fees When Attorney Is Also Personal Representative A little-known part of F.S. 733.612(19) (which, among other things, authorizes the personal representative to employ attorneys, accountants, and other advisors) includes the following provision: “Any fees and compensation paid to a person who is the same as, associated with, or employed by, the personal representative shall be taken into consideration in determining the personal representative’s compensation.” The attorney seeking fees in this dual capacity should be prepared to explain to the court, as a part of the basis for dual compensation, what greater role in the estate administration, beyond furnishing legal advice to the personal representative, the deceased client had in mind when he or she requested the attorney/draftsperson to provide in the will for the appointment of that attorney as a fiduciary or co-fiduciary. The attorney should also be able to explain to the court either why there were no better choices for fiduciary selection available to the client, or why the client chose not to make any of those better choices. There are many reasons why a client, being fully informed, would select the drafting attorney to serve as fiduciary or joint fiduciary, and fully intend that two full fees would be payable for the legal and fiduciary services. However, without the client then being present to explain those reasons, there is substantial potential for abuse that the attorney

should recognize at drafting time. Documenting the lawyer’s file contemporaneously goes far to avoid the appearance of impropriety. Comments in the two preceding sections calling upon drafting attorneys to address in the document the testator’s specific intention regarding the payment of fees are especially relevant here. Clearly, in this instance, the drafting attorney should specifically address those intentions in the document, and failure to do so should cause the court to consider how subsequent litigation and its associated expense should affect the attorney’s fee and the commission to be awarded to the personal representative. The person who caused or could have avoided a foreseeable problem should not be compensated for later dealing with it. The comments to Rule 4-1.8, Rules Regulating the Florida Bar, recognize the problems facing the drafting attorney: This rule does not prohibit a lawyer or a partner or associate of the lawyer from serving as personal representative of the client’s estate or in another potentially lucrative fiduciary position in connection with a client’s estate planning. A lawyer may prepare a document that appoints the lawyer or a person related to the lawyer to a fiduciary office if the client is properly informed, the appointment does not violate rule 4-1.7, the appointment is not the product of undue influence or improper solicitation by the lawyer, and the client gives informed consent, confirmed in writing. In obtaining the client’s informed consent to the conflict, the lawyer should advise the client in writing concerning who is eligible to serve as a fiduciary, that a person who serves as a fiduciary is entitled to compensation, and that the lawyer may be eligible to receive compensation for serving as a fiduciary in addition to any attorney’s fees that the lawyer or the lawyer’s firm may earn for serving as a lawyer for the fiduciary. If the attorney does not intend to be awarded any fee for serving as fiduciary but intends only to charge a reasonable fee for legal services performed, much of this problem disappears. A more extensive discussion on this point is found at PRACTICE UNDER FLORIDA PROBATE CODE § 15.4.U (Fla. Bar 11th ed. 2022). « Ch. 11 », « § 11.2 », « I » 1 Litigation Under FL Probate Code § 11.2.I (2022)

I. When And How Fees Are Paid Personal representatives’ and attorneys’ fees may (and in fact should) be paid without court order. F.S. 733.617(1), 733.6171(1). For administrations initiated after October 1, 2021, attorneys’ fees based upon the statutory percentages can only be paid without court order if the attorney provides the required disclosures at the beginning of the representation. F.S. 733.6171(2) (d). F.S. 733.603 directs the personal representative to “proceed expeditiously with the settlement and distribution of a decedent’s estate and, except as otherwise specified by this code or ordered by the court, … do so without adjudication, order, or direction of the court.” See Disque v. Unger, 955 So. 2d 1121 (Fla. 4th DCA 2007). Section 3-721 of the Uniform Probate Code (from which F.S. 733.6175 was taken) indicates in the comment that “the Code’s theory that personal representatives may fix their own fees and those of estate attorneys marks an important departure from much existing practice under which fees are determined by the court in the first instance.” Although the fees may be paid without court order, if the requirements of F.S. 733.6171(2) are met, Fla. Prob. R. 5.400(b) requires that the petition for discharge show “the amount of compensation paid or to be paid to the personal representative [and] attorneys” and contain a statement “that any objections to the … compensation paid or proposed to be paid … be filed within 30 days.” Consideration of the timing of payment of fees should include consideration of the tax effects on the estate. If compensation is to be fully deducted on an estate tax return (Form 706), the timing of payment, within broad limits, is not significant. On the other hand, if any portion of the fees is to be deducted on the estate’s fiduciary income tax return (Form 1041), timing may become critical, and mistimed payment may result in partial or total loss of the available deduction. If fees exceed income (and are an excess deduction under IRC § 642(h)(2)), the excess may be passed from the estate to the estate beneficiaries, but only if paid in the last fiscal year of the estate. Otherwise, excess deductions are lost. For further discussion of taxation of compensation, see § 11.5. Unless tax planning to benefit the estate or its beneficiaries or liquidity

considerations suggest advanced or delayed payment of fees, best practices suggest the fees of the attorney as well as those of the personal representative should be paid as services are furnished. One acceptable method, which appeals to both clients and attorneys, is to estimate the total fees and pay them in equal installments over the projected term of the administration. « Ch. 11 », « § 11.2 », « J » 1 Litigation Under FL Probate Code § 11.2.J (2022)

J. Priority And Nature Of Fees F.S. 733.707 sets forth the priority of payments of estate expenses and obligations to nonbeneficiaries. Before January 1, 2002, Class 1, the highest priority (even above taxes), included only fees for the personal representatives “and their attorneys’ fees” [emphasis added]. That statute was construed by the court in Tillman v. Smith, 533 So. 2d 928 (Fla. 5th DCA 1988), to mean only fees for the attorneys employed by the personal representative, and not fees for other attorneys who have benefited the estate and are thereby entitled to fees under F.S. 733.106(3). Such fees were a Class 7 (now renumbered Class 8) priority, together with “[a]ll other claims.” Also, before the 2002 Amendment, fees for an attorney representing the attorney for the personal representative in the fee contest were not allowed fees. In re Estate of Good, 696 So. 2d 876 (Fla. 4th DCA 1997). As discussed below, this result was reversed, at least in part, by 2002 Amendments. As observed by the Tillman court, attorneys’ fees are not generally a claim. A “claim,” with limited exceptions, is “a liability of the decedent,” F.S. 731.201(4), which most attorneys’ fees incurred subsequent to death would not be. An attorney’s fee would be a “claim” if the fee were part of a claim against the decedent (for example, attorneys’ fees incurred after death in connection with a breach of contract action against the decedent when the contract provided for payment of attorneys’ fees). Teague v. Estate of Hoskins, 709 So. 2d 1373 (Fla. 1998) (dicta). It would also be a claim if it represented an amount owing to the attorney from the decedent on the date of death. In Landon v. Isler, 681 So. 2d 755 (Fla. 2d DCA 1996), the decedent hired an attorney who obtained a judgment against a third party. During collection proceedings on that judgment, the decedent died. That attorney filed a claim in the estate that was deemed valid. F.S. 733.707 Class 1 attorneys’ fees and other expenses, as well as some

Class 3 expenses (debts and taxes with priority under federal and state law) and all Class 5 (family allowance) and 7 (continuation of decedent’s business) expenses, are not claims defined in F.S. 731.201(4) and do not require the filing of a statement of claim under F.S. 733.703. In Teague, the Florida Supreme Court held that attorneys’ fees awarded based on an offer of judgment to a prevailing defendant in a lawsuit brought by a personal representative were a Class 1 expense. The reasoning of the majority is that these fees were not an obligation of the decedent at the time of death, and therefore were not in the nature of a claim. They were incurred in connection with the administration of the estate and were, therefore, expenses of administration. That made them Class 1 costs and expenses of administration, not “other claims” under Class 8 (formerly Class 7). These fees are not individual obligations of the personal representative but only obligations of the estate. Beseau v. Bhalani, 904 So. 2d 641 (Fla. 5th DCA 2005). The Florida Supreme Court’s decision in Teague purports to overrule Tillman (“[w]e recognize that the district court in Tillman reached a conclusion contrary to our reasoning today,” Teague, 709 So. 2d at 1374– 1375), although the Teague decision is not in conflict with the ruling in Tillman based on differing facts. In Tillman, the fees were incurred by a beneficiary’s attorney for services that benefited the estate. In Teague, the fees were incurred by the attorney who successfully opposed the estate’s contract claim, which could not be categorized as a benefit to the estate. On the matter of benefit to the estate, see Samuels v. Estate of Ahern, 436 So. 2d 1096 (Fla. 4th DCA 1983), discussed in § 11.2.C.2.a. In any event, there is now “priority parity” by statute among attorneys’ fees for the personal representative’s attorney, fees awarded to an attorney who has benefited the estate, and, to a more limited extent, some attorneys’ fees awarded against the estate. An interesting case held that attorneys’ fees awarded against an estate under a refused offer of judgment could be charged against only the general assets of the estate, not that part of the wrongful death proceeds recovered against other defendants in the action that belonged to the survivors. Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002). On the facts of this case, all the recovery was correctly apportioned by the personal

representative under Florida’s Wrongful Death Act to the survivors, because there were no “net accumulations” in the judgment, and the estate had no other assets. There was nothing against which the attorneys’ fees could be charged, even though they had a Class 1 priority. « Ch. 11 », « § 11.2 », « K » 1 Litigation Under FL Probate Code § 11.2.K (2022)

K. Calculation Of “Reasonable Fee” « Ch. 11 », « § 11.2 », « K », • 1 » 1 Litigation Under FL Probate Code § 11.2.K.1 (2022)

1. Fees Of Attorneys « Ch. 11 », « § 11.2 », « K », • 1 », • a » 1 Litigation Under FL Probate Code § 11.2.K.1.a (2022)

a. Historical Perspective Of Attorneys’ Fees For Probate Administration Any discussion of an award of attorneys’ fees for probate administration must differentiate between the methodology to determine reasonable attorneys’ fee (1) before the decision in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), (2) after Platt, and (3) on and after October 1, 1993. Long before the Florida Supreme Court’s decision in Platt, the usual (but not exclusive) practice was that attorneys’ fees were determined using a percentage of the value of the assets subject to probate administration. This probably was attributable to two reasons. First, when minimum fee schedules were determined to be restraint of trade in the early 1970s and were no longer promulgated because the fixing of the amount of the fee by group action was impermissible, the method of setting the fee (basing the fee on a percentage of the value of the assets) as contained in the minimum fee schedules had become general practice and that method of fee determination was not abandoned. Also, although the fixed percentage schedule to determine a personal representative’s commissions then contained in (and now returned to) the statute in 1976 was replaced by a statute that did not contain such a schedule, that repeal did not change the custom in the community of determining personal representatives’ fees based on a percentage of the value of the assets subject to probate administration. Attorneys and (at least corporate) personal representatives generally continued to charge fees based

on a percentage of the value of the assets. With the elimination of the ethical restraint of charging a fee less than that mandated by a minimum fee schedule, some lawyers began to structure their fees in probate on an hourly basis, the same as they did in defense litigation and other general representation matters. Some lawyers adopted a hybrid formula, charging the greater of an hourly fee or a stated percentage. Many lawyers, probably a majority, continued to charge fees determined mainly on a percentage of the value of the assets under administration. If the estate tax return also was prepared by the lawyer, an additional percentage of the value of the gross estate was generally charged. The applicable percentage for attorneys’ fees (if that was the method used) often approximated the percentage charged by local corporate fiduciaries. In re Estate of Lieber, 103 So. 2d 192 (Fla. 1958). The controlling statute after January 1, 1976, but before October 1, 1993, which then applied to determine both attorneys’ fees and personal representatives’ fees, was F.S. 733.617. This statute provided for a “reasonable” fee based on “one or more” of nine stated criteria. These criteria were taken initially from the canons of ethics (previously DR 2-106(B) of The Florida Bar Code of Professional Responsibility, now Rule Reg. Fla. Bar 4-1.5(b)) and were adapted and modified slightly (but not sufficiently) to apply to fees for probate legal services. It is interesting to note that the Uniform Probate Code (UPC), from which the Florida Probate Code was derived, does not address the manner in which reasonable fees are to be determined, although it provides a mechanism (in UPC § 3-721, which is similar to F.S. 733.6175) for a beneficiary to object to fees arrived at by agreement between the attorney and the personal representative. The original 1976 version of F.S. 733.617 required that fees be determined either by written consent of those bearing the impact or by court order. That was a divergence from the philosophy of the UPC. If the court determined the fee, the list of factors it needed to consider to arrive at a reasonable fee was set forth in the statute. The statute, in its original form, provided that all the listed factors had to be considered. After only six months (effective July 1, 1976), the statute was amended in two important regards. First, the language “based on one or more of the following” [emphasis added] was added to subsection (1) immediately before

the list of significant factors. Second, subsection (3), which proscribed the payment of a fee to the attorney without either consent or court order, was repealed (and F.S. 733.6175 was adopted to provide a mechanism for fee objections). The practice of charging percentage fees continued on the rationale that the statute permitted a reasonable fee to be determined based on “one or more” of the listed factors, two of which were “[t]he fee customarily charged in the locality for similar services” and “[t]he amount involved and the results obtained.” This statute was again amended effective July 6, 1988, when the subsections were renumbered, and the following language was substituted for “the amount involved”: “The nature and value of the assets of the estate, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the person.” At the time F.S. 733.617 became effective (January 1, 1976), the fee customarily (but not uniformly) charged was a percentage of the value of the assets. That practice continued, generally, until Platt became final on October 3, 1991 (although it was initially published in a slightly different form in the Spring of 1991). Platt required the trial judge to consider “each of the factors applicable to the particular case before [the court].” Id. at 336. The keystone holding of Platt is that any court-determined attorney’s (or personal representative’s) fee will not “be computed solely on the basis of a fixed percentage of the amount of the probate estate.” Id. at 331. The opinion also states, “the basic lodestar method of computing a reasonable attorney’s fee may be an appropriate starting point.” Id. at 335, citing Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990). For an indepth analysis of Platt, see § 11.6. An understanding of the “basic lodestar method” is then necessary, and the opinion explains that method. Basic lodestar is a simplistic formula by which hours are multiplied by rate. The product of that multiplication is the “lodestar.” Hours are defined as the number of hours reasonably expended in providing the service. “Reasonably expended” means the time that ordinarily would be spent by lawyers in the community to resolve this particular type of dispute. It is not necessarily the number of hours actually expended by counsel in the case. Rather, the court must consider the number of hours that should

reasonably have been expended in that particular case. The court is not required to accept the hours stated by counsel. In this respect, the magnitude of the case should be a consideration. Platt, 586 So. 2d at 333–334. Using this reasoning, one might be tempted to argue (if such were the case) that the attorney had completed the probate in less than the “time that ordinarily would be spent by lawyers in the community” to accomplish this service, and he or she should be paid for more hours than actually were expended or that the hourly rate should be increased because of the attorney’s efficiency. The logic of this argument is that a lawyer who spends more hours than “ordinarily would be spent” by other lawyers may not be compensated for his or her inefficiency. If the lawyer spends fewer hours than “ordinarily would be spent” by other lawyers, because of his or her legal expertise, specialization, staff training and organization, or systems utilization, then he or she should not be paid less total fee than the less-efficient lawyer. However, this argument was rejected in City of Orlando v. Kensington, Ltd., 580 So. 2d 830 (Fla. 5th DCA 1991). This produced a system that penalizes inefficiency compared to the norm but declines to reward efficiency. The post-Platt iteration of the statute provides as the first-mentioned factor to be considered in adjusting the presumptively reasonable fee “[t]he promptness, efficiency, and skill with which the administration was handled by the attorney.” F.S. 733.6171(5)(a). This provides an inherently fair value-based compensation system that rewards efficiency and penalizes inefficiency. The multiplicand in the lodestar formula is the reasonable hourly rate. “A reasonable hourly rate takes into account the rate charged in the community by lawyers of comparable skill, experience, and reputation for similar services.” Platt, 586 So. 2d at 334. (The practitioner should note the absence of the modifier “efficiency.”) The product is the lodestar, which is the starting point to determine a reasonable fee. Unfortunately, the opinion does not reveal where the journey takes the traveler after its starting point. It does indicate, however, that the multiplier, which is common to a lodestar calculation, is not normally applicable because there is normally no risk of nonpayment, which is the factor the multiplier is intended to compensate. Also, the “results obtained,” which is one item to be factored into the formula in the traditional litigation

context, is a negative adjustment only, and may not result in a positive adjustment. It has been construed to apply to a situation in which a party prevails on fewer than all claims asserted, which necessitates a reduction of the total fees otherwise allowable to an amount that bears a relationship to the quantity of claims on which the party prevailed. Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). See § 11.6. One further matter discussed in Platt is that it still appears that the amount of the probate estate is a factor to be considered in determining the fee. “Although the amount of the probate estate is a factor, it was not intended to be the sole controlling factor.” Platt, 586 So. 2d at 336. Another holding in the opinion is that paralegal services can be factored into the lodestar starting point as a factor for direct compensation. See § 11.2.C.1.b for further discussion of this issue. In direct response to the Platt decision, F.S. 733.6171 was enacted, effective October 1, 1993. This statute dramatically changed the way in which attorneys’ fees were charged in probate administration, or at least dramatically changed the way Platt directed that they be charged. A new concept was introduced, that being a bifurcated attorney’s fee structure. The overall fee was to be a combination of an hourly-based lodestar fee combined with a percentage-based fee. The hourly fee was intended to compensate for effort expended; the percentage was intended to compensate for responsibility. In addition to this dramatic change, other equally significant changes were included. All of the changes, except the bifurcated fee, have been carried forward into the current version of the statute. New concepts and provisions that were added in 1993 included: (1) providing a simple mathematical equation to determine an amount that was a presumptively reasonable fee; (2) providing a mechanism by which that presumptively reasonable fee amount could be adjusted by increase or decrease depending on the facts of the case; (3) providing probate-specific factors for the court to consider in making any adjustment; (4) eliminating the requirement for expert testimony; (5) contemplating that there could be a written agreement between the testator and the attorney and providing how that agreement was to be managed; and (6) allowing compensation to the attorney if court proceedings to determine the attorney’s compensation were required.

The percentage portion of the bifurcated fee was provided by statute to be 2% of the value of the probate inventory plus 2% of the income earned on the probate assets during administration, and an additional 1% of the value of nonprobate assets if the estate was required to file a federal estate tax return. The hourly portion of the bifurcated fee was assumed to be at a reduced hourly rate because the usual portion of the hourly charge representing responsibility had been compensated separately. However, the statute did not specifically state this assumption. In practice, many attorneys did not reduce their regularly hourly charges. Also, when the percentages were added, the fee the statute presumed to be reasonable was usually considered to be in excess of the fees generally charged for the same services before the statutory amendment. It was not the intention of the committee of the Real Property, Probate and Trust Law Section, which drafted the proposal that was ultimately enacted, to increase fees for traditional probate services to a higher rate than they were before the Platt decision. However, the application of the presumption provided by the statute had that result. An example of how the statute could be applied is found in Sitomer v. First of America Bank-Central, 667 So. 2d 456 (Fla. 4th DCA 1996). In that estate, the probate inventory indicated assets of $104,000. However, there was a corporate-trusteed out-of-state revocable trust with a value of approximately $25 million, which passed to charity on the settlor’s death. The lawyer, who was also the personal representative, requested an attorney’s fee calculated under the bifurcated fee statute of $265,236.57, approximately 2½ times the value of the probate estate. The court considered the statutory factors required to be considered and awarded a fee of $60,000. If reduced to an hourly fee (according to the testimony), the fee finally awarded was equivalent to $600 per hour. (Note that the fee presumed reasonable by the statute after the 1995 amendments would have been $90,575, down from $265,236.) An interesting case is The Florida Bar v. Garland, 651 So. 2d 1182 (Fla. 1995), in which a lawyer was found by the referee to have charged a clearly excessive fee of $32,956 in a probate estate of $590,000. However, before the review reached the Florida Supreme Court, F.S. 733.6171 (providing for the bifurcated fee) became effective and the court observed that a fee of $32,956 “likely would be considered reasonable under the new statutory provisions.” Garland, 651 So. 2d at 1184. The testimony before the referee was that

$15,000 to $18,000 would have been a reasonable fee. (Again, the practitioner should note that the presumed reasonable fee calculated under the 1995 Amendments would have been $17,700.) Realizing the problem created by the higher level at which the bifurcated fee statute had set the presumptively reasonable fee, the Real Property, Probate and Trust Law Section set about trying to fix the situation. It was the fee level that was the flaw in the statute, not any other part. That suggested two possible remedies. One was to readjust the percentages (and insert a sliding scale); the other was to scrap the bifurcated concept entirely and substitute another. The latter approach was selected. The core concept used in repairing the statute was that the lawyer typically and historically contributed as much added value as the personal representative. There had been little criticism, either from the public or from attorneys, toward the amount of the compensation set by the statute for personal representatives. It seemed logical, then, to mirror the personal representative’s compensation level and formula in the attorney’s fee statute. The actual implementation of the changes involved repeal of the bifurcated fee section (subsection 2) and substitution of the rate schedule from the personal representative’s fee statute (slightly reduced for estates over $3 million). It then became necessary to define with some particularity the difference between ordinary services and extraordinary services. With that, and some other minor tinkering, the current statute was created. It is this statute that is discussed in § 11.2.K.1.b. For a more comprehensive discussion of the history of probate attorneys’ fees, see Kelley, Trusts and Estates: 1996 Survey of Florida Law, 21 Nova L. Rev. 385 (Fall 1996). « Ch. 11 », « § 11.2 », « K », • 1 », « b » 1 Litigation Under FL Probate Code § 11.2.K.1.b (2022)

b. Current Law Of Attorneys’ Fees For Probate Administration The Florida Legislature amended F.S. 733.6171, effective July 1, 1995, eliminating the bifurcated fee (a percentage of the value of the assets, plus an hourly rate, as provided by the 1993 Amendments) from F.S. 733.6171(2), replacing it with a sliding percentage similar to that provided to determine compensation for the personal representative. The operation of the statute is

covered in substantial detail in PRACTICE UNDER FLORIDA PROBATE CODE Chapter 15 (Fla. Bar 11th ed. 2022). The Florida Legislature further amended F.S. 733.6171, effective October 1, 2021, to remove the presumption that a percentage-based fee is reasonable when the attorney fails to make the required statutory disclosures at the beginning of the representation. To understand the current operation of F.S. 733.6171, the practitioner should realize that a literal reading of the statute will reveal that “time expended” has been entirely purged as a factor in the determination of a reasonable fee. The pre-1995 version of the statute, which provided for a bifurcated fee (one part of which was compensation for time expended), necessarily provided that that factor be considered. As a result of the 1995 Amendment to a pure percentage-based statute, any mention of time in the statute has been eliminated. This is not to suggest that the court cannot consider the time expended. It certainly can, at least under the “[a]ny other relevant factors” language in subsection (5)(i) of the statute. However, this change does indicate the legislative intent that time, as a factor, be highly subordinate to the other specifically mentioned factors that are intended to reflect the “value billing” concept. The 2021 Amendment to the statute entitles the personal representative to a summary which “shall consist of the total hours devoted to the representation or a detailed summary of the services performed during the representation.” F.S. 733.6171(2)(b)5. The attorney could satisfy this requirement without disclosing the time committed to the representation but would then require a detailed summary of the services rendered. Given the growing complexity of probate work, the practitioner should consider keeping time records, even when the attorney complies with the disclosure requirements for a percentage-based fee. If the attorney is able to efficiently, but effectively, administer the estate, time should not be a factor to reduce the attorney’s fee. On the other hand, many practitioners, as well as their clients, may be surprised by the actual amount of time expended in the representation of a fiduciary. Good time records could support a request for extraordinary fees. The statute is limited in its scope to compensation for the attorney for the personal representative performing “ordinary services … in formal estate administration.” F.S. 733.6171(3). It does not include services performed by

other attorneys that benefit the estate (F.S. 733.106(3)) or when complaining beneficiaries successfully challenge the exercise of power by the personal representative (F.S. 733.609), or any other circumstance under which an attorney would be entitled to compensation payable from the estate. The Florida Supreme Court’s decision in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), continues to control these other instances. Bishop v. Estate of Rossi, 114 So. 3d 235 (Fla. 5th DCA 2013). That means that fees calculated under these circumstances for attorneys not employed by the personal representative will require expert testimony in support and must be calculated under the lodestar approach. See § 11.2.K.1.e. For further discussion of Platt, see § 11.6. F.S. 733.6171 continues to be a “reasonable compensation” statute, as it has been since the effective date of the Florida Probate Code, January 1, 1976. F.S. 733.6171(1). Only the methodology of that determination has been fine tuned. The 2021 Amendments to F.S. 733.6171 do not change the methodology but now require disclosures before the percentage-based fee presumption is applicable. Interested persons may agree to compensation determined in a different manner than provided by the statute. F.S. 733.6171(2). However, the provisions of Rule Reg. Fla. Bar 4-1.5 still apply to prohibit a clearly excessive fee, even if agreed to by the interested persons. For example, a beneficiary who has consented to a clearly excessive fee is not precluded from initiating a complaint to The Florida Bar under that rule, nor is a probate judge precluded from refusing to enforce an agreement for a clearly excessive fee, even if all interested persons consent. See The Florida Bar v. Carlon, 820 So. 2d 891 (Fla. 2002) (competent, substantial evidence supported finding in disciplinary proceeding that attorney charged clearly excessive fee in connection with administration of estate); The Florida Bar v. Garland, 651 So. 2d 1182 (Fla. 1995) (finding no Rule 4-1.5(a) violation when amount charged in probate matter was consistent with amount F.S. 733.6171 would have allowed). F.S. 733.6171(3) provides a method to determine a fee that is presumptively reasonable for the estate administration attorney in a formal administration. It is strictly percentage-based, using a sliding scale percentage depending on the nonexempt inventory value of the estate assets and the

income earned by the estate during administration. The practitioner should note that this would not allow consideration of appreciation or depreciation in the asset value after death in determination of the presumed reasonable fee. This is proper and logical because the attorney would not take credit or blame for investment performance, investment responsibility being exclusively in the realm of the personal representative. Occasionally a question arises whether the gross value of the assets should be used for purposes of calculating the presumed reasonable fee under F.S. 733.617 or 733.6171, or whether the calculation should be based only on the equity value of the assets (excluding mortgages and liens), or even the net value of the assets subtracting the amount of unsecured debts and claims. If this were the case, the personal representative and the attorney would charge a fee only on the net value of the total probate estate. The argument of the beneficiaries in favor of this approach is that the attorney should not be paid a fee for value that they (the beneficiaries) do not receive. In fact, although the beneficiaries (generally) bear the burden of the fees, the personal representative and the administration attorney are providing services (and presumably value) not only to beneficiaries but also to secured and unsecured creditors. A personal representative must marshal, protect, insure, and administer the whole asset, not only the part that is valued in excess of the liens on it, or the debts of the estate, and beneficiaries as well as creditors benefit from those services. However, in most instances, only beneficiaries are charged by law to pay for them, unless the estate is insolvent. If there were such a limitation, no fees would be payable on insolvent estates even though the gross assets may have a value of millions of dollars, and typically, administration of insolvent estates is more complex than administration of solvent estates. Furthermore, the “inventory value” referred to in F.S. 733.6171(3) does not include the value of protected homestead reported on the inventory. Protected homestead is homestead that passes to the spouse and descendants under F.S. 732.401 or to heirs at law by intestacy or by devise under the will. See F.S. 731.201(33) (defining “protected homestead”); Snyder v. Davis, 699 So. 2d 999 (Fla. 1997) (discussing definition of exempt homestead). Perhaps the most misunderstood portion of the process for determination of attorneys’ fees is the fact that the statutory schedule is merely a rebuttable

presumption. The Florida Evidence Code, F.S. Chapter 90, defines various classifications of legal presumptions. F.S. 90.301–90.302. Specifically, the presumption of F.S. 733.6171(3) is a rebuttable presumption affecting the burden of producing evidence. F.S. 90.303. The relevant presumption does not affect the burden of proof, which is on the attorney to prove the amount of a reasonable fee. F.S. 733.6175. However, if the attorney establishes the predicate for the statutory presumption, the statute provides the presumption, which then requires the opposing party to produce evidence to contradict the presumptively reasonable fee in the statute. This presumes that the attorney wishes to utilize the statutory presumption, which would be the case when the fee for ordinary services requested was the amount presumed reasonable by the statute. The predicate would be satisfied by competent proof of employment of the attorney by the personal representative to render legal services in the administration of the estate; of the timely disclosures required by F.S. 733.6171(2)(b)5; of the nature of the administration as a formal administration (of which the court may or must take judicial notice as reflected in the pleadings— see F.S. 90.202–90.203); that the ordinary services were furnished; of the nonexempt inventory value of the estate assets (of which the court may or must take judicial notice as reflected in the pleadings—see id.); and of the income earned by the estate during the administration, which may be shown by an accounting, if filed (of which the court may or must take judicial notice as reflected in the pleadings—see id.). The statutory presumption then would arise. The requirement for disclosures about percentage-based fees under F.S. 733.6171(2)(b) may not necessarily eliminate consideration of a percentage-based attorneys’ fee, but failure to provide the disclosure to the personal representative prevents payment of attorneys’ fees without court order. Although it is generally the attorney who invokes the statutory presumption, when the attorney does not do so, nothing would prevent an objecting beneficiary from doing so.

If compensation is sought either for ordinary services in an amount in excess of the presumed reasonable fee, or for extraordinary legal services, additional proof must be offered regarding those services as specified in F.S. 733.6171(5). This is the same portion of the statute the attorney’s opponent must use to offer evidence that the presumed reasonable fee is excessive in this instance. One of the special strengths of this statute is the specification of the factors to be considered by the court in determining a reasonable fee. These factors are the first in any state statute that are specific to the probate process. F.S. 733.6171(5) requires the court to consider all of eight specific factors and any other relevant factors, giving such weight to each as may be appropriate. These factors are discussed in detail in PRACTICE UNDER FLORIDA PROBATE CODE § 15.4.E (Fla. Bar 11th ed. 2022). These factors are the core of most of the litigation that occurs under the statute. A practitioner with a firm who understands of these factors will have the best chance of prevailing. A close study of this portion of the statute before litigation of probate legal fees is recommended. Extraordinary legal services for estate administration are described in F.S. 733.6171(4). The list is not intended to be exclusive. The only extraordinary service that also provides for a presumed reasonable fee is the preparation of the federal estate tax return (Form 706). The statutorily presumed reasonable fee for this service is ½% of the value of the gross estate on the first $10 million and ¼% on the excess if the return is prepared by the attorney. F.S. 733.6171(4)(e). When the return was prepared jointly by the attorney and by the personal representative, who was himself a CPA, the court in Venis v. Greenspan, 833 So. 2d 208 (Fla. 4th DCA 2002), found that the return was not “prepared by the attorney” within the contemplation of this subsection. The court gratuitously added that “a lawyer who uses personnel in the lawyer’s office to assist the lawyer in preparing the return is [not] precluded from seeking the percentage suggested by the statute.” Id. at 209 n.1. In Baumann v. Estate of Blum, 898 So. 2d 1106, 1108 (Fla. 2d DCA 2005), the appellate court declared, “[n]either the general master nor the trial court has discretion to decline an award of fees for extraordinary services upon proper proof.” The court cited the mandatory language of F.S. 733.6171(4), which provides, in relevant part, that “the attorney for the

personal representative shall be allowed further reasonable compensation for any extraordinary service.” The court remanded the case to the trial court to consider the award of not only extraordinary attorneys’ fees, but extraordinary costs and expert witnesses fees for litigating the fee issue. The statute does not define “ordinary legal services”; however, the practitioner should review F.S. 736.1007(4) and note the parallels. Procedurally, the statute allows the court to determine a reasonable fee without receiving expert testimony. In fact, expert testimony may only be offered (and would otherwise be objectionable) after prior notice to interested persons. If expert testimony is offered and received, an expert witness fee must be awarded, and the court must direct from what part of the estate it is required to be paid. F.S. 733.6175(4). See Foreman v. Northern Trust Bank of Florida, N.A., 905 So. 2d 276 (Fla. 2d DCA 2005). Before 2001, compensating the expert witness was discretionary with the court. F.S. 733.6171(6) (1999). The matter of allowing attorneys’ fees for legal services performed in the proceeding to determine reasonable attorneys’ fees is covered by F.S. 733.6175(2). (See § 11.2.N for a more extensive discussion of this issue. The practitioner should note that this provision was formerly in F.S. 733.6171(8), and was more limited in scope, before 2002.) F.S. 733.6175(2) specifically reverses one of the holdings in Platt, which disallowed such fees. That subsection provides that fees are allowable in the proceeding to “the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation,” unless the court finds the original request for fees to be “substantially unreasonable.” F.S. 733.6175(3) defines the person with the burden of proof as “the personal representative and the person employed.” The statute intentionally does not define “substantially unreasonable.” It is a standard that is less than “clearly excessive,” as that standard is defined in Rule 4-1.5. It is intended to allow the court the broadest latitude in that determination; however, that discretion is limited by the application of the “plain meaning” rule. That rule “provides that words of common usage should be given their plain and ordinary meaning, since it is assumed that the legislative body knows the plain and ordinary meaning of the words used in statutes.” Great Outdoors Trading, Inc. v. City of High Springs, 550 So. 2d

483, 485 (Fla. 1st DCA 1989). See Carlon (competent, substantial evidence supported finding in disciplinary proceeding that attorney charged clearly excessive fee in connection with administration of estate). F.S. 733.6171(6) provides for the management and effect of a separate written agreement between the decedent and the attorney who ultimately is retained by the personal representative in the estate administration, and the effect of a provision in the will relating to fees. The statute requires the attorney to furnish a copy of the agreement to the personal representative before commencement of employment and thereafter file a copy with the court and serve a copy on all interested persons. The purpose is to provide for the broadest circulation of this agreement. The statute is clear that neither a separate agreement nor a direction in the will obligates the personal representative to hire the designated attorney. This is a codification of In re Estate of Marks, 83 So. 2d 853 (Fla. 1955). However, if the designated attorney is retained, the fee charged may not exceed the fee provided in the will or agreement. This does not guarantee that the fee awarded will be equal to the agreed fee and the agreement does not preclude a beneficiary’s right to object to the fee. Fla. Prob. R. 5.400(b)(4) requires the petition for discharge to contain the following statement: “showing the amount of compensation paid or to be paid to the personal representative, attorneys, accountants, appraisers, or other agents employed by the personal representative and the manner of determining that compensation.” This statement can be waived, but if waived, the waiver must comply with the provisions of Rule 5.180(b), which require that it contain language declaring that the waiving party has actual knowledge of the amount and manner of determining the compensation and, in addition, either: (A) that the party has agreed to the amount and manner of determining that compensation and waives any objection to payment; or (B) that the party has the right to petition the court to determine the compensation and waives that right. Practice Form 124 in The Florida Bar Probate System (Fla. Bar 5th ed.

2018) and Forms P-5.0500, 5.0501, 5.0520, and 5.0570 (available from Florida Lawyers Support Services, Inc.© (FLSSI), 800/404-9278, www.flssi.org), are sufficient for this purpose. See also F.S. 736.1007, which provides compensation for attorneys representing trustees in the initial administration of trusts as will substitutes, and which is very similar to F.S. 733.6171. « Ch. 11 », « § 11.2 », « K », • 1 », « c » 1 Litigation Under FL Probate Code § 11.2.K.1.c (2022)

c. Attorney As Expert Or Fact Witness An interesting confusion of roles often occurs with the “attorney witness.” A witness, who is coincidentally an attorney, is not an advocate nor does he or she represent any of the parties. No lawyer-client privilege exists with a “witness.” Referring to an attorney in the role as a necessary fact witness, some of the commentary in Rule Reg. Fla. Bar 4-3.7 (“LAWYER AS WITNESS”) is interesting: “A[n attorney-]witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.” There may be protection of communications between the attorney and the attorney/witness as work product, but there would be none under the lawyerclient privilege found in F.S. 90.502. Participation by the attorney/witness in strategic and tactical case planning conferences may expose those conferences to discovery because the roles of the attorney and witness must be one or the other; they are mutually exclusive in the same case. The presence of the attorney/witness at a discussion between the client and the attorney, on matters beyond the scope of the attorney/witness’s testimony, may constitute the presence of a third party for the purpose of destroying the lawyer-client privilege. Although the natural inclination of an attorney is to “contribute” to the strategic planning of any case he or she is involved in, the attorney/witness will be embarrassed on the stand if this distinction is not clearly understood. Since the enactment of F.S. 90.5021, which recognizes the privilege in the context of fiduciary representation, including personal representatives and

trustees, there appears to be no reported case law that applies the statute. The practitioner should note, however, that numerous Florida courts have limited Rule 4-3.7 to trial proceedings. In other words, Rule 4-3.7 does not disqualify counsel from serving as an attorney/witness from “all aspects” of a case. Lieberman v. Lieberman, 160 So. 3d 73 (Fla. 4th DCA 2014). Accord Riddle v. Riddle, 211 So. 3d 337 (Fla. 4th DCA 2017). For a detailed discussion on the lawyer as a fact witness, see EVIDENCE IN FLORIDA § 5.2.G (Fla. Bar 12th ed. 2022). See also §§ 11.2.N–11.2.O of this manual. « Ch. 11 », « § 11.2 », « K », • 1 », « d » 1 Litigation Under FL Probate Code § 11.2.K.1.d (2022)

d. Retroactive Effect Of F.S. 733.6171 As previously discussed, F.S. 733.6171 has been amended on several occasions to change the manner in which a reasonable fee is calculated. Questions arose as to how a reasonable fee would be determined in estates then in administration when there had been a statutory change during the course of administration. The 1993 and 1995 versions of the statute, by their terms, applied to estates in which the order of final discharge had not been entered. In Bitterman v. Bitterman, 714 So. 2d 356 (Fla. 1998), the Florida Supreme Court overruled that portion of the statute. The court held that when the employment of the attorneys claiming compensation from the estate commenced before October 1, 1993, the effective date of F.S. 733.6171, even though the trial of the disputed fees occurred after that date, the law regarding fees (the Platt interpretation of F.S. 733.617 (1991), see § 11.2.K.1.b; In re Estate of Platt, 586 So. 2d 328 (Fla. 1991)) in effect when the representation commenced was the law applicable to the determination of fees. See § 11.6 for an analysis of Platt. In 2002, however, the portion of the statute that spoke to its retroactive application was deleted. Chapter 2021-145, § 3, Laws of Florida provides that the 2021 Amendment “applies to initial estate and initial trust administrations commenced on or after October 1, 2021.” « Ch. 11 », « § 11.2 », « K », • 1 », « e » 1 Litigation Under FL Probate Code § 11.2.K.1.e (2022)

e. Fees For Probate Litigation

Separate attorneys’ fees for probate litigation, to the extent awarded under F.S. 733.609 or 733.106(3), are governed by the limitations of Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), except that an attorney retained by the personal representative is not required to provide expert testimony to prove fees and may be entitled to “fees on fees.” F.S. 733.6175. The lodestar determination would be the proper method of determining the fee in those instances in which it will be paid ultimately by one who was not the attorney’s client. Anyone who believes that lodestar has no further application to fees in probate should review Bishop v. Estate of Rossi, 114 So. 3d 235 (Fla. 5th DCA 2013). Also, the multiplier provided in the lodestar calculation may apply if there is a risk present regarding nonpayment, as when assets were being recovered for the estate, which, if unsuccessful, would leave the estate with no assets or insufficient assets to pay the fees incurred, or if the lawyer’s compensation is, by agreement or in fact, contingent on a successful outcome. A lodestar determination may also be applicable to fees awarded to an attorney who benefits the estate under F.S. 733.106(3). Also, in that instance, the multiplier may be applicable when, if the litigation is unsuccessful, there is a substantial risk of nonpayment of the fee. In general, In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), and that line of cases reflect the common law regarding awards of attorneys’ fees. Only when there is a specific exception or different procedure provided by statute is the common law not applicable. This is a concept too often not understood by lawyers litigating fee issues. When an exception applies, the lawyer must be prepared to provide the statutory authority allowing the exception. « Ch. 11 », « § 11.2 », « K », • 1 », « f • 1 Litigation Under FL Probate Code § 11.2.K.1.f (2022)

f. Pleading Requirements An important issue arises with regard to when entitlement to attorneys’ fees must be pled in contested matters. The general rule is that attorneys’ fees may be awarded pursuant to contract or statute. This discussion is limited to fees awardable by statute and excludes fees awarded under F.S. 733.6171. Reversing its own earlier position, the Florida Supreme Court in Stockman v.

Downs, 573 So. 2d 835 (Fla. 1991), ruled that if there was a claim for recovery of attorneys’ fees, that claim must be pled in the instant action. Stockman was an action on a real estate contract that contained a prevailing party attorneys’ fees clause. The plaintiff claimed attorneys’ fees in the action on the contract, but the defendants (who eventually prevailed) did not include a counterclaim for fees in their answer. The day after the entry of the final judgment for the defendants, the defendants filed a motion for the award of attorneys’ fees under the contract provision. The Florida Supreme Court ruled that fees, to be awardable, must be pled in the original action, and denied the relief: The fundamental concern is one of notice. Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. 40 Fla.Jur.2d Pleadings § 2 (1982). Raising entitlement to attorney’s fees only after judgment fails to serve either of these objectives. Stockman, 573 So. 2d at 837. This provision is apparently inapplicable if the fee application is brought under F.S. 733.106(3) (benefit to the estate). The District Court of Appeal, Second District, ruled that an attorney for a beneficiary who had benefited the estate by successfully defending a will contest did not have to claim entitlement to attorneys’ fees in the answer to the petition to revoke probate. The distinction here is that the opposing party (the petitioner) was not being charged with the fees, but they were being paid from the estate, even though the petitioner was a one-half residuary devisee whose share would ultimately bear half of the fees. Carman v. Gilbert, 615 So. 2d 701 (Fla. 2d DCA 1993), quashed on other grounds 641 So. 2d 1323. The same result was reached in In re Estate of Paris, 699 So. 2d 301 (Fla. 2d DCA 1997), even when the requested fees were sought to be assessed against the share of the estate that was due to the wrongdoer under F.S. 733.106(4). A practitioner analyzing Carman will wonder why the court even discussed the issue of why an unsuccessful will challenger, who had no interest in the estate (as a result of the decision), even had standing to contest whether the attorney who benefited the estate could be paid fees from the estate. A fact not mentioned in the opinion was that the will challenger had a

“Mary Carter” agreement (see Booth v. Mary Carter Paint Co., 202 So. 2d 8 (Fla. 2d DCA 1967), overruled on other grounds 284 So. 2d 385) with one of the three residuary beneficiaries to divide each agreeing party’s interest between them, regardless of the outcome of the will contest. Therefore, even though the will contest was lost, the challenger had a half interest in one third of the residuary, from which these fees would be paid, and therefore had standing to raise the issue. The Carman case is a logically compelling exception to the Stockman doctrine. Because the prevailing attorney was not asking that the fees be assessed against the petitioner in the will contest, there was no reason to “notify the opposing party of the claims [for attorneys’ fees to] prevent unfair surprise.” Stockman, 573 So. 2d at 837. If the petitioner had a continuing interest in the estate, win or lose, and the opposing party was asking or intended to ask that fees be assessed against the losing party by payment from that party’s interest in the estate under F.S. 733.106(4), or directly against a losing party under F.S. 733.609 or 736.1004, the Stockman doctrine would probably apply to require allegations regarding payment and assessment of fees in the initial pleading. Even if a claim for fees is initially pled, it may not be ripe for adjudication until after the principal action has concluded. In re Estate of Ransburg, 608 So. 2d 49 (Fla. 2d DCA 1992). Another exception to the pleading requirements of Stockman is a fee sought under F.S. 57.105. See § 11.2.C.3. Fla. R. Civ. P. 1.525, adopted in 2000, provides that “[a]ny party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.” This rule was applicable to adversary probate proceedings. Hays v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009). However, effective September 28, 2011, Fla. Prob. R. 5.025(d)(2) was amended to eliminate the applicability of Rule 1.525 to probate proceedings. The inapplicability of this rule to probate proceedings does not, however, affect the Stockman pleading requirements, when applicable, as discussed above. The pleading requirements set forth in Stockman can be waived. Within

Stockman, the court recognized an exception: “[w]here a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” Id. at 838. See Van Vechten v. Anyzeski, 157 So. 3d 350 (Fla. 4th DCA 2015) (beneficiary’s estate waived any objection to trustee’s allegedly inadequate pleading of entitlement to attorneys’ fees). « Ch. 11 », « § 11.2 », « K », « 2 • 1 Litigation Under FL Probate Code § 11.2.K.2 (2022)

2. Fees Of Personal Representatives « Ch. 11 », « § 11.2 », « K », « 2 •, • a » 1 Litigation Under FL Probate Code § 11.2.K.2.a (2022)

a.

Historical Perspective Commissions

Of

Personal

Representatives’

Before January 1, 1976, the effective date of the Florida Probate Code, personal representatives (then “executors”) were allowed commissions as compensation for services. Commissions for ordinary services were based on a percentage of value of the real and personal property accounted for by the executor. Extraordinary services were specially compensated, beyond the schedule in the statute. The old statute, F.S. 734.01(1)(b), and the present statute, F.S. 733.617(3), are similar on this subject. In F.S. 734.01(1)(b), one of the extraordinary services was described as “the adjustment and payment of extensive or complicated estate or inheritance taxes.” That language in F.S. 733.617(3)(c) now provides: “Involvement in proceedings for the adjustment or payment of any taxes” [emphasis added]. It now appears that extraordinary compensation may not be allowed, as relating to tax matters, unless a “proceeding” is involved, which must be construed as a limitation on the former provision. However, an expansion of the former provision is that “any taxes” may form the basis for extraordinary compensation, whereas previously, only “extensive or complicated estate or inheritance taxes” could form that basis. The “any taxes” change seems straightforward and easy to understand;

however, the “proceeding” requirement is unclear. For example, the estate tax return for a subject estate is “complicated.” Under the old statute, “payment of … complicated estate … taxes” was an extraordinary service. Under the present statute, “payment of any taxes” is an extraordinary service only if “[i]nvolvement in proceedings” is required. If an estate tax return is prepared by the personal representative and filed, and tax is paid, is extraordinary compensation allowed only if an audit or collection proceeding follows? Is a “proceeding” only a proceeding in court, or can it be an administrative proceeding (e.g., an audit) with an agent of the IRS? Clearly, a personal representative has a duty under federal law to file a return and pay tax if the value of the estate exceeds the filing threshold. Is the performance of that duty an extraordinary service if no audit or collection proceeding ensues? The better interpretation of this provision is that preparation and filing of such a return is an extraordinary service only if the return is audited or litigated in a “proceeding.” Remaining subsections (4)–(6) of the present statute are similar to subsections (1)(c) and (1)(d) and subsections (2) and (4) of F.S. 734.01, and the old case law should be useful in interpretation of those provisions. The practitioner should note that the scope of extraordinary services in the attorneys’ fees statute, F.S. 733.6171(3), is broader, although there is substantial overlap. Effective January 1, 1976, F.S. 734.01 was replaced with F.S. 733.617, which significantly changed the statute. The most noticeable change was elimination of the scaled percentage from the statute. The second obvious change was the addition of a provision in the same statute for determination of attorneys’ fees for estate administration legal services. (Before January 1, 1976, there was no statute pertaining to payment of attorneys’ fees for the personal representative’s attorney.) This was a so-called “reasonable fee” statute and required consideration of the factors that were taken from the Code of Professional Responsibility, specifically DR 2-107. Rule Reg. Fla. Bar 4-1.5(b) is similar. See also § 3-719 of the Uniform Probate Code. It first should be considered that (with one exception) there are no statutory differences in the considerations in determining a corporate fiduciary’s fee and those in determining an individual fiduciary’s fee. However, as practice evolved (before In re Estate of Platt, 586 So. 2d 328

(Fla. 1991)), fees for individuals generally were determined based on a combination of hourly and percentage charges, and fees for corporate fiduciaries generally were determined based on their published fee schedules which, themselves, were based solely on a percentage of the value of the estate assets. This is logically explained by the fact that it may be presumed that the testator was familiar with the published fee schedule of the designated corporate fiduciary and impliedly consented by designating the fiduciary in the document. Therefore the “fee customarily charged in the locality,” one of the statutory factors, was the most important factor used by the court to determine the fee. Also, because the published fee schedules were generally the result of the market competition for business, published fee schedules were a direct product of the free enterprise market economy, much like the price of an automobile or a refrigerator. The fee for an individual personal representative, with less market economy influence (and when the individual generally provided less service than a corporate fiduciary), was traditionally set with reference to both the time expended and a consideration of the value of the assets under administration. Platt disapproved of the practice of corporate fiduciaries charging fees based solely on a percentage of the value of the estate assets. It did not, however, require calculation of the personal representative’s fee based on lodestar principles, or, for that matter, offer any guidance on how the fiduciary fee should be determined. See the discussion in § 11.6. Although specification of the factors from the attorney’s disciplinary rules did not produce a good “fit” for factors to be considered in the determination of fiduciary fees in estate administration, the same statute controlled the award of personal representatives’ (and attorneys’) compensation for estate administration until October 1, 1993, when F.S. 733.617 was completely rewritten by Chapter 93-257, § 10, Laws of Florida, in a form similar to F.S. 734.01 (1973). This amendment did not contain any provision that exempted or limited its application to estates then in probate. The next change to F.S. 733.617 was made by Chapter 95-401, § 1, Laws of Florida, effective January 1, 1996. That amendment added subsection (7) to the statute. The subsection mirrors F.S. 733.6171(5), which describes the considerations to be used by the court in either increasing or decreasing the

compensation stated in that statute. This amendment ended the debate about whether the amount of the compensation for ordinary services previously provided in F.S. 733.617 (1993) was mandatory or could be increased or decreased by the court. Some legal commentators previously believed it was not mandatory but was only a rebuttable presumption affecting the burden of producing evidence. See F.S. 90.302(1), 90.303. See also PRACTICE UNDER FLORIDA PROBATE CODE § 15.3.I (Fla. Bar 11th ed. 2022). The last substantial change was made by Chapter 2001-226, § 141, Laws of Florida (2001). This did not significantly change the preexisting law, but partially reworded the statute to make it parallel to F.S. 733.6171, where the two logically overlapped. It added a provision that income earned during administration would be included in the compensation base (F.S. 733.617(1)), a provision that had been in the attorney’s fee statute since 1995. The current law relating to personal representatives’ commissions is discussed in the following section. « Ch. 11 », « § 11.2 », « K », « 2 •, « b • 1 Litigation Under FL Probate Code § 11.2.K.2.b (2022)

b. Current Law Of Personal Representatives’ Commissions Compensation of a personal representative is bifurcated as compensation for ordinary services and compensation for extraordinary services. F.S. 733.617(1), (3). Some extraordinary services, such as sale of real or personal property, or estate litigation, are specified in F.S. 733.617(3). The list in that subsection is not intended to be exclusive. In the absence of a written contract with the decedent or beneficiaries, or a binding provision in the decedent’s will that sets the compensation, ordinary services are compensated by a presumptively reasonable schedule found in the statute, which is based on a percentage of the nonexempt value of the estate as determined for probate inventory purposes plus income earned during the period of administration. The percentage is a sliding percentage depending on the value. The rate schedule found in F.S. 733.617(2) is similar to the rate schedule for attorneys’ fees found in F.S. 733.6171(3), except it is slightly higher for amounts in excess of $3 million but not exceeding $10 million. In probate estates with a value of at least $100,000, up to two full

commissions may be allowed to be shared among multiple personal representatives. F.S. 733.617(5). “Double dipping” to allow two fees to a single individual who performs services both as a personal representative and as the personal representative’s attorney continues to be permitted by the statute. However, see F.S. 733.612(19), which provides: “Any fees and compensation paid to a person who is the same as, associated with, or employed by, the personal representative shall be taken into consideration in determining the personal representative’s compensation.” For more detailed discussion of this topic see § 11.2.H. F.S. 733.617(7) itemizes the factors to be considered by the court (each must be considered) to increase or decrease the presumed reasonable ordinary compensation to the personal representative, or award extraordinary compensation. These factors are very similar, and in some cases identical, to the factors to be considered by the court in increasing or decreasing compensation for ordinary legal services or awarding a fee for extraordinary legal services. See F.S. 733.6171(5). For a more detailed discussion regarding the compensation of personal representatives, see PRACTICE UNDER FLORIDA PROBATE CODE § 15.3 (Fla. Bar 11th ed. 2022). « Ch. 11 », « § 11.2 », « L » 1 Litigation Under FL Probate Code § 11.2.L (2022)

L. Need For Time Records « Ch. 11 », « § 11.2 », « L », • 1 » 1 Litigation Under FL Probate Code § 11.2.L.1 (2022)

1. Introduction As discussed in § 11.2.A, since July 1, 1995, time is not a statutory factor in the determination of a reasonable fee for legal services for probate administration. However, the ninth factor in F.S. 733.6171(5), “[a]ny other relevant factors,” might, in the applicable circumstance, make consideration of time relevant. At best, time as a factor has a significantly reduced importance under the current version of the statute. Furthermore, because it is only fees for legal services for probate administration that are within the

scope of F.S. 733.6171, time will continue to have significant importance in the determination of attorneys’ fees in other areas of probate legal representation. Therefore, that topic is continued as a covered topic in this chapter. Finally, the attorney may have contracted to charge a time-based fee. In re Estate of McQueen, 699 So. 2d 747 (Fla. 1st DCA 1997). To the extent that time is to be proved, the following considerations will apply. « Ch. 11 », « § 11.2 », « L », « 2 • 1 Litigation Under FL Probate Code § 11.2.L.2 (2022)

2. Application As long as the attorney is able to testify accurately about the total time expended and describe the services furnished, it does not appear that contemporary time records, or even reconstructed time records, are a prerequisite to sustaining a fee. This should continue to apply after the 2021 Amendment to F.S. 733.6171. In In re Estate of Warwick, 586 So. 2d 327, 328 (Fla. 1991), the attorney estimated his time as “approximately 120 to 130 hours” but “could give no breakdown as to how his hours had been spent.” Without criticizing the absence of time records, the Florida Supreme Court remanded the case to the trial court for further proceedings in accordance with its views expressed in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991). In practice, courts tend to discount the credibility of such testimony, and the availability of a precise recording of time expended is recommended if compensation is time-based. By returning to Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), the “native soil” of the Florida lodestar concept, the attorney will understand the Florida Supreme Court’s concern with contemporary time records: Florida courts have emphasized the importance of keeping accurate and current time records of work done and time spent on a case… . To accurately assess the labor involved, the attorney fee applicant should present records detailing the amount of work performed… . Inadequate documentation may result in a reduction in the number of hours claimed, as will a claim for hours that the court finds to be excessive or unnecessary. In Glades, Inc. v. Glades Country Club Apartments Ass’n, Inc., 534 So.

2d 723, 724 (Fla. 2d DCA 1988), the District Court of Appeal, Second District, stated: While defense counsel testified as to hours expended, he produced no contemporaneously kept time records reflecting the hours the trial court found to have been reasonably expended. But we do not agree with the contention on plaintiff’s appeal that Rowe requires that those hours must necessarily have been specifically reflected in written time records. In Executive Square, Ltd. v. Delray Executive Square, Ltd., 553 So. 2d 803, 804 (Fla. 4th DCA 1989), the Fourth District stated: “Here appellee’s counsel maintained time records but did not place the records in evidence. While we think it is a better practice for counsel to place the supporting documentation for fees in evidence, we do not find failure to do so a basis for reversal.” The Third District in Moyle v. Moschell & Moschell, 582 So. 2d 111, 113 n.2 (Fla. 3d DCA 1991), which also cited Platt, determined that “Rowe does not require specific reflection in written records of the hours reasonably expended so long as the award is supported by substantial competent evidence.” Time records, either reconstructed or contemporaneous, are only corroborative business records of the attorney’s testimony as to how much time was spent and for what. Presumably the opposing side will present testimony as to “the number of hours that should reasonably have been expended.” Platt, 586 So. 2d at 333–334. The court is not required to accept the hours stated by counsel. Platt. Testimony regarding reconstructed time records is not improper but affects the weight to be attributed to the testimony of the time expended. In re Estate of Eisenberg, 433 So. 2d 542 (Fla. 4th DCA 1983). See In re Estate of Ryecheck, 323 So. 2d 51, 52 (Fla. 3d DCA 1975), in which the attorney made an “educated guess” that he had expended 450 hours but was awarded a lesser fee than requested. “[W]hile proof by way of contemporaneous records is not imperative, something more than wild guesses are necessary to support an award of fees based on reconstructed records.” Brake v. Murphy, 736 So. 2d 745, 747 (Fla. 3d DCA 1999). The court is free to disregard all expert testimony regarding the number of hours and make its own determination. Korman v. Pond Apple

Maintenance Ass’n, Inc., 607 So. 2d 489 (Fla. 4th DCA 1992); In re Estate of Harrell, 426 So. 2d 63 (Fla. 5th DCA 1983); In re Estate of Simon, 402 So. 2d 26 (Fla. 3d DCA 1981). Discovery of time records is discussed in § 11.3.E. « Ch. 11 », « § 11.2 », « M » 1 Litigation Under FL Probate Code § 11.2.M (2022)

M. Fee Contracts Commentators generally recommend fee contracts as a good way to avoid or mitigate fee disputes. See PRACTICE UNDER FLORIDA PROBATE CODE § 15.4.K (Fla. Bar 11th ed. 2022). A contract may cover the matter of attorneys’ fees, personal representatives’ commissions, or fees of other agents of the personal representative. The other party to the contract may be the testator, the beneficiaries, or, as to a contract for attorneys’ fees, both the personal representative (the attorney’s client) and the beneficiaries against whose share the fees will be charged. The statutory authority for these contracts is as follows: Between the decedent and the personal representative: F.S. 733.617(4). Between the decedent and the attorney: F.S. 733.6171(6). Between the attorney, the personal representative, and persons bearing the impact of the compensation: F.S. 733.6171(2). In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), contemplates a contract between the personal representative and the beneficiaries. There are also a number of mutuality issues with regard to a contract between the decedent and the attorney unless the attorney is also the personal representative or a joint personal representative. Although logically there is no good reason why the testator and the attorney should not be able to agree to a fee for the probate, the testator is unable to bind the designated personal representative to hire the intended attorney. F.S. 733.6171(6); In re Estate of Marks, 83 So. 2d 853 (Fla. 1955). This leads to the “second bite at the apple” problem. The personal representative is in a practical position to renegotiate the attorney’s compensation as a condition of employment, but the attorney has no such leverage. The disclosure requirements for percentage-based

compensation agreements under F.S. 733.6171(2)(b)3 reflect the legislature’s intent that a personal representative is not required to accept percentagebased compensation and may negotiate a different method of attorney compensation. On the other hand, the attorney also may decline the representation that would be subject to an agreement with the decedent. F.S. 733.6171(6). If the personal representative offers the employment and the attorney accepts, regardless of the negotiation of the fee between them, “the compensation paid shall not exceed the compensation provided in the agreement” with the decedent. Id. Also, the attorney is bound by statute to reveal the existence of an agreement with the decedent regarding the fee to be charged. The attorney is required to furnish a copy to the personal representative before the commencement of employment and, if employed, promptly file and serve a copy on all interested persons. Id. That contract amount then forms a cap on the compensation the attorney may be allowed. Presumably, with full disclosure of the preexisting contract between the decedent and the attorney, the attorney and the personal representative, with the consent of the beneficiaries, could agree to a different compensation arrangement, either greater or lesser than that in the decedent’s agreement. However, even a contract with the decedent that specifies the compensation may not bind the beneficiaries of the estate. If there has been no consent by the persons bearing the impact of the fee, when the time comes to close the estate, the beneficiaries may object to the compensation paid to the attorney under the contract with the decedent (or with the personal representative). Fla. Prob. R. 5.400, 5.401. Compliance with the disclosure requirements in F.S. 733.6171(2)(b) (as amended in 2021) for a percentagebased fee does not bind the beneficiaries, so their approval and the disclosure requirements under Rule 5.400 are still required. Although there is no case law or statutory provision that ensures the attorney compensation as agreed in the contract with the decedent, the decedent should be able to enter into a contract with the attorney that would bind the beneficiaries if the requirements for contracting with a client (the testator), discussed below, are met. The logic of that position is that the beneficiaries’ rights in the estate and its assets derive through the decedent. The decedent’s successors (the heirs) should have no greater rights than the decedent had.

The law is clear that a contract between the attorney and the personal representative, to which a person bearing the impact of the fee has not consented, will not bind the person bearing the impact. F.S. 733.6175. Even if there is a contract between the attorney and either the decedent or the personal representative (with consents of the beneficiaries), the position of the parties when the contract was executed must be examined. If the contract was entered into before the employment of the attorney by the personal representative commenced, it may be governed by the ordinary rules relating to contracts between competent parties. However, a fee contract created while the attorney represented the client must be measured against the standard of “fairness.” Halstead v. Florence Citrus Growers’ Ass’n, 104 Fla. 21, 139 So. 132 (1932); In re Estate of Kindy, 310 So. 2d 349 (Fla. 3d DCA 1975). Furthermore, it is the attorney’s burden to show the fairness by clear and convincing evidence. If one assumes that the compensation contract is not objected to by the personal representative, but rather is objected to by the beneficiaries, who consented to its terms after the attorney commenced representation of his or her client, the personal representative, the issue then becomes whether that “fairness doctrine” also extends to the estate beneficiaries who are not the attorney’s clients. In In re Estate of Gory, 570 So. 2d 1381, 1383 (Fla. 4th DCA 1990), the court held that “counsel for the personal representative of an estate owes fiduciary duties not only to the personal representative but also to the beneficiaries of the estate.” However, the characterization of these duties as fiduciary duties may be incorrect according to some practitioners. But keep in mind that the attorney does owe duties of some nature to the beneficiaries, which probably includes the duty to deal fairly with them. If the will provides for the rate or amount of compensation for the personal representative, F.S. 733.617(4) permits the personal representative (not the attorney) to renounce the compensation provision if there is no contract with the decedent, and to be awarded a reasonable fee. However, the renunciation must occur no later than the appointment as personal representative. It cannot be renounced after service, at the conclusion of the administration. Lowy v. Kessler, 522 So. 2d 917 (Fla. 3d DCA 1988); University of Florida Foundation, Inc. v. Miller, 478 So. 2d 482 (Fla. 1st DCA 1985). The logic of the statutory permission for renunciation is that the testator may provide for the fees of the personal representative in the will,

without the knowledge or consent of the personal representative. However, it appears that a testator could nominate a personal representative on the condition that the nominated fiduciary agree in advance of appointment to the specified compensation. Estoppel would probably prevent a personal representative who requested a specific fee provision that then was included in the will from renouncing the compensation provision. A contract between the attorney and the personal representative regarding the attorney’s fee is binding on the attorney and on the personal representative, individually, but not on the estate or its beneficiaries, unless consented to by those who would bear the impact of the fee. F.S. 733.619(1) provides that “a personal representative is not individually liable on a contract, except a contract for attorney’s fee” [emphasis added]. The assumption among probate practitioners has always been that if the court failed to allow the attorney’s fee in full as an estate expense, the lawyer had recourse personally against the personal representative for any excess over the amount that the court approved. In Richardson v. Jones, 508 So. 2d 739 (Fla. 2d DCA 1987), the attorney and the personal representative agreed to a fee that was fully paid by the personal representative from his personal funds. No fees were paid from the estate. There must have been an objection (about which the opinion was silent) and the court ordered the attorney to return to the estate the excess fees paid over the amount found to be reasonable, under F.S. 733.6175. The court quoted from that statute that “[a]ny person who is determined to have received excess compensation from an estate for services rendered may be ordered to make appropriate refunds” [emphasis added]. The court then stated: [The lawyer] argues that because he had been paid by [the personal representative] personally, rather than having been paid from the estate, the court had no authority to order a reimbursement. We find this argument to be without merit. The court’s order simply carries out its obligation to review and determine the reasonableness of compensation to be paid to an attorney for a personal representative. Richardson, 508 So. 2d at 740. The District Court of Appeal, Fourth District, also has aligned itself with

the Second District on this matter. In In re Estate of Winston, 610 So. 2d 1323 (Fla. 4th DCA 1992), although the fees for the attorney for the personal representative (and the fees of an agent for the personal representative) were required to be paid and were paid from a trust created by the decedent’s predeceased spouse (the trust was a New York situs trust), and no fees were paid from the estate, the court ruled that the question of the reasonableness of the fees could be determined by the Florida probate judge. It did not answer the question of how any excess fees were to be repaid: to the estate (which did not pay them initially), or to the New York trust. A fee contract, however, may not always protect the attorney. For example, in In re Estate of Lonstein, 433 So. 2d 672 (Fla. 4th DCA 1983), when a lawyer contracted (by letter) to represent three personal representatives for a maximum fee of $2,000, and when later, unexpected animosity developed that resulted in multiple petitions for removal of the various personal representatives, and two of the three were actually removed, the attorney was still bound by his agreement to represent the personal representatives for a maximum fee of $2,000. He could not then renounce his agreement and apply for a quantum meruit fee. No doubt [the attorney] never envisioned the problems he would encounter in this ostensibly liquid estate, which problems were generated mainly by the various personal representatives. However, he contracted to handle the Florida probate proceedings for a maximum of $2,000 and he must be held to its terms; he is not entitled to a quantum meruit determination of the value of those services. Id. at 674. The court commented that the lawyer could have made a distinction in his contract between ordinary and extraordinary attorney’s services but did not. See also In re Estate of Buchman, 270 So. 2d 384 (Fla. 3d DCA 1972). In Berger v. Brooks, 657 So. 2d 1281 (Fla. 3d DCA 1995), the attorney who had a contract under which the agreed fee was $1,000 was wrongfully discharged after having been paid $803. The attorney argued that the client had repudiated the contract by the wrongful discharge, and he was entitled to be compensated under the principles of quantum meruit, under which he calculated a reasonable fee of $8,800. The court agreed, but with the condition that the quantum meruit recovery was limited by the maximum

agreed amount in the contract, in this case $1,000. See also Kushner v. Engelberg, Cantor & Leone, P.A., 750 So. 2d 33 (Fla. 4th DCA 1999). In Executive Square, Ltd. v. Delray Executive Square, Ltd., 553 So. 2d 803 (Fla. 4th DCA 1989), the court discussed the best evidence rule as it applies to fee contracts. The attorney and the personal representative had a written fee contract, but it was not introduced and the attorney seeking fees testified regarding its terms. One point on appeal was that the written agreement was the best evidence of its contents and admitting the testimony was error. The court rejected this argument because counsel failed to object to the testimony at the time it was offered. « Ch. 11 », « § 11.2 », « N » 1 Litigation Under FL Probate Code § 11.2.N (2022)

N. Fees To Obtain Fees Before the Florida Supreme Court’s decision in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), there was a judicial split regarding the issue of whether the court could (or should) award attorneys’ fees incurred in a contest involving a judicial determination of the proper fee for the attorney for the personal representative’s attorney. The underlying argument by those who claimed entitlement to such fee was that when there was an objection to the fee paid or proposed to be paid (F.S. 733.6175), the burden of proof was on the personal representative (or the person employed by the personal representative). This was just another duty of estate administration required to be performed by the personal representative, who, under F.S. 733.106 and 733.617, is entitled to have the attorney paid from the estate for furnishing services that are required to administer the estate properly. The Platt decision, however, disapproved of this practice. “It also appears that a number of the hours for which [the attorney] claimed compensation are not compensable because the hours were spent collecting his fee.” Id. at 336, citing Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d 351 (Fla. 1987). The opinion suggests that neither the time nor the effort of the attorney for the personal representative may be compensated if expended to prove the reasonableness of the attorney’s fee. The opinion does not indicate whether, after objection, the attorney’s time or effort to establish the reasonableness of

the fees of the personal representative or other agents may be compensated. However, F.S. 733.6175(2) reversed Platt in this regard. It provides: Court proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are a part of the estate administration process, and the costs, including attorneys’ fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be substantially unreasonable. The court shall direct from which part of the estate the compensation shall be paid. This was initially adopted as F.S. 733.6171(8), but in 2002, the Florida Legislature slightly reworded the statute and moved it to F.S. 733.6175. The attorney’s right to receive fees in matters involving fee determination is now clear. In one case, separate counsel was hired by the attorney for the personal representative to represent the attorney for the personal representative who, in a contested proceeding, sought (and obtained) fees of $60,000 for the probate administration. The separate counsel then applied for the award of fees under former F.S. 733.6171(8), but those fees were denied because the separate counsel was not the attorney for the personal representative (as required by the language of the statute), but rather was the attorney for the attorney for the personal representative. In re Estate of Good, 696 So. 2d 876 (Fla. 4th DCA 1997). This result was changed in 2002 by rewording F.S. 733.6171(8) and moving it to F.S. 733.6175(2), which now permits recovery of attorneys’ fees “of the person assuming the burden of proof of … reasonableness of the compensation.” In another case, Zepeda v. Klein, 698 So. 2d 329 (Fla. 4th DCA 1997), counsel for a guardian claimed fees for efforts expended in determining the amount of his fees for representing the guardian in the guardianship proceeding. Although the opinion does not suggest that any claim for the fees was asserted under former F.S. 733.6171(8), the concept of the argument was similar. The claim was made under F.S. 744.108(1), the general guardianship attorneys’ fee statute, which allows compensation for “services rendered …

on behalf of the ward.” The court found that the time spent by the attorney in litigating the matter of the fees inured to the benefit of the attorney, not the ward. Absent a benefit to the ward, the American Rule would apply. See State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993). This result was also changed legislatively in 2003, creating F.S. 744.108(8) to parallel the result in probate administration. Although it did not appear that F.S. 733.6171(8) would allow fees to the attorney representing the personal representative in a proceeding in which determination of the personal representative’s commissions was at issue, this was changed when that subsection was amended and renumbered as F.S. 733.6175(2) in 2002. Before Platt and the later statutory amendment, the District Court of Appeal, Second District, under very aggravated circumstances, allowed fees for determining fees in In re Estate of DuVal, 174 So. 2d 580 (Fla. 2d DCA 1965). The personal representative, who was also the estate beneficiary, had a disagreement with his attorneys and discharged them. Subsequently, he objected to their requested fees. This case is a study in the obstacles that can be thrown into the path of an attorney attempting to collect a fee. However, neither the trial court nor the appellate court took kindly to the personal representative’s efforts, which they saw as merely unwarranted attempts to avoid paying a reasonable fee to the attorneys: Upon tracing the divers steps taken by appellant [the personal representative] in the probate court, the conclusion is inescapable that the appellees [attorneys] were thereby required to devote extraordinary services in and about this proceeding in order to protect their interest against appellant’s assault. The presumption abides that it was the decedent’s intent that his estate shall be administered according to law and its lawful obligations, including expenses of administration, shall be promptly discharged when due; and this contemplates that those performing services on behalf of the estate will not be put to unnecessary expense and labor in order to be compensated therefor. Id. at 586–587. The court proceeded to award attorneys’ fees and extraordinary fees for the efforts expended in justifying the fees. See also Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998), in which the Florida Supreme Court reaffirmed the “inequitable conduct” doctrine as an exception

to the American Rule. For further discussion of fees to obtain fees, see Davis & Hauser, May a Prevailing Party Recover Attorney’s Fees for Litigating the Issue of Attorney’s Fees? A Plea for Uniformity, 64 Fla. Bar J. 33 (April 1990). « Ch. 11 », « § 11.2 », « O » 1 Litigation Under FL Probate Code § 11.2.O (2022)

O. Expert Witness Fee For Attorney/Witness Historically, courts had the discretion to award a fee to an attorney/witness who testified as an expert on the issue of fees. Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985); F.S. 733.6171(6) (1993). In his dissenting opinion in Travieso, however, Justice Ehrlich noted that F.S. 92.231 was mandatory in allowing a witness fee to an expert and made no exception when the witness happened to be an attorney. The Florida Supreme Court in Travieso approved Murphy v. Tallardy, 422 So. 2d 1098 (Fla. 4th DCA 1982). The rationale of Murphy is stated succinctly: “However, neither is it practical nor justified to single out lawyers as experts who should not be paid for their expert testimony.” Id. at 1100. Currently, expert witness fees are mandatory under F.S. 733.6175(4), which provides that “[i]f expert testimony is offered, a reasonable expert witness fee shall be awarded by the court and paid from the assets of the estate.” Additionally, the court is required to direct from which part of the estate the fees will be paid. See also Baumann v. Estate of Blum, 898 So. 2d 1106 (Fla. 2d DCA 2005). « Ch. 11 », « § 11.2 », « P » 1 Litigation Under FL Probate Code § 11.2.P (2022)

P. Interest On Attorneys’ Fees Awarded But Unpaid An award of attorneys’ fees is not a final judgment against an estate that could be executed upon. Because it is not a money judgment, it would not bear interest as provided under F.S. 55.03 for these judgments. An attorney could contract for interest to be paid from either the date services were rendered, the date a statement was rendered, or the date an order was entered determining the amount of the fees. Also, one of the statutory factors to be considered by the court in determining a reasonable fee

is F.S. 733.6171(5)(h) (“[a]ny delay in payment of the compensation after the services were furnished”). An agreement with a client to pay interest may also require the disclosures and notices mandated by law on consumer or open account interest. One case, however, should be familiar to those who would try to obtain interest on long-delayed payment of attorneys’ fees. The court in In re Estate of Lunga, 360 So. 2d 109, 111–112 (Fla. 3d DCA 1978), stated: We do not hold that there can never be any situation wherein an interest award would be proper and justifiable. For example, where payment is improperly and arbitrarily withheld when there are ample cash assets in the estate to make payment, the probate judge has the discretion to allow or disallow interest on payments awarded as attorneys’ fees. Also, earlier in the opinion, the court quoted from the trial order that no request was made by the attorneys at the time they petitioned the court for their fees for either immediate payment or allowance of interest; and … payments were made within a reasonable time from the date of the sale of the estate’s assets. Id. at 111. As suggested in the commentary, it appears that each petition for fees should request either immediate payment or, if payment is to be delayed (to accommodate the estate), that interest be allowed on the amount of fees awarded. Presumably, the only reason immediate payment would not be made would be to accommodate the estate so that it could liquidate assets in a more favorable sales environment, to the benefit of the beneficiaries. Also, appreciation, interest, or income would accrue to estate assets during that period. This benefits the estate at the expense of the attorney. For example, the estate might have a certificate of deposit that could be cashed (with a penalty), but the personal representative decides to defer payment of the attorney’s fee for six months to allow the certificate to mature. During the six months the attorney is required to wait for fees, the estate earns a determinable rate of interest on that sum and also avoids a penalty. Alternatively, assets may be liquidated to pay taxes due but insufficient

liquidity might remain to pay fees awarded. Funds are then used to pay taxes, although fees have a greater priority under the statute, simply because if the same funds were used to pay fees, interest would accrue on the unpaid taxes. This is a thinly veiled interest-free loan from the attorney to the estate to pay taxes or other expenses. It is reasonable that if interest is received or appreciation of assets occurs while the lawyer is patiently awaiting payment, he or she should either share proportionally in the mesne profits or receive interest. « Ch. 11 », « § 11.2 », « Q » 1 Litigation Under FL Probate Code § 11.2.Q (2022)

Q. Interim Or Partial Fees No order is required to pay interim or partial compensation to the personal representative or the attorney. F.S. 733.617(1), 733.6171(1). See § 11.2.I. See also Sheffield v. Dallas, 417 So. 2d 796 (Fla. 5th DCA 1982). The court has jurisdiction to consider an award of partial or interim fees. F.S. 733.6175. The procedure for such application is set forth in Fla. Prob. R. 5.355. However, the court may decline to consider an order awarding partial fees, because the award, even if after proper notice, is not a final determination that the fees allowed were reasonable, nor does it become the law of the case. The court in In re Estate of Cordiner, 497 So. 2d 920, 921 (Fla. 2d DCA 1986), held that if at the final hearing on fees it is determined that the partial award was either excessive or deficient, the final award may be adjusted accordingly. See also section 733.6175, Florida Statutes (1985) (person determined to have received compensation for services rendered an estate may be ordered to make appropriate refunds). On that basis, the court held that it was not error to award an interim fee without testimony of an expert as to the reasonable value of the services. Under the present version of the statute, expert testimony is not required, even as to a final award. F.S. 733.6175(4). See also Gaines v. DeWitt, 41 So. 3d 951 (Fla. 2d DCA 2010) (beneficiary who withdrew objections to fees shown on interim accounting held not to have waived right to object to those same fees shown on final accounting). For further discussion, see PRACTICE UNDER FLORIDA PROBATE CODE §

15.4.M (Fla. Bar 11th ed. 2022). « Ch. 11 », « § 11.2 », « R • 1 Litigation Under FL Probate Code § 11.2.R (2022)

R. Fees For Appellate Services « Ch. 11 », « § 11.2 », « R •, • 1 » 1 Litigation Under FL Probate Code § 11.2.R.1 (2022)

1. Introduction The rules quantifying fees and the rules that determine the persons entitled to fees from an estate (or from a third party) continue to apply with uniformity for legal services rendered on appeal. This topic is discussed here in more of a jurisdictional or “proper forum” sense. For a more in-depth treatment of the subject of appeals, see Chapter 14 of this manual. « Ch. 11 », « § 11.2 », « R •, « 2 • 1 Litigation Under FL Probate Code § 11.2.R.2 (2022)

2. Application Fla. R. App. P. 9.400(b) governs the award of attorneys’ fees for appellate proceedings. It requires that fees for appellate proceedings be awarded by the appellate court, although the determination of the amount of the fee may be decided by the trial court following remand from the appellate court. Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So. 3d 1240 (Fla. 1st DCA 2012); Howell v. Howell, 183 So. 2d 261 (Fla. 2d DCA 1966). However, in facial conflict with that rule is Article V, § 5(b), of the Florida Constitution, and F.S. 26.012(2)(b), which grants jurisdiction “[o]f proceedings relating to the settlement of estates of decedents … and other jurisdiction usually pertaining to courts of probate” to the circuit court. See Geldi v. MacCabe, 243 So. 3d 360 (Fla. 2d DCA 2018). Although the proper procedure in probate situations is apparently well known and understood by appellate judges, practicing lawyers have more difficulty—so much difficulty, in fact, that the District Court of Appeal, Fourth District, issued “clarifying” opinions in 1981 and 1987. Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981); In re Estate of Udell, 501 So. 2d 1286 (Fla. 4th DCA 1987). Specifically, the Fourth District in Cari provided a concise guideline:

[The court in] Howell v. Howell, 183 So. 2d 261, 264 (Fla. 2nd DCA 1966) succinctly states the rule that “the trial court is without authority to fix attorneys’ fees for services rendered in the Appellate Court … .” In Re Estate of Potts, 199 So. 2d 319 (Fla. 2nd DCA 1967) and In Re Estate of Garvey, 212 So. 2d 790 (Fla. 3rd DCA 1968) are cited and argued in the briefs of both parties. Because of the importance of the question involved and the frequency with which it is raised, we will touch briefly upon what we perceive to be the distinguishing feature between the rule in those cases and the rule involved here. First, the rule applied in the instant case is that the trial court is without authority to assess attorney’s fees for services rendered in the Appellate Court. This rule continues to be applicable under the appellate rules adopted in 1977. (Fla. R. App. P. 9.400.) Second, the rule referred to in the cited cases provides that the probate court has exclusive jurisdiction (Art. V, § 7(3), Fla. Const.) to award attorneys’ fees in the settling of estates. Any supposed conflict in the application of these two rules is superficial. The appellate rule simply permits the appellate court under appropriate circumstances to require the losing party to pay the attorney’s fees incurred by the prevailing party for prosecuting the appeal. The case law interprets this rule as prohibiting the trial court from doing so. Thus the probate court may not assess a fee to be paid by the estate to an attorney representing a party adverse to the estate for services rendered in prosecuting a successful appeal against the estate. The probate rule gives the probate court authority to require an estate to pay an attorney for services rendered to the estate, which may include services rendered in the appellate court. It follows that an appellate court is not permitted to award a fee to be paid from the estate to the attorney for the estate for services rendered on appeal. Cari, 394 So. 2d at 1023. When the services rendered fall within the classification of “settlement of estates of decedents,” and attorneys’ fees are thereby to be paid from the estate, the fees, whether for services in the trial (probate) court or on appeal, are determined and awarded by the trial (probate) court. An example would

be the services of an attorney for a third party (e.g., a beneficiary) who benefited the estate and was entitled to the award of fees under F.S. 733.106(3). See § 11.2.C.2.a. Also, if the estate prevailed on appeal, its attorney would be paid from the estate as determined by the probate judge. In re Estate of Gray, 626 So. 2d 971 (Fla. 1st DCA 1993). If the fees fall outside “settlement of estates of decedents,” such as a lawsuit against an estate on a promissory note or a construction lien, even though the fees are paid from the estate, fees for appellate services would be awarded by the appellate court. If it is the estate, or a third party on behalf of the estate, who prevails and is entitled to attorneys’ fees by statute or contract, against a party other than the estate, the fees on appeal are awarded by the appellate court. Many other circumstances remain unanswered by Florida courts. For example, an action may be brought against the personal representative under F.S. 733.609 for improper exercise or nonexercise of fiduciary power. If the personal representative prevails and the judgment is appealed, should the fees awardable under the statute for services on appeal be awarded by the appellate court or the probate court? The determination hinges upon whether such action is part of the settlement of estates of decedents, and the answer is probably that it is not, and the fees should be awarded by the appellate court. In Langer v. Fels, 93 So. 3d 1069 (Fla. 4th DCA 2012), two sisters, who were the joint personal representatives, appear to have personally claimed the decedent’s bank account. The basis of their claim is not reported. An estate beneficiary objected that the account was an estate asset and filed an action for declaratory relief and (in tort) for conversion, and prevailed. The case on the merits was appealed. While that appeal was pending, the estate beneficiary moved in the trial court for the award of fees under F.S. 733.609(1) (breach of fiduciary duty and improper exercise of personal representative’s powers) and 733.619(2) (individual liability of personal representative for torts committed in course of estate administration) and the trial judge, in a nonfinal order, determined the estate beneficiary’s entitlement to the fees, but reserved jurisdiction to determine the amount. The estate beneficiary then moved in the pending appeal for appellate attorneys’ fees on the same grounds. On appeal, the Fourth District sustained the trial court on the merits but denied the appellate fees. The personal representatives then

moved the trial court to reconsider its earlier order determining entitlement to fees on the ground that the law of the case precluded award of fees by the trial court; the estate beneficiary moved to determine the amount of the fees. The trial court denied the motion to reconsider its earlier order and awarded a specific amount of fees. The personal representatives appealed. On appeal, the Fourth District held that the law of the case applied to prevent the award of fees. Specifically, “appellate attorney’s fees in this case were denied during the original appeal on the merits under the same statutory provisions that the trial court determined would entitle [the estate beneficiary] to a fee award at the trial level. As such, we reverse the Fee Orders under consideration in this appeal.” Id. at 1072. Six months later, the same court held in Shuck v. Smalls, 101 So. 3d 924 (Fla. 4th DCA 2012) (with one judge in the overlapping panels), that F.S. 57.105 fees that were denied by the appellate court in the merits appeal could be awarded by the trial court for trial fees. In so holding, the court in Shuck noted the seeming conflict but stated: Appellants’ reliance on Langer … is misplaced. There, we recently held that the law of the case doctrine applied to bar a fee award where appellate attorney’s fees were denied during the original appeal on the merits under the same statutory provisions that the trial court determined would entitle the party to a fee award at the trial level. Id. at 1072. However, Langer is distinguishable, as that case did not involve section 57.105 fees. Shuck, 101 So. 3d at 930 n.4. However, the chain of rulings continued. In Pompano Masonry Corp. v. Anastasi, 125 So. 3d 210 (Fla. 4th DCA 2013), decided two months later, the same court (with the same judge in the overlapping panel), addressed allowance of attorneys’ fees under Fla. R. Civ. P. 1.730(c), a mediation rule. This rule provides “[i]n the event of any breach or failure to perform under the [mediation settlement agreement], the court upon motion may impose sanctions, including costs, attorneys’ fees, or other appropriate remedies including entry of judgment on the agreement.” The parties entered into a mediated settlement agreement that required the exchange of mutual general releases. One party refused to sign a general release and moved to set aside

the agreement. The trial court denied the motion and the losing party appealed. On appeal, the prevailing party asked for attorneys’ fees under Rule 1.730(c). While the appeal was pending, the prevailing party moved the trial court to award it fees under the same rule. The trial court held a hearing and found bad faith on the part of the party refusing to sign the general release, and held the prevailing party was entitled to attorneys’ fees at the trial level. It reset a hearing to determine the amount to be awarded. Meanwhile, the appellate court ruled on the motion before it to award attorneys’ fees, denying the motion. In the trial court hearing to determine the amount of allowable fees, the losing party argued that the appellate court’s denial of fees under the same rule was the law of the case and the trial court could not award trial level attorneys’ fees. The trial court rejected this argument and awarded fees. That award was then appealed. The Fourth District began by recognizing some confusion regarding its prior opinions that were released within a nine-month time period. Interestingly, however, it did not mention Shuck, which was decided only two months earlier. Specifically, the court stated: We begin by reconciling our prior decisions regarding whether an appellate court’s denial of attorneys’ fees constitutes binding law of the case on the trial court. See Langer v. Fels, 93 So. 3d 1069 (Fla. 4th DCA 2012); McNamara v. City of Lake Worth, 956 So. 2d 509 (Fla. 4th DCA 2007). In Langer, McNamara, and the instant case, there was a prior appeal in which this court affirmed the trial court’s ruling in favor of the appellees, but denied the appellees’ motions for appellate attorneys’ fees. In each of these cases, the trial court [awarded] attorneys’ fees under the same statutory basis rejected by this court in the prior appeal. In Langer, we reversed the trial court’s entry of fees under sections 733.609 and 733.619, Florida Statutes. In McNamara, we affirmed the trial court’s entry of attorneys’ fees under section 57.105, Florida Statutes. The distinction between Langer and McNamara is the statutory bases underlying the motions for attorneys’ fees. Langer addressed statutes that provide attorneys’ fees as a matter of law when certain criteria are met. Thus, this court’s rejection of entitlement under those statutes was binding law of the case. In contrast, the statute at issue in McNamara involved a sanction centered around factual determinations

by the trial court. Thus, this court’s rejection of attorneys’ fees under the sanction provision was not binding law of the case. Anastasi, 125 So. 3d at 212. The court then noted that because Rule 1.730 is a sanction provision like F.S. 57.105, the “appellate court’s rejection of appellate attorneys’ fees under Rule 1.730(c) does not preclude the trial court from granting trial level attorneys’ fees under the same rule.” Anastasi, 125 So. 3d at 212. Recently, this chain of rulings was addressed in Florida Wellness & Rehabilitation Center, Inc. v. Mark J. Feldman, P.A., 276 So. 3d 884 (Fla. 3d DCA 2019), in which the court distinguished an award of fees under Rule 9.410 based upon the filing of a frivolous brief. The court noted that the determination is based upon the documents filed with the appellate court, not a list of statutory criteria. Therefore, it is a discretionary matter for the court, going on to say, “[i]n other words, this court could have exercised its discretion to deny the … motion for fees as a sanction, regardless of its determination whether the Law Firm’s petition was frivolous. Id. at 891. A reading of the few (and poorly indexed) cases that address this topic is required. In addition to the cases cited above, see Garvey v. Garvey, 219 So. 2d 685 (Fla. 1969); In re Estate of McCune, 223 So. 2d 787 (Fla. 4th DCA 1969). See also § 14.8.A of this manual.

« Ch. 11 », « § 11.3 » 1 Litigation Under FL Probate Code § 11.3 (2022)

§ 11.3. PROCEDURE « Ch. 11 », « § 11.3 », • A » 1 Litigation Under FL Probate Code § 11.3.A (2022)

A. Parties Fla. Prob. R. 5.041 requires every petition or motion to be “served on interested persons.” Interested persons are defined by the Florida Probate Code as “any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved.” F.S. 731.201(23). Proper interpretation of these provisions requires that the person assuming the burden of proof (generally the attorney or personal representative), and those bearing the impact of the fee, not merely be given notice, but instead actually be made parties to the proceeding to determine the amount of a fee. If one of the estate beneficiaries that would bear the impact of the fee is a trust, the trustee would be the beneficiary required to receive notice and be made a party, unless the trustee had a conflict (e.g., the trustee was also the personal representative petitioning for fees, see F.S. 731.303(1)(b)2, in which case each qualified beneficiary of the trust, whether income or remainder, would become an interested person. F.S. 731.201(2). Minor and contingent or unknown beneficiaries would be represented by the qualified beneficiaries having the same or greater interest (F.S. 731.303(1)(c), (3)(b)) or by a guardian ad litem appointed for that purpose (F.S. 731.303(4); Rule 5.120(a)). In all instances in which the personal representative was applying for fees and in most instances in which the attorney for the personal representative was applying, there would be a conflict requiring designation of the underlying beneficiaries as parties. When the proceeding is initiated by an objection (see § 11.3.B.2), probably the only necessary parties are the objecting party, the personal representative, and, if the objection relates to the attorney’s fee, the attorney. It would not be necessary or proper to designate nonobjecting persons as a part of the proceeding because, by their failure to timely object, they are deemed to have waived any objection. Rule 5.401.

It is important to recognize the status of the person against whom a claim is made. If a party requests an order requiring that an attorney disgorge fees paid by the personal representative, the attorney must be served with formal notice, giving the court has personal jurisdiction over the attorney. Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015). In Simmons, the court also discussed the need to serve a personal representative by formal notice if a party sought a surcharge against the personal representative individually for excessive fees paid to the personal representative. If the objection was limited to a proposed payment of fees to the personal representative or the personal representative’s attorney, and the payments will come from estate assets, the court still has in rem jurisdiction over the funds up until the time they are paid. As such, personal jurisdiction is not required for the approval of fees. « Ch. 11 », « § 11.3 », « B » 1 Litigation Under FL Probate Code § 11.3.B (2022)

B. How Proceeding Is Commenced « Ch. 11 », « § 11.3 », « B », • 1 » 1 Litigation Under FL Probate Code § 11.3.B.1 (2022)

1. By Petition Compensation of the personal representative and attorney may be paid without court order and during the probate administration, subject to a right of recovery if payment is found to be excessive. F.S. 733.617(1), 733.6171(1), 733.6175(3). If the attorneys’ fees are based upon the percentage method, the attorney must have satisfied the disclosure requirements in F.S. 733.6171(2)(b). A petition may be brought to determine the reasonableness of compensation of a personal representative or an attorney by any interested person bearing all or a part of the impact of the payment of such compensation. F.S. 733.6175. Notice must be given to all interested persons. See § 11.3.A. The petition contemplated by the statute could be initiated by the attorney, the personal representative, or an interested person. Fla. Prob. R. 5.355 is the rule corresponding to F.S. 733.6175. To the extent that F.S. 733.6175 is procedural, the rule will control. The rule is not significantly different from subsections (1) and (3) of the statute. « Ch. 11 », « § 11.3 », « B », « 2 • 1 Litigation Under FL Probate Code § 11.3.B.2 (2022)

2. By Objection To Petition For Discharge Or Final Accounting The usual method of bringing the question of compensation for review before the court is by objection to the petition for discharge or to the final accounting. The procedural aspects of accounting and discharge are governed by Fla.Prob.R. 5.400. Subdivision (b)(4) of the rule requires that the petition for discharge show “the amount of compensation paid or to be paid to the personal representative, attorneys, accountants, appraisers, or other agents employed by the personal representative and the manner of determining that compensation” (unless waived). In addition, the petition must be accompanied by a final accounting (unless waived) which, under Rule 5.346, would be required to show any disbursements for compensation up to and including the ending date of the accounting. The procedure regarding objections to accountings is set forth in Rule 5.401. This would include objections to the fees paid as shown in the accounting as well as objections to the fees paid or proposed to be paid as shown in the petition for discharge. Rule 5.400(b)(6) provides that a petition for discharge must contain a statement that any objections to the accounting, the compensation paid or proposed to be paid, or the proposed distribution of assets must be filed within 30 days from the date of service of the last of the petition for discharge or final accounting; and also that within 90 days after filing of the objection, a notice of hearing thereon must be served or the objection is abandoned. The premature entry of an order of discharge that did not allow for consideration of the timely filed objection was reversed and remanded in In re Estate of Unanue, 235 So. 3d 1006 (Fla. 2d DCA 2017), when the order was entered 18 days after the final accounting and the petition for discharge were filed. It is also possible to object to fees shown in an interim accounting as paid. However, the failure to object to fees shown in an interim accounting does not waive the right to object subsequently to that same compensation. Sheffield v. Dallas, 417 So. 2d 796 (Fla. 5th DCA 1982). See also In re Estate of Goodwin, 511 So. 2d 609 (Fla. 4th DCA 1987). It would be unusual for the court to try the issue of fees shown on an interim accounting unless it appears that interim payment of excess fees might not be recoverable later or

unless the personal representative resigns or is removed, because the determination is not final and can be litigated at the time of discharge. In re Estate of Cordiner, 497 So. 2d 920 (Fla. 2d DCA 1986). An objection to an interim accounting, Rule 5.345(c), or to a final accounting or petition for discharge, Rule 5.401, must state with particularity the items to which the objection is directed and the grounds upon which the objection is based. If a hearing on an objection to a final accounting is not noticed within 90 days of the filing of the objection, the objection is deemed abandoned. Rule 5.401(d). This latter provision, logically, has no counterpart with reference to interim accountings. « Ch. 11 », « § 11.3 », « C » 1 Litigation Under FL Probate Code § 11.3.C (2022)

C. Nonadversary Versus Adversary Proceeding The objection discussed in this section relates to only the determination of final attorneys’ fees or personal representatives’ commissions. A proceeding objecting to compensation paid or to be paid, whether initiated under Fla. Prob. R. 5.355 with a petition or arising from an objection to a petition for discharge or a final accounting under Rule 5.401, is not an adversary proceeding under Rule 5.025. It may, however, be declared adversary under the procedure in Rule 5.025(b), if desired. Hays v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009). In terms of availability of discovery and the rules of evidence, failure to declare this proceeding to be adversary has no perceived disadvantage (other than the fact that an answer to the petition is not required) because, even under nonadversary proceedings, all of the relevant civil discovery rules are made applicable to probate under Rule 5.080, and the rules of evidence applicable in civil actions, including the Florida Evidence Code, are also applicable to nonadversary probate proceedings. Rule 5.170. Furthermore, an order determining or approving attorneys’ fees (other than interim or partial fees) would be a final order from which a right of appeal lies. Rule 5.100; Fla. R. App. P. 9.170(b)(23). But see § 11.3.I (discussing which rules are not applicable). If a party to the proceeding wishes to declare it to be adversary, that party may do so by service on interested persons of a separate declaration that the

proceeding is adversary. For discussion of who is an interested person, see § 11.3.A. If the objection is commenced by a petition under Rule 5.355, the declaration that a matter is adversary must be served by the petitioner with the petition. Rule 5.025(b)(1). If the declaration is by a respondent, the declaration must be filed and served by the respondent on all interested persons. Rule 5.041. The petitioner then must serve formal notice of the petition or motion to which the declaration relates on all interested persons other than the respondent. Rule 5.025(b)(3). The ability of a respondent to declare a matter as adversary is time-limited to the shorter of 20 days after service of the petition or before the hearing. Rule 5.025(b)(2). « Ch. 11 », « § 11.3 », « D » 1 Litigation Under FL Probate Code § 11.3.D (2022)

D. Pleading Requirements There is no FLSSI form and no published form in any of The Florida Bar manuals for an objection to compensation. Fla. Prob. R. 5.401(b) requires that “[w]ritten objections to the petition for discharge or final accounting must state with particularity the items to which the objections are directed and must state the grounds on which the objections are based.” In addition to the objection, the objecting party must be diligent with regard to serving a notice of hearing on those objections within 90 days of filing the objections, or those objections are deemed waived. Rule 5.401(d). But see In re Estate of Cummins, 979 So. 2d 984 (Fla. 3d DCA 2008) (excusable neglect existed to allow enlargement of 90-day period for widow to file notice of hearing on her objections). The alternative procedure to cause either the review or determination of fees is a petition under Rule 5.355. A sample petition and an order regarding attorneys’ fees are available in PRACTICE UNDER FLORIDA PROBATE CODE §§ 15.4.P.2‒15.4.P.3 (Fla. Bar 11th ed. 2022). Rule 5.355 is generally silent with regard to pleading requirements, with the exception that it provides that “[t]he petition shall state the grounds on which it is based.” « Ch. 11 », « § 11.3 », « E » 1 Litigation Under FL Probate Code § 11.3.E (2022)

E. Discovery It is a little-known fact that, regardless of whether a matter has been

declared to be an adversary proceeding under Fla. Prob. R. 5.025, the Florida Rules of Civil Procedure as it relates to discovery apply because they have been incorporated by reference as a part of the Florida Probate Rules. Rule 5.080. It is, therefore, unnecessary to declare a compensation dispute proceeding adversary merely for the purpose of having full and complete discovery available. For discussions regarding discovery generally, see FLORIDA CIVIL PRACTICE BEFORE TRIAL Chapter 16 (Fla. Bar 14th ed. 2022); TRAWICK’S FLORIDA PRACTICE AND PROCEDURE Chapter 16 (Thomson/West 2022 ed.). In litigation in which attorneys’ fees are to be set or assessed, discovery of time records becomes relevant at the point in the proceedings when the fees are to be set or determined. If the award of fees relates to estate litigation, that point is after the trial. In In re Estate of Ransburg, 608 So. 2d 49 (Fla. 2d DCA 1992), which involved a will contest initiated by a petition to revoke probate, when the petitioner’s attorney pled entitlement to attorneys’ fees under F.S. 733.106(3) (an attorney who benefits the estate), the court ruled that discovery of attorney time records was not relevant before determination of entitlement, i.e., following successful conclusion of the litigation. If the determination involves determination of final attorneys’ or personal representatives’ fees for the estate administration, the time for discovery of time records would be at the point of the objection. « Ch. 11 », « § 11.3 », « F » 1 Litigation Under FL Probate Code § 11.3.F (2022)

F. Burden Of Proof The burden of proof in a petition brought under F.S. 733.6175 or Fla. Prob. R. 5.355 is specifically stated to be on the personal representative and the persons employed. The burden of proof is not so clear with regard to an objection to a final accounting brought under Rule 5.401, because that rule does not speak directly to the burden of proof, as does Rule 5.355 and its associated statute. Nonetheless, it inherently appears that the initial burden of proof is on the personal representative (or in objection to compensation, on the personal representative or the person employed) to prove prima facie the correctness

of the final accounting as well as the reasonableness of compensation paid or intended to be paid. In re Estate of Goodwin, 511 So. 2d 609 (Fla. 4th DCA 1987), involved an appeal from several orders concerning accountings and determining compensation. That decision is not clear in its holding regarding the locus of the burden of proof, although the opinion (without making a distinction between the two types of proceedings) cites F.S. 733.6175 and concludes that the burden of proof is on the personal representative as to all items that were at issue. Another court, Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980) (a patchwork of undefined and unresolved procedural issues with regard to objections), has also held that the burden is on the personal representative. These cases were decided after F.S. 733.6175 was adopted. Compare Farber v. Perry, 141 Fla. 111, 192 So. 794 (1940), with Perry v. Farber, 115 Fla. 410, 155 So. 839 (1934). Burden of proof was most recently addressed in Faulkner v. Woodruff, 159 So. 3d 319 (Fla. 2d DCA 2015), in which a personal representative, citing to F.S. 733.6175 and Rule 5.355, filed an amended petition for review of compensation of the estate employees as both “an interested person” and as personal representative of the estate, following the probate court’s dismissal without prejudice based on the court’s findings that the personal representative was required to interplead himself, as personal representative, into the action. On appeal, the appellees claimed that F.S. 733.6175(3), which provides that “[t]he burden of proof of propriety of the employment and the reasonableness of the compensation shall be upon the personal representative and the person employed,” placed the burden of proof as the reasonableness of attorneys’ fees on both the personal representative and the lawyers (as estate employees). As a result, the appellees claimed that the personal representative was required to interplead himself. The Faulkner court rejected the appellees’ argument, disagreeing that F.S. 733.6175 required that result. The court, following an examination of the legislative history of F.S. 733.6175, reiterated that law that in a proceeding for review of reasonableness of compensation of a personal representatives and employees of an estate, the personal representative of the estate has the burden to establish its fees were reasonable, and likewise, a person hired by the personal representative has the burden of proving that their fees were

reasonable. The court held that the lawyers hired by the personal representative of the estate to assist in the administration of the estate, as parties seeking fees, had the burden of proof to establish that their fees were reasonable. « Ch. 11 », « § 11.3 », « G » 1 Litigation Under FL Probate Code § 11.3.G (2022)

G. Getting To Final Hearing Procedures to get to final hearing will vary from circuit to circuit and from judge to judge and will also depend on whether the matter has been declared adversary or whether it proceeds under the Florida Probate Rules. If the matter has been declared adversary, Fla. R. Civ. P. 1.440 controls the procedure. That rule provides for a “notice that the action is at issue and ready … for trial” to be served by any party at any time after the action is at issue. Rule 1.440(b). A civil action is at issue after any motion directed to the last pleading has been disposed of, or if no motions are served, 20 days after service of the last pleading. Rule 1.440(a). (For this purpose, it is necessary to determine what is a “pleading.” Contrary to popular belief among some probate lawyers, every paper in the file bearing a caption is not a pleading.) The matter then may be set by the court for trial, at a date no less than 30 days from the service of the notice for trial. Rule 1.440(c). For further discussion, see TRAWICK’S FLORIDA PRACTICE AND PROCEDURE § 22:2 (Thomson/West 2022 ed.). When the matter has been declared adversary, it is improper, but all too frequently seen, to simply send a notice of hearing for a final evidentiary hearing; whereas, the proper response, if agreement cannot be reached, is to move to strike the notice of hearing as not being compliant with the applicable rule. If the proceeding is not adversary, the Florida Probate Rules contain no specific provisions for, or limitations on, setting a trial or final hearing. If the issue of compensation has been raised by an objection to the final accounting or to the petition for discharge, Fla. Prob. R. 5.401(d) provides that any interested person may set a hearing and that notice must be given to all interested persons within 90 days of filing the objection. See §§ 11.3.B.2, 11.3.D. The procedure for proceeding to final hearing on the matter of

compensation in a nonadversary proceeding is somewhat informal and may vary significantly from circuit to circuit. In any event, if there is no agreement between the parties, it would be appropriate (assuming the 90-day bar of Rule 5.401(d) is not an issue) to file a motion to set a final hearing and have that motion heard either by special appointment or at motion calendar. Also, because many attorneys involved in disputed compensation proceedings are civil litigators, it is not uncommon to see a notice for trial similar to one that would be used under the Florida Rules of Civil Procedure. Because the rules do not prescribe the procedure, this is neither improper nor required, but may end up being ignored by the court. When the matter has not been declared adversary, it is not uncommon for the adversary to send a notice of hearing setting the contested attorneys’ fees issue for hearing. It is not unusual for this to be set for 15 to 30 minutes in a special appointment hearing. This is totally inadequate to try a contested attorneys’ fees issue that may require a half day to more than a week to try. If opposing counsel cannot be made to see the logic, a motion to continue must be filed and argued. Two other preliminary procedures are also relevant with regard to proceeding to final hearing or trial on the issue of compensation. Those two procedures are pretrial conference and mediation. With regard to pretrial conference, under the Florida Rules of Civil Procedure, Rule 1.200(b) provides for a pretrial conference at the option of the court or alternatively on motion of either party. It appears that if the matter is not adversary, there is no rule authority for a pretrial conference. Obviously, the court, on its own motion or at the request of either party, may order a pretrial conference. The second pretrial issue is mediation. Rule 1.700 permits the judge to refer a matter for mediation and, alternatively, allows the parties to stipulate to mediation. Although mediation has become widespread with regard to resolution of disputes such as will contests and other common forms of probate litigation, it has not become commonplace with regard to compensation disputes. In a will contest, when the matter is adversary per se and the civil rules apply, Rule 1.700 is clearly applicable. If the compensation dispute is nonadversary, there is a question whether the court has authority to order mediation or, if the parties decline to comply, whether sanctions may

be imposed similar to those provided under Rule 1.720. Mediation as a procedure for alternative dispute resolution is proving to be one of the most significant advances in jurisprudence in many years. The high degree of success justifies its use in most instances. « Ch. 11 », « § 11.3 », « H » 1 Litigation Under FL Probate Code § 11.3.H (2022)

H. Settlement There is an old adage that a bad settlement is better than a good trial. That is especially true regarding settlement of compensation issues. Experience has shown that the attorney who is litigating his or her own fees becomes emotionally involved in the same manner as clients do in their cases. If separate counsel is retained (a highly recommended procedure), there is the expense of any portion of retained counsel fees not awarded by the court (see In re Estate of Good, 696 So. 2d 876 (Fla. 4th DCA 1997)), together with the lost opportunity to earn other fees for the lawyer/respondent. This type of litigation is distracting and generally unproductive. The lawyer must recognize that judges will generally try to give the objectors something, and occasionally are very harsh on attorneys defending apparently modest fees. See Phipps v. Estate of Burdine, 586 So. 2d 381 (Fla. 5th DCA 1991). All things considered, as either the objector or respondent, a party should explore the potential for settlement at the earliest point possible. Both sides will frequently be best served by settlement. Mediation is often helpful in this regard. On the subject of attorneys’ fees incurred in the determination of reasonable attorneys’ fees, see § 11.2.N. « Ch. 11 », « § 11.3 », « I » 1 Litigation Under FL Probate Code § 11.3.I (2022)

I. Final Hearing As the day of final hearing approaches and pretrial conference and mediation are concluded, or are not applicable, the lawyer must consider how the final hearing will be conducted.

Some probate attorneys, especially nonlitigators, come prepared to argue their case but not to prove it. A trial or final hearing is an evidentiary hearing that may have opening and closing argument but must create a sufficient evidentiary record to be sustained on appeal. Affidavits and exhibits offered without authentication, if objected to, are not proper evidence. “ ‘Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand.’ ” Brake v. Murphy, 736 So. 2d 745, 748 (Fla. 3d DCA 1999), quoting Rodriguez v. Campbell, 720 So. 2d 266, 268 (Fla. 4th DCA 1998). In Faerber v. D.G., 928 So. 2d 517 (Fla. 2d DCA 2006), counsel for a claimant petitioned the court for an extension of time to file a claim based on insufficient notice of the claims period (the creditor alleged he was reasonably ascertainable but had not been served with notice of administration). Over the objection of the estate, petitioner’s counsel argued entitlement to the relief requested. The court stated: Although, at the hearing, counsel for [the claimant] made certain representations as to how the Decedent and his family knew [the claimant] and how the Decedent’s family was aware of [the claimant]’s involvement in the criminal case against the Decedent, counsel for Appellants objected, noting that such representations did not amount to factual evidence… . Because there was no other evidence presented at the hearing, we can only conclude that the trial court erroneously based its ultimate conclusion that [the claimant] was a reasonably ascertainable creditor on the assertions of [the claimant]’s counsel. This was an abuse of discretion. Id. at 518. Although the Florida Rules of Civil Procedure (including the Florida Evidence Code) are applicable to all probate proceedings under Fla. Prob. R. 5.170, there are some procedural distinctions between the application of the civil rules in an adversary proceeding, and rules and procedures applicable in a nonadversary proceeding as it relates to the determination of compensation. Specifically, if the proceeding is nonadversary, the following civil rules do not apply: Fla. R. Civ. P. 1.440 (Setting Action for Trial) (discussed in § 11.3.G); Rule 1.460 (Continuances); Rule 1.470 (Exceptions Unnecessary; Jury Instructions); Rule 1.490 (Magistrates); Rule 1.530 (Motions for New

Trial and Rehearing; Amendments of Judgments); and Rule 1.540 (Relief from Judgment, Decrees, or Orders). (Rehearings are authorized under Rule 5.020(d) but not the other relief found in Rule 1.530. Therefore, filing a motion to alter or amend does not toll the time when the order is rendered, thereby not tolling the time when an appeal must be filed. Fla. R. App. P. 9.020(h). See In re Estate of Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980).) Before 2011, in a probate action, if the case was determined to be an adversary proceeding, Rule 5.025 provided that the proceeding was required to be “conducted similar to suits of a civil nature” and the Florida Rules of Civil Procedure governed, including entry of defaults. As a result, under this rule as it existed, a disadvantage of declaring a matter as adversary was illustrated when the prevailing party, who would have otherwise been entitled to an award of attorneys’ fees, failed to move for that relief within 30 days after filing the judgment or service of a notice of dismissal, and was thereby barred by Rule 1.525 from receiving fees and costs. Hays v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009). See also Price v. Austin, 43 So. 3d 789 (Fla. 1st DCA 2010). Effective September 28, 2011, Rule 5.025(d)(2) was amended to exclude the application of Rule 1.525. In 2012, the Florida Supreme Court clarified that the 2011 Amendments to Rule 5.025(d)(2) “apply to all proceedings commenced on or after the September 28, 2011, effective date. The amendments also apply to all proceedings that were pending on the effective date, but only as to all judgments, orders, or notices that were filed on or after that date.” In re Amendments to the Florida Probate Rules, 95 So. 3d 114, 115 (Fla. 2012). See Finnegan v. Compton, 154 So. 3d 370 (Fla. 4th DCA 2015). F.S. 736.0201(6), pertaining to trust proceedings, also restricts application of Rule 1.525 in certain limited instances. The most significant Florida Rule of Civil Procedure that does not apply in nonadversary proceedings may be Rule 1.540. This is especially true because the court’s determination on the matter of compensation ultimately will become the law of the case if further proceedings are required that would call for additional compensation. Tillman v. Smith, 560 So. 2d 344 (Fla. 5th DCA 1990). With regard to the matter of proof at trial, and assuming that the burden of proving the reasonableness of the compensation paid or proposed to be

paid is on the personal representative or the attorney (see § 11.3.F), the elements of proof and the procedure would be the same as in a civil action to establish a reasonable attorney’s fee. The fact that expert testimony is not required to establish reasonable compensation for the personal representative or persons employed by the personal representative does not mean that testimony is not required. In Estate of Brock, 695 So. 2d 714, 719 (Fla. 1st DCA 1996), the court stated: [W]here an increase or decrease in the ordinary compensation is sought, the determination of reasonable fees is not left to the unbridled discretion of the personal representative and the court. Subsection (4) [of F.S. 733.6171] enumerates nine specific factors for consideration in the determination of reasonable fees which deviate from the methodology set forth in subsection (3). There is nothing in this record which demonstrates the probate judge considered the foregoing factors in determining entitlement to, and the amount of, the attorney’s fee awards in this case. In Brock, the personal representative testified that he negotiated an attorney’s fee lower than the amount that would be presumed reasonable by the statute and relied on that fact alone as evidence from which the court should find the fees to be reasonable. However, the court observed: “Despite the implication of savings to the probate estate, we cannot approve the perfunctory manner in which attorney’s fees were determined in this case.” Id. at 719. Under prior law, an expert witness was indispensable for the purpose of providing testimony as to what a reasonable attorney’s fee would be in the particular instance. Schwartz, Gold & Cohen, P.A. v. Streicher, 549 So. 2d 1044 (Fla. 4th DCA 1989); In re Estate of Cordiner, 497 So. 2d 920 (Fla. 2d DCA 1986); Clark v. Squire, Sanders & Dempsey, 495 So. 2d 264 (Fla. 3d DCA 1986). However, the court was free to disregard totally the testimony of the expert witness. Korman v. Pond Apple Maintenance Ass’n, Inc., 607 So. 2d 489 (Fla. 4th DCA 1992); In re Estate of Harrell, 426 So. 2d 63 (Fla. 5th DCA 1983); In re Estate of Simon, 402 So. 2d 26 (Fla. 3d DCA 1981). The practitioner should also note the provisions of Rule 1.390, permitting the use of a deposition instead of live testimony at trial. This is one of the civil procedure discovery rules that is applicable in nonadversary probate

proceedings through Rule 5.080. Under a narrow exception created in F.S. 733.6175(4), “[t]he court may determine reasonable compensation for the personal representative or any person employed by the personal representative without receiving expert testimony.” See Foreman v. Northern Trust Bank of Florida, N.A., 905 So. 2d 276 (Fla. 2d DCA 2005). A party offering expert testimony may do so only after giving notice to interested persons. An expert witness who testifies must be awarded a fee by the court to be paid from the assets of the estate. The court has the discretion to direct from what part of the estate the fee shall be paid. Id. In all other instances, expert testimony is still required. This exception found in F.S. 733.6175(4) to the requirement of expert testimony to establish reasonable fees for the personal representative or persons employed by the personal representative does not, however, extend to attorneys not employed by the personal representative. Brake. In these determinations, the general law requiring expert testimony continues to apply. “Time expended” is no longer one of the statutory criteria that must be considered by the court to determine a reasonable fee for the personal representative or for ordinary services of the administration attorney. See §§ 11.2.A, 11.2.L. However, if time expended becomes an issue of proof, contemporary time records, or even reconstructed time records, are not necessary under the limitations described. See § 11.2.L. If time records are offered by either side, admission of those records is governed by the Florida Evidence Code. The attorney must testify to the total amount of professional and paraprofessional time that has been expended and the nature of the services rendered. Clark; Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975). Testimony will be sworn and subject to cross-examination. Even if the attorney chooses not to introduce time records, the opposing parties, who presumably have obtained copies of these records through voluntary production or discovery, may wish to do so. The practitioner should note the application of the provisions of F.S. 90.803(6) regarding admission of time records as an exception to the hearsay rule and the requirement for a proper predicate. In all other instances of determination of a reasonable fee, the holding of the Florida Supreme Court in In re Estate of Platt, 586 So. 2d 328 (Fla.

1991), is applicable and will require a lodestar determination, which involves proof of time as one factor. Bishop v. Estate of Rossi, 114 So. 3d 235 (Fla. 5th DCA 2013). The issues addressed in §§ 11.2.K.1.b and 11.2.K.2.b should form the proof of reasonableness that will be required. Assuming the burden is on the personal representative or the person employed to establish a reasonable fee, that person will carry the initial burden of proof. See § 11.3.F. The proper quantum of proof is the greater weight of the evidence. The person with the initial burden of proof would provide testimony that he or she was employed by the personal representative (or was the personal representative), the nature and extent of the services provided, and the inventory value of the estate plus income earned during administration. At that point, if the fees being sought were the fees presumed reasonable by F.S. 733.617 or 733.6171, the presumption would arise (F.S. 90.301–90.303) and no additional proof of reasonableness would be required, although the proponent is free to provide evidence of reasonableness, including expert testimony. At the conclusion of the presentation made by the personal representative or the person employed, the opposing party then offers evidence in opposition. The objectors may offer expert testimony as to the amount of reasonable compensation, assuming compliance with the statutory notice requirements. F.S. 733.6175. However, even without any offer of direct evidence (relying only on cross-examination of the petitioner and argument of counsel), the court may decline to award the fee requested. In re Estate of Ryecheck, 323 So. 2d 51 (Fla. 3d DCA 1975). Failure of the objector to offer evidence is not a recommended practice, however. If compensation for professional hours is at issue, the opponent has the burden of pointing out with specificity which hours should not be compensated. Centex-Rooney Construction Co. v. Martin County, 725 So. 2d 1255 (Fla. 4th DCA 1999). Documentary evidence may be offered under the rules applying to civil litigation.

In a rare bit of “down home” frankness, Judge Dauksch, writing in Castranova v. Auth, 590 So. 2d 28, 29 (Fla. 5th DCA 1991), explained the procedure: The trial judge heard from two lawyers who gave opinions as to their estimate of the value of the attorney’s services and the judge entered an order making an award higher than the lowest and lower than the highest. That’s the way it was done in the old days. Now it must be done in accordance with Rowe, by having a complete evidentiary hearing and entering an order with specific findings. It is wrong to assume that Platt no longer applies to fee determinations. In fact, many aspects discussed in that case continue to apply and the attorney must be familiar with the case, and which of the holdings have been modified or superseded by statutory changes and which have not. Once the appellate court has before it specific findings, it has little reluctance to redetermine the fee awarded by the trial court, especially when it appears excessive. In a mortgage foreclosure case, which concluded without either trial or discovery on motion for summary judgment, and an appeal that ended in a per curiam affirmed without oral argument, 20 attorneys and paralegals associated with four separate law firms claimed over 1,600 “reasonable hours” expended. The District Court of Appeal, Fourth District, clearly offended by the trial judge’s award of fees, stated: On the face of it, the order embodies an unacceptable, even incredible result. No court is obligated to approve a judgment which so obviously offends even the most hardened appellate conscience and which is so obviously contrary to the manifest justice of the case. Indeed, it is obligated not to. * * * This is especially true with respect to attorney’s fees, with which the profession and the courts must be particularly concerned, see Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), and even more so since the case involves the notorious “billable hours” syndrome, with its multiple evils of exaggeration, duplication, and

invention. Miller v. First American Bank & Trust, 607 So. 2d 483, 484–485 (Fla. 4th DCA 1992). Fortunately, the legislature seems to have administered capital punishment to “the notorious ‘billable hours’ syndrome” by removing time expended as one of the statutory factors to be considered in the determination of a reasonable fee for the personal representative and the administration attorney. Id. at 485. See §§ 11.2.A, 11.2.K.2.a. Indeed, when the appellate court is offended by the award, it is not reluctant to review the time itemization line by line: Most telling in the inflated itemization of work performed is the claimed two hours and forty-five minutes spent educating the client about the case (in which she participated), and appellate proceedings generally, notwithstanding that the client is an attorney. * * * Four hours and forty-five minutes is claimed, under oath, for reading the appellant’s fourteen-page reply brief, and three and one-half hours is claimed for reading and “research” of the motion for rehearing. Five hours of service is claimed for a motion to strike the appellant’s brief— which was denied; one and a quarter hours is claimed for preparing a motion for extension of time to file a brief and for clarification of the order denying the motion to strike appellant’s brief—which was also denied. Dalia v. Alvarez, 605 So. 2d 1282, 1283 (Fla. 3d DCA 1992). The court concluded with the observation, “much of the time claimed was unnecessary.” Id. at 1284. For a recent case in which an appellate court conducted a review of a trial court’s award of fees, concluding such fee award to be “clearly unreasonable and [constituting] an abuse of discretion,” see Nunez v. Allen, 292 So. 3d 814, 822 (Fla. 5th DCA 2019). « Ch. 11 », « § 11.3 », « J » 1 Litigation Under FL Probate Code § 11.3.J (2022)

J. Final Order The final order to be entered following the final hearing is not a “final judgment” that could be executed on. It is only an order determining fees or overruling objections to the accounting or petition for discharge. It also is not a final judgment for the purpose of accruing interest under F.S. 55.03; however, because it is a final order, a motion for rehearing may be served not later than 15 days after filing the order with the clerk. Fla. Prob. R. 5.020(d). Also, the final order is immediately appealable as a matter of right. Fla. R. App. P. 9.170(b)(23). See Rule 5.100. An order that grants attorneys’ fees against a party but that reserves the right to determine the amount at a later date is not a final order from which an appeal lies as a matter of right. Rehman v. Estate of Frye, 692 So. 2d 956 (Fla. 5th DCA 1997). See also Reid v. Estate of Sonder, 63 So. 3d 7, 11 (Fla. 3d DCA 2011) (“It is well established that an order granting entitlement to fees is a non-final, nonappealable order until the amount of the fee is set.”). If the order is appealed, a notice of appeal must be filed in the probate proceeding within 30 days from the rendition of the order to be reviewed and a filing fee paid. Rule 9.110(b). (Note the requirement of “filing,” not service.) The filing of a motion for rehearing tolls the time for filing a notice of appeal until disposition of the motion. Rule 9.020(h)(1). The Florida Supreme Court’s decision in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), suggests that the trial court opinion must contain specific findings on which the trial court based its opinion. Although the factors to be considered in determining the fee have been changed by the 1993 and 1995 Amendments to F.S. 733.6171, the requirement for specific findings (of the factors presently found in the statute) is still good law. This allows the appellate court a basis upon which to review the fee award made by the trial court. As stated in Myakka Valley Ranches Improvement Ass’n, Inc. v. Bieschke, 610 So. 2d 3, 4 (Fla. 2d DCA 1993): “It was error for the trial court to enter a final order on attorney’s fees without consideration of the factors set forth in Rowe and a specific finding as to each of the Rowe criteria.” See also Moyle v. Moschell & Moschell, 582 So. 2d 111 (Fla. 3d DCA 1991). The form of a final order determining attorneys’ fees must contain specific findings of fact. If the final determination is not the amount presumed reasonable by the statute, the order must indicate the statutory

factors on which the court based its opinion and the reason those factors required a finding of a different amount. « Ch. 11 », « § 11.3 », « K • 1 Litigation Under FL Probate Code § 11.3.K (2022)

K. Appeal Attorneys’ fees, if otherwise payable by contract or statute, includes attorneys’ fees on appeal. F.S. 59.46. Fla. R. App. P. 9.400(b) governs the award of attorneys’ fees on appeal and is strictly construed. Although the rule creates no substantive right to the award of fees, if the right otherwise exists, the rule sets the procedure to obtain fees for services on appeal. See Gulf Coast Medical Park, LLC v. Gulf Coast Larain Partners, LLC, 239 So. 3d 1202 (Fla. 2d DCA 2017), in which the appellee sought attorneys’ fees based on F.S. 59.46 and Rule 9.400(b). Rule 9.400(b) requires filing a motion for fees not later than the time for service of the reply brief and requires that the grounds upon which recovery is sought be stated. As noted above, the rule is strictly construed. In Joseph Land & Co. v. Green, 486 So. 2d 87 (Fla. 1st DCA 1986), the court ordered the attorney not to charge his client a fee for the appeal when the attorney negligently filed an untimely motion for award of fees. Although the rule is silent as to the need for a reply, a reply may optionally be filed under Rule 9.300(a) relating to responses to motions generally. For further discussion, see FLORIDA APPELLATE PRACTICE (Fla. Bar 11th ed. 2020). When the appellate court has jurisdiction to award fees for appellate services, it may do so based on affidavits submitted, but may (and frequently does) remand the matter to the trial court to determine the amount of fees for appellate services. For certain exceptions in which Rule 9.400(b) does not apply and fees for appellate services are to be awarded by the probate court, see § 11.2.R. For a more detailed discussion of the procedural considerations attendant to appeals, see Chapter 14 of this manual.

« Ch. 11 », « § 11.4 » 1 Litigation Under FL Probate Code § 11.4 (2022)

§ 11.4. COLLECTION PROCEDURES AND CONSIDERATIONS « Ch. 11 », « § 11.4 », • A » 1 Litigation Under FL Probate Code § 11.4.A (2022)

A. Ethical Considerations It is not unethical for a lawyer to exercise a retaining lien. Fla. Ethics Op. 62-71, which can be accessed at www.floridabar.org/ethics/. A lawyer may ethically retain his or her work or intellectual product, at least until the cost of producing it has been paid by the client. Fla. Ethics Op. 71-57. Acquiring or asserting a lien granted by law does not constitute a violation of Rule Reg. Fla. Bar 4-1.8(a), which proscribes acquiring an interest adverse to a client, nor Rule 4-1.8(i), which proscribes acquiring a proprietary interest in the subject matter of the litigation. Whether acquiring an interest in an estate by way of assignment of a client beneficiary’s interest (to secure the payment of the fee) is protected in the same manner as a lien is not answered directly by the rules. However, there is no logical reason for a different result when the assignment is knowingly made upon full disclosure. Ethical requirements of keeping money or other property entrusted to the lawyer for a specific purpose segregated in trust do not preclude the lawyer’s right to retain money or other property on which the lawyer has a valid lien for services or preclude payment of agreed fees from the proceeds of collections. Comment to Rule 5-1.1. The “client’s file” is not the property of the client, except for original documents delivered by or obtained on behalf of the client but is the personal property of the lawyer. Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984). A retaining lien relates only to the property of the client, not the lawyer. The right to a retaining lien would probably not entitle the lawyer to hide the client’s property and the client probably would have the right to inspect, photograph, or copy any original documents. Even if the attorney has not been paid, “[u]nder normal circumstances, an attorney should make available to the client, at the client’s expense, copies of information in the file

where such information would serve a useful purpose to the client.” Fla. Ethics Op. 88-11. « Ch. 11 », « § 11.4 », « B » 1 Litigation Under FL Probate Code § 11.4.B (2022)

B. Attorney’s Retaining Lien A retaining lien is a common-law lien that attaches to a client’s papers, money, securities, and other property in the attorney’s possession during the course of representation of the client. Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984). It secures payment of disbursements and fees (or other amounts) due the attorney and is not (like a charging lien, see § 11.4.C) limited to amounts owed for a specific matter. It is perfected by possession and discharged when possession is lost. Notice is not required. A retaining lien is broader and more easily obtained or perfected than a charging lien. It is frequently misunderstood as pertaining only to tangible personal property, but it also applies to money. See 4 FLA. JUR. 2d Attorneys at Law §§ 502–505. « Ch. 11 », « § 11.4 », « C • 1 Litigation Under FL Probate Code § 11.4.C (2022)

C. Charging Lien A charging lien is generally more difficult to perfect or acquire than a retaining lien, but it does not require possession of the property. It is a common-law equitable right. There must be a contract between the attorney and the client, but the contract may be implied. The agreement must contemplate that payment is dependent on recovery (a contingent fee) or that the fee will be paid from the recovery. An important factor is that there must be timely notice to the client. Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383 (Fla. 1983). A charging lien is valid only if the attorney provides services that result in a positive judgment or settlement for the client, because the lien will attach only to the tangible fruits of the services. Merely administering the estate is insufficient. Correa v. Christensen, 780 So. 2d 220 (Fla. 5th DCA 2001). Notice generally is given by filing a notice of the lien in any pending action. It appears, however, that even oral notice is sufficient as long as it is

timely. Notice may be given to the client in the fee agreement; however, such notice would leave open the question of insufficient notice to interested third persons, such as a subsequently appearing attorney, or counsel for the opposing party, who may distribute the funds without notice of the lien. “Once a charging lien has been perfected, it is enforceable against ‘any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future.’ ” Law Office of Michael B. Brehne, P.A. v. Porter Law Firm, LLC, 268 So. 3d 854, 855 (Fla. 5th DCA 2019), quoting Hutchins v. Hutchins, 522 So. 2d 547, 549 (Fla. 4th DCA 1988). The lien generally is enforced as a summary proceeding in the original action. To initiate adjudication or enforcement, the attorney should file a motion or petition. The attorney must be cautious to ensure that the court has reserved jurisdiction to consider the adjudication or enforcement if the matter has otherwise been concluded by settlement or judgment, or even voluntary dismissal. See Sublette, An Attorney’s Remedy Under Florida’s Charging Lien Law, 64 Fla. Bar J. 23 (Nov. 1990), for a complete discussion of charging liens. See also 4 FLA. JUR. 2d Attorneys at Law §§ 506 et seq.

« Ch. 11 », « § 11.5 » 1 Litigation Under FL Probate Code § 11.5 (2022)

§ 11.5. TAX CONSIDERATIONS Attorneys’ and personal representatives’ fees fall into the classification of “administration expenses” under § 2053(a)(2) of the Internal Revenue Code. However, it is necessary to look to the regulations under that section for more specific definitions and limitations. Most classifications of attorneys’ and personal representatives’ fees payable from the estate are tax deductible. These fees (together with a limited classification of other administrative expenses and losses) may be deducted, at the option of the personal representative, on either the Form 1041 fiduciary income tax return or the Form 706 federal estate tax return, or they may be divided between the two returns. IRC §§ 2053(a), 691(b). They may not, however, be deducted on both returns as a “double dip.” IRC § 642(g). Treasury Regulation § 20.2053-3(c)(1) limits the deduction as follows: The amount of the fees claimed as a deduction may not exceed a reasonable remuneration for the services rendered, taking into account the size and character of the estate, the law and practice in the jurisdiction in which the estate is being administered, and the skill and expertise of the attorneys. It is interesting to note that the language of Reg. § 20.2053-3(b)(1) applying to executor’s “commissions” is different. The limiting standards imposed by that regulation are: [T]he amount of the commissions claimed as a deduction must be in accordance with the usually accepted standards and practice of allowing such an amount in estates of similar size and character in the jurisdiction in which the estate is being administered, or any deviation from the usually accepted standards or range of amounts (permissible under applicable local law) must be justified to the satisfaction of the Commissioner. These deductions also are limited to those “actually and necessarily, incurred in the administration of the decedent’s estate.” Reg. § 20.2053-3(a).

A claim of deduction will be examined to determine whether it was “incurred for the individual benefit of the heirs, legatees, or devisees” and, if so determined, the deduction will not be allowed. Id. The language of the regulation might be read to stand for the proposition that fees for attorneys for a beneficiary could not be deducted. This is incorrect if the services of the attorney have benefited the estate. Dulles v. Johnson, 273 F.2d 362 (2d Cir. 1959), 80 A.L.R. 2d 1338; Estate of Reilly v. Commissioner, 76 T.C. 369 (1981). The IRS, in allowing the deduction, is not bound by a determination of the allowable fee made by the trial court but may make an independent determination of local law and practice. Commissioner v. Estate of Bosch, 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967); United States v. White, 853 F.2d 107 (2d Cir. 1988). For more discussion on this and related topics, see PRACTICE UNDER FLORIDA PROBATE CODE § 15.9 (Fla. Bar 11th ed. 2022). For a discussion on the tax effects of the timing of payment of compensation, see § 11.2.I.

« Ch. 11 », « § 11.6 » 1 Litigation Under FL Probate Code § 11.6 (2022)

§ 11.6. IN RE ESTATE OF PLATT: AN ANALYSIS The opinion of the Florida Supreme Court in In re Estate of Platt, 586 So. 2d 328 (Fla. 1991), governs the determination of attorneys’ fees for administration and personal representatives’ fees from its issuance to October 1, 1993, the effective date of F.S. 733.6171 and the amendment to F.S. 733.617. Although several of the holdings of Platt were reversed by this legislation, significant parts of the opinion continue as good law. Furthermore, except as to fees for the personal representative and the personal representative’s attorney in the estate administration, fees for other fiduciaries, including guardians, as well as attorneys for those fiduciaries, except in probate administration, continue to be controlled by the holdings in Platt. Zepeda v. Klein, 698 So. 2d 329 (Fla. 4th DCA 1997). (As to the disallowance of “fees on fees” for a guardian’s attorney in Zepeda, that has been reversed legislatively by Chapter 2003-57, § 7, Laws of Florida, creating F.S. 744.108(8). See In re Guardianship of K.R.C., 83 So. 3d 932 (Fla. 2d DCA 2012).) Approximately 15 years following Platt, the Florida Legislature enacted a trustee fee statute that similarly provides for an award of trustee’s fees that are “reasonable under the circumstances” when the trust does not specify compensation. See F.S. 736.0708(1). Although the statute does not set forth a methodology for calculating “reasonable” trustee’s fees or otherwise explain which “circumstances” should be considered, the court in Robert Rauschenberg Foundation v. Grutman, 198 So. 3d 685 (Fla. 2d DCA 2016), determined that the legislative history of the statute indicates an intent to apply the West Coast factors rather than the lodestar method set forth in Rowe. See Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985), modified 555 So. 2d 828; West Coast Hospital Ass’n v. Florida National Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958). Ultimately, the court in Grutman concluded that the lodestar method, which was applied by the court in Platt to determine “reasonable compensation” for attorneys and personal representatives in probate actions, does not apply to trustee’s fees. Therefore, specifically as it relates to trustee’s fees, Platt no longer applies.

In any event, Platt continues to be one of the most significant cases in the fee area, except for those portions that were specifically overturned by the legislation (holdings numbered 1, 2, 3, and 7 below), and may control the award of fees for services rendered to estates, even after October 1, 1993. The tendency to dismiss its continuing importance is misdirected. For discussion of F.S. 733.6171 and its retroactive application to estates that were commenced before its effective date, see § 11.2.K.1.d. Because of its continuing importance, Platt is analyzed in detail below. See additional discussion in § 11.2.K.1.a. (The reference to F.S. 733.617 below refers to that statute as it existed before October 1, 1993, which provided the factors to be considered in determining a reasonable fee for a personal representative as well as the attorney for the personal representative and agents employed by the personal representative.) Although clear enough in its limited central holding, Platt is less clear and perhaps intentionally vague with regard to many associated issues. There are at least seven holdings in this opinion. Beginning with the keystone holding, they are: 1. Reasonable compensation provided under F.S. 733.617 to an attorney or to a personal representative, if determined by the court, may not “be computed solely on the basis of a fixed percentage of the amount of the probate estate.” Platt, 586 So. 2d at 331. 2. Reasonable compensation provided under F.S. 733.617 to an attorney, if determined by the court, must be computed based on the lodestar formula as explained in Rowe. 3. Time expended by an attorney in the process of determining or collecting a fee from the estate is not compensable. 4. Paralegal work may be charged as a separate factor in the fee calculation. 5. No multiplier is allowed under the lodestar approach to determine attorneys’ fees in an estate administration context when the risk of nonpayment is not present. 6. An attorney who is also a joint personal representative of the estate may

not have his or her personal representative’s fee determined based on a fraction or percentage of the fee awarded to the other joint personal representative. 7. F.S. 733.617(1) applies, by its terms, to “[p]ersonal representatives, attorneys, accountants, and appraisers and other agents employed by the personal representative” and describes nine factors to be considered in determining a reasonable fee. However, “the factors that would apply to each category [of professional] are not the same.” Holdings 1, 2, 3, and 7 were reversed by F.S. 733.617 and 733.6171 (1993). Having determined, as its central holding, that fees may not “be computed solely on the basis of a fixed percentage of the amount of the probate estate,” the court then discussed in a definitive sense how attorneys’ fees should be computed based on an unenhanced lodestar calculation. However, on the question of personal representatives’ fees, the opinion described only how that fiduciary’s fee may not be calculated, failing to offer any guidance as to how those fees are calculated. Regarding the attorneys’ fee lodestar determination, there may be those whose wishful interpretation of the court’s language describing the lodestar amount as “an appropriate starting point” (which terminology is used twice on page 335 of the opinion and once on page 333) will cause them to search in vain for an adjustment beyond the lodestar determination. To avoid that fruitless quest, it is necessary to understand the lodestar determination. The lodestar amount itself may be subject, in a traditional litigation context, to two adjustments. The first adjustment is the multiplier to compensate the attorney for risk of nonpayment of a fee. Platt is clear: “That factor is not present in most probate cases.” Id. at 336. The second adjustment to the unadorned lodestar is a “results obtained” adjustment. It is a surprise to most attorneys who have not studied the concept that this adjustment is a negative adjustment to the fee. “The ‘results obtained’ may provide an independent basis for reducing the fee … . In adjusting the fee based upon the success of the litigation, the court should indicate that it has considered the relationship between the amount of the fee awarded and the extent of success.” Rowe, 472 So. 2d at 1151. A third relevant adjustment to

the lodestar amount (and one not originally discussed in Rowe) was mentioned by the court in Platt: “For example, it will not ordinarily be reasonable to spend as much legal time on a case as the amount of money in dispute. The lawyer could not reasonably charge the client that much, and the fee could not be justified simply because someone else is required to pay it.” Id. at 334. The court went on to recognize that there might be some rare exceptions to this rule, citing to State Farm Fire & Casualty Co. v. Palma, 555 So. 2d 836 (Fla. 1990), in which the amount in dispute was $600, but the fee awarded to the plaintiff’s attorney was $253,500. Although it is intellectually possible to argue that the “appropriate starting point” language, while it requires an initial lodestar determination, contemplates fee enhancements from that point, the better argument may be that the “appropriate starting point” language as used by Justice Overton in Platt, if not superfluous, referred to the potential for two types of fee reduction: (1) the “results obtained” reduction, or (2) the “amount involved” reduction. The intellectual exercise to reach this conclusion is a simple one. If the lawyer assumes hypothetically that Justice Overton is the probate trial judge setting the fee and the attorney argues that the “starting point” language of the opinion means starting upward from the lodestar, what ruling can be anticipated? Every probate judge in Florida will perform that relational juxtaposition in such circumstances. Seeking an enhanced fee may not be a productive use of time. If the lawyer prevails and there is a sufficient amount involved, an appeal is certain, and even if the district court does not reverse, the Florida Supreme Court likely will. The attorney should surrender the intellectual argument to reality. That statement expresses the tenor of this entire case analysis. It is important to keep in mind that the court did not determine the fees awarded in Platt to be excessive but merely that the attorney’s fee awarded “[was] not justified by the evidence in [the] record” (id. at 336) and that the wrong method was used to set the fees. The fees were set based on a sliding percentage scale of the value of the assets and that method was found to be deficient. Although there was testimony as to time expended in the original record that was mentioned in the opinion, the trial court did not make a determination of the amount of time reasonably expended because it

specifically declined to apply a Rowe formula. Similarly, the fiduciary’s fees were not determined by the court to be excessive, but merely calculated by the wrong method. The fees in both instances were referred back to the trial court for further determination. Having concluded that it will be the duty of the trial court to make a lodestar determination of the attorneys’ fees, it is now appropriate to discuss separately that portion of the opinion as it discretely relates to determination of fiduciary fees. In passing, it is interesting to note that the portion of the opinion speaking directly and solely to fiduciary fees is confined to the last few paragraphs of the lengthy opinion. A thorough study of the Platt opinion and its underlying authority will reveal that it does not mandate a lodestar determination for fiduciary fees. As previously stated, it prohibits fiduciary fees based solely on a percentage of the value of the estate. That certainly leaves open the question as to how fiduciary fees should properly be calculated; however, the opinion only states how they may not be calculated. In support of the assertion that lodestar is not mandated for fiduciary fees by Platt, it is appropriate to begin with the court’s characterization of the petitioner’s challenge to the fees as described in the opinion: Petitioners, in challenging these fees, argue that the trial court erred by holding that the lodestar method was never applicable to a determination of attorneys’ fees in probate cases. Petitioners reason that: (1) our recent decision in Quanstrom suggests the lodestar approach as a starting point; (2) section 733.617, Florida Statutes (1987), clearly does not preclude the use of the lodestar method; and (3) section 733.617 does not allow the computation of a reasonable fee based solely on a percentage of the value of the estate. Further, petitioners contend that the attorney’s fee of $144,300, found by the trial court to be reasonable, is contrary to the manifest weight of the evidence contained in this record. Finally, petitioners claim that the award of a fee to NCNB for its services as copersonal representative based solely on a percentage set forth by its rate card, as well as the setting of a co-personal representative’s fee for Patterson based on a percentage of NCNB’s fee, was error because this type of percentage fee was abolished when section 733.617 was amended in 1975 and 1976.

Platt, 586 So. 2d at 333. Although personal representatives’ and attorneys’ fees were at the time controlled by the same statute, it is significant to note that the court, in discussing those fees throughout the remainder of the opinion, discussed them separately. They were not separately discussed in either the original trial court opinion or the district court of appeal opinion. As stated in the unpublished trial court opinion, the trial court found “[t]hat contrary to the argument of respondents … the fees herein sought are not subject to the Lodestar Method of calculation pursuant to Florida Patient’s Compensation Fund v. Rowe, … but are governed by the criteria of [F.S.] 733.617.” The Platt opinion reported at 546 So. 2d 1114 held similarly: “Florida Patient’s Compensation Fund v. Rowe … is not applicable to the determination of attorney’s fees and personal representative fees under section 733.617, Florida Statutes (1987).” Hence, in both the trial court and appellate court opinions, it is clear that the courts made no distinction in the methodology of attorney and fiduciary fee calculation. However, the Florida Supreme Court has bifurcated the consideration of fees in each area. The logical foundation laid to support Justice Overton’s opinion as it develops is: as to attorneys’ fees, the lodestar method is required. As to fiduciary fees, the legislature, by deleting the statutory fee schedule previously found in F.S. 734.01 (1973), intended that percentage fees were to be abolished for fiduciaries. The opinion, immediately following the paragraph quoted in full above, continues for 10 more paragraphs discussing lodestar as it relates to attorneys. The words “attorneys,” “lawyers,” “counsel,” and “lodestar” are sprinkled throughout, but the words “personal representative” or “fiduciary” are absent. At this point in the opinion, the logical tapestry branches to explain the “one or more of the following” language that was added to the statute in 1976. The next two paragraphs again discuss attorneys’ fees but without mention of lodestar. The following four paragraphs are devoted exclusively to a discussion of personal representatives’ fees. It appears, therefore, that the court has made a conscious effort to separate the discussion of setting attorneys’ fees based on

lodestar from the discussion of not setting personal representatives’ fees based solely on a percentage of the assets. The opinion does not overlap with regard to those two discussions, and it appears that the court did not intend the opinion to be construed to require a lodestar determination of the value of the services rendered by the fiduciary. Similarly, it appears that the court did not suggest that a lodestar determination would be improper; it simply declined to mandate a method. Justice Overton, as the surrogate father of the lodestar concept in Florida, writing for the majority, certainly knew how to say that it applied to determination of fiduciary fees if he intended to. He did not do so, and therefore it is logical to assume that he intended not to do so. Rather, the court apparently intended that the trial courts and the fiduciaries develop some logical methodology under the relevant statute to determine reasonable fees other than relying solely on a percentage of the value of the estate assets. Since Platt was decided in 1991, although there are reported cases involving objections to personal representatives’ fees, none has addressed the specifics of how that fee should (or should not) be determined. In practice, corporate fiduciaries have continued to charge for estate, trust, and guardianship services based on a percentage of the value of the assets under administration. Apparently, trial and appellate courts have been reluctant to meet this issue “head on,” perhaps because as a practical matter, the marketplace and commercial competition place effective restraints on excessive corporate fees. The opinion itself does not indicate its retroactive effect, although the court has the authority to specify (or limit) the retroactive effect of its opinions. Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975). In fact, in Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990), the Florida Supreme Court revised and redefined the lodestar multiplier adjustment, and in State Farm Fire & Casualty Co., which was decided at the same time and partially dependent on Quanstrom, the court said: While the multiplier in this case exceeds the new range set forth in Quanstrom, we hold that it was applied properly in accordance with Rowe. The reduced multiplier range has only prospective application to attorney’s fees determined after the date of the release of Quanstrom.

State Farm Fire & Casualty Co., 555 So. 2d at 838. No such limitation on effective date was imposed in Platt. When an opinion is silent, it generally is considered to have retroactive as well as prospective effect. Melendez v. Dreis & Krump Manufacturing Co., 515 So. 2d 735 (Fla. 1987). Also, there is specific precedent for retroactive application of Rowe. Miami Children’s Hospital v. Tamayo, 529 So. 2d 667 (Fla. 1988). Based on this authority, Platt applies to all estates then in probate when the time for objecting to fees has not expired, and if fees have been objected to, when the time to appeal any determination has not expired. A final consideration raised by the Platt opinion is the scope of professionals, employees, or agents to which it applies. The attorney could conclude that the opinion does not apply to proscribe fees determined solely on the basis of a fixed percentage of the value of an asset (if the fees are otherwise reasonable) if charged by a real estate broker, a stock broker, a fine art appraiser, an investment advisor, an auctioneer, or a money fund advisor or operator. No opinion is offered on whether the limitation applies to fees to be paid to a certified public accountant, although that person is certainly going to have significant difficulty convincing the court that his or her fee for tax planning or tax return preparation may be charged differently than an attorney’s fee for the same service. The following are instances in which the stated holdings of Platt do not apply: When there is no objection to the fees charged or proposed to be charged by the personal representative or attorney, either because of an agreement reached with the persons bearing the impact of the fee or because they fail to object. See § 11.3.B.2. (Under these circumstances, Rule Reg. Fla. Bar 4-1.5(a) continues to proscribe charging or collecting a “clearly excessive fee.”) However, there is no implication that merely because a fee is based solely on the basis of a fixed percentage of the amount of the probate estate, it is “clearly excessive.” When the personal representative negotiates a fee and enters into a contract with the testator before death. See § 11.2.M.

« Ch. 11 », « § 11.7 • 1 Litigation Under FL Probate Code § 11.7 (2022)

§ 11.7. CONCLUSION There is little certainty in the law of compensation in the estate context. For many years, estate compensation was set by statute for the fiduciary and influenced by bar association minimum fee schedules for the attorney. Both of those guides disappeared in the 1970s although a percentage of the value of the estate assets continued to be the prevailing method of arriving at a reasonable fee as mandated by the statute for both attorneys and fiduciaries. Since the enactment of F.S. 733.6171 in 1995, much greater certainty exists in the methodology of setting attorneys’ and personal representatives’ fees in probate administration. The “clean-up” amendments to the Florida Probate Code in Chapter 2001-226, Laws of Florida, which became effective January 1, 2002, provided additional clarity and certainty in determining those fees, with the result that litigation over these matters has shifted in the trial courts to focus more on the facts applicable to each case, rather than the applicable law. Footnotes — Chapter 11: *

J.D., 1990, University of Tennessee. Mr. Goethe is a member of The Florida Bar, the Real Property, Trusts and Estates Section of the American Bar Association, and the Real Property, Probate and Trust Law Section’s Executive Council. He is Florida Bar board certified in Wills, Trusts and Estates. Mr. Goethe is a fellow of the American College of Trust and Estate Counsel, Chair of the Real Property, Probate and Trust Law Section’s Homestead Issues Committee, a two-time past Chair of the Florida Probate Rules Committee, and a past president of the Manatee County Bar Association. He is a partner at Barnes Walker, Goethe, Perron & Shea, PLLC, in Bradenton. **

J.D., 1985, Quinnipiac University; LL.M. in Banking, Corporate, and Finance Law/Financial Services/Securities, 1989, Boston University. Mr. Perron is a member of The Florida Bar, the New Hampshire Bar, and the Massachusetts Bar. He is admitted to practice before the United States District Court for the Northern, Southern, and Middle Districts of Florida, and the United States Court of Appeals for the Fifth and Eleventh Circuits. Mr. Perron is Florida Bar board certified in Business Litigation and was past Chair of the Twelfth Circuit UPL Committee and Grievance Committee. He is a partner at Barnes Walker, Goethe, Perron & Shea, PLLC, in Bradenton. The authors wish to acknowledge Rohan Kelley who authored prior editions of this chapter and who continues to serve as a leader and mentor in the field of Florida Probate Law.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 12 » 1 Litigation Under FL Probate Code Ch. 12 (2022)

Chapter 12 WRONGFUL DEATH CLAIMS EVE A. BOUCHARD* CHARLES IAN NASH** Contents § 12.1. INTRODUCTION § 12.2. INVESTIGATING CAUSES OF ACTION A. In General B. Medical Malpractice C. Determining Availability Of Liability Insurance Coverage § 12.3. PROCEDURAL CONSIDERATIONS A. General Considerations B. Personal Injury Claims Pending At Time Of Decedent’s Death C. Foreign Personal Representative D. Statute Of Limitations E. Venue F. Party Substitution § 12.4. DETERMINING SURVIVORS A. In General B. Surviving Spouse C. Children In Being At Death D. Parents E. Other Relatives F. The Estate § 12.5. EVALUATING SETTLEMENT OFFERS § 12.6. SETTLING WRONGFUL DEATH CLAIMS

§ 12.7. ALLOCATION OF ATTORNEYS’ FEES § 12.8. LIENS ON WRONGFUL DEATH RECOVERY A. In General B. Medicare Liens 1. Legal Basis For Lien 2. Handling Medicare Lien Before Wrongful Death Recovery Is Made 3. Medicare Liens Post-Recovery C. Medicaid Liens 1. In General 2. Lien Amount 3. Distribution Of Recovered Amount 4. Undue Hardship Waiver 5. Impact Of Ahlborn And Bradley D. Group Insurance Liens 1. ERISA Policies 2. Non-ERISA Policies a. In General b. Requirement To Notify Collateral Source Provider Of Wrongful Death Claim c. Waiver Of Lien d. Provider’s Duty To Cooperate With Claimant e. Settlement Of Disputes 3. No Lien On Future Payments « Ch. 12 », • § 12.1 » 1 Litigation Under FL Probate Code § 12.1 (2022)

§ 12.1. INTRODUCTION This chapter discusses the personal representative’s duties when the decedent’s death may give rise to a claim under Florida’s Wrongful Death Act (the Act), F.S. 768.16–768.26. It also covers specific issues that are often encountered during the course of a wrongful death claim.

« Ch. 12 », « § 12.2 » 1 Litigation Under FL Probate Code § 12.2 (2022)

§ 12.2. INVESTIGATING CAUSES OF ACTION « Ch. 12 », « § 12.2 », • A » 1 Litigation Under FL Probate Code § 12.2.A (2022)

A. In General F.S. 768.20 places an affirmative duty on the decedent’s personal representative to pursue a wrongful death action on behalf of the estate and the survivors. The personal representative must initially determine whether a cause of action exists and, if so, whether it can be economically pursued. In questionable cases, a qualified tort lawyer should review the facts. « Ch. 12 », « § 12.2 », « B » 1 Litigation Under FL Probate Code § 12.2.B (2022)

B. Medical Malpractice If there is an indication that the decedent’s death was caused by the malpractice of a medical care provider, the personal representative should consider obtaining all relevant medical records for review by qualified counsel. F.S. 456.057(7)(a) authorizes a personal representative to obtain copies of medical records of the decedent. If a medical malpractice claim is indicated, all of the procedural presuit requirements of Florida’s medical malpractice law, F.S. Chapter 766, must be followed. Failure to comply with all procedural requirements may lead to dismissal of the claim. Baptist Medical Center of Beaches, Inc. v. Rhodin, 40 So. 3d 112 (Fla. 1st DCA 2010). These requirements include, but are not limited to, presuit screening of all claims under F.S. 766.203 and presuit notice to all prospective defendants under F.S. 766.106. Before filing a wrongful death claim, the personal representative is required to conduct a presuit screening to ascertain whether any named defendant was negligent in caring for or treating the decedent, and whether the defendant’s actions caused the decedent’s death. F.S. 766.203(2). Work

product generated during the prescreening process by physicians, investigators, witnesses, or other involved individuals is not discoverable or admissible by the opposing party in a wrongful death action. F.S. 766.106(5). The legislature has provided no exceptions to this rule. Cohen v. Dauphinee, 739 So. 2d 68 (Fla. 1999). Following this investigation, the personal representative must serve all prospective defendants with a notice of intent to initiate litigation. F.S. 766.106(2). No lawsuit may be filed for a period of 90 days after this notice of intent is mailed to any prospective defendant. F.S. 766.106(3)(a). The personal representative must submit “a verified written medical expert opinion” along with the presuit notice to establish a prima facie showing of negligence. F.S. 766.203(2). In Williams v. Powers, 619 So. 2d 980, 983 (Fla. 5th DCA 1993), the court held that an expert’s affidavit, which provided only a general statement detailing the defendant’s negligence, was “barely adequate” to meet the statutory requirement of notice. Following the personal representative’s notice of intent to litigate, and during the 90 days preceding the filing of a lawsuit, the insurer of the prospective defendant must investigate whether the decedent was treated or cared for negligently and whether the prospective defendant’s actions caused the decedent’s death. F.S. 766.203(3). If the insurer denies the negligence allegation, it must submit “a verified written medical expert opinion” to corroborate a reasonable investigation into the matter. Id. The corroborating opinion must contain enough facts to reasonably conclude that the defendant did not deviate from the appropriate standard of care. The 90-day presuit notice period will not affect the personal representative’s opportunity to bring timely claims under the two-year statute of limitations (see § 12.3.D). « Ch. 12 », « § 12.2 », « C • 1 Litigation Under FL Probate Code § 12.2.C (2022)

C. Determining Availability Of Liability Insurance Coverage F.S. 627.4137 provides a mechanism for the personal representative to discover whether any tortfeasor has liability insurance coverage. F.S. 627.4137(1) requires the insurer for each tortfeasor to provide, within 30 days of a written request, a statement under oath setting forth the following

information for each known policy of liability insurance: (a) The name of the insurer. (b) The name of each insured. (c) The limits of the liability coverage. (d) A statement of any policy or coverage defense which such insurer reasonably believes is available to such insurer at the time of filing such statement. (e) A copy of the policy. If the tortfeasor’s liability insurer is unknown to the personal representative, F.S. 627.4137(1) requires the tortfeasor to “disclose the name and coverage of each known insurer” on written request from the claimant or the claimant’s attorney.

« Ch. 12 », « § 12.3 » 1 Litigation Under FL Probate Code § 12.3 (2022)

§ 12.3. PROCEDURAL CONSIDERATIONS « Ch. 12 », « § 12.3 », • A » 1 Litigation Under FL Probate Code § 12.3.A (2022)

A. General Considerations “Because wrongful death actions did not exist at common law, all claims for wrongful death are created and limited by Florida’s Wrongful Death Act.” Cinghina v. Racik, 647 So. 2d 289, 290 (Fla. 4th DCA 1994). A wrongful death action is brought by the decedent’s personal representative. The personal representative is obligated to recover for the benefit of the decedent’s survivors and estate all damages specified in the Act. F.S. 768.20. “The personal representative is merely a nominal party to the wrongful death action. … The estate and the survivors are the real parties in interest.” DeVaughn v. DeVaughn, 840 So. 2d 1128, 1132 (Fla. 5th DCA 2003). See Fla. R. Civ. P. 1.210(a). The damages recoverable by a comparatively negligent survivor will be reduced by that survivor’s comparative fault. See Hess v. Hess, 758 So. 2d 1203 (Fla. 4th DCA 2000), in which a mother’s comparative fault in causing an automobile accident resulting in her minor child’s death operated to reduce her damages recoverable as a survivor. A non-negligent survivor’s recovery, however, cannot be reduced because of another survivor’s negligence. F.S. 768.20. In Frazier v. Metropolitan Dade County, 701 So. 2d 418 (Fla. 3d DCA 1997), a minor child drowned while being supervised by his mother and aunt. The court held that the damages recoverable by the child’s father, who had not been negligent in connection with the drowning, could not be reduced by the percentage of fault attributable to the child’s mother, who was also a “survivor” under the Act and a party to the action. When conflict arises between this wrongful death statute (under which a non-negligent survivor’s recovery cannot be reduced because of another survivor’s negligence) and the comparative fault statute (F.S. 768.81, which dictates that each party’s liability is limited to that party’s percentage of

fault), the comparative fault statute must yield to the wrongful death statute. Frazier. « Ch. 12 », « § 12.3 », « B » 1 Litigation Under FL Probate Code § 12.3.B (2022)

B. Personal Injury Claims Pending At Time Of Decedent’s Death When a personal injury to the decedent results in death, no action for the personal injury survives. Any such action pending at the time of death abates. F.S. 768.20; Knowles v. Beverly Enterprises-Florida, Inc., 898 So. 2d 1 (Fla. 2005). Florida law “ ‘essentially substitutes a statutory wrongful death action for the personal injury action that would otherwise survive under [F.S.] 46.021.’ ” Salfi v. Columbia/JFK Medical Center Limited Partnership, 942 So. 2d 417, 420 (Fla. 4th DCA 2006), quoting Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31, 33 (Fla. 2d DCA 2003). When a personal injury action abates due to the death of the plaintiff, this does not require that the personal injury case be dismissed. Instead, the case is to be considered suspended until the personal representative of the decedent’s estate is added as a party to the pending action and receives a reasonable opportunity to amend the complaint to state damages sought under a wrongful death claim or to state both a claim for survival damages and, in the alternative, wrongful death if the cause of the decedent’s death is disputed by the parties. Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013) (distinguished by In re 73 Engle-Related Cases, 239 So. 3d 166 (Fla. 1st DCA 2018), which affirmed the dismissal of 73 personal injury complaints where the complaints were filed after the plaintiffs’ death.) Presently, there is a conflict between the District Courts of Appeal for the Third and Fifth Districts as to whether a derivative cause of action for loss of consortium asserted by the spouse of a decedent survives the plaintiff’s death. Compare ACandS, Inc. v. Redd, 703 So. 2d 492 (Fla. 3d DCA 1997) (loss of consortium claim does not survive deceased spouse’s death) with Randall v. Walt Disney World Co., 140 So. 3d 1118 (Fla. 5th DCA 2014) (loss of consortium claim does survive deceased spouse’s death). In Dugas v. 3M Co., 2016 U.S. Dist. LEXIS 61877, *7, 2016 WL 2744822, *2 (M.D. Fla. 2016), the court found “that the Third District Court of Appeal’s reasoning is more likely to be adopted by the Florida Supreme Court where the cause of death is not disputed by the parties” and that the court was bound to decide the case at hand in accordance with the state’s highest court. See also Risley v. Nissan Motor Corp. USA, 254 F.3d

1296 (11th Cir. 2001). However, regardless of how this pre-death consortium claim is ultimately resolved, post-death wrongful death damages may include a spouse’s loss of consortium damages. Dugas; F.S. 768.21(2). See § 12.4.B. « Ch. 12 », « § 12.3 », « C » 1 Litigation Under FL Probate Code § 12.3.C (2022)

C. Foreign Personal Representative A foreign personal representative may file and maintain a wrongful death action in Florida without complying with the procedures pertaining to ancillary administration, provided the foreign personal representative files duly authenticated letters of administration or the equivalent. Barfield v. Schmon, 537 So. 2d 1056 (Fla. 4th DCA 1989). F.S. 734.101(1) requires the issuance of letters of ancillary administration when duly authenticated documents of authority arose outside the United States in order to bring actions in Florida courts. Gubanova v. Blackstone Group L.P., 2013 U.S. Dist. LEXIS 195677, 2013 WL 12064500 (S.D. Fla. 2013). « Ch. 12 », « § 12.3 », « D » 1 Litigation Under FL Probate Code § 12.3.D (2022)

D. Statute Of Limitations The general statute of limitations for wrongful death claims is two years from the date of death. F.S. 95.11(4)(d). A cause of action for wrongful death begins to accrue on the date of the decedent’s death. Nationwide Mutual Fire Insurance Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994). However, in a medical malpractice claim, if the personal representative provides the defendant with the statutorily required notice of intent to initiate litigation (see § 12.2.B) before the expiration of the two-year limitations period, the two-year statute of limitations under F.S. 95.11(4)(d) is suspended (tolled) for 90 days under F.S. 766.106(4). Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000). It is the date that the notice of intent to initiate medical malpractice litigation is received, rather than the date that the notice is mailed, that is relevant for purposes of determining whether the statute of limitations has been tolled. Bove v. Naples HMA, LLC, 196 So. 3d 411 (Fla. 2d DCA 2016). « Ch. 12 », « § 12.3 », « E » 1 Litigation Under FL Probate Code § 12.3.E (2022)

E. Venue Regarding venue for wrongful death actions, the general rule is that the cause of action accrues, and venue lies, in the county where the negligent acts that caused the death were committed, rather than in the county where the death occurred. A-1 Truck Service, Inc. v. Kivenas, 371 So. 2d 495 (Fla. 1st DCA 1979). « Ch. 12 », « § 12.3 », « F • 1 Litigation Under FL Probate Code § 12.3.F (2022)

F. Party Substitution One who is purported to be a personal representative, but has not yet been appointed as personal representative, has standing or capacity to file a wrongful death action. Upon that individual being properly appointed as personal representative, the individual’s status and capacity to sue relates back to the date of the original filing of the complaint. Griffin v. Workman, 73 So. 2d 844 (Fla. 1954); Lindor v. Florida East Coast Railway, LLC, 255 So. 3d 490 (Fla. 3d DCA 2018). In determining whether to permit an amendment to substitute a plaintiff and whether such a substitution should relate back, courts look to the following four “principal factors”: Whether the timely-filed action gave the defendants fair notice of the legal action and underlying allegations; Whether there is an identity of interest between the original and substituted plaintiff; Whether the amendment caused any prejudice to the defendants; Whether the amendment to substitute a plaintiff would create a “new” cause of action. Estate of Eisen v. Philip Morris USA, Inc., 126 So. 3d 323, 330 (Fla. 3d DCA 2013).

« Ch. 12 », « § 12.4 » 1 Litigation Under FL Probate Code § 12.4 (2022)

§ 12.4. DETERMINING SURVIVORS « Ch. 12 », « § 12.4 », • A » 1 Litigation Under FL Probate Code § 12.4.A (2022)

A. In General Once the personal representative has elected to pursue a wrongful death claim, the “survivors” and the damages each survivor is entitled to receive must be determined. F.S. 768.18(1) defines “survivors” for purposes of the Act. Those qualifying as survivors may be determined without regard to the citizenship or legal status of either the decedent or the beneficiaries. Enterprise Leasing Co. v. Sosa, 907 So. 2d 1239 (Fla. 3d DCA 2005). Each survivor may be entitled to recover different elements of damages, depending on his or her relationship with the decedent. F.S. 768.21 specifies the damages recoverable by each survivor and the estate. The statutory definition of “survivors” and the damages recoverable by each are discussed in the following sections. The personal representative is the only party with standing to bring a wrongful death action to recover damages for the benefit of the survivors and the estate. The survivors may not bring separate legal actions and are required to participate in the single legal action filed by the estate. Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So. 3d 1187 (Fla. 2011). « Ch. 12 », « § 12.4 », « B » 1 Litigation Under FL Probate Code § 12.4.B (2022)

B. Surviving Spouse The surviving spouse may recover the value of lost financial support and services from the date of the decedent’s injury to his or her death, with interest, and future financial support and services from the date of death. F.S. 768.21(1). The value of future loss of financial support and services must be reduced to its present value. Id. “The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and

suffering from the date of injury.” F.S. 768.21(2). Presently, there is a conflict between the District Court of Appeal, Third District, and the District Court of Appeal, Fourth District, as to whether a decedent and the decedent’s surviving spouse must be married prior to the date of injury to recover consortium damages. See Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018) (not requiring decedent and decedent’s surviving spouse to be married prior to date of injury to recover consortium damages); Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA 2017) (requiring decedent and decedent’s surviving spouse to be married prior to date of injury to recover consortium damages). In McCormick v. Estate of Smith, 717 So. 2d 628 (Fla. 5th DCA 1998), because the decedent’s husband signed a handwritten waiver of his elective share, the trial court ruled that the husband was not entitled to funds received in settlement of a wrongful death claim filed on behalf of his deceased spouse by the personal representative. The district court reversed, holding that, without more, the handwritten waiver of the elective share did not extinguish the husband’s rights in the wrongful death action. Evidence of remarriage of the surviving spouse is admissible in a wrongful death action. F.S. 768.21(6). This evidence may mitigate the damages incurred by the decedent’s estate for loss of net accumulation but may not be considered in mitigation of the damages recoverable by the decedent’s surviving spouse. Smyer v. Gaines, 332 So. 2d 655 (Fla. 1st DCA 1976). « Ch. 12 », « § 12.4 », « C » 1 Litigation Under FL Probate Code § 12.4.C (2022)

C. Children In Being At Death For purposes of the Act, a minor child is any child under the age of 25, “notwithstanding the age of majority.” F.S. 768.18(2). Minor children, like the surviving spouse, “may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and future loss of support and services from the date of death and reduced to present value.” F.S. 768.21(1). Minor children “may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.” F.S. 768.21(3). The same recovery is allowed to adult children (those age 25 or older) if there is no surviving

spouse. Id. No recovery is allowed to adult children, however, if the action is based on a claim for medical negligence as defined by F.S. 766.106(1). F.S. 768.21(8). The damages recoverable by a minor child under F.S. 768.21(3) are not limited to the period of the child’s minority, but rather “should be calculated based on the joint life expectancies of the minor child and the deceased parent.” BellSouth Telecommunications, Inc. v. Meeks, 863 So. 2d 287, 293 (Fla. 2003). See also McQueen v. Jersani, 909 So. 2d 491 (Fla. 5th DCA 2005). F.S. 768.21(3) was amended in 2002 to provide that, for purposes of that subsection, if both spouses die within 30 days of each other as a result of the same incident, “each spouse is considered to have been predeceased by the other.” A surviving child includes any child born out of wedlock of a mother, but not a child born out of wedlock of the father unless the father has recognized his responsibility for the child’s support. F.S. 768.18(1). The father of a child born out of wedlock who has acknowledged paternity has sufficiently recognized his obligation of support to make the child a “survivor” under the Act. Actual financial support is not required to qualify the child as a “survivor” under the Act. It is sufficient if the father simply has acknowledged paternity before his death. Rogers v. Truitt, 596 So. 2d 1081 (Fla. 5th DCA 1992). An “equitably adopted” child cannot recover under the Act. Jolley v. Seamco Laboratories, Inc., 828 So. 2d 1050 (Fla. 1st DCA 2002). A minor child born alive following the death of a parent is also a “minor child” and “survivor” under the Act. Ellis v. Humana of Florida, Inc., 569 So. 2d 827 (Fla. 5th DCA 1990). See Larusso v. Garner, 888 So. 2d 712 (Fla. 4th DCA 2004). However, a stillborn fetus is not a survivor, and has no cause of action under the Act. The Florida Supreme Court has held that a fetus is not a “person” within the meaning of the Act. Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997). See also Young v. St. Vincent’s Medical Center, Inc., 673 So. 2d 482 (Fla. 1996); Hernandez v. Garwood, 390 So. 2d 357 (Fla. 1980); Stern v. Miller, 348 So. 2d 303 (Fla. 1977). The Tanner court recognized a commonlaw cause of action for the parents (as opposed to the deceased child) when an act of negligence caused a stillborn birth. An adult illegitimate child of a decedent can serve as a personal

representative to pursue a wrongful death claim. The probate court may defer to the wrongful death action for a determination as to whether an alleged illegitimate child is a lineal descendant of the decedent. American Airlines, Inc. v. Montero, 741 So. 2d 587 (Fla. 3d DCA 1999). « Ch. 12 », « § 12.4 », « D » 1 Litigation Under FL Probate Code § 12.4.D (2022)

D. Parents Each parent of a deceased minor child (see § 12.4.C) may recover for mental pain and suffering from the date of the injury. F.S. 768.21(4). In Woods v. Estate of Woods, 770 So. 2d 1270 (Fla. 3d DCA 2000), however, the district court held that an award for mental pain and suffering exclusively to the mother, as the sole caregiver of the minor child before his death, was not an abuse of discretion when the father was absent from the child’s birth, was not listed on the birth certificate, had little or no contact with the child, and provided minimal or no support to the child during his lifetime. F.S. 768.21(4) also allows each parent of an adult child to recover for mental pain and suffering if there are no other survivors, but F.S. 768.21(8) precludes such a recovery if the claim is based on an action for medical negligence as defined by F.S. 766.106(1). For a parent to be a “survivor” under the Act, the child must be born alive. As noted in § 12.4.C, an unborn viable child killed as a result of another’s negligence is not a “person” within F.S. 768.19. Hernandez v. Garwood, 390 So. 2d 357 (Fla. 1980); Duncan v. Flynn, 358 So. 2d 178 (Fla. 1978); Stern v. Miller, 348 So. 2d 303 (Fla. 1977). The test for such a circumstance is provided by the district court decision in Duncan v. Flynn, 342 So. 2d 123 (Fla. 2d DCA 1977). In that opinion, the district court cited the need to prove that a “live birth” had occurred, defined as the point at which the child acquires “a separate and independent existence of its mother.” Id. at 126. A “parent” does not include one who mistakenly believes that he or she is the parent of a child. Even when the mistaken parent participated in the rearing of the child, the wrongful death statute does not recognize such persons as parents entitled to a survivorship claim. Magwood v. Tate, 835 So. 2d 1241, 1244 (Fla. 4th DCA 2003) (“mistaken parent” had no unjust enrichment claim against personal representative or child’s estate for benefits

provided to child during child’s lifetime under mistaken belief of paternity). « Ch. 12 », « § 12.4 », « E » 1 Litigation Under FL Probate Code § 12.4.E (2022)

E. Other Relatives The term “survivor,” for purposes of the Act, includes any blood relatives and adoptive brothers and sisters when they are partly or wholly dependent on the decedent for financial support and services. F.S. 768.18(1). If they qualify as survivors under this definition, they may recover the value of lost support and services from the date of the decedent’s injury to the decedent’s death, with interest, and future loss of support and services from the date of death reduced to present value. F.S. 768.21(1). The burden of proof is on the “survivor” to establish “dependency.” Without proof of dependency there is no entitlement to wrongful death proceeds. Guillen v. Kitching, 354 So. 2d 900 (Fla. 3d DCA 1978). “Dependency” has been defined as the “actual inability to support [oneself], and an actual dependence upon some one else for support, coupled with a reasonable expectation of support, or with some reasonable claim to support from the deceased.” Duval v. Hunt, 34 Fla. 85, 101, 15 So. 876, 881 (1894). See also Cinghina v. Racik, 647 So. 2d 289 (Fla. 4th DCA 1994). Financial reliance on the decedent to pay monthly housing bills has been deemed insufficient to meet this standard. Thompson v. State Farm Mutual Automobile Insurance Co., 670 So. 2d 1070 (Fla. 3d DCA 1996). « Ch. 12 », « § 12.4 », « F • 1 Litigation Under FL Probate Code § 12.4.F (2022)

F. The Estate In addition to the individual survivors recognized under the Act, in some cases the decedent’s estate has a separate claim. The estate’s claim consists of lost earnings, lost “net accumulations,” and medical or funeral expenses. These items of damages are set forth in Instruction 502.2 of FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES (Fla. Bar 3d ed., 2020 Supp.), as follows: a. Lost earnings: The estate’s loss of earnings of (decedent) from the date

of injury to the date of death, [less any amount of monetary support … a survivor lost during that period]. b. Lost accumulations: The estate’s loss of net accumulations: “Net accumulations” is the part of (decedent’s) net income [from salary or business] after taxes, including pension benefits [but excluding income from investments continuing beyond death], which (decedent), after paying [his] [her] personal expenses and monies for the support of [his] [her] survivors, would have left as part of [his] [her] estate if [he] [she] had lived [his] [her] normal life expectancy … . c. Medical or funeral expenses: Medical or funeral expenses due to (decedent’s) injury or death which [have become a charge against (decedent’s) estate] [were paid by or on behalf of (decedent) by one other than a survivor]. Under F.S. 768.21(6)(a), net accumulations are recoverable only when (1) the decedent’s survivors include a surviving spouse or lineal descendants, or (2) the decedent is not a minor child as defined by the Act (i.e., under 25 years of age), there are no lost support and services recoverable, and there is a surviving parent.

« Ch. 12 », « § 12.5 » 1 Litigation Under FL Probate Code § 12.5 (2022)

§ 12.5. EVALUATING SETTLEMENT OFFERS The personal representative has the duty to evaluate settlement offers and the estate may be held liable for opposing counsel’s fees and costs if the personal representative unreasonably rejects a settlement offer. F.S. 768.79, 45.061. In Martinez v. Ipox, 925 So. 2d 448, 450 (Fla. 2d DCA 2006), the District Court of Appeal, Second District, concluded that “[i]n a wrongful death case where there are joint personal representatives, the joint personal representatives are the party plaintiffs. As the party plaintiffs, only the joint personal representatives—acting in that capacity—are entitled to make a valid demand for judgment.” In Martinez, a proposal for settlement filed by one co-personal representative in her individual capacity was held invalid. A detailed discussion of the various offers of judgment/settlement statutes and rules is beyond the scope of this chapter. In a commercial context, this subject is treated in depth in Chapter 9 of BUSINESS LITIGATION IN FLORIDA (Fla. Bar 11th ed. 2022), which includes a detailed history of the evolution of the concept in both the statutes and the rules. The practitioner is cautioned that this is a continuously evolving area of law. Particular attention should be paid to Fla. R. Civ. P. 1.442 (Proposals for Settlement).

« Ch. 12 », « § 12.6 » 1 Litigation Under FL Probate Code § 12.6 (2022)

§

12.6. SETTLING CLAIMS

WRONGFUL

DEATH

Under F.S. 733.612(20), “[a] personal representative has the statutory authority to enter into wrongful death settlements. However, if the survivors object either to a settlement’s amount or apportionment, the court’s authority is invoked to determine the settlement’s reasonableness.” Walker v. Bailey, 89 So. 3d 297, 298 (Fla. 5th DCA 2012). F.S. 768.25 requires court approval of all settlements objected to by any “survivor” or that affect “a survivor who is a minor or an incompetent.” “[T]he right to object to a proposed settlement and to invoke the authority of the court relative to the approval or disapproval of a proposed settlement extends to ‘any survivor’ and is not limited to survivors who have individual damage claims.” Brunson v. McKay, 905 So. 2d 1058, 1061 (Fla. 2d DCA 2005). “When [the court’s] authority is invoked, though [F.S.] 768.25 does not expressly demand a hearing, Florida Courts and routine practice require one, as without it, the trial court cannot properly determine a settlement’s reasonableness or the propriety of any proposed apportionment of the settlement proceeds.” Walker, 89 So. 3d at 298, citing Wiggins v. Estate of Wright, 850 So. 2d 444 (Fla. 2003). As further stated in Walker, “[w]hen a wrongful death case is settled before trial, the trial court resolves questions concerning the apportionment of proceeds between survivors. … The trial court must determine if the proposed apportionment is reasonable and equitable based upon competent, substantial evidence. The failure to make that determination is an abuse of discretion.” Id. at 299. The Wrongful Death Act, not the intestacy statutes, controls the allocation of settlement proceeds. Hess v. Hess, 758 So. 2d 1203 (Fla. 4th DCA 2000). If the settlement occurs after a wrongful death action is filed, and a minor’s claim is involved, apparently only the court in which the action is pending has jurisdiction to approve the settlement of the minor’s claim. Maugeri v. Plourde, 396 So. 2d 1215 (Fla. 3d DCA 1981). The allocation of

settlement proceeds between the estate and any survivors is extremely critical because various liens (see §§ 12.8.A et seq.) may attach to the estate’s recovery. These liens, however, do not attach to the recovery of the individual survivors. In re Estate of Barton, 631 So. 2d 315 (Fla. 2d DCA 1994); Orlando Regional Medical Center, Inc. v. Estate of Heron, 596 So. 2d 1078 (Fla. 5th DCA 1992). Similarly, creditors of the estate do not reach the portion of the recovery allocated to survivors. Hartford Insurance Co. v. Goff, 4 So. 3d 770 (Fla. 2d DCA 2009). If the case proceeds to trial, there will be no need to obtain an order allocating the recovery, because the jury will be asked to allocate damages between the estate and each specific survivor. See Instruction 502.3 and the Model Jury Instructions and Verdict Forms in FLORIDA STANDARD JURY INSTRUCTIONS IN CIVIL CASES (Fla. Bar 3d ed., 2020 Supp.).

« Ch. 12 », « § 12.7 » 1 Litigation Under FL Probate Code § 12.7 (2022)

§ 12.7. ALLOCATION OF ATTORNEYS’ FEES Attorneys’ fees and other expenses of wrongful death litigation are paid by the personal representative and deducted from the awards to the survivors (see § 12.4.A) and the estate in proportion to the amounts awarded to them, but the expenses incurred for the benefit of a particular survivor or the estate must be paid from those individual awards. F.S. 768.26. “If the personal representative’s apportionment of settlement proceeds is reasonable and equitable, the apportionment will be upheld even when it allots no funds (or funds insufficient to pay creditors’ claims) to the estate.” Thompson v. Hodson, 825 So. 2d 941, 952 (Fla. 1st DCA 2002). In Thompson, a creditor with a judgment for attorneys’ fees against an estate was unsuccessful in collecting on a Class 1 attorney’s fee claim (see F.S. 733.707) from wrongful death settlement proceeds because the personal representative had reasonably allocated all settlement proceeds to beneficiaries of the wrongful death action, rather than to the estate. When survivors have competing claims and are represented by separate attorneys, fees from the wrongful death recovery are paid in a manner commensurate with the amount of work performed by each attorney. Wiggins v. Estate of Wright, 850 So. 2d 444 (Fla. 2003). See also Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So. 3d 1187 (Fla. 2011). The Vaughan court approved the method of allocating fees set forth in Wiggins and In re Estate of Catapane, 759 So. 2d 9 (Fla. 4th DCA 2000), whereby a trial court determines the competing attorneys’ fee awards by compensating the personal representative’s attorney out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the other survivors’ attorneys for their services in representing those survivors in the proceedings.

« Ch. 12 », « § 12.8 • 1 Litigation Under FL Probate Code § 12.8 (2022)

§

12.8. LIENS RECOVERY

ON

WRONGFUL

DEATH

« Ch. 12 », « § 12.8 •, • A » 1 Litigation Under FL Probate Code § 12.8.A (2022)

A. In General Frequently, the decedent will have incurred medical expenses for treatment of the injury giving rise to a wrongful death claim. A variety of sources including, but not limited to, Medicaid, Medicare, health insurance policies, and auto insurance policies may have made payments to medical providers on behalf of the decedent. Medical payments from these sources may result in liens that attach to the estate’s share of the wrongful death recovery. These liens may attach regardless of whether there has been compliance with creditors’ claim requirements. The legal basis and method for calculating the lien differs depending on the identity of the payor. « Ch. 12 », « § 12.8 •, « B » 1 Litigation Under FL Probate Code § 12.8.B (2022)

B. Medicare Liens « Ch. 12 », « § 12.8 •, « B », • 1 » 1 Litigation Under FL Probate Code § 12.8.B.1 (2022)

1. Legal Basis For Lien Medicare has a statutory right of recovery based on 42 U.S.C. § 1395y of the Social Security Act. Medicare is entitled to reimbursement under 42 U.S.C. § 1395y(b)(2) when notice or other information is received that payment has been or could be made under a group health plan; a workers’ compensation law or other plans of the United States or any state;

an automobile or liability insurance policy or plan; or no-fault insurance. « Ch. 12 », « § 12.8 •, « B », « 2 » 1 Litigation Under FL Probate Code § 12.8.B.2 (2022)

2. Handling Medicare Lien Before Wrongful Death Recovery Is Made The personal representative must first determine whether a Medicare lien exists. Carefully reviewing billing summaries and other paperwork often reveals payments by Medicare or some other third-party payor. Anyone over age 65, or with a disability, is a likely Medicare beneficiary. If Medicare payments have been made, the personal representative should notify Medicare of the decedent’s name, the date of accident (or date of death), and the decedent’s Medicare number. The Medicare number is usually a nine-digit number with an alphabetical prefix or suffix. It is not always the decedent’s social security number. The personal representative should provide Medicare with the name, address, telephone number, and policy number of all potential tortfeasors and their liability carriers, along with the name, address, and telephone number of the attorney representing the personal representative. This information is required by Medicare to ensure that Medicare lien rights are protected. Medicare will provide written confirmation of the lien, albeit slowly, usually within four to six weeks. « Ch. 12 », « § 12.8 •, « B », « 3 • 1 Litigation Under FL Probate Code § 12.8.B.3 (2022)

3. Medicare Liens Post-Recovery A Medicare lien applies only to that portion of the wrongful death recovery allocated to the estate. (See § 12.4.F.) Any portion of the recovery allocated to a beneficiary is separate and distinct from the estate’s claim and is not subject to Medicare’s lien. See Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010). In Bradley, Medicare sought to impose its lien against a portion of the recovery that the probate court had allocated to survivors. Medicare elected

not to participate in the equitable distribution hearing held by the trial court, instead arguing that the trial court’s allocation was merely advisory in nature and superseded by federal law. The Bradley court held that under the Florida Wrongful Death Act, the claim of the estate is separate from the claims of the survivors. The court concluded that Medicare cannot assert a lien against the property of the survivors and can only assert its reimbursement rights against the estate’s claim. « Ch. 12 », « § 12.8 •, « C » 1 Litigation Under FL Probate Code § 12.8.C (2022)

C. Medicaid Liens « Ch. 12 », « § 12.8 •, « C », • 1 » 1 Litigation Under FL Probate Code § 12.8.C.1 (2022)

1. In General The Medicaid Third-Party Liability Act, F.S. 409.910, provides the Agency for Health Care Administration (hereafter the agency) with automatic subrogation and assignment of the injured parties’ rights. F.S. 409.910(6)(a)– (6)(b). The agency is even granted a limited power of attorney to act in the name of the injured party with regard to third-party benefits. F.S. 409.910(6) (b)3. « Ch. 12 », « § 12.8 •, « C », « 2 » 1 Litigation Under FL Probate Code § 12.8.C.2 (2022)

2. Lien Amount States participating in Medicaid are required by the federal government to seek reimbursement for medical expenses incurred on behalf of beneficiaries who later recover from third-party tortfeasors. Arkansas Dept. of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006). To comply with federal directives, the Florida Legislature enacted F.S. 409.910, which authorizes the state to recover, from a personal injury settlement, money that the state paid for the plaintiff’s medical care before recovery. Smith v. Agency for Health Care Administration, 24 So. 3d 590 (Fla. 5th DCA 2010).

The specific amount that the state may recover from a settlement is determined by applying the formula provided in F.S. 409.910(11)(f), which caps recovery at half of the total amount of the settlement, after deducting attorneys’ fees and costs. Davis v. Roberts, 130 So. 3d 264 (Fla. 5th DCA 2013). But see Giraldo v. Agency for Health Care Administration, 208 So. 3d 244 (Fla. 1st DCA 2016), rev’d & remanded on other grounds, 248 So. 3d 53. However, the formula is a default allocation that applies absent evidence of an alternative allocation. With the enactment of F.S. 409.910, the Florida Legislature provided: Medicaid is to be repaid in full from, and to the extent of, any third-party benefits, regardless of whether a recipient is made whole or other creditors paid. Principles of common law and equity as to assignment, lien, and subrogation are abrogated to the extent necessary to ensure full recovery by Medicaid from third-party resources. Under Florida’s Medicaid lien law, the personal representative does not have the right to allocate settlement funds in such a manner that reimburses less than the full amount of Medicaid’s lien. Following a settlement, the court is required to segregate an amount sufficient to repay the Medicaid lien. Strafford v. Agency for Health Care Administration, 915 So. 2d 643 (Fla. 2d DCA 2005). In Wos v. E.M.A., 568 U.S. 627, 133 S. Ct. 1391, 185 L. Ed. 2d 471 (2013), the United States Supreme Court held that a North Carolina statute governing the state’s reimbursement from the proceeds of a third-party tort recovery by a Medicaid beneficiary is pre-empted by the federal Medicaid anti-lien provision to the extent that the state statute can be interpreted as creating a conclusive presumption as to the amount of medical expense recovered by the Medicaid beneficiary in the settlement. In response to Wos, the Florida legislature amended the Medicaid Third-Party Liability Act in F.S. 409.910(17)(b). It now provides Medicaid beneficiaries with the opportunity to rebut the Act’s statutory recovery formula. Estate of Hernandez v. Agency for Health Care Administration, 190 So. 3d 139 (Fla. 3d DCA 2016). The amendment also requires recipients bring their challenges by petition to the Division of Administrative Hearings. No longer may the recipient challenge the amount of the Medicaid lien by motion in the circuit court. Suarez v. Port Charlotte HMA, LLC, 171 So. 3d 740 (Fla. 2d

DCA 2015), rev’d & remanded on other grounds 210 So. 3d 187. As noted above, Florida’s lien recovery formula set forth in F.S. 409.910(11)(f) is a valid “default allocation” rule only. Davis; Roberts v. Albertson’s, Inc., 119 So. 3d 457 (Fla. 4th DCA 2013). But see Goheagan v. Perkins, 197 So. 3d 112 (Fla. 4th DCA 2016). A Medicaid recipient is entitled to challenge the default rule and seek a reduction of the Medicaid lien amount by demonstrating, with evidence, that the default lien amount exceeds the amount actually recovered for medical expense damages. Mobley v. State, Agency for Health Care Administration, 181 So. 3d 1233 (Fla. 1st DCA 2015). The trial court’s refusal to hold an evidentiary hearing to afford the Medicaid recipient an opportunity to present evidence challenging the default allocation rule is reversible error. Roberts. « Ch. 12 », « § 12.8 •, « C », « 3 » 1 Litigation Under FL Probate Code § 12.8.C.3 (2022)

3. Distribution Of Recovered Amount After reduction for attorneys’ fees and taxable costs, the distribution of the recovered amount is as follows: One half of the remaining recovery is paid to the agency up to the total amount of medical assistance provided by Medicaid. The remaining recovery is paid to the recipient. For purposes of calculating the agency’s recovery, the allowable fee for services of an attorney retained by the recipient or his or her legal representative is to be calculated at 25% of the judgment, award, or settlement. F.S. 409.910(11)(f). See Strafford v. Agency for Health Care Administration, 915 So. 2d 643 (Fla. 2d DCA 2005). « Ch. 12 », « § 12.8 •, « C », « 4 » 1 Litigation Under FL Probate Code § 12.8.C.4 (2022)

4. Undue Hardship Waiver A limited exception, known as an “undue hardship waiver,” prevents the state from recovering from an estate if recovery of any or all of the debt would create a hardship for a qualified heir (i.e., the decedent’s spouse or

children). F.S. 409.9101(8), 731.201. The personal representative of an estate and any heir may make an undue hardship request by completing the agency’s required form. To be eligible for the undue hardship waiver, the qualified heir must establish one of the four qualifying conditions set forth in F.S. 409.9101(8). « Ch. 12 », « § 12.8 •, « C », « 5 • 1 Litigation Under FL Probate Code § 12.8.C.5 (2022)

5. Impact Of Ahlborn And Bradley In Arkansas Dept. of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006), the United States Supreme Court held that the right of recovery by state Medicaid agencies is limited to the portion of the settlement representing past medical expenses and cannot extend to other damages recovered by the Medicaid recipient. The analysis in Ahlborn, together with the rationale in Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010) (see § 12.8.B.3), suggests a framework for arguing that Medicaid’s lien should not reach a separate beneficiary’s recovery. A Bradley analysis may successfully limit Medicaid to recovery from only the portion of the settlement belonging to the estate. As noted in § 12.8.C.2, the District Court of Appeal, Fourth District, held in Roberts v. Albertson’s, Inc., 119 So. 3d 457 (Fla. 4th DCA 2013), that F.S. 409.910 creates a presumptively valid allocation of settlement proceeds subject to a Medicaid lien; however, the statutory allocation is only a default allocation. A plaintiff should be afforded the opportunity to seek the reduction of a Medicaid lien amount established by the statutory default allocation by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses. This procedure was tacitly recognized as appropriate in Garcon v. Florida Agency for Health Care Administration, 150 So. 3d 1101 (Fla. 2014) and by legislative amendment has now been codified at F.S. 409.910(17)(b). But see Goheagan v. Perkins, 197 So. 3d 112 (Fla. 4th DCA 2016); Estate of Hernandez v. Agency for Health Care Administration, 190 So. 3d 139 (Fla. 3d DCA 2016). « Ch. 12 », « § 12.8 •, « D • 1 Litigation Under FL Probate Code § 12.8.D (2022)

D. Group Insurance Liens

« Ch. 12 », « § 12.8 •, « D •, • 1 » 1 Litigation Under FL Probate Code § 12.8.D.1 (2022)

1. ERISA Policies The Employee Retirement Income Security Act (ERISA) of 1974, 29 U.S.C. §§ 1001 et seq., has been held to exclusively govern virtually all group health, accident, and disability insurance policies provided in the workplace. Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987), overruled on other grounds by 538 U.S. 329; Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987). A reimbursement lien created by an ERISA provider typically is established by the terms of the policy as a matter of contract law. To determine the amount of the lien, the attorney should look at the terms of the individual policy. ERISA “preempts” conflicting state law, FMC Corp. v. Holliday, 498 U.S. 52, 111 S. Ct. 403, 404, 112 L. Ed. 2d 356 (1990), and, therefore, reimbursement provisions of the plan generally will control. Many ERISA plans call for 100% reimbursement with no reduction for costs or fees. There are few exceptions. Any plan that on its face permits the plan to assert a lien against the separate property of the survivor’s claims would seem susceptible to challenge under the rationale of Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010) (see § 12.8.B.3). Determining whether a policy is an ERISA plan is beyond the scope of this chapter. It is a critical determination, however, because, as discussed below, the amount of the lien may be significantly reduced by the effect of F.S. 768.76 if the policy is not an ERISA policy. « Ch. 12 », « § 12.8 •, « D •, « 2 » 1 Litigation Under FL Probate Code § 12.8.D.2 (2022)

2. Non-ERISA Policies « Ch. 12 », « § 12.8 •, « D •, « 2 », • a » 1 Litigation Under FL Probate Code § 12.8.D.2.a (2022)

a. In General F.S. 768.76(4) establishes the procedures to be followed when payments have been made by a non-ERISA insurance provider. The statute provides for

a reduction of the lien by a pro rata share of the costs and attorneys’ fees associated with obtaining the recovery and limits the lien to the actual amount of the recovery. « Ch. 12 », « § 12.8 •, « D •, « 2 », « b » 1 Litigation Under FL Probate Code § 12.8.D.2.b (2022)

b. Requirement To Notify Collateral Source Provider Of Wrongful Death Claim Under F.S. 768.76(6), the personal representative must send to the provider, by certified or registered mail, notification of the intent to claim damages from any tortfeasor. The statute also provides that if the personal representative has filed suit against the tortfeasor at the time the notice is sent, a copy of the complaint against the tortfeasor should be sent along with the notice. The notice must include a statement that the provider will waive any right to subrogation or reimbursement unless it provides to the personal representative or personal representative’s attorney a statement asserting payment of benefits and right of subrogation or reimbursement within 30 days following receipt of the personal representative’s notification. Id. « Ch. 12 », « § 12.8 •, « D •, « 2 », « c » 1 Litigation Under FL Probate Code § 12.8.D.2.c (2022)

c. Waiver Of Lien Within 30 days after receipt of the personal representative’s notice, the provider of collateral sources must provide a written statement asserting its payment of benefits and its right of subrogation. Failure to provide the statement within the 30-day period results in a waiver of any claim to subrogation or reimbursement. F.S. 768.76(7). « Ch. 12 », « § 12.8 •, « D •, « 2 », « d » 1 Litigation Under FL Probate Code § 12.8.D.2.d (2022)

d. Provider’s Duty To Cooperate With Claimant F.S. 768.76(9) requires the provider to cooperate with the claimant by producing information that is reasonably necessary for the claimant to prove the nature and extent of the provider’s payments. The failure of the provider

to cooperate can be considered by the court in denying or reducing the amount of the provider’s reimbursement. « Ch. 12 », « § 12.8 •, « D •, « 2 », « e • 1 Litigation Under FL Probate Code § 12.8.D.2.e (2022)

e. Settlement Of Disputes Disputes between the claimant and the provider over the actual amount of recovery are subject to determination by a court of competent jurisdiction. In determining the actual amount of recovery, the court must consider any reduction for the decedent’s comparative fault, limitations on the amount of liability insurance coverage available to the tortfeasor, or “any other mitigating factors.” F.S. 768.76(5). Additionally, after Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010) (see § 12.8.B.3), the trial court should receive evidence, allocate the settlement between the estate and survivors, and limit the application of the lien to the estate’s recovery. Provident Life & Accident Insurance Co. v. Lewis, 709 So. 2d 587 (Fla. 4th DCA 1998), is an example of how the courts will determine the provider’s lien. The trial court initially determines which of the provider’s payments were actually recovered by the claimant and then reduces the amount of the provider’s recovered payments by a pro rata share of costs and attorneys’ fees. « Ch. 12 », « § 12.8 •, « D •, « 3 • 1 Litigation Under FL Probate Code § 12.8.D.3 (2022)

3. No Lien On Future Payments There is no setoff or lien for future collateral payments expected to be paid by any provider. F.S. 768.76(8); White v. Westlund, 624 So. 2d 1148 (Fla. 4th DCA 1993); Swamy v. Hodges, 583 So. 2d 1095 (Fla. 1st DCA 1991). Additionally, evidence of eligibility for future benefits from social legislation programs, such as Medicare and Medicaid, is inadmissible as collateral sources. Joerg v. State Farm Mutual Automobile Insurance, Co., 176 So. 3d 1247 (Fla. 2015). But see Tower Hill Signature Insurance v. Speck, 199 So. 3d 350 (Fla. 5th DCA 2016). Footnotes — Chapter 12: *

J.D., 2006, University of Florida. Ms. Bouchard is a member of The Florida Bar, Brevard

County Bar Association, and Florida Association of Woman Lawyers. Ms. Bouchard serves on the Executive Council of the Real Property, Probate and Trust Law Section of The Florida Bar and is a Board Member of the Brevard County Association of Women Lawyers. She is an Attorney Advisor for Lawyers Advising Lawyers. Ms. Bouchard is an associate attorney at Nash & Kromash, LLP, in Melbourne. **

J.D., 1979, Drake University; LL.M. in Taxation, 1980, University of Florida. Mr. Nash is a member of The Florida Bar and is a Fellow and Former Regent of the American College of Trust and Estate Counsel. He is Florida Bar Board Certified in Wills, Trusts and Estates. Mr. Nash is a shareholder in Nash & Kromash, LLP, in Melbourne.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 13 » 1 Litigation Under FL Probate Code Ch. 13 (2022)

Chapter 13 TORTIOUS INTERFERENCE IN ESTATE PLANNING W. FLETCHER BELCHER* Contents § 13.1. INTRODUCTION § 13.2. ELEMENTS OF TORT OF INTENTIONAL INTERFERENCE WITH EXPECTANCY A. In General B. Reasonable Expectancy: Prospect Of Inter Vivos Or Testamentary Gift As Result Of Fixed Intention 1. Nature Of Expectancy 2. Examples Of Allegations Of Expectancy C. Intentional Interference With Expectancy By Means That Are Independently Tortious In Character 1. Tortious Means Generally 2. Examples Of Independent Torts D. Interference Causes Damage By Destroying Expectancy 1. Damages 2. Causation Generally 3. Examples Of Allegations Of Causation 4. Examples Of Manner In Which Wrongful Interference May Destroy Expectancy § 13.3. EXHAUSTION OF ADEQUATE PROBATE REMEDY A. In General B. Underlying Policies For Exhaustion Requirement C. Adequacy

1. Probate Remedies For Interference With Trust Devise a. In General b. Will Makes Devise Or Pours Over To Trust c. Incorporation By Reference Of Trust Into Will D. Need For Consistency In Related Transactions § 13.4. TORT REMEDIES A. Monetary Damages B. Restitution; Constructive Trust; Equitable Lien § 13.5. LATER TORT ACTION A. In General B. Later Action Permitted C. Later Action Not Permitted § 13.6. POINT AT WHICH TORT ACTION MAY BE BROUGHT § 13.7. REQUIRED BURDEN OF PROOF § 13.8. STATUTE OF LIMITATIONS § 13.9. CASE SUMMARIES § 13.10. ADDITIONAL REFERENCES « Ch. 13 », • § 13.1 » 1 Litigation Under FL Probate Code § 13.1 (2022)

§ 13.1. INTRODUCTION Tortious interference in estate planning is a theory of tort liability that was first recognized in Florida in 1966. See Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966). The tort of interference with an expectancy authorizes the injured beneficiary to bring what amounts to a derivative action to recover damages or obtain other relief. The tort is recognized to advance a public policy for the protection of the testator or donor in freely disposing of his or her property by gift or devise, rather than to protect the beneficiary’s expectancy. Schilling v. Herrera, 952 So. 2d 1231, 1234 (Fla. 3d DCA 2007) (“the purpose behind this tort is to protect the testator, not the beneficiary”). See Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Ellis v. Warner, 2017 U.S. Dist. LEXIS 22109, 2017 WL 634287 (S.D. Fla. 2017). See also All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA

2000). This is because [t]he fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is. Thus, the common law court has created this cause of action not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights. Whalen, 719 So. 2d at 6. This theory of tort liability, which emanates from the RESTATEMENT (SECOND) OF TORTS (see § 13.2), has been described by Florida courts as an “evolving” tort, as well as “ ‘an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the … beneficiary’s.’ ” Mulvey v. Stephens, 250 So. 3d 106, 110 (Fla. 4th DCA 2018), quoting Whalen, 718 So. 2d at 6. Significantly, the action for tortious interference may be brought only under circumstances that do not usurp the jurisdiction of the probate court, constitute an impermissible collateral attack on an order or judgment entered in probate, or improperly delegate, to disappointed beneficiaries, the responsibility for the protection of a competent testator’s right to dispose of property freely and without improper interference. Henry v. Jones, 202 So. 3d 129 (Fla. 2d DCA 2016).

« Ch. 13 », « § 13.2 » 1 Litigation Under FL Probate Code § 13.2 (2022)

§ 13.2. ELEMENTS OF TORT OF INTENTIONAL INTERFERENCE WITH EXPECTANCY « Ch. 13 », « § 13.2 », • A » 1 Litigation Under FL Probate Code § 13.2.A (2022)

A. In General The RESTATEMENT (SECOND) OF TORTS § 774B (ALI 1979) (hereinafter the RESTATEMENT) provides: “One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift.” The court, in Henry v. Jones, 202 So. 3d 129, 133–134 (Fla. 2d DCA 2016), held that to “prove a claim of intentional interference with an expectancy of inheritance, the plaintiff must show: (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages.” See Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018); Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007); Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001); Chase v. Bowen, 771 So. 2d 1181 (Fla. 5th DCA 2000) (Sharp, J. dissenting); Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Ellis v. Warner, 2017 U.S. Dist. LEXIS 22109, 2017 WL 634287 (S.D. Fla. 2017). Some of these elements are discussed below. « Ch. 13 », « § 13.2 », « B » 1 Litigation Under FL Probate Code § 13.2.B (2022)

B. Reasonable Expectancy: Prospect Of Inter Vivos Or Testamentary Gift As Result Of Fixed Intention « Ch. 13 », « § 13.2 », « B », • 1 » 1 Litigation Under FL Probate Code § 13.2.B.1 (2022)

1. Nature Of Expectancy “An essential element of any claim for interference with the expectancy

of receiving a gift or inheritance is a showing that the plaintiff has a legally protected interest, that is, an expectancy.” 36 CAUSES OF ACTION 2D 1, § 22 (2008, 2021 Supp.). The expectancy element of a tortious interference claim is nothing more than an objective likelihood that a gift, bequest, or inheritance will occur. The RESTATEMENT does not use the term “expectancy.” Rather, it describes the expectancy in terms of an inheritance or gift that the intended or probable beneficiary “would otherwise have received.” See DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981); Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980), 22 A.L.R.4th 1223. An expectancy may be in the form of a gift, bequest, or inheritance that is likely to occur. The expectancy element of tortious interference is often misunderstood as requiring some degree of knowledge or anticipation by the intended or probable beneficiary. However, the existence of an expectancy is not dependent on the state of mind of the intended or probable beneficiary, and there is no requirement that the beneficiary even have any knowledge of the matter. Tortious interference with a gift, bequest, or inheritance that otherwise would have occurred is an actionable tort. Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966). The interest protected by this ground of tort liability is merely a reasonable expectancy that has not become a vested property or contractual right. “ ‘The fact that [an expectancy] status has not ripened into a vested and irrevocable ownership of a beneficial interest … does not authorize a third-party to maliciously and fraudulently destroy the status.’ ” Davison, 391 So. 2d at 802, quoting Mitchell v. Langley, 143 Ga. 827, 85 S.E. 1050, 1052 (1915). Neither the noncommercial nature of the expectancy in favor of the plaintiff nor the possibility that the decedent might have changed his or her mind precludes the existence of this ground of tort liability. Moreover, while “such a cause of action is difficult to prove, that does not affect the existence of a ground of tort liability.” Allen, 190 So. 2d at 829. The expectancy may even be based on the intent or likelihood of a present inter vivos gift. RESTATEMENT, Comment d; Watts v. Haun, 393 So. 2d 54 (Fla. 2d DCA 1981). In this context, “gift” includes “in the broad sense any donation, gratuity or benefaction that would have been received from [another person].” RESTATEMENT, Comment b.

Similarly, the expectancy may be based on the likelihood of a deferred or testamentary gift or inheritance. RESTATEMENT, Comment d. “Inheritance” includes “any devise or bequest that would otherwise have been made under a testamentary instrument or any property that would have passed … by intestate succession.” RESTATEMENT, Comment b. The expectancy may be based on a living trust. Niles v. Mallardi, 828 So. 2d 1076 (Fla. 4th DCA 2002); Whalen; Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997); Davison. For the purposes of tortious interference with an expectance, no real distinction exists between gifts of inheritance through a will, revocable trust, or designation of beneficiary of a life insurance policy, annuity, or Totten trust account. It is the expectancy status to which this theory of liability applies, and all of these devices can create expectancies. Davison. « Ch. 13 », « § 13.2 », « B », « 2 • 1 Litigation Under FL Probate Code § 13.2.B.2 (2022)

2. Examples Of Allegations Of Expectancy The following are examples of sufficient allegations of a basis for claiming an expectancy: The decedent had a fixed intention to leave a portion of his estate to the plaintiff and a strong probability existed that the decedent would have carried out his intention but for the wrongful acts of the defendant. Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966). The decedent had a fixed intent to leave substantial properties to her daughter, as demonstrated by her prior will and trust, and statements to her lawyer. Chase v. Bowen, 771 So. 2d 1181 (Fla. 5th DCA 2000) (Sharp, J., dissenting). The decedent had a fixed purpose and desire to give the plaintiff a share of his estate. Kramer v. Freedman, 272 So. 2d 195 (Fla. 3d DCA 1973). The decedent formed a fixed intention to give the plaintiff a share of his estate. Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973). The grantor of a living trust had a formed intention to give a major portion of the trust assets to the plaintiff by amending her trust. Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980), 22 A.L.R. 4th 1223. The decedent had a fixed intention to make a gift to the plaintiff. Watts

v. Haun, 393 So. 2d 54 (Fla. 2d DCA 1981). The decedent had a lifelong fixed intent to make a gift to the plaintiff. Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991). The plaintiff was the decedent’s only heir-at-law and had been the sole beneficiary under the decedent’s prior will. Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007). « Ch. 13 », « § 13.2 », « C » 1 Litigation Under FL Probate Code § 13.2.C (2022)

C. Intentional Interference With Expectancy By Means That Are Independently Tortious In Character « Ch. 13 », « § 13.2 », « C », • 1 » 1 Litigation Under FL Probate Code § 13.2.C.1 (2022)

1. Tortious Means Generally Liability “is limited to cases in which the actor has interfered with the inheritance or gift by means that are independently tortious in character.” RESTATEMENT, Comment c. See Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998). Negligent or accidental interference is insufficient; it must be intentional. RESTATEMENT, Comment a. A lawyer who merely drafts the will in accordance with the instruction of the testator that excludes a beneficiary who had been included in an earlier will “cannot be found to have intentionally interfered with the inheritance of such beneficiary. Drafting a will in accordance with the instruction of the testator … is simply not tortious conduct.” Chase v. Bowen, 771 So. 2d 1181, 1183 (Fla. 5th DCA 2000). However, a lawyer who renders services to a client in connection with estate planning or inter vivos gifting and attempts to influence the client for any reason, or has a conflict of interest due to his or her own self-interest or a conflicting fiduciary duty of loyalty owed to another client, is extremely vulnerable to a claim for tortious interference. See id. (Sharp, J., dissenting); Ellis v. Warner, 2017 U.S. Dist. LEXIS 22109, 2017 WL 634287 (S.D. Fla. 2017). In Niles v. Mallardi, 828 So. 2d 1076 (Fla. 4th DCA 2002), a jury in a prior action determined that the plaintiffs’ deceased stepmother, while serving as personal representative of her deceased husband’s estate, breached her fiduciary duty to the plaintiffs and

intentionally interfered with their inheritance from their father by making a will that diverted to her children a devise that plaintiffs were to receive under their father’s will. The court ruled that the attorney-client privilege could not be invoked by the defendant lawyer in the plaintiffs’ subsequent action against him for intentional interference with an expectancy when the lawyer prepared both the father’s and stepmother’s wills and represented the stepmother individually and as personal representative. The court deemed the facts sufficient to support the crime-fraud exception to the attorney-client privilege. As noted in § 13.2.A, the elements of the tort of intentional interference with an expectancy are enumerated in Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007), Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001), and the dissent in Chase and Ellis. « Ch. 13 », « § 13.2 », « C », « 2 • 1 Litigation Under FL Probate Code § 13.2.C.2 (2022)

2. Examples Of Independent Torts Duress. Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973); Kramer v. Freedman, 272 So. 2d 195 (Fla. 3d DCA 1973); Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966); RESTATEMENT, Comments b and c; Annot., Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229 (1983). Fraud (false statements), fraudulent inducement, or fraudulent concealment. Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007); All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000); RESTATEMENT, supra; Annot., supra. See also comments on constructive fraud below. Undue influence. Schilling; Neumann v. Wordock, 873 So. 2d 502 (Fla. 2d DCA 2004); Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997); Cooke; Kramer; Allen; Annot., supra. Conversion. All Children’s Hospital, Inc. Coercion. Kramer. Defamation. RESTATEMENT, supra.

Tortious abuse of fiduciary relationship or constructive fraud (i.e., breach of fiduciary duties of loyalty or disclosure, fiduciary conflict of interest, self-dealing, etc.). Niles v. Mallardi, 828 So. 2d 1076 (Fla. 4th DCA 2002); Chase v. Bowen, 771 So. 2d 1181 (Fla. 5th DCA 2000) (Sharp, J. dissenting); Henshall v. Lowe, 657 So. 2d 6 (Fla. 2d DCA 1995); RESTATEMENT, supra. Forgery of instrument. Id.; Ellis v. Warner, 2017 U.S. Dist. LEXIS 22109, 2017 WL 634287 (S.D. Fla. 2017). Alteration of instrument. Id. Destruction of instrument. In re Estate of Hatten, 880 So. 2d 1271 (Fla. 3d DCA 2004); RESTATEMENT, supra. Suppression of instrument. Id. « Ch. 13 », « § 13.2 », « D • 1 Litigation Under FL Probate Code § 13.2.D (2022)

D. Interference Causes Damage By Destroying Expectancy « Ch. 13 », « § 13.2 », « D •, • 1 » 1 Litigation Under FL Probate Code § 13.2.D.1 (2022)

1. Damages In Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012), the decedent’s daughters brought an action against their stepmother for tortious interference with an expected inheritance from their father. The daughters alleged that their stepmother diverted their father’s assets contrary to his wishes through manipulation before his death. The only proof of damage offered by the daughters at trial was general testimony that the value of the assets involved in the litigation was “over a million dollars” or “in the millions [of dollars]”; that the value of the assets in question was in the “millions of dollars”; and that the value of the allegedly misappropriated assets was in “seven figures.” Id. at 833. The court noted at the outset that none of the testimony regarding damages “was tied to a legally relevant time period,” and that “[t]his omission alone deprive[d] [the] testimony of any probative value.” Id. The Saewitz court continued, in affirming the trial court’s final judgment of dismissal following the entry of a directed verdict against the daughters at

the close of their case-in-chief for failure to offer prima facie proof of the amount of damages, and held that: A prima facie case of tortious interference requires proof of damages, citing Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); The damage is the loss of an inheritance or gift that would have been received but for the tortious interference, citing Restatement; Both the fact of damage and the extent of the damages must be established with a reasonable degree of certainty, citing Nebula Glass International, Inc. v. Reichhold, Inc., 454 F.3d 1203 (11th Cir. 2006); Although neither the fact nor extent of the damages at a legally relevant point in time may be based on speculation, conjecture, or guesswork, they do not need to be proven with exactitude; and The standard for the required degree of certainty of the damages is that which would satisfy “ ‘the mind of a prudent impartial person’ ” and “be sufficiently definite” to permit an appellate court to “perform its review obligations,” Saewitz, 79 So. 3d at 834, quoting R.A. Jones & Sons, Inc. v. Holman, 470 So. 2d 60, 69 (Fla. 3d DCA 1985). In Shakespeare v. Prince, 129 So. 3d 412 (Fla. 2d DCA 2014), the plaintiff also lost a tortious interference case by failing to prove the amount of damages. In that case, the plaintiff had been the remainder beneficiary of his mother’s revocable trust, which held a residence valued at approximately $1,000,000. Although the plaintiff proved the value of the residence and that he was deprived of the remainder interest by the undue influence of his stepfather, a $150,000 jury verdict in the plaintiff’s favor was reversed on appeal because he failed to offer any evidence of the value of the remainder interest. If the items of which a tortious interference plaintiff claims to have been deprived by an estate plan that was the result of interference were no longer possessed by the testator at the time of his or her death, the essential element of damage or injury is absent. Ellis v. Warner, 2018 U.S. Dist. LEXIS 10649, 2018 WL 4846762 (S.D. Fla. 2018). « Ch. 13 », « § 13.2 », « D •, « 2 » 1 Litigation Under FL Probate Code § 13.2.D.2 (2022)

2. Causation Generally

There “can be recovery only for an inheritance or gift that … would have been received but for the tortious interference of the actor.” RESTATEMENT, Comment d. See also Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Annot., Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229 (1983). The RESTATEMENT requires that the interference prevent the plaintiff from obtaining an inheritance or gift that would otherwise have been received. The plaintiff must only “prove to a reasonable certainty that she would have been the beneficiary [or donee] but for [the] interference.” Davison v. Feuerherd, 391 So. 2d 799, 802 (Fla. 2d DCA 1980), 22 A.L.R. 4th 1223. See also Allen v. Leybourne, 190 So. 2d 825, 829 (Fla. 3d DCA 1966) (“strong probability” that plaintiff would have received share of estate). « Ch. 13 », « § 13.2 », « D •, « 3 » 1 Litigation Under FL Probate Code § 13.2.D.3 (2022)

3. Examples Of Allegations Of Causation The expectancy would have been received but for the wrongful acts of the defendant. Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966). The interference caused the decedent to make a will that excluded the plaintiff. Kramer v. Freedman, 272 So. 2d 195 (Fla. 3d DCA 1973). The wrongful interference caused the decedent to execute a will leaving his entire estate to the defendant, thus depriving the plaintiff of his expectancy. Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973). As a result of the wrongful interference, the decedent failed to amend her living trust in favor of the plaintiff. Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980), 22 A.L.R. 4th 1223. The plaintiff would have been a beneficiary but for the malicious interference. Id. The decedent would have fulfilled and carried out his intent to make a gift but for the defendant’s actions. Watts v. Haun, 393 So. 2d 54 (Fla. 2d DCA 1981). The defendant tortiously interfered with the plaintiffs’ inheritance by fraudulently and maliciously alienating their father from them, causing him to reduce their inheritance. Martin v. Martin, 687 So. 2d 903 (Fla.

4th DCA 1997). The defendant intentionally and maliciously interfered with the plaintiff’s expectancies by the defendant’s undue influence, causing pecuniary losses and mental pain and suffering to the plaintiff. Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001). At a time when the decedent was under the undue influence of the defendant, the defendant caused the decedent to execute a durable power of attorney giving the defendant control of his property, and, through undue influence, the defendant also caused the decedent to execute wills that would leave the vast majority of the decedent’s property to the defendant. Neumann v. Wordock, 873 So. 2d 502 (Fla. 2d DCA 2004). « Ch. 13 », « § 13.2 », « D •, « 4 • 1 Litigation Under FL Probate Code § 13.2.D.4 (2022)

4. Examples Of Manner In Which Wrongful Interference May Destroy Expectancy Forgery of instrument. RESTATEMENT, Comments b and c. Alteration of instrument. RESTATEMENT, Comment c. Spoliation or destruction of instrument. In re Estate of Hatten, 880 So. 2d 1271 (Fla. 3d DCA 2004); Annot., Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229 (1983). Suppression or loss of instrument. RESTATEMENT, Comments b and c; Annot., supra. Causing the testator to make a subsequent will, codicil, agreement, or other gift instrument. Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007); Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001); All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000); Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997); RESTATEMENT, Comment b. Causing the testator to change or amend a will or other gift instrument. Schilling; Claveloux; All Children’s Hospital, Inc.; Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998); Martin; Davison v. Feuerherd, 391

So. 2d 799 (Fla. 2d DCA 1980), 22 A.L.R. 4th 1223; RESTATEMENT, Comment b. Causing the testator to not make a will or other gift instrument. Davison; Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973); RESTATEMENT, supra; Annot., supra. Causing the testator to not change or amend the will or other gift instrument. RESTATEMENT, supra; Annot., supra. Causing the testator to revoke a will or other gift instrument. Id. Causing the testator not to revoke a will or other gift instrument. Id. Causing an inter vivos transfer. Shakespeare v. Prince, 129 So. 3d 412 (Fla. 2d DCA 2014); Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012); Claveloux; All Children’s Hospital, Inc.; Henshall v. Lowe, 657 So. 2d 6 (Fla. 2d DCA 1995); Watts v. Haun, 393 So. 2d 54 (Fla. 2d DCA 1981); Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666 (11th Cir. 1991), abrogated on other grounds 254 F.3d 959; Annot., supra. Causing an inter vivos transfer not to be made. Watts; Davison. Causing the validity of a will not to be contested. Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4th DCA 1984).

« Ch. 13 », « § 13.3 » 1 Litigation Under FL Probate Code § 13.3 (2022)

§

13.3. EXHAUSTION PROBATE REMEDY

OF

ADEQUATE « Ch. 13 », « § 13.3 », • A »

1 Litigation Under FL Probate Code § 13.3.A (2022)

A. In General Normal tort remedies for interference with an expectancy are monetary damages and restitution. See §§ 13.4.A–13.4.B. A claim for tortious interference with a testamentary expectancy is permitted only if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court. Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018). As further explained in Whalen v. Prosser, 719 So. 2d 2, 6 (Fla. 2d DCA 1998), “although the law recognizes interference with an expectation as an intentional tort between litigants other than the testator, there is a tendency to prefer that such inheritance disputes be resolved in post-death proceedings and to allow the tort only in circumstances in which no adequate, alternative remedy exists.” Therefore, tort remedies may generally not be pursued until any adequate and available probate remedies are exhausted. The Florida Supreme Court’s decision in DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981), authored by Chief Justice Sundberg, is the leading Florida case on exhaustion. DeWitt indicates that relief through a tort action for interference with an inheritance expectancy will be barred if the plaintiff fails to seek relief in a probate proceeding, but only to the extent that all of the following elements are present: Adequate relief was available to the plaintiff in a probate proceeding (i.e., there was a probate remedy that could have given plaintiff everything to which he or she was entitled as a result of the particular form of interference). Depending on the circumstances, adequate relief may be available in a probate proceeding by contesting a later will that is the product of interference, establishing a will that was lost or destroyed through interference, or probating a prior will that was revoked through interference. Generally, there is no adequate relief

available in probate proceedings when the interference caused the testator to dissipate the probate estate through inter vivos transfers, prevented the testator from making a will, or concerned an expectancy arising from a revocable trust matter. The plaintiff had a fair opportunity to obtain adequate relief in a probate proceeding (i.e., plaintiff had notice of probate proceeding, discovered tortious conduct in sufficient time to seek relief in that proceeding, and was not otherwise prevented from seeking such relief). There is a challenging issue as to the quality of notice that is required in order to afford a “fair opportunity” to seek relief in a probate proceeding (i.e., actual knowledge of the proceeding, informal notice of the petition, formal notice of the petition, service of notice of administration). In Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017), the decedent changed the primary beneficiary of her revocable trust shortly before her death. The new beneficiary filed a petition seeking summary administration of the decedent’s estate. Although the former beneficiary did not join in the petition, it stated that she was a beneficiary of the estate and that the petition had been served on her but did not state the manner of service (i.e., whether by formal notice or informal notice). The summary administration statute requires that formal notice of a petition for summary administration be served on any beneficiary who is not required to join in the petition because they are to receive their full distributive share. F.S. 735.203(1). Without any participation by the former beneficiary in the summary administration proceeding, the probate court entered an order of summary administration. After entry of the order of summary administration, the former beneficiary filed a civil action against the new beneficiary, alleging tortious inference with an expectancy. The trial court entered a summary judgment against the former beneficiary based upon a finding that her later collateral action for tortious interference was procedurally barred or precluded because she was aware of the probate proceeding and could have contested the validity of the document in that proceeding but failed to do so. The District Court of Appeal, Fourth District, held that there were disputed material issues of fact relating to whether the former beneficiary was provided with “formal notice” of the probate proceeding or even had actual notice or knowledge and reversed the summary judgment. The court strongly intimated that actual notice or knowledge alone would not

be sufficient to bar the tortious interference plaintiff. The plaintiff failed to seek that relief. « Ch. 13 », « § 13.3 », « B » 1 Litigation Under FL Probate Code § 13.3.B (2022)

B. Underlying Policies For Exhaustion Requirement Florida has a strong public policy favoring the primacy of probate. That policy is codified in F.S. 733.103(2), which prohibits impermissible collateral attacks on probated wills by providing that [i]n any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death. This statute essentially employs the common-law doctrines of res judicata and collateral estoppel to implement the policy favoring the primacy of probate. DeWitt v. Duce, 408 So. 2d 216, 221 (Fla. 1981) (characterizing F.S. 733.103(2) as “little more than the codification of the common-law rule against collateral attack and is predicated on principles of res judicata and collateral estoppel”). Accordingly, matters concerning the devolution of property owned solely by a decedent are within the exclusive province of the probate court and a probate decree cannot be collaterally attacked by an action for tortious interference or in another non-probate proceeding. The rule is well settled that if adequate relief is available in a probate proceeding, the probate remedy must be exhausted before such relief may be sought through a claim for tortious interference. DeWitt. See § 13.3.A. In cases in which the tortious interference results in the execution of a will or codicil, the tort action, for all practical purposes, is an effort to impair the ultimate effect of the document and to “render nugatory the apparent rights of the defendant under the will.” Axe v. Wilson, 96 P.2d 880, 881 (1939), cited in DeWitt. An action that in effect contests the will is a will contest action and must be brought as such under the will contest statute in probate or not at all. This limitation denies the plaintiff no legal right, but simply determines the remedy. DeWitt. Accordingly, “[t]he rule is that if adequate relief is available in a probate proceeding, then that remedy must be exhausted before a tortious interference claim may be pursued.” Id. at 218.

See Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017); Cohen v. Cohen, 847 So. 2d 1137 (Fla. 4th DCA 2003). Various courts have commented on the multiple reasons underlying the public policy requiring exhaustion: “The state has an undeniable interest in settling title to property passing through probate. ‘Consideration of public policy requires that all questions of succession to property be authoritatively settled’ ” in that forum. DeWitt, 408 So. 2d at 220, quoting Davis v. Gaines, 104 U.S. (14 Otto) 386, 392–393, 26 L. Ed. 757 (1881). The public policy of finality concerning devised property requires that adequate probate remedies be exhausted and that collateral attacks on wills be carefully restricted. All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000). “The beneficiaries will have sustained no harm from the tort” if the probate court is able to establish and probate the true will of the testator. Benedict v. Smith, 376 A.2d 774, 775 (Conn. Super. Ct. 1977). “Original jurisdiction to probate wills is vested in the court of probate and [other courts have] no jurisdiction to determine in a collateral proceeding what document is the last will and testament of the decedent.” Id. 775–776. If the probate court has admitted the decedent’s will to probate, or determined that he or she died intestate, a tort action may be an improper collateral attack on the judgment in the probate court. “To permit the tort action to be maintained, without at least attempting to probate the [true] will, would be in derogation of the public policy … that the will of every person shall be offered for probate.” Id. at 776. « Ch. 13 », « § 13.3 », « C » 1 Litigation Under FL Probate Code § 13.3.C (2022)

C. Adequacy An adequate probate remedy is available only to the extent that the distribution of assets sought by the aggrieved party can be achieved in a probate proceeding. Neumann v. Wordock, 873 So. 2d 502 (Fla. 2d DCA 2004), citing DeWitt v. Duce, 408 So. 2d 216, 221 (Fla. 1981). Unless

intestacy or the probate of a will can affect the intended distribution claimed by the plaintiff, there is no adequate probate remedy to be exhausted. Id. In other words, a tortious interference remedy may not be used to recover a loss for which there is an adequate probate remedy. Conversely, an action for tortious interference is allowed only to the extent that the circumstances surrounding the tortious conduct effectively preclude adequate relief in a probate proceeding. See § 13.3.A. Examples of probate remedies which may provide complete or partial relief in cases involving tortious interference include contesting all or part of a will that was the product of interference (such as by fraud, duress, or undue influence); establishing a will that was lost or destroyed due to interference; probating a will that was revoked due to interference; and causing the assets of the estate to be distributed under intestacy. In Neumann, three of the decedent’s four children alleged that their father intended to devise specific assets to each of the four children in a manner different than their intestate shares, but that one daughter tortuously caused the father to execute a will leaving all of his assets to her. Under these circumstances, the court held there was no adequate probate remedy for the three excluded children because intestacy would not implement their father’s testamentary intent, and there was no prior will that would do so. In considering the adequacy of the probate remedy, the practitioner should ask: Is there a “marked disparity” between the probate remedy (i.e., inheritance that probate may distribute to plaintiff as an heir or beneficiary) and the tort remedy (i.e., value of gift intended by testator before interference)? DeWitt, 408 So. 2d at 220. Adequacy is predicated on there being no marked disparity between what the probate court can give and the present value of the expectancy as it existed before interference. The adequacy of the probate remedy will be affected by the plaintiff’s rights as either an heir-at-law or a beneficiary under a prior will. Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973). For purposes of adequacy of relief, punitive damages are not a valid expectation. DeWitt. In other words, the fact that the circumstances of the intentional interference may be sufficient to warrant a claim for punitive damages does not cause an otherwise adequate remedy to be inadequate or constitute an independent basis to allow the tort action.

The Florida Supreme Court quoted from 1 W. Bowe & Parker, PAGE ON WILLS § 14.8 (rev. 1960): “Probate can strike from the will something that is in it as a result of fraud but cannot add to the will a provision that is not there nor can the probate court bring into being a will which the testator was prevented from making and executing by fraud. In such cases, since the remedy in the probate proceeding is inadequate, relief should be granted either in the form of a constructive trust, by permitting the fraudulent gift to stand and holding the defrauder, to whom legal title passes, as a constructive trustee for the victim of the fraud, or by giving the aggrieved party an action at law for damages against the defrauder.” DeWitt, 408 So. 2d at 219 n.7. The DeWitt court also held that “[i]f defendant’s tortious conduct had caused the testator to make an inter vivos conveyance to [a third person] of assets that would otherwise have been part of the estate, setting aside the will would be inappropriate redress and consequently a tort action is properly allowed.” Id. at 219. See also Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666 (11th Cir. 1991), abrogated on other grounds 254 F.3d 959. However, the court in All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000), held that the task of recovering property wrongfully obtained from the decedent before death, or asserting claims based on those inter vivos transfers, is best left to the personal representative, not the beneficiaries. The court ruled that, absent exceptional circumstances, if a beneficiary of an estate whose distributive share has been diminished by an inter vivos transfer of the decedent’s assets has a claim for tortious interference, it does not accrue until the beneficiary is damaged, and damage does not occur until the personal representative has gathered the assets of the estate, satisfied its liabilities, and made final distribution. It appears that such a claim based on diminishment caused by inter vivos transfers cannot be brought by the plaintiff beneficiary until the probate administration has been completed, and then only if the personal representative failed to assert the claim on behalf of the decedent’s estate. Whether a plaintiff can maintain a tortious interference claim depends generally on whether the relief sought could have been obtained by asserting a probate remedy in the probate proceeding. However, the failure to

successfully attack a will does not preclude the plaintiff from seeking damages for a loss of inheritance caused by circumstances other than the will. In such cases, the plaintiff has no adequate remedy in probate. See Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997). « Ch. 13 », « § 13.3 », « C », • 1 • 1 Litigation Under FL Probate Code § 13.3.C.1 (2022)

1. Probate Remedies For Interference With Trust Devise « Ch. 13 », « § 13.3 », « C », • 1 •, • a » 1 Litigation Under FL Probate Code § 13.3.C.1.a (2022)

a. In General Generally, if interference with an expectancy is caused by a devise contained in a trust, the availability of an adequate probate remedy would not be an issue because such interference with a trust devise would appear to be outside of probate jurisdiction. DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981); Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980). The Florida Supreme Court recognized a distinction for trusts because a revocable trust is “apparently outside of probate jurisdiction.” DeWitt, 408 So. 2d at 219. “ ‘There are simply too many distinctions, both procedural and substantive, between wills and trusts, for the reasoning of DeWitt, and the purpose of [F.S.] 733.103(2), as it was articulated in DeWitt, to preclude a claim for tortious interference with expectancy.’ ” Mulvey v. Stephens, 250 So. 3d 106, 109 (Fla. 4th DCA 2018), quoting Martin v. Martin, 687 So. 2d 903, 907–908 (Fla. 4th DCA 1997), in which the court noted that the claim would still be barred if the trust was a testamentary disposition incorporated by reference in a will. Determining whether there is an adequate probate remedy for a loss caused by interference resulting in a trust devise can become complicated, problematic, and laden with risk in cases in which: (1) a will effectively incorporates the trust by reference; or (2) a will makes a devise (or pours over) to the trust. As discussed below, any one or more of these circumstances may provide a basis for the contention that there is an available probate remedy for the loss caused by a trust devise, and that the failure to timely exhaust that remedy precludes the assertion of tortious interference and trust contest claims for the recovery of the loss outside of probate. In

recognition of this circumstance, as of October 1, 2020, the notice of administration in a probate proceeding is required to state that “under certain circumstances and by failing to contest the will, the recipient of the notice of administration may be waiving his or her right to contest the validity of a trust or other writing that is incorporated by reference into a will.” F.S. 733.212(2)(f). « Ch. 13 », « § 13.3 », « C », • 1 •, « b » 1 Litigation Under FL Probate Code § 13.3.C.1.b (2022)

b. Will Makes Devise Or Pours Over To Trust It is very common for a will to contain a devise to a trust or to “pour over” to a trust. See F.S. 732.513. However, the Florida case law is confusing and inconsistent on the question of whether such a devise, even in the absence of a will provision expressly incorporating a trust by reference, is effective to do so, at least for purposes of creating an available probate remedy that must be exhausted. In Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263, 268 (Fla. 3d DCA 1989), the court held that the probate court had jurisdiction over a challenge to the validity of a revocable inter vivos trust because the will devised the residue of the probate estate to the trust and was therefore “incorporated in the will.” The proper analysis of the probate remedies created by a pour-over devise is found in Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997). In Martin, two sons sued their stepmother claiming she interfered with their expectancy under their father’s revocable trust. Their father left an $8 million estate, 95% of which was already held in his revocable trust at the time of his death. Under the father’s will, an additional $300,000 poured over to his trust from his probate estate. Although the sons had the opportunity to challenge the $300,000 pour-over devise in the probate proceeding, they chose not to do so. The Fourth District held that the pour-over will did not incorporate the trust by reference and that the sons’ probate remedy with respect to the trust was limited to the $300,000 passing to the trust under the will. The court permitted the sons’ tortious interference lawsuit outside of probate to proceed, except that they were precluded from making any tortious interference claim as to the $300,000, for which they had an adequate and available probate remedy that they did not pursue. Under the reasoning of Martin, a pour-over devise in a will to a trust

provides an available probate remedy to contest that devise, but only to the extent of the probate assets passing to the trust. Unlike situations in which the will incorporates a trust by reference, the probate remedy created by a devise or pour over by a will to a trust is limited to the property actually passing under the will to the trust. Although Martin correctly disagreed with Hogarth’s holding that a pour-over devise to a trust constitutes an incorporation by reference, Martin agreed with Hogarth’s result (i.e., that funding of a trust by will’s pour-over devise is sufficient to invoke probate jurisdiction and probate remedies with respect to claims based on interference caused by trust devise to extent of probate assets passing to trust). Notwithstanding the misapplication of the doctrine of incorporation by reference to include any devises to or other mention of a trust that are made in a will, the case precedents cannot be ignored because they clearly provide a basis for the contention that there is an adequate probate remedy for a loss caused by the trust devises, and that the failure to timely exhaust that remedy in a probate proceeding will preclude the assertion of tortious interference and trust contest claims for the recovery of that loss outside of probate. A judicial finding that a trust has been “incorporated by reference” into a will that has been admitted to probate will likely mean that the validity of that trust may only be challenged through a timely will contest in the probate proceeding, even if the will contains no devise to a trust and does not actually incorporate a trust by reference. See Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012) (because of exhaustion requirement, trust incorporated by reference into pour-over will could not be challenged without also contesting will). « Ch. 13 », « § 13.3 », « C », • 1 •, « c • 1 Litigation Under FL Probate Code § 13.3.C.1.c (2022)

c. Incorporation By Reference Of Trust Into Will Generally, provisions that are included in wills for the purpose of incorporating a trust into a will are made conditional or dependent on the ineffectiveness of the trust or trust devise for any reason. Accordingly, if any prescribed conditions have been met or satisfied so that the trust is effectively incorporated into a will, the terms of the trust literally become a part of the will and the trust is a testamentary trust. In those circumstances, because the trust has become a part of the will, issues concerning the validity of the trust

or its devises of probate assets are clearly subject to probate jurisdiction and available probate remedies must be exhausted. Under the reasoning of Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997), any available probate remedy would extend only to assets passing through probate and not to trust devises of assets that were effectively transferred to the trust before the settlor’s death. See § 13.3.C.1.a. True “incorporation by reference” occurs only when the language in the will satisfies the requirements of F.S. 732.512: (1) A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification. (2) A will may dispose of property by reference to acts and events which have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator’s death. The execution or revocation of a will or trust by another person is such an event. In Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012), the testator’s will devised the residue of the probate estate to his revocable trust and conditionally incorporated the trust by reference into the will in the event that the pour-over devise was not permitted by applicable law, or the trust was not in existence at the time of the testator’s death. The court held that because the trust was incorporated into the will, the validity of the trust could not be challenged outside of probate while adequate probate remedies were available. In Flinn v. Van Devere, 502 So. 2d 454 (Fla. 3d DCA 1987), the will contained a provision directing the personal representative to make demand on the trustees of a simultaneously executed trust for the trust’s share of any estate taxes. The District Court of Appeal, Third District, held that merely mentioning the trust in this manner was insufficient to cause it to be incorporated by reference into the will. In doing so, the court construed the general rule as it relates to F.S. 732.512(1) (1983) as follows: Considerable caution must be exercised in applying the doctrine of incorporation by reference. The reference in the will must show an intention on the part of the testator to incorporate or adopt the document

referred to. The intention of the testator to incorporate into a will a paper or document must clearly appear from the will, a mere reference thereto without evidence of such intention being insufficient. Similarly, in Lewis v. SunTrust Bank, Miami, N.A., 698 So. 2d 1276, 1278 (Fla. 3d DCA 1997), the Third District observed that, in construing F.S. 732.512(1): [T]he plain language of this statute mandates that the testator’s intention to incorporate an existing document into a will be clearly manifested in the will. « Ch. 13 », « § 13.3 », « D • 1 Litigation Under FL Probate Code § 13.3.D (2022)

D. Need For Consistency In Related Transactions There are additional important considerations in tortious interference litigation, as well as in proceedings contesting the validity of wills, trusts, or other donative transfers, with respect to the treatment of multiple transactions that are related to each other by proximity in time, the parties involved, or other circumstances. Such transactions may include making an inter vivos gift, creating a right of survivorship, or designating a beneficiary for a financial account, annuity, or life insurance policy. Those considerations arise from case precedent holding that: (1) evidence of undue influence in one transaction may be considered in determining the validity of a related transaction; and (2) in determining the validity of related transactions, a degree of consistency is required. For example, as it relates to the propriety of using one transaction that was the product of undue influence as evidence that another transaction was also the product of undue influence, see Gardiner v. Goertner, 110 Fla. 377, 149 So. 186, 190 (1933) (“ ‘that other acts were the result of undue influence may be material as evidence that the particular act was also the result of such influence’ ” [internal citations omitted]). The Florida Supreme Court in Hopkins v. McClure, 45 So. 2d 656, 657 (Fla. 1950), emphasized: When undue influence of one person over another is being investigated a broad latitude should be allowed in the presentation of evidence of the relationship between the parties both before and after the particular time around which the inquiry centers. Acts and circumstances

tending to show undue influence even far removed in time should be considered. Remoteness goes to the weight rather than the admissibility of the evidence, unless the time is so far removed as to deprive the circumstances of any evidentiary value. Similarly, the need for consistency when adjudicating the validity of related transactions is made clear in Bergman v. Serns, 560 So. 2d 1201 (Fla. 3d DCA 1990). After determining that the inter vivos gifts of all of the decedent’s assets to her son (a lawyer) were the invalid products of his undue influence, the trial court later determined that the decedent’s will in favor of her son that had been drafted by son and executed contemporaneously with inter vivos gifts to him, was valid. The District Court of Appeal, Third District, held that the trial court’s prior adjudication that the inter vivos gifts were invalid collaterally estopped the son from asserting the validity of the will, and reversed the trial court’s judgment determining that the will was valid. In Dunn v. White, 500 So. 2d 565 (Fla. 2d DCA 1986), the decedent simultaneously executed a deed conveying property to his daughter and a satisfaction of mortgage cancelling her indebtedness to him. The trial court determined that the deed was the invalid product of the daughter’s undue influence, but that the satisfaction of mortgage in her favor of the daughter was nevertheless valid. The Second District, in reversing the trial court’s determination that the satisfaction of mortgage was valid, noted that “[s]ince execution of the [satisfaction of mortgage] was part of the same transaction as the deed which was found to be void, the evidence reveals the same undue influence as exercised by the daughter in respect to securing execution of the warranty deed.” Id. at 566. In Hoffman v. Kohns, 385 So. 2d 1064 (Fla. 2d DCA 1980), disapproved on other grounds 460 So. 2d 895, one day after marrying his housekeeper, the elderly testator executed a will in her favor. Seven days later, he executed a revocation of his trust and transferred the trust assets to his new wife. The trial court determined that the will was the invalid product of undue influence but found that the revocation of trust and transfer of trust assets were not the products of undue influence and thus were valid. The Second District, in reversing the finding that the revocation of trust and transfer of assets were valid, held that “[t]he revocation of the trust was part of a continuing pattern begun immediately after the marriage” and that “[t]he trial court could not reasonably find otherwise.” Id. at 1069. In cases involving a probated will and a related transaction, the above-

described evidentiary relationship and requirement of consistency are particularly applicable because of the effect of probate under F.S. 733.103(2), which provides that “the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death.” Thus, the failure to contest a will may well create a problem of inconsistency when challenging a related transaction and provide a basis for the defenses of res judicata or collateral estoppel. See § 13.5.C.

« Ch. 13 », « § 13.4 » 1 Litigation Under FL Probate Code § 13.4 (2022)

§ 13.4. TORT REMEDIES « Ch. 13 », « § 13.4 », • A » 1 Litigation Under FL Probate Code § 13.4.A (2022)

A. Monetary Damages The normal remedy for tortious interference is an action for damages for the loss suffered by the one deprived of the legacy or gift. RESTATEMENT, Comment d. In Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997), the damages sought were the value of the assets that, but for the alleged misconduct of the defendant, would have been received by the plaintiffs from their father’s estate. In order to recover damages, the value of the asset in question must be established as of a legally relevant time and with a reasonable degree of certainty. Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012). See § 13.2.C.1. Following the successful pursuit of a remedy in probate, the plaintiff may maintain a tort action to recover damages that probate could not have provided, and for which merely setting aside the will was not an appropriate redress (i.e., attorneys’ fees and costs incurred in probate proceeding, or value of tortiously induced inter vivos transfers that diminished plaintiff’s inheritance). DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981). See also Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666 (11th Cir. 1991), abrogated on other grounds 254 F.3d 959; Peffer v. Bennett, 523 F.2d 1323 (10th Cir. 1975). Elements of damage for intentional interference with the rights or expectancies of another may include past and future mental or emotional distress resulting from the interference. Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991). Although the inability to recover punitive damages in a probate proceeding does not render a probate remedy inadequate, as stated in DeWitt, there is no apparent reason why punitive damages could not be sought in appropriate cases in which the tort action is permitted. « Ch. 13 », « § 13.4 », « B • 1 Litigation Under FL Probate Code § 13.4.B (2022)

B. Restitution; Constructive Trust; Equitable Lien

A defendant who has wrongfully acquired the benefits of a legacy or gift is unjustly enriched at the expense of the plaintiff, and a remedy is afforded in restitution. This may consist of holding the wrongdoer to a constructive trust or imposing an equitable lien. RESTATEMENT, Comment e. In such cases, “relief should be granted … in the form of a constructive trust, by permitting the fraudulent gift to stand and holding the defrauder, to whom legal title passes, as a constructive trustee for the victim of the fraud.” DeWitt v. Duce, 408 So. 2d 216, 219 n.7 (Fla. 1981). See also Kramer v. Freedman, 272 So. 2d 195 (Fla. 3d DCA 1973).

« Ch. 13 », « § 13.5 » 1 Litigation Under FL Probate Code § 13.5 (2022)

§ 13.5. LATER TORT ACTION « Ch. 13 », « § 13.5 », • A » 1 Litigation Under FL Probate Code § 13.5.A (2022)

A. In General As previously noted, an action for tortious interference with an inheritance will be allowed after the completion of the probate or other equitable proceedings, but only if the circumstances surrounding the tortious conduct effectively preclude full and adequate relief in the probate court and the inadequacy of the probate remedy is made apparent or established. DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981). Accordingly, although not always articulated, cases that allow the action for tortious interference with a testamentary expectancy are predicated on the inadequacy of probate remedies. Id. « Ch. 13 », « § 13.5 », « B » 1 Litigation Under FL Probate Code § 13.5.B (2022)

B. Later Action Permitted Generally, if a plaintiff prevails in a will contest, a related claim for tortious interference with an inheritance will become moot. Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000). However, a plaintiff who successfully challenges a will may thereafter seek additional remedies available in a tortious interference action. Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001). Those remedies are discussed in §§ 13.4.A–13.4.B. If a will contest is not pursued or is unsuccessful, the plaintiff may still bring a later tort action for loss of an expectancy caused by the making of a trust or trust amendment by the testator, at least to the extent that the trust held assets that were not devised by the will and provided that the validity of the trust or trust amendment is not dependent on the same surrounding facts and circumstances as the validity of the will. Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997). The later tort action may also be permitted when the decedent’s estate

and the distributive share of the plaintiff beneficiary have been diminished as a result of wrongful inter vivos transfers, provided that the decedent’s personal representative did not bring an action on behalf of the estate to recover the transfers. See DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981); All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000); Glickstein v Sun Bank/Miami, N.A., 922 F.2d 666 (11th Cir. 1991), abrogated on other grounds 254 F.3d 959. In Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973), when the testator had a fixed intention to devise two thirds of his estate to his son, the son’s intestate share would have been one half, and the testator’s wife intentionally interfered with the son’s expectancy by causing the testator to execute a will naming her as sole beneficiary, the son was permitted to bring a tort action to recover his intestate share. Similarly, a later tort action will be permitted when the defendant’s conduct precludes the plaintiff from obtaining adequate relief in the probate proceeding. Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4th DCA 1984). In Ebeling, the plaintiffs had notice of the content and probate of their mother’s will in favor of the defendant but failed to litigate their incapacity claim in the probate proceeding because of the defendant’s fraudulent inducement not to contest the will. The court held that the subsequent tort action against the defendant was not an impermissible collateral attack on the will under F.S. 733.103(2). A later tort action may also be permitted when the tortious interference is not discovered until after probate, since relief in probate was impossible. DeWitt. However, the later tort action will not be permitted if notice of administration is served on the plaintiff in the probate proceeding and the plaintiff fails to file a timely challenge to the will, even though he or she did not discover the tortious interference until after the expiration of the time for objecting to the will. All Children’s Hospital, Inc. The court in All Children’s Hospital, Inc. held that the plaintiff’s failure to discover the defendant’s alleged undue influence did not render the plaintiff’s will contest remedy in the probate proceeding inadequate. When the interfering wrongdoer predeceases the testator, an action for tortious interference with an inheritance expectancy may be commenced against the wrongdoer’s estate before the death of the decedent; such an

action does not constitute a collateral attack on a prior probate proceeding because there is no “prior” probate proceeding, and the tort action is not a “later tort action.” Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991). « Ch. 13 », « § 13.5 », « C • 1 Litigation Under FL Probate Code § 13.5.C (2022)

C. Later Action Not Permitted If the will has been successfully probated and the tort action is based on facts that cannot be reconciled with the validity of the will, the possibility that the action may be barred by the doctrine of collateral estoppel or res judicata must be considered. See Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997). F.S. 733.103(2) makes findings of testamentary capacity or no undue influence conclusive “[i]n any collateral action or proceeding relating to devised property,” such as an action for damages for tortious interference with an inheritance. Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000). A later tort action is an impermissible collateral attack on a will “whenever the plaintiff has failed to pursue an [available] adequate remedy in the probate proceedings.” DeWitt v. Duce, 408 So. 2d 216, 218 (Fla. 1981). The plaintiff may not pursue a collateral action against the defendant if the plaintiff fails to exhaust an adequate remedy in the probate proceeding by not filing an objection to the will. All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000). The failure to successfully attack a will in the probate proceeding precludes a tortious interference claim that is based on facts that cannot be reconciled with the validity of the will. Martin. If the plaintiff could have obtained the relief in probate by successfully attacking the will and failed to do so, he or she cannot then maintain a tortious interference action for the loss of that expectancy. Id. A later tort action is also an impermissible collateral attack on a will whenever the plaintiff has unsuccessfully pursued an available adequate remedy in the probate proceeding. DeWitt. A malicious interference claim will be barred under the theory of collateral estoppel or estoppel by judgment if the plaintiff “had the opportunity, and did in fact, litigate the same issues against the same parties in the [probate] proceedings and did not prevail.” Kramer v. Freedman, 272 So. 2d 195, 199 (Fla. 3d DCA 1973). If a plaintiff does not prevail in a will contest, a related claim for tortious interference with an inheritance will be barred by F.S. 733.103(2), which is predicated on

principles of res judicata and collateral estoppel. Miller. Although the decedent’s estate and the distributive share of the plaintiff beneficiary have been diminished as a result of wrongful inter vivos transfers, if the personal representative brings an action on behalf of the estate to recover them, a later tort action by the plaintiff will not be permitted. All Children’s Hospital, Inc. The Martin court determined that, in cases in which a will is not successfully attacked, a tortious interference claim attacking the validity of a trust may be precluded if the trust was made under circumstances in which the validity of both documents is dependent on the same facts. In such cases, the attack on the validity of the trust should be made in conjunction with an attack on the will in the probate proceeding. There is no reason why a will contest pending in the probate division of the circuit court and an action involving the validity of a trust cannot be brought together or consolidated under appropriate circumstances when the factual issues are the same. The circuit court is the probate court, and the judge who is presiding over the administration of the estate also has jurisdiction to determine the validity of the trust. Under this reasoning, if the validity of a will, trust, or other inter vivos transfer is dependent on the same surrounding facts and circumstances, the probate of the will may establish the validity of them all. Accordingly, any will contest, trust contest, action to invalidate, or tortious interference claim that is based on those circumstances may be barred if the will is successfully probated.

« Ch. 13 », « § 13.6 » 1 Litigation Under FL Probate Code § 13.6 (2022)

§ 13.6. POINT AT WHICH TORT ACTION MAY BE BROUGHT Generally, no cause of action accrues for tortious interference with a testamentary expectancy until the testator’s death because the beneficiary does not have a vested claim until that time. In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003). “Although the law recognizes interference with an [inheritance expectancy] as an intentional tort between litigants other than the testator, there is a tendency to prefer that such inheritance disputes be resolved in post-death proceedings.” Whalen v. Prosser, 719 So. 2d 2, 6 (Fla. 2d DCA 1998). As a safeguard of the testator’s interests, it is preferable to resolve inheritance disputes in proceedings after the death of the testator. Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001). As discussed in § 13.1, claims for tortious interference with an inheritance are derivative of the testator and are permitted to protect the testator’s interest in freely disposing of his or her property. All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000). During the life of the testator, there is no need to delegate responsibility for the protection of the testator’s right to dispose of his or her property freely and without improper interference to disappointed beneficiaries. Whalen. Because the testator is the victim of the tort, and the tort action is essentially derivative, permitting the tort action to be brought by the disappointed beneficiary during the life of the testator would generally be an improper delegation. Id. The beneficiary whose devise is reduced or eliminated as a result of a change in the testator’s estate plan does not suffer damage to a vested right until the testator dies and probate occurs. All Children’s Hospital, Inc. “Although allowing an action before the testator’s death might simplify proof concerning the issue of interference, it would make the issues of causation and damages even more speculative,” and damages would be extraordinarily difficult to quantify. Whalen, 719 So. 2d at 5. Absent exceptional circumstances, if a beneficiary of an estate whose distributive share has been diminished by an inter vivos transfer of the

decedent’s assets has a claim for tortious interference, it does not accrue until the beneficiary is damaged, and damage does not occur until the decedent has died and the personal representative has gathered the estate’s assets, satisfied its liabilities, and made final distribution. Id. The author would like to bring to the practitioner’s attention a case that appears to be a very questionable decision made by the District Court of Appeal, Fourth District, that involved the alleged dissipation of the decedent’s estate by inter vivos transfers procured by undue influence, in which the appellate court held that the personal representative of the decedent’s estate was not an indispensable party in an action brought by the decedent’s sons to set aside those transfers. Parker v. Parker, 185 So. 3d 616 (Fla. 4th DCA 2016). Case law supports the conclusion that claims for damages for tortious interference with an inheritance may not be asserted before the death of the testator (even in cases in which the claimant is a close family member and the testator or settlor has been found to be incapacitated) except in rare circumstances where postdeath remedies are virtually certain to be inadequate or ineffective. Claveloux; Whalen. Such circumstances were found to exist in Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991), where the court held that an action for tortious interference with an expectancy is maintainable before the death of the decedent when the wrongdoer predeceases the decedent and the plaintiff’s claim against the wrongdoer’s estate will be barred by the nonclaim statute unless the plaintiff files an independent action on his claim for tortious interference. In Habal v. Habal, 303 So. 3d 960 (Fla. 4th DCA 2020), the court held that a claim for tortious interference based upon an allegation that an amendment to a revocable trust is procured by undue influence cannot be maintained while the settlor is alive and the trust is revocable.

« Ch. 13 », « § 13.7 » 1 Litigation Under FL Probate Code § 13.7 (2022)

§ 13.7. REQUIRED BURDEN OF PROOF For a claim to be actionable, there must be proof amounting to a reasonable degree of certainty that the testamentary gift would have been in effect at the time of the death of the donor, or that the gift would have been made during the donor’s lifetime. RESTATEMENT, Comment d. The existence of a strong or high degree of probability that the formed intention to make a gift would be carried out is sufficient to establish an expectancy. Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980), 22 A.L.R. 4th 1223. The plaintiff must only prove to a “reasonable degree of certainty” that he or she would have been the beneficiary or donee but for the interference. Id. at 801. See also Allen v. Leybourne, 190 So. 2d 825, 829 (Fla. 3d DCA 1966) (allegation of “strong probability” is sufficient). Complete certainty that the expectancy would become a completed inheritance or gift is impossible and is not required. RESTATEMENT, supra. The possibility that the decedent might have changed his or her mind does not preclude the existence of this ground of tort liability. Allen. “[T]hat such a cause of action is difficult to prove … does not affect the existence of a ground of tort liability.” Id. at 829. For a detailed discussion of the concept of “reasonable degree of certainty” as it relates to the required burden of proof, see §§ 13.2.C.1– 13.2.C.2.

« Ch. 13 », « § 13.8 » 1 Litigation Under FL Probate Code § 13.8 (2022)

§ 13.8. STATUTE OF LIMITATIONS No Florida appellate decision has directly addressed the application of statutes of limitation to claims or actions for intentional interference with an expectancy. Limitations periods generally begin to run when the cause of action accrues (i.e., “when the last element constituting the cause of action occurs”). F.S. 95.031. Case law clearly suggests that a cause of action for intentional interference with an inheritance does not accrue until at least the date of death of the testator and, in some instances, not until the will is probated or the administration of the decedent’s estate is completed. See In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003); Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001); All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000); Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998). See § 13.6 for a discussion of when the tort action may be commenced. However, because claims for intentional interference with an expectancy are derivative of the decedent’s rights, All Children’s Hospital, Inc.; Whalen, it seems clear that they will be barred by limitations to the extent that the decedent was barred at the time of death. Accordingly, if the decedent was time-barred by limitations at the time of his or her death from bringing an action challenging the validity of an inter vivos transfer of his or her assets, neither the personal representative of the decedent’s estate nor a beneficiary whose interest in the estate has been reduced or eliminated by that transfer, should be permitted to bring an action based on that transfer. The determination of which particular statutory limitations period is applicable to any given claim for intentional interference with an expectancy depends on the character of the specific wrongful conduct constituting the interference. The possibilities include the following: Action (legal or equitable) founded on fraud (including constructive fraud and undue influence) (four years). F.S. 95.11(3)(j).

Action founded on an intentional tort (four years). F.S. 95.11(3)(o). Action for professional malpractice, including action founded on tort, for persons in privity with the professional (two years). F.S. 95.11(4)(a). Catch-all for actions not otherwise specifically provided for in F.S. Chapter 95 (four years). F.S. 95.11(3)(p). The four-year limitations period for commencing an action for fraud (including constructive fraud and undue influence) does not begin to run until “the facts giving rise to the cause of action were discovered or should have been discovered with the exercise of due diligence.” F.S. 95.031(2)(a). Moreover, “as a matter of law, facts giving rise to a cause of action based on undue influence do not become discoverable by the exercise of reasonable diligence until the termination of the [undue] influence.” In re Guardianship of Rekasis, 545 So. 2d 471, 474 (Fla. 2d DCA 1989). The two-year limitations period applicable to professional malpractice also does not begin to run until the cause of action is discovered or should have been discovered with the exercise of due diligence. F.S. 95.11(4)(a). Because the statute applicable to intentional torts generally, F.S. 95.11(3) (o), as well as the “catch-all” statute, F.S. 95.11(3)(p), do not contain provisions for delayed discovery, the four-year limitations period under those statutes would begin to run as soon as the last element constituting the cause of action occurs, regardless of the plaintiff’s lack of knowledge. See Davis v. Monahan, 832 So. 2d 708 (Fla. 2002); Yusuf Mohamad Excavation, Inc. v. Ringhaver Equipment Co., 793 So. 2d 1127 (Fla. 5th DCA 2001); HalkeyRoberts Corp. v. Mackal, 641 So. 2d 445 (Fla. 2d DCA 1994).

« Ch. 13 », « § 13.9 » 1 Litigation Under FL Probate Code § 13.9 (2022)

§ 13.9. CASE SUMMARIES The Florida appellate decisions involving claims of tortious interference with an expectancy are summarized below, in chronological order. Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966) Allegations that the decedent (plaintiff’s father) had a fixed intention to leave a portion of his estate to the plaintiff and that there existed a strong probability that the decedent would have carried out his intention but for the wrongful acts of the defendant stepmother (which resulted in decedent making will in favor of defendant), stated a cause of action for interference with an expected gift or a legacy under a will. The court held that tortious interference with an expected bequest or gift is an actionable tort. Wrongful interference includes duress, fraud, and undue influence. Neither the noncommercial nature of the plaintiff’s expectancy nor the possibility that the decedent might have changed his mind precludes the existence of this ground of tort liability. That such a cause of action is difficult to prove does not affect the existence of a ground of tort liability. Note: It appears that an adequate probate remedy would have been available in a revocation proceeding, provided that the plaintiff had notice and would have inherited the intended portion of the estate in the event of a successful revocation proceeding. Kramer v. Freedman, 272 So. 2d 195 (Fla. 3d DCA 1973) The plaintiff claimed that the defendant stepmother, by means of coercion, undue influence, and duress, wrongfully, maliciously, and tortiously interfered with the decedent’s (plaintiff’s father) fixed purpose and desire to give the plaintiff a share of his estate and caused him to make a will that excluded the plaintiff. The plaintiff first attempted to revoke her father’s will in probate court but was unsuccessful upon the judge’s finding that there was insufficient and inadequate evidence to support the plaintiff’s allegations of duress, coercion,

and undue influence in procuring the execution of the will. The plaintiff then sought to impress a constructive trust on a share of the estate based on tortious interference with her right to inherit by means of coercion, undue influence, and duress, just as asserted in the unsuccessful proceeding to revoke the will. Essentially the same issues and allegations were presented in both proceedings. Contrary to the county court, the circuit court found that the defendant wrongfully, maliciously, and tortiously interfered with the decedent’s fixed purpose and desire to give the plaintiff a share of his estate and imposed a constructive trust. Although the District Court of Appeal, Third District, acknowledged that a cause of action for wrongful interference with the right to inherit includes conduct constituting duress, fraud, or undue influence, it held that the malicious interference claim was barred under the theory of collateral estoppel or estoppel by judgment because the plaintiff had the opportunity to, and did in fact, litigate the same issues against the same parties in the prior revocation proceeding and did not prevail. Note: The plaintiff clearly had an adequate probate remedy. If the plaintiff had succeeded in defeating the will that left her nothing, she would have taken by intestacy exactly what she contended was intended by the decedent. Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973) The plaintiff alleged that the decedent (plaintiff’s father) formed a fixed intention to give the plaintiff two thirds of his estate, but that the defendant stepmother wrongfully interfered with the plaintiff’s expectation by fraud (making false statements), undue influence, and duress, resulting in the decedent’s execution of a will that excluded the plaintiff. The Third District approved of the following jury instruction: The issues for your determination on the claim of the plaintiff … are One, whether prior to December 24, 1968, [the decedent] had a formed, fixed intention to give plaintiff a share of his estate, and, if so, whether defendant … wrongfully and intentionally interfered with such fixed intention of [the decedent] by causing him by undue influence to execute a will leaving his entire estate to defendant, thus depriving plaintiff of his expectancy.

Id. at 684. Note: Although it appears that the plaintiff could contest the will that excluded him, there was a disparity between his expectancy (two thirds of the estate) and what his intestate share would have been (one half of the estate). Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980), 22 A.L.R. 4th 1223 Allegations that the decedent (plaintiff’s stepmother) formed an intention to give a major portion of her estate to the plaintiff by amending her living trust so as to leave the residue of the trust to the plaintiff; that there existed a strong probability that her intention would be carried out; and that as a result of the defendants’ fraud (false statements) and undue influence, the decedent amended her trust to leave the assets to the defendants, stated a cause of action. The court stated that to recover, the plaintiff must prove to a reasonable certainty that she would have been the beneficiary but for the malicious interference. With regard to the tortious interference claims, no real distinction exists between gifts of inheritance through a will and gifts through a revocable trust. Both forms of giving create only an expectancy in the beneficiary and in either case the donor has the privilege of changing his or her mind. It is the expectancy status to which this theory of liability applies, and both wills and revocable trusts create expectancies. The fact that an expectancy status has not ripened into a vested and irrevocable ownership of a beneficial interest does not authorize a third party to maliciously and fraudulently destroy that status. The Second District quoted with approval the following provision from the RESTATEMENT: One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that he would otherwise have received is subject to liability to the other for loss of the inheritance or gift. Davison, 391 So. 2d at 801. Note: The plaintiff had no adequate probate remedy because the court could not amend the trust for the grantor to make the intended gift to the

plaintiff. Watts v. Haun, 393 So. 2d 54 (Fla. 2d DCA 1981) Allegations that the decedent (plaintiffs’ father) had a fixed intention to make an inter vivos gift of stock certificates to the plaintiffs; that the defendant (decedent’s daughter by a second marriage) successfully embarked on a scheme of undue influence and intentional interference to defeat the gift, resulting in a transfer of the certificates to the defendant; and that the decedent would have fulfilled and carried out his intent to make the gift to the plaintiffs but for the defendant’s actions, stated a cause of action for the tort of wrongful interference with an expected gift. Note: The plaintiffs had no adequate probate remedy because the court could not make a gift to the plaintiffs for the decedent. Also, it appears that the certificates in question were not part of the decedent’s probate estate, and that the probate proceedings were in New York. DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981) The United States Court of Appeals, Fifth Circuit, certified the following question of Florida law to the Florida Supreme Court: Does Florida law … preclude … claim for tortious interference with an inheritance where the alleged wrongfully procured will has been probated in a Florida court and plaintiffs had notice of the probate proceeding and an opportunity to contest the validity of the will therein but chose not to do so? Id. at 217. The certified question was answered in the affirmative. The real issue presented was when a tortious interference action should be considered an impermissible collateral attack on a probate proceeding (i.e., the original probate decree). The state has an undeniable interest in settling title to property passing through probate. Consideration of public policy requires that all questions of succession to property be authoritatively settled. F.S. 733.103(2) provides: In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and

undue influence; and that the will was unrevoked on the testator’s death. The rule is that if adequate relief is available in a probate proceeding, that remedy must be exhausted before a tortious interference claim may be pursued. A later tort action is collateral whenever the plaintiff has failed to pursue an adequate remedy in the probate proceeding or has pursued one unsuccessfully. The later action for tortious interference is allowed only if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court and the inadequacy of the probate remedy is apparent or established. See Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017). Accordingly, although not always articulated, cases that allow the action for tortious interference with a testamentary expectancy are predicated on the inadequacy of probate remedies. See § 13.3.A. Adequacy is predicated on what the probate court can give, as compared to what the plaintiff reasonably expected from the testator before interference. See § 13.3.C. In this case, the prior will that was favorable to the plaintiffs still existed. If the earlier will was the true testamentary embodiment of the testator’s intent, the plaintiffs should have simply offered it while attacking the later one. If they had succeeded in such a challenge and established the earlier will, the probate court could have given them everything to which they claimed entitlement. For purposes of adequacy of relief, punitive damages are not a valid expectation. The probate court can strike from the will a provision resulting from fraud but cannot add to the will a provision that is not there, nor can the court bring into being a will the testator was prevented by fraud from making and executing. In such cases, because the remedy in the probate proceeding is inadequate, relief should be granted either in the form of a constructive trust; by permitting the fraudulent gift to stand and holding the defrauder, to whom legal title passes, as a constructive trustee for the victim of the fraud; or by giving the aggrieved party an action at law for damages against the defrauder.

If the defendant’s tortious conduct caused the testator to make an inter vivos conveyance of assets that would otherwise have been a part of the estate, setting aside the will would be inappropriate redress and, consequently, a tort action is properly allowed. If the defendant’s fraud is not discovered until after probate, the plaintiff is allowed to bring a later action for damages, because relief in probate was impossible. Following the successful pursuit of a remedy in probate, it may also be possible to maintain a tort action to recover damages that probate could not have provided (i.e., attorneys’ fees and costs incurred in probate proceeding). See Peffer v. Bennett, 523 F.2d 1323 (10th Cir. 1975). The court cited the RESTATEMENT with approval. Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4th DCA 1984) The plaintiffs sued the defendant stepfather for damages for fraudulently inducing them not to contest their mother’s will by telling them that they would receive their mother’s estate despite the will’s provisions in favor of the defendant. The plaintiffs alleged that the will was invalid because of the lack of testamentary capacity and acknowledged that they received notice of the probate and were aware of the contents of the will. The Fourth District held that the defendant’s conduct in preventing the plaintiffs from litigating the incapacity claim in probate effectively precluded the plaintiffs from obtaining adequate relief in the probate court and concluded that the tort action was not an impermissible collateral attack on the will under F.S. 733.103(2). Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666 (11th Cir. 1991), abrogated on other grounds 254 F.3d 959 Following a successful will contest in state probate court in Florida, the plaintiffs brought a tort action against the defendants in federal court, alleging that the defendants conspired to “plunder” the decedent’s assets and cheat the plaintiffs out of their inheritance. The relief sought by the plaintiffs included the setting aside of certain inter vivos conveyances of assets by the decedent to the defendants and the recovery of attorneys’ fees and expenses incurred by the plaintiffs in the successful will contest.

After noting that the assets conveyed to the defendants by the decedent before her death were under the control of the defendants rather than the probate court, and that the probate court could not provide for the recovery of attorneys’ fees and expenses, the United States Court of Appeals, Eleventh Circuit, concluded that merely setting aside the will was not an appropriate redress and allowed the later tort action. The court also stated that the Florida Supreme Court’s opinion in DeWitt was based on the application of collateral estoppel principles to a prior probate proceeding rather than on the grounds of exhaustion. Carlton v. Carlton, 575 So. 2d 239 (Fla. 2d DCA 1991) The plaintiffs alleged that their parents had a lifelong fixed intent to treat all of their children equally in the final distribution of the parents’ estate, but that the plaintiffs’ brother unduly influenced the parents to execute wills that excluded the plaintiffs from their parents’ estates. The brother predeceased his parents, and the plaintiffs filed a claim against his estate. The claim was objected to and a timely independent action was filed by the plaintiffs so that their claim would not be barred by F.S. Chapter 733. The issue presented was whether an action for tortious interference with an expectancy in an estate is maintainable before the death of the testators who are the source of the expectancy. The Second District concluded that the tort action did not constitute a collateral attack on a prior probate proceeding because there was no prior probate proceeding and held that the tort action was maintainable before the death of the grantors of the expectancy because of the claim requirements of F.S. Chapter 733. The court characterized as “unique” and “controlling” the fact that the tortfeasor predeceased the grantors. Carlton, 575 So. 2d at 241. The appellate court also indicated that one element of damages for intentional interference with the rights or expectancies of another is the past and future mental or emotional distress that may result from such interference. Henshall v. Lowe, 657 So. 2d 6 (Fla. 2d DCA 1995) The plaintiffs alleged that the decedent (plaintiffs’ grandmother) intended for one half of her assets to pass to them on her death, but that the defendant

(the plaintiffs’ uncle), through undue influence and abuse of his fiduciary relationship with his mother, caused all of her assets to be transferred to him or to third parties at or before her death. The Second District, citing Carlton, held that the facts alleged could support a claim for wrongful interference with a testamentary expectancy, reversed the order of dismissal, and directed the trial court to allow the plaintiffs to amend to state a cause of action for wrongful interference with a testamentary expectancy. Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997) The decedent executed a series of revocable inter vivos trusts, pour-over wills, and trust amendments that progressively shifted the decedent’s estate plan away from the decedent’s sons and in favor of the decedent’s second wife. The trust was amended twice (1990 and 1991) after the execution of the last pour-over will (1989). At the time of the decedent’s death, more than 95% of his $8 million in assets were in the trust, leaving only about $300,000 in the probate estate subject to the will. The plaintiffs initiated and then dropped a challenge to their father’s will, which was probated. The plaintiffs subsequently brought an action against their stepmother, alleging that she had tortiously interfered with their inheritance through undue influence by fraudulently and maliciously alienating their father from them, causing him to reduce their inheritance. The issue presented was whether the plaintiffs’ failure to attack the will precluded the tortious interference claim for damages. The Fourth District held that the failure to successfully attack the will in the probate proceeding did not preclude that portion of the tortious interference claim that was based on the invalidity of the trust documents executed subsequent to the will but did preclude that portion of the claim based on the invalidity of the will. Whether the sons could maintain their tortious interference claim depended on whether they could have obtained the relief sought by attacking the will during probate. Insofar as they could have obtained such relief in probate with respect to the $300,000 that was subject to the will in probate, the sons, having failed to successfully attack the will in probate, could not then maintain a tortious interference action for the loss of that portion of their expectancy. However, the sons’ failure to successfully attack the will in

probate did not preclude their seeking damages in an amount equal to the value of the assets which, but for the alleged misconduct of the wife in relation to the trust amendments, they would have received from their father’s estate. With respect to any damages caused by the trust documents, the sons had no adequate remedy in probate. The opinion suggests that in cases in which a will is not successfully attacked, a tortious interference claim attacking the validity of a trust may be precluded if the trust was made under circumstances in which the validity of both documents is dependent on the same facts. In such cases, the attack on the validity of the trust should be made in conjunction with an attack on the will in the probate proceeding. There is no reason why a will contest pending in the probate division of the circuit court and an action involving the validity of a trust cannot be brought together or consolidated under appropriate circumstances when the factual issues are the same. The probate court is a division of the circuit court, and the judge who is presiding over the administration of the estate has general jurisdiction to determine the validity of the trust. Under this reasoning, if the validity of a will, trust, or other inter vivos transfer is dependent on the same surrounding facts and circumstances, the probate of the will may establish the validity of all the instruments. Accordingly, any will contest, trust contest, action to invalidate, or tortious interference claim based on those circumstances may be barred if the will is successfully probated. Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998) The appellants were primary beneficiaries of the testamentary plan established under the testator’s will and revocable trust. Although the appellants were not related to the testator, through a deep and longstanding friendship that developed between them over a period of many years, the appellants became the testator’s surrogate children, and the testator was treated as a member of their extended family. After the testator’s husband died, his niece and her husband moved the testator from Pinellas County to Charlotte County, where they allegedly used undue influence to intentionally interfere with the testator’s fixed intention to leave the bulk of her estate to the appellants by procuring new estate planning documents from the testator, which gave the bulk of her estate to the niece and her husband. The appellants’ lawsuit against the niece and her husband

for intentional interference with an expectancy of inheritance was dismissed with prejudice by the lower court because the testator was not deceased. The Second District affirmed and held that an action for intentional interference with an expectancy of inheritance may not be maintained by a nonfamily member before the death of a then competent testator unless the circumstances suggest that a remedy subsequent to death will be unavailable or inadequate. Although allowing an action before the testator’s death might simplify proof concerning the issue of interference, it would make the issues of causation and damages even more speculative, and damages would be extraordinarily difficult to quantify. The tort of interference with an expectancy of inheritance authorizes the beneficiary to sue to recover damages primarily to protect the testator’s interest, rather than the disappointed beneficiary’s expectations. The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator. The beneficiary is not directly defrauded or unduly influenced; the testator is. Thus, the common-law court has created this cause of action, not primarily to protect the beneficiary’s inchoate rights, but to protect the deceased testator’s former right to dispose of property freely and without improper interference. In a sense, the beneficiary’s action is derivative of the testator’s rights. During the lives of competent testators, there is no need to delegate this responsibility to disappointed, nonfamilial beneficiaries. Although the law recognizes interference with an expectation to inherit as an intentional tort between litigants other than the testator, there is a tendency to prefer that such inheritance disputes be resolved in postdeath proceedings and to allow the tort only in circumstances in which no adequate alternative remedy exists. The court cited the RESTATEMENT with approval. All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000) The decedent was an elderly woman with substantial assets. The plaintiffs were some (but not all) of the residual beneficiaries under the decedent’s will,

and the defendant was the decedent’s caretaker. After appointment of a personal representative and an administrator ad litem, but before completion of administration of the decedent’s estate, the plaintiffs brought an action against the defendant for tortious interference with an expectancy. The plaintiffs’ action was based on allegations that the residue of the decedent’s estate, and the amount that would ultimately be distributed to them, had been diminished by substantial inter vivos transfers of the decedent’s assets and a specific devise to the defendant. As to the claim based on the inter vivos transfers, the plaintiffs alleged that the defendant had surreptitiously converted more than $1.7 million from the decedent during her life. There was no allegation that the personal representative or administrator ad litem was unable to adequately pursue the resulting claim. The Second District affirmed the lower court’s dismissal of the plaintiffs’ claim without prejudice to their right to pursue such a claim after final distribution of the estate, and held that (1) the task of recovering property wrongfully obtained from the decedent before death, or asserting claims based on such inter vivos transfers, should be left to the personal representative and not the beneficiaries, and (2) absent exceptional circumstances, if a beneficiary of an estate whose distributive share has been diminished by an inter vivos transfer of the decedent’s assets has a claim for tortious interference, it does not accrue until the beneficiary is damaged, and damage does not occur until the personal representative has gathered the estate’s assets, satisfied its liabilities, and made final distribution. As to the claim based on the specific devise to the defendant, the plaintiffs alleged that it was the product of the defendant’s undue influence and fraudulent concealment of the inter vivos transfers to the defendant. The plaintiffs also alleged that the fraudulent concealment precluded them from maintaining a timely and successful action to challenge the specific devise in the probate proceeding. There was no allegation of facts that would impose a duty on the defendant to disclose her alleged misconduct to the plaintiffs, or that the defendant made any misrepresentations to the plaintiffs to cause them to forgo their rights in the probate proceeding. The Second District affirmed the trial court’s dismissal of the plaintiffs’ claim and held that (1) the public policy of finality concerning devised property requires that adequate probate remedies be exhausted and that collateral attacks on wills be carefully restricted, (2) the plaintiffs’ failure to discover the defendant’s alleged undue

influence did not render their will contest remedy in the probate proceeding inadequate, (3) the plaintiffs may not pursue a collateral action against the defendant if they failed to exhaust their adequate remedy in the probate proceeding by not filing an objection to the will, (4) claims for tortious interference with an inheritance are derivative of the testator and are permitted in order to protect the testator’s interest in freely disposing of his property, and (5) the beneficiary whose devise is reduced or eliminated as a result of a change in the testator’s estate plan does not suffer damage to a vested right until the will is filed for probate. Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000) The plaintiff brought a will contest based on allegations of lack of testamentary capacity and undue influence. The complaint included a count seeking damages for tortious interference with an inheritance, which was abated by the trial court (pending the outcome of the will contest) before an offer of judgment made by the defendant. After upholding the validity of the will, the trial court assessed against the plaintiff travel expenses incurred by the defendant in attending the trial and her lawyer in attending depositions, and attorneys’ fees under the offer of judgment statute (which is limited to actions for damages). The Fourth District reversed the order assessing attorneys’ fees and travel expenses against the plaintiff and held that (1) the offer of judgment statute, F.S. 768.79, is not applicable to will revocation proceedings, (2) in the absence of exceptional circumstances, travel expenses incurred by parties in attending the trial and their lawyers in attending depositions should not be taxed as prevailing party costs, (3) F.S. 733.103(2) makes findings of testamentary capacity or no undue influence conclusive in “any collateral action or proceeding relating to devised property,” such as an action for damages for tortious interference with an inheritance, (4) if a plaintiff prevails in a will contest, a related claim for tortious interference with an inheritance will become moot, and (5) if a plaintiff does not prevail in a will contest, a related claim for tortious interference with an inheritance will be barred by F.S. 733.103(2), which is predicated on principles of res judicata and collateral estoppel. Chase v. Bowen, 771 So. 2d 1181 (Fla. 5th DCA 2000)

The defendant was a lawyer who had, from time to time, represented the plaintiff and her mother, as well as two of the mother’s business associates. The representation included the preparation of non-mutual wills for the plaintiff and her mother. The plaintiff brought a legal malpractice claim against the defendant based on his preparation of a new will for the plaintiff’s mother that omitted the plaintiff as a beneficiary and added major devises to her mother’s two business associates. The plaintiff alleged that the defendant had a conflict of interest with respect to the preparation of the new will and had a duty, which he breached, to disclose the conflict to her. There were no allegations that the defendant conspired with the business associates or used his influence to bring about the changes in the new will. A majority of the Fifth District affirmed the trial court’s summary judgment in favor of the defendant and held that (1) a lawyer represents conflicting interests when it becomes his duty, on behalf of one client, to contend for that which his duty to another client would require him to oppose, (2) a lawyer who represents a group of people in one matter or in various matters is not required to obtain the approval of all in order to represent a member of that group on an unrelated matter, (3) a lawyer who prepares a will owes no duty to any previous beneficiary, even a beneficiary he may be representing in another matter, to oppose the testator in changing his or her will, and such assistance does not involve a conflict of interest, and (4) a lawyer who merely drafts the will of a testator who changes his or her mind and excludes a beneficiary who had been included in an earlier will cannot be found to have intentionally interfered with the inheritance of the beneficiary (i.e., drafting a will in accordance with instruction of testator is simply not tortious conduct). In the dissenting opinion, Judge Sharp agreed with the majority that the plaintiff failed to state a cause of action but concluded that the plaintiff should be permitted to amend because the allegations of the complaint suggest that the plaintiff could possibly state a cause of action for intentional interference with an inheritance based on a lawyer’s breach of fiduciary duty to a client by representing interests adverse to those of the client. Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001) The plaintiff, who had previously been a beneficiary of her mother’s estate plan, filed a complaint for intentional interference with an expectancy

of inheritance through undue influence after her mother transferred all of her bank accounts into joint accounts with the nephew, executed a new will and revocable trust in favor of the nephew, and was found to be incapacitated, whereupon a plenary guardian was appointed. The trial court dismissed the action against the nephew because the plaintiff’s mother was not deceased. The Second District affirmed the dismissal and held that (1) as a safeguard of a deceased testator’s interests, it is preferable to resolve inheritance disputes in proceedings after the death of the testator, (2) claims for damages for tortious interference with an inheritance may not be asserted before the death of the testator or settlor except in relatively rare circumstances in which postdeath remedies are virtually certain to be inadequate or ineffective, even when the claimant is a close family member and the testator or settlor has been found to be incapacitated, and (3) upon the death of the testator or settlor, the claimant may challenge the will and the trust and thereafter seek additional remedies available in a tortious interference lawsuit. Niles v. Mallardi, 828 So. 2d 1076 (Fla. 4th DCA 2002) The plaintiffs filed a complaint against a lawyer for intentional interference with an expectancy based on breach of fiduciary duty. The complaint alleged that a jury in a prior action had determined that the plaintiffs’ deceased stepmother, while serving as personal representative of her deceased husband’s estate, breached her fiduciary duty to the plaintiffs and intentionally interfered with their inheritance from their father by making a will that diverted a devise that plaintiffs were to receive under their father’s will to her children, and that the defendant lawyer had prepared both the father’s and stepmother’s wills and represented the stepmother individually and as personal representative when these things occurred. The defendant lawyer asserted that his communications with the plaintiffs’ stepmother were protected by the attorney-client privilege. The Fourth District held that if the plaintiffs’ allegations were true, the crimefraud exception to attorney-client privilege would apply and the communications would not be protected. The court noted that constructive fraud (i.e., abuse of confidential or fiduciary relationship) is sufficient to invoke the crime-fraud exception, although a breach of fiduciary duty that is merely negligent and not intentional, is not.

In re Estate of Tensfeldt, 839 So. 2d 720 (Fla. 2d DCA 2003) The Second District reasserted that no cause of action accrues for tortious interference with a testamentary expectancy until the testator’s death, because the beneficiary does not have a vested claim until that time. Cohen v. Cohen, 847 So. 2d 1137 (Fla. 4th DCA 2003) In 1997, the decedent executed a will containing a specific devise in favor of the plaintiff. The 1997 will was revoked by a will executed by the decedent in 2000. Upon the decedent’s death, the plaintiff filed a petition challenging the 2000 will. The plaintiff withdrew the petition, the decedent’s 2000 will was admitted to probate, and the plaintiff filed an action for the intentional interference with her expectancy under the 1997 will. The plaintiff’s complaint for tortious interference alleged that the defendant (1) unduly influenced the decedent to execute the 2000 will and a power of attorney in favor of the defendant; (2) used the power of attorney to sell the property that had been specifically devised to the plaintiff under the 1997 will; and (3) converted the proceeds of sale. The Fourth District held that the plaintiff’s complaint failed to state a cause of action for intentional interference with an expectancy under the 1997 will because she failed to exhaust her probate remedy by seeking to invalidate the 2000 will and probate the 1997 will. The court expressly rejected the plaintiff’s argument that she did not have an adequate probate remedy and that any such remedy would be futile because the defendant’s conversion of the proceeds from the sale of the property would prevent the devised property from being in the decedent’s estate and available for distribution to her. Neumann v. Wordock, 873 So. 2d 502 (Fla. 2d DCA 2004) The plaintiffs brought an action against their sister for tortiously interfering with their expectancies in their parents’ estates. The plaintiffs contended that (1) their parents intended for them to participate in the division of their assets on their death, (2) the parents’ intent was defeated by the sister’s use of undue influence to cause the parents to execute wills in her favor, as well as a durable power of attorney that she used to divert assets to herself, (3) by the time of the parents’ death, their estates had virtually no

assets, and (4) there were no probate proceedings. Neither intestacy nor any known prior will would effect what the plaintiffs claimed was their parents’ intended distribution of assets. On the authority of All Children’s Hospital, the trial court concluded that the plaintiffs would have an adequate probate remedy in a probate proceeding and entered a summary judgment in favor of the defendant. The Second District distinguished All Children’s Hospital and concluded that it was not applicable because, in that case, (1) the action for tortious interference was brought by only a few of the residual beneficiaries; (2) there was a pending estate administration proceeding; and (3) a representative of the estate was already pursuing similar claims on behalf of the residuary beneficiaries. After acknowledging that, if adequate relief is available in a probate proceeding, the probate remedy must be exhausted before a tortious interference claim may be pursued, the appellate court in Neumann held that an adequate remedy is available in a probate proceeding only when the distribution of assets sought by the aggrieved party can be provided in the probate proceeding. After concluding that the defendant sister failed to establish that intestacy or the probate of any known will would effect what the plaintiffs claimed was their parents’ intended distribution of assets, the appellate court reversed the summary judgment in favor of the defendant. In re Estate of Hatten, 880 So. 2d 1271 (Fla. 3d DCA 2004) After the defendant was appointed personal representative of his deceased sister’s intestate estate, the plaintiffs brought an action against him for tortiously interfering with their expectancies in her estate. The plaintiffs alleged that (1) their sister had made a will under which they would receive substantially more than their intestate share of her estate, and (2) the defendant brother maliciously destroyed or concealed the will, under which he would receive only $1. The plaintiffs were not able to establish the will as a destroyed will in the probate proceeding because they could not comply with the special evidentiary requirement that the content of the will must be established by the testimony of at least one disinterested witness. The plaintiffs’ claim for tortious interference sought damages for the amount that their respective shares were reduced as a result of the defendant’s act (i.e., difference between value of devise and intestate share).

The Third District reversed the summary judgment entered by the trial court in favor of the defendant and held that a beneficiary of a maliciously destroyed will who is unable to establish the will due to the special evidentiary requirements applicable to such proceedings, and whose share of the estate in the probate proceeding is less than the share under the destroyed will, does not have an adequate probate remedy and may bring an action for damages for tortious interference with an expectancy. However, the doctrine of res judicata would preclude a claim for tortious interference based on such a will if the plaintiff had been a party to a proceeding to establish that will as a destroyed will, and that proceeding resulted in a determination that there was no such will, or that the plaintiff was not a beneficiary under that will. Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007) The plaintiff filed an action against the defendant for intentional interference with an expectancy of inheritance after the conclusion of a probate proceeding in which his deceased sister’s later will in favor of the defendant was probated. The plaintiff’s amended complaint alleged that: (1) he resided in New York and his sister resided in Florida; (2) he was his sister’s only heir-at-law and had been the sole beneficiary and nominated personal representative under her prior will, and he therefore expected to inherit her estate upon her death; (3) he had also been the attorney-in-fact under his sister’s durable and health care powers of attorney; (4) when his sister’s health failed and she needed additional care, she moved in with the defendant in her home in Florida, for which the defendant received rent and compensation for providing care; (5) the plaintiff communicated with the defendant by phone concerning the care of the plaintiff’s sister and the plaintiff visited his sister in the defendant’s home; (6) without the plaintiff’s knowledge, the defendant intentionally interfered with the plaintiff’s expectancy to inherit from his sister by using fraud and undue influence to convince the decedent (while she was ill and completely dependent on defendant) to execute a new power of attorney and will naming the defendant as her attorney-in-fact, personal representative, and sole beneficiary; and (7) after the decedent died in the defendant’s home, the defendant had the will in which she was named as sole beneficiary probated without notice to the plaintiff, did not return his phone calls, and did not notify him of his sister’s death until just before the probate court that probated the later will in favor of the defendant entered an order granting the defendant’s petition for discharge.

The trial court concluded that the amended complaint failed to state a cause of action and that the plaintiff’s action was barred because he failed to exhaust his probate remedies. The Third District reversed and held that the amended complaint alleged two separate frauds: (1) the defendant’s undue influence over the decedent in procuring the will, and (2) the defendant’s actions preventing the plaintiff from contesting the decedent’s will in the probate court. In connection with the first fraud, the appellate court noted that, to state a cause of action for intentional interference with an expectancy of inheritance, the complaint must allege (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages. The court emphasized that the purpose for recognizing the tort of intentional interference with an expectancy of inheritance is to protect the testator (who is the victim and person to whom the legal duty is owed), not the intended beneficiary. Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012) The decedent’s daughters brought an action against their stepmother for tortious interference with an expected inheritance from their father. The daughters alleged that their stepmother diverted their father’s assets contrary to his wishes through manipulation before his death. The only proof of damage offered by the daughters at trial was general testimony that the value of the assets involved in the litigation was “over a million dollars” or “in the millions [of dollars]”; that the value of the assets in question was in the “millions of dollars”; and that the value of the allegedly misappropriated assets was in “seven figures.” Id. at 833. In affirming the trial court’s final judgment of dismissal following the entry of a directed verdict against the daughters at the close of their case-inchief for failure to offer prima facie proof of the amount of damages, the Third District held that: (1) a prima facie case of tortious interference requires proof of damages; (2) the damage is the loss of an inheritance or gift that would have been received but for the tortious interference (citing the RESTATEMENT); (3) both the fact of damage and the extent of the damages must be established with a reasonable degree of certainty; (4) although neither the fact nor extent of the damages may be based on speculation, conjecture, or guesswork, they do not need to be proven with exactitude; and (5) the standard for the required degree of certainty of the damages is that

which would satisfy the mind of a prudent impartial person and be sufficiently definite to permit an appellate court to perform its review obligations. The court further noted that “none of the testimony [regarding damages] was tied to a legally relevant time period”; “[t]his omission alone deprive[d] the testimony of any probative value.” Id. at 833. Pasquale v. Loving, 82 So. 3d 1205 (Fla. 3d DCA 2012) The decedent’s pour-over will devised the residue of the estate to the trustee of the decedent’s revocable trust and further provided that the trust was incorporated by reference into the will if, but only if, necessary to give effect to the gift under the terms of the trust. The Third District held that the revocable trust was incorporated by reference into the will and that the former beneficiaries under the decedent’s earlier will and irrevocable trust could not challenge the validity of the revocable trust without also contesting the will, because the trust could not be challenged while they had an adequate remedy in probate. The opinion did not indicate whether the revocable trust had been funded before the decedent’s death. Shakespeare v. Prince, 129 So. 3d 412 (Fla. 2d DCA 2014) The decedent’s trust devised a life estate in her residence to her husband and the remainder interest to the decedent’s son. A deed transferring the residence from the trust to the decedent and her husband, as tenants by the entireties, was found to be the product of the husband’s undue influence. The decedent’s son brought a claim against his stepfather for tortious interference with an expectancy. Although the son proved the value of the residence, he failed to prove the value of the remainder interest. A $150,000 jury verdict in favor of the son was reversed on appeal because the record contained no evidence of the value of the remainder interest. Parker v. Parker, 185 So. 3d 616 (Fla. 4th DCA 2016) While terminally ill, and shortly before his death, the decedent conveyed several pieces of property to the defendant (the decedent’s son) and a limited liability company that was owned by the defendant. The plaintiffs (the decedent’s other sons) brought an action against the defendant and the defendant’s company to set aside the conveyances based on alleged tortious

interference by dissipation of their anticipated inheritance through undue influence. The defendant moved to dismiss the action based on the plaintiffs’ lack of standing and failure to join an indispensable party (i.e., the decedent’s estate/personal representative) under F.S. 733.607 (Possession of estate). The trial court granted the defendant’s motion to dismiss, with prejudice, for failure to join the decedent’s estate as an indispensable party. At the time of the dismissal, no estate had been opened, although the trial court had previously ordered the plaintiffs to do so. The Fourth District held that the decedent’s estate was not an indispensable party and reversed the trial court’s dismissal. In so holding, the appellate court reasoned that the decedent’s estate was not an indispensable party because the subject property was transferred inter vivos and was not in the decedent’s possession at the time of his death and therefore F.S. 733.607 was not applicable. The appellate court failed, however, to observe that any right or claim for the recovery of the property that the decedent may have possessed at the time of his death would have been an asset of his estate. Moreover, the court did not address whether the plaintiffs had standing to maintain the action before the completion of a probate proceeding. Cases in which an estate has been opened suggest that a plaintiff, other than a personal representative, may not have standing to bring the action until the estate administration has been completed. Tensfeldt; Claveloux; All Children’s Hospital, Inc.; Whalen. Henry v. Jones, 202 So. 3d 129 (Fla. 2d DCA 2016) After falling and breaking her hip, the decedent (mother) moved in with her daughter, who acted as the decedent’s caregiver for more than two years until the decedent’s death. During that time, the decedent made transfers of her separate funds totaling $100,000 to a joint checking account, owned by the decedent and her daughter. The daughter testified that the decedent made the decision to make those transfers and effectuated them on her own. The daughter and other family members received approximately $120,000 through more than 100 checks drawn on the joint account. The daughter also testified that any checks that she wrote were at the decedent’s direction. Based on a review of the decedent’s medical records, a forensic psychologist testified that there was “compelling evidence that the mother’s decisionmaking capacity was significantly impaired” during part of the relevant

period, and that she “was more than the average person vulnerable to be unduly influenced.” Id. at 131. There was no other evidence of actions taken by the daughter that could have constituted undue influence. After the mother’s death, her son sued the daughter alleging that, while acting as the mother’s caregiver, the daughter tortiously interfered with his expectancy of inheritance by diverting funds from their mother’s estate through the exercise of undue influence. Based on the foregoing evidence, the jury returned a verdict for $100,000 in favor of the decedent’s son. The trial court ordered a new trial based on its finding that the verdict was contrary to the manifest weight of the evidence. The Second District held that the “abuse of discretion” standard is applicable to the review of an order granting a new trial; the trial court is presumed to have properly exercised its discretion; the trial court’s order will not be disturbed absent a demonstration of a clear abuse of discretion; and that such an order, if unsupported by the record, constitutes a clear abuse of discretion. Applying that standard of review, the appellate court concluded that the record supported the trial court’s finding that the jury verdict was contrary to the manifest weight of the evidence and affirmed the order for a new trial. The appellate court further held: To prove a claim of intentional interference with an expectancy of inheritance, the plaintiff must show: “(1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages.” . . . The fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator, and the disappointed beneficiary brings the action primarily to protect the testator’s interests in freely disposing of his or her property. [Internal citations omitted.] Id. at 132–133. Ellis v. Warner, 2017 U.S. Dist. LEXIS 22109, 2017 WL 634287 (S.D. Fla. 2017) and Ellis v. Warner, 2018 U.S. Dist. LEXIS 10649, 2018 WL 4846762 (S.D. Fla. 2018). The plaintiff, the daughter of a deceased estate planning client,

brought a tortious interference action against her mother’s Florida estate planning lawyer, his employees (including his wife), and a charity with whom the lawyer and his wife were closely associated, in federal court, alleging that the defendants intentionally and fraudulently interfered with the plaintiff’s expectancy of inheritance of her mother’s estate by convincing their client, who, while ill and dependent on the lawyer’s wife (her health care surrogate), to grant her power of attorney and to execute a new will naming the affiliated charity as the primary beneficiary, including allegations that defendants forged the client’s will and dissipated her estate assets, thereby preventing the plaintiff from inheriting any of her mother’s estate. In proceedings in the trial court, the United States District Court for the Southern District of Florida found that the complaint stated a cause of action for intentional interference with expectancy of inheritance and denied the defendants’ motion to dismiss. The court held: “[T]o state a claim for tortious interference with expectation of inheritance under Florida law, ‘a plaintiff must allege: (1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages.’ ” Ellis, 2017 U.S. Dist. LEXIS 22109, *46, 2017 WL 634287 at *18, quoting Conseco Insurance Co. v. Clark, 2006 U.S. Dist. LEXIS 48544, *14, 2006 WL 2024401, *5 (M.D. Fla. 2006). The tortious conduct may consist of dissipating the victim’s property, either directly or by misusing a power of attorney, or by forging dispositive documents. “ ‘Interference with an expectancy is an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations’ ” and that the “ ‘fraud, duress, undue influence, or other independent tortious conduct required for this tort is directed at the testator,’ ” directly defrauding or unduly influencing the testator, not the plaintiff beneficiary. Ellis, 2017 U.S. Dist. LEXIS 22109, *46, 2017 WL 634287 at *18, quoting

Schilling, 952 So. 2d at 1234. The court subsequently granted the defendants’ motion for summary judgment after determining that the plaintiff’s conclusory allegations, subjective beliefs, opinions, and unsupported rhetoric and assertions failed to create material disputes of fact or favorable inferences that would compel the court to permit this case to proceed to trial, including on the issues of forgery and injury to plaintiff. Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017) The decedent changed the primary beneficiary of her revocable trust shortly before her death. The new beneficiary filed a petition seeking summary administration of the decedent’s estate. Although the former beneficiary did not join in the petition, it stated that she was a beneficiary of the estate and that the petition had been served on her, but did not state the manner of service (i.e., whether by formal notice or informal notice). The summary administration statute, F.S. 735.203, requires that formal notice of a petition for summary administration be served on any beneficiary who is not required to join in the petition because they are to receive their full distributive share. F.S. 735.203(1). Without any participation by the former beneficiary in the summary administration proceeding, the probate court entered an order of summary administration. F.S. 733.103(2) provides that: In any collateral action or proceeding relating to devised property, the probate of a will in Florida shall be conclusive of its due execution; that it was executed by a competent testator, free of fraud, duress, mistake, and undue influence; and that the will was unrevoked on the testator’s death. After entry of the order of summary administration, the former beneficiary filed a civil action against the new beneficiary, alleging tortious inference with an expectancy. The trial court entered a summary judgment against the former beneficiary based on a finding that her later collateral action for tortious interference was procedurally barred or precluded because she was aware of the probate proceeding and could have contested the validity of the will or trust, as amended in that proceeding, but failed to do so.

On appeal, the Fourth District reversed the summary judgment and held that (1) the law permits a claim for tortious interference of a testamentary expectancy if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court, citing DeWitt; (2) when a party has been given proper notice of probate proceedings and an opportunity to contest them, the party is prohibited from bringing a later action for wrongful interference with a testamentary expectancy if the party failed to raise its challenges, citing Schilling; (3) generally, collateral proceedings to a probate action are governed by F.S. 733.103(2); (4) if the former beneficiary had been given proper notice of the probate proceeding, her subsequent collateral claims would be barred; (5) if the former beneficiary was not given proper notice of the probate proceeding and did not have actual notice or knowledge thereof, she was effectively precluded from obtaining adequate relief in that proceeding and her subsequent collateral claims would not be barred; and (6) there were disputed material issues of fact relating to whether the former beneficiary was provided with “formal notice” of the probate proceeding, as required by statute, or even had actual notice or knowledge, requiring reversal of the summary judgment, although the court strongly intimated that actual notice or knowledge alone would not be sufficient to bar the plaintiff. Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018). Before his death, the decedent transferred property from his revocable trust to himself and his second wife (who was not the mother of his children) because, as the court determined, the wife had loaned him a substantial sum of money and that was his way of paying her back. After decedent’s death, his daughter brought a tortious interference claim against her stepmother. The evidence at trial consisted of little more than testimony that the wife stated to her husband that “your kids hope you die so they get all your money”; that the wife stated to one or more of the children that “[y]ou’re getting nothing out of what your father has”; and that while the decedent’s son was in prison, the stepmother made it difficult for him to speak with his father (although it was unclear whether that conduct occurred before or after the transfer). Id. at 108. Following a jury verdict in favor of the daughter, the trial court denied the wife’s motion for a judgment notwithstanding the

verdict and entered a final judgment for monetary damages in favor of the daughter. On appeal, the Fourth District reversed the judgment and held: The elements of a claim for tortious interference of a testamentary expectancy include “ ‘(1) the existence of an expectancy; (2) intentional interference with the expectancy through tortious conduct; (3) causation; and (4) damages.’ ” Id. at 109, quoting Whalen, 719 So. 2d at 5. “ ‘[T]he law permits a claim for tortious interference of a testamentary expectancy if the circumstances surrounding the tortious conduct effectively preclude adequate relief in the probate court.’ ” Mulvey, So. 3d at 109, quoting Wolf, 229 So. 3d at 1283. It was error for the trial court to deny the wife’s motion for a judgment notwithstanding the jury verdict because there was no evidence of tortious conduct or of the commission of an independent tort by the wife, and no competent evidence to support a claim for tortious interference with an expectancy. With regard to the exhaustion requirement, DeWitt recognized a distinction for trusts because a revocable trust is “apparently outside of probate jurisdiction.” Id. at 219. This court previously recognized, in Martin, 687 So. 2d at 907–908, that “[t]here are simply too many distinctions, both procedural and substantive, between wills and trusts, for the reasoning of DeWitt, and the purpose of [F.S.] 733.103(2), as it was articulated in DeWitt, to preclude a claim for tortious interference with expectancy. “This ‘evolving’ tort emanates from the RESTATEMENT (SECOND) OF TORTS [§ 774B]. See DeWitt. “It is ‘an unusual tort because the beneficiary is authorized to sue to recover damages primarily to protect the testator’s interest rather than the disappointed beneficiary’s expectations.’ ” Mulvey, 250 So. 3d at 109, quoting Whalen, 719 So. 2d at 6.

“Generally, ‘[u]ndue influence must amount to ‘over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.’ ” Mulvey, 250 So. 3d 109, quoting Henry, 202 So. 3d at 133. “Merely changing a document such as a trust or will is insufficient because undue influence requires some showing that the alleged tortfeasor took improper actions.” Mulvey, 250 So. 3d at 109. See also RESTATEMENT (SECOND) OF TORTS § 774B, Comment c (1979). Habal v. Habal, 303 So. 3d 960 (Fla. 4th DCA 2020) While a trust was still revocable and the settlor was still alive, the plaintiff asserted a claim for tortious interference based upon an allegation that an amendment to the settlor’s revocable trust was procured by undue influence. The trial court dismissed the plaintiff’s complaint. On appeal, the Fourth District affirmed the dismissal and held that the claim for tortious interference could not be maintained while the settlor was alive, and the trust was revocable.

« Ch. 13 », « § 13.10 • 1 Litigation Under FL Probate Code § 13.10 (2022)

§ 13.10. ADDITIONAL REFERENCES Annot., Liability in Damages for Interference with Expected Inheritance or Gift, 22 A.L.R. 4th 1229 (1983). Boyle, Tortious Interference With an Inheritance, 2 Prob. Prac. Rep. No. 3 (March 1990). Comment, Tort Liability for Interference With Testamentary Expectancies in Decedent’s Estates, 19 U. Kan. City L. Rev. 78 (1950– 1951). Goldman, Tortious Interference With a Gift or Devise: The Forgotten Tort, 64 Fla. Bar J. 59 (Dec. 1990). Ledford, Note—Intentional Interference With Inheritance, 30 Real Prop., Prob. & Tr. J. 323 (Summer 1995). Johnson, Tortious Interference with Expectancy of Inheritance or GiftSuggestions for Resort to the Tort, 39 U. Toledo L. Rev. 769 (2008). RESTATEMENT (SECOND) OF TORTS § 774B, and Comments (ALI 1979). Goldberg & Sitkoff, Torts and Estates: Remedying Wrongful Interference with Inheritance, 65 Stan. L. Rev. 335 (2013). Footnotes — Chapter 13: *

Biographical information for Mr. Belcher appears at page 5-1 of this manual.

Licensed to Otis K Pitts, Otis K Pitts

« Ch. 14 » 1 Litigation Under FL Probate Code Ch. 14 (2022)

Chapter 14 APPELLATE PRACTICE IN PROBATE ROBIN I. BRESKY* Contents § 14.1. INTRODUCTION § 14.2. QUESTIONS TO ADDRESS WHEN PROBATE COURT ISSUES ORDER § 14.3. FINAL ORDERS A. Right To Appeal Final Order B. Definition Of Final Order C. Examples Of Appealable Final Orders D. Examples Of Nonappealable Orders E. Options Regarding Final Order 1. Filing Notice Of Appeal Within 30 Days Of Signing And Filing Of Order, Without Filing Motion To Delay Rendition 2. Filing Motion To Delay Rendition § 14.4. NONFINAL ORDERS § 14.5. CERTIORARI A. When Available B. Practice And Procedure § 14.6. STANDARDS OF REVIEW ON APPEAL A. In General B. Law Decisions C. Fact Decisions 1. In General 2. Testamentary Capacity 3. Undue Influence

4. Legal Conclusions From Undisputed Evidence D. Discretionary Decisions § 14.7. APPELLATE PRINCIPLES REGARDING ERROR A. Errors Must Be Preserved For Review B. Harmless Error Rule § 14.8. ATTORNEYS’ FEES ON APPEAL A. Jurisdiction B. Appellate Review Regarding Probate Award Of Appellate Fees C. Standard Of Review D. Motion For Attorneys’ Fees In Appellate Court E. Awards Under F.S. 57.105 Or Inequitable Conduct Doctrine F. Retention Of Jurisdiction To Tax Costs § 14.9. PERFECTING APPEAL OF FINAL ORDER: AN OVERVIEW A. In General B. Commencement C. Parties 1. In General 2. Administrator Ad Litem 3. Personal Representative 4. Lawyers, Representatives, And Guardians Ad Litem 5. Trustee 6. Death Of Party D. Supersedeas (Stay Pending Review) 1. In General 2. Stay Not Required For Appeal 3. Motion In Trial Court 4. Conditions Of Stay 5. Automatic Stay Of Money Judgment Upon Posting Bond 6. Review Of Stay Order E. Directions To Clerk In Appeals Of Final Orders (The Record) F. Designation To Court Reporter G. Correction Of Errors And Omissions In Record H. Briefs

I. Request For Oral Argument « Ch. 14 », • § 14.1 » 1 Litigation Under FL Probate Code § 14.1 (2022)

§ 14.1. INTRODUCTION This chapter provides an overview of appellate practice in probate. Certiorari review and appeals of final and nonfinal orders are discussed. The chapter also covers the basic steps required in taking and perfecting an appeal to the appropriate district court of appeal from a final order of the circuit court entered during the administration of a decedent’s estate. Reference material dealing specifically with probate appeals is sparse. Most principles regarding appellate practice in probate do not differ from those in other civil matters, and reference may be made to the following general treatises on practice and procedure: FLORIDA APPELLATE PRACTICE (Fla. Bar 11th ed. 2020) Padovano, FLORIDA APPELLATE PRACTICE (Thomson/West 2021 ed.) 3 FLA. JUR. 2d Appellate Review On a historical note, older cases make reference to the “county judge’s court.” Before January 1, 1973, probate jurisdiction in Florida was vested in the county judge’s court. Effective January 1, 1973, probate jurisdiction was vested in the circuit court. Art. V, §§ 1, 20(c)(3), 20(d)(1), Fla. Const. (1972 Rev.). The circuit court, in some circuits, is now divided into divisions (e.g., probate, juvenile, family, general civil, criminal) for efficiency of administration as authorized by Article V, § 7, of the Florida Constitution. Nevertheless, each judge of a circuit court possesses the full jurisdiction of that court. Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990); Grossman v. Selewacz, 417 So. 2d 728 (Fla. 4th DCA 1982); Maugeri v. Plourde, 396 So. 2d 1215 (Fla. 3d DCA 1981). Thus, a circuit court judge sitting in probate possesses all the jurisdiction conferred on a circuit judge. Orders rendered in probate arrive in the appellate court clothed with the same presumption of correctness as other circuit court orders. In re Estate of

Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980); Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980).

« Ch. 14 », « § 14.2 » 1 Litigation Under FL Probate Code § 14.2 (2022)

§ 14.2. QUESTIONS TO ADDRESS WHEN PROBATE COURT ISSUES ORDER When the probate court issues an order, the lawyer should immediately address the following questions or issues, if the order is not acceptable and if change will or might be sought: What is the nature of the order? Is the order a final order (see § 14.3)? a nonfinal appealable order (see § 14.4)? a nonfinal nonappealable order (see § 14.4)? If the order is a final order, the lawyer must either file a notice of appeal within 30 days of the date the order is signed and filed with the clerk (see § 14.3.E.1); or file a motion that delays “rendition” of the order (see § 14.3.E.2). If the order is a nonfinal appealable order, the lawyer has the option of either taking an immediate appeal by filing a notice of appeal within 30 days of the date the order is signed and filed with the clerk (see § 14.4); or waiting until the entry of a final order to take an appeal (see § 14.3.E.1). The practitioner should note that a motion that delays rendition of a final order does not delay rendition of a nonfinal order. See Fla. R. App. P. 9.020(h)(2). If the order is a nonfinal nonappealable order, the lawyer must determine whether a petition for extraordinary writ, such as a petition for writ of certiorari (see § 14.5.A), would be applicable, and proceed accordingly. If a decision is made to seek a writ of certiorari, the petition

must be filed within 30 days of the date the order is signed and filed with the clerk (see § 14.5.B).

« Ch. 14 », « § 14.3 » 1 Litigation Under FL Probate Code § 14.3 (2022)

§ 14.3. FINAL ORDERS « Ch. 14 », « § 14.3 », • A » 1 Litigation Under FL Probate Code § 14.3.A (2022)

A. Right To Appeal Final Order Article V, § 4, of the Florida Constitution confers the right of appeal from all final orders or judgments of the circuit courts pertaining to probate to the appropriate district court of appeal. The practitioner should note that the fact that an appeal is taken does not toll the one-year time period set forth in Fla. R. Civ. P. 1.540, regarding relief from judgments, decrees, or orders. Weiss v. Berkett, 907 So. 2d 1181 (Fla. 3d DCA 2005) (concluding that trial court properly denied untimely motion to vacate surcharge judgment against former trustee). « Ch. 14 », « § 14.3 », « B » 1 Litigation Under FL Probate Code § 14.3.B (2022)

B. Definition Of Final Order What constitutes a “final order” has been the subject of considerable litigation. Before adoption of the present Florida Probate Rules, an order of the probate court was usually regarded as being clothed with sufficient finality to support an appeal if it finally determined a particular question affecting an aggrieved party. Alternatively phrased, when “there is a termination of the judicial labor on the issue involved as to that party … the right of appeal arises.” In re Estate of Baker, 327 So. 2d 205, 207 (Fla. 1976). A series of orders or proceedings may occur in the administration of the estate of a decedent and, unlike in an ordinary civil action, there is no terminal order analogous to the final judgment that awards relief and terminates the proceeding. The order that determines the right of a party on a particular issue may be entered well in advance of the time that the administration of the estate is completed and an order of distribution is entered. For example, the determination of the validity of a will, or the right of a person to participate as an heir in the estate, is a final determination and

immediately appealable, although the administration of the estate continues and the distribution is made long after that determination. The Florida Probate Rules previously defined an appealable “final order” in probate. Fla. Prob. R. 5.100, as amended effective January 1, 1997, provided: “All orders and judgments of the court that finally determine a right or obligation of an interested person may be appealed as provided by Florida Rule of Appellate Procedure 9.110(a)(2).” Effective January 1, 2001, Rule 5.100 was amended to provide: “Appeal of final orders and discretionary appellate review of non-final orders are governed by the Florida Rules of Appellate Procedure.” The Committee Notes, which are offered for explanation only but are not an official part of the rules, were amended to add the following: “For purposes of appellate review, the service of a motion for rehearing postpones rendition of final orders only. A motion for rehearing of a non-final order does not toll the running of the time to seek review of that order.” Fla. R. App. P. 9.110(a)(2), as added to the Florida Rules of Appellate Procedure, effective January 1, 1997, provided that the rule applied to proceedings that “seek review of orders entered in probate and guardianship matters that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.” The Committee Note for the 1996 Amendment provides in part: The addition of new subdivision (a)(2) is a restatement of former Florida Rule of Probate Procedure 5.100, and is not intended to change the definition of final order for appellate purposes. It recognizes that in probate and guardianship proceedings it is not unusual to have several final orders entered during the course of the proceeding that address many different issues and involve many different persons. An order of the circuit court that determines a right, an obligation, or the standing of an interested person as defined in the Florida Probate Code may be appealed before the administration of the probate or guardianship is complete and the fiduciary is discharged. This amendment did not extend the type of probate orders that are appealable. As explained by the District Court of Appeal, Fourth District, “[t]he addition of the phrase ‘finally determined,’ which did not appear in former [Rule] 5.100, expresses the intent of the rule to limit the number of appealable

orders in probate matters.” In re Estate of Walters, 700 So. 2d 434, 435 n.1 (Fla. 4th DCA 1997). According to the District Court of Appeal, Second District, if there was any difference between the amended rule and the former rule, the requirement of finality was stronger under the amended rule. In re Estate of Nolan, 712 So. 2d 421 (Fla. 2d DCA 1998). The Fourth District reaffirmed its position that Rule 9.110(a)(2) was not intended to alter the Florida Supreme Court’s holding in In re Peterson’s Estate, 73 So. 2d 225 (Fla. 1954), which held that an order on a motion to dismiss a petition was not an order finally determining the rights of either party to the proceeding. Auto-Owners Insurance Co. v. Governor of Florida ex rel. Hall, 23 So. 3d 779 (Fla. 4th DCA 2009). “Piecemeal appeals are not permitted where claims are legally interrelated and substantively involve the same transaction.” Perry v. Perry, 976 So. 2d 1151, 1153 (Fla. 4th DCA 2008), citing Mendez v. West Flagler Family Ass’n, 303 So. 2d 1 (Fla. 1974). Perry involved appeal of the trial court’s dismissal of one of three counts of a petition to revoke probate of a will. The test whether a count or counts of a multi-count complaint preclude a piecemeal appeal is “whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in separate counts” [emphasis omitted]. Massachusetts Life Insurance Co. v. Crapo, 918 So. 2d 393, 394 (Fla. 1st DCA 2006). In Perry, each count rested on a common single transaction, and the appeal was therefore dismissed. Effective January 1, 2012, Rule 9.170 superseded Rule 9.110(a). This rule, as it relates to appealable orders in probate and guardianship, provides as follows: Rule 9.170. Appeal Proceedings in Probate and Guardianship Cases. (a) Applicability. Appeal proceedings in probate and guardianship cases shall be as in civil cases, except as modified by this rule. (b) Appealable Orders. Except for proceedings under rule 9.100 [original proceedings] and rule 9.130(a) [review of nonfinal orders and specified final orders], appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate

Code. Orders that finally determine a right or obligation include, but are not limited to, orders that: (1) determine a petition or motion to revoke letters of administration or letters of guardianship; (2) determine a petition or motion to revoke probate of a will; (3) determine a petition for probate of a lost or destroyed will; (4) grant or deny a petition for administration pursuant to section 733.2123, Florida Statutes; (5) grant heirship, succession, entitlement, or determine the persons to whom distribution should be made; (6) remove or refuse to remove a fiduciary; (7) refuse to appoint a personal representative or guardian; (8) determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward; (9) determine a motion or petition to restore capacity or rights of a ward; (10) determine a petition to approve the settlement of minors’ claims; (11) determine apportionment or contribution of estate taxes; (12) determine an estate’s interest in any property; (13) determine exempt property, family allowance, or the homestead status of real property; (14) authorize or confirm a sale of real or personal property by a personal representative; (15) make distributions to any beneficiary; (16) determine amount and order contribution in satisfaction of elective share; (17) determine a motion or petition for enlargement of time to file a claim against an estate;

(18) determine a motion or petition to strike an objection to a claim against an estate; (19) determine a motion or petition to extend the time to file an objection to a claim against an estate; (20) determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate; (21) settle an account of a personal representative, guardian, or other fiduciary; (22) discharge a fiduciary or the fiduciary’s surety; (23) grant an award of attorneys’ fees or costs; (24) deny entitlement to attorneys’ fees or costs; or (25) approve a settlement agreement on any of the matters listed above in (b)(1)–(b)(24) or authorizing a compromise pursuant to section 733.708, Florida Statutes. Under Rule 9.170(c), an appeal under Rule 9.170 may proceed on a record prepared by the clerk of the lower tribunal or on appendices to the briefs, as elected by the parties within the time frames set forth in rule 9.200(a)(2) for designating the record. The clerk … shall prepare a record on appeal in accordance with rule 9.200 unless the appellant directs that no record shall be prepared. … However, any other party may direct the clerk to prepare a record in accordance with rule 9.200. … If no record is prepared under this rule, the appeal shall proceed using appendices pursuant to rule 9.220. Finally, the appellate court may review any ruling or matter related to the order on appeal (occurring before the filing of the notice of appeal) except any order that was appealable under Rule 9.170. Rule 9.170(e). See Pierce v. Pierce, 128 So. 3d 204 (Fla. 1st DCA 2013) (reviewing nonfinal order denying motion to enforce mediated settlement agreement as proper under Rule 9.170(e)). Multiple orders that are separately appealable under Rule 9.170(b) may be reviewed by a single notice of appeal, if the notice is timely filed as to each such order. Id.

Opinions construing Rule 9.170 include the following (listed according to the portion of Rule 9.170 referenced in the opinion): Rule 9.170. Estate of Sheffield v. Estate of Sheffield, 112 So. 3d 652 (Fla. 3d DCA 2013) (dismissing without prejudice appeal of trial court’s order sustaining objection to claim because it was deemed nonfinal order not within Rule 9.170). Rule 9.170(b). Bitetzakis v. Bitetzakis, 264 So. 3d 297 (Fla. 2d DCA 2019) (order admitting will to probate was appealable pursuant to Rule 9.170(b)). In re Guardianship of Bloom, 227 So. 3d 165 (Fla. 2d DCA 2017) (order denying attorneys’ fees or costs for interested person is appealable order). Sudman v. O’Brien, 218 So. 3d 986 (Fla. 2d DCA 2017) (affirming order granting objection to wife’s election to take elective share of her late husband’s estate). Mann v. Davis, 131 So. 3d 830 (Fla. 1st DCA 2014) (dismissing appeal because order on appeal did “not finally determine a right or obligation of an interested party”). Karr v. Vitry, 135 So. 3d 372 (Fla. 5th DCA 2014) (orders denying motion for discharge and guardianship fees are appealable under Rule 9.170(b)). Cody v. Cody, 127 So. 3d 753 (Fla. 1st DCA 2013) (analyzing interaction between Rules 9.170(b) and 9.170(e) regarding (1) order construing will, and (2) subsequent order determining boundaries or portions of real property to individuals). Rule 9.170(b)(5). Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018) (court has jurisdiction to review order determining beneficiaries). Pigna v. Messianu, 43 FLW D2260 (Fla. 3d DCA 2018) (orders

granting entitlement to distributions from estate are appealable). Wallace v. Watkins, 253 So. 3d 1204 (Fla. 5th DCA 2018) (court has jurisdiction to review order determining heirship). Bryan v. Fernald, 211 So. 3d 333 (Fla. 2d DCA 2017) (court had jurisdiction under Rule 9.170(b)(5) of order on appellant’s petition to determine beneficiaries in probate proceedings of her deceased mother’s estate). Rule 9.170(b)(8). Garrison v. Vance, 103 So. 3d 1041, 1043 (Fla. 1st DCA 2013) (discussing evolution of “definition of final order for appellate purposes”). Rule 9.170(b)(10). McLaughlin v. Lara, 133 So. 3d 1004 (Fla. 2d DCA 2014) (order approving malpractice insurer’s settlement for minor is appealable). Rule 9.170(b)(12). Steele v. Brown, 197 So. 3d 106 (Fla. 1st DCA 2016) (involving homestead order). Cessac v. Stevens, 127 So. 3d 675, 678 n.2 (Fla. 1st DCA 2013) (court has jurisdiction of orders that “ ‘determine an estate’s interest in any property’ ” under Rule 9.170(b)(12)). Rule 9.170(b)(13). Martini v. Estate of Conner, 113 So. 3d 147 (Fla. 2d DCA 2013) (reviewing order denying petition to determine exempt property under Rule 9.170(b)(13)). Rule 9.170(b)(15). Sibley v. Estate of Sibley, 273 So. 3d 1062 (Fla. 3d DCA 2019) (order to distribute assets to residual beneficiary is appealable under Rule 9.170(b)(15)). Lee v. Lee, 263 So. 3d 826 (Fla. 3d DCA 2019) (denial of personal representative’s amended petition for distribution and discharge is

appealable under Rule 9.170(b)(15)). Rule 9.170(b)(16). Blackburn v. Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016) (relying on Rules 9.170(b)(16) and 9.170(e) in reviewing orders pertaining to elective share). Rule 9.170(b)(18). Jerrels v. Jerrels, 276 So. 3d 362 (Fla. 2d DCA 2019) (order sustaining objection to claim against estate is appealable under Rule 9.170(b)(18)). Rule 9.170(b)(23). Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So. 3d 1240 (Fla. 1st DCA 2012) (rejecting appellants’ argument that review is proper under Rule 9.170(b)(23)). In United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA 2016), the Fourth District affirmed the timely appeal of an order declining to find that statements of claims as a creditor in the probate administration of an estate were timely filed, although no mention of Rule 9.170 in the opinion. If a client wishes to appeal a determination and it is not clear whether the order is final, the prudent approach is to appeal the questioned order and allow the appellate court to ascertain its finality. If the appellate court determines that the order is not final and dismisses the appeal on that basis, its order of dismissal will not prejudice the party in attempting to appeal when there is a final order. If the order is final and an appeal is not taken, appellate review will be barred following 30 days after rendition of the order. Rule 9.110(b). The practitioner should note that under Rule 9.020(h), a final order is not yet “rendered” when certain authorized and timely motions directed at the final order are filed, such as a motion for rehearing. Even if there is reversible error, failure to meet the 30-day filing requirement results in lack of appellate jurisdiction and dismissal. In re Estate of Schatz, 613 So. 2d 591 (Fla. 4th DCA 1993). See also McKinnon v. Weinstein, 125 So. 3d 1014 (Fla. 5th DCA 2013), discussing the failure of a party to timely appeal an injunction freezing trust assets even though the temporary injunction failed to contain findings that would support an injunction.

« Ch. 14 », « § 14.3 », « C » 1 Litigation Under FL Probate Code § 14.3.C (2022)

C. Examples Of Appealable Final Orders As discussed in § 14.3.B, effective January 1, 2012, Fla. R. App. P. 9.170 superseded Rule 9.110(a), and sets forth 25 nonexclusive categories of appealable final orders in probate and guardianship. Because this list is nonexclusive, there are other probate and guardianship orders that are final and appealable. Appellate opinions (pre-2012 Amendment) have pronounced the following to be appealable orders. Before relying on any of these authorities, however, the practitioner must review each opinion in light of changes to the law after the dates of the opinions. Adjudicating a woman to be a common-law wife, determining her status relative to the decedent’s estate. In re Estate of Jerrido, 339 So. 2d 237 (Fla. 4th DCA 1976). Admitting a will to probate and appointing an executor. Biederman v. Cheatham, 161 So. 2d 538 (Fla. 2d DCA 1964). Appointing a curator to preserve estate property, rather than appointing the personal representative specified in the will. In re Estate of Miller, 568 So. 2d 487 (Fla. 1st DCA 1990). There is a conflict between the District Court of Appeal, First District, and the Fourth District on this point. See In re Estate of Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991), discussed below. Appointing an administrator ad litem. Sine v. Davidson, 530 So. 2d 506 (Fla. 3d DCA 1988) (appointing administrator ad litem to investigate and, if necessary, contest will already admitted to probate); In re Estate of Cordiner, 458 So. 2d 418 (Fla. 2d DCA 1984) (appointing administrator ad litem to investigate and pursue claims on behalf of estate regarding conduct of beneficiary); Woolf v. Reed, 389 So. 2d 1026 (Fla. 3d DCA 1980) (appointing administrator ad litem to determine liability of lawyer). The practitioner should note, however, that there is a conflict between the districts regarding whether an order appointing an administrator ad litem is a final order or a nonfinal order. The Fourth District has held that an order setting aside a summary judgment removing a personal representative and designating intestate

administration, and appointing an administrator ad litem to maintain the status quo until the parties could litigate positions, was a nonfinal nonappealable order. In re Estate of Bierman. Approving a settlement agreement and dismissing with prejudice a petition to revoke probate of a will. Val Bostwick v. Estate of Cowan, 326 So. 2d 454 (Fla. 1st DCA 1976). Approving a settlement of a wrongful death action. Brunson v. McKay, 905 So. 2d 1058 (Fla. 2d DCA 2005); Arzuman v. Estate of Bin, 879 So. 2d 675 (Fla. 4th DCA 2004). Awarding attorneys’ fees. Southeast Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292 (Fla. 2d DCA 1989). However, if the order does not set the amount and only determines entitlement, the order is not final for purposes of appeal. Swartz v. Lieberman, 712 So. 2d 479 (Fla. 4th DCA 1998); Memorial Sloan-Kettering Cancer Center v. Levy, 681 So. 2d 842 (Fla. 3d DCA 1996). Additionally, if the order sets the amount of fees but reserves jurisdiction to decide at a future date who should pay the award, it is not appealable as a final or nonfinal order. Brake v. Swan, 767 So. 2d 500 (Fla. 3d DCA 2000). Now see Rule 9.170(b)(23). Fixing attorneys’ fees. In re Estate of Cook, 245 So. 2d 694 (Fla. 2d DCA 1971). Now see Rule 9.170(b)(23). Awarding attorneys’ fees based on a fee contract with the original personal representative. In re Estate of Beeman, 391 So. 2d 276 (Fla. 4th DCA 1980). Now see Rule 9.170(b)(23). Awarding dower in specific property and vesting title in the widow (final judgment assigning dower). See In re Estate of Rogers, 199 So. 2d 741 (Fla. 4th DCA 1967), clarified 205 So. 2d 535. Denying a claimant’s motion to strike objections to a claim against an estate. Epperson v. Rupp, 157 So. 2d 537 (Fla. 3d DCA 1963). Now see Rule 9.170(b)(18), which concerns orders that determine motions or petitions to strike objections to claims against estates. Extending the time for filing a creditor’s claim. Delgado v. Estate of Garriga, 870 So. 2d 912 (Fla. 3d DCA 2004). But see Estate of Lefkowitz v. Olsten Kimberly Qualitycare, 679 So. 2d 63 (Fla. 4th DCA

1996), for the opposite holding. Now see Rule 9.170(b)(17). Denying a petition to extend the time for filing a claim. Scott v. Reyes, 913 So. 2d 13 (Fla. 2d DCA 2005); Longmire v. Estate of Ruffin, 909 So. 2d 443 (Fla. 4th DCA 2005). Now see Rule 9.170(b)(17). Denying the motion of a creditor to extend the time to file a notice of independent action. Ricciardelli v. Faske, 505 So. 2d 487 (Fla. 3d DCA 1987). Now see Rule 9.170(b)(20). Denying a personal representative’s petition to strike an estate creditor’s claim as untimely. In re Estate of Bartkowiak, 645 So. 2d 1082 (Fla. 3d DCA 1994). Now see Rule 9.170(b)(18). Denying a personal representative’s petition to extend the time for filing an objection to a creditor’s claim, when the only remaining judicial labor to be performed was to determine the relative priority of creditors’ claims. Baldwin v. Lewis, 397 So. 2d 985 (Fla. 3d DCA 1981). Now see Rule 9.170(b)(19). Denying a personal representative’s motion to strike and dismiss a petition to revoke probate. In re Estate of Pavlick, 697 So. 2d 157 (Fla. 2d DCA 1997). See also Sanchez v. Masterhan, 837 So. 2d 1161 (Fla. 1st DCA 2003). Determining homestead. In re Estate of McGinty, 243 So. 2d 191 (Fla. 4th DCA 1971). Now see Rule 9.170(b)(13). Determining a mother’s rights with respect to administration of her son’s estate. In re Estate of Zimbrick, 453 So. 2d 1155 (Fla. 4th DCA 1984). Determining that the court had no jurisdiction to require the personal representative to perform an accounting or return assets to the probate estate. Moore v. Moore, 577 So. 2d 1359 (Fla. 2d DCA 1991). Determining that an estate had no interest in a $33,000 certificate. In re Estate of Schatz, 613 So. 2d 591 (Fla. 4th DCA 1993). Now see Rule 9.170(b)(12). Determining that an estate had no interest in certain property and that the widow was sole owner of that property. Pratt v. Gerber, 330 So. 2d 552

(Fla. 3d DCA 1976). Now see Rule 9.170(b)(12). Directing sale of property. Diana v. Bentsen, 677 So. 2d 1374 (Fla. 1st DCA 1996). Now see Rule 9.170(b)(14). Discharging the guardian and relieving the surety from further liability. In re Guardianship of Straitz, 112 So. 2d 889 (Fla. 2d DCA 1959). Now see Rule 9.170(b)(22). Dismissing a personal representative’s petition for court approval of a trust company’s employment and the reasonableness of fees. In re Estate of Winston, 610 So. 2d 1323 (Fla. 4th DCA 1992). Granting an extension of time to file an objection to a claim. Sutton v. Stear, 264 So. 2d 838 (Fla. 1972). Now see Rule 9.170(b)(19). Granting an extension of time to bring a separate action. In re Estate of Elliott, 798 So. 2d 13 (Fla. 1st DCA 2001) (illustrating that pre-1966 precedent remains intact for orders requiring independent action on probate claim). Now see Rule 9.170(b)(20). Removing a mother as administratrix and voiding letters of administration. In re Estate of Baker, 327 So. 2d 205 (Fla. 1976). See also Fromvald v. Wolfe, 760 So. 2d 1020 (Fla. 4th DCA 2000). Now see Rule 9.170(b)(6). Requiring distribution. In re Estate of Rogers. Now see Rule 9.170(b) (15). Requiring a claimant to resort to prosecution of an independent action on the claim. In re Estate of Hamlin, 157 So. 2d 844 (Fla. 2d DCA 1963), quashed on other grounds 167 So. 2d 559. Construing a will to finally determine the personal representative’s obligation. In re Estate of Walters, 700 So. 2d 434 (Fla. 4th DCA 1997). Striking a claim. Interim Healthcare of Northwest Florida, Inc. v. Estate of Ries, 910 So. 2d 329 (Fla. 4th DCA 2005). Denying a motion to substitute the defendant’s personal representative in a paternity suit. M.R. v. A.B.C., 739 So. 2d 118 (Fla. 3d DCA 1999). Determining distribution of certain assets. Pearson v. Cobb, 701 So. 2d

649 (Fla. 5th DCA 1997). Now see Rule 9.170(b)(15). Refusing to appoint the personal representative named by the testator. Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000). Denying a petition for further administration of a closed estate. Kaplan v. Estate of Kaplan, 780 So. 2d 135 (Fla. 4th DCA 2000). Administratively closing an estate based on failure to prosecute. Dribin v. Estate of Nolan, 801 So. 2d 249 (Fla. 4th DCA 2001). « Ch. 14 », « § 14.3 », « D » 1 Litigation Under FL Probate Code § 14.3.D (2022)

D. Examples Of Nonappealable Orders Appellate courts have pronounced the following to be nonappealable orders. COMMENT: There has been significant development of the law or change of rules with respect to some of these opinions. Before relying on these opinions, the practitioner is cautioned to review them in light of changes to the law after the dates of the opinions, particularly Fla. R. App. P. 9.170 discussed in § 14.3.B, effective January 1, 2012, to determine whether any opinion below has been overruled by the adoption of the 24 categories of final appealable orders in this rule. Approving a settlement agreement between some parties, when a proceeding to revoke probate of a will has not been finally disposed of, and denying a motion to appoint an administrator ad litem. Ward v. Nestor, 884 So. 2d 522 (Fla. 3d DCA 2004). See Rule 9.170(b)(25), which concerns orders that approve settlement agreements on any of the matters listed in the other 23 categories of the rule or authorizing a compromise pursuant to F.S. 733.708. Declining to dispense with appraisers, denying a petition to remove a coadministrator, and denying a petition of the coadministrators to dispense with further administration. In re Estate of Maxcy, 165 So. 2d 446 (Fla. 2d DCA 1964). Denying the coexecutors’ motion for substitution of counsel. In re

Estate of Leterman, 238 So. 2d 695 (Fla. 3d DCA 1970). Denying a motion for a continuance. Biederman v. Cheatham, 161 So. 2d 538 (Fla. 2d DCA 1964). Denying a motion to dismiss a petition to revoke probate, Somogyi v. Nevai, 920 So. 2d 828 (Fla. 4th DCA 2006), or granting a motion to dismiss a petition to revoke probate, Allen v. Estate of Hirshberg, 913 So. 2d 1249 (Fla. 1st DCA 2005). Dismissal of one count in a multi-count petition against the personal representative, when other counts in the petition were legally interrelated and substantively involved the same transaction or set of facts. Perry v. Perry, 976 So. 2d 1151 (Fla. 4th DCA 2008). Denying a motion to dismiss petitions for surcharge and to remove personal representative. Auto-Owners Insurance Co. v. Governor of Florida ex rel. Hall, 23 So. 3d 779 (Fla. 4th DCA 2009). Now see Rule 9.170(b)(6). Denying a motion to quash constructive service of process and to discharge a court-appointed guardian ad litem, attorney ad litem, and administrator ad litem. Koniecpolski v. Stelnicki, 571 So. 2d 577 (Fla. 5th DCA 1990). Determining how the burden of proof should be carried. In re Estate of Dorsey, 114 So. 2d 430 (Fla. 2d DCA 1959). Determining a surviving spouse’s entitlement to an elective share. In re Estate of Magee, 902 So. 2d 909 (Fla. 2d DCA 2005); Dempsey v. Dempsey, 899 So. 2d 1272 (Fla. 2d DCA 2005). See the discussion in the concurring opinion in Trenchard v. Estate of Gray, 950 So. 2d 1277 (Fla. 2d DCA 2007). Discussing the procedure to be pursued in future conduct of proceedings (order largely advisory order). In re Estate of Hortt, 149 So. 2d 907 (Fla. 2d DCA 1963). Denying an executor’s motion for dismissal of a widow’s petition for construction of a will. In re Peterson’s Estate, 73 So. 2d 225 (Fla. 1954).

Deferring a ruling on the government’s motion for payment of its claim. United States v. Dahlberg, 115 So. 2d 86 (Fla. 3d DCA 1959). Quashing a subpoena duces tecum. In re Estate of Zaloudek, 356 So. 2d 1326 (Fla. 4th DCA 1978). Requiring an executor to file an inventory of assets and to file an amended final return and providing that an interested party should have 30 days after the filing of the inventory and amended accounting to file objections. In re Estate of Sager, 171 So. 2d 580 (Fla. 2d DCA 1964). Revoking an order of discharge and reopening the estate administration, “allowing further proceedings in the estate incidental to a resolution of the petition which [sought] to revoke the probate of the estate under the prior will.” In re Estate of Daughtry, 376 So. 2d 1223 (Fla. 4th DCA 1979). Setting aside a summary judgment removing the personal representative and designating intestate administration. The court also appointed an administrator ad litem to maintain the status quo until the parties could litigate their positions. In re Estate of Bierman, 587 So. 2d 1163 (Fla. 4th DCA 1991). The practitioner should note that there is a conflict among the districts regarding whether an order appointing an administrator ad litem is a final or a nonfinal order. Bierman holds that it is a nonfinal order and not appealable. The following three cases hold that such order is a final order and appealable: Sine v. Davidson, 530 So. 2d 506 (Fla. 3d DCA 1988) (reversing order appointing administrator ad litem to investigate and, if necessary, contest will already admitted to probate); In re Estate of Cordiner, 458 So. 2d 418 (Fla. 2d DCA 1984) (affirming order appointing administrator ad litem to investigate and pursue claims on behalf of estate regarding conduct of beneficiary); Woolf v. Reed, 389 So. 2d 1026 (Fla. 3d DCA 1980) (affirming in part, order appointing administrator ad litem to determine liability of lawyer). See § 14.3.C. Striking a demand for a jury trial in a probate proceeding. Howard v. Baumer, 519 So. 2d 679 (Fla. 1st DCA 1988). Determining entitlement to attorneys’ fee, with the amount to be determined later after an evidentiary hearing. Swartz v. Lieberman, 712

So. 2d 479 (Fla. 4th DCA 1998); Rehman v. Estate of Frye, 692 So. 2d 956 (Fla. 5th DCA 1997). Determining entitlement to attorneys’ fees, and an amount, but without determining who (as between the personal representative individually, a beneficiary’s share of the estate, or the estate itself) should pay. Brake v. Swan, 767 So. 2d 500 (Fla. 3d DCA 2000). See now Rule 9.170(b)(23)– (b)(24). Disqualifying the personal representative’s counsel. Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997). Certiorari is the appropriate avenue for review of such an order. See §§ 14.5.A–14.5.B. Requiring the personal representative to file an amended plan of distribution. Thiel v. Thiel, 770 So. 2d 240 (Fla. 1st DCA 2000). Appointing a co-personal representative to serve with a previously appointed personal representative. Garces v. Montano, 834 So. 2d 194 (Fla. 3d DCA 2002) (holding that order on appeal does not finally determine right or obligation of original personal representative). Appointing a successor trustee on an emergency basis but leaving a related situs issue for determination at a later time. Fach v. Brown Bros. Harriman Trust Company of Florida, 949 So. 2d 260 (Fla. 4th DCA 2007). Prohibiting further pro se filings (while allowing pleadings accompanied by a lawyer’s signature). Favreau v. Favreau, 940 So. 2d 1188 (Fla. 5th DCA 2006). Determining that an entity has standing to “file” a petition for administration but making no determination as to whether the entity is an “interested person.” Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So. 2d 436 (Fla. 4th DCA 2009). Denying a petition for determination of beneficiaries, without making any final determination as to the beneficiaries of the estate. Edelstein v. Beagell, 7 So. 3d 564 (Fla. 1st DCA 2009). See Rule 9.170(b)(5), which concerns orders that grant heirship, succession, or entitlement, or determine the persons to whom distributions should be made.

Granting a motion for summary judgment for spouse on objection to allocation plan for wrongful death settlement proceeds, but not entering judgment for or against a party. Rust v. Brown, 13 So. 3d 1105 (Fla. 4th DCA 2009). Order staying further proceedings of appellant’s individual claims of post-death breaches by co-personal representative pending resolution of the trustee’s separate lawsuit against appellant on the note she owed to the trust. Hilgendorf v. Estate of Coleman, 201 So. 3d 1262 (Fla. 4th DCA 2016). « Ch. 14 », « § 14.3 », « E • 1 Litigation Under FL Probate Code § 14.3.E (2022)

E. Options Regarding Final Order « Ch. 14 », « § 14.3 », « E •, • 1 » 1 Litigation Under FL Probate Code § 14.3.E.1 (2022)

1. Filing Notice Of Appeal Within 30 Days Of Signing And Filing Of Order, Without Filing Motion To Delay Rendition One option available to an appellant after a final order has been signed and filed is to file a motion that delays rendition of the final order. However, if a decision is made to file a notice of appeal without filing a motion to delay rendition, the appeal proceeds as a general civil appeal of a final order. An overview of that procedure is set forth in §§ 14.9.A–14.9.I. « Ch. 14 », « § 14.3 », « E •, « 2 • 1 Litigation Under FL Probate Code § 14.3.E.2 (2022)

2. Filing Motion To Delay Rendition If a decision is made to file a motion that delays rendition of the final order, the motion must be timely filed and must be authorized by the applicable rules of procedure. “Rendition” determines when the time for an appeal starts to run. Fla. R. App. P. 9.020(h) provides in part: An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.

(1) Motions Tolling Rendition. The following motions, if authorized and timely filed, toll rendition unless another applicable rule of procedure specifically provides to the contrary: (A) motion for new trial; (B) motion for rehearing; (C) motion for certification; (D) motion to alter or amend; (E) motion for judgment in accordance with prior motion for directed verdict; (F) motion for arrest of judgment; (G) motion to challenge the verdict; (H) motion to correct a sentence or order of probation pursuant to Florida Rule of Criminal Procedure 3.800(b)(1); (I) motion to withdraw a plea after sentencing pursuant to Florida Rule of Criminal Procedure 3.170(l); (J) to correct a disposition or commitment order pursuant to Florida Rule of Juvenile Procedure 8.135(b); (K) to claim ineffective assistance of counsel following an order terminating parental rights pursuant to Florida Rule of Juvenile Procedure 8.530(f); or (L) motion to vacate an order based upon the recommendations of a hearing officer in accordance with Florida Family Law Rule of Procedure 12.491. (2) Effect of Motions Tolling Rendition. If an authorized and timely motion listed in subdivision (h)(1) of this rule has been filed in the lower tribunal directed to a final order, the following apply: (A) The final order shall not be deemed rendered as to any existing party until the filing with the clerk of a signed, written order disposing of the last of such motions.

(B) A signed, written order granting a new trial shall be deemed rendered when filed with the clerk, notwithstanding that other such motions may remain pending at the time. (C) If a notice of appeal is filed before the filing with the clerk of a signed, written order disposing of all such motions, the appeal shall be held in abeyance until the filing with the clerk of a signed, written order disposing of the last such motion. Therefore, when an order is signed and filed with the probate clerk, rendition of the order has occurred, and the appeal time starts to run. However, that order will not be deemed rendered if a timely and authorized motion listed in Rule 9.020(h)(1) is filed regarding the order (unless another applicable rule of procedure specifically provides to the contrary as to a listed motion). If one or more such motions are filed, the final order is not deemed rendered until a signed, written order is filed disposing of the last of such motions between the movant and any party against whom relief is sought. The following authorities address motions listed in Rule 9.020(h)(1) that delay rendition, reviewed in the probate context: Motion for new trial or rehearing. A motion for a new trial relates to a jury trial and typically will not be encountered because most probate proceedings are nonjury. See Chapter 10 of this manual. Since 1981, a motion for rehearing has been specifically authorized by Fla. Prob. R. 5.020(d). As a result, a timely served motion for rehearing delays rendition of a final order in probate. See, e.g., In re Estate of Murphy, 573 So. 2d 424 (Fla. 3d DCA 1991). A motion for rehearing is an authorized motion delaying rendition only with regard to a final order, not a nonfinal order. However, once the probate court enters an order denying the motion for rehearing, appeal must be taken within 30 days, absent some other pending motion that delays rendition. Rule 9.110(b). In one case, a party instead filed a motion to reconsider, which was granted by the probate court but quashed by the appellate court because the probate court no longer had jurisdiction following its denial of the motion for rehearing. Estate of Godley, 508 So. 2d 46 (Fla. 4th DCA 1987). Motion for certification. Rule 9.125(c) permits a party to file, within 10

days of the filing of the notice of appeal, a suggestion that a trial court order be certified by the district court to the Florida Supreme Court. Rule 9.330(a)(2)(C) provides for filing a motion for certification in the appellate court. Neither of these rules spawns a motion that can be made in the probate court to delay rendition of a final probate order. Motion to alter or amend. The Florida Probate Rules do not authorize a motion to alter or amend; thus, such a motion in a nonadversary proceeding would not delay rendition. In an adversary proceeding, the Florida Rules of Civil Procedure apply. Rule 5.025(d)(2). Because Fla. R. Civ. P. 1.530(g) authorizes a motion to alter or amend, a timely motion to amend would delay rendition in an adversary proceeding in probate. Motion to challenge the verdict, for judgment in accordance with prior motion for directed verdict, or for arrest of judgment. These motions deal with juries and are not addressed in this chapter. The practitioner should note that Rule 9.020(i), as amended effective January 1, 2015, eliminated the language providing that a party abandons its post-judgment motions upon the filing of a notice of appeal. In re: Amendments to Florida Rules of Appellate Procedure, 183 So. 3d 245 (Fla. 2014). Under Rule 9.020(h)(2)(C), if a notice of appeal is filed before the court disposes of an authorized and timely (h)(1) motion, the appeal “shall” be held in abeyance pending the disposing of the motion. In summary, if a motion is not both timely and authorized under the applicable rules of procedure, and listed under Rule 9.020(h)(1), the motion will not delay rendition. For example, a motion for relief from judgment “is not a substitute for appellate review” [emphasis added]. In re Estate of Beeman, 391 So. 2d 276, 280 (Fla. 4th DCA 1980). A motion that is captioned as a motion to vacate the lower court’s ruling but that is in effect a motion for rehearing will not delay rendition unless brought within the time allowed for a motion for rehearing. Creasy v. Estate of Mabie, 958 So. 2d 1111 (Fla. 1st DCA 2007). From 1992 until 1995 the rule listed “clarification” as a rendition-delaying motion, but this is no longer an authorized motion, and neither the Florida Probate Rules nor the Florida Rules of Civil Procedure explicitly mention or authorize a motion for clarification.

« Ch. 14 », « § 14.4 » 1 Litigation Under FL Probate Code § 14.4 (2022)

§ 14.4. NONFINAL ORDERS Article V, § 4(b)(1), of the Florida Constitution provides that the district courts of appeal may review “interlocutory” orders to the extent provided by rules adopted by the Florida Supreme Court. Historically, the Florida Rules of Appellate Procedure used the phrase “interlocutory appeal” for appeal of a nonfinal order. That phrase has been replaced by “appeal of nonfinal orders.” Fla. R. App. P. 9.130. An interlocutory or nonfinal order is one that merely fixes some administrative or procedural step in the administration of an estate without finally determining the rights of a party. In re Estate of Maxcy, 165 So. 2d 445 (Fla. 2d DCA 1964), quashed on other grounds 169 So. 2d 383. An interlocutory order may be modified or vacated by the probate court until final judgment, unless the order has been affirmed by an appellate court. Andrews v. McGowan, 739 So. 2d 132 (Fla. 5th DCA 1999) (involving legal right to dispose of remains of another). Other than as specifically provided by Rule 9.130, an interlocutory appeal is not permitted. In re Estate of Zaloudek, 356 So. 2d 1326 (Fla. 4th DCA 1978). See In re Estate of Hill, 114 So. 2d 462 (Fla. 2d DCA 1959), regarding prior appellate rules. Rule 9.130(a)(3) provides for review of nonfinal orders of lower tribunals that (A) concern venue; (B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions; (C) determine: (i) the jurisdiction of the person; (ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve, or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment;

(iii) in family law matters: a. the right to immediate monetary relief; b. the rights or obligations of a party regarding child custody or time-sharing under a parenting plan; or c. that a marital agreement is invalid in its entirety; (iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy; (v) that, as a matter of law, a party is not entitled to workers’ compensation immunity; (vi) whether to certify a class; (vii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes; (viii) the issue of forum non conveniens. (ix) that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed; or (x) that a permanent guardianship shall be established for a dependent child pursuant to section 39.6221, Florida Statutes. (D) grant or deny the appointment of a receiver, and terminate or refuse to terminate a receivership; or (E) grant or deny a motion to disqualify counsel. (F) deny a motion that: (i) asserts entitlement to absolute or qualified immunity in a civil rights claim arising under federal law; (ii) asserts entitlement to immunity under section 768.28(9), Florida Statutes; or (iii) asserts entitlement to sovereign immunity. The nonfinal appealable orders listed in this rule that can be anticipated in probate can be summarized as nonfinal orders that (1) concern venue; (2)

concern injunctions; (3) determine jurisdiction of the person; (4) determine the right to immediate possession of property; or (5) determine entitlement to arbitration. There are few appellate opinions specifically addressing these situations in a probate context. One example is In re Estate of Klotz, 394 So. 2d 509 (Fla. 5th DCA 1981), in which a claimant appealed the probate order dealing with enforcement of her claim. The District Court of Appeal, Fifth District, held that because neither the record nor the order established that liability had been determined in favor of a party seeking affirmative relief, the appeal was premature. Opinions dealing with injunctions include Lerma-Fusco v. Smith, 220 So. 3d 562 (Fla. 5th DCA 2017), pertaining to a temporary injunction that froze the assets of an estate, Spaulding v. Estate of Frey, 666 So. 2d 935 (Fla. 5th DCA 1996), involving a nonfinal order modifying a temporary injunction, and Brock v. Brock, 667 So. 2d 310 (Fla. 1st DCA 1995), rejected on other grounds 211 So. 3d 918, involving an order to unfreeze assets while the judgment upholding the validity of a will was on appeal. A case involving jurisdiction under Rule 9.130(a)(3)(C)(i) is In re Estate of Black, 528 So. 2d 1316 (Fla. 2d DCA 1988). A case dealing with “the right to immediate possession of property” under Rule 9.130(a)(3)(C)(ii) is Greene v. Borsky, 961 So. 2d 1057, 1058 (Fla. 4th DCA 2007). In Borsky, the trial court orders determined the right to trust assets to be used by the trustees to pay for attorneys’ fees and witness’ fees expended in defense of the trust. The Fourth District held that the orders were appealable nonfinal orders. See also Gordin v. Estate of Maisel, 179 So. 3d 518, 520 (Fla. 4th DCA 2015) (concluding that order granting petition to appoint curator for estate constitutes case “determining the right to immediate possession of property”). An estate planning case dealing with “the entitlement of a party to arbitration” under Rule 9.130(a)(3)(C)(iv) is Manor Oaks, Inc. v. Campbell, 276 So. 3d 830 (Fla. 4th DCA 2019). In Pigna v. Messianu, 43 FLW D2260 (Fla. 3d DCA 2018), the Third District distinguished the appeal of orders rendered in probate and guardianship cases under Rule 9.170 from orders rendered under Rule 9.130. See § 14.3.B.

The significance of having an appealable nonfinal order is that a party has the ability to take an appeal within 30 days of the rendition of the order instead of waiting for the rendition of a final order, which may be many months later. Rule 9.130(b). But the lawyer should keep in mind that the 30day time period is not tolled by filing a motion for rehearing regarding a nonfinal order, even though such a motion is authorized by Fla. Prob. R. 5.020(d). Additionally, certain orders entered after final orders are reviewable under Rule 9.130. For an example, under Rule 9.130(a)(4), see Jones-Bishop v. Estate of Sweeney, 27 So. 3d 176 (Fla. 5th DCA 2010) (involving appeal from nonfinal order determining beneficiaries and striking prior order of summary administration). See Rule 9.130(a)(5) with respect to motions under Fla. R. Civ. P. 1.540 (i.e., relief from judgment, decrees, or orders), which would apply in adversary proceedings. However, a motion for rehearing directed to Rule 9.130(a)(5) types of orders will not toll the time for filing a notice of appeal. For further discussion of this topic see Reiter, Review of Nonfinal Orders —An Exception to the Requirement of Finality, 82 Fla. Bar J. 45 (March 2008).

« Ch. 14 », « § 14.5 » 1 Litigation Under FL Probate Code § 14.5 (2022)

§ 14.5. CERTIORARI « Ch. 14 », « § 14.5 », • A » 1 Litigation Under FL Probate Code § 14.5.A (2022)

A. When Available The availability of the common-law writ of certiorari is of great importance with respect to nonfinal orders that are not appealable under Fla. R. App. P. 9.130. The district courts of appeal have the residual power under the Florida Constitution to issue common-law writs of certiorari. See Art. V, § 4(b)(3), Fla. Const.; Robinson v. State, 132 So. 2d 3 (Fla. 1961). The oft-cited case setting forth current requirements for review of a nonfinal order by petition for writ of certiorari is Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987), superseded by statute on other grounds 589 So. 2d 1334, which holds: A non-final order for which no appeal is provided by Rule 9.130 is reviewable by petition for certiorari only in limited circumstance. The order [1] must depart from the essential requirements of law and [2] thus cause material injury to the petitioner throughout the remainder of the proceedings below, [3] effectively leaving no adequate remedy on appeal. The common-law writ of certiorari in probate is most frequently used to review discovery orders, usually those granting discovery. Once discovery is granted erroneously, the party providing the discovery has no way to undo the disclosure of information and is beyond relief. Some have called this a “cat-out-of-the-bag” order. For a case involving various discovery questions when a petition for a protective order regarding discovery was denied, see Killinger v. Guardianship of Grable, 983 So. 2d 30 (Fla. 5th DCA 2008). Some probate examples dealing with a petition for writ of certiorari (some of which predate Martin-Johnson standards and thus should be checked against those standards, before being cited) include the following:

Certiorari was granted to quash an order of the county judge’s court requiring an ancillary coexecutor to disclose to a certified public accountant all records relating to a trust. Van Devere v. Holmes, 156 So. 2d 899 (Fla. 3d DCA 1963). Certiorari was granted to review an order holding that discovery procedures were not available to a petitioner in a will contest. In re Estate of Estes, 158 So. 2d 794 (Fla. 3d DCA 1963). Certiorari was granted to review a trial court’s refusal to approve a stipulation and settlement involving some minor parties. Bullard v. Sharp, 407 So. 2d 1023 (Fla. 4th DCA 1981). Certiorari was granted regarding discovery and an asserted attorneyclient privilege. Gross v. Security Trust Co., 462 So. 2d 580 (Fla. 4th DCA 1985). Certiorari was granted regarding an order permitting discovery of financial records of a nonparty. Borck v. Borck, 906 So. 2d 1209 (Fla. 4th DCA 2005). Certiorari was granted regarding disclosure of a party’s medical records without safeguarding privacy rights by providing for in camera inspection. Barker v. Barker, 909 So. 2d 333 (Fla. 2d DCA 2005). Certiorari was granted, quashing an order of the probate court that “permitted contingent creditors to take prejudgment discovery in aid of execution.” In re Estate of Posner, 492 So. 2d 1093 (Fla. 3d DCA 1986). Certiorari was granted, quashing an order permitting discovery regarding attorneys’ fees in the early part of the litigation. In re Estate of Ransburg, 608 So. 2d 49 (Fla. 2d DCA 1992). Certiorari was granted, quashing portions of a discovery order regarding numerous documents dealing with management and operation of a trust. Robbie v. Robbie, 629 So. 2d 220 (Fla. 3d DCA 1993). Certiorari was granted, quashing an order regarding discovery of documents from a trustee based on the attorney-client privilege and work-product doctrine, when the trust beneficiary was litigating a

position adverse to the trust. Barnett Banks Trust Co., N.A. v. Compson, 629 So. 2d 849 (Fla. 2d DCA 1993). Certiorari was granted, quashing an order removing counsel in a guardianship case. Herschowsky v. Guardianship of Herschowsky, 890 So. 2d 1246 (Fla. 4th DCA 2005); In re Guardianship of Murphey, 630 So. 2d 591 (Fla. 4th DCA 1993). Certiorari was granted to review an order denying a motion to disqualify a law firm representing the trustee of a decedent’s trust. Morse v. Clark, 890 So. 2d 496 (Fla. 5th DCA 2004). Certiorari was denied regarding an order compelling production of financial information from the personal representative to the surviving spouse, when that information was relevant to the spouse’s decision whether or not to seek elective share. In re Estate of Sauey, 869 So. 2d 664 (Fla. 4th DCA 2004). Certiorari was granted, quashing an order which upheld objections to a surviving spouse’s notice of intent to serve subpoena and production of documents pursuant to Fla. R. Civ. P. 1.351 on decedent’s company (which was not a party to the probate proceeding) regarding the elective share. McDonald v. Johnson, 83 So. 3d 889 (Fla. 2d DCA 2012). Certiorari was denied (although the order was reviewable by certiorari) regarding a request to review an order disqualifying the personal representative’s lawyer. Eccles v. Nelson, 919 So. 2d 658 (Fla. 5th DCA 2006); Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997). Certiorari was granted, in part, when the order disqualifying a lawyer and his law firm from representing beneficiaries of a decedent’s estate (in an action to recover assets that beneficiaries claimed were obtained through undue influence) was too broad in not limiting the disqualification to trial advocacy. Graves v. Lapi, 834 So. 2d 359 (Fla. 4th DCA 2003). Certiorari was also granted to quash an order disqualifying counsel for the decedent’s wife in a probate action in which validity of the parties’ antenuptial agreement was at issue. Hiatt v. Estate of Hiatt, 837 So. 2d 1132 (Fla. 4th DCA 2003). Certiorari was granted, quashing an order requiring production of the plaintiff’s unpublished will in a medical malpractice action. Compton v.

West Volusia Hospital Authority, 727 So. 2d 379 (Fla. 5th DCA 1999). Certiorari was granted, quashing an order of the court freezing assets in a purported trust account without a basis in either the pleadings or the evidence. Young v. Hector, 851 So. 2d 762 (Fla. 3d DCA 2003). Certiorari was granted, quashing an order denying a motion to abate or stay a civil action pending the determination of a probate appeal in a matter involving the same parties and at least one material issue. Bergman v. Kaplan, 922 So. 2d 982 (Fla. 4th DCA 2005). Certiorari petition was dismissed because the petitioner failed to meet the burden of demonstrating the “irreparable harm” prong of certiorari review. Bernheim v. Broberg, 973 So. 2d 1284 (Fla. 4th DCA 2008). In Bernheim, the petitioner sought certiorari review regarding an order that required him (as a pro se litigant) to communicate with the personal representative and his counsel solely through writing. Certiorari was granted, quashing the part of an order denying protection from request for admissions in light of petitioner’s representation that the substance of the conversations at issue concerned attorney/client privileged communications, when no challenge was made to such representation in the trial court, and no waiver of any such privilege was demonstrated. Siegler v. Estate of Siegler, 995 So. 2d 1181 (Fla. 4th DCA 2008). Certiorari was granted, quashing the part of a discovery order that compelled production of certain confidential financial information. In re Guardianship of Trost, 100 So. 3d 1205 (Fla. 2d DCA 2012). Certiorari was granted, quashing part of two orders, one requiring petitioner to retain a lawyer in order to file a petitioner for appointment of guardian, and the other directing the Clerk of Court for Miami-Dade County to not accept further filings from petitioner. Silveira v. Quiroga, 156 So. 3d 574 (Fla. 3d DCA 2015). Certiorari was denied when petitioner failed to establish that the trial court’s order, which compelled the testator’s estate planning lawyer to answer questions at his deposition relating to the testator’s “reasons for disinheriting” some of his children, constituted a departure from the essential requirements of the law. Vasallo v. Bean, 208 So. 3d 188, 189

(Fla. 3d DCA 2016). Certiorari was granted, quashing the probate court’s order because the subpoena duces tecum upon the petitioner, a non-party, sought documents that were not reasonably calculated to lead to the discovery of admissible evidence and were privileged under the work product doctrine, and the order required the petitioner to file a privilege log. United States Sugar Corp. v. Estate of Mullins, 211 So. 3d 110 (Fla. 4th DCA 2017). The practitioner should note that other writs may also be appropriate in probate, although they are found in appellate opinions much less frequently than certiorari. In Carraway v. Carraway, 883 So. 2d 834 (Fla. 1st DCA 2004), a petition for a writ of prohibition was granted, prohibiting the probate court from entering an order on a notice of final accounting and on a petition for discharge of the personal representative in probate while an appeal was pending. In Dept. of Children & Families v. Coll, 908 So. 2d 599 (Fla. 4th DCA 2005), a petition for writ of prohibition was granted to quash an order of the probate court requiring that the Department of Children and Families do certain things, when the department was not a party to the guardianship proceeding and received no notice or opportunity to be heard. In Leslie v. Leslie, 840 So. 2d 1097 (Fla. 4th DCA 2003), a petition for writ of prohibition to disqualify a probate judge was granted based on comments made by the judge. In Cutler v. Cutler, 84 So. 3d 1172 (Fla. 3d DCA 2012), a petition for writ of prohibition was granted to prevent a hearing on a withdrawn petition to admit a codicil. « Ch. 14 », « § 14.5 », « B • 1 Litigation Under FL Probate Code § 14.5.B (2022)

B. Practice And Procedure Fla. R. App. P. 9.100(c) requires that a petition for certiorari be filed within 30 days from rendition of the challenged order. Requirements for the contents of the petition are set forth in Rule 9.100(g). A record must be filed simultaneously with the petition, as an appendix. Rules 9.100(g), 9.220. No response is required unless the appellate court issues a “show cause” order. Rule 9.100(h). Specifically, Rule 9.100(h) provides that “the court may issue an order either directing the respondent to show cause, within the time

set by the court, why relief should not be granted or directing the respondent to otherwise file, within the time set by the court, a response to the petition.” A response must include argument in support of the response and citations of authority and may be accompanied by an appendix. Rule 9.100(j). The petitioner may serve a reply and supplemental appendix within 30 days after the response, or within such other time set by the appellate court. Rule 9.100(k). It is extremely rare that an application for certiorari is set for oral argument. A denial of a petition for certiorari is not an affirmance, is not construed as passing on issues in the litigation and is not res judicata. Don Mott Agency, Inc. v. Harrison, 362 So. 2d 56 (Fla. 2d DCA 1978); Keay v. City of Coral Gables, 236 So. 2d 133 (Fla. 3d DCA 1970). This assumes that the appellate court chooses not to issue a denial on the merits, which would establish the law of the case. A denial without an opinion would not have that effect. Casey-Goldsmith v. Goldsmith, 735 So. 2d 610 (Fla. 5th DCA 1999).

« Ch. 14 », « § 14.6 » 1 Litigation Under FL Probate Code § 14.6 (2022)

§ 14.6. STANDARDS OF REVIEW ON APPEAL « Ch. 14 », « § 14.6 », • A » 1 Litigation Under FL Probate Code § 14.6.A (2022)

A. In General Fla. R. App. P. 9.210, governing briefs, requires the appealing party to set forth as to each issue the appropriate standard of review. In an appeal, the “standard of review” is the criterion by which the appellate court evaluates the probate court’s order. The standard of review, in turn, determines the level of persuasion required to show reversible error. For excellent general discussions of appellate standards of review, see FLORIDA APPELLATE PRACTICE Chapter 6 (Fla. Bar 11th ed. 2020); and Padovano, FLORIDA APPELLATE PRACTICE Chapter 19 (Thomson/West 2021 ed.) Most probate orders can be classified as (1) law decisions, (2) fact decisions, (3) discretionary decisions, or (4) a combination of some or all of the foregoing. « Ch. 14 », « § 14.6 », « B » 1 Litigation Under FL Probate Code § 14.6.B (2022)

B. Law Decisions Pure law decisions are reviewed by a “de novo” standard of review. Reinish v. Clark, 765 So. 2d 197 (Fla. 1st DCA 2000). See Padovano, FLORIDA APPELLATE PRACTICE § 19.4 (Thomson/West 2021 ed.). The appellate court is free to decide the question of law as if the appellate court were deciding the question without deference to the trial court’s decision. Law decisions include (1) orders on a motion to dismiss based on the legal sufficiency of a complaint, (2) summary judgments, and (3) orders interpreting a contract covenant. One probate example of a summary judgment that was reversed is found in Russo v. Ross, 545 So. 2d 460 (Fla. 3d DCA 1989). Although the contestants did not have personal knowledge of events leading up to execution of a will, this did not conclusively establish that the contestants

could not prove their attack on the will by other evidence, and the defender was not thereby entitled to summary judgment. A second probate example of a summary judgment that was reversed is found in Estate of Bacon v. Bacon, 573 So. 2d 1035 (Fla. 3d DCA 1991), in which summary judgment against an estate was reversed, in part, because it was entered at a time when the estate was represented only by a person whose interests were adverse to the estate. A third example is Ashby v. Ashby, 651 So. 2d 246 (Fla. 4th DCA 1995), regarding an agreement to leave a devise in a will. A fourth example is Hemker v. Abdul, 716 So. 2d 817 (Fla. 2d DCA 1998), regarding a will contest involving testamentary capacity and undue influence. The appellate court is “not … bound by the trial court’s legal conclusions where those conclusions conflict with established law.” In re Estate of Donner, 364 So. 2d 742, 748 (Fla. 3d DCA 1978). « Ch. 14 », « § 14.6 », « C » 1 Litigation Under FL Probate Code § 14.6.C (2022)

C. Fact Decisions « Ch. 14 », « § 14.6 », « C », • 1 » 1 Litigation Under FL Probate Code § 14.6.C.1 (2022)

1. In General Pure fact decisions are reviewed by determining whether the probate order is supported by “competent substantial evidence.” The Florida Supreme Court enunciated this standard to evaluate findings of fact in nonjury trials in Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976): It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test … is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence,’ it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court. [Internal citations omitted].

For a probate application when the Florida Supreme Court quashed, in part, a decision from the district court of appeal, see Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982). “Competent substantial evidence” has been defined by the Florida Supreme Court as “ ‘such evidence as will establish a substantial basis of fact from which the fact at issue can reasonably be inferred (or) … such relevant evidence as a reasonable mind would accept as adequate to support a conclusion.’ ” Duval Utility Co. v. Florida Public Service Commission, 380 So. 2d 1028, 1031 (Fla. 1980), quoting De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). The phrase was further discussed in the probate case, Lonergan v. Estate of Budahazi, 669 So. 2d 1062, 1064 (Fla. 5th DCA 1996), quoting Dunn v. State, 454 So. 2d 641, 649 n.11 (Fla. 5th DCA 1984): “The term ‘competent substantial evidence’ does not relate to the quality, character, convincing power, probative value or weight of the evidence but refers to the existence of some evidence (quantity) as to each essential element and as to the legality and admissibility of that evidence. Competency of evidence refers to its admissibility under legal rules of evidence. ‘Substantial’ requires that there be some (more than a mere iota or scintilla), real, material, pertinent, and relevant evidence (as distinguished from ethereal, metaphysical, speculative or merely theoretical evidence or hypothetical possibilities) having definite probative value (that is, ‘tending to prove’) as to each essential element of the offense charged.” Determining whether the appealed order is based on a pure fact issue is often difficult. Certain issues are usually treated as pure fact issues, such as (1) the weight given to the evidence (as long as the evidence is legally sufficient), and (2) the credibility of a witness (except uncontradicted testimony cannot be rejected unless impossible or inherently unbelievable). The rationale is that the trial judge has the opportunity to hear all the evidence, question the witnesses, and observe their demeanor, and it is not the appellate court’s function to reweigh the evidence. Elson v. Vargas, 520 So. 2d 76 (Fla. 3d DCA 1988). See also In re Estate of Ryan, 576 So. 2d 767 (Fla. 3d DCA 1991); In re Estate of Beacher, 177 So. 2d 838 (Fla. 3d DCA 1965). Two examples of opinions explicitly applying a “substantial competent evidence” standard in a probate context involve an order

authorizing sale of residuary assets, Iandoli v. Iandoli, 547 So. 2d 666 (Fla. 4th DCA 1989), and an order determining that an addendum attached to a will was the document incorporated by reference in the body of the will, Maxwell v. Mise, 660 So. 2d 816 (Fla. 5th DCA 1995). Sometimes, however, the probate judge may be reversed for failure to make findings of fact. An example is In re Estate of Corbin, 637 So. 2d 51 (Fla. 1st DCA 1994), in which the probate judge was reversed, in part, for failure to make necessary findings of fact required by F.S. 733.613(1). « Ch. 14 », « § 14.6 », « C », « 2 » 1 Litigation Under FL Probate Code § 14.6.C.2 (2022)

2. Testamentary Capacity In a will contest, the testator’s testamentary capacity is generally a question of fact to be determined by the probate judge. In re Wilmott’s Estate, 66 So. 2d 465 (Fla. 1953), 40 A.L.R. 2d 1399; In re Estate of Hammermann, 387 So. 2d 409 (Fla. 4th DCA 1980); Skelton v. Davis, 133 So. 2d 432 (Fla. 3d DCA 1961), 89 A.L.R. 2d 1114. A probate court’s decision finding requisite mental capacity will not be reversed merely because evidence is conflicting. In re Alkire’s Estate, 142 Fla. 862, 198 So. 475 (1940). See also Watts v. Newport, 149 Fla. 181, 6 So. 2d 829 (1942), finding competent substantial evidence to support the probate court’s finding of lack of mental capacity. A probate court’s decision finding that the testator executed a will during a lucid interval will be sustained if supported by competent substantial evidence. In re Estate of Blakey, 363 So. 2d 630 (Fla. 3d DCA 1978). « Ch. 14 », « § 14.6 », « C », « 3 » 1 Litigation Under FL Probate Code § 14.6.C.3 (2022)

3. Undue Influence It is the function of the trier of fact to determine the question of undue influence. Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982). The rule that appellate courts must give effect to findings of the trier of facts, provided such findings rest on competent, substantial evidence, is applicable to a judgment on the issue of undue influence. In re Kiggins’ Estate, 67 So. 2d 915 (Fla. 1953); Estate of Madrigal v. Madrigal, 22 So. 3d 828 (Fla. 3d DCA 2009); Peacock v. Melvin, 652 So. 2d 951 (Fla. 1st DCA 1995); In re Estate of Edmunds, 214 So. 2d 65 (Fla. 4th DCA 1968).

Even if one may have “rachmones” (i.e., pity, mercy, and compassion) for an appellant, the order finding undue influence must be affirmed if supported by competent, substantial evidence. Lerner v. Brin, 608 So. 2d 519, 520 (Fla. 3d DCA 1992). When there is evidence that would support a different conclusion, the appellate court must accept the factual findings of the trial court in resolving conflicting evidence, “in the absence of a clear showing of error, or that the conclusions reached are erroneous.” Estate of Brock, 692 So. 2d 907, 913 (Fla. 1st DCA 1996). A judgment setting aside a will as the product of undue influence will be reversed when the findings of fact and conclusions of law of the final judgment are not supported by competent, substantial evidence. Pavlides v. Roussis, 764 So. 2d 769 (Fla. 2d DCA 2000). In will contests, undue influence is often shown by raising a presumption of undue influence pursuant to the holding in In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971). If the presumption of undue influence is raised regarding a will, the burden of proof shifts to the will proponent to prove the nonexistence of undue influence. See F.S. 733.107(2). For analysis and application of this presumption under F.S. 733.107(2) as amended, see Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007), and Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004). Even if a probate order fails to make specific findings, an order revoking probate of a will based on the conclusion that a presumption of undue influence was raised and not rebutted will be affirmed if the record shows substantial competent evidence to support that order. Evers v. Zelyk, 422 So. 2d 925 (Fla. 2d DCA 1982). Once facts sufficient to raise a presumption of undue influence are present, the will proponent is not entitled to a summary judgment on the issue of undue influence. RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008); Hack v. Estate of Helling, 811 So. 2d 822 (Fla. 5th DCA 2002); Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981). The practitioner should note that F.S. 733.107(2) was most recently amended in 2014 to clarify that any transaction or event to which the presumption of undue influence applies constitutes a presumption shifting the burden of proof under F.S. 90.301–90.304. Additionally, the 2014 Legislature expressly provided for this amendment to apply retroactively to all proceedings pending on or before its effective date, as well as to all cases commenced on or after the effective date. Ch. 2014-127, § 4, Laws of Fla.

« Ch. 14 », « § 14.6 », « C », « 4 • 1 Litigation Under FL Probate Code § 14.6.C.4 (2022)

4. Legal Conclusions From Undisputed Evidence Sometimes what appears to be simply a finding of fact is really in the nature of a factual conclusion drawn from undisputed evidence. In such a case, the standard of review is the “clearly erroneous” standard set forth by the Florida Supreme Court in Holland v. Gross, 89 So. 2d 255, 258 (Fla. 1956), 63 A.L.R. 2d 920: A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion… . When the appellate court is convinced that an express or inferential finding of the trial court is without support of any substantial evidence, is clearly against the weight of the evidence or that the trial court has misapplied the law to the established facts, then the decision is “clearly erroneous” and the appellate court will reverse because the trial court has “failed to give legal effect to the evidence” in its entirety. In In re Estate of Brackett, 109 So. 2d 375, 378 (Fla. 2d DCA 1959), the court observed: “Weight of the evidence” has been held to be equivalent to “preponderance of the evidence.” It simply means that proof on one side of a cause outweighs the proof on the other side. * * * “Weight of evidence” does not necessarily mean a greater number of witnesses, since quality of testimony and credibility must also be considered. “Weight of evidence” is not a question of mathematics but depends on its effect in inducing belief. [The] probative value of the testimony of each witness, and not the quantity or amount of evidence, determines its weight. Probate cases that have mentioned the “clearly erroneous standard” include

Gardiner v. Goertner, 110 Fla. 377, 149 So. 186 (1933) (dealing with will contest involving testamentary incapacity and undue influence); Grant v. Bessemer Trust Company of Florida, Inc. ex rel. Grant, 117 So. 3d 830 (Fla. 4th DCA 2013) (pertaining to codicil to will contest involving alleged guarantee of lifetime employment); Shen v. Parkes, 100 So. 3d 1189 (Fla. 4th DCA 2012) (reversing trial court order for relying on written reports of examining committee members, when adjudicatory hearing was contested in which there were objections to reports as being hearsay); In re Estate of Rothschild, 647 So. 2d 902 (Fla. 4th DCA 1995) (reversing probate order for accepting in total accountant’s testimony that contained glaring inaccuracies in action to remove and surcharge personal representative); Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980) (affirming order holding personal representative personally liable for improper administration); and In re Estate of Donner, 364 So. 2d 742 (Fla. 3d DCA 1978) (involving action by former wife for damages and other equitable relief for breach of settlement agreement and fraud). When a probate judge bases an appealed order on transcribed testimony of a witness (i.e., a deposition transcript), the appellate court is in the same position to examine the testimony as was the probate judge, and the presumption of correctness for the probate judge’s decision is not as strong as when the probate judge, sitting as trier of fact, personally hears and sees the witness. Walton v. Estate of Walton, 601 So. 2d 1266 (Fla. 3d DCA 1992) (reversing probate judge’s decision in action to establish lost or destroyed will). « Ch. 14 », « § 14.6 », « D • 1 Litigation Under FL Probate Code § 14.6.D (2022)

D. Discretionary Decisions Discretionary decisions are reversed by a showing of “abuse of discretion” of the trial court. Abuse of discretion arises when there is no conceivable basis for a decision, but the term does not encompass an unwise or mistaken decision, as long as grounds exist upon which the decision could be made. Hasam Realty Corp. v. City of Hallandale, 393 So. 2d 561 (Fla. 4th DCA 1981). The test is whether reasonable people could differ as to the propriety of the action. If reasonable people could differ, the action is not unreasonable and there is no abuse of discretion. Canakaris v. Canakaris,

382 So. 2d 1197 (Fla. 1980); In re Estate of McArthur, 443 So. 2d 1052 (Fla. 4th DCA 1984). Appellants carry an extremely heavy burden in appealing a discretionary ruling. Discretionary decisions generally include most pretrial procedural issues, including discovery; the manner in which the court conducts the trial; rulings on admission or exclusion of evidence, at least on the issue of relevancy; an order granting rehearing; and an order awarding attorneys’ fees. Padovano, FLORIDA APPELLATE PRACTICE § 19.5 (Thomson/West 2021 ed.). Examples of discretionary decisions in the probate context include the following: Granting or refusing an extension of time to commence action on a claim against a decedent’s estate. Strulowitz v. Cadle Company, II, Inc., 839 So. 2d 876 (Fla. 4th DCA 2003); In re Estate of Ortolano, 766 So. 2d 330 (Fla. 4th DCA 2000); Bell v. Harris, 366 So. 2d 765 (Fla. 1st DCA 1979); In re Estate of Herskowitz, 342 So. 2d 530 (Fla. 3d DCA 1977). Conditioning approval of a motion for extension of time to file a claim against an estate upon returning an asset to the estate. Brodfuehrer v. Estate of Brodfuehrer, 833 So. 2d 784 (Fla. 3d DCA 2002). Refusing an extension of time for the personal representative to object to a creditor’s claim. Cohen v. Majestic Distilling Co., 765 So. 2d 276 (Fla. 4th DCA 2000). Setting forth the approach to computation of shares of the estate residue in relation to payment of death taxes. Iandoli v. Iandoli, 547 So. 2d 664 (Fla. 4th DCA 1989). Finding that a claimant is not a “known or reasonably ascertainable creditor.” Jones v. Sun Bank/Miami, N.A., 609 So. 2d 98, 103 (Fla. 3d DCA 1992); see also Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015). Finding that a claimant is a “reasonably ascertainable creditor.” Simpson v. Estate of Simpson, 922 So. 2d 1027 (Fla. 5th DCA 2006); Miller v. Estate of Baer, 837 So. 2d 448 (Fla. 4th DCA 2003).

Issuing a temporary injunction freezing assets pending the outcome of a probate proceeding. Wise v. Schmidek, 649 So. 2d 336 (Fla. 3d DCA 1995). Issuing an order to unfreeze assets while the judgment, upholding the validity of a will, was on appeal. Brock v. Brock, 667 So. 2d 310 (Fla. 1st DCA 1995). Awarding attorneys’ fees under F.S. 57.105. Langford v. Ferrera, 823 So. 2d 795 (Fla. 1st DCA 2002). Allocating the burden of cotrustee’s attorneys’ fees between trusts. Robinson v. Robinson, 805 So. 2d 94 (Fla. 4th DCA 2002). Awarding and apportioning costs under F.S. 733.106(1). In re Estate of Williams, 771 So. 2d 7 (Fla. 2d DCA 2000); Furlong v. Raimi, 735 So. 2d 583 (Fla. 3d DCA 1999). Awarding and apportioning costs under former F.S. 737.627. Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999). Determining whether fees were reasonable and necessary (after first determining appropriate statute to apply). MonarchCare, Inc. v. Guardianship of Block, 204 So. 3d 508 (Fla. 4th DCA 2016); Bitterman v. Bitterman, 685 So. 2d 861 (Fla. 4th DCA 1997), approved in part, disapproved in part 714 So. 2d 356. Ruling on a motion for attorneys’ fees in an action challenging the proper exercise of a trustee’s powers under former F.S. 737.627. Nalls v. Millender, 721 So. 2d 426 (Fla. 4th DCA 1998). Imposing sanctions. In re Estate of Hathaway, 768 So. 2d 525 (Fla. 4th DCA 2000). Prohibiting a pro se litigant, who filed vexatious and frivolous pleadings and harassed court personnel, from representing herself. Emery v. Clifford, 721 So. 2d 401 (Fla. 3d DCA 1998). Ruling on a motion to dismiss on ground of inconvenient forum. Levine v. Steiger, 765 So. 2d 249 (Fla. 4th DCA 2000). Refusing to permit an amendment to a complaint. Prescott v. Stanley,

710 So. 2d 674 (Fla. 5th DCA 1998). Striking a petition to revoke administration of a will when the petitioner failed to appear for his deposition. In re Estate of Brandt, 613 So. 2d 1365 (Fla. 1st DCA 1993). Striking a petition for revocation of probate as a sham pleading, without conducting an evidentiary hearing. Pacheco v. Wasserman, 701 So. 2d 104 (Fla. 3d DCA 1997). Denying a motion for continuance. In re Estate of Litras, 686 So. 2d 715 (Fla. 4th DCA 1997). Allocating settlement proceeds of a wrongful death action. Woods v. Estate of Woods, 770 So. 2d 1270 (Fla. 3d DCA 2000); In re Estate of Wiggins, 729 So. 2d 523 (Fla. 4th DCA 1999). Denying the personal representative’s petition for a temporary injunction that would require a party to deposit bearer stock certificates, alleged to be converted, into the court registry. In re Estate of Barsanti, 773 So. 2d 1206 (Fla. 3d DCA 2000). Administratively closing an estate for lack of prosecution. Dribin v. Estate of Nolan, 801 So. 2d 249 (Fla. 4th DCA 2001). Denying a motion to stay probate proceedings pending federal district court’s resolution of preemption and adequacy of notice issues. U.S. Borax, Inc. v. Forster, 764 So. 2d 24 (Fla. 4th DCA 1999). Removing a cotrustee. Aiello v. Hyland, 793 So. 2d 1150 (Fla. 4th DCA 2001). Removing personal representatives. Fromvald v. Wolfe, 760 So. 2d 1020 (Fla. 4th DCA 2000). Determining whether facts show either active procurement of a bequest or a confidential relationship that may give rise to the presumption of undue influence. In re Estate of Stetzko, 714 So. 2d 1087 (Fla. 4th DCA 1998). Reviewing probate court’s order regarding distribution. Blackburn v. Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016).

Denying a beneficiary’s motion to intervene. Genauer v. Downey & Downey, P.A., 190 So. 3d 131 (Fla. 4th DCA 2016). Denying an amended petition for subsequent administration. Mathis v. Estate of Mathis, 178 So. 3d 919 (Fla. 3d DCA 2015). Several guardianship decisions have found an abuse of discretion by the trial court in awarding a guardian fee less than requested and outside the bounds of reasonableness established by a previous fee award. In re Guardianship of Sitter, 779 So. 2d 346 (Fla. 2d DCA 2000); Smith v. Guardianship of Estelle Knox, 751 So. 2d 763 (Fla. 3d DCA 2000); Schacter v. Guardianship of Schacter, 756 So. 2d 1075 (Fla. 4th DCA 2000). With respect to a fee award to the lawyer for the guardianship petitioner, see In re Guardianship of Ruppert, 787 So. 2d 925 (Fla. 2d DCA 2001).

« Ch. 14 », « § 14.7 » 1 Litigation Under FL Probate Code § 14.7 (2022)

§ 14.7. APPELLATE PRINCIPLES REGARDING ERROR « Ch. 14 », « § 14.7 », • A » 1 Litigation Under FL Probate Code § 14.7.A (2022)

A. Errors Must Be Preserved For Review As a general rule, points not raised in the trial court cannot be raised initially on appeal. Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010); In re Estate of Serrill, 159 So. 2d 246 (Fla. 2d DCA 1964). Furthermore, in most instances, an appellate court will review only the rulings actually made by the trial court. Lopez v. Lopez, 689 So. 2d 1218 (Fla. 5th DCA 1997). The predicate for every appeal is some specific request, motion, or objection upon which a ruling has actually been made. See Padovano, FLORIDA APPELLATE PRACTICE § 8.1 (Thomson/West 2021 ed.). Exceptions to the rule include (1) lack of subject matter jurisdiction, and (2) fundamental error, discussed below. In other words, appellate review can be lost by: (1) failure to plead an issue or otherwise properly raise or preserve it before the lower court; (2) failure to contemporaneously object during trial and, if objection is made, failure to obtain a ruling on the objection; or (3) failure to proffer, or offer to proffer, testimony and evidence. Some probate examples include the following: Failure to raise in the trial court the constitutionality of the statute regarding filing claims against an estate, but instead raising it for first time on appeal. Picchione v. Asti, 354 So. 2d 954 (Fla. 3d DCA 1978). Failure to raise in the trial court the claim that a void marriage was ratified, but instead raising it for first time on appeal. In re Estate of Sadow, 356 So. 2d 845 (Fla. 4th DCA 1978). Failure to demonstrate that the appellant’s lawyer in the trial proceeding had properly requested the trial court to take judicial notice of, and apply, New York law. In re Estate of Schorr, 409 So. 2d 487 (Fla. 4th

DCA 1982). Failure to raise in the pleadings or present as a contested issue at trial the issue of testamentary capacity. Ferguson v. Estate of Ferguson, 410 So. 2d 617 (Fla. 4th DCA 1982). When the sole issue on appeal was testamentary capacity and that issue was not raised in the pleadings or presented as a contested issue before the trial court, the issue was not preserved for appeal; furthermore, the Fourth District granted a motion to tax attorneys’ fees under F.S. 57.105 and remanded to the trial court for a determination of amount. Failure to raise in the trial court the issue of application of F.S. 733.802 regarding partial distribution. Pearson v. Cobb, 701 So. 2d 649 (Fla. 5th DCA 1997). Failure of the trustee to raise an economic loss argument, or object to the propriety of the lawyer’s closing argument, in an action by the beneficiary to recover for the trustee’s alleged breach of fiduciary duty. Republic National Bank v. Araujo, 697 So. 2d 164 (Fla. 3d DCA 1997). Failure to present evidence and arguments before the trial court. Herskovitz v. Hershkovich, 910 So. 2d 366 (Fla. 5th DCA 2005). Failure to provide a transcript of the hearing, making it impossible for the Fifth District to determine whether issues were properly presented to the probate court, regarding an order disqualifying a lawyer from representing any party. Aldrich v. Estate of Aldrich, 886 So. 2d 338 (Fla. 5th DCA 2004). Failure to object to error relating to the distribution of assets and the closing of the estate. Lopez v. Hernandez, 172 So. 3d 501 (Fla. 5th DCA 2015). The Florida Supreme Court adopted the 2003 Amendment to F.S. 90.104 as procedural, which amendment includes the following statement: “ ‘If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.’ ” In re Amendments to Florida Evidence Code—Section 90.104, 914 So. 2d 940, 942 (Fla. 2005), quoting F.S. 90.104(1)(b).

Exceptions to the general rule that points not raised in the trial court cannot be raised initially on appeal are found in the areas of lack of subject matter jurisdiction and fundamental error. An appellate court may consider the want of jurisdiction of the trial court or a fundamental error committed by the trial court even though not argued in the brief or raised in the trial court. S v. S, 831 So. 2d 709 (Fla. 3d DCA 2002); In re Estate of Paton, 173 So. 2d 168 (Fla. 2d DCA 1965). Fundamental error is rarely applied to excuse failure to preserve an issue, particularly in probate. See Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970) (defining “fundamental error” as “error which goes to the foundation of the case or goes to the merits of the cause of action”). « Ch. 14 », « § 14.7 », « B • 1 Litigation Under FL Probate Code § 14.7.B (2022)

B. Harmless Error Rule Florida’s “harmless error” statute, F.S. 59.041, which has not substantively changed since its adoption in 1911, provides: No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed. Although the statute has not substantively changed since its adoption, judicial construction of the statute has changed over the years. In 2015, the Florida Supreme Court pronounced the following test for determining harmless error in the civil context, when a claim is preserved: “To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.” Special v. West Boca Medical Center, 160 So. 3d 1251, 1256 (Fla. 2015). The test for harmless error in civil proceedings, as set forth in Special, which calls for the beneficiary of the error to prove that the error did not contribute to the verdict, does not apply

retroactively. In re A.B., 186 So. 3d 544 (Fla. 2d DCA 2015).

« Ch. 14 », « § 14.8 » 1 Litigation Under FL Probate Code § 14.8 (2022)

§ 14.8. ATTORNEYS’ FEES ON APPEAL « Ch. 14 », « § 14.8 », • A » 1 Litigation Under FL Probate Code § 14.8.A (2022)

A. Jurisdiction Practitioners have experienced some difficulty dealing with the question of whether to seek appellate attorneys’ fees in probate matters in the appellate court or in the probate court. This problem stems, in part, from the apparent facial conflict between (1) Fla. R. App. P. 9.400(b), which requires that fees for original proceedings and appellate proceedings be awarded, and (2) Article V, § 5(b), of the Florida Constitution and F.S. 26.012(2)(b), which grant jurisdiction of proceedings relating to settlement of estates, and other jurisdiction usually pertaining to probate, to the circuit court. Three general rules may be stated as follows: If the services regard settlement of the estate, and if the fees are to be paid from the estate, the probate court has jurisdiction. This includes situations in which the estate prevails on appeal and situations in which a party benefits the estate under F.S. 733.106(3). See In re Estate of Crosley, 384 So. 2d 274 (Fla. 4th DCA 1980). See also In re Estate of McCune, 223 So. 2d 787 (Fla. 4th DCA 1969) (stating that beneficiary who was successful in lawsuit to construe will was considered to have “benefited” estate, and probate court has jurisdiction to allow attorneys’ fees for such appellate services). If the estate prevails and is entitled to fees to be paid from a party other than the estate, the appellate court has jurisdiction. See Garvey v. Garvey, 219 So. 2d 685 (Fla. 1969). If the estate does not prevail, but if fees are paid out of the estate and not within the scope of the meaning of “settlement of estates,” the appellate court has jurisdiction. See Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981). For the most extensive clarifying opinion on this subject, see In re Estate of

Udell, 501 So. 2d 1286 (Fla. 4th DCA 1987). The Second District has explicitly stated that it follows the guidelines described in Udell and Cari. Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678 (Fla. 2d DCA 1991). Udell and Bissmeyer were also followed by the First District in In re Estate of Gray, 626 So. 2d 971 (Fla. 1st DCA 1993). See also § 11.2.R of this manual. The first Florida appellate opinion to construe Rule 9.170 was Carrithers v. Cornett’s Spirit of the Suwanee, Inc., 93 So. 3d 1240, 1241 (Fla. 1st DCA 2012), which held that “an order assessing fees that is entered by a probate court pursuant to an appellate court order provisionally awarding fees is not an order that ‘awards’ attorney fees for purposes of appeal under Rule 9.170(b)(23).” The proper method to seek review of such an order is to file a motion for review in the underlying appeal. Id. Rule 9.400(c) permits review of orders rendered in the lower tribunal by motion within 30 days of rendition. The Second District in In re Guardianship of Bloom, 227 So. 3d 165 (Fla. 2d DCA 2017), construed Rule 9.170, holding that an order denying attorneys’ fees or costs for an interested person remains an appealable order following the passage of Rule 9.170. Applying that construction of Rule 9.170, the court concluded that the order denying attorneys’ fees ended the judicial labor needed to adjudicate the issue. « Ch. 14 », « § 14.8 », « B » 1 Litigation Under FL Probate Code § 14.8.B (2022)

B. Appellate Review Regarding Probate Award Of Appellate Fees An award or denial of an award by the probate court of appellate attorneys’ fees coming within its jurisdiction is subject to appellate review. In re Estate of Bridges, 282 So. 2d 197 (Fla. 1st DCA 1973). « Ch. 14 », « § 14.8 », « C » 1 Litigation Under FL Probate Code § 14.8.C (2022)

C. Standard Of Review An attorneys’ fee award regarding services rendered in connection with an estate will be overturned only on a showing of abuse of discretion on the part of the probate judge. In re Estate of Simon, 402 So. 2d 26 (Fla. 3d DCA 1981). However, the “appellate court has a greater ability to review the

reasonableness of an appellate attorney’s fee award than an award for trial court work because the legal work was done in the appellate court.” Hoegh v. Estate of Johnson, 985 So. 2d 1185, 1187 (Fla. 5th DCA 2008). « Ch. 14 », « § 14.8 », « D » 1 Litigation Under FL Probate Code § 14.8.D (2022)

D. Motion For Attorneys’ Fees In Appellate Court A motion for attorneys’ fees in the appellate court must be served not later than the time for service of the reply brief in an appeal or the time for service of the reply to the response to a petition in an original proceeding. Fla. R. App. P. 9.400(b)(1)–(b)(2). An exception has been made, however, for motions seeking sanctions pursuant to Rule 9.410(b) (see § 14.8.E). The motion for attorneys’ fees must state the grounds upon which recovery is sought. Rule 9.400(b). A party seeking attorneys’ fees must “specify the particular contractual, statutory, or other substantive basis” for the award; it is not sufficient merely to refer to Rule 9.400. United Services Automobile Ass’n v. Phillips, 775 So. 2d 921, 922 (Fla. 2000). « Ch. 14 », « § 14.8 », « E » 1 Litigation Under FL Probate Code § 14.8.E (2022)

E. Awards Under F.S. 57.105 Or Inequitable Conduct Doctrine Attorneys’ fee awards under F.S. 57.105 have been made on appeal in the probate context. Two examples under the prior version of F.S. 57.105 are as follows: A document between a decedent and a museum, titled “agreement” and providing for a gift of art and cash to the museum if it complied with the agreement’s conditions, was not a “will” that would serve as a basis for revoking probate of the decedent’s will; fees were assessed on appeal under F.S. 57.105. In re Estate of Mayers, 627 So. 2d 103 (Fla. 4th DCA 1993). When the sole issue on appeal was testamentary capacity, and this issue was not raised in the pleadings or presented as a contested issue before the trial court, the Fourth District granted a motion to tax attorneys’ fees under F.S. 57.105 and remanded to the trial court for a determination of amount. Ferguson v. Estate of Ferguson, 410 So. 2d 617 (Fla. 4th DCA

1982). See also Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980). However, in Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716 (Fla. 3d DCA 2000), it was error to assess attorneys’ fees under F.S. 57.105 against a personal representative who unsuccessfully defended a will when there was no finding of a complete absence of justiciable issue of law or fact raised by the personal representative, and it was error to assess attorneys’ fees against the lawyer representing the personal representative when there was no finding that the lawyer did not act in good faith based on the representations of the client. In In re Estate of Hathaway, 768 So. 2d 525 (Fla. 4th DCA 2000), it was error to assess sanctions against a lawyer personally for filing a motion for attorneys’ fees based on an offer of judgment served 22 days before the first scheduled trial date, but more than 45 days before the actual trial date. In Greenberg v. Van Dam, 833 So. 2d 810 (Fla. 3d DCA 2002), it was error to award fees under F.S. 57.105 in a will contest when the unsuccessful contestant was able to raise a presumption of undue influence at the onset of the litigation. Reasonable appellate attorneys’ fees may be recovered through application of the “inequitable conduct doctrine” when a party has exhibited egregious conduct or acted in bad faith. Hoegh v. Estate of Johnson, 985 So. 2d 1185 (Fla. 5th DCA 2008). See Bitterman v. Bitterman, 714 So. 2d 356 (Fla. 1998), approved in part, disapproved in part 714 So. 2d 356, for a discussion of the inequitable conduct doctrine. Fla. R. App. P. 9.170(b) allows a party to move for attorneys’ fees as sanctions. This procedure makes the rule for seeking appellate attorneys’ fees consistent with the provisions in F.S. 57.105. Two cases presage a trend that may become more common with the adoption of Rule 9.410(b). In Hoegh, appellate fees were awarded on the basis of the inequitable conduct doctrine. The proponent of a will acted in bad faith in appealing the trial court order, when the appeal failed to raise any justiciable issue of law. In Hernandez v. Gil, 998 So. 2d 651, 655 (Fla. 3d DCA 2008), appellate fees were awarded pursuant to F.S. 57.105, with the Third District determining that appellant and his counsel “advanced arguments that a reasonable lawyer would know are not well grounded in fact and are not supported by existing law (or by a reasonable argument for the extension, modification, or reversal of existing

law).” An appellate court may impose sanctions on its own initiative pursuant to Rule 9.410(a). Florida Wellness & Rehabilitation Center, Inc. v. Feldman, 276 So. 3d 884 (Fla. 3d DCA 2019). « Ch. 14 », « § 14.8 », « F • 1 Litigation Under FL Probate Code § 14.8.F (2022)

F. Retention Of Jurisdiction To Tax Costs When a fee award is entered without the order retaining jurisdiction with respect to costs, the court loses jurisdiction to later tax costs. Estate of Paulk v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988).

« Ch. 14 », « § 14.9 • 1 Litigation Under FL Probate Code § 14.9 (2022)

§ 14.9. PERFECTING APPEAL OF FINAL ORDER: AN OVERVIEW « Ch. 14 », « § 14.9 •, • A » 1 Litigation Under FL Probate Code § 14.9.A (2022)

A. In General All prior statutes relating to practice and procedure in appeals from probate proceedings were rendered inoperative by the adoption of amended Article V of the Florida Constitution in 1956. In re Estate of Wartman, 128 So. 2d 600 (Fla. 1961). The Florida Rules of Appellate Procedure relating to appeals, including the right to supersedeas, now govern. See Fla. Prob. R. 5.100. « Ch. 14 », « § 14.9 •, « B » 1 Litigation Under FL Probate Code § 14.9.B (2022)

B. Commencement Fla. R. App. P. 9.110(b) provides that an appeal is to be commenced by filing a notice of appeal and depositing the prescribed filing fee with the clerk of the trial court. A conformed copy of the order(s) designated in the notice of appeal, along with any order on a timely motion postponing rendition, is to be attached to the notice of appeal. Rule 9.110(d). The notice of appeal must be filed in the lower court “within 30 days of rendition of the order to be reviewed.” Rule 9.110(b). Neither the trial court nor the appellate court is empowered to extend this time, which has a strict jurisdictional character. In re Estate of Hatcher, 270 So. 2d 45 (Fla. 1st DCA 1972); In re Trust of Walker, 143 So. 2d 363 (Fla. 2d DCA 1962). A notice of appeal filed with the clerk of the district court of appeal confers appellate jurisdiction over the subject matter and the parties. Rule 9.110(d) sets forth the contents of the notice of appeal. Rule 9.900(a) prescribes a form. On appeal from a final order in probate, all prior actions of the probate

court are subject to review. Bell v. Harris, 366 So. 2d 765 (Fla. 1st DCA 1978). Under Rule 9.110(h), except as it relates to the review of partial final judgments, “the court may review any ruling or matter occurring before filing of the notice [of appeal].” Multiple final orders may be reviewed by a single notice, if the notice is timely filed as to each such order.” Care must be taken not to omit appealing a point or matter, which omission might later be held to be the “law of the case” and not reviewable. As an example, in the probate context, see Tillman v. Smith, 560 So. 2d 344 (Fla. 5th DCA 1990). « Ch. 14 », « § 14.9 •, « C » 1 Litigation Under FL Probate Code § 14.9.C (2022)

C. Parties « Ch. 14 », « § 14.9 •, « C », • 1 » 1 Litigation Under FL Probate Code § 14.9.C.1 (2022)

1. In General Any party aggrieved by a final order may take an appeal, and all parties not named as appellants automatically become appellees. Fla. R. App. P. 9.020(g)(2). Reversal of an order on appeal does not affect the rights under that order as to persons who were not parties to the appeal, so care must be taken in naming parties. Baum v. Heiman, 528 So. 2d 63 (Fla. 3d DCA 1988) (concluding that failure to name creditor as party in appeal led to inability to recover erroneous payment to creditor upon reversal of order finding property not to be homestead). A party has no standing to appeal unless his or her interest has been adversely affected. In re Estate of Rose, 165 So. 2d 226 (Fla. 3d DCA 1964). An appellant’s limited involvement in the probate proceeding may curtail the issues on appeal. For example, when an appellant had not participated in the probate proceedings, then files a motion for rehearing that is denied, the appellant is limited on appeal to the issues the appellant raised in the motion for rehearing. Bischoff v. Rodriguez, 572 So. 2d 948 (Fla. 2d DCA 1991). A party who otherwise would be an appellee may become an appellant by filing a joinder within the time and manner prescribed by Rule 9.360(a). « Ch. 14 », « § 14.9 •, « C », « 2 » 1 Litigation Under FL Probate Code § 14.9.C.2 (2022)

2. Administrator Ad Litem In In re Estate of Herlan, 209 So. 2d 225 (Fla. 1968), the Florida Supreme Court held that an administrator ad litem appointed by the trial court on its own motion to investigate matters related to the validity of the will and suspected maladministration, who was discharged by the court after performing his duties, had standing to appeal from the county judge’s order dismissing the order of investigation, because there was no one else who could represent the estate to test the correctness of the order. « Ch. 14 », « § 14.9 •, « C », « 3 » 1 Litigation Under FL Probate Code § 14.9.C.3 (2022)

3. Personal Representative A personal representative is a proper party to an appeal and may appeal an order or judgment that adversely affects the estate. In re Estate of Baker, 327 So. 2d 205 (Fla. 1976); In re Estate of Herlan, 209 So. 2d 225 (Fla. 1968); In re Estate of Lyne, 92 So. 2d 183 (Fla. 1957). The personal representative must be represented by counsel unless the personal representative is the “sole interested person.” Fla. Prob. R. 5.030(a). See Lituchy v. Estate of Lituchy, 61 So. 3d 506 (Fla. 4th DCA 2011); Benedetto v. Columbia Park Healthcare Systems, 922 So. 2d 416 (Fla. 5th DCA 2006). A probate court was reversed for entering an order that precluded the personal representative from expending estate funds to prosecute a pending appeal unless the personal representative could show a monetary benefit to the estate. In re Estate of Wejanowski, 920 So. 2d 190 (Fla. 2d DCA 2006). The probate court could determine, after the appeal is completed and upon proper motion and review, that the appeal was not taken in good faith or was frivolous and use F.S. 733.609 to achieve other remedies. Wejanowski. If one of two co-personal representatives, without the concurrence of the other, files a notice of appeal on an order revoking probate of the will, the appellate court has relinquished jurisdiction back to the probate court to determine whether the nonjoining co-personal representative should be removed; if removed, the remaining co-personal representative would be authorized to proceed with the appeal. Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984).

A personal representative cannot appeal from an order that affects only the rights of beneficiaries of the estate inter se, unless the personal representative is one of the beneficiaries. Wells v. Menn, 154 Fla. 173, 17 So. 2d 217 (1944). « Ch. 14 », « § 14.9 •, « C », « 4 » 1 Litigation Under FL Probate Code § 14.9.C.4 (2022)

4. Lawyers, Representatives, And Guardians Ad Litem Lawyers, representatives, and guardians ad litem in the trial court retain their status in the appellate court, “unless others are duly appointed or substituted.” Fla. R. App. P. 9.360(b). « Ch. 14 », « § 14.9 •, « C », « 5 » 1 Litigation Under FL Probate Code § 14.9.C.5 (2022)

5. Trustee A trustee has a duty to procure the adjudication of rights of parties by an appropriate appellate court when there are meritorious grounds to justify the expense to the trust. Cone v. State ex rel. Woman’s Benefit Ass’n of Port Huron, Mich., 145 Fla. 282, 199 So. 43 (1940). However, a nonattorney trustee cannot appear on behalf of the trust by filing a notice of appeal signed by the trustee alone, because the trustee represents the interests of others and would be engaged in the unauthorized practice of law. EHQF Trust v. S & A Capital Partners, Inc., 947 So. 2d 606 (Fla. 4th DCA 2007). « Ch. 14 », « § 14.9 •, « C », « 6 • 1 Litigation Under FL Probate Code § 14.9.C.6 (2022)

6. Death Of Party “If a person entitled to file a notice of appeal dies before filing and that person’s rights survive, the notice may be filed by the personal representative, the person’s attorney, or, if none, by any interested person.” Fla. R. App. P. 9.360(c)(4). After the death of a party to an appeal, the personal representative or any interested person may be substituted. Rule 9.360(c)(3). See Wallace v. Keldie, 249 So. 3d 747 (Fla. 1st DCA 2018). « Ch. 14 », « § 14.9 •, « D »

1 Litigation Under FL Probate Code § 14.9.D (2022)

D. Supersedeas (Stay Pending Review) « Ch. 14 », « § 14.9 •, « D », • 1 » 1 Litigation Under FL Probate Code § 14.9.D.1 (2022)

1. In General Historically, the Florida Rules of Appellate Procedure referred to a “supersedeas” rather than to a stay pending review. “Supersedeas” is synonymous with “stay.” Fla. R. App. P. 9.310 governs stays pending review. When the appellant obtains a stay, the trial court cannot enforce the judgment. City of Plant City v. Mann, 400 So. 2d 952 (Fla. 1981). The purpose of the stay is to maintain the status quo while the appeal is proceeding. Hathaway v. Munroe, 97 Fla. 28, 119 So. 149 (1929). An appeal may also be stayed in the event of a federal bankruptcy filing. For example, in Carver v. Moody, 780 So. 2d 934 (Fla. 1st DCA 2001), when a discharged personal representative appealed an order setting aside a prior order of discharge and reopening the estate for subsequent administration, the appeal was stayed upon his filing of a personal petition in bankruptcy. « Ch. 14 », « § 14.9 •, « D », « 2 » 1 Litigation Under FL Probate Code § 14.9.D.2 (2022)

2. Stay Not Required For Appeal A stay is not required for appellate review, nor can a party’s right to appeal be conditioned upon obtaining a stay. City of St. Petersburg v. Wall, 475 So. 2d 662 (Fla. 1985). The practitioner should note, however, that an appeal may be dismissed in the absence of a stay if the appellant fails to comply with the trial court’s order. Davidson v. District Court of Appeal, Fourth District, 501 So. 2d 603 (Fla. 1987); Parks v. Wells Fargo Home Mortgage, 185 So. 3d 541 (Fla. 4th DCA 2016). « Ch. 14 », « § 14.9 •, « D », « 3 » 1 Litigation Under FL Probate Code § 14.9.D.3 (2022)

3. Motion In Trial Court

The initial application for a stay is normally made by motion in the trial court that entered the order or judgment that is the subject of the appeal. Fla. R. App. P. 9.310(a). There is no requirement that the notice of appeal be filed before the motion for stay. A trial court’s issuance of a stay remains in effect until an appellate mandate is issued unless the stay is modified or vacated. Rule 9.310(e). See also Rule 9.340 (“Mandate”). If the trial court denies the motion, appellate review may be sought by motion. Rule 9.310(f). « Ch. 14 », « § 14.9 •, « D », « 4 » 1 Litigation Under FL Probate Code § 14.9.D.4 (2022)

4. Conditions Of Stay The trial court has “considerable latitude” in deciding what conditions should be attached to a stay. Pabian v. Pabian, 469 So. 2d 189, 191 (Fla. 4th DCA 1985). The trial court is authorized to require the appellant to post a bond. Fla. R. App. P. 9.310(a). Most stay orders require a bond to protect the appellee in the event the appeal is unsuccessful. In Dice v. Cameron, 424 So. 2d 173 (Fla. 3d DCA 1983), the beneficiary appealed from the trial court’s order overruling objections to a final accounting and approving proposed distribution of the estate. The supersedeas bond, set at 115% of the amount involved, was approved on appeal. « Ch. 14 », « § 14.9 •, « D », « 5 » 1 Litigation Under FL Probate Code § 14.9.D.5 (2022)

5. Automatic Stay Of Money Judgment Upon Posting Bond A money judgment is stayed automatically upon the posting of a bond, under Fla. R. App. P. 9.310(b)(1). The bond must be in the amount of the judgment, plus two years’ interest at the statutory rate. Id. No motion is required in such an instance. However, the automatic stay applies only when the judgment is “solely for the payment of money.” Rule 9.310(b)(1). If the judgment provides for both monetary and nonmonetary relief, the automatic stay provision does not apply. For example, in Florida Coast Bank of Pompano Beach v. Mayes, 433 So. 2d 1033 (Fla. 4th DCA 1983), a judgment ordering a trustee to pay income to beneficiaries and to perform other

nonmonetary acts was determined not to be a money judgment for purposes of an automatic stay. With respect to monetary judgments, the practitioner should note that under F.S. 733.706, “no execution or other process shall issue on or be levied against” estate assets without approval of the probate court. However, this does not prevent enforcement of mortgages, security interests, or liens encumbering specific property. « Ch. 14 », « § 14.9 •, « D », « 6 • 1 Litigation Under FL Probate Code § 14.9.D.6 (2022)

6. Review Of Stay Order As previously noted, a trial court’s stay order must be reviewed upon motion filed in the appellate court. Fla. R. App. P. 9.310(f); Silver Beach Towers Property Owners Ass’n, Inc. v. Silver Beach Investments of Destin, 231 So. 3d 494 (Fla. 1st DCA 2017). « Ch. 14 », « § 14.9 •, « E » 1 Litigation Under FL Probate Code § 14.9.E (2022)

E. Directions To Clerk In Appeals Of Final Orders (The Record) Under Fla. R. App. P. 9.170(c), an appeal may proceed on a record prepared by the clerk of the lower tribunal, or on appendices to the briefs, as elected by the parties within the time frames set forth in Rule 9.200(a)(2). The clerk must prepare the record on appeal in accordance with Rule 9.200, unless the appellant directs that no record be prepared. A copy of such direction must be served on the court when it is served on the clerk. Rule 9.170(c). “However, any other party may direct the clerk to prepare a record in accordance with [Rule] 9.200.” Rule 9.170(c). A copy of such direction must be served on the court when it is served on the clerk. Id. If no record is prepared under Rule 9.170, the appeal must proceed using appendices pursuant to Rule 9.220. Assuming the appeal will not proceed with only appendices, the record must consist of those items designated in Rule 9.200(a)(1). Under Rule 9.200(a)(2), an appellant may direct the clerk, within 10 days of filing the notice of appeal, to include or exclude other documents or exhibits filed in the trial court, by filing directions substantially in the form

prescribed by Rule 9.900(g). If the clerk is directed to transmit less than the entire record or less than the transcript of all testimony in a proceeding, the appellant must also serve a statement of the judicial acts to be reviewed. Within 20 days of the filing of the notice of appeal, the appellee may direct the clerk to include additional items. Rule 9.200(a)(2). The appellant has the burden to demonstrate error, and when doing so requires a record of the trial court proceedings, the appellant has the burden to provide the appellate court with a sufficient record and trial transcript or a proper substitute. Weinberg v. Bort, 961 So. 2d 1017 (Fla. 4th DCA 2007) (affirming probate order disbursing funds when appellant failed to provide appellate court with sufficient record); Spevak v. Willis, 793 So. 2d 975 (Fla. 2d DCA 2001) (affirming final judgment in will contest because record was inadequate to demonstrate reversible error). See also Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1980) (“The [holders of a competing lien] correctly point to the lack of a trial transcript or a proper substitute as fatally flawing the appellate court’s ruling.”). It is the clerk’s duty to prepare the record on appeal and serve a copy of the index to all parties within 50 days of commencement, and to electronically transmit the record within 60 days of the filing of the notice of appeal. Rule 9.110(e). However, under Rule 9.200(e), it is the duty of the appellant or petitioner to ensure that the record is prepared and transmitted by the clerk. The Fourth District has placed lawyers on notice that the appellant must seek an enlargement of time to prepare the record and serve the index (or seek other appropriate relief when necessary) before the expiration of the period prescribed by the rules. Kobel v. Schlosser, 601 So. 2d 601 (Fla. 4th DCA 1992). Concomitantly, a showing of good reason why timely application was not sought must be made if the motion for additional time is filed after the expiration of the original period. Id. « Ch. 14 », « § 14.9 •, « F » 1 Litigation Under FL Probate Code § 14.9.F (2022)

F. Designation To Court Reporter Within 10 days of filing the notice of appeal, the appellant must designate the portions of the proceedings not on file that are deemed necessary for transcription and inclusion in the record. Fla. R. App. P. 9.200(b)(1). The appellee may designate additional portions of the proceedings, within 20 days

of filing the notice. Id. A form for the designation to the reporter may be found at Rule 9.900(h). At the time of designation, the designating party must make a deposit of one half of the estimated transcript costs, unless other satisfactory arrangements have been made with the court reporter. Rule 9.200(b)(1). Probate proceedings may encompass a series of proceedings in which testimony is heard and determined by the court. Unless the appellate issue is to be resolved solely on a question of law that does not require the transcript of hearings, it is essential that each of these proceedings be transcribed by a court reporter. Otherwise, an appellant may find himself or herself in the almost hopeless position graphically portrayed in In re Estate of Ward, 172 So. 2d 869 (Fla. 1st DCA 1965). If an appellant desires a review of findings of fact made by the trial judge, the inclusion of the entire transcript of testimony on which those findings were made is essential. In the absence of a record of testimony or of evidentiary rulings, and when a statement of the record is not prepared, a final order not fundamentally erroneous on its face will be affirmed. In re Guardianship of Read, 555 So. 2d 869 (Fla. 2d DCA 1990). « Ch. 14 », « § 14.9 •, « G » 1 Litigation Under FL Probate Code § 14.9.G (2022)

G. Correction Of Errors And Omissions In Record An appellate court will presume that the record on appeal submitted to it is correct. Sometimes, however, the court reporter makes an error in transcribing the testimony. Likewise, a clerk may omit an important exhibit. If there is an error or omission in the record, either the parties by stipulation, the trial court before the record is transmitted, or the appellate court may correct the record. Fla. R. App. P. 9.200(f)(1). The appellate court can also direct a party to supplement the record if the court finds that the record is incomplete. Rule 9.200(f)(2). See also Fla. R. Civ. P. 1.540(a). « Ch. 14 », « § 14.9 •, « H » 1 Litigation Under FL Probate Code § 14.9.H (2022)

H. Briefs The brief is the principal vehicle through which a lawyer conveys his or her side of the appeal. A thorough knowledge of the entire record on appeal is

essential before preparing a brief. The appellant’s initial brief must be served within 70 days after filing of the notice of appeal. Fla. R. App. P. 9.110(f). The answer brief must be served within 30 days after service of the initial brief, the reply brief is due 30 days after service of the answer brief, and any cross-reply brief is due 30 days after service of the reply brief. Rule 9.210(g). Rule 9.210 prescribes the requirements for the preparation and filing of briefs, including type and size of paper, lettering, cover sheets, length, and contents (table of contents, table of citations, statement of the case and of the facts, summary of argument, argument, and conclusion). Briefs filed in paper format must not be stapled or bound. For computer-generated briefs, a certificate of compliance with font size requirements must be included. If the briefs are being submitted under the procedure set forth in Rule 9.170(c), pertaining to appendices, the appeal proceeds using appendices to the briefs, pursuant to Rule 9.220. For an extensive discussion of the preparation of an appellate brief see FLORIDA APPELLATE PRACTICE Chapter 19 (Fla. Bar 11th ed. 2020). « Ch. 14 », « § 14.9 •, « I • 1 Litigation Under FL Probate Code § 14.9.I (2022)

I. Request For Oral Argument Every case worth appealing, it has been said, should be orally argued because it is the lawyer’s golden and final opportunity to present the case to the court. Some practitioners and commentators believe the decision should be made on a case-by-case basis. As to the pros and cons of requesting oral argument, see Padovano, FLORIDA APPELLATE PRACTICE § 17.2 (Thomson/West 2021 ed.). Fla. R. App. P. 9.320 governs oral argument. Oral argument is for the benefit of the court and is discretionary with the court. The 1977 Committee Note to Rule 9.320 states in part that “[i]t is contemplated that oral argument will be granted only if the court believes its consideration of the issues raised will be enhanced.” In any event, oral argument must be requested specifically and filed in a separate document, served not later than 15 days after the last

brief is due to be served. Rule 9.320(a). Footnotes — Chapter 14: *

J.D., 1997, Chicago-Kent College of Law. Ms. Bresky is a member of The Florida Bar and the South Palm Beach, Palm Beach, and Broward County bar associations. She is admitted to practice before the United States Court of Appeals for the Eleventh Circuit and the United States Supreme Court. Ms. Bresky is a member of the Disciplinary Review Committee and Chairs the Disciplinary Procedure Committee of The Florida Bar. She is a former member of the Family Law Rules Committee and the Appellate Court Rules Committee of The Florida Bar. Ms. Bresky is past President of the Florida Association for Women Lawyers and is past President of the National Conference of Women’s Bar Associations. She serves on The Florida Bar’s Board of Governors and is the founder and President of Bresky Law, with offices in Boca Raton, West Palm Beach, and Miami, providing legal services throughout Florida.

Licensed to Otis K Pitts, Otis K Pitts

CITATION INDEX [References are to sections] FLORIDA Florida Code of Professional Responsibility Florida Constitution Florida Family Law Rules of Procedure Florida Probate Rules Florida Rules of Appellate Procedure Florida Rules of Civil Procedure Florida Rules of Criminal Procedure Florida Rules of General Practice and Judicial Administration Florida Rules of Juvenile Procedure Florida Statutes Rules Regulating the Florida Bar FEDERAL STATUTES, RULES, AND REGULATIONS United States Constitution United States Code Code of Federal Regulations Federal Rules of Civil Procedure

FLORIDA Florida Code of Professional Responsibility Canon . . . . Text Sec. DR 2-106(B) . . . . 11.2.A, 11.2.K.1.a

Florida Constitution Art.:Sec. . . . . Text Sec. I:2 . . . . 3.2.A.2.a I:9 . . . . 1.3.F.2, 2.2.A.1.b I:21 . . . . 1.3.H, 11.2.C.3.a I:22 . . . . 3.2.F.1, 10.2.A I:27 . . . . 2.2.A.7.a V . . . . 1.4.C, 11.2.C.1.c, 14.9.A V:2(a) . . . . 1.2 V:4 . . . . 14.3.A V:4(b)(1) . . . . 14.4 V:4(b)(3) . . . . 14.5.A V:5 . . . . 1.3.G.1 V:5(b) . . . . 1.4.A, 11.2.R.2, 14.8.A V:7 . . . . 7.1.A, 7.2.A, 14.1 V:7(3) . . . . 11.2.R.2 V:20(c)(3) . . . . 1.4.A, 1.4.C, 1.4.E V:20(c)(10) . . . . 7.1.A VII:6(a) . . . . 8.3.B X:4 . . . . 8.2.A, 8.2.D, 8.3.E X:4(a) . . . . 8.3.C.2, 8.3.D, 8.4.C.3 X:4(a)(1) . . . . 5.2.D.2.a, 8.4.C.2 X:4(b) . . . . 2.2.B.1, 8.3.D X:4(c) . . . . 2.2.A.7.f.ii, 2.7, 4.13, 8.2.B.2, 8.3.C.1, 8.3.C.3, 8.3.E, 8.4.A

Florida Family Law Rules of Procedure Rule . . . . Text Sec. 12.491 . . . . 14.3.E.2

Florida Probate Rules Rule . . . . Text Sec. 5.010 . . . . 1.3.A 5.020(a) . . . . 1.3.D 5.020(d) . . . . 3.2.G.6, 11.3.J, 14.3.E.2, 14.4 5.020(e) . . . . 1.3.D 5.025 . . . . 1.3.H, 1.4.E, 2.2.B.1, 3.2.D.2.a, 3.2.G.3, 4.8.B, 7.3.A, 11.2.C.2.a.i, 11.2.C.3.a, 11.3.E 5.025(a) . . . . 1.3.A, 1.3.E.6.b.i, 2.5, 7.3.D, 7.4.C, 7.5.B.12, 8.5.E, 9.4.A 5.025(d) . . . . 1.3.A, 2.5 5.025(d)(1) . . . . 1.3.H, 2.2.B.2.a, 7.3.D 5.025(d)(2) . . . . 1.3.E.2, 1.3.H, 3.2.C.3, 3.2.D.3.a, 3.2.F.3, 7.4.A, 7.4.C, 7.5.B.12, 11.2.K.1.f 5.025(d)(5) . . . . 3.2.D.1.b 5.028(b) to (c) . . . . 1.3.A 5.030(a) . . . . 14.9.C.3 5.030(b) . . . . 1.3.C 5.040 . . . . 1.3.E.1, 1.3.E.2, 1.4.D.3.b, 2.2.B.2.c, 2.2.B.2.d, 2.4, 3.2.B.6, 3.2.D.1.c.iii, 7.3.F 5.040(a) . . . . 1.3.E.5, 1.3.E.6.c, 1.4.D.3.a, 2.2.B.2.a 5.040(a)(1) . . . . 1.3.E.2, 1.3.H, 3.2.B.2.a 5.040(a)(2) . . . . 2.2.B.2.d, 3.2.B.2.a 5.040(a)(3)(A) . . . . 1.3.E.2 5.040(a)(3)(A) to (a)(3)(D) . . . . 1.3.E.5 5.040(a)(3)(B) . . . . 1.3.E.2 5.040(a)(3)(B) to (a)(3)(C) . . . . 1.3.E.2 5.040(a)(3)(C) . . . . 1.3.E.2 5.040(a)(3)(D) . . . . 1.3.E.2, 1.3.E.5

5.040(a)(3)(D)(i) to (a)(3)(D)(iii) . . . . 1.3.E.2 5.040(a)(4) . . . . 1.3.E.2, 2.2.B.2.c 5.040(a)(4)(A) . . . . 1.3.E.6.c 5.040(a)(4)(A) to (a)(4)(F) . . . . 1.3.E.2 5.040(a)(4)(D) . . . . 1.3.E.4, 1.4.D.3.b 5.040(a)(5) . . . . 1.3.E.2, 1.3.E.5, 2.2.B.2.c 5.040(a)(6) . . . . 1.3.E.2 5.040(c) . . . . 1.3.E.1, 1.3.E.3.a 5.040(d) . . . . 1.3.E.1, 1.3.E.2 5.041 . . . . 1.3.E.3.a, 1.3.E.4, 1.3.E.6.c, 2.2.B.2.c, 6.5.A, 6.5.D.1, 11.3.A 5.042 . . . . 1.3.E.2, 1.3.F.1, 1.3.F.2 5.042(a) . . . . 6.6.C 5.042(b) . . . . 1.3.F.3 5.042(b)(2) . . . . 8.2.B.2 5.042(c) . . . . 1.3.F.2 5.042(d) . . . . 1.3.E.5 5.060(a) . . . . 1.3.E.7.a 5.060(b) . . . . 1.3.E.7.a 5.065(a) . . . . 6.6.G 5.080 . . . . 1.3.A, 3.2.E.2, 7.1.B, 11.3.E 5.080(a) . . . . 1.3.I, 3.2.E.1 5.080(a)(15) . . . . 1.3.I 5.080(b) . . . . 1.3.I, 3.2.E.1, 3.2.E.2 5.080(c) . . . . 1.3.A, 1.3.I, 3.2.E.1 5.100 . . . . 1.3.J, 6.11, 9.3.L, 11.3.C, 14.3.B, 14.9.A 5.120 . . . . 2.2.B.2.a, 2.2.B.4, 8.5.D.2, 9.4.E 5.120(a) . . . . 2.2.B.2.a, 2.2.B.4, 7.3.B, 9.3.B 5.120(b) . . . . 2.2.B.2.a, 2.2.B.4 5.122 . . . . 1.3.E.6.b.iii

5.160 . . . . 9.3.A 5.170 . . . . 1.3.B, 11.3.I 5.240(a) . . . . 1.3.E.5, 1.3.E.6.b.i, 6.2.C 5.240(b)(3) . . . . 1.3.E.6.b.i 5.240(d) . . . . 1.3.E.6.b.i 5.241 . . . . 1.3.E.6.c 5.241(a) . . . . 1.3.E.5 5.260 . . . . 3.2.B.2.a, 3.2.B.6 5.260(d) . . . . 3.2.B.2.a 5.260(f) . . . . 3.2.B.2.a, 3.2.B.6 5.270 . . . . 3.2.B.1.a 5.275(b) . . . . 3.2.A.3.b, 5.3.C.5 5.310 . . . . 2.4, 11.2.C.2.c 5.320 . . . . 9.3.H 5.340 . . . . 4.3.B.5 5.341 . . . . 1.3.E.7.b 5.345 . . . . 9.4.F.1 5.350 . . . . 9.4.C.1 5.355 . . . . 11.2.Q, 11.3.B.1, 11.3.C, 11.3.F 5.360 . . . . 4.3.B.6 5.360(b)(3) . . . . 4.3.B.3 5.360(b)(4) . . . . 4.3.B.3 5.360(c)(1) . . . . 4.3.B.4 5.360(c)(2) . . . . 4.3.B.4 5.360(d)(1) . . . . 4.3.B.5 5.360(d)(2) . . . . 4.3.B.5 5.360(d)(3) . . . . 4.3.B.5 5.360(d)(4) . . . . 4.3.B.5 5.360(d)(6) . . . . 4.3.B.5

5.360(e) . . . . 4.3.B.3 5.385 . . . . 2.2.A.5 5.385(a) . . . . 2.2.B.2.a, 2.2.B.2.b 5.385(b) . . . . 2.2.B.2.a 5.400 . . . . 9.4.F.2, 11.2.M, 11.3.B.2 5.400(b) . . . . 11.2.I 5.400(b)(4) . . . . 11.2.B, 11.2.K.1.b 5.401 . . . . 3.2.C.6, 11.2.M 5.401(b) . . . . 11.3.D 5.401(d) . . . . 11.3.G 5.402(b) . . . . 3.2.B.2.a 5.404 . . . . 2.6, 8.2.E 5.404(a) to (b) . . . . 8.5.F 5.404(c) . . . . 8.5.F 5.405 . . . . 8.5.E 5.406(b) . . . . 4.4.B 5.406(c) . . . . 4.4.B 5.407 . . . . 4.5.B 5.420(b) . . . . 2.3.D 5.440 . . . . 9.3.E 5.440(a) . . . . 9.3.F, 9.3.G 5.440(b) . . . . 2.5, 9.3.M 5.440(c) . . . . 2.5, 9.3.N 5.440(d) . . . . 2.5 5.490 . . . . 1.3.E.5, 6.2.A, 6.5.D.2 5.490(a) . . . . 6.2.B.3, 6.3.A 5.496 . . . . 6.5.A, 6.5.E 5.496(a) . . . . 1.3.G.2 5.496(b) . . . . 1.3.G.2, 6.5.B

5.496(c) . . . . 1.3.G.2 5.2405 . . . . 1.3.E.6.b.ii, 4.4.B 5.2405(a) . . . . 4.3.B.3 5.2405(a)(1) to (a)(3) . . . . 1.3.E.6.b.ii 5.2405(b)(1) to (b)(3) . . . . 1.3.E.6.b.ii

Florida Rules of Appellate Procedure Rule . . . . Text Sec. 9.020(g)(2) . . . . 14.9.C.1 9.020(h) . . . . 11.3.I, 14.3.E.2 9.020(h)(2) . . . . 14.2 9.020(h)(2)(C) . . . . 3.2.G.6 9.100(c) . . . . 14.5.B 9.110 . . . . 10.5 9.110(a)(2) . . . . 14.3.B 9.110(b) . . . . 14.9.B 9.110(f) . . . . 14.9.H 9.130 . . . . 14.4, 14.5.A 9.170 . . . . 1.3.J, 4.3.B.6, 9.4.I, 14.3.B, 14.3.C, 14.3.D, 14.8.A 9.170(b) . . . . 1.3.J, 6.11, 14.3.B, 14.8.E 9.170(b)(5) . . . . 14.3.B 9.170(b)(6) . . . . 14.3.D 9.170(b)(8) . . . . 14.3.B 9.170(b)(10) . . . . 14.3.B 9.170(b)(12) . . . . 14.3.B 9.170(b)(13) . . . . 4.4.B, 4.5.B, 14.3.B 9.170(b)(16) . . . . 4.3.B.6, 14.3.B 9.170(b)(23) . . . . 11.3.J, 14.8.A 9.170(c) . . . . 14.9.E 9.200(b)(1) . . . . 14.9.F 9.200(f)(1) . . . . 14.9.G 9.210 . . . . 14.6.A 9.310 . . . . 14.9.D.1

9.310(a) . . . . 14.9.D.3, 14.9.D.4 9.310(b)(1) . . . . 14.9.D.5 9.310(f) . . . . 14.9.D.6 9.320 . . . . 14.9.I 9.360(b) . . . . 14.9.C.4 9.360(c)(4) . . . . 14.9.C.6 9.400 . . . . 11.2.R.2 9.400(b) . . . . 11.2.R.2, 11.3.K, 14.8.A 9.400(b)(1) to (b)(2) . . . . 14.8.D 9.400(c) . . . . 14.8.A

Florida Rules of Civil Procedure Rule . . . . Text Sec. 1.070 . . . . 1.4.D.2.a 1.070(a) . . . . 1.3.E.2 1.090 . . . . 1.3.F.2 1.100 . . . . 6.2.B.2 1.130 . . . . 3.2.D.3.b 1.140(b) . . . . 3.2.D.2.a 1.140(h)(2) . . . . 1.4.C 1.150(c)(5) . . . . 3.2.D.3.c 1.190(d) . . . . 6.2.B.3 1.190(e) . . . . 6.2.B.3 1.200 . . . . 3.2.F.3 1.200(b) . . . . 11.3.G 1.210(a) . . . . 12.3.A 1.260 . . . . 6.6.C 1.260(a)(2) . . . . 6.2.C 1.270 . . . . 10.3.B.1 1.330 . . . . 3.2.F.4.g 1.330(a)(3) . . . . 3.2.F.4.g 1.351 . . . . 4.3.B.6, 14.5.A 1.370 . . . . 3.2.E.1 1.390 . . . . 3.2.F.4.g 1.420(a)(1) . . . . 3.2.B.2.a, 11.2.C.3.a 1.430 . . . . 3.2.F.1 1.440 . . . . 11.3.G, 11.3.I 1.442 . . . . 11.2.C.3.b, 12.5

1.451 . . . . 1.3.I 1.500 . . . . 1.3.E.2, 2.2.B.2.d, 7.3.D 1.510 . . . . 3.2.D.3.c 1.525 . . . . 1.3.H, 3.2.C.3, 3.2.D.3.a, 3.2.G.3, 9.3.E, 11.2.K.1.f 1.530(g) . . . . 14.3.E.2 1.540 . . . . 6.6.H, 14.3.A, 14.4 1.540(a) . . . . 14.9.G 1.540(b) . . . . 3.2.B.2.a 1.710 . . . . 3.2.F.3 1.730(c) . . . . 11.2.R.2

Florida Rules of Criminal Procedure Rule . . . . Text Sec. 3.170(l) . . . . 14.3.E.2 3.800(b)(1) . . . . 14.3.E.2

Florida Rules of General Practice and Judicial Administration Rule . . . . Text Sec. 2.514(a)(1)(C) . . . . 1.3.F.1 2.514(a)(3) . . . . 1.3.F.1 2.514(a)(6) . . . . 1.3.F.1 2.514(b) . . . . 1.3.E.3.b, 1.3.E.5 2.516 . . . . 1.3.E.3.b 2.516 . . . . 1.3.E.3.c, 1.3.E.5 2.516(b) . . . . 1.3.E.3.a 2.516(b)(1) . . . . 1.3.E.3.b 2.516(b)(1)(A) . . . . 1.3.E.3.b 2.516(b)(1)(B) . . . . 1.3.E.3.b, 1.3.E.3.c 2.516(b)(1)(C) . . . . 1.3.E.3.b, 1.3.E.3.c 2.516(b)(1)(D) . . . . 1.3.E.3.b 2.516(b)(1)(D)(ii) . . . . 1.3.E.3.b 2.516(b)(2) . . . . 1.3.E.3.b, 1.3.E.3.c 2.516(b)(2)(A) to (b)(2)(D) . . . . 1.3.E.3.c 2.516(b)(2)(E) . . . . 1.3.E.3.c 2.516(f) . . . . 1.3.E.3.c

Florida Rules of Juvenile Procedure Rule . . . . Text Sec. 8.135(b) . . . . 14.3.E.2 8.530(f) . . . . 14.3.E.2

Florida Statutes Sec. . . . . Text Sec. 26.012 . . . . 1.3.G.1, 1.4.A 26.012(2)(b) . . . . 1.4.C, 11.2.C.1.c, 11.2.R.2, 14.8.A 39.6221 . . . . 14.4 45.061 . . . . 12.5 47.011 . . . . 3.3.D.1 Chapters 48–49 . . . . 1.3.E.2 Chapter 48 . . . . 2.2.B.2.c, 7.3.D 48.031 . . . . 1.3.E.4, 1.4.D.3.c 48.031(1)(a) . . . . 1.3.E.5 48.041 . . . . 1.3.E.4, 1.4.D.3.b 48.193 . . . . 3.3.F.2 Chapter 49 . . . . 2.2.B.2.c 49.011(5) . . . . 2.2.B.2.c, 7.3.D 49.011(12) . . . . 2.2.B.2.c, 7.3.D 49.021(1) . . . . 2.2.B.2.c 49.08 . . . . 2.2.B.2.a 55.03 . . . . 6.7.B, 11.2.P, 11.3.J 57.041 . . . . 11.2.C.2.a.i 57.071(2) . . . . 1.2 57.104 . . . . 11.2.C.1.b 57.105 . . . . 1.3.E.2, 11.2.C.2.b, 11.2.C.3.a, 11.2.C.3.c, 11.2.K.1.f, 11.2.R.2, 14.6.D, 14.7.A, 14.8.E 57.105(3)(b) . . . . 11.2.C.3.a 57.105(4) . . . . 11.2.C.2.b, 11.2.C.3.a 59.041 . . . . 14.7.B 59.46 . . . . 11.3.K

61.001 et seq. . . . . 2.2.A.7.d 61.075 . . . . 4.3.B.6, 5.3.C.2.a 61.075(6)(a)2 . . . . 5.3.C.2.a 61.075(6)(a)2. . . . . 5.3.C.2.a 61.075(6)(a)3 . . . . 5.3.C.2.a 61.075(6)(a)4 . . . . 5.3.C.2.a 61.075(6)(a)4. . . . . 5.3.C.3 61.079 . . . . 4.6.B 61.079(6) . . . . 4.6.B 61.079(10) . . . . 4.6.B 63.042(1) . . . . 2.2.A.2.a 63.172 . . . . 2.2.A.2.a 63.172(2) . . . . 2.2.A.2.a 63.192 . . . . 2.2.A.2.d 64.081 . . . . 11.2.C.2.a.i 65.061(1) . . . . 10.2.B 70.001(6)(a) . . . . 14.4 71.011 . . . . 3.3.B.3.b 76.151 . . . . 8.2.B.6. Chapter 86 . . . . 7.2.A, 7.3.A 86.041(3) . . . . 7.2.A Chapter 90 . . . . 1.3.B 90.104 . . . . 14.7.A 90.104(1)(b) . . . . 14.7.A 90.202–90.203 . . . . 11.2.K.1.b 90.301–90.302 . . . . 11.2.K.1.b 90.301–90.303 . . . . 11.3.I 90.301–90.304 . . . . 3.2.F.4.d, 14.6.C.3 90.301(1) . . . . 5.3.C.4

90.302(1) . . . . 5.3.C.4, 11.2.K.2.a 90.302(2) . . . . 3.2.A.3.b, 5.3.C.2.a, 5.3.C.4 90.303 . . . . 5.3.C.4, 11.2.K.1.b, 11.2.K.2.a 90.304 . . . . 5.2.D.1.b 90.502 . . . . 11.2.K.1.c 90.502(4)(a) . . . . 9.4.C.3 90.502(4)(b) . . . . 3.2.F.4.f 90.5021 . . . . 11.2.K.1.c 90.602 . . . . 3.2.A.2.c, 3.2.E.3, 3.2.F.4.c, 3.2.F.4.f 90.801–90.805 . . . . 3.2.E.3 90.803(3) . . . . 3.2.F.4.c 90.803(6) . . . . 11.3.I 90.803(9) . . . . 3.2.F.5.e 90.803(12)–(13) . . . . 2.2.B.3 90.803(19) . . . . 2.2.B.3 90.804(2)(e) . . . . 3.2.F.4.c 90.902 . . . . 3.2.D.3.c 90.902(9) . . . . 3.2.A.2.d 92.231 . . . . 11.2.O Chapter 95 . . . . 2.2.A.1.b, 3.3.G.2 95.031 . . . . 13.8 95.031(2)(a) . . . . 13.8 95.11(3) . . . . 3.2.B.2.a, 3.3.G.2 95.11(3)(b) . . . . 2.2.A.1.a, 2.2.A.1.b 95.11(3)(j) . . . . 13.8 95.11(3)(o) . . . . 3.3.G.2, 13.8 95.11(3)(p) . . . . 3.3.G.2, 13.8 95.11(4)(a) . . . . 13.8 95.11(4)(d) . . . . 12.3.D

95.11(p) . . . . 3.3.G.2 222.05 . . . . 8.2.D 222.10 . . . . 8.4.A 222.25(4) . . . . 8.3.E 319.22 . . . . 5.2.D.1.b 319.22(2)(a)1a . . . . 5.2.C.1 382.008 . . . . 3.2.F.5.e 382.008(6) . . . . 3.2.F.5.e 382.013(2)(a) . . . . 2.2.A.1.b 409.910 . . . . 12.8.C.1, 12.8.C.2, 12.8.C.5 409.910(6)(a)–(6)(b) . . . . 12.8.C.1 409.910(6)(b)3. . . . . 12.8.C.1 409.910(11)(f) . . . . 12.8.C.2, 12.8.C.3 409.910(17)(b) . . . . 12.8.C.2, 12.8.C.5 409.9101(8) . . . . 12.8.C.4 456.057(7)(a) . . . . 12.2.B 518.11 . . . . 9.4.B, 9.4.C.2 518.11(1)(c) . . . . 9.4.C.2 518.112 . . . . 9.4.C.2, 9.4.C.4 626.9543(3)(a) . . . . 2.3.C 627.4136(1) . . . . 6.3.A 627.4137 . . . . 12.2.C 627.4137(1) . . . . 12.2.C 655.78 . . . . 5.4.A.4 655.78(1) . . . . 5.4.A.2 655.79 . . . . 5.2.B.1, 5.2.C.1, 5.4.B.3.e, 5.4.B.3.f 655.79(1) . . . . 5.2.D.1.b, 5.4.B.3.e 655.80 . . . . 5.4.B.3.f, 5.4.B.3.h 655.81 . . . . 5.4.B.3.f, 5.5.A

655.81(1) . . . . 5.5.A 655.82 . . . . 5.4.B.3.f, 5.5.A, 5.6 655.82(1)(a) . . . . 5.4.B.3.f 655.82(1)(b) . . . . 5.4.B.3.f 655.82(1)(e) . . . . 5.4.B.3.f 655.82(1)(e)–(1)(f) . . . . 5.4.B.3.f 655.82(1)(f) . . . . 5.4.B.3.f 655.82(1)(h) . . . . 5.4.B.3.f 655.82(1)(h)1 . . . . 5.4.B.3.f 655.82(1)(h)1. . . . . 5.4.B.3.f 655.82(1)(h)2. . . . . 5.4.B.3.f 655.82(2) . . . . 5.4.B.3.f 655.82(3)(a) . . . . 5.4.B.3.f 655.82(3)(b) . . . . 5.4.B.3.f 655.82(4) . . . . 5.4.B.3.f 655.82(6)(c) . . . . 5.4.B.3.f 655.82(7) . . . . 5.4.B.3.f 655.82(9) . . . . 5.4.B.3.f 655.825 . . . . 5.4.B.3.f, 5.5.A 655.825(1) . . . . 5.4.B.3.f, 5.5.A 658.56 . . . . 5.4.B.3.c, 5.4.B.3.d, 5.4.B.3.e 660.41(4) . . . . 2.4 665.063 . . . . 5.4.B.3.b, 5.4.B.3.e 665.063(1)(a) . . . . 5.4.B.3.b, 5.4.B.3.c, 5.4.B.3.d 689.11 . . . . 5.2.D.2.b 689.11(1) . . . . 5.2.D.1.a, 5.2.D.2.a 689.11(1)(b) . . . . 5.2.C.2.a 689.115 . . . . 5.2.D.1.b 689.15 . . . . 5.2.B.1, 5.2.C.1, 5.2.C.2.a, 5.2.D.1.a, 5.2.D.2.b, 5.4.B.3.c,

5.4.B.3.e 689.225 . . . . 3.2.A.6.b 697.01 . . . . 5.2.D.1.b 708.09 . . . . 5.2.D.2.b 709.2201(2)(b) . . . . 5.2.D.2.b 711.50–711.512 . . . . 5.6 711.501(1) . . . . 5.6 711.501(6) . . . . 5.6 711.501(7) . . . . 5.6 711.501(9) . . . . 5.6 711.502 . . . . 5.6 711.504 . . . . 5.6 711.505 . . . . 5.6 711.506 . . . . 5.6 711.507 . . . . 5.6 711.508(1)–(2) . . . . 5.6 711.509(1) . . . . 5.6 711.51(1) . . . . 5.6 711.51(2) . . . . 5.6 711.512 . . . . 5.6 719.103 . . . . 8.2.A 719.103(25) . . . . 8.2.A Chapters 731–735 . . . . 1.2 731.07 . . . . 3.2.A.2.c 731.104 . . . . 1.3.D 731.105 . . . . 1.4.D.1 731.1055 . . . . 2.3.A 731.106(2) . . . . 3.2.B.2.b 731.107 . . . . 1.3.H

731.110 . . . . 3.2.B.2.a, 3.2.B.6 731.110(1) . . . . 3.2.B.2.a, 3.2.B.6 731.110(3) . . . . 3.2.B.2.a, 3.2.B.6 731.110(4) . . . . 3.2.B.2.a 731.201 . . . . 3.3.G.1.a, 4.13, 8.2.B.1, 12.8.C.4 731.201(2) . . . . 2.1, 11.3.A 731.201(4) . . . . 11.2.J 731.201(6) . . . . 2.1, 2.3.F 731.201(9) . . . . 2.1, 2.3.F 731.201(11) . . . . 3.2.B.2.a 731.201(18) . . . . 1.4.D.3.a, 7.3.D 731.201(20) . . . . 2.1, 2.2.B.1, 3.3.G.1.a 731.201(21) . . . . 1.4.D.3.c 731.201(23) . . . . 1.3.E.7.a, 2.3.E, 3.2.B.1.b, 3.2.D.1.c.ii, 3.3.G.1.a, 3.3.G.1.c, 7.3.B, 9.3.G, 9.4.D, 11.2.C.2.b, 11.3.A 731.201(28) . . . . 2.4 731.201(32) . . . . 4.12 731.201(33) . . . . 8.2.B.1, 11.2.B, 11.2.K.1.b 731.301 . . . . 1.4.D.2.c, 1.4.D.3.c, 1.4.E, 3.2.D.1.c.iii 731.301(1) . . . . 2.2.B.2.c, 7.3.D 731.301(1)(a)1a . . . . 1.3.E.6.c 731.301(2) . . . . 1.4.D.2.c, 1.4.D.3.a, 1.4.D.3.c, 1.4.E, 3.2.D.1.c.iii 731.302 . . . . 2.2.B.2.e, 3.2.B.2.a, 3.2.D.1.c.iii, 7.4.B.1 731.303 . . . . 1.4.E, 2.2.B.2.e, 7.3.B 731.303(1)(b)2 . . . . 11.3.A 731.303(1)(c) . . . . 2.2.B.2.e, 7.3.B, 11.3.A 731.303(3)(b) . . . . 11.3.A 731.303(4) . . . . 2.2.B.4, 7.3.B, 11.3.A Chapter 732 . . . . 4.3.B.1

732.101–732.111 . . . . 2.2.B.1, 2.3.A 732.101 . . . . 2.2.A.7.d, 2.6 732.101(1) . . . . 2.2.B.1, 2.3.A 732.101(2) . . . . 2.6 732.102 . . . . 2.2.A.7.d, 2.3.B 732.102(1) . . . . 2.3.B 732.102(2) . . . . 2.3.B 732.102(3) . . . . 2.3.B 732.102(4) . . . . 2.3.B 732.103 . . . . 2.3.C, 8.3.D 732.103(1) . . . . 2.3.C 732.103(2) . . . . 2.3.C 732.103(3) . . . . 2.3.C 732.103(4)(a) . . . . 2.3.C 732.103(4)(b) . . . . 2.3.C 732.103(4)(c) . . . . 2.3.C 732.103(5) . . . . 2.3.C 732.103(6) . . . . 2.3.C 732.104 . . . . 2.3.C 732.105 . . . . 2.2.A.4 732.106 . . . . 2.2.A.3 732.107 . . . . 2.3.C 732.108 . . . . 2.2.A.2.a, 7.5.B.7 732.108(1) . . . . 2.2.A.2.a 732.108(1)(a) . . . . 2.2.A.2.a 732.108(1)(b) . . . . 2.2.A.2.a 732.108(1)(c) . . . . 2.2.A.2.a 732.108(2) . . . . 2.2.A.1.a, 2.3.E 732.108(2)(a) . . . . 2.2.A.7.e

732.108(2)(b) . . . . 2.2.A.1.a, 2.2.A.1.b 732.108(2)(c) . . . . 2.2.A.1.a 732.1101 . . . . 2.2.A.6 732.111 . . . . 4.3.A 732.201–732.2155 . . . . 4.3.B.1 732.201 . . . . 4.3.B.1, 4.3.B.5 732.2035 . . . . 4.3.B.2 732.2035(2) . . . . 4.3.B.1 732.2045 . . . . 4.3.B.2 732.2045(1)(f) . . . . 4.13 732.2045(1)(i) . . . . 4.3.B.1 732.2055 . . . . 4.3.B.2 732.2065 . . . . 4.3.B.2 732.2075 . . . . 4.3.B.2 732.2075(1) . . . . 4.3.B.3 732.2075(1)(c) . . . . 4.13 732.2085 . . . . 4.3.B.2 732.2095 . . . . 4.3.B.2 732.2105 . . . . 4.3.B.1 732.2125 . . . . 4.3.B.3 732.2135 . . . . 3.2.D.1.c.ii 732.2135(1) . . . . 4.3.B.3 732.2135(2) . . . . 3.2.D.1.c.ii, 4.3.B.3 732.2135(3) . . . . 4.3.B.3 732.2135(4) . . . . 4.3.B.3 732.2145(1) . . . . 4.3.B.3, 4.3.B.5 732.2145(2) . . . . 4.3.B.3 732.2145(3) . . . . 4.3.B.3 732.2145(4) . . . . 4.3.B.3

732.2151 . . . . 4.3.B.6, 11.2.C.2.a.ii 732.2155 . . . . 4.3.B.1, 4.6.B 732.2155(1) . . . . 4.3.B.1 732.2155(3) . . . . 4.3.B.1, 4.6.B 732.2155(6)(c) . . . . 4.3.B.6 732.216–732.228 . . . . 4.13, 6.8.B 732.217 . . . . 4.13 732.218 . . . . 4.13 732.219 . . . . 4.13 732.221 . . . . 4.13 732.222 . . . . 4.13 732.223 . . . . 4.13 732.224 . . . . 4.13 732.225 . . . . 4.13 732.226 . . . . 4.13 732.227 . . . . 4.13 732.228 . . . . 4.13 732.301–732.302 . . . . 3.2.A.6.c 732.301 . . . . 4.8.A, 4.8.B 732.302 . . . . 2.2.A.1.b, 2.2.A.2.c, 4.9.A 732.401 . . . . 8.2.B.2, 8.3.C.2, 11.2.B, 11.2.K.1.b 732.401(1) . . . . 8.2.B.2, 8.3.C.2 732.401(5) . . . . 8.2.D 732.4015 . . . . 8.2.B.3, 8.2.B.5, 8.3.C.3, 8.3.E, 8.5.E 732.4015(1) . . . . 8.2.B.3 732.4015(3) . . . . 8.2.B.3 732.4017 . . . . 8.2.B.4, 8.3.C.1 732.402 . . . . 2.3.D, 4.4.A 732.402(1) . . . . 2.3.D

732.402(2) . . . . 2.3.D, 4.4.A 732.402(3) . . . . 2.3.D 732.402(4) . . . . 2.3.D 732.402(5) . . . . 2.3.D, 4.4.A 732.402(6) . . . . 2.3.D, 4.4.B 732.402(7) . . . . 4.4.A 732.403 . . . . 2.3.E, 4.5.A 732.501 . . . . 3.2.A.2.b, 3.2.A.3.a, 3.3.B.2.a 732.502 . . . . 3.2.A.2.a, 3.2.A.2.c, 3.2.A.2.d, 3.2.D.1.b, 3.2.D.2.c, 3.3.B.1.b, 3.3.B.3.a 732.502(1) . . . . 3.2.A.2.c 732.502(1)(c) . . . . 3.2.A.2.c 732.503 . . . . 3.2.A.2.c, 3.2.A.2.d 732.503(1) . . . . 3.2.A.2.d 732.504(1) . . . . 3.2.A.2.c 732.504(2) . . . . 3.2.A.2.c 732.505 . . . . 3.2.A.4.b 732.505(1) . . . . 3.2.A.4.a 732.505(2) . . . . 3.2.A.4.a 732.506 . . . . 3.2.A.4.b, 3.3.B.3.b 732.507 . . . . 2.2.A.7.d, 3.2.A.6.c 732.507(1) . . . . 4.8.A, 4.9.A 732.507(2) . . . . 2.2.A.7.d, 4.10 732.5105 . . . . 7.5.C.3.f 732.511 . . . . 7.5.C.3.f 732.512 . . . . 3.3.B.1.c, 13.3.C.1.c 732.512(1) . . . . 3.3.G.2, 13.3.C.1.c 732.513 . . . . 13.3.C.1.b 732.5165 . . . . 3.2.A.3.b, 3.2.A.5.a, 7.5.C.3.b

732.517 . . . . 3.2.B.4, 7.5.B.10 732.518 . . . . 3.2.A.1, 3.2.B.2.a 732.6005–732.616 . . . . 7.5.A 732.6005 . . . . 7.1.C 732.6005(1) . . . . 7.5.A, 7.5.C.2 732.601 . . . . 7.5.B.1, 7.5.B.2 732.601(1) . . . . 7.5.B.1 732.601(3) . . . . 7.5.B.1 732.601(4) . . . . 7.5.B.1 732.603 . . . . 7.5.B.2, 7.5.B.3 732.603(1) . . . . 7.5.B.2 732.603(2) . . . . 7.5.B.2 732.603(3)(b)4 . . . . 7.5.B.2 732.603(4) . . . . 7.5.B.2 732.603(b) . . . . 7.5.B.2 732.604 . . . . 2.2.A.7.d 732.604(1) . . . . 7.5.B.2, 7.5.B.3 732.604(2) . . . . 7.5.B.3 732.605 . . . . 7.5.B.4 732.605(1) . . . . 7.5.B.4 732.606 . . . . 7.5.B.5 732.606(1) . . . . 7.5.B.5 732.606(2) . . . . 7.5.B.5 732.607 . . . . 7.5.B.6 732.608 . . . . 7.5.B.7 732.609 . . . . 7.5.B.8 732.611 . . . . 7.5.B.9 732.615 . . . . 3.2.A.3.b, 3.3.B.2.c, 7.1.C, 7.5.B.12, 11.2.C.2.a.i 732.616 . . . . 7.1.C, 7.5.B.12, 11.2.C.2.a.i

732.701 . . . . 2.2.A.7.f.ii, 11.2.C.3.a 732.701(1) . . . . 2.2.A.7.f.ii, 3.2.B.1.c 732.702 . . . . 2.2.A.7.f.i, 2.2.A.7.f.ii, 4.3.B.1, 4.6.B, 4.7, 8.3.E 732.702(1) . . . . 2.2.A.7.f.ii, 2.3.E, 4.6.B 732.702(2) . . . . 2.2.A.7.f.ii, 4.6.B, 4.7 732.702(3) . . . . 4.6.B 732.7025 . . . . 2.2.A.7.f.ii, 2.7, 4.6.B, 8.3.E 732.7025(1) . . . . 2.2.A.7.f.ii, 4.6.B 732.7025(2) . . . . 2.2.A.7.f.ii, 2.7 732.703 . . . . 2.2.A.7.d, 4.10, 5.5.B 732.703(1) . . . . 4.10 732.703(2) . . . . 2.2.A.7.d, 4.10 732.703(3) . . . . 2.2.A.7.d, 4.10 732.703(4) . . . . 4.10 732.703(5) . . . . 4.10 732.703(6) . . . . 4.10 732.703(7) . . . . 4.10 732.703(9) . . . . 2.2.A.7.d 732.801 . . . . 3.2.B.3.a 732.802 . . . . 2.2.A.5, 3.2.A.6.d, 4.11, 7.5.B.2, 9.3.C 732.802(1) . . . . 4.11 732.802(1)–(4) . . . . 4.11 732.802(2) . . . . 2.2.A.5, 4.11, 5.2.C.2.b, 5.2.D.2.b 732.802(4) . . . . 2.2.A.5 732.802(5) . . . . 2.2.A.5, 3.2.A.6.d, 4.11 732.802(6) . . . . 4.11 732.803 . . . . 3.2.A.6.a 732.8031 . . . . 2.2.A.5 732.8031(2)–(3) . . . . 2.2.A.5

732.8031(4) . . . . 2.2.A.5 732.8031(7) . . . . 2.2.A.5 732.805 . . . . 2.2.A.7.g, 3.2.A.3.b, 4.2 732.805(1) . . . . 2.2.A.7.g 732.805(1)(a) . . . . 4.2 732.805(1)(b)–(1)(c) . . . . 4.2 732.805(1)(d) . . . . 4.2 732.805(2) . . . . 2.2.A.7.g, 4.2 732.805(4) . . . . 2.2.A.7.g, 4.2 732.805(5) . . . . 2.2.A.7.g, 4.2 732.805(6) . . . . 4.2 732.805(6)(a)–(6)(c) . . . . 4.2 732.805(8) . . . . 2.2.A.7.g, 4.2 732.806 . . . . 3.2.A.3.c, 3.2.B.1.b, 3.3.B.2.e 732.806(1) . . . . 3.2.A.3.c 732.806(5) . . . . 3.2.A.3.c 732.806(7)(a) . . . . 3.2.A.3.c 732.806(7)(b) . . . . 3.2.A.3.c 733.101 . . . . 1.4.B 733.101(1)(a) . . . . 1.4.B 733.101(1)(b) . . . . 1.4.B 733.102(2) . . . . 3.2.A.3.b 733.103(2) . . . . 3.2.B.1.c, 13.3.B, 13.3.D, 13.5.B, 13.5.C, 13.9 733.104(1) . . . . 1.3.F.4 733.104(2) . . . . 1.3.F.4, 6.10 733.105(1) . . . . 2.2.B.2.a 733.105(3) . . . . 2.2.B.2.b 733.1051 . . . . 7.8 733.1051(1) . . . . 7.8

733.1051(2) . . . . 7.8 733.106 . . . . 3.2.G.5.b, 7.3.C, 9.3.I, 9.4.J, 11.2.C.2.a.i, 11.2.D, 11.2.N 733.106(1) . . . . 3.2.C.3, 9.3.I, 14.6.D 733.106(2) . . . . 1.3.H, 3.2.C.3, 3.2.G.3, 11.2.C.1.a, 11.2.C.1.c, 11.2.E 733.106(3) . . . . 3.2.C.3, 3.2.G.3, 4.11, 7.7, 9.3.I, 9.4.J, 11.2.C.1.a, 11.2.C.2.a.i, 11.2.C.2.a.ii, 11.2.J, 11.2.K.1.b, 11.2.K.1.e, 11.2.K.1.f, 11.2.R.2, 11.3.E, 14.8.A 733.106(3)–(4) . . . . 3.2.C.3 733.106(4) . . . . 3.2.C.3, 7.7, 11.2.D, 11.2.K.1.f 733.106(4)(a) . . . . 11.2.D 733.1061 . . . . 3.2.A.3.b, 11.2.C.2.a.i, 11.2.D 733.1061(2) . . . . 11.2.C.2.a.i 733.107 . . . . 3.2.D.1.b, 3.2.F.4.d 733.107(1) . . . . 3.2.A.2.d, 3.2.A.3.a 733.107(2) . . . . 3.2.A.3.b, 5.3.C.5, 14.6.C.3 733.109 . . . . 2.5, 3.2.B.1.a 733.109(1) . . . . 2.5, 3.2.B.1.a, 3.2.B.1.b, 3.2.B.2.a, 3.2.C.6, 3.2.D.1.a 733.109(2) . . . . 9.3.G 733.16 . . . . 6.8.B 733.16(1) . . . . 6.2.A 733.19 . . . . 6.9 733.201(1) . . . . 3.2.A.2.d 733.201(2) . . . . 3.2.A.2.d 733.201(3) . . . . 3.2.A.2.d 733.202 . . . . 3.3.G.1.c 733.207 . . . . 3.2.A.4.b, 7.3.B 733.208 . . . . 2.5 733.212 . . . . 1.3.E.6.a, 1.3.E.6.b.i, 1.4.E, 2.4, 3.2.B.2.a, 6.2.C, 7.5.C.3.b 733.212(1) . . . . 1.3.E.6.b.i, 3.2.B.2.a 733.212(1)(c) . . . . 3.2.B.2.a

733.212(2)(c) . . . . 2.4 733.212(2)(f) . . . . 13.3.C.1.a 733.212(3) . . . . 1.3.E.6.b.i, 1.4.C, 2.4, 3.2.B.2.a, 3.2.C.6, 9.3.H, 11.2.C.3.a 733.212(4)(a) . . . . 6.2.C 733.212(8) . . . . 3.2.B.2.a 733.2121 . . . . 1.3.E.6.a, 1.3.E.6.c, 6.2.C 733.2121(3)(a) . . . . 6.2.C 733.2123 . . . . 1.3.E.6.b.iii, 2.4, 3.2.B.1.b, 3.2.B.2.a, 3.2.B.6, 7.5.C.3.b, 9.3.L, 14.3.B 733.213 . . . . 7.1.A 733.301 . . . . 2.4, 6.3.A, 6.4, 9.3.O 733.301(1) . . . . 9.2 733.301(1)(b) . . . . 9.2 733.301(1)(b)1 . . . . 4.12 733.301(1)(b)2 . . . . 4.12 733.301(1)(b)3 . . . . 4.12 733.301(3) . . . . 2.4 733.301(4) . . . . 9.2 733.301(5) . . . . 2.5, 9.2 733.302 . . . . 2.4 733.303 . . . . 2.4 733.303(1)(a) . . . . 2.4 733.303(1)(b) . . . . 2.4 733.302–733.305 . . . . 11.2.C.2.c 733.304 . . . . 2.4 733.305 . . . . 9.3.B 733.305(1) . . . . 2.4 733.308 . . . . 2.4, 3.3.G.1.a, 9.4.E 733.3101 . . . . 9.3.H, 11.2.C.2.c

733.3101(1) . . . . 2.4, 9.3.H 733.3101(2) . . . . 2.4, 11.2.C.2.c 733.3101(3) . . . . 2.4, 9.3.H, 11.2.C.2.c 733.402(1) . . . . 9.4.G 733.404 . . . . 9.4.G 733.405(1) . . . . 9.4.G 733.405(4) . . . . 2.5, 9.4.G 733.501(3) . . . . 11.2.C.1.c 733.502–733.509 . . . . 11.2.C.1.c 733.5036 . . . . 11.2.C.1.c 733.5036(2) . . . . 11.2.C.1.c 733.504 . . . . 9.3.A, 9.3.C, 9.3.D 733.504(9) . . . . 9.3.B 733.505 . . . . 9.3.F 733.506 . . . . 9.3.G 733.508 . . . . 2.5, 9.3.M, 11.2.C.1.c 733.508(2) . . . . 11.2.C.1.c 733.509 . . . . 2.5, 9.3.N, 9.3.O 733.602(1) . . . . 9.4.B, 9.4.E, 11.2.C.2.b 733.602(2) . . . . 9.4.C.3 733.603 . . . . 11.2.I 733.607 . . . . 2.6, 3.3.G.1.a, 6.4, 13.9 733.607(1) . . . . 2.6 733.607(2) . . . . 6.4, 6.6.I 733.608 . . . . 8.2.E, 11.2.C.2.a.i 733.608(1) . . . . 2.6 733.608(2) . . . . 2.6, 8.2.E 733.608(3) . . . . 2.6, 8.2.E 733.608(3)(a) . . . . 8.2.E

733.608(3)(b) . . . . 8.2.E 733.608(4) . . . . 8.2.E 733.608(5) . . . . 8.2.E 733.608(13) . . . . 8.2.E 733.609 . . . . 3.2.G.3, 9.3.I, 9.4.A, 9.4.D, 9.4.J, 11.2.C.2.a.i, 11.2.C.2.a.ii, 11.2.C.2.b, 11.2.D, 11.2.K.1.b, 11.2.K.1.e, 11.2.K.1.f, 11.2.R.2, 14.9.C.3 733.609(1) . . . . 11.2.R.2 733.609(2) . . . . 11.2.C.2.b, 11.2.D 733.610 . . . . 9.4.E 733.612 . . . . 3.2.B.2.a, 9.4.C.3 733.612(4) . . . . 9.4.B 733.612(19) . . . . 9.3.I, 9.4.C.4, 11.2.H, 11.2.K.2.b 733.612(20) . . . . 12.6 733.612(22) . . . . 9.4.C.1 733.612(25) . . . . 3.2.B.2.a 733.613(1) . . . . 14.6.C.1 733.617 . . . . 7.7, 11.2.A, 11.2.C.1.c, 11.2.E, 11.2.F, 11.2.K.1.a, 11.2.K.1.b, 11.2.K.1.d, 11.2.K.2.a, 11.2.N, 11.3.I, 11.6 733.617(1) . . . . 11.2.C.1.b, 11.2.I, 11.2.K.2.a, 11.2.K.2.b, 11.2.Q, 11.3.B.1, 11.6 733.617(2) . . . . 11.2.K.2.b 733.617(3) . . . . 7.7, 11.2.K.2.a, 11.2.K.2.b 733.617(3)(b) . . . . 7.7 733.617(3)(c) . . . . 11.2.K.2.a 733.617(4) . . . . 11.2.M 733.617(5) . . . . 11.2.F, 11.2.K.2.b 733.617(6) . . . . 3.2.C.1 733.617(7) . . . . 11.2.K.2.b 733.6171 . . . . 3.2.C.2, 3.2.C.3, 3.2.G.5.b, 11.2.A, 11.2.B, 11.2.C.1.a, 11.2.C.1.b, 11.2.C.3.a, 11.2.K.1.a, 11.2.K.1.b, 11.2.K.1.d, 11.2.K.1.f,

11.2.K.2.a, 11.2.L.1, 11.2.L.2, 11.3.I, 11.3.J, 11.6, 11.7 733.6171(1) . . . . 7.7, 11.2.C.1.a, 11.2.I, 11.2.K.1.b, 11.2.Q, 11.3.B.1 733.6171(2) . . . . 11.2.I, 11.2.K.1.b, 11.2.M 733.6171(2)(b) . . . . 11.2.K.1.b, 11.2.M, 11.3.B.1 733.6171(2)(b)(1)–(2)(b)(5) . . . . 11.2.B 733.6171(2)(b)3 . . . . 11.2.M 733.6171(2)(b)5. . . . . 11.2.A, 11.2.C.1.b, 11.2.K.1.b 733.6171(2)(b)5 . . . . 11.2.K.1.b 733.6171(2)(c) . . . . 11.2.B 733.6171(2)(d) . . . . 11.2.I 733.6171(3) . . . . 7.7, 11.2.K.1.b, 11.2.K.2.a, 11.2.K.2.b 733.6171(3)(b) . . . . 11.2.C.1.b 733.6171(4) . . . . 7.7, 11.2.C.1.b, 11.2.D, 11.2.K.1.b 733.6171(4)(a) . . . . 7.7, 11.2.E 733.6171(4)(e) . . . . 11.2.K.1.b 733.6171(4)(i) . . . . 11.2.B 733.6171(5) . . . . 3.2.C.3, 11.2.A, 11.2.K.1.b, 11.2.K.2.a, 11.2.K.2.b, 11.2.L.1 733.6171(5)(a) . . . . 11.2.K.1.a 733.6171(5)(d) . . . . 11.2.C.1.a, 11.2.E 733.6171(5)(h) . . . . 11.2.P 733.6171(5)(i) . . . . 11.2.A, 11.2.B 733.6171(6) . . . . 11.2.B, 11.2.K.1.b, 11.2.M, 11.2.O 733.6171(8) . . . . 11.2.K.1.b, 11.2.N 733.6175 . . . . 11.2.C.1.c, 11.2.I, 11.2.K.1.a, 11.2.K.1.b, 11.2.K.1.e, 11.2.M, 11.2.N, 11.2.Q, 11.3.B.1, 11.3.F, 11.3.I 733.6175(2) . . . . 1.4.C, 7.7, 11.2.K.1.b, 11.2.N 733.6175(3) . . . . 1.4.D.2.c, 11.2.K.1.b, 11.3.B.1, 11.3.F 733.6175(4) . . . . 3.2.G.3, 11.2.K.1.b, 11.2.O, 11.2.Q, 11.3.I 733.619 . . . . 9.4.A, 11.2.R.2

733.619(1) . . . . 11.2.M 733.619(4) . . . . 9.4.A 733.620 . . . . 9.4.H 733.701–733.710 . . . . 6.2.A 733.702 . . . . 3.2.B.1.c, 3.2.B.2.a, 6.2.A, 6.2.B.2, 6.2.B.3, 6.2.B.4, 6.2.C, 6.3.A, 6.3.B, 6.7.A, 6.8.B, 6.9 733.702(1) . . . . 1.3.E.3.b, 4.4.A, 6.2.A, 6.2.B.3, 6.2.C 733.702(2) . . . . 6.2.A, 6.6.H 733.702(3) . . . . 6.2.A, 6.2.B.3, 6.2.C, 6.6.H 733.702(3)(b) . . . . 6.8.A 733.702(4) . . . . 6.8.A 733.702(4)(a) . . . . 6.8.A 733.702(4)(b) . . . . 6.3.A, 6.8.A 733.702(4)(c) . . . . 6.8.A 733.702(5) . . . . 6.2.B.3, 6.3.B, 6.8.A 733.703 . . . . 6.2.B.3, 11.2.J 733.704 . . . . 6.2.B.3 733.705 . . . . 4.6.B, 4.13, 6.2.B.2, 6.5.E, 6.6.A, 11.2.C.2.a.i 733.705(1) . . . . 6.7.A, 6.7.C, 11.2.C.2.a.i 733.705(2) . . . . 1.3.G.2, 6.5.A, 6.5.C, 6.5.D.1, 6.6.H 733.705(4) . . . . 6.6.A, 6.6.H 733.705(5) . . . . 1.3.G.1, 1.3.G.2, 1.4.E, 6.6.A, 6.6.B, 6.6.C, 6.6.D.1, 6.6.E, 6.6.I, 6.9, 11.2.C.2.b 733.705(5)–(8) . . . . 6.7.A 733.705(8) . . . . 6.9 733.705(9) . . . . 6.7.B 733.705(10) . . . . 1.3.G.1, 10.3.B.5 733.705(11) . . . . 6.6.D.1 733.706–733.707 . . . . 6.9 733.706 . . . . 6.2.B.3, 6.8.A, 6.9, 14.9.D.5

733.707 . . . . 2.3.E, 6.6.I, 6.9, 9.4.E, 11.2.J, 12.7 733.707(1)(e) . . . . 4.5.A 733.707(1)(h) . . . . 6.8.A 733.707(3) . . . . 1.3.E.6.b.i, 3.3.G.1.c, 6.4, 6.6.I 733.708 . . . . 14.3.B, 14.3.D 733.710 . . . . 3.2.B.2.a, 6.2.A, 6.2.B.3, 6.2.B.4, 6.2.C, 6.3.A, 6.3.B, 6.8.A, 6.8.B, 6.9 733.710(1) . . . . 3.3.G.1.c, 6.3.A 733.710(2) . . . . 6.3.A 733.710(3) . . . . 6.3.A 733.802 . . . . 14.7.A 733.805 . . . . 4.8.A, 6.4 733.806 . . . . 2.8 733.808(4) . . . . 6.4 733.809 . . . . 1.4.D.3.c 733.812 . . . . 1.4.D.2.c, 1.4.E, 5.4.B.3.f 733.814 . . . . 11.2.C.2.a.i 733.815 . . . . 2.7, 7.1.C 733.901 . . . . 2.3.D 733.901(2) . . . . 9.4.F.2, 9.4.G 733.903 . . . . 1.4.D.2.c, 2.5, 3.2.B.2.a, 9.3.H, 9.4.F.2 734.01(1)(b) . . . . 11.2.K.2.a 734.101(1) . . . . 12.3.C 734.102 . . . . 9.4.E 734.102(1) . . . . 9.2 734.102(3) . . . . 3.2.B.2.b 734.102(4) . . . . 3.2.B.2.b 734.29 . . . . 6.8.B 735.203 . . . . 13.9

735.203(1) . . . . 13.3.A, 13.9 735.206(4)(g) . . . . 2.2.B.2.c 735.301(1) . . . . 2.3.D 735.301(2) . . . . 2.3.D 735.7025(1) . . . . 2.7 736.0102(2) . . . . 5.5.A 736.0108 . . . . 3.3.F.2 736.0108(6) . . . . 3.3.F.1 736.0109 . . . . 3.3.G.2 736.0109(3) . . . . 3.3.G.2 736.0201 . . . . 3.3.F.1 736.0201(1) . . . . 3.3.C.1 736.0201(4)(e) . . . . 3.3.G.1.b 736.0201(6) . . . . 11.3.I 736.0201(7) . . . . 8.2.B.5 736.0202 . . . . 3.3.F.1, 3.3.F.2 736.0202(1) . . . . 3.3.F.1 736.0202(2)(a) . . . . 3.3.F.1 736.0202(2)(b) . . . . 3.3.F.1 736.02025 . . . . 1.3.E.5 736.02025(3)(b) . . . . 1.3.E.5 736.0204 . . . . 3.3.D.2 736.0204(1) . . . . 3.3.D.1 736.0204(2)–(3) . . . . 3.3.D.2 736.0205 . . . . 3.3.F.1 736.0207 . . . . 3.3.B.2.a, 3.3.B.3.b, 3.3.G.2 736.0207(1) . . . . 3.3.B.2.a 736.0301–736.0306 . . . . 1.4.E 736.0403 . . . . 3.3.B.3.a

736.0403(2)(b) . . . . 3.3.B.1.b 736.0403(4) . . . . 3.3.B.1.b, 3.3.B.1.c 736.0406 . . . . 3.3.B.2.a 736.0410–736.0416 . . . . 3.3.B.2.c 736.0410–736.0417 . . . . 3.3.H.4 736.04113–736.0417 . . . . 3.3.B.2.c 736.04114 . . . . 7.8 736.04114(1) . . . . 7.8 736.04114(2) . . . . 7.8 736.0415 . . . . 3.3.B.2.c, 7.5.B.12 736.0416 . . . . 7.5.B.12 736.05053 . . . . 3.3.G.1.c, 6.4, 6.6.I 736.0602(1) . . . . 3.3.B.3.a 736.0604 . . . . 3.3.G.2 736.0604(2) . . . . 3.3.G.2 736.0708(1) . . . . 11.6 736.0802 . . . . 9.4.E 736.0802(5)(a) . . . . 9.4.C.2 736.0802(10) . . . . 3.3.H.1 736.0802(10)(b) . . . . 3.3.H.1 736.0816(15) . . . . 3.3.H.2 736.08165 . . . . 3.3.I 736.1004 . . . . 3.3.H.1, 11.2.K.1.f 736.1005 . . . . 3.3.H.1, 3.3.H.3, 11.2.D 736.1005(3) . . . . 3.3.H.3 736.1006 . . . . 3.3.H.1, 11.2.D 736.1006(1) . . . . 3.3.H.4 736.1007 . . . . 11.2.K.1.b 736.1007(4) . . . . 11.2.K.1.b

736.1008 . . . . 3.3.G.2 736.1014 . . . . 6.4 736.1104 . . . . 2.2.A.5 736.1104(3) . . . . 2.2.A.5 736.1104(3)(c) . . . . 2.2.A.5 736.1106 . . . . 7.5.B.2 736.1107 . . . . 7.5.B.4 736.1108 . . . . 3.3.G.4 736.1108(1) . . . . 4.3.B.6 736.1108(2) . . . . 3.3.G.4 736.1109 . . . . 8.2.B.5 736.1501–736.1512 . . . . 4.13 736.1512 . . . . 3.3.B.2.d 737.111 . . . . 3.3.B.1.b, 3.3.B.1.c 737.306(4) . . . . 6.4 737.3061 . . . . 6.4 737.627 . . . . 3.3.H.4, 11.2.C.2.a.i, 11.2.C.2.b, 14.6.D 738.606 . . . . 4.3.B.6 741.04 . . . . 2.2.A.7.b 741.04(1) . . . . 2.2.A.7.a, 2.2.A.7.b 741.07 . . . . 2.2.A.7.b 741.09 . . . . 2.2.A.7.b 741.10 . . . . 2.2.A.7.b 741.21 . . . . 4.2 741.211 . . . . 2.2.A.7.c, 4.2 741.212 . . . . 2.2.A.7.a, 4.2 742.011 . . . . 2.2.A.1.b 742.091 . . . . 2.2.A.1.a 742.10 . . . . 2.2.A.1.b

742.12 . . . . 2.2.A.1.b 742.12(1) . . . . 2.2.A.1.b 742.17(4) . . . . 2.2.A.3, 4.9.A 744.108(1) . . . . 11.2.N 744.108(8) . . . . 11.2.N, 11.6 744.441 . . . . 3.3.G.2 744.441(1)(k) . . . . 3.3.B.3.b 744.447 . . . . 5.2.D.2.b 744.457(1)(a)–(1)(b) . . . . 5.2.D.2.b 744.457(1)(c)–(1)(d) . . . . 5.2.D.2.b 766.106 . . . . 12.2.B 766.106(1) . . . . 12.4.C, 12.4.D 766.106(2) . . . . 12.2.B 766.106(3)(a) . . . . 12.2.B 766.106(4) . . . . 12.3.D 766.106(5) . . . . 12.2.B 766.203 . . . . 12.2.B 766.203(2) . . . . 12.2.B 766.203(3) . . . . 12.2.B 768.18(1) . . . . 12.4.A, 12.4.C, 12.4.E 768.18(2) . . . . 12.4.C 768.19 . . . . 12.4.D 768.20 . . . . 12.2.A, 12.3.A, 12.3.B 768.21 . . . . 12.4.A 768.21(1) . . . . 12.4.B, 12.4.C, 12.4.E 768.21(2) . . . . 12.3.B, 12.4.B 768.21(3) . . . . 12.4.C 768.21(4) . . . . 12.4.D 768.21(6) . . . . 12.4.B

768.21(6)(a) . . . . 12.4.F 768.21(8) . . . . 12.4.C, 12.4.D 768.25 . . . . 12.6 768.26 . . . . 12.7 768.28(9) . . . . 14.4 768.76 . . . . 12.8.D.1 768.76(4) . . . . 12.8.D.2.a 768.76(5) . . . . 12.8.D.2.e 768.76(6) . . . . 12.8.D.2.b 768.76(7) . . . . 12.8.D.2.c 768.76(8) . . . . 12.8.D.3 768.76(9) . . . . 12.8.D.2.d 768.79 . . . . 3.2.C.3, 3.2.G.3, 11.2.C.3.b, 12.5, 13.9 768.16–768.26 . . . . 4.11, 12.1 768.81 . . . . 12.3.A 772.11 . . . . 10.3.B.5, 11.2.C.2.a.i, 11.2.C.3.c 772.11(1) . . . . 11.2.C.3.c 773.607(2) . . . . 6.4 773.703(3) . . . . 6.4 782.07(2) . . . . 2.2.A.5 825.102 . . . . 2.2.A.5 825.103 . . . . 2.2.A.5, 10.3.B.5, 11.2.C.3.c 825.1035 . . . . 1.3.A, 3.2.D.1.c.iii, 7.3.D 826.01 . . . . 4.2 895.01 . . . . 8.3.D 895.05 . . . . 8.3.D 932.701 . . . . 8.3.D

Rules Regulating the Florida Bar Canon . . . . Text Sec. 4-1.5 . . . . 3.2.C.2, 11.2.K.1.b 4-1.5(a) . . . . 11.2.K.1.b, 11.6 4-1.5(b) . . . . 11.2.K.1.a, 11.2.K.2.a 4-1.5(b)(1)(A) . . . . 11.2.A 4-1.5(f)(1) . . . . 3.2.C.2 4-1.5(f)(2) . . . . 3.2.C.2 4-1.7 . . . . 11.2.H 4-1.8 . . . . 11.2.H 4-1.8(a) . . . . 11.4.A 4-1.8(c) . . . . 3.2.B.1.b 4-1.8(i) . . . . 11.4.A 4-3.7 . . . . 3.2.F.4.f, 11.2.K.1.c

FEDERAL STATUTES, RULES, AND REGULATIONS United States Constitution Amend. . . . . Text Sec. amend.5 . . . . 9.3.M amend.7 . . . . 10.2.A, 10.3.B.2, 10.3.B.3 amend.14 . . . . 3.2.A.3.c art.1:2 . . . . 3.2.A.3.c art.IV:1 . . . . 2.2.A.2.d art.X:4 . . . . 8.3.B

United States Code Title:Sec. . . . . Text Sec. 11:522(o) . . . . 5.2.D.2.a 11:522(o)–(p) . . . . 8.3.D 21:853(b) . . . . 8.3.D 26:408A . . . . 4.10 26:408(b) . . . . 4.10 26:529 . . . . 2.3.D, 4.4.A 26:642(g) . . . . 11.5 26:642(h)(2) . . . . 11.2.I 26:691(b) . . . . 11.5 26:1022 . . . . 7.8 26:2053(a) . . . . 11.5 26:2053(a)(2) . . . . 11.5 26:6321 . . . . 5.2.D.2.a 28:1332 . . . . 7.2.B 28:1391 . . . . 7.2.B 29:1001 . . . . 12.8.D.1 42:1395y . . . . 12.8.B.1 42:1395y(b)(2) . . . . 12.8.B.1 50:3901 . . . . 8.5.D.1 50:3931 . . . . 7.4.C 50:Appendix:521 . . . . 2.2.B.2.d

Code of Federal Regulations Title:Sec. . . . . Text Sec. 26:20.2053-3(c)(1) . . . . 11.5

Federal Rules of Civil Procedure Rule . . . . Text Sec. 11 . . . . 11.2.C.3.a 11(a) . . . . 7.3.A 56 . . . . 3.2.D.3.c

Licensed to Otis K Pitts, Otis K Pitts

CASE INDEX [References are to sections] A B C D E F G H I J K L M N O P Q R S T U V W X Y Z

A A-1 Truck Service, Inc. v. Kivenas, 371 So. 2d 495 (Fla. 1st DCA 1979) . . . . 12.3.E A.B., In re, 186 So. 3d 544 (Fla. 2d DCA 2015) . . . . 14.7.B A.D.A. v. D.M.F., 204 So. 3d 523 (Fla. 4th DCA 2016) . . . . 2.2.A.1.a A.S. v. S.F., 4 So. 3d 774 (Fla. 5th DCA 2009) . . . . 2.2.A.1.a Aaronson, In re Estate of, 578 So. 2d 845 (Fla. 4th DCA 1991) . . . . 4.6.B Abreu v. Amaro, 534 So. 2d 771 (Fla. 3d DCA 1988) . . . . 5.3.C.2.b ACandS, Inc. v. Redd, 703 So. 2d 492 (Fla. 3d DCA 1997) . . . . 12.3.B Adams v. Adams, 158 Fla. 173, 28 So. 2d 254 (1946) . . . . 8.2.A Adams v. Hackensack Trust Co., 156 Fla. 20, 22 So. 2d 392, 20 So. 2d 392 (1945) . . . . 6.2.B.2 Adams v. Vidal, 60 So. 2d 545 (Fla. 1952) . . . . 7.5.C.2 Aderhold v. Aderhold, 983 So. 2d 43 (Fla. 1st DCA 2008) . . . . 5.2.D.1.a, 5.2.D.2.a Adkins v. Woodfin, 525 So. 2d 447 (Fla. 4th DCA 1988) . . . . 7.1.C Adoption of (see name of party) Agee v. Brown, 73 So. 3d 882 (Fla. 4th DCA 2011) . . . . 3.2.B.1.b Agency for Health Care Administration v. Estate of Johnson, 743 So. 2d 83 (Fla. 3d DCA 1999) . . . . 6.2.A Aguilar v. Aguilar, 15 So. 3d 803 (Fla. 2d DCA 2009) . . . . 1.3.E.6.b.i, 3.2.B.2.a, 9.3.E, 9.4.A Ahlman v. Wolf, 483 So. 2d 889 (Fla. 3d DCA 1986) . . . . 3.2.A.3.b Aiello v. Hyland, 793 So. 2d 1150 (Fla. 4th DCA 2001) . . . . 9.4.E, 14.6.D Aills v. Boemi, 29 So. 3d 1105 (Fla. 2010) . . . . 14.7.A Albritton v. Ferrera, 913 So. 2d 5 (Fla. 1st DCA 2005) . . . . 11.2.C.3.a Aldrich v. Basile, 136 So. 3d 530 (Fla. 2014) . . . . 2.3.A, 7.1.C, 7.5.A, 7.5.C.2, 7.5.C.3.b Aldrich v. Estate of Aldrich, 886 So. 2d 338 (Fla. 5th DCA

2004) . . . . 14.7.A Algar, In re Estate of, 383 So. 2d 676 (Fla. 5th DCA 1980) . . . . 3.2.A.4.b, 3.2.B.1.c, 3.3.B.3.b Alkire’s Estate, In re, 144 Fla. 606, 198 So. 475 (1940) . . . . 14.6.C.2 All Children’s Hospital, Inc. v. Owens, 754 So. 2d 802 (Fla. 2d DCA 2000) . . . . 3.2.B.1.c, 3.2.B.2.a, 3.2.D.1.a, 3.3.G.1.a, 3.3.G.2, 13.1, 13.2.C.2, 13.2.D.4, 13.3.B, 13.3.C, 13.5.B, 13.5.C, 13.6, 13.8, 13.9 Allen v. Dalk, 826 So. 2d 245 (Fla. 2002) . . . . 3.2.A.2.c, 3.2.A.4.b Allen v. Estate of Dutton, 384 So. 2d 171 (Fla. 5th DCA 1980) . . . . 11.2.C.3.a, 14.8.E Allen v. Estate of Dutton, 394 So. 2d 132 (Fla. 5th DCA 1981) . . . . 1.4.A, 3.2.F.1, 9.3.K, 10.3.B.4, 10.3.B.5, 10.3.B.6, 14.6.C.3 Allen v. Estate of Hirshberg, 913 So. 2d 1249 (Fla. 1st DCA 2005) . . . . 14.3.D Allen v. Gordon, 429 So. 2d 369 (Fla. 1st DCA 1983) . . . . 5.4.A.4, 5.4.B.3.b Allen v. Leybourne, 190 So. 2d 825 (Fla. 3d DCA 1966) . . . . 13.1, 13.2.B.1, 13.2.B.2, 13.2.C.2, 13.2.D.2, 13.2.D.3, 13.7, 13.9 Allstate Insurance Co. v. Vanater, 297 So. 2d 293 (Fla. 1974) . . . . 10.4.A Alpert v. Alpert, 425 So. 2d 193 (Fla. 3d DCA 1983) . . . . 6.6.F Alvarez v. Plana, 974 So. 2d 1126 (Fla. 5th DCA 2008) . . . . 5.3.C.2.a Amendments to the Florida Rules of Appellate Procedure, In re, 183 So. 3d 245 (Fla. 2014) . . . . 14.3.E.2 Amendments to the Florida Rules of Appellate Procedure, In re, 102 So. 3d 451 (Fla. 2012) . . . . 1.3.D Amendments to the Florida Rules of Appellate Procedure, In re, 257 So. 3d 66 (Fla. 2018) . . . . 1.3.E.3.b, 3.2.B.2.a Amendments to Florida Evidence Code—Section 90.104, In re, 914 So. 2d 940 (Fla. 2005) . . . . 14.7.A Amendments to Florida Evidence Rules of Judicial Administration, In re, 126 So. 3d 222 (Fla. 2013) . . . . 1.3.E.3.b Amendments to Florida Rules of Judicial Administration, in re, 102 So. 3d 505 (Fla. 2012) . . . . 1.3.E.3.a

Amendments to Florida Probate Rules, In re, 199 So. 3d 835 (Fla. 2016) . . . . 1.3.E.5, 1.3.I, 7.3.D Amendments to Florida Probate Rules in re, 181 So. 3d 480 (Fla. 2015) . . . . 1.3.E.6.b.I Amendments to the Florida Probate Rules, In re, 95 So. 3d 114 (Fla. 2012) . . . . 11.3.I Amendments to the Florida Probate Rules—2018 Fast-Track Report, In re, 253 So. 3d 983 (Fla. 2018) . . . . 1.3.A, 7.3.D Amendments to Florida Probate Rules—2019 Regular-Cycle Report, In re, 253 So. 3d 983 (Fla. 2018) . . . . 1.3.E.2, 1.3.E.5 Amendments to Rules Regulating the Florida Bar (Biennial Petition), In re, 234 So. 3d 577 (Fla. 2017) . . . . 3.2.B.1.b Amendments to the Rules Regulating the Florida Bar—Florida Registered Paralegal Program, In re, 969 So. 2d 360 (Fla. 2007 . . . . 11.2.C.1.b Am. United Life Ins. Co. v. Barber, 2008 U.S. Dist. LEXIS 31056 (M.D. Fla. 2008) . . . . 4.11 American Airlines, Inc. v. Mejia, 766 So. 2d 305 (Fla. 4th DCA 2000) . . . . 2.2.A.7.c American Airlines, Inc. v. Montero, 741 So. 2d 587 (Fla. 3d DCA 1999) . . . . 12.4.C American & Foreign Insurance Co. v. Dimson, 645 So. 2d 45 (Fla. 4th DCA 1994) . . . . 1.3.E.6.c, 6.2.C American Central Ins. Co. of St. Louis, Mo. v. Whitlock, 122 Fla. 363, 165 So. 380 (1936) . . . . 5.2.D.1.a, 5.2.D.1.b American Red Cross v. Estate of Haynsworth, 708 So. 2d 602 (Fla. 3d DCA 1998) . . . . 3.2.A.3.a American University of Caribbean v. Tien, 26 So. 3d 56 (Fla. 3d DCA 2010) . . . . 9.3.F AmSouth Bank of Florida v. Hepner, 647 So. 2d 907 (Fla. 1st DCA 1994) . . . . 5.2.C.2.a, 5.2.D.1.b, 5.2.D.2.a, 5.2.D.2.b Anders, In re Estate of, 209 So. 2d 269 (Fla. 1st DCA 1968) . . . . 9.3.D, 9.3.G, 9.3.J, 9.4.D Anderson v. Anderson, 468 So. 2d 528 (Fla. 3d DCA 1985) . . . . 9.3.C, 9.3.I,

11.2.C.2.b Anderson v. Anderson, 577 So. 2d 658 (Fla. 1st DCA 1991) . . . . 2.2.A.7.c Anderson v. Letosky, 304 So. 3d 801 (Fla. 2d DCA 2020) . . . . 8.2.A Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986) . . . . 3.2.D.3.c Anderson v. McDonough, 189 So. 3d 266 (Fla. 2d DCA 2016) . . . . 3.2.C.3, 3.2.G.3, 11.2.C.2.b, 11.2.C.3.a Anderson v. Sun Trust Bank/North, 679 So. 2d 307 (Fla. 5th DCA 1996) . . . . 1.3.F.2 Anderson, In re Estate of, 149 So. 2d 65 (Fla. 2d DCA 1963) . . . . 2.3.E Anderson, In re Estate of, 583 So. 2d 801 (Fla. 1st DCA 1991) . . . . 9.2 Andrews v. Andrews, 155 Fla. 654, 21 So. 2d 205 (1945) . . . . 5.2.B.2 Andrews v. McGowan, 739 So. 2d 132 (Fla. 5th DCA 1999) . . . . 14.4 Angelus v. Pass, 868 So. 2d 571 (Fla. 3d DCA 2004) . . . . 2.4, 9.3.B, 9.3.H, 11.2.C.1.c Anson v. Anson, 772 So. 2d 52 (Fla. 5th DCA 2000) . . . . 5.3.C.3 Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1980) . . . . 14.9.E Archer v. Archer, 712 So. 2d 1198 (Fla. 5th DCA 1998) . . . . 5.3.C.2.a Arkansas Dept. of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S. Ct. 1752, 164 L. Ed. 2d 459 (2006) . . . . 12.8.C.2, 12.8.C.5 Arnelle v. Fisher, 647 So. 2d 1047 (Fla. 5th DCA 1994) . . . . 4.2 Aronson v. Aronson, 81 So. 3d 515 (Fla. 3d DCA 2012) . . . . 8.3.C.3 Arroyo, In re Estate of v. Infinity Indemnity Insurance Co., 211 So. 3d 240 (Fla. 3d DCA 2017) . . . . 1.3.A, 6.2.B.4, 6.8.A Arzuman v. Estate of Bin, 879 So. 2d 675 (Fla. 4th DCA 2004) . . . . 14.3.C Ashby v. Ashby, 651 So. 2d 246 (Fla. 4th DCA 1995) . . . . 14.6.B Ashwood v. Patterson, 49 So. 2d 848 (Fla. 1951) . . . . 2.2.A.5, 10.3.B.4 Astrue v. Capato ex rel. B.N.C., 566 U.S. 541, 132 S. Ct. 2021, 182 L. Ed. 2d 887 (2012) . . . . 2.2.A.3 Auto-Owners Insurance Co. v. Governor of Florida ex rel. Hall, 23 So. 3d

779 (Fla. 4th DCA 2009) . . . . 9.3.L, 14.3.B, 14.3.D Autorico, Inc. v. Government Employees Insurance Co., 398 So. 2d 485 (Fla. 3d DCA 1981) . . . . 11.2.C.3.a Axe v. Wilson, 96 P.2d 880 (1939) . . . . 13.3.B Azcunce v. Estate of Azcunce, 586 So. 2d 1216 (Fla. 3d DCA 1991) . . . . 4.9.A, 7.5.B.7, 7.5.C.3.f

B B.J.Y. v. M.A, 617 So. 2d 1061 (Fla. 1993) . . . . 10.2.A, 10.3.C Babcock v. Estate of Babcock, 995 So. 2d 1044 (Fla. 4th DCA 2008) . . . . 4.4.A Babcock v. Whatmore, 707 So. 2d 702 (Fla. 1998) . . . . 1.4.D.2.b, 1.4.D.3.c Bacon v. Marden, 518 So. 2d 925 (Fla. 3d DCA 1988) . . . . 9.4.H Bacon, Estate of v. Bacon, 573 So. 2d 1035 (Fla. 3d DCA 1991) . . . . 2.4, 14.6.B Bailey v. Smith, 89 Fla. 303, 103 So. 833 (1925) . . . . 5.2.D.1.a, 5.2.D.1.b, 5.2.D.2.a, 5.2.D.2.c Baillargeon v. Sewell, 33 So. 3d 130 (Fla. 2d DCA 2010) . . . . 6.2.A Bain v. Hill, 639 So. 2d 178 (Fla. 3d DCA 1994) . . . . 3.2.A.2.c Baird, In re Estate of, 343 So. 2d 41 (Fla. 4th DCA 1977) . . . . 3.2.A.4.b Baker, In re Estate of, 327 So. 2d 205 (Fla. 1976) . . . . 14.3.B, 14.3.C, 14.9.C.3 Baker, In re Estate of, 339 So. 2d 240 (Fla. 3d DCA 1976) . . . . 9.3.B, 9.3.O Balboni v. LaRocque, 991 So. 2d 993 (Fla. 4th DCA 2008) . . . . 3.2.A.4.b Baldwin v. Henriquez, 279 So. 3d 328 (Fla. 2d DCA 2019) . . . . 8.3.B Baldwin v. Lewis, 397 So. 2d 985 (Fla. 3d DCA 1981) . . . . 14.3.C Ball v. Ball, 160 Fla. 601, 36 So. 2d 172 (1948) . . . . 4.2 Ball v. Ball, 335 So. 2d 5 (Fla. 1976) . . . . 5.3.C.2.a Baptist Medical Center of Beaches, Inc. v. Rhodin, 40 So. 3d 112 (Fla. 1st DCA 2010) . . . . 12.2.B Barber v. Parrish, 963 So. 2d 892 (Fla. 1st DCA 2007) . . . . 2.2.A.5, 4.11 Barfield v. Schmon, 537 So. 2d 1056 (Fla. 4th DCA 1989) . . . . 12.3.C Barker v. Barker, 909 So. 2d 333 (Fla. 2d DCA 2005) . . . . 14.5.A Barker, In re Estate of, 448 So. 2d 28 (Fla. 1st DCA 1984) . . . . 3.2.A.3.b, 7.5.B.12, 7.5.C.3.h Barley v. Barcus, 877 So. 2d 42 (Fla. 5th DCA 2004) . . . . 7.1.C, 7.5.C.2,

7.6.A.1, 9.3.G, 9.4.D Barlow v. Dept. of Health & Rehabilitative Services, 512 So. 2d 1069 (Fla. 1st DCA 1987) . . . . 5.3.C.2.a, 5.3.C.3 Barnard v. Gunter, 625 So. 2d 56 (Fla. 3d DCA 1993) . . . . 5.5.B Barnett v. Barnett, 336 So. 2d 1213 (Fla. 1st DCA 1976) . . . . 2.2.A.1.a, 2.2.A.1.b Barnett v. Barnett, 424 So. 2d 896 (Fla. 1st DCA 1983) . . . . 9.4.C.2 Barnett v. Barnett, 768 So. 2d 441 (Fla. 2000) . . . . 2.2.A.7.d Barnett Bank of Palm Beach County v. Estate of Read, 493 So. 2d 447 (Fla. 1986) . . . . 6.2.B.2, 6.2.B.3, 6.5.E Barnett Banks Trust Co., N.A. v. Compson, 629 So. 2d 849 (Fla. 2d DCA 1993) . . . . 14.5.A Barnett, In re Estate of, 549 So. 2d 1166 (Fla. 4th DCA 1989) . . . . 6.2.A Barnett National Bank of Jacksonville v. Murrey, 49 So. 2d 535 (Fla. 1950) . . . . 3.2.B.3.b, 3.3.G.3 Barnhart v. Hovde, 490 So. 2d 1271 (Fla. 5th DCA 1986) . . . . 9.4.E Barret’s Estate, In re, 40 So. 2d 125 (Fla. 1949) . . . . 3.2.B.1.b Barry v. Walker, 103 Fla. 533, 137 So. 711 (1931) . . . . 3.2.B.6 Barsan v. Trinity Financial Services, LLC, 258 So. 3d 516 (Fla. 3d DCA 2018) . . . . 5.3.C.4 Barsanti, In re Estate of, 773 So. 2d 1206 (Fla. 3d DCA 2000) . . . . 14.6.D Barteau, In re Estate of, 736 So. 2d 57 (Fla. 2d DCA 1999) . . . . 3.2.B.2.b, 7.5.C.3.a Bartelt v. Bartelt, 579 So. 2d 282 (Fla. 3d DCA 1991) . . . . 8.3.D Bartkowiak, In re Estate of, 645 So. 2d 1082 (Fla. 3d DCA 1994) . . . . 14.3.C Barton, In re Estate of, 631 So. 2d 315 (Fla. 2d DCA 1994) . . . . 12.6 Bauer v. Reese, 161 So. 2d 678 (Fla. 1st DCA 1964) . . . . 2.2.A.7.d Baum v. Heiman, 528 So. 2d 63 (Fla. 3d DCA 1988) . . . . 14.9.C.1 Baumann v. Estate of Blum, 898 So. 2d 1106 (Fla. 2d DCA 2005) . . . . 11.2.C.1.a, 11.2.K.1.b, 11.2.O Baumer v. Howard, 542 So. 2d 400 (Fla. 1st DCA 1989) . . . . 7.7

Beacher, In re Estate of, 177 So. 2d 838 (Fla. 3d DCA 1965) . . . . 14.6.C.1 Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001) . . . . 5.2.B.1, 5.2.B.2, 5.2.C.1, 5.2.C.2.a, 5.2.C.2.c, 5.2.D.1.a, 5.2.D.1.b, 5.2.D.2.a, 5.2.D.2.b, 5.2.D.3.c, 5.3.C.2.a, 5.4.A.3, 5.4.A.4, 5.4.B.3.c, 5.4.B.3.e, 5.4.B.3.g Beane v. SunTrust Banks, Inc., 47 So. 3d 922 (Fla. 4th DCA 2010) . . . . 5.5.A Bechtel v. Estate of Bechtel, 330 So. 2d 217 (Fla. 2d DCA 1976) . . . . 5.2.C.1, 5.2.D.1.b Beck v. Barnett National Bank of Jacksonville, 117 So. 2d 45 (Fla. 1st DCA 1960) . . . . 10.3.B.1, 10.3.B.2, 10.3.B.5, 10.3.C Beck v. Beck, 383 So. 2d 268 (Fla. 3d DCA 1980) . . . . 9.4.C.1, 9.4.F.2, 9.4.H, 11.3.F, 14.1, 14.6.C.4 Bedingfield v. Bedingfield, 417 So. 2d 1047 (Fla. 4th DCA 1982) . . . . 1.4.B Beeman, In re Estate of, 391 So. 2d 276 (Fla. 4th DCA 1980) . . . . 11.3.I, 14.1, 14.3.C, 14.3.E.2 Belanger v. The Salvation Army, 556 F.3d 1153 (11th Cir. 2009) . . . . 5.4.B.3.f Bell v. Harris, 366 So. 2d 765 (Fla. 1st DCA 1978) . . . . 6.6.E, 6.6.D.2, 14.6.D, 14.9.B Bellows, In re, 480 N.Y.S.2d 925, 103 A.D.2d 594 (App. Div. 1984) . . . . 7.5.C.3.e Bellows, In re Estate of, 483 N.E.2d 130, 65 N.Y.2d 906, 493 N.Y.S.2d 455 . . . . 7.5.C.3.e BellSouth Telecomms., Inc. v. Meeks, 863 So. 2d 287 (Fla. 2003) . . . . 12.4.C Beltran v. Kalb, 63 So. 3d 783 (Fla. 3d DCA 2011) . . . . 8.3.D Benac v. Bree, 590 So. 2d 536 (Fla. 2d DCA 1991) . . . . 2.2.A.1.b Bendl v. Bendl, 246 So. 2d 574 (Fla. 3d DCA 1971) . . . . 5.2.D.2.c Benedetto v. Columbia Park Healthcare Systems, 922 So. 2d 416 (Fla. 5th DCA 2006) . . . . 14.9.C.3 Benedict v. Smith, 376 A.2d 774 (Conn. Super. Ct. 1977) . . . . 13.3.B

Bennett v. Bennett, 157 Fla. 627, 26 So. 2d 650 (1946) . . . . 4.2 Bennett v. Berges, 50 So. 3d 1154 (Fla. 4th DCA 2010) . . . . 3.2.C.3, 11.2.D Benson, In re Estate of, 548 So. 2d 775 (Fla. 2d DCA 1989) . . . . 2.2.A.5, 4.11, 7.5.B.9 Bentley, In re Guardianship of, 342 So. 2d 1045 (Fla. 4th DCA 1977) . . . . 1.3.G.1, 1.4.C Benyard v. Wainwright, 322 So. 2d 473 (Fla. 1975) . . . . 11.6 Berg v. New York Life Insurance Co., 88 So. 2d 915 (Fla. 1956) . . . . 7.2.C, 10.4.A Berger v. Brooks, 657 So. 2d 1281 (Fla. 3d DA 1995) . . . . 11.2.M Bergman v. Kaplan, 922 So. 2d 982 (Fla. 4th DCA 2005) . . . . 14.5.A Bergman v. Serns, 560 So. 2d 1201 (Fla. 3d DCA 1990) . . . . 13.3.D Berlin v. Pecora, 968 So. 2d 47 (Fla. 4th DCA 2007) . . . . 5.2.D.1.b, 5.4.A.2 Berlinger v. Wells Fargo, N.A., 2015 U.S. 141111 (M.D. Fla. 2015) . . . . 9.4.C.2 Berlinger v. Wells Fargo, N.A., 2016 U.S. Dist. LEXIS 23158 (M.D. Fla. 2016) . . . . 9.4.D Bermudez y Santos v. Bermudez y Santos, 773 So. 2d 568 (Fla. 3d DCA 2000) . . . . 5.2.D.1.a Bernheim v. Broberg, 973 So. 2d 1284 (Fla. 4th DCA 2008) . . . . 14.5.A Beseau v. Bhalani, 904 So. 2d 641 (Fla. 5th DCA 2005) . . . . 11.2.C.2.a.i, 11.2.C.3.b, 11.2.J Bessemer Properties v. Gamble, 158 Fla. 38, 27 So. 2d 832 (1946) . . . . 8.2.D Betancourt v. Estate of Misdraji, 13 So. 3d 489 (Fla. 3d DCA 2009) . . . . 9.4.F.2 Biederman v. Cheatham, 161 So. 2d 538 (Fla. 2d DCA 1964) . . . . 14.3.C, 14.3.D Bierman, In re Estate of, 587 So. 2d 1163 (Fla. 4th DCA 1991) . . . . 9.3.L, 14.3.C, 14.3.D Binkow, In re Estate of, 120 So. 2d 15, 80 A.L.R. 2d 1100 (Fla. 3d DCA 1960) . . . . 7.5.C.3.a Bischoff v. Rodriguez, 572 So. 2d 948 (Fla. 2d DCA 1991) . . . . 14.9.C.1

Bishop v. Estate of Rossi, 114 So. 3d 235 (Fla. 5th DCA 2013) . . . . 11.2.K.1.b, 11.2.K.1.e, 11.3.I Bissmeyer v. Southeast Bank, N.A., 596 So. 2d 678 (Fla. 2d DCA 1991) . . . . 14.8.A Bitetzakis v. Bitetzakis, 264 So. 3d 297 (Fla. 2d DCA 2019) . . . . 3.2.A.2.c, 14.3.B Bitterman v. Bitterman, 685 So. 2d 861 (Fla. DCA 1997) . . . . 9.3.I, 14.6.D Bitterman v. Bitterman, 714 So. 2d 356 (Fla. 1998) . . . . 4.5.A, 11.2.C.3.a, 11.2.K.1.d, 11.2.N, 14.8.E Black v. Brammer, 440 So. 2d 24 (Fla. 4th DCA 1983) . . . . 6.6.D.2 Black v. Walker, 140 Fla. 48, 191 So. 25 (1939) . . . . 6.2.A Black, In re Estate of, 528 So. 2d 1316 (Fla. 2d DCA 1988) . . . . 1.4.E, 3.3.E.2, 14.4 Blackburn v. Boulis, 184 So. 3d 565 (Fla. 4th DCA 2016) . . . . 14.3.B, 14.6.D Blakey, In re Estate of, 363 So. 2d 630 (Fla. 3d DCA 1978) . . . . 14.6.C.2 Blankenship, In re Estate of, 122 So. 2d 466 (Fla. 1960) . . . . 3.2.A.2.a Blatt v. Green, Rose, Kahn & Piotrkowski, 456 So. 2d 949 (Fla. 3d DCA 1984) . . . . 2.7 Blechman v. Dely, 138 So. 3d 1110 (Fla. 4th DCA 2014) . . . . 9.3.E Blinn v. Carlman, 159 So. 3d 390 (Fla. 4th DCA 2015) . . . . 3.2.A.3.b Blitch v. Blitch, 341 So. 2d 251 (Fla. 1st DCA 1976) . . . . 2.2.A.1.b Blits v. Blits, 468 So. 2d 320 (Fla. 3d DCA 1985) . . . . 3.2.A.2.d Bloom, In re Guardianship of, 227 So. 3d 165 (Fla. 2d DCA 2017) . . . . 3.3.H.3, 14.3.B, 14.8.A Blue Infiniti, LLC v. Wilson, 170 So. 3d 136 (Fla. 4th DCA 2015) . . . . 11.2.C.3.a Bock v. Diener, 571 So. 2d 30 (Fla. 3d DCA 1990) . . . . 11.2.C.1.a Bonney v. Bonney, 94 So. 3d 702 (Fla. 4th DCA 2012) . . . . 3.2.G.3, 9.3.I Bookman v. Davidson, 136 So. 3d 1276 (Fla. 1st DCA 2014) . . . . 1.4.C, 9.3.O, 9.4.K, 11.2.C.1.c

Booth v. Mary Carter Paint Co., 202 So. 2d 8 (Fla. 2d DCA 1967) . . . . 11.2.K.1.f Booth, State ex rel. v. Byington, 168 So. 2d 164 (Fla. 1st DCA 1964) . . . . 9.3.G Booth, State ex rel. v. Byington, 178 So. 2d 1 . . . . 9.3.G Borck v. Borck, 906 So. 2d 1209 (Fla. 4th DCA 2005) . . . . 14.5.A Borden v. Guardianship of Borden-Moore, 818 So. 2d 604 (Fla. 5th DCA 2002) . . . . 1.3.F.2 Boren v. Suntrust Bank, 46 So. 3d 1156 (Fla. 2d DCA 2010) . . . . 8.3.D Bosch, Estate of; Commissioner v., 387 U.S. 456, 87 S. Ct. 1776, 18 L. Ed. 2d 886 (1967) . . . . 7.1.C, 11.5 Bosonetto, In re, 271 B.R. 403 (Bankr. M.D. Fla. 2001) . . . . 8.3.D Bove v. Naples HMA, LLC, 196 So. 3d 411 (Fla. 2d DCA 2016) . . . . 12.3.D Bovee, In re Estate of, 626 So. 2d 1096 (Fla. 1st DCA 1993) . . . . 7.5.B.3 Bowdoin v. Rinnier, 81 So. 3d 582 (Fla. 2d DCA 2012) . . . . 2.4, 9.2 Boyce v. Hort, 666 So. 2d 972 (Fla. 5th DCA 1996) . . . . 10.3.B.6, 10.3.C Boyd v. Gosser, 78 Fla. 64, 82 So. 758, 6 A.L.R. 500 (1919) . . . . 3.2.F.4.b Boyle v. Schmitt, 578 So. 2d 367 (Fla. 3d DCA 1991) . . . . 3.2.B.1.c Boyle v. Schmitt, 602 So. 2d 665 (Fla. 3d DCA 1992) . . . . 3.2.B.1.c Boyles v. Jimenez, 330 So. 3d 953 (Fla. 4th DCA 2021) . . . . 2.4 Brackett, In re Estate of, 109 So. 2d 375 (Fla. 2d DCA 1959) . . . . 14.6.C.4 Bradley v. Sebelius, 621 F.3d 1330 (11th Cir. 2010) . . . . 12.8.B.3, 12.8.C.5, 12.8.D.1, 12.8.D.2.e Brake v. Murphy, 636 So. 2d 72 (Fla. 3d DCA 1994) . . . . 9.4.C.3 Brake v. Murphy, 693 So. 2d 663 (Fla. 3d DCA 1997) . . . . 9.4.C.3 Brake v. Murphy, 736 So. 2d 745 (Fla. 3d DCA 1999) . . . . 11.2.G, 11.2.L.2, 11.3.I Brake v. Murphy, 749 So. 2d 1278 (Fla. 3d DCA 2000) . . . . 9.4.J Brake v. State, Unemployment Appeals Commission, 473 So. 2d 774 (Fla. 3d DCA 1985) . . . . 3.3.G.2 Brake v. Swan, 767 So. 2d 500 (Fla. 3d DCA 2000) . . . . 14.3.C, 14.3.D

Branch Banking & Trust Co. v. Ark Development/Oceanview, LLC, 150 So. 3d 817 (Fla. 4th DCA 2014) . . . . 5.3.C.2.a Branch Banking & Trust Co. v. Maxwell, 2012 U.S. Dist. LEXIS 132104 (M.D. Fla. 2012) . . . . 5.2.C.2.a Brand v. Old Republic National Title Insurance Co., 797 So. 2d 643 (Fla. 3d DCA 2001) . . . . 5.4.A.4 Brandle’s Estate, In re, 65 So. 2d 27 (Fla. 1953) . . . . 5.2.C.1, 5.4.B.2 Brandt, In re Estate of, 613 So. 2d 1365 (Fla. 1st DCA 1993) . . . . 14.6.D Brasch v. Brasch, 109 So. 2d 584 (Fla. 3d DCA 1959) . . . . 1.4.D.2.b Breausche v. Prough, 592 So. 2d 1211 (Fla. 2d DCA 1992) . . . . 8.3.C.2 Breedlove v. Estate of Breedlove, 586 So. 2d 466 (Fla. 1st DCA 1991) . . . . 2.2.A.1.a, 2.2.A.1.b Brenner v. Scott, 2016 U.S. Dist. LEXIS 91969 (N.D. Fla. 2016) . . . . 2.2.A.7.a, 2.2.A.7.b Bridges, In re Estate of, 282 So. 2d 197 (Fla. 1st DCA 1973) . . . . 9.4.C.1, 9.4.J, 14.8.B Bridgeview Bank Group v. Callaghan, 84 So. 3d 1154 (Fla. 4th DCA 2012) . . . . 5.2.D.1.a, 5.2.D.1.b Brigham v. Brigham, 11 So. 3d 374 (Fla. 3d DCA 2009) . . . . 9.4.E Brindle v. Brindle, 994 So. 2d 1174 (Fla. 3d DCA 2008) . . . . 1.4.D.1, 1.4.D.2.b Brock v. Brock, 667 So. 2d 310 (Fla. 1st DCA 1995) . . . . 14.4, 14.6.D Brock, Estate of, 692 So. 2d 907 (Fla. 1st DCA 1996) . . . . 14.6.C.3 Brock, Estate of, 695 So. 2d 714 (Fla. 1st DCA 1996) . . . . 3.2.C.3, 3.2.G.3, 11.3.I Brodfuehrer v. Estate of Brodfuehrer, 833 So. 2d 784 (Fla. 3d DCA 2002) . . . . 14.6.D Brown v. Brown, 149 So. 3d 108 (Fla. 1st DCA 2014) . . . . 5.4.B.3.f Brown v. Hanger, 368 So. 2d 63 (Fla. 3d DCA 1979) . . . . 5.2.D.2.a, 5.4.A.4 Brown v. Sweat, 149 Fla. 524, 6 So. 2d 538 (1942) . . . . 6.9 Brown, In re Estate of, 310 So. 3d 1131 (Fla. 2d DCA 2021) . . . . 3.2.B.2.a

Brown, In re Estate of, 421 So. 2d 752 (Fla. 4th DCA 1982) . . . . 6.6.E Browning v. Browning, 784 So. 2d 1145 (Fla. 2d DCA 2001) . . . . 5.4.A.4 Broxton, In re Estate of, 425 So. 2d 23 (Fla. 4th DCA 1983) . . . . 2.2.A.1.b Brundage v. Bank of America, 996 So. 2d 877 (Fla. 4th DCA 2008) . . . . 7.5.B.4 Brunson v. McKay, 905 So. 2d 1058 (Fla. 2d DCA 2005) . . . . 12.6, 14.3.C Bryan v. Dethlefs, 959 So. 2d 314 (Fla. 3d DCA 2007) . . . . 7.5.C.2, 7.5.C.3.c Bryan v. Fernald, 211 So. 3d 333 (Fla. 2d DCA 2017) . . . . 14.3.B Bryant v. Small, 271 So. 2d 808 (Fla. 3d DCA 1973) . . . . 10.3.B.1 Buchman, In re Estate of, 270 So. 2d 384 (Fla. 3d DCA 1972) . . . . 11.2.M Buckman v. State ex rel. Spencer, 34 Fla. 48, 15 So. 697 (1894) . . . . 10.2.A, 10.3.A Budny, In re Estate of, 815 So. 2d 781 (Fla. 2d DCA 2002) . . . . 7.5.B.5, 7.5.C.2, 7.6.A.1 Buettner v. Cellular One, Inc., 700 So. 2d 48 (Fla. 1st DCA 1997) . . . . 6.3.A Bullard v. Sharp, 407 So. 2d 1023 (Fla. 4th DCA 1981) . . . . 14.5.A Burke v. Burke, 447 So. 2d 944 (Fla. 3d DCA 1984) . . . . 2.2.A.7.c Burke v. Coons, 136 So. 2d 235 (Fla. 2d DCA 1962) . . . . 5.2.D.1.b, 5.3.C.1 Bush, In re Estate of, 80 So. 2d 673 (Fla. 1955) . . . . 9.3.O Butler, In re Estate of, 189 So. 3d 1050 (Fla. 4th DCA 2016) . . . . 2.4 Butterworth v. Caggiano, 605 So. 2d 56, 16 A.L.R. 5th 1118 (Fla. 1992) . . . . 8.3.D Byers v. Byers, 254 F.2d 205 (5th Cir. 1958) . . . . 7.2.B

C C.G. v. J.R., 130 So. 3d 776 (Fla. 2d DCA 2014) . . . . 2.2.A.1.b Cacciatore v. Fisherman’s Wharf Realty Limited Partnership, 821 So. 2d 1251 (Fla. 4th DCA 2002) . . . . 5.2.D.1.b Cadden, Estate of v. Schickedanz, 855 So. 2d 651 (Fla. 4th DCA 2003) . . . . 6.7.C, 6.10, 11.2.C.2.a.i Cadgene, In re Estate of, 938 So. 2d 581 (Fla. 2d DCA 2006) . . . . 6.5.A Cain v. Cain, 549 So. 2d 1161 (Fla. 4th DCA 1989) . . . . 8.4.A Calderon v. Springs Landscape & Maintenance, Inc., 2018 WL 5098976 (S.D. Fla. 2018) . . . . 3.2.H.2 Callava v. Feinberg, 864 So. 2d 429 (Fla. 3d DCA 2004) . . . . 8.3.D Campbell v. Campbell, 489 So. 2d 774 (Fla. 3d DCA 1986) . . . . 7.5.C.2, 7.6.A.1, 7.6.A.3 Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980) . . . . 6.2.C, 14.6.D Cantero v. Caswell, 305 So. 3d 37 (Fla. 3d DCA 2019) . . . . 6.2.A Capo v. Estate of Borges, 560 So. 2d 254 (Fla. 3d DCA 1990) . . . . 2.2.A.7.a Capoccia v. Capoccia, 505 So. 2d 624 (Fla. 3d DCA 1987) . . . . 2.2.A.5, 4.11, 5.2.C.2.b Capone v. Philip Morris USA, Inc., 116 So. 3d 363 (Fla. 2013) . . . . 12.3.B Caputo v. Nouskhajian, 871 So. 2d 266 (Fla. 5th DCA 2004) . . . . 5.4.B.3.c Cardini, In re Estate of, 305 So. 2d 71 (Fla. 3d DCA 1975) . . . . 5.2.D.1.b Cari v. Erickson, 394 So. 2d 1022 (Fla. 4th DCA 1981) . . . . 7.7, 11.2.R.2, 14.8.A Carlton v. Carlton, 578 So. 2d 820 (Fla. 2d DCA 1991) . . . . 6.7.A Carlton, In re Estate of, 348 So. 2d 896 (Fla. 4th DCA 1977) . . . . 2.2.A.2.a Carman v. Gilbert, 615 So. 2d 701 (Fla. 2d DCA 1993) . . . . 9.3.I, 11.2.C.2.a.i, 11.2.K.1.f Carman v. Gilbert, 641 So. 2d 1323 (Fla. 1994) . . . . 3.2.B.3.a, 3.2.B.3.b, 7.7 Carnegie’s Estate, In re, 153 Fla. 7, 13 So. 2d 299 (1943) . . . . 3.2.A.3.a

Carpenter, In re Estate of, 253 So. 2d 697 (Fla. 1971) . . . . 3.2.A.3.b, 5.3.C.4, 5.3.C.5, 11.2.C.3.a, 14.6.C.3 Carratt v. Humphreys, 279 So. 2d 895 (Fla. 4th DCA 1973) . . . . 6.9 Carraway v. Carraway, 883 So. 2d 834 (Fla. 1st DCA 2004) . . . . 9.4.F.2, 14.5.A Carretta v. Carretta, 58 So. 2d 439 (Fla. 1952) . . . . 2.2.A.7.c Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So. 3d 1240 (Fla. 1st DCA 2012) . . . . 11.2.R.2, 14.3.B, 14.8.A Carroll v. Israelson, 169 So. 3d 239 (Fla. 4th DCA 2015) . . . . 4.10 Carter v. Carter, 88 So. 2d 153 (Fla. 1956) . . . . 10.3.B.4 Cartinhour v. Houser, 66 So. 2d 686 (Fla. 1953) . . . . 7.5.C.3.c Carver v. Moody, 780 So. 2d 934 (Fla. 1st DCA 2001) . . . . 14.9.D.1 Casey-Goldsmith v. Goldsmith, 735 So. 2d 610 (Fla. 5th DCA 1999) . . . . 14.5.B Castetter v. Henderson, 113 So. 3d 153 (Fla. 5th DCA 2013) . . . . 2.2.A.7.c Castranova v. Auth, 590 So. 2d 28 (Fla. 5th DCA 1991) . . . . 11.3.I Catapane, In re Estate of, 759 So. 2d 9 (Fla. 4th DCA 2000) . . . . 12.7 Cates v. Cmty. Bank & Trust of Fla., 277 So. 3d 1095 (Fla. 5th DCA 2019) . . . . 9.4.D Cates v. Fricker, 529 So. 2d 1253 (Fla. 2d DCA 1988) . . . . 3.2.B.1.a, 3.2.B.1.b, 3.2.D.1.b, 3.3.G.1.b, 3.3.G.2 Cattaneo v. Cattaneo, 803 So. 2d 889 (Fla. 5th DCA 2002) . . . . 5.3.C.2.a, 5.3.C.3 Cavanaugh v. Cavanaugh, 542 So. 2d 1345 (Fla. 1st DCA 1989) . . . . 8.5.B.1 Centex-Rooney Construction Co. v. Martin County, 725 So. 2d 1255 (Fla. 4th DCA 1999) . . . . 11.2.G, 11.3.I Cerny v. Cerny, 152 Fla. 333, 11 So. 2d 777 (1943) . . . . 5.2.C.1, 5.2.C.2.c Cerrito v. Kovitch, 457 So. 2d 1021 (Fla. 1984) . . . . 10.2.B, 10.3.B.1, 10.3.B.4, 10.3.C Cessac v. Stevens, 127 So. 3d 675 (Fla. 1st DCA 2013) . . . . 7.5.B.6, 14.3.B Chames v. DeMayo, 972 So. 2d 850 (Fla. 2007) . . . . 2.2.A.7.f.ii, 8.3.E

Chandler v. Cheney, 37 Ind. 391 (1871) . . . . 5.2.D.2.a Chapman v. Campbell, 119 So. 2d 61 (Fla. 2d DCA 1960) . . . . 3.2.A.3.a Chase v. Bowen, 771 So. 2d 1181 (Fla. 5th DCA 2000) . . . . 13.2.A, 13.2.B.2, 13.2.C.1, 13.2.C.2, 13.9 Chase Federal Savings & Loan Ass’n v. Sullivan, 127 So. 2d 112 (Fla. 1961) . . . . 5.3.B.1, 5.3.B.2, 5.4.B.2 Chase Manhattan Bank, Matter of, 809 N.Y.S.2d 360 (App. Div. 4th Dept. 2006) . . . . 9.4.C.2, 9.4.H Cheek v. McGowan Electric Supply Co., 511 So. 2d 977 (Fla. 1987) . . . . 10.3.B.6 Chenery v. Crans, 497 So. 2d 267 (Fla. 2d DCA 1986) . . . . 10.3.B.6, 10.3.C Chin v. Estate of Chin, 15 So. 3d 894 (Fla. 3d DCA 2009) . . . . 7.6.B Christensen v. Bowen, 140 So. 3d 498 (Fla. 2014) . . . . 5.2.C.1, 5.2.C.2.a Chue v. Lehman, 21 So. 3d 890 (Fla. 4th DCA 2009) . . . . 11.2.C.3.a Ciaramello v. D’Ambra, 613 So. 2d 1324 (Fla. 2d DCA 1991) . . . . 11.2.C.3.c Ciccorella, In re Estate of, 407 So. 2d 1044 (Fla. 3d DCA 1981) . . . . 7.2.C, 10.3.B.6 Cinghina v. Racik, 647 So. 2d 289 (Fla. 4th DCA 1994) . . . . 12.3.A, 12.4.E Cintron v. King, 961 So. 2d 1010 (Fla. 4th DCA 2007) . . . . 5.3.C.2.a Cioeta v. Estate of Linet, 850 So. 2d 562 (Fla. 4th DCA 2003) . . . . 3.2.A.4.b City National Bank of Florida v. Tescher, 578 So. 2d 701 (Fla. 1991) . . . . 2.2.A.7.f.ii, 8.3.E City of (see name of city) Clampitt v. Wick, 320 So. 3d 826 (Fla. 2d DCA 2021) . . . . 5.2.D.1.a, 5.2.D.2.b Clarification of Florida Rules of Practice & Procedure, In re, 281 So. 2d 204 (Fla. 1973) . . . . 1.2 Clark v. Fullerton, 130 Fla. 150, 177 So. 851 (1937) . . . . 6.8.A Clark v. Squire, Sanders & Dempsey, 495 So. 2d 264 (Fla. 3d DCA 1986) . . . . 11.3.I

Claughton v. Claughton, 483 So. 2d 447 (Fla. 3d DCA 1986) . . . . 5.3.C.3 Claveloux v. Bacotti, 778 So. 2d 399 (Fla. 2d DCA 2001) . . . . 13.2.A, 13.2.C.1, 13.2.D.3, 13.2.D.4, 13.5.B, 13.6, 13.8, 13.9 Cleeves, In re Estate of, 509 So. 2d 1256 (Fla. 2d DCA 1987) . . . . 8.3.C.3, 8.3.E Clement, In re Estate of, 568 So. 2d 1297 (Fla. 2d DCA 1990) . . . . 5.4.B.3.b Clemons v. Thornton, 993 So. 2d 1054 (Fla. 1st DCA 2008) . . . . 5.2.D.1.a, 8.3.C.1 Clibbon, In re Estate of, 735 So. 2d 487 (Fla. 4th DCA 1998) . . . . 9.4.F.2 Clifton v. Clifton, 553 So. 2d 192 (Fla. 5th DCA 1989) . . . . 2.7 Cloer v. Shawver, 177 So. 2d 691 (Fla. 1st DCA 1965) . . . . 6.6.H Cody v. Cody, 127 So. 3d 753 (Fla. 1st DCA 2013) . . . . 7.1.A, 7.5.A, 7.5.C.2, 14.3.B Cohen v. Cohen, 567 So. 2d 1015 (Fla. 3d DCA 1990) . . . . 2.2.A.5, 4.11 Cohen v. Cohen, 847 So. 2d 1137 (Fla. 4th DCA 2003) . . . . 13.3.B, 13.9 Cohen v. Dauphinee, 739 So. 2d 68 (Fla. 1999) . . . . 12.2.B Cohen v. Majestic Distilling Co., 765 So. 2d 276 (Fla. 4th DCA 2000) . . . . 6.5.D.2, 14.6.D Cohen v. Schwartz, 538 So. 2d 922 (Fla. 3d DCA 1989) . . . . 9.3.F Cohen v. Shushan, 212 So. 3d 1113 (Fla. 2d DCA 2017) . . . . 2.3.B Columbia Bank v. Turbeville, 143 So. 3d 964 (Fla. 1st DCA 2014) . . . . 5.4.A.2, 5.4.A.4 Combee, In re Estate of, 583 So. 2d 708 (Fla. 2d DCA 1991) . . . . 5.4.B.2, 5.4.B.3.a, 5.4.B.3.b, 5.4.B.3.c Combee, In re Estate of, 601 So. 2d 1165 (Fla. 1992) . . . . 5.4.B.3.c, 5.4.B.3.e, 9.3.B Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So. 2d 163 (Fla. 4th DCA 1996) . . . . 3.2.B.2.a, 6.2.B.3 Commissioner v. (see name of defendant) Compagnoni v. Compagnoni, 591 So. 2d 1080 (Fla. 3d DCA 1992) . . . . 2.2.A.7.c

Compton v. West Volusia Hospital Authority, 727 So. 2d 379 (Fla. 5th DCA 1999) . . . . 14.5.A Cone v. Benjamin, 150 Fla. 419, 8 So. 2d 476 (1942) . . . . 9.4.G Cone v. Benjamin, 157 Fla. 800, 27 So. 2d 90 (1946) . . . . 2.2.B.3 Cone v. State ex rel. Woman’s Benefit Ass’n of Port Huron, Mich., 145 Fla. 282, 199 So. 43 (1940) . . . . 14.9.C.5 Conger, Estate of v. Conger, 414 So. 2d 230 (Fla. 3d DCA 1982) . . . . 1.4.C Congleton v. Sansom, 664 So. 2d 276 (Fla. 1st DCA 1995) . . . . 2.2.A.5, 3.2.A.6.d, 4.11 Connell v. Connell, 93 So. 3d 1140 (Fla. 2d DCA 2012) . . . . 5.2.C.2.a, 5.4.B.3.g Connell v. Green, 330 So. 2d 473 (Fla. 1st DCA 1976) . . . . 3.2.F.4.e, 3.2.F.4.f Conseco Ins. Co. v. Clark, 2006 U.S. Dist. LEXIS 48544 (M.D. Fla. 2006) . . . . 13.9 Constance v. Constance, 366 So. 2d 804 (Fla. 3d DCA 1979) . . . . 5.4.B.3.b Continental National Bank v. Brill, 636 So. 2d 782 (Fla. 3d DCA 1994) . . . . 9.3.B Contino v. Estate of Contino, 714 So. 2d 1210 (Fla. 3d DCA 1998) . . . . 2.2.A.1.b Cooey v. Cooey, 132 Fla. 716, 182 So. 202 (1938) . . . . 6.8.B Cook, In re Estate of, 245 So. 2d 694 (Fla. 2d DCA 1971) . . . . 3.2.G.3, 14.3.C Cooke v. Cooke, 278 So. 2d 683 (Fla. 3d DCA 1973) . . . . 13.2.B.2, 13.2.C.2, 13.2.D.3, 13.2.D.4, 13.3.C, 13.5.B, 13.9 Cooke, In re, 412 So. 2d 340 (Fla. 1982) . . . . 8.4.C.2 Cooley v. Cody, 377 So. 2d 796 (Fla. 1st DCA 1979) . . . . 10.4.A Cooper v. Cooper, 120 Fla. 607, 163 So. 35 (1935) . . . . 4.2 Cooper v. Ford & Sinclair, P.A, 888 So. 2d 683 (Fla. 4th DCA 2004) . . . . 9.3.H, 9.3.O, 11.2.C.1.c, 11.2.E Cooper v. Muccitelli, 682 So. 2d 77 (Fla. 1996) . . . . 5.5.B Corbin, In re Estate of, 391 So. 2d 731 (Fla. 3d DCA 1980) . . . . 9.4.C.1

Corbin, In re Estate of, 637 So. 2d 51 (Fla. 1st DCA 1994) . . . . 14.6.C.1 Cordiner, In re Estate of, 458 So. 2d 418 (Fla. 2d DCA 1984) . . . . 14.3.C, 14.3.D Cordiner, In re Estate of, 497 So. 2d 920 (Fla. 2d DCA 1986) . . . . 3.2.G.3, 11.2.Q, 11.3.B.2, 11.3.I Correa v. Christensen, 780 So. 2d 220 (Fla. 5th DCA 2001) . . . . 11.4.C Cosio, In re, 753 So. 2d 134 (Fla. 2d DCA 2000) . . . . 5.3.C.2.a, 5.3.C.3 Cosman v. Rodriguez, 153 So. 3d 371 (Fla. 2d DCA 2014) . . . . 2.2.A.5, 4.11 Countrywide Funding Corp. v. Palmer, 589 So. 2d 994 (Fla. 2d DCA 1991) . . . . 5.2.C.2.b Covenant Trust Co. v. Guardianship of Ihrman, 45 So. 3d 499 (Fla. 4th DCA 2010) . . . . 3.3.H.1 Crabtree v. Garcia, 43 So. 2d 466 (Fla. 1949) . . . . 5.2.C.1, 5.4.B.2 Craft; United States v., 535 U.S. 274, 122 S. Ct. 1414, 152 L. Ed. 2d 437 (2002) . . . . 5.2.B.2, 5.2.C.2.b, 5.2.D.2.a Crawford v. McGraw, 61 So. 2d 484 (Fla. 1952) . . . . 5.2.C.1, 5.4.B.2 Crawford v. United States Fidelity & Guaranty Co., 139 So. 2d 500 (Fla. 1st DCA 1962) . . . . 5.2.D.2.a Crawford; State v., 23 Fla. 289, 2 So. 371 (1887) . . . . 9.4.D Creasy v. Estate of Mabie, 958 So. 2d 1111 (Fla. 1st DCA 2007) . . . . 14.3.E.2 Crepage v. City of Lauderhill, 774 So. 2d 61 (Fla. 4th DCA 2001) . . . . 1.3.F.2 Crescenzo v. Simpson, 239 So. 3d 213 (Fla. 2d DCA 2018) . . . . 1.3.D, 3.2.B.2.a, 3.2.B.6 Crews v. State, 143 Fla. 263, 196 So. 590 (1940) . . . . 3.2.A.3.a Cripe v. Atlantic First National Bank of Daytona Beach, 422 So. 2d 820 (Fla. 1982) . . . . 14.6.C.1, 14.6.C.3 Crittenden Orange Blossom Fruit v. Stone, 514 So. 2d 351 (Fla. 1987) . . . . 11.2.N Crosley, In re Estate of, 384 So. 2d 274 (Fla. 4th DCA 1980) . . . . 14.8.A Crouch v. Crouch, 898 So. 2d 177 (Fla. 5th DCA 2005) . . . . 5.3.C.2.a

Crown Management Corp. v. Goodman, 452 So. 2d 49 (Fla. 2d DCA 1984) . . . . 7.6.A.3 Cuevas v. Kelly, 873 So. 2d 367 (Fla. 2d DCA 2004) . . . . 1.4.B, 3.2.B.2.b Cumberland & Liberty Mills v. Keggin, 139 Fla. 133, 190 So. 492 (1939) . . . . 6.8.A, 6.9 Cummins, In re Estate of, 979 So. 2d 984 (Fla. 3d DCA 2008) . . . . 11.3.D Cunningham v. Kohr, 199 So. 3d 1136 (Fla. 1st DCA 2016) . . . . 3.2.G.6 Cunningham, In re Estate of, 104 So. 2d 748 (Fla. 3d DCA 1958) . . . . 9.3.O Curtis v. Brunsting, 704 F.3d 406 (5th Cir. 2013) . . . . 7.2.B Curtis v. Loether, 415 U.S. 189, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974) . . . . 10.3.B.3 Cushing v. Estate of Reynolds, 489 So. 2d 1204 (Fla. 3d DCA 1986) . . . . 3.2.C.3 Cutler v. Cutler, 84 So. 3d 1172 (Fla. 3d DCA 2012) . . . . 14.5.A Cutler v. Cutler, 994 So. 2d 341 (Fla. 3d DCA 2008) . . . . 4.6.B, 8.3.D

D D.A.D., Inc. v. Moring, 218 So. 2d 451 (Fla. 4th DCA 1969) . . . . 5.2.C.2.a, 5.2.C.2.c D.P. v. C.L.G., 37 So. 3d 897 (Fla. 1st DCA 2010) . . . . 2.2.A.1.b Dacus v. Blackwell, 90 So. 2d 324 (Fla. 1956) . . . . 9.4.F.2 Dade County, Public Health Trust of v. Lopez, 531 So. 2d 946 (Fla. 1988) . . . . 8.3.D Dahl, In re Estate of, 125 So. 2d 332 (Fla. 2d DCA 1960) . . . . 7.1.A Dahlawi v. Ramlawi, 644 So. 2d 523 (Fla. 3d DCA 1994) . . . . 10.3.C Dahlberg; United States v., 115 So. 2d 86 (Fla. 3d DCA 1959) . . . . 14.3.D Dahly v. Dahly, 866 So. 2d 745 (Fla. 5th DCA 2004) . . . . 3.2.A.4.b Dalia v. Alvarez, 605 So. 2d 1282 (Fla. 3d DCA 1992) . . . . 11.3.I Dalton, In re Estate of, 246 So. 2d 612 (Fla. 3d DCA 1971) . . . . 1.4.C Danese, In re Estate of, 641 So. 2d 423 (Fla. 1st DCA 1994) . . . . 6.2.A, 6.2.C Daniels v. Greenfield, 15 So. 3d 908 (Fla. 4th DCA 2009) . . . . 2.2.A.1.b Daniels, In re, 309 B.R. 54 (Bankr. M.D. Fla. 2004) . . . . 5.2.D.1.b Daughtry, In re Estate of, 376 So. 2d 1223 (Fla. 4th DCA 1979) . . . . 14.3.D Daul v. Goff, 754 So. 2d 847 (Fla. 2d DCA 2000) . . . . 3.2.A.4.b David v. David, 58 So. 3d 336 (Fla. 5th DCA 2011) . . . . 5.3.C.2.a Davidson v. District Court of Appeal, Fourth District, 501 So. 2d 603 (Fla. 1987) . . . . 14.9.D.2 Davis v. Bailynson, 268 So. 3d 762 (Fla. 4th DCA 2019) . . . . 11.2.C.3.a Davis v. Davis, 864 So. 2d 458 (Fla. 1st DCA 2004) . . . . 8.2.A Davis v. Estate of Davis, 77 So. 3d 703 (Fla. 3d DCA 2011) . . . . 11.2.C.2.a.i Davis v. Evans, 132 So. 2d 476 (Fla. 1st DCA 1961) . . . . 6.2.B.2, 6.2.C Davis v. Foulkrod, 642 So. 2d 1129 (Fla. 4th DCA 1994) . . . . 3.2.A.3.b, 5.4.B.2, 5.4.B.3.c

Davis v. Gaines, 104 U.S. 386, 26 L. Ed. 757 (1881) . . . . 13.3.B Davis v. Monahan, 832 So. 2d 708 (Fla. 2002) . . . . 13.8 Davis v. Roberts, 130 So. 3d 264 (Fla. 5th DCA 2013) . . . . 12.8.C.2 Davis v. Snyder, 681 So. 2d 1191 (Fla. 2d DCA 1996) . . . . 8.3.D Davis v. Starling, 799 So. 2d 373 (Fla. 4th DCA 2001) . . . . 6.8.A Davis, In re, 403 B.R. 914 (Bankr. M.D. Fla. 2009) . . . . 5.2.D.2.a Davison v. Feuerherd, 391 So. 2d 799 (Fla. 2d DCA 1980) . . . . 3.3.B.2.b, 13.2.B.1, 13.2.B.2, 13.2.D.2, 13.2.D.3, 13.2.D.4, 13.3.C.1.a, 13.7, 13.9 Davol, In re Estate of, 100 So. 2d 188 (Fla. 3d DCA 1958) . . . . 2.3.C Dayton v. Conger, 448 So. 2d 609 (Fla. 3d DCA 1984) . . . . 11.2.C.2.a.i De Garcia, Estate of v. Garcia, 399 So. 2d 486 (Fla. 3d DCA 1981) . . . . 4.6.B De Groot v. Sheffield, 95 So. 2d 912 (Fla. 1957) . . . . 14.6.C.1 De Loach v. Westman, 506 So. 2d 1142 (Fla. 2d DCA 1987) . . . . 3.2.G.5.a De Soto v. Guardianship of De Soto, 664 So. 2d 66 (Fla. 3d DCA 1995) . . . . 5.3.C.2.a, 5.4.A.3 Dean v. Bentley, 848 So. 2d 487 (Fla. 5th DCA 2003) . . . . 3.2.B.2.a DeJesus v. A.M.J.R.K Corp., 255 So. 3d 879 (Fla. 2d DCA 2018) . . . . 8.3.D Del Vecchio v. Del Vecchio, 143 So. 2d 17 (Fla. 1962) . . . . 2.2.A.7.f.ii, 4.6.A, 4.6.B Delbrouck v. Eberling, 226 So. 3d 929 (Fla. 4th DCA 2017) . . . . 3.2.B.1.a, 9.2, 9.3.G Delgado v. Estate of Garriga, 870 So. 2d 912 (Fla. 3d DCA 2004) . . . . 14.3.C DeLuca, In re Estate of, 748 So. 2d 1086 (Fla. 4th DCA 2000) . . . . 3.2.B.2.a Demont v. Demont, 24 So. 3d 699 (Fla. 1st DCA 2009) . . . . 2.2.A.7.d Demorizi v. Demorizi, 851 So. 2d 243 (Fla. 3d DCA 2003) . . . . 5.2.D.2.b Dempsey v. Dempsey, 899 So. 2d 1272 (Fla. 2d DCA 2005) . . . . 14.3.D Dennis v. Kline, 120 So. 3d 11 (Fla. 4th DCA 2013) . . . . 2.2.A.2.a, 2.2.A.2.d Denson v. Fayson, 525 So. 2d 432 (Fla. 3d DCA 1988) . . . . 3.2.B.5 Dept. of Agriculture & Consumer Services v. Bonanno, 568 So. 2d 24 (Fla.

1990) . . . . 10.2.B Dept. of Children & Families v. Coll, 908 So. 2d 599 (Fla. 4th DCA 2005) . . . . 14.5.A Dept. of Health & Rehabilitative Services v. Privette, 617 So. 2d 305 (Fla. 1993) . . . . 2.2.A.1.b Dept. of Revenue v. Florida Nat’l Bank, 516 So. 2d 1147 (Fla. 5th DCA 1987) . . . . 6.6.D.2 Depriest v. Greeson, 213 So. 3d 1022 (Fla. 1st DCA 2017) . . . . 2.6 Deshambo v. Baratz, 421 So. 2d 748 (Fla. 4th DCA 1982) . . . . 5.3.C.5 Desiderio v. D’Agostino, 127 Fla. 377, 173 So. 682 (1937) . . . . 6.9 DeSmidt v. DeSmidt, 563 So. 2d 193 (Fla. 2d DCA 1990) . . . . 2.3.E, 4.5.A Detwiler v. Bank of Central Florida, 736 So. 2d 757 (Fla. 5th DCA 1999) . . . . 5.4.A.4 DeVaughn v. DeVaughn, 840 So. 2d 1128 (Fla. 5th DCA 2003) . . . . 2.4, 9.2, 12.3.A Devine v. Kirkovich, 754 So. 2d 789 (Fla. 3d DCA 2000) . . . . 1.3.G.2, 6.6.D.2 Dew v. Nerreter, 664 So. 2d 1179 (Fla. 5th DCA 1995) . . . . 3.2.C.3, 3.2.G.3 DeWitt v. Duce, 408 So. 2d 216 (Fla. 1981) . . . . 3.2.B.1.c, 3.3.B.2.b, 13.2.B.1, 13.3.A, 13.3.B, 13.3.C, 13.3.C.1.a, 13.4.A, 13.4.B, 13.5.A, 13.5.B, 13.5.C, 13.9 De Witt v. Duce, 675 F.2d 670 (5th Cir. 1982) . . . . 3.3.B.2.b Dezso, In re Estate of, 382 So. 2d 399 (Fla. 4th DCA 1980) . . . . 6.5.D.2 Diana v. Bentsen, 677 So. 2d 1374 (Fla. 1st DCA 1996) . . . . 7.5.C.3.c, 7.5.C.3.d, 14.3.C Diaz v. Ashworth, 963 So. 2d 731 (Fla. 3d DCA 2007) . . . . 14.6.C.3 Dice v. Cameron, 424 So. 2d 173 (Fla. 3d DCA 1983) . . . . 14.9.D.4 Dickson, In re Estate of, 590 So. 2d 471 (Fla. 3d DCA 1991) . . . . 3.2.A.4.b DiGiorgio v. DiGiorgio, 48 So. 3d 968 (Fla. 3d DCA 2010) . . . . 8.2.A Dingle v. Dellinger, 134 So. 3d 484 (Fla. 5th DCA 2014) . . . . 9.4.K Dinkins v. Dinkins, 120 So. 3d 601 (Fla. 5th DCA 2013) . . . . 4.3.B.6,

7.5.B.10 Disque v. Unger, 955 So. 2d 1121 (Fla. 4th DCA 2007) . . . . 9.4.C.3, 11.2.I Dixon v. Bellamy, 252 So. 3d 349 (Fla. 3d DCA 2018) . . . . 2.2.A.1.a, 2.2.A.1.b Dixon v. Davis, 155 So. 2d 189 (Fla. 2d DCA 1963) . . . . 5.2.B.1 Dixon v. Travelers Indemnity Co., 174 So. 2d 53 (Fla. 3d DCA 1965) . . . . 9.4.G Dobal v. Perez, 809 So. 2d 78 (Fla. 3d DCA 2002) . . . . 6.2.B.4, 6.3.A Doe v. Doe, 20 So. 3d 892 (Fla. 2d DCA 2009) . . . . 7.5.C.3.e Dohnal v. Syndicated Offices Systems, 529 So. 2d 267 (Fla. 1988) . . . . 6.6.C, 6.6.D.2 Domino’s Pizza, LLC v. Wiederhold, 248 So. 3d 212 (Fla. 5th DCA 2018) . . . . 12.4.B Don Mott Agency, Inc. v. Harrison, 362 So. 2d 56 (Fla. 2d DCA 1978) . . . . 14.5.B Donner v. Donner, 302 So. 2d 452 (Fla. 3d DCA 1974) . . . . 2.2.A.7.f.ii Donner, In re Estate of, 364 So. 2d 742 (Fla. 3d DCA 1978) . . . . 14.6.B, 14.6.C.4 Donovan, In re Estate of, 550 So. 2d 37 (Fla. 2d DCA 1989) . . . . 8.3.C.3 Doran v. Gainer, 443 So. 2d 473 (Fla. 5th DCA 1984) . . . . 5.4.B.3.a, 5.4.B.3.b Dorsey, In re Estate of, 114 So. 2d 430 (Fla. 2d DCA 1959) . . . . 14.3.D Dourado v. Chousa, 604 So. 2d 864 (Fla. 5th DCA 1992) . . . . 3.2.C.3, 11.2.D Dowda & Fields, P.A. v. Cobb, 452 So. 2d 1140 (Fla. 5th DCA 1984) . . . . 11.4.A, 11.4.B Dozier v. Smith, 446 So. 2d 1107 (Fla. 2d DCA 1984) . . . . 3.2.A.2.c, 3.2.F.4.b Dribin v. Estate of Nolan, 801 So. 2d 249 (Fla. 4th DCA 2001) . . . . 9.3.E Dribin v. Estate of Nolan, 801 So. 2d 249 (Fla. 4th DCA 2001) . . . . 14.3.C, 14.6.D Drozinski v. Straub, 383 So. 2d 301 (Fla. 2d DCA 1980) . . . . 5.4.B.3.a,

5.4.B.3.b, 5.4.B.3.g, 14.3.C, 14.6.D Dubin, In re Estate of, 536 So. 2d 1186 (Fla. 4th DCA 1989) . . . . 4.4.B Dudley, In re Estate of, 374 So. 2d 1111 (Fla. 4th DCA 1979) . . . . 6.5.D.2 Duey v. Duey, 343 So. 2d 896 (Fla. 3d DCA 1977) . . . . 2.2.A.7.c Dugas v. 3M Co., 2016 U.S. Dist. LEXIS 61877 (M.D. Fla. 2016) . . . . 12.3.B Duggan, In re Estate of, 639 So. 2d 1071 (Fla. 4th DCA 1994) . . . . 4.7 Duke, In re Estate of, 219 So. 2d 124 (Fla. 2d DCA 1969) . . . . 3.2.A.3.b Dulles v. Johnson, 273 F.2d 362, 80 A.L.R. 2d 1338 (2d Cir. 1959) . . . . 11.5 Dumont, In re Will of, 791 N.Y.S.2d 868 (Surr. Ct. 2004) . . . . 9.4.C.2, 9.4.H Duncan v. Flynn, 342 So. 2d 123 (Fla. 2d DCA 1977) . . . . 12.4.D Duncan v. Flynn, 358 So. 2d 178 (Fla. 1978) . . . . 12.4.D Duncombe v. Adderly, 991 So. 2d 1013 (Fla. 4th DCA 2008) . . . . 7.7, 9.3.I, 11.2.C.2.a.ii Dunn v. State, 454 So. 2d 641 (Fla. 5th DCA 1984) . . . . 14.6.C.1 Dunn v. White, 500 So. 2d 565 (Fla. 2d DCA 1986) . . . . 13.3.D Dunson, In re Estate of, 141 So. 2d 601 (Fla. 2d DCA 1962) . . . . 3.2.A.3.a Dutcher v. Estate of Dutcher, 437 So. 2d 788 (Fla. 2d DCA 1983) . . . . 7.5.C.3.c, 7.5.C.3.d, 7.6.A.3 Duval v. Hunt, 34 Fla. 85, 15 So. 876 (1894) . . . . 12.4.E Duval Utility Co. v. Florida Public Service Commission, 380 So. 2d 1028 (Fla. 1980) . . . . 14.6.C.1

E Ebanks v. Ebanks, 198 So. 3d 712 (Fla. 2d DCA 2016) . . . . 7.5.C.2, 7.6.B Ebeling v. Voltz, 454 So. 2d 783 (Fla. 4th DCA 1984) . . . . 13.2.D.4, 13.5.B, 13.9 Eccles v. Nelson, 919 So. 2d 658 (Fla. 5th DCA 2006) . . . . 3.2.F.4.f, 14.5.A Edelman v. Breed, 836 So. 2d 1092, 836 So. 2d 1095 (Fla. 5th DCA 2003) . . . . 9.3.E Edelstein v. Beagell, 7 So. 3d 564 (Fla. 1st DCA 2009) . . . . 14.3.D Edmunds, In re Estate of, 214 So. 2d 65 (Fla. 4th DCA 1968) . . . . 14.6.C.3 Edwards v. Maxwell, 215 So. 3d 616 (Fla. 1st DCA 2017) . . . . 2.2.A.2.a Edwards, In re, 356 B.R. 807 (Bankr. M.D. Fla. 2006) . . . . 8.3.D Edwards, In re Estate of, 433 So. 2d 1349 (Fla. 5th DCA 1983) . . . . 3.2.A.3.a EGF Tampa Associates v. Edgar V. Bohlen, G.F.G.M. A.G., 532 So. 2d 1318 (Fla. 2d DCA 1988) . . . . 1.4.D.3.c EHQF Trust v. S & A Capital Partners, Inc., 947 So. 2d 606 (Fla. 4th DCA 2007) . . . . 3.3.H.1, 14.9.C.5 Eichman v. Paton, 393 So. 2d 655 (Fla. 1st DCA 1981) . . . . 5.2.D.2.b Eisen, Estate of v. Philip Morris USA, Inc., 126 So. 3d 323 (Fla. 3d DCA 2013) . . . . 12.3.F Eisenberg, In re Estate of, 433 So. 2d 542 (Fla. 4th DCA 1983) . . . . 9.3.I, 11.2.L.2 Eisenpresser v. Koenig, 239 So. 3d 90 (Fla. 4th DCA 2018) . . . . 7.5.B.12 Eldridge v. Eldridge, 153 Fla. 873, 16 So. 2d 163 (1944) . . . . 2.2.A.1.b Ellerson v. Moriarty, 331 So. 3d 767 (Fla. 2d DCA 2021) . . . . 9.4.K Elliott, In re Estate of, 798 So. 2d 13 (Fla. 1st DCA 2001) . . . . 6.5.D.2, 6.6.D.2, 14.3.C Elliott v. Krause, 531 So. 2d 74 (Fla. 1988) . . . . 7.5.C.3.d Ellis v. Humana of Florida, Inc, 569 So. 2d 827 (Fla. 5th DCA 1990) . . . . 12.4.C

Ellis v. Warner, 2017 U.S. Dist. LEXIS 22109 (S.D. Fla. 2017) . . . . 13.1, 13.2.A, 13.2.C.1, 13.9 Ellis v. Warner, 2018 U.S. Dist. LEXIS 10649 (S.D. Fla. 2018) . . . . 3.2.F.4.b, 13.2.D.1, 13.9 Ellis First National Bank of West Pasco v. Downing, 443 So. 2d 337 (Fla. 2d DCA 1983) . . . . 2.2.A.7.f.ii, 4.6.B Elmore v. Elmore, 99 So. 2d 265 (Fla. 1957) . . . . 7.5.C.3.b Elson v. Vargas, 520 So. 2d 76 (Fla. 3d DCA 1988) . . . . 14.6.C.1 Embry v. Ryan, 11 So. 3d 408 (Fla. 2d DCA 2009) . . . . 2.2.A.2.d Emery v. Clifford, 721 So. 2d 401 (Fla. 3d DCA 1998) . . . . 14.6.D Engel v. Engel, 97 So. 2d 140 (Fla. 2d DCA 1957) . . . . 8.4.C.2 Engelberg v. Birnbaum, 580 So. 2d 828 (Fla. 4th DCA 1991) . . . . 3.2.B.1.b Engelke v. Estate of Engelke, 921 So. 2d 693 (Fla. 4th DCA 2006) . . . . 4.6.B, 8.3.D Englander, In re, 95 F.3d 1028 (11th Cir. 1996) . . . . 8.2.A English v. English, 66 Fla. 427, 63 So. 822 (1913) . . . . 5.2.D.1.a, 5.2.D.2.b Ennis v. Phillips, 890 So. 2d 313 (Fla. 4th DCA 2005) . . . . 5.3.B.3 Enterprise Leasing Co. v. Sosa, 907 So. 2d 1239 (Fla. 3d DCA 2005) . . . . 12.4.A Epperson v. Rupp, 157 So. 2d 537 (Fla. 3d DCA 1963) . . . . 14.3.C Epstein v. Epstein, 519 So. 2d 1042 (Fla. 3d DCA 1988) . . . . 3.3.I Erdman v. Erdman, 301 So. 3d 316 (Fla. 5th DCA 2019) . . . . 5.3.C.2.a Eredics v. Chase Manhattan Bank, N.A., 790 N.E.2d 1166 (N.Y. 2003) . . . . 5.5.B Erorentals, LLC v. Yu, 275 So. 3d 746 (Fla. 3d DCA 2019) . . . . 3.3.H.1 Escudero v. Hasbun, 689 So. 2d 1144 (Fla. 3d DCA 1997) . . . . 5.3.C.2.a, 5.3.C.3 Espinosa v. Sparber, Shevin, Shapo, Rosen & Heilbronner, 586 So. 2d 1221 (Fla. 3d DCA 1991) . . . . 4.8.A Estate of (see name of party) Estes v. Nicholson, 39 Fla. 759, 23 So. 490 (1898) . . . . 2.2.A.4

Estes, In re Estate of, 158 So. 2d 794 (Fla. 3d DCA 1963) . . . . 14.5.A Evered v. Edsell, 464 So. 2d 1197 (Fla. 1985) . . . . 2.2.A.7.f.ii, 4.6.B Evers v. Zelyk, 422 So. 2d 925 (Fla. 2d DCA 1982) . . . . 14.6.C.3 Ex rel. (see name of relator) Exchange National Bank of Winter Haven v. Field, 338 So. 2d 889 (Fla. 2d DCA 1976) . . . . 6.6.D.2 Executive Square, Ltd. v. Delray Executive Square, Ltd., 553 So. 2d 803 (Fla. 4th DCA 1989) . . . . 11.2.L.2, 11.2.M

F F.R.W.P., Inc. v. Home Insurance Co., 450 So. 2d 914 (Fla. 4th DCA 1984) . . . . 10.3.B.1 Fach v. Brown Bros. Harriman Trust Company of Florida, 949 So. 2d 260 (Fla. 4th DCA 2007) . . . . 14.3.D Faerber v. D.G., 928 So. 2d 517 (Fla. 2d DCA 2006) . . . . 6.2.C, 11.3.I Fagan v. Cramer, 877 So. 2d 945 (Fla. 4th DCA 2004) . . . . 2.2.A.1.a Fanelli, In re Estate of, 336 So. 2d 631 (Fla. 2d DCA 1976) . . . . 1.4.A, 3.2.F.1, 7.2.C, 9.3.K, 10.3.B.4, 10.4.A, 10.4.B Farber v. Perry, 141 Fla. 111, 192 So. 794 (1940) . . . . 11.3.F Farris, In re Estate of, 113 So. 2d 721 (Fla. 3d DCA 1959) . . . . 9.3.I, 11.2.C.2.a.ii Faskowitz, In re Estate of, 941 So. 2d 390 (Fla. 2d DCA 2006) . . . . 2.3.C Faulkner v. Woodruff, 159 So. 3d 319 (Fla. 2d DCA 2015) . . . . 11.3.F Favreau v. Favreau, 940 So. 2d 1188 (Fla. 5th DCA 2006) . . . . 14.3.D Feldheim v. Scott, 579 So. 2d 291 (Fla. 3d DCA 1991) . . . . 7.7, 9.3.I Feldstein, In re Estate of, 292 So. 2d 404 (Fla. 3d DCA 1974) . . . . 9.4.C.2, 9.4.D Ferguson v. Estate of Ferguson, 410 So. 2d 617 (Fla. 4th DCA 1982) . . . . 14.7.A, 14.8.E Fernandez v. Marrero, 282 So. 3d 928 (Fla. 3d DCA 2019) . . . . 5.3.C.2.a Fernandez-Fox v. Estate of Lindsay, 972 So. 2d 281 (Fla. 5th DCA 2008) . . . . 1.3.G.2, 6.5.E Fernandez-Fox v. Reyes, 79 So. 3d 895 (Fla. 5th DCA 2012) . . . . 11.2.C.2.a.i Fiel v. Hoffman, 169 So. 3d 1274 (Fla. 4th DCA 2015) . . . . 2.2.A.5, 4.11 Field v. Newsom, 170 So. 2d 50 (Fla. 3d DCA 1965) . . . . 6.6.C Fields, Estate of v. Fields, 581 So. 2d 1387 (Fla. 3d DCA 1991) . . . . 5.2.D.1.b

Fields, In re Estate of, 581 So. 2d 1387 (Fla. 3d DCA 1991) . . . . 5.2.D.2.a Figel v. Wells Fargo Bank, N.A., 2011 U.S. Dist. LEXIS 24134 (S.D. Fla. 2011) . . . . 9.4.C.2 Filion, In re Estate of, 353 So. 2d 1180 (Fla. 2d DCA 1977) . . . . 3.2.B.3.a Finch, In re Estate of, 401 So. 2d 1308 (Fla. 1981) . . . . 8.3.C.3 Fine Arts Museums Foundation v. First National in Palm Beach, a Division of First Union National Bank of Florida, 633 So. 2d 1179 (Fla. 4th DCA 1994) . . . . 7.6.A.2, 7.6.A.3 Finnegan v. Compton, 154 So. 3d 370 (Fla. 4th DCA 2014) . . . . 3.2.C.3, 11.3.I Finnegan v. Compton, 154 So. 3d 370 (Fla. 4th DCA 2015) . . . . 11.3.I Fintak v. Fintak, 120 So. 3d 177 (Fla. 2d DCA 2013) . . . . 3.2.B.3.a, 3.3.B.2.a, 3.3.G.3 First Bank & Trust Company of Jacksonville v. Bush, 226 So. 2d 438 (Fla. 1st DCA 1969) . . . . 6.6.D.2 First Gulf Beach Bank & Trust Co. v. Grubaugh, 330 So. 2d 205 (Fla. 2d DCA 1976) . . . . 2.2.A.7.f.ii First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So. 2d 1152 (Fla. 2d DCA 1992) . . . . 8.2.A First National Bank of Leesburg v. Hector Supply Co., 254 So. 2d 777 (Fla. 1971) . . . . 5.2.C.1, 5.2.C.2.a, 5.2.D.1.a, 5.2.D.1.b, 5.2.D.2.a, 5.2.D.2.b, 5.4.A.4, 5.4.B.3.c First National Bank of Miami v. Risolia, 200 So. 2d 260 (Fla. 3d DCA 1967) . . . . 7.1.A First National Bank of Tampa v. First Federal Savings & Loan Association of Tampa, 196 So. 2d 211 (Fla. 2d DCA 1967) . . . . 5.5.A, 5.5.B First Trust & Savings Bank v. Henderson, 101 Fla. 1437, 136 So. 370 (1931) . . . . 9.4.C.1 First Union National Bank v. Turney, 824 So. 2d 172 (Fla. 1st DCA 2002) . . . . 9.4.C.3 First Union National Bank of Florida, N.A. v. Estate of Mizell, 807 So. 2d 78 (Fla. 5th DCA 2002) . . . . 3.2.B.5

First Union National Bank of Florida, N.A. v. Frumkin, 659 So. 2d 463 (Fla. 3d DCA 1995) . . . . 7.6.A.3 Fisher v. Creamer, 332 So. 2d 50 (Fla. 3d DCA 1976) . . . . 6.8.B Fisher, In re Estate of, 503 So. 2d 962 (Fla. 1st DCA 1987) . . . . 2.4, 9.2 Flagship National Bank of Miami v. King, 418 So. 2d 275 (Fla. 3d DCA 1982) . . . . 4.6.B Flanary v. Bailey, 591 So. 2d 308 (Fla. 5th DCA 1991) . . . . 6.9 Flanzer v. Kaplan, 230 So. 3d 960 (Fla. 2d DCA 2017) . . . . 3.2.B.2.a, 3.3.G.2 Fleet; United States v., 498 F.3d 1225 (11th Cir. 2007) . . . . 8.3.D Flegal v. Guardianship of Swistock, 169 So. 3d 278 (Fla. 4th DCA 2015) . . . . 1.3.F.2, 5.3.C.2.a Fleming, In re Estate of, 786 So. 2d 660 (Fla. 4th DCA 2001) . . . . 6.2.B.4, 6.3.A Flinn v. Doty, 214 So. 3d 683 (Fla. 4th DCA 2017) . . . . 8.3.D Flinn v. Van Devere, 502 So. 2d 454 (Fla. 3d DCA 1987) . . . . 1.4.E, 13.3.C.1.c The Florida Bar, 537 So. 2d 500 (Fla. 1988) . . . . 1.2 The Florida Bar v. Carlon, 820 So. 2d 891 (Fla. 2002) . . . . 11.2.K.1.b The Florida Bar v. Garland, 651 So. 2d 1182 (Fla. 1995) . . . . 11.2.K.1.a, 11.2.K.1.b The Florida Bar v. Ward, 472 So. 2d 1159 (Fla. 1985) . . . . 11.2.C.3.a Florida Coast Bank of Pompano Beach v. Mayes, 433 So. 2d 1033 (Fla. 4th DCA 1983) . . . . 14.9.D.5 Florida, Dept. of Transportation, State of v. Robbins & Robbins, Inc., 700 So. 2d 782 (Fla. 5th DCA 1997) . . . . 11.2.C.1.b Florida National Bank of Jacksonville v. Gann, 101 So. 2d 579 (Fla. 2d DCA 1958) . . . . 5.2.B.1 Florida National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1985) . . . . 3.3.B.2.b, 3.3.G.2 Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985) . . . . 3.2.G.5.a, 3.3.H.1, 11.2.C.2.a.ii, 11.2.C.2.b, 11.2.K.1.a,

11.2.K.1.e, 11.2.L.2, 11.3.I, 11.6 Florida Rules of Criminal Procedure, Amendments to Rules 3.140 & 3.170, In re, 272 So. 2d 513 . . . . 1.2 Florida Wellness & Rehabilitation Center, Inc. v. Mark J. Feldman, P.A., 276 So. 3d 884 (Fla. 3d DCA 2019) . . . . 11.2.R.2, 14.8.E Floyd v. Bentley, 496 So. 2d 862 (Fla. 2d DCA 1986) . . . . 10.5 FMC Corp. v. Holliday, 498 U.S. 52, 111 S. Ct. 403, 112 L. Ed. 2d 356 (1990) . . . . 12.8.D.1 Ford v. Ford, 581 So. 2d 203 (Fla. 5th DCA 1991) . . . . 8.5.A Foreman v. Northern Trust Bank of Florida, N.A, 905 So. 2d 276 (Fla. 2d DCA 2005) . . . . 11.2.K.1.b, 11.3.1 Fornash, In re Estate of, 372 So. 2d 128 (Fla. 2d DCA 1979) . . . . 6.6.E Forsythe v. Spielberger, 86 So. 2d 427 (Fla. 1956) . . . . 3.2.A.3.b Fortman v. Freedom Federal Savings & Loan Ass’n of Tampa, 403 So. 2d 985 (Fla. 2d DCA 1981) . . . . 5.2.C.1 Foster v. Cianci, 773 So. 2d 1181 (Fla. 2d DCA 2000) . . . . 6.2.C Foster v. Estate of Gomes, 27 So. 3d 145 (Fla. 5th DCA 2010) . . . . 2.2.A.7.f.ii, 4.6.B Foster, State ex rel. v. Anders, 135 Fla. 59, 184 So. 515 (1938) . . . . 2.2.A.7.a Foucart v. Paul, 516 So. 2d 1035 (Fla. 5th DCA 1987) . . . . 5.2.C.2.b Fouraker v. Carter, 507 So. 2d 749 (Fla. 5th DCA 1987) . . . . 2.5 Frank v. Eeles, 152 Fla. 869, 13 So. 2d 216 (1943) . . . . 5.3.C.2.b Franklin v. Stettin, 579 So. 2d 245 (Fla. 3d DCA 1991) . . . . 7.7 Frase v. Branch, 362 So. 2d 317 (Fla. 2d DCA 1978) . . . . 8.2.A Frazier v. Metropolitan Dade County, 701 So. 2d 418 (Fla. 3d DCA 1997) . . . . 12.3.A Freedman, In re Estate of, 180 So. 2d 370, 14 A.L.R. 3d 1029 (Fla. 3d DCA 1965) . . . . 9.3.B, 9.4.C.3 Freeman, In re Petition of, 84 So. 2d 544 . . . . 3.2.A.3.a, 3.2.A.3.b Friscia v. Friscia, 161 So. 3d 513 (Fla. 2d DCA 2014) . . . . 2.2.A.7.f.ii, 4.6.B, 8.3.D

Frizzell, In re Estate of, 156 So. 2d 558 (Fla. 2d DCA 1963) . . . . 2.2.A.2.c Fromvald v. Wolfe, 760 So. 2d 1020 (Fla. 4th DCA 2000) . . . . 14.3.C, 14.6.D Frymer v. Brettschneider, 710 So. 2d 10 (Fla. 4th DCA 1998) . . . . 3.3.H.2 Fulmer v. Northern Central Bank, 386 So. 2d 856 (Fla. 2d DCA 1980) . . . . 3.3.D.2 Fulton v. First National Bank of Fort Myers, 290 So. 2d 498 (Fla. 2d DCA 1974) . . . . 9.4.C.2 Furlong v. Raimi, 735 So. 2d 583 (Fla. 3d DCA 1999) . . . . 9.3.I, 14.6.D

G G.F.C. v. S.G., 686 So. 2d 1382 (Fla. 5th DCA 1997) . . . . 2.2.A.1.b Gaboury v. Flagler Hospital, Inc., 316 So. 2d 642 (Fla. 4th DCA 1975) . . . . 10.3.B.5 Gainer, In re Estate of, 466 So. 2d 1055 (Fla. 1985) . . . . 5.4.B.2, 5.4.B.3.a, 5.4.B.3.b Gainer, In re Estate of, 579 So. 2d 739 (Fla. 1st DCA 1991) . . . . 5.4.B.3.b, 5.4.B.3.c, 5.4.B.3.d, 9.3.B Gaines v. DeWitt, 41 So. 3d 951 (Fla. 2d DCA 2010) . . . . 11.2.Q Galego v. Robinson, 695 So. 2d 443 (Fla. 2d DCA 1997) . . . . 1.4.D.2.c, 1.4.E Gammon v. Cobb, 335 So. 2d 261 (Fla. 1976) . . . . 2.2.A.1.b Ganier, Estate of v. Estate of Ganier, 418 So. 2d 256 (Fla. 1982) . . . . 4.8.A, 4.8.B Ganz v. HZJ, Inc., 605 So. 2d 871 (Fla. 1992) . . . . 11.2.C.3.a Garces v. Montano, 834 So. 2d 194 (Fla. 3d DCA 2002) . . . . 14.3.D Garcia v. Celestron, 2 So. 3d 1061 (Fla. 3d DCA 2009) . . . . 7.6.A.1 Garcia v. Morrow, 954 So. 2d 656 (Fla. 3d DCA 2007) . . . . 2.4, 9.2 Garcon v. Florida Agency for Health Care Administration, 150 So. 3d 1101 (Fla. 2014) . . . . 12.8.C.5 Gardiner v. Goertner, 110 Fla. 377, 149 So. 186 (1933) . . . . 13.3.D, 14.6.C.4 Garrison v. Vance, 103 So. 3d 1041 (Fla. 1st DCA 2013) . . . . 14.3.B Garvey v. Garvey, 219 So. 2d 685 (Fla. 1969) . . . . 11.2.R.2, 14.8.A Garvey, In re Estate of, 212 So. 2d 790 (Fla. 3rd DCA 1968) . . . . 11.2.R.2 Gates Learjet Corp. v. Moyer, 459 So. 2d 1082 (Fla. 4th DCA 1984) . . . . 6.8.A Gay, In re Estate of, 294 So. 2d 668 (Fla. 4th DCA 1974) . . . . 6.2.A Geary v. Butzel Long, P.C, 13 So. 3d 149 (Fla. 4th DCA 2009) . . . . 11.2.D Geelhoed, Estate of, by and through Johnson, 543 So. 2d 332 (Fla. 4th DCA

1989) . . . . 6.10 Gelco Corp. v. Campanile Motor Service, Inc., 677 So. 2d 952 (Fla. 3d DCA 1996) . . . . 10.4.A Geldi v. MacCabe, 243 So. 3d 360 (Fla. 2d DCA 2018) . . . . 3.2.C.3, 11.2.D, 11.2.R.2 Genauer v. Downey & Downey, P.A., 190 So. 3d 131 (Fla. 4th DCA 2016) . . . . 14.6.D Gentzel v. Estate of Buchanan, 419 So. 2d 366 (Fla. 1st DCA 1982) . . . . 5.4.B.3.b, 5.4.B.3.c, 5.4.B.3.d Gepfrich v. Gepfrich, 582 So. 2d 743 (Fla. 4th DCA 1991) . . . . 8.3.D, 8.4.A Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012) . . . . 8.2.A, 8.2.D Gibson v. Wells Fargo Bank, N.A., 255 So. 3d 944 (Fla. 2d DCA 2018) . . . . 5.2.D.1.b, 5.2.D.2.a, 5.4.B.3.e Giffin v. Mull, 56 N.E.3d 270 (Ohio Ct. App. 2015) . . . . 2.2.A.7.f.ii Giller v. Giller, 319 So. 3d 690 (Fla. 3d DCA 2021) . . . . 9.4.I Gilpen v. Bower, 152 Fla. 733, 12 So. 2d 884 (1943) . . . . 6.8.A, 6.9 Giraldo v. Agency for Health Care Administration, 208 So. 3d 244 (Fla. 1st DCA 2016) . . . . 12.8.C.2 Glades, Inc. v. Glades Country Club Apartments Ass’n, Inc., 534 So. 2d 723 (Fla. 2d DCA 1988) . . . . 11.2.L.2 Glasser v. Columbia Federal Savings & Loan Ass’n of Miami Shores, 197 So. 2d 6 (Fla. 1967) . . . . 5.2.D.1.b, 5.2.D.2.b Gleason, In re Estate of, 631 So. 2d 321 (Fla. 4th DCA 1994) . . . . 6.2.C Glenn v. Roberts, 95 So. 3d 271 (Fla. 3d DCA 2012) . . . . 7.5.A, 7.5.C.2, 7.5.C.3.b, 7.5.C.3.c Glickstein v. Sun Bank/Miami, N.A., 922 F.2d 666 (11th Cir. 1991) . . . . 13.2.D.4, 13.3.C, 13.4.A, 13.5.B, 13.9 Glover v. Miller, 947 So. 2d 1254 (Fla. 4th DCA 2007) . . . . 2.2.A.1.a Godley, Estate of, 508 So. 2d 46 (Fla. 4th DCA 1987) . . . . 14.3.E.2 Goethel v. Lawrence, 599 So. 2d 232 (Fla. 3d DCA 1992) . . . . 9.3.M Goggin v. Shanley, 81 So. 2d 728 (Fla. 1955) . . . . 6.5.E, 7.2.C, 9.3.B, 9.4.C.3, 10.3.B.5

Goheagan v. Perkins, 197 So. 3d 112 (Fla. 4th DCA 2016) . . . . 12.8.C.2, 12.8.C.5 Gokalp v. Unsal, 284 So. 3d 1097 (Fla. 4th DCA 2019) . . . . 10.3.B.5 Gold v. Schwartz, 774 So. 2d 879 (Fla. 4th DCA 2001) . . . . 8.2.A Golden v. Atlantic National Bank of Jacksonville, 481 So. 2d 16 (Fla. 1st DCA 1986) . . . . 6.6.D.1 Golden & Cowan, P.A. v. Estate of Locascio, 41 So. 3d 1113 (Fla. 3d DCA 2010) . . . . 8.2.E Goldman, In re Estate of, 79 So. 2d 846 (Fla. 1955) . . . . 6.6.D.2 Goldstein v. Braswell, 987 So. 2d 123 (Fla. 3d DCA 2008) . . . . 6.9 Goldworn v. Estate of Day, 452 So. 2d 659 (Fla. 3d DCA 1984) . . . . 9.3.I, 9.3.L, 9.4.J, 11.2.C.1.a Gomez v. Fradin, 199 So. 3d 554 (Fla. 4th DCA 2016) . . . . 2.4 Good, In re Estate of, 696 So. 2d 876 (Fla. 4th DCA 1997) . . . . 7.7, 11.2.J, 11.2.N, 11.3.H Goodman v. Shapiro, 594 So. 2d 873 (Fla. 3d DCA 1992) . . . . 11.2.D Goodman v. Strassburg, 139 So. 2d 163 (Fla. 3d DCA 1962) . . . . 3.2.A.3.b Goodstein v. Goodstein, 2019 U.S. Dist. LEXIS 19261 (S.D. Fla. 2019) . . . . 7.2.B Goodwin, In re Estate of, 511 So. 2d 609 (Fla. 4th DCA 1987) . . . . 11.3.B.2, 11.3.F Gordin v. Estate of Maisel, 179 So. 3d 518 (Fla. 4th DCA 2015) . . . . 9.2, 9.3.H, 14.4 Gordon v. Fishman, 253 So. 3d 1218 (Fla. 2d DCA 2018) . . . . 2.2.A.7.d, 4.10, 14.3.B Gordon v. Kleinman, 120 So. 3d 120 (Fla. 4th DCA 2013) . . . . 3.2.B.1.a Gory, In re Estate of, 570 So. 2d 1381 (Fla. 4th DCA 1990) . . . . 3.2.F.4.f, 11.2.C.2.b, 11.2.M Gossett v. Gossett, 182 So. 3d 694 (Fla. 4th DCA 2015) . . . . 3.2.B.3.a, 3.3.B.2.a, 3.3.G.3 Gossett v. Ullendorff, 114 Fla. 159, 154 So. 177 (1934) . . . . 2.2.A.1.b Graham v. Ducote Federal Credit Union, 213 So. 2d 603 (Fla. 1st DCA

1968) . . . . 5.3.B.3 Grainger v. Wald, 29 So. 3d 1155 (Fla. 1st DCA 2010) . . . . 1.3.E.3.a, 1.3.E.6.c, 6.2.C, 9.3.L Grant v. Bessemer Trust Company of Florida, Inc., 117 So. 3d 830 (Fla. 4th DCA 2013) . . . . 7.5.C.3.c, 14.6.C.4 Grant v. Sedco Corp., 364 So. 2d 774 (Fla. 2d DCA 1978) . . . . 2.2.A.2.d Grant, In re Estate of, 558 So. 2d 208 (Fla. 2d DCA 1990) . . . . 2.6, 4.4.A Grasso v. Grasso, 143 So. 3d 1050 (Fla. 2d DCA 2014) . . . . 3.3.H.1 Graves v. Lapi, 834 So. 2d 359 (Fla. 4th DCA 2003) . . . . 14.5.A Gray v. Landmark Union Trust Bank of St. Petersburg, N.A., 364 So. 2d 1256 (Fla. 2d DCA 1978) . . . . 5.3.B.3, 5.4.A.2 Gray, In re Estate of, 626 So. 2d 971 (Fla. 1st DCA 1993) . . . . 3.2.C.3, 7.7, 11.2.R.2, 14.8.A Green v. Sun Harbor Homeowners’ Ass’n, 730 So. 2d 1261 (Fla. 1998) . . . . 3.3.H.1 Greenberg v. Van Dam, 833 So. 2d 810 (Fla. 3d DCA 2002) . . . . 11.2.C.3.a, 14.8.E Greenberg, In re Estate of, 390 So. 2d 40 (Fla. 1980) . . . . 2.4 Greene v. Borsky, 961 So. 2d 1057 (Fla. 4th DCA 2007) . . . . 14.4 Greenfield v. Daniels, 51 So. 3d 421 (Fla. 2010) . . . . 2.2.A.1.b Greensburg Public Library v. Alzheimer’s Lifeliners Ass’n, Inc., 787 So. 2d 947 (Fla. 2d DCA 2001) . . . . 3.3.B.1.a, 3.3.B.1.c Gregory v. Lloyd, 284 F. Supp. 264 (N.D. Fla. 1968) . . . . 8.4.A Gresham v. Strickland, 784 So. 2d 578 (Fla. 4th DCA 2001) . . . . 9.3.C Gridley v. Galego, 698 So. 2d 273 (Fla. 2d DCA 1997) . . . . 4.6.B Griffin v. Workman, 73 So. 2d 844 (Fla. 1954) . . . . 12.3.F Grimes v. Estate of Stewart, 506 So. 2d 465 (Fla. 5th DCA 1987) . . . . 3.2.A.3.a Grisolia v. Pfeffer, 77 So. 3d 732 (Fla. 3d DCA 2011) . . . . 8.4.C.2 Grist, In re Estate of, 83 So. 2d 860 (Fla. 1955) . . . . 6.2.A Grooms v. Royce, 638 So. 2d 1019 (Fla. 5th DCA 1994) . . . . 3.2.B.2.a

Gross v. Security Trust Co., 462 So. 2d 580 (Fla. 4th DCA 1985) . . . . 14.5.A Gross v. Zimmerman, 197 So. 3d 1248 (Fla. 4th DCA 2016) . . . . 5.3.C.4 Grossman v. Selewacz, 417 So. 2d 728 (Fla. 4th DCA 1982) . . . . 1.3.G.1, 1.4.C, 14.1 Guardian Life Ins. Co. of Am. v. Lutz, 2014 U.S. Dist. LEXIS 60552 (M.D. Fla. 2014) . . . . 2.2.A.5 Guardian Life Ins. Co. of Am. v. Lutz, 2014 U.S. Dist. LEXIS 60554 (M.D. Fla. 2014) . . . . 2.2.A.5 Guardianship of (see name of party) Gubanova v. Blackstone Group L.P., 2013 U.S. Dist. LEXIS 195677 (S.D. Fla. 2013) . . . . 12.3.C Guess, In re Estate of, 213 So. 2d 638 (Fla. 3d DCA 1968) . . . . 2.2.A.7.d, 7.5.B.3 Guillen v. Kitching, 354 So. 2d 900 (Fla. 3d DCA 1978) . . . . 12.4.E Gulf Coast Medical Park, LLC v. Gulf Coast Larain Partners, LLC, 239 So. 3d 1202 (Fla. 2d DCA 2017) . . . . 11.3.K Gulle v. Boggs, 174 So. 2d 26 (Fla. 1965) . . . . 5.3.C.4 Guth, In re Estate of, 374 So. 2d 1098 (Fla. 2d DCA 1979) . . . . 3.2.B.2.a

H Habal v. Habal, 303 So. 3d 960 (Fla. 4th DCA 2020) . . . . 13.6, 13.9 Hack v. Estate of Helling, 811 So. 2d 822 (Fla. 5th DCA 2002) . . . . 14.6.C.3 Hack v. Janes, 878 So. 2d 440 (Fla. 5th DCA 2004) . . . . 3.2.A.3.b, 5.3.C.5, 14.6.C.3 Hagerty v. Hagerty, 52 So. 2d 432 (Fla. 1951) . . . . 5.2.D.1.b, 5.2.D.2.b, 5.3.B.3, 5.3.C.2.a, 5.3.C.3, 5.4.A.4, 5.4.B.2 Hagopian v. Zimmer, 653 So. 2d 474 (Fla. 3d DCA 1995) . . . . 5.3.C.2.a, 5.3.C.3, 5.4.B.3.e Halkey-Roberts Corp. v. Mackal, 641 So. 2d 445 (Fla. 2d DCA 1994) . . . . 13.8 Hall v. Maal, 32 So. 3d 682 (Fla. 1st DCA 2010) . . . . 2.2.A.7.b Hall v. Tungett, 980 So. 2d 1289 (Fla. 2d DCA 2008) . . . . 1.4.D.2.c, 1.4.E Halstead v. Florence Citrus Growers’ Ass’n, 104 Fla. 21, 139 So. 132 (1932) . . . . 11.2.M Hamel, In re Estate of, 821 So. 2d 1276 (Fla. 2d DCA 2002) . . . . 8.3.D Hamlin, In re Estate of, 157 So. 2d 844 (Fla. 2d DCA 1963) . . . . 14.3.C Hammer, In re Estate of, 499 So. 2d 853 (Fla. 4th DCA 1987) . . . . 9.3.B, 9.3.D Hammermann, In re Estate of, 387 So. 2d 409 (Fla. 4th DCA 1980) . . . . 3.2.F.4.b, 14.6.C.2 Hampton v. Estate of Allen, 198 So. 3d 954 (Fla. 5th DCA 2016) . . . . 3.2.C.3, 3.2.G.3, 7.7, 11.2.C.2.a.ii Hampton, Estate of v. Fairchild-Florida Construction Co., 341 So. 2d 759 (Fla. 1977) . . . . 3.3.H.1 Hand, In re Estate of, 475 So. 2d 1337 (Fla. 3d DCA 1985) . . . . 3.2.C.3 Hankey v. Yarian, 755 So. 2d 93 (Fla. 2000) . . . . 12.3.D Harbie v. Falk, 907 So. 2d 566 (Fla. 3d DCA 2005) . . . . 7.6.A.2, 7.6.A.3 Harbour House Properties v. Estate of Stone, 443 So. 2d 136 (Fla. 3d DCA 1983) . . . . 6.2.C

Harby, In re Estate of, 269 So. 2d 433 (Fla. 2d DCA 1972) . . . . 3.2.B.3.a, 3.2.B.3.b Harding v. Rosoff, 951 So. 2d 912 (Fla. 4th DCA 2007) . . . . 7.7 Harelik v. Teshoney, 337 So. 2d 828 (Fla. 1st DCA 1976) . . . . 5.2.C.2.b Harreld v. Harreld, 682 So. 2d 635 (Fla. 2d DCA 1996) . . . . 1.3.F.2 Harrell v. Badger, 171 So. 3d 764 (Fla. 5th DCA 2015) . . . . 9.4.C.4 Harrell v. Snyder, 913 So. 2d 749 (Fla. 5th DCA 2005) . . . . 8.2.E Harrell, In re Estate of, 426 So. 2d 63 (Fla. 5th DCA 1983) . . . . 11.2.E, 11.2.L.2, 11.3.I Harrigan v. Harrison, 423 So. 2d 1024 (Fla. 4th DCA 1982) . . . . 6.6.D.2 Hartford Insurance Co. v. Goff, 4 So. 3d 770 (Fla. 2d DCA 2009) . . . . 12.6 Hartman, In re Estate of, 836 So. 2d 1038 (Fla. 2d DCA 2003) . . . . 3.2.B.2.a Hartwell v. Blasingame, 584 So. 2d 6 (Fla. 1991) . . . . 4.6.B, 8.3.E Hasam Realty Corp. v. City of Hallandale, 393 So. 2d 561 (Fla. 4th DCA 1981) . . . . 14.6.D Hatcher, In re Estate of, 270 So. 2d 45 (Fla. 1st DCA 1972) . . . . 14.9.B Hatcher, In re Estate of, 439 So. 2d 977 (Fla. 3d DCA 1983) . . . . 3.2.B.2.b Hathaway v. Munroe, 97 Fla. 28, 119 So. 149 (1929) . . . . 14.9.D.1 Hathaway, In re Estate of, 768 So. 2d 525 (Fla. 4th DCA 2000) . . . . 14.6.D, 14.8.E Hatten, In re Estate of, 880 So. 2d 1271 (Fla. 3d DCA 2004) . . . . 13.2.C.2, 13.2.D.4, 13.9 Havoco of America, Ltd. v. Hill, 790 So. 2d 1018 (Fla. 2001) . . . . 8.3.D Hawkins v. Rellim Inv. Co, 92 Fla. 784, 110 So. 350 (1926) . . . . 10.2.A, 10.3.B.3 Hay v. Hay, 944 So. 2d 1043 (Fla. 4th DCA 2006) . . . . 5.3.C.3 Hayes v. Guardianship of Thompson, 952 So. 2d 498 (Fla. 2007) . . . . 1.3.E.7.a Hayes v. Rogers, 50 So. 3d 73 (Fla. 4th DCA 2011) . . . . 9.4.D Hays v. Ernst, 32 Fla. 18, 13 So. 451 (1893) . . . . 3.2.A.2.c Hays v. Lawrence, 1 So. 3d 1176 (Fla. 5th DCA 2009) . . . . 1.3.H, 3.2.C.3,

11.2.K.1.f, 11.3.C, 11.3.I HCA Gulf Coast Hospital v. Estate of Downing, 594 So. 2d 774 (Fla. 1st DCA 1992) . . . . 8.3.D Heard v. Perales, 247 So. 3d 533 (Fla. 4th DCA 2018) . . . . 5.3.C.4 Heath v. First National Bank in Milton, 213 So. 2d 883 (Fla. 1st DCA 1968) . . . . 8.4.A Heid, Estate of v. Heid, 863 So. 2d 1259 (Fla. 5th DCA 2004) . . . . 4.3.B.1 Heim v. Heim, 712 So. 2d 1238 (Fla. 4th DCA 1998) . . . . 5.3.C.2.a Heirs of Hodge, In re, 470 So. 2d 740 (Fla. 5th DCA 1985) . . . . 2.2.A.2.d, 3.2.B.1.a Helfenbein v. Baval, 157 So. 3d 531 (Fla. 4th DCA 2015) . . . . 3.2.A.2.d Hemker v. Abdul, 716 So. 2d 817 (Fla. 2d DCA 1998) . . . . 14.6.B Hendershaw v. Estate of Hendershaw, 763 So. 2d 482 (Fla. 4th DCA 2000) . . . . 3.2.A.3.a Henderson v. Ewell, 111 Fla. 324, 149 So. 372 (1933) . . . . 9.3.C, 9.3.L Henry v. Jones, 202 So. 3d 129 (Fla. 2d DCA 2016) . . . . 3.2.B.1.c, 13.1, 13.2.A, 13.9 Henshall v. Lowe, 657 So. 2d 6 (Fla. 2d DCA 1995) . . . . 13.2.C.2, 13.2.D.4, 13.9 Herlan, In re Estate of, 209 So. 2d 225 (Fla. 1968) . . . . 14.9.C.2, 14.9.C.3 Herman v. Bennett, 278 So. 3d 178 (Fla. 1st DCA 2019) . . . . 1.3.E.3.b, 6.2.C Hernandez v. Garwood, 390 So. 2d 357 (Fla. 1980) . . . . 12.4.C, 12.4.D Hernandez v. Gil, 998 So. 2d 651 (Fla. 3d DCA 2008) . . . . 14.8.E Hernandez v. Hernandez, 230 So. 3d 119 (Fla. 3d DCA 2017) . . . . 1.3.E.7.a Hernandez v. Hernandez, 946 So. 2d 124 (Fla. 5th DCA 2007) . . . . 2.4, 9.2 Hernandez, Estate of v. Agency for Health Care Administration, 190 So. 3d 139 (Fla. 3d DCA 2016) . . . . 12.8.C.2, 12.8.C.5 Herpich v. Estate of Herpich, 994 So. 2d 1195 (Fla. 5th DCA 2008) . . . . 2.2.A.7.f.ii Herrilka v. Yates, 13 So. 3d 122 (Fla. 4th DCA 2009) . . . . 8.2.E Herring, In re Estate of, 670 So. 2d 145 (Fla. 1st DCA 1996) . . . . 5.4.A.4,

5.4.B.3.c, 5.4.B.3.e Herschowsky v. Guardianship of Herschowsky, 890 So. 2d 1246 (Fla. 4th DCA 2005) . . . . 14.5.A Herskovitz v. Hershkovich, 910 So. 2d 366 (Fla. 5th DCA 2005) . . . . 14.7.A Herskowitz, In re Estate of, 342 So. 2d 530 (Fla. 3d DCA 1977) . . . . 14.6.D Hess v. Hess, 758 So. 2d 1203 (Fla. 4th DCA 2000) . . . . 12.3.A, 12.6 Heyes, In re Estate of, 515 So. 2d 377 (Fla. 4th DCA 1987) . . . . 5.4.B.3.b, 5.4.B.3.c Hiatt v. Estate of Hiatt, 837 So. 2d 1132 (Fla. 4th DCA 2003) . . . . 3.2.F.4.f, 14.5.A Hibbard, Estate of v. Hibbard, 2018 U.S. Dist. LEXIS 90431 (M.D. Fla. 2018) . . . . 7.2.B Hildebrandt, In re, 432 B.R. 852 (Bankr. N.D. Fla. 2010) . . . . 8.3.D Hiley, In re Estate of, 262 So. 2d 476 (Fla. 4th DCA 1972) . . . . 4.3.B.3 Hilgendorf v. Estate of Coleman, 201 So. 3d 1262 (Fla. 4th DCA 2016) . . . . 14.3.D Hill v. Davis, 31 So. 3d 921 (Fla. 1st DCA 2010) . . . . 2.4, 9.3.H Hill v. Davis, 70 So. 3d 572 (Fla. 2011) . . . . 2.4, 9.3.H Hill v. Hill, 675 So. 2d 168 (Fla. 5th DCA 1996) . . . . 5.3.C.3 Hill, In re Estate of, 114 So. 2d 462 (Fla. 2d DCA 1959) . . . . 14.4 Hill, In re Estate of, 582 So. 2d 701 (Fla. 1st DCA 1991) . . . . 6.2.C Hilton v. Upton, 204 So. 2d 352 (Fla. 1st DCA 1967) . . . . 5.2.C.2.c, 5.2.D.1.a Hirsch v. DiGaetano, 732 So. 2d 1177 (Fla. 5th DCA 1999) . . . . 1.4.B Hirsch v. Hirsch, 519 So. 2d 1056 (Fla. 4th DCA 1988) . . . . 2.2.A.7.d Hobbs v. Florida First National Bank of Jacksonville, 480 So. 2d 153 (Fla. 1st DCA 1985) . . . . 10.3.B.5, 10.3.C Hodge v. Cichon, 78 So. 3d 719 (Fla. 5th DCA 2012) . . . . 9.4.K Hodtum, In re Estate of, 267 So. 2d 686 (Fla. 2d DCA 1972) . . . . 3.2.A.3.a Hoegh v. Estate of Johnson, 985 So. 2d 1185 (Fla. 5th DCA 2008) . . . . 14.8.C, 14.8.E

Hoffman v. Kohns, 385 So. 2d 1064 (Fla. 2d DCA 1980) . . . . 2.2.A.7.g, 4.8.A, 13.3.D Hogan v. Howard, 716 So. 2d 286 (Fla. 2d DCA 1998) . . . . 6.6.H Holland v. Gross, 89 So. 2d 255, 63 A.L.R.2d 920 (Fla. 1956) . . . . 14.6.C.4 Holland, In re Adoption of, 965 So. 2d 1213 (Fla. 5th DCA 2007) . . . . 2.2.A.2.a Holliman v. Green, 439 So. 2d 955 (Fla. 1st DCA 1983) . . . . 2.2.A.1.b Holloway v. Colee, 255 F. 43 (5th Cir. 1919) . . . . 7.5.C.3.e Holloway v. Collee, 247 F. 598 (S.D. Fla. 1918) . . . . 7.5.C.3.e Hollywood, Inc. v. City of Hollywood, 321 So. 2d 65 (Fla. 1975) . . . . 10.3.B.1 Holmen v. Holmen, 697 So. 2d 866 (Fla. 4th DCA 1997) . . . . 4.9.A Hopkins v. McClure, 45 So. 2d 656 (Fla. 1950) . . . . 13.3.D Horn v. Air Sal, Inc., 519 So. 2d 1106 (Fla. 3d DCA 1988) . . . . 6.6.D.2 Horne, In re Estate of, 171 So. 2d 14 (Fla. 2d DCA 1965) . . . . 7.5.C.3.d Horne’s Estate, In re, 149 Fla. 710, 7 So. 2d 13 (1942) . . . . 2.2.A.1.a Hortt, In re Estate of, 149 So. 2d 907 (Fla. 2d DCA 1963) . . . . 14.3.D Howard v. Baumer, 519 So. 2d 679 (Fla. 1st DCA 1988) . . . . 14.3.D Howard, In re Estate of, 342 So. 2d 395 (Fla. 1st DCA 1989) . . . . 10.3.B.4 Howard, In re Estate of, 393 So. 2d 81 (Fla. 4th DCA 1981) . . . . 7.5.B.4, 7.6.B, 7.5.C.2 Howard, In re Estate of, 542 So. 2d 395 (Fla. 1st DCA 1989) . . . . 1.4.A, 2.2.A.5, 4.11, 7.2.C, 10.2.A, 10.3.B.4, 10.3.B.6 Howell v. Howell, 183 So. 2d 261 (Fla. 2d DCA 1966) . . . . 11.2.R.2 Hoyt v. Hoyt, 814 So. 2d 1254 (Fla. 2d DCA 2002) . . . . 4.5.A, 9.3.I HSBC Bank USA, N.A. v. Knox, 947 N.Y.S.2d 292 (App. Div. 2012) . . . . 9.4.C.2 Hubert v. Hubert, 622 So. 2d 1049 (Fla. 4th DCA 1993) . . . . 8.3.D Hughes v. Hannah, 39 Fla. 365, 22 So. 613 (1897) . . . . 10.2.A, 10.3.A, 10.3.B.2, 10.3.B.3, 10.4.A Hulsh v. Hulsh, 431 So. 2d 658 (Fla. 3d DCA 1983) . . . . 2.2.A.7.f.ii, 7.5.B.2,

8.3.E Hunt v. Covington, 145 Fla. 706, 200 So. 76 (1941) . . . . 5.2.C.2.c, 5.2.D.2.b, 5.2.D.2.c Hurlbert v. Shackleton, 560 So. 2d 1276 (Fla. 1st DCA 1990) . . . . 5.2.C.2.a, 5.2.D.2.a Hutchens v. Maxicenters, U.S.A., 541 So. 2d 618 (Fla. 5th DCA 1988) . . . . 10.3.B.1 Hutchins v. Hutchins, 522 So. 2d 547 (Fla. 4th DCA 1988) . . . . 11.4.C

I I.A. v. H.H., 710 So. 2d 162 (Fla. 2d DCA 1998) . . . . 2.2.A.1.b Iandoli v. Iandoli, 504 So. 2d 426 (Fla. 4th DCA 1987) . . . . 8.3.C.3 Iandoli v. Iandoli, 547 So. 2d 666 (Fla. 4th DCA 1989) . . . . 14.6.C.1, 14.6.D In re Adoption of (see name of party) In re Estate of (see name of party) In re Guardianship of (see name of party) In re Petition of (see name of party) In re (see name of party) In re Trust of (see name of party) In re Will of (see name of party) In the Matter of (see name of party) Independent Mortgage & Finance, Inc. v. Deater, 814 So. 2d 1224 (Fla. 3d DCA 2002) . . . . 7.6.A.3 Interim Healthcare of Northwest Florida, Inc. v. Estate of Ries, 910 So. 2d 329 (Fla. 4th DCA 2005) . . . . 14.3.C

J J.E.W. v. Estate of Doe, 443 So. 2d 249 (Fla. 1st DCA 1984) . . . . 7.5.C.3.h J.T.J v. N.H., 84 So. 3d 1176 (Fla. 4th DCA 2012) . . . . 2.2.A.1.b Jacobs v. Jacobs, 633 So. 2d 30 (Fla. 5th DCA 1994) . . . . 4.6.B, 8.3.E Jacobs v. Vaillancourt, 634 So. 2d 667 (Fla. 2d DCA 1994) . . . . 3.2.A.3.b Janes, In re Estate of, 681 N.E.2d 332 (N.Y. 1997) . . . . 9.4.C.2 Janien v. Janien, 939 So. 2d 264 (Fla. 4th DCA 2006) . . . . 4.3.B.6 Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998) . . . . 10.5 JBK Associates, Inc. v. Sill Bros. Inc., 191 So. 3d 879 (Fla. 2016) . . . . 8.3.D Jefferson v. State, 264 So. 3d 1019 (Fla. 2d DCA 2018) . . . . 5.3.C.4 Jeffries’ Estate, In re, 136 Fla. 410, 181 So. 833 (1938) . . . . 6.6.C, 6.6.D.1, 6.6.D.2 Jennings v. Prudential Insurance Company of America, 402 So. 2d 1367 (Fla. 1st DCA 1981) . . . . 6.8.A Jensen v. Estate of Gambidilla, 896 So. 2d 917 (Fla. 4th DCA 2005) . . . . 2.5, 9.3.H, 9.3.N Jerrels v. Jerrels, 276 So. 3d 362 (Fla. 2d DCA 2019) . . . . 14.3.B Jerrido, In re Estate of, 339 So. 2d 237 (Fla. 4th DCA 1976) . . . . 2.2.A.1.b, 14.3.C Joerg v. State Farm Mutual Automobile Insurance, Co, 176 So. 3d 1247 (Fla. 2015) . . . . 12.8.D.3 Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914) . . . . 8.2.B.3 Johnson v. Burleson, 61 So. 2d 170 (Fla. 1952) . . . . 11.2.C.2.a.i Johnson v. Estate of Fraedrich, 472 So. 2d 1266 (Fla. 1st DCA 1985) . . . . 6.6.D.2 Johnson v. Feeney, 507 So. 2d 722 (Fla. 3d DCA 1987) . . . . 2.2.A.7.d Johnson v. Girtman, 542 So. 2d 1033 (Fla. 3d DCA 1989) . . . . 3.2.B.1.c Johnson v. Knight, 424 So. 2d 166 (Fla. 3d DCA 1983) . . . . 9.2 Johnson v. Landefeld, 138 Fla. 511, 189 So. 666 (1939) . . . . 5.2.C.2.a

Johnson v. State, 308 So. 2d 127 (Fla. 1st DCA 1975) . . . . 1.2 Johnson v. State, 346 So. 2d 66 (Fla. 1977) . . . . 1.2 Johnson v. State, 371 So. 2d 556 (Fla. 2d DCA 1979) . . . . 3.2.F.4.c Johnson v. Sullivan, 735 F. Supp. 416 (M.D. Fla. 1990) . . . . 2.2.A.1.a Johnson v. Townsend, 259 So. 3d 851 (Fla. 4th DCA 2018) . . . . 4.13, 6.2.A, 6.8.B Johnson v. Townsend, 2019 Fla. LEXIS 2049 (Fla. 2019) . . . . 4.13 Johnson, In re Estate of, 397 So. 2d 970 (Fla. 4th DCA 1981) . . . . 8.2.B.3 Jolley v. Seamco Laboratories, Inc, 828 So. 2d 1050 (Fla. 1st DCA 2002) . . . . 12.4.C Jones v. Barnett Bank of Volusia County, 670 So. 2d 1195 (Fla. 5th DCA 1996) . . . . 5.4.A.2 Jones v. Federal Farm Mortg. Corp., 132 Fla. 807, 182 So. 226 (1938) . . . . 2.6 Jones v. Golden, 176 So. 3d 242 (Fla. 2015) . . . . 6.2.A, 6.2.B.1, 6.2.B.4, 6.2.C, 6.3.A Jones v. Habersham, 107 U.S. 174, 2 S. Ct. 336, 27 L. Ed. 401 (1883) . . . . 7.5.C.3.a Jones v. Jones, 119 Fla. 824, 161 So. 836, 104 A.L.R. 1 (1935) . . . . 2.2.A.7.a Jones v. Jones, 412 So. 2d 387 (Fla. 2d DCA 1982) . . . . 8.2.C, 8.4.B Jones v. Sun Bank/Miami, N.A., 609 So. 2d 98 (Fla. 3d DCA 1992) . . . . 6.2.C, 14.6.D Jones, In re Estate of, 318 So. 2d 231 (Fla. 2d DCA 1975) . . . . 3.2.A.6.b Jones, In re Estate of, 352 So. 2d 1182 (Fla. 2d DCA 1977) . . . . 3.2.A.6.b, 3.2.B.5 Jones, In re Estate of, 472 So. 2d 1299 (Fla. 2d DCA 1985) . . . . 7.5.B.5 Jones-Bishop v. Estate of Sweeney, 27 So. 3d 176 (Fla. 5th DCA 2010) . . . . 14.4 Jordan v. Fehr, 902 So. 2d 198 (Fla. 1st DCA 2005) . . . . 3.2.A.2.c Joseph v. Chanin, 940 So. 2d 483 (Fla. 4th DCA 2006) . . . . 5.3.C.2.a, 5.4.A.3, 5.4.A.4

Joseph Land & Co. v. Green, 486 So. 2d 87 (Fla. 1st DCA 1986) . . . . 11.3.K Josephson v. Kuhner, 139 So. 2d 440 (Fla. 1st DCA 1962) . . . . 5.3.C.1 Jouvence Center for Advanced Health, LLC v. Jouvence Rejuvenation Centers, LLC, 14 So. 3d 1097 (Fla. 4th DCA 2009) . . . . 9.3.F JP Morgan Chase Bank, N.A., In re, 910 N.Y.S.2d 405 (Surr. Ct. 2010) . . . . 9.4.C.2 JP Morgan Chase Bank N.A. (Strong), Matter of, 981 N.Y.S.2d 636 (Surr. Ct. 2013) . . . . 9.4.C.2 JPMorgan Chase Bank, N.A, In re, 20 N.Y.S.3d 499 (App. Div. 2015) . . . . 9.4.C.2 Julia v. Russo, 984 So. 2d 1283 (Fla. 4th DCA 2008) . . . . 2.2.A.5, 4.11, 5.2.B.2, 5.2.C.2.b, 5.3.C.2.a, 5.3.C.3, 5.4.A.1, 5.4.A.3 Jurasek v. Jurasek, 67 So. 3d 1210 (Fla. 3d DCA 2011) . . . . 5.3.C.2.a, 5.3.C.3 Jureski v. Scaduto, 882 So. 2d 1061 (Fla. 4th DCA 2004) . . . . 7.5.C.3.d

K K.M.A. Associates, Inc. v. Meros, 452 So. 2d 580 (Fla. 2d DCA 1984) . . . . 10.3.B.1 K.R.C., In re Guardianship of, 83 So. 3d 932 (Fla. 2d DCA 2012) . . . . 11.6 Kaplan v. Estate of Kaplan, 780 So. 2d 135 (Fla. 4th DCA 2000) . . . . 14.3.C Karasek v. William J. Lamping Trust, 909 So. 2d 552 (Fla. 4th DCA 2005) . . . . 7.5.C.3.g Karr v. Vitry, 135 So. 3d 372 (Fla. 5th DCA 2014) . . . . 5.4.B.3.e, 14.3.B Kastner v. Helm, 425 F. Supp. 771 (M.D. Fla. 1977) . . . . 9.3.B Kata v. Hayden, 544 So. 2d 315 (Fla. 2d DCA 1989) . . . . 6.5.C Katz v. Katz, 666 So. 2d 1025 (Fla. 4th DCA 1996) . . . . 5.3.C.2.a Kawasaki of Tampa, Inc. v. Calvin, 348 So. 2d 897 (Fla. 1st DCA 1977) . . . . 3.2.F.4.c Kearney v. Unibay Co., 466 So. 2d 271 (Fla. 4th DCA 1985) . . . . 5.5.A, 5.5.B Keay v. City of Coral Gables, 236 So. 2d 133 (Fla. 3d DCA 1970) . . . . 14.5.B Keerl, In re Estate of, 451 So. 2d 872 (Fla. 2d DCA 1984) . . . . 6.5.D.1 Kellar v. Estate of Kellar, 257 So. 3d 1044 (Fla. 4th DCA 2018) . . . . 3.2.A.3.b, 5.3.C.5 Kelly v. Ely, 2015 WL 1061720 (N.D. Fla. 2015) . . . . 7.2.B Kelly v. Georgia-Pacific, LLC, 211 So. 3d 340 (Fla. 4th DCA 2017) . . . . 12.4.B Kelly v. Lindenau, 223 So. 3d 1074 (Fla. 2d DCA 2017) . . . . 3.2.A.2.c, 3.2.A.4.b, 3.3.B.3.b Kelly v. Militana, 595 So. 2d 113 (Fla. 3d DCA 1992) . . . . 11.2.C.3.a Kelly Assisted Living Services, Inc. v. Estate of Reuter, 681 So. 2d 813 (Fla. 3d DCA 1996) . . . . 6.6.D.2 Kemp & Associates, Inc. v. Chisholm, 162 So. 3d 172 (Fla. 5th DCA 2015) . . . . 2.2.A.2.a

Kemp, In re Estate of, 177 So. 2d 757 (Fla. 1st DCA 1965) . . . . 6.5.D.2, 6.6.D.2 Kendrick v. Everheart, 390 So. 2d 53 (Fla. 1980) . . . . 2.2.A.1.b Kent Insurance Co. v. Estate of Atwood, 481 So. 2d 1294 (Fla. 1st DCA 1986) . . . . 6.8.A Kenton, Estate of v. Kenton, 423 So. 2d 531 (Fla. 5th DCA 1982) . . . . 4.6.B Kernkamp v. Bolthouse, 714 So. 2d 655 (Fla. 5th DCA 1998) . . . . 7.6.A.2, 7.6.A.3, 7.6.C Kero, In re Estate of, 591 So. 2d 675 (Fla. 4th DCA 1992) . . . . 3.2.A.4.b Kester, Estate of v. Rocco, 117 So. 3d 1196 (Fla. 1st DCA 2013) . . . . 3.2.A.3.b Keul v. Hodges Blvd. Presbyterian Church, 180 So. 3d 1074 (Fla. 1st DCA 2015) . . . . 5.4.B.3.f, 5.6 Khoury v. Estate of Kashey, 533 So. 2d 908 (Fla. 3d DCA 1988) . . . . 11.2.C.3.a Kiggins’ Estate, In re, 67 So. 2d 915 (Fla. 1953) . . . . 14.6.C.3 Killinger v. Guardianship of Grable, 983 So. 2d 30 (Fla. 5th DCA 2008) . . . . 14.5.A Killinger, In re Estate of, 448 So. 2d 1187 (Fla. 2d DCA 1984) . . . . 2.5 Killings v. Estate of Burks, 473 So. 2d 827 (Fla. 1st DCA 1985) . . . . 4.4.A Kindy, In re Estate of, 310 So. 2d 349 (Fla. 3d DCA 1975) . . . . 11.2.M King v. Ellison, 648 So. 2d 666 (Fla. 1995) . . . . 8.2.B.2 King v. Estate of King, 554 So. 2d 600 (Fla. 1st DCA 1990) . . . . 5.4.B.2, 5.4.B.3.a King Mountain Condominium Ass’n, Inc. v. Gundlach, 425 So. 2d 569 (Fla. 4th DCA 1983) . . . . 10.3.B.1, 10.3.B.2, 10.3.B.3, 10.3.B.4, 10.3.B.6 Kinney v. Countrywide Home Loans Servicing, L.P., 165 So. 3d 691 (Fla. 4th DCA 2015) . . . . 10.3.B.5 Kinney v. Shinholser, 663 So. 2d 643 (Fla. 5th DCA 1995) . . . . 9.4.K Kittel v. Simmonite, 152 So. 2d 817 (Fla. 3d DCA 1963) . . . . 9.4.F.2 Klem v. Espejo-Norton, 983 So. 2d 1235 (Fla. 3d DCA 2008) . . . . 1.4.B, 1.4.C

Klingensmith v. Ferd & Gladys Alpert Jewish Family, 997 So. 2d 436 . . . . 14.3.D Klotz, In re Estate of, 394 So. 2d 509 (Fla. 5th DCA 1981) . . . . 6.6.H, 14.4 Knadle v. Estate of Knadle, 686 So. 2d 631 (Fla. 1st DCA 1997) . . . . 8.3.D Knauer v. Barnett, 360 So. 2d 399 (Fla. 1978) . . . . 2.2.A.1.a, 2.2.A.1.b Knecht v. Palmer, 252 So. 3d 842 (Fla. 5th DCA 2018) . . . . 5.3.C.2.a Knowles v. Beverly Enterprises-Florida, Inc., 898 So. 2d 1 (Fla. 2005) . . . . 12.3.B Knox v. Spratt, 19 Fla. 817 (1883) . . . . 2.4 Kobel v. Schlosser, 601 So. 2d 601 (Fla. 4th DCA 1992) . . . . 14.9.E Koerner v. Borck, 100 So. 2d 398 (Fla. 1958) . . . . 7.5.C.3.b Kolb v. Levy, 104 So. 2d 874 (Fla. 3d DCA 1958) . . . . 9.3.B, 9.3.D Kollar v. Kollar, 155 Fla. 705, 21 So. 2d 356 (1945) . . . . 5.3.C.2.a, 5.3.C.3 Koniecpolski v. Stelnicki, 571 So. 2d 577 (Fla. 5th DCA 1990) . . . . 14.3.D Kopec, Matter of, 885 N.Y.S.2d 401 (Surr. Ct. 2009) . . . . 9.4.C.2 Korbin v. Ginsberg, 232 So. 2d 417 (Fla. 4th DCA 1970) . . . . 2.2.A.2.a, 2.2.A.2.b Korman v. Pond Apple Maintenance Ass’n, Inc., 607 So. 2d 489 (Fla. 4th DCA 1992) . . . . 11.2.L.2, 11.3.I Koshuba, In re Estate of, 993 So. 2d 983 (Fla. 2d DCA 2007) . . . . 6.2.B.4 Kountze v. Kountze, 20 So. 3d 428 (Fla. 2d DCA 2009) . . . . 1.4.D.2.c, 9.3.F Kountze v. Kountze, 20 So. 3d 428 (Fla. 3d DCA 2009) . . . . 1.4.D.2.c Kountze v. Kountze, 93 So. 3d 1164 (Fla. 2d DCA 2012) . . . . 9.3.E Kowalski v. Rosenbaum, 255 So. 3d 963 (Fla. 2d DCA 2018) . . . . 5.2.C.2.b, 5.2.C.2.c, 5.2.D.1.b, 5.2.D.2.a, 5.2.D.2.b Kozacik v. Kozacik, 26 So. 2d 659, 157 Fla. 597 (Fla. 1946) . . . . 5.2.C.2.a Kozacik v. Kozacik, 157 Fla. 597, 26 So. 2d 659 (1946) . . . . 5.2.C.1, 5.2.C.2.a, 5.2.C.2.b Kozinski v. Stabenow, 152 So. 3d 650 (Fla. 4th DCA 2014) . . . . 3.3.H.1, 9.4.A Kramer v. Freedman, 272 So. 2d 195 (Fla. 3d DCA 1973) . . . . 13.2.B.2,

13.2.C.2, 13.2.D.3, 13.4.B, 13.5.C, 13.9 Krasnosky v. Krasnosky, 282 So. 2d 186 (Fla. 1st DCA 1973) . . . . 1.4.D.3.c Kravitz v. Levy, 973 So. 2d 1274 (Fla. 4th DCA 2008) . . . . 9.4.F.2 Krieger, In re Estate of, 88 So. 2d 497 (Fla. 1956) . . . . 3.2.A.5.b, 3.2.B.1.a Krivitsky v. Nye, 155 Fla. 45, 19 So. 2d 563 (1944) . . . . 9.4.F.2 Kronfeld v. Kronfeld, 761 So. 2d 411 (Fla. 3d DCA 2000) . . . . 5.3.C.2.a Kuebler v. Kuebler, 131 So. 2d 211 (Fla. 2d DCA 1961) . . . . 5.3.B.2, 5.3.B.3, 5.2.C.2.a Kuehmsted v. Turnwall, 103 Fla. 1180, 138 So. 775 (1932) . . . . 2.2.A.7.e, 4.2 Kuehmsted v. Turnwall, 115 Fla. 692, 155 So. 847 (1934) . . . . 3.2.A.3.a Kupec v. Cooper, 593 So. 2d 1176 (Fla. 5th DCA 1992) . . . . 2.2.A.2.d Kushner v. Engelberg, Cantor & Leone, P.A., 750 So. 2d 33 (Fla. 4th DCA 1999) . . . . 11.2.M Kuszmaul, In re Estate of, 491 So. 2d 287, 84 A.L.R. 4th 527 (Fla. 4th DCA 1986) . . . . 3.2.A.4.b Ky. Ass’n of Health Plans v. Miller, 538 U.S. 329, 123 S. Ct. 1471, 155 L. Ed. 2d 468 . . . . 12.8.D.1

L La Pierre v. Kalergis, 257 So. 2d 33 (Fla. 1972) . . . . 5.2.C.1, 5.2.C.2.a Lahurd; State v., 632 So. 2d 1101 (Fla. 4th DCA 1994) . . . . 9.3.M Lakin v. Lakin, 901 So. 2d 186 (Fla. 4th DCA 2005) . . . . 5.3.C.2.a Lamb, In re Estate of, 763 So. 2d 363 (Fla. 4th DCA 1998) . . . . 9.4.C.3 Lampe v. Hoyne, 652 So. 2d 424 (Fla. 2d DCA 1995) . . . . 3.3.F.2 Landau v. Landau, 230 So. 3d 127 (Fla. 3d DCA 2017) . . . . 9.3.F Landon v. Isler, 681 So. 2d 755 (Fla. 2d DCA 1996) . . . . 9.3.I, 9.4.C.3, 11.2.C.2.b, 11.2.J Lane, In re Estate of, 492 So. 2d 395 (Fla. 4th DCA 1986) . . . . 3.2.A.5.b Lane, In re Estate of, 562 So. 2d 352 (Fla. 4th DCA 1990) . . . . 3.2.B.4, 3.2.C.3, 7.7, 11.2.D Langer v. Fels, 93 So. 3d 1069 (Fla. 4th DCA 2012) . . . . 11.2.R.2 Langford v. Ferrera, 823 So. 2d 795 (Fla. 1st DCA 2002) . . . . 14.6.D Laramore v. Laramore, 64 So. 2d 662 (Fla. 1953) . . . . 9.3.B, 9.3.F, 9.3.H, 9.4.C.4 Larkin v. Pirthauer, 700 So. 2d 182 (Fla. 4th DCA 1997) . . . . 14.3.D, 14.5.A Larusso v. Garner, 888 So. 2d 712 (Fla. 4th DCA 2004) . . . . 12.4.C Lasater v. Leathers, 475 So. 2d 1329 (Fla. 5th DCA 1985) . . . . 6.6.H Lasdon, In re, 963 N.Y.S.2d 99 (App. Div. 2013) . . . . 9.4.C.2 Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005) . . . . 4.6.B Laushway v. Onofrio, 670 So. 2d 1135 (Fla. 5th DCA 1996) . . . . 1.4.D.2.b, 1.4.E Lavey v. Doig, 25 Fla. 611, 6 So. 259 (1889) . . . . 3.2.F.1, 10.3.B.4, 10.3.B.6 Law v. Law, 738 So. 2d 522 (Fla. 4th DCA 1999) . . . . 8.2.A Law Office of Michael B. Brehne, P.A. v. Porter Law Firm, LLC, 268 So. 3d 854 (Fla. 5th DCA 2019) . . . . 11.4.C Laws v. Laws, 364 So. 2d 798 (Fla. 4th DCA 1978) . . . . 5.3.C.3

Layne v. Layne, 74 So. 3d 161 (Fla. 1st DCA 2011) . . . . 2.6 Leapai v. Milton, 595 So. 2d 12 . . . . 1.2 Lee v. Lee, 263 So. 3d 826 (Fla. 3d DCA 2019) . . . . 14.3.B Lee v. Patton, 342 So. 2d 542 (Fla. 3d DCA 1977) . . . . 5.3.C.5 Lefkowitz v. Schwartz, 299 So. 3d 549 (Fla 5th DCA 2020) . . . . 6.8.B Lefkowitz, Estate of v. Olsten Kimberly Qualitycare, 679 So. 2d 63 (Fla. 4th DCA 1996) . . . . 14.3.C Lehman v. Lucom, 78 So. 3d 592 (Fla. 4th DCA 2012) . . . . 2.5, 9.4.E Lenahan, In re Estate of, 511 So. 2d 365 (Fla. 1st DCA 1987) . . . . 7.6.A.2, 7.6.A.3, 7.6.C Leonard v. Campbell, 138 Fla. 405, 189 So. 839 (1939) . . . . 5.3.B.1, 5.3.B.2 Leone v. Putnam, 466 F.2d 512 (5th Cir. 1972) . . . . 5.2.D.1.b Leonetti v. Boone, 74 So. 2d 551 (Fla. 1954) . . . . 5.3.C.4 Lerma-Fusco v. Smith, 220 So. 3d 562 (Fla. 5th DCA 2017) . . . . 6.2.C, 14.4 Lerner v. Brin, 608 So. 2d 519 (Fla. 3d DCA 1992) . . . . 14.6.C.3 Lerner v. Lerner, 113 So. 2d 212 (Fla. 2d DCA 1959) . . . . 5.2.D.2.a, 5.2.D.2.b, 5.4.A.4 Leslie v. Leslie, 840 So. 2d 1097 (Fla. 4th DCA 2003) . . . . 14.5.A Leterman, In re Estate of, 238 So. 2d 695 (Fla. 3d DCA 1970) . . . . 14.3.D Levett, In re Estate of, 719 So. 2d 294 (Fla. 2d DCA 1998) . . . . 3.2.B.1.a Levey v. Adams, 609 So. 2d 163 (Fla. 4th DCA 1992) . . . . 1.4.D.2.b Levin v. Levin, 60 So. 3d 1116 (Fla. 4th DCA 2011) . . . . 3.2.A.3.a Levin v. Levin, 67 So. 3d 429 (Fla. 4th DCA 2011) . . . . 3.2.G.3, 7.7 Levine v. Feuer, 152 So. 2d 784 (Fla. 3d DCA 1963) . . . . 2.3.E, 4.5.A Levine v. Hirshon, 980 So. 2d 1053 (Fla. 2008) . . . . 8.2.A Levine v. Steiger, 765 So. 2d 249 (Fla. 4th DCA 2000) . . . . 14.6.D Levy, In re Estate of, 196 So. 2d 225 (Fla. 3d DCA 1967) . . . . 7.5.C.3.h Lewis v. Estate of Turcol, 709 So. 2d 186 (Fla. 5th DCA 1998) . . . . 5.2.B.1 Lewis v. Green, 389 So. 2d 235, 11 A.L.R. 4th 927 (Fla. 5th DCA 1980) . . . . 7.5.B.7

Lewis v. SunTrust Bank, Miami, N.A., 698 So. 2d 1276 (Fla. 3d DCA 1997) . . . . 13.3.C.1.c Lewis, In re, 226 B.R. 703 (Bankr. N.D. Fla. 1998) . . . . 8.3.D Lewis, In re Estate of, 442 So. 2d 290 (Fla. 4th DCA 1984) . . . . 11.2.C.2.a.ii Lewsadder v. Estate of Lewsadder, 757 So. 2d 1221 (Fla. 4th DCA 2000) . . . . 6.6.E, 6.6.H Lieber, In re Estate of, 103 So. 2d 192 (Fla. 1958) . . . . 11.2.A, 11.2.K.1.a Lieberman v. Lieberman, 160 So. 3d 73 (Fla. 4th DCA 2014) . . . . 11.2.K.1.c Lif v. In re: Estate of Lif, 325 So. 3d 968 (Fla. 3d DCA 2021) . . . . 9.3.B, 9.3.L Lindor v. Florida East Coast Railway, LLC, 255 So. 3d 490 (Fla. 3d DCA 2018) . . . . 12.3.F Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88 (Fla. 3d DCA 1987) . . . . 10.3.B.6 Litras, In re Estate of, 686 So. 2d 715 (Fla. 4th DCA 1997) . . . . 14.6.D Litsey v. First Federal Savings & Loan Ass’n of Tampa, 243 So. 2d 239, 46 A.L.R. 3d 477 (Fla. 2d DCA 1971) . . . . 3.3.B.3.b, 5.5.A Lituchy v. Estate of Lituchy, 61 So. 3d 506 (Fla. 4th DCA 2011) . . . . 14.9.C.3 Livingston v. Crickenberger, 141 So. 2d 794 (Fla. 1st DCA 1962) . . . . 2.8 LoCascio v. Sharpe, 23 So. 3d 1209 (Fla. 3d DCA 2010) . . . . 2.2.A.5, 4.11 Logan v. Scheffler, 441 So. 2d 666 (Fla. 3d DCA 1983) . . . . 9.3.N Lonergan v. Estate of Budahazi, 669 So. 2d 1062 (Fla. 5th DCA 1996) . . . . 3.2.A.4.b, 5.3.C.4, 14.6.C.1 Long v. Willis, 113 So. 3d 80 (Fla. 2d DCA 2013) . . . . 9.2 Longmire v. Estate of Ruffin, 909 So. 2d 443 (Fla. 4th DCA 2005) . . . . 6.2.C, 14.3.C Lonstein, In re Estate of, 433 So. 2d 672 (Fla. 4th DCA 1983) . . . . 11.2.M Lopez v. Hernandez, 172 So. 3d 501 (Fla. 5th DCA 2015) . . . . 14.7.A Lopez v. Lopez, 90 So. 2d 456 (Fla. 1956) . . . . 5.2.D.2.c Lopez v. Lopez, 689 So. 2d 1218 (Fla. 5th DCA 1997) . . . . 14.7.A

Lopez v. Rodriguez, 574 So. 2d 249 (Fla. 3d DCA 1991) . . . . 2.2.A.5, 4.11, 5.5.A, 5.5.B Lorenzo v. Medina, 47 So. 3d 927 (Fla. 3d DCA 2010) . . . . 7.5.B.2 Losey v. Losey, 221 So. 2d 417 (Fla. 1969) . . . . 5.2.D.1.a Lovest v. Mangiero, 279 So. 3d 205 (Fla. 3d DCA 2019) . . . . 1.3.E.7.a Lowry v. Florida National Bank of Jacksonville, 42 So. 2d 368 (Fla. 1949) . . . . 5.3.C.1 Lowy v. Kessler, 522 So. 2d 917 (Fla. 3d DCA 1988) . . . . 11.2.M Lubbe, In re Estate of, 142 So. 2d 130 (Fla. 2d DCA 1962) . . . . 3.2.A.2.c, 3.2.B.5 Lunga, In re Estate of, 360 So. 2d 109, 360 So. 2d 109 (Fla. 3d DCA 1978) . . . . 11.2.P Luszcz v. Lavoie, 787 So. 2d 245 (Fla. 2d DCA 2001) . . . . 5.5.B Luxmoore v. Wallace, 145 Fla. 325, 199 So. 492 (1941) . . . . 7.5.C.3.c Lynch v. Murray, 139 F.2d 649 (5th Cir. 1944) . . . . 5.2.C.1 Lyne, In re Estate of, 92 So. 2d 183 (Fla. 1957) . . . . 14.9.C.3 Lyons v. Lyons, 155 So. 3d 1179 (Fla. 4th DCA 2015) . . . . 8.3.C.1 Lyons v. Lyons, 687 So. 2d 837 (Fla. 2d DCA 1996) . . . . 5.3.C.3 Lyons, In re Estate of, 90 So. 2d 39 (Fla. 1956) . . . . 5.2.D.1.b

M M.R. v. A.B.C., 739 So. 2d 118 (Fla. 3d DCA 1999) . . . . 14.3.C Macfarlane v. First National Bank of Miami, 203 So. 2d 57 (Fla. 3d DCA 1967) . . . . 3.3.B.3.a, 3.3.B.3.b MacIntyre v. Wedell, 12 So. 3d 273 (Fla. 4th DCA 2009) . . . . 3.3.B.2.b Mack v. Perri, 24 So. 3d 697 (Fla. 1st DCA 2009) . . . . 6.2.A, 6.2.C Madison v. Robinson, 95 Fla. 321, 116 So. 31 (1928) . . . . 2.2.A.7.a Madrigal, Estate of v. Madrigal, 22 So. 3d 828 (Fla. 3d DCA 2009) . . . . 14.6.C.3 Magee, In re Estate of, 902 So. 2d 909 (Fla. 2d DCA 2005) . . . . 4.3.B.4, 14.3.D Magee, In re Estate of, 988 So. 2d 1 (Fla. 2d DCA 2007) . . . . 4.3.B.1 Magwood v. Tate, 835 So. 2d 1241 (Fla. 4th DCA 2003) . . . . 12.4.D Mahan v. Mahan, 88 So. 2d 545, 57 A.L.R. 2d 1246 (Fla. 1956) . . . . 4.2 Maher, Estate of v. Iglikova, 138 So. 3d 484 (Fla. 3d DCA 2014) . . . . 2.2.A.1.b, 4.9.A Maier v. Bean, 189 So. 2d 380 (Fla. 2d DCA 1966) . . . . 5.3.B.3, 5.4.B.2 Maliski v. Maliski, 664 So. 2d 341 (Fla. 5th DCA 1995) . . . . 5.3.C.2.b Mangasarian v. Mercurio, 570 So. 2d 356 (Fla. 3d DCA 1990) . . . . 9.3.E Mann v. Davis, 131 So. 3d 830 (Fla. 1st DCA 2014) . . . . 14.3.B Manor Oaks, Inc. v. Campbell, 276 So. 3d 830 (Fla. 4th DCA 2019) . . . . 14.4 Manufacturers National Bank of Detroit v. Moons, 659 So. 2d 474 (Fla. 4th DCA 1995) . . . . 1.4.E, 3.3.E.2 Marger v. De Rosa, 57 So. 3d 866 (Fla. 2d DCA 2011) . . . . 8.2.D Margesson v. Bank of New York, 738 N.Y.S.2d 411, 291 A.D.2d 694 (App. Div. 2002) . . . . 9.4.C.2 Marine Midland Bank-New York v. Arms, 409 So. 2d 215 (Fla. 4th DCA 1982) . . . . 5.2.B.1, 5.2.D.1.a, 5.2.D.1.b

Mark W. Rickard v. Nature’s Sleep Factory Direct, LLC, 261 So. 3d 567 (Fla. 4th DCA 2018) . . . . 11.2.C.3.a Markham v. Allen, 326 U.S. 490, 66 S. Ct. 296, 90 L. Ed. 256 (1946) . . . . 7.2.B Markowitz v. Merson, 869 So. 2d 728 (Fla. 4th DCA 2004) . . . . 1.4.C, 1.4.D.2.b, 1.4.D.2.c, 1.4.D.3.c, 1.4.E, 9.3.F Marks, In re Estate of, 83 So. 2d 853 (Fla. 1955) . . . . 11.2.K.1.b, 11.2.M Marlowe v. Brown, 944 So. 2d 1036 (Fla. 4th DCA 2006) . . . . 2.2.A.7.d Marshall v. Marshall, 547 U.S. 293, 126 S. Ct. 1735, 164 L. Ed. 2d 480 (2006) . . . . 7.2.B Marshek v. Marshek, 599 So. 2d 175 (Fla. 1st DCA 1992) . . . . 2.2.A.1.b Martin v. Martin, 687 So. 2d 903 (Fla. 4th DCA 1997) . . . . 1.4.E, 3.2.B.1.c, 3.2.B.2.a, 3.3.C.2, 13.2.B.1, 13.2.C.2, 13.2.D.3, 13.2.D.4, 13.3.C, 13.3.C.1.a, 13.3.C.1.b, 13.3.C.1.c, 13.4.A, 13.5.B, 13.5.C, 13.9 Martinez v. Ipox, 925 So. 2d 448 (Fla. 2d DCA 2006) . . . . 12.5 Martinez v. Kennedy Real Estate of Labelle, Inc., Pension Trust, 565 So. 2d 399 (Fla. 2d DCA 1990) . . . . 6.8.A Martinez v. Ward, 19 Fla. 175 (1882) . . . . 5.2.B.2 Martini v. Estate of Conner, 113 So. 3d 147 (Fla. 2d DCA 2013) . . . . 4.4.B Martini v. Estate of Conner, 113 So. 3d 147 (Fla. 2d DCA 2013) . . . . 14.3.B Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097 (Fla. 1987) . . . . 14.5.A Martino, In re, 313 So. 3d 687 (Fla. 2d DCA 2020) . . . . 1.3.E.7.a Marvin & Kay Lichtman Foundation v. Estate of Lichtman, 773 So. 2d 1232 (Fla. 3d DCA 2000) . . . . 11.2.F Massachusetts Audubon Society v. Ormond Village Improvement Ass’n, 152 Fla. 1, 10 So. 2d 494 (1942) . . . . 7.5.C.3.c Massachusetts Life Insurance Co. v. Crapo, 918 So. 2d 393 (Fla. 1st DCA 2006) . . . . 14.3.B Massey v. David, 979 So. 2d 931 (Fla. 2008) . . . . 1.2 Matchett, In re Estate of, 394 So. 2d 437 (Fla. 5th DCA 1981) . . . . 6.6.D.2 Mathis v. Estate of Mathis, 178 So. 3d 919 (Fla. 3d DCA 2015) . . . . 14.6.D

Matter of (see name of party) Matthews v. Matthews, 177 So. 2d 497, 28 A.L.R. 3d 1128 (Fla. 2d DCA 1965) . . . . 2.6 Matthews v. McCain, 125 Fla. 840, 170 So. 323 (1936) . . . . 5.2.D.1.a Maugeri v. Plourde, 396 So. 2d 1215 (Fla. 3d DCA 1981) . . . . 12.6, 14.1 Maxcy, In re Estate of, 165 So. 2d 446 (Fla. 2d DCA 1964) . . . . 14.3.D, 14.4 Maxcy, In re Estate of, 178 So. 2d 43 (Fla. 2d DCA 1965) . . . . 6.5.C Maxcy, In re Estate of, 240 So. 2d 93 (Fla. 2d DCA 1970) . . . . 2.4, 11.2.G Maxler v. Hawk, 233 Pa. 316 (Pa. 1912) . . . . 5.3.C.2.c Maxwell v. Mise, 660 So. 2d 816 (Fla. 5th DCA 1995) . . . . 14.6.C.1 May v. Illinois National Insurance, 245 F.3d 1281 (11th Cir. 2001) . . . . 6.2.B.3 May v. Illinois National Insurance Co., 771 So. 2d 1143 (Fla. 2000) . . . . 3.3.G.1.c, 6.2.A, 6.2.B.1, 6.2.B.3, 6.2.B.4, 6.2.C, 6.3.A, 6.3.B, 6.9 Mayers, In re Estate of, 627 So. 2d 103 (Fla. 4th DCA 1993) . . . . 14.8.E Maynard v. Florida Board of Education ex rel. University of South Florida, 998 So. 2d 1201 (Fla. 2d DCA 2009) . . . . 3.2.B.1.a McAbee v. Edwards, 340 So. 2d 1167 (Fla. 4th DCA 1976) . . . . 4.8.A, 9.4.K McAdam v. Thom, 610 So. 2d 510 (Fla. 3d DCA 1993) . . . . 5.4.A.4 McArthur, In re Estate of, 443 So. 2d 1052 (Fla. 4th DCA 1984) . . . . 14.6.D McBride v. McBride, 130 So. 2d 302 (Fla. 2d DCA 1961) . . . . 2.2.A.7.c McCormick v. Estate of Smith, 717 So. 2d 628 (Fla. 5th DCA 1998) . . . . 12.4.B McCormick v. McCormick, 991 So. 2d 437 (Fla. 1st DCA 2008) . . . . 2.4, 2.5 McCune, In re Estate of, 223 So. 2d 787 (Fla. 4th DCA 1969) . . . . 7.7, 11.2.R.2, 14.8.A McDonald v. Johnson, 83 So. 3d 889 (Fla. 2d DCA 2012) . . . . 4.3.B.6, 14.5.A McDowell v. Trailer Ranch, Inc., 421 So. 2d 751 (Fla. 4th DCA 1982) . . . . 5.2.C.2.a

McFadden Testamentary Trust, 2013 Phila. Ct. Com. Pl. LEXIS 81 (Pa. Com. Pl. 2013) . . . . 9.4.C.2 McGahee, In re Estate of, 550 So. 2d 83 (Fla. 1st DCA 1989) . . . . 7.5.B.12, 7.5.C.2, 7.6.C McGillen v. Gumpman, 171 So. 2d 69 (Fla. 3d DCA 1965) . . . . 5.2.D.1.b, 5.4.A.4, 5.4.B.3.g McGinty, In re Estate of, 243 So. 2d 191 (Fla. 4th DCA 1971) . . . . 14.3.C McGlone, In re Estate of, 436 So. 2d 441 (Fla. 4th DCA 1983) . . . . 5.2.B.1 McKean v. Warburton, 919 So. 2d 341 (Fla. 2006) . . . . 7.5.A, 8.3.D McKinnon v. Weinstein, 125 So. 3d 1014 (Fla. 5th DCA 2013) . . . . 14.3.B McLane v. Musick, 792 So. 2d 702 (Fla. 5th DCA 2001) . . . . 2.2.A.7.c McLaughlin v. Lara, 133 So. 3d 1004 (Fla. 2d DCA 2014) . . . . 14.3.B McMichael v. McMichael, 158 Fla. 413, 28 So. 2d 692 (1947) . . . . 2.2.A.7.a McMillan’s Estate, In re, 158 Fla. 898, 30 So. 2d 534 (1947) . . . . 7.5.C.3.d McMillian, In re Estate of, 603 So. 2d 685 (Fla. 1st DCA 1992) . . . . 3.3.F.2 McMonigle v. McMonigle, 932 So. 2d 369 (Fla. 2d DCA 2006) . . . . 11.2.C.3.a McMullen v. Bennis, 20 So. 3d 890 (Fla. 3d DCA 2009) . . . . 2.2.A.2.d McNamara v. City of Lake Worth, 956 So. 2d 509 (Fla. 4th DCA 2007) . . . . 11.2.R.2 McNamara v. McNamara, 40 So. 3d 78 (Fla. 5th DCA 2010) . . . . 2.2.A.7.f.ii McPhee v. Estate of Bahret, 501 So. 2d 1319 (Fla. 2d DCA 1986) . . . . 7.5.B.4 McQueen v. Jersani, 909 So. 2d 491 (Fla. 5th DCA 2005) . . . . 12.4.C McQueen, In re Estate of, 699 So. 2d 747 (Fla. 1st DCA 1997) . . . . 11.2.L.1 Medary v. Dalman, 69 So. 2d 888 (Fla. 1954) . . . . 5.3.C.2.b Medley, In re Guardianship of, 573 So. 2d 892 (Fla. 2d DCA 1991) . . . . 5.2.D.1.b, 5.4.A.2, 5.4.A.4, 5.4.B.3.b, 5.4.B.3.g, 5.5.B Medley, In re Guardianship of, 587 So. 2d 619 (Fla. 2d DCA 1991) . . . . 10.3.B.5 Meigs, In re Estate of, 177 So. 2d 246 (Fla. 1st DCA 1965) . . . . 6.5.D.2

Melendez v. Dreis & Krump Manufacturing Co., 515 So. 2d 735 (Fla. 1987) . . . . 11.6 Memorial Sloan-Kettering Cancer Center v. Levy, 681 So. 2d 842 (Fla. 3d DCA 1996) . . . . 14.3.C Menard v. University Radiation Oncology Associates, LLP, 976 So. 2d 69 (Fla. 4th DCA 2008) . . . . 8.2.A Mendez v. West Flagler Family Ass’n, 303 So. 2d 1 (Fla. 1974) . . . . 14.3.B Menz v. Estate of Menz, 381 So. 2d 375 (Fla. 1st DCA 1980) . . . . 11.2.C.2.a.ii Mercurio v. Headrick, 983 So. 2d 773 (Fla. 1st DCA 2008) . . . . 5.2.C.2.b Merkle v. Cannata, 642 So. 2d 811 (Fla. 2d DCA 1994) . . . . 5.4.B.3.c Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S. Ct. 1542, 95 L. Ed. 2d 55 (1987) . . . . 12.8.D.1 Metzger v. First National Bank of Clearwater, 585 So. 2d 372 (Fla. 2d DCA 1991) . . . . 5.4.B.3.g Miami Children’s Hospital Foundation, Inc. v. Estate of Hillman, 101 So. 3d 861 (Fla. 4th DCA 2012) . . . . 7.5.C.2 Miami Children's Hospital v. Tamayo, 529 So.2d 667 (Fla. 1988) . . . . 11.6 Miami Rescue Mission, Inc. v. Roberts, 943 So. 2d 274 (Fla. 3d DCA 2006) . . . . 3.2.A.3.a Miccosukee Tribe of Indians of Florida v. Dept. of Environmental Protection ex rel. Board of Trustees of Internal Improvement Trust Fund, 78 So. 3d 31 (Fla. 2d DCA 2012) . . . . 1.4.D.1 Millennium Diagnostic Imaging Center, Inc. v. State Farm Mutual Automobile Insurance Co., 129 So. 3d 1086 (Fla. 3d DCA 2014) . . . . 10.3.B.1 Miller v. Estate of Baer, 837 So. 2d 448 (Fla. 4th DCA 2003) . . . . 6.2.C, 14.6.D Miller v. First American Bank & Trust, 607 So. 2d 483 (Fla. 4th DCA 1992) . . . . 11.2.A, 11.3.I Miller v. Hayman, 766 So. 2d 1116 (Fla. 4th DCA 2000) . . . . 3.2.C.3, 3.2.G.3, 13.5.B, 13.5.C, 13.9

Miller v. Paczier, 591 So. 2d 321 (Fla. 3d DCA 1991) . . . . 2.2.A.2.d Miller v. Washington Mutual Bank, 184 So. 3d 558 (Fla. 4th DCA 2016) . . . . 5.2.D.2.a Miller, In re Estate of, 568 So. 2d 487 (Fla. 1st DCA 1990) . . . . 2.4, 9.2, 14.3.C Mills v. Barker, 664 So. 2d 1054 (Fla. 2d DCA 1995) . . . . 3.2.A.2.d Mills v. Hamilton, 121 Fla. 435, 163 So. 857 (1935) . . . . 2.6 Milton v. Leapai, 562 So. 2d 804 (Fla. 5th DCA 1990) . . . . 1.2 Mirzataheri v. FM East Developers, LLC, 193 So. 3d 19 (Fla. 3d DCA 2016) . . . . 8.3.D Mitchell v. Langley, 143 Ga. 827, 85 S.E. 1050 (1915) . . . . 13.2.B.1 Mitchell v. Mitchell, 368 So. 2d 628 (Fla. 4th DCA 1979) . . . . 5.3.C.2.a Mobley v. State, Agency for Health Care Administration, 181 So. 3d 1233 (Fla. 1st DCA 2015) . . . . 12.8.C.2 Monks v. Smith, 609 So. 2d 740 (Fla. 1st DCA 1993) . . . . 8.2.E, 8.3.D Montanez, In re Estate of, 687 So. 2d 943 (Fla. 3d DCA 1997) . . . . 2.2.A.7.d, 2.4, 9.3.B, 9.3.J Montgomery v. Cribb, 484 So. 2d 73 (Fla. 2d DCA 1986) . . . . 1.3.F.2 Moore v. Moore, 577 So. 2d 1359 (Fla. 2d DCA 1991) . . . . 14.3.C Morey v. Everbank, 93 So. 3d 482 (Fla. 1st DCA 2012) . . . . 3.3.B.2.c, 6.4 Morgan v. Cornell, 939 So. 2d 344 (Fla. 2d DCA 2006) . . . . 7.5.C.2 Morrison v. Estate of DeMarco, 833 So. 2d 180 (Fla. 4th DCA 2003) . . . . 9.4.K Morrow, In re Estate of, 611 So. 2d 80 (Fla. 2d DCA 1992) . . . . 8.4.A Morse v. Clark, 890 So. 2d 496 (Fla. 5th DCA 2004) . . . . 14.5.A Morse v. Kohl, Metzger, Spotts, P.A., 725 So. 2d 436 (Fla. 4th DCA 1999) . . . . 5.2.D.1.b Mosgrove v. Mach, 133 Fla. 459, 182 So. 786 (1938) . . . . 7.5.A Moss v. Estate of Moss, 777 So. 2d 1110 (Fla. 4th DCA 2001) . . . . 8.3.D Mott v. First Nat. Bank of St. Petersburg, 124 So. 444, 124 So. 36 (1929) . . . . 2.2.A.2.d

Mott v. First National Bank of St. Petersburg, 98 Fla. 444, 124 So. 36 (1929) . . . . 2.2.A.2.d Moyle v. Moschell & Moschell, 582 So. 2d 111 (Fla. 3d DCA 1991) . . . . 11.2.L.2, 11.3.J Mueller v. Butterworth, 393 So. 2d 1158 (Fla. 4th DCA 1981) . . . . 9.3.N Mulato v. Mulato, 705 So. 2d 57 (Fla. 4th DCA 1997) . . . . 5.3.B.1, 5.3.C.2.a, 5.3.C.3, 5.3.C.5, 5.4.B.3.e Mullin, In re Estate of, 128 So. 2d 617 (Fla. 2d DCA 1961) . . . . 3.2.A.3.b Mullins v. Kennelly, 847 So. 2d 1151 (Fla. 5th DCA 2003) . . . . 11.2.C.3.a Mullins v. Mullins, 274 So. 3d 513 (Fla. 5th DCA 2019) . . . . 2.7, 7.1.C, 8.5.A Mulvey v. Stephens, 250 So. 3d 106 (Fla. 4th DCA 2018) . . . . 3.2.B.1.c, 3.3.B.2.b, 10.3.B.5, 13.1, 13.2.A, 13.3.A, 13.3.C.1.a, 13.9 Murphey, In re Guardianship of, 630 So. 2d 591 (Fla. 4th DCA 1993) . . . . 14.5.A Murphy v. Tallardy, 422 So. 2d 1098 (Fla. 4th DCA 1982) . . . . 11.2.O Murphy, Estate of, 340 So. 2d 107 (Fla. 1976) . . . . 7.5.C.3.g, 8.4.B Murphy, In re Estate of, 184 So. 3d 1221 (Fla. 2d DCA 2016) . . . . 3.2.B.5, 3.2.D.1.b, 7.5.C.3.b Murphy, In re Estate of, 336 So. 2d 697 (Fla. 4th DCA 1976) . . . . 9.3.D Murphy, In re Estate of, 573 So. 2d 424 (Fla. 3d DCA 1991) . . . . 14.3.E.2 Murray v. Nationsbank of Florida, N.A., 846 So. 2d 548 (Fla. 4th DCA 2003) . . . . 6.9 Murray v. Sullivan, 376 So. 2d 886 (Fla. 1st DCA 1979) . . . . 5.2.D.2.b Murrey v. Barnett National Bank of Jacksonville, 74 So. 2d 647 (Fla. 1954) . . . . 3.2.A.3.a Musil, In re Estate of, 965 So. 2d 1157 (Fla. 2d DCA 2007) . . . . 2.2.A.2.d, 3.2.A.4.b, 3.2.B.1.a Mutual Ben. Health & Accident Ass’n v. Bunting, 133 Fla. 646, 183 So. 321 (1938) . . . . 3.2.F.4.b Myakka Valley Ranches Improvement Ass’n, Inc. v. Bieschke, 610 So. 2d 3 (Fla. 2d DCA 1993) . . . . 11.3.J

N Nable v. Estate of Godfrey, 403 So. 2d 1038 (Fla. 5th DCA 1981) . . . . 4.11 Naftel v. Pappas, 68 So. 3d 368 (Fla. 1st DCA 2011) . . . . 9.3.L Nahar v. Nahar, 576 So. 2d 862 (Fla. 3d DCA 1991) . . . . 5.5.A Nahar v. Nahar, 656 So. 2d 225 (Fla. 3d DCA 1995) . . . . 5.5.A Nalls v. Millender, 721 So. 2d 426 (Fla. 4th DCA 1998) . . . . 3.3.H.4, 11.2.C.2.b, 14.6.D Nardi v. Nardi, 390 So. 2d 438 (Fla. 3d DCA 1980) . . . . 3.2.B.2.a Nasser v. Nasser, 975 So. 2d 531 (Fla. 4th DCA 2008) . . . . 11.2.C.3.a Nathanson v. Morelli, 169 So. 3d 259 (Fla. 4th DCA 2015) . . . . 3.3.H.1 National Audubon Society, Inc. v. Marshall, 424 F.2d 717 (5th Cir. 1970) . . . . 7.2.B National Envtl. Prods. v. Falls, 678 So. 2d 869 (Fla. 4th DCA 1996) . . . . 11.2.C.3.a Nationsbank, N.A. v. Coastal Utilities, Inc., 814 So. 2d 1227 (Fla. 4th DCA 2002) . . . . 5.2.C.2.a, 5.2.C.2.c, 5.2.D.1.b, 5.4.A.3, 5.4.A.4, 5.4.B.3.g Nationwide Mutual Fire Insurance Co. v. MacDonald, 645 So. 2d 1057 (Fla. 4th DCA 1994) . . . . 12.3.D Nature’s Sleep Factory Direct, LLC, 261 So. 3d 567 . . . . 11.2.C.3.a Nebula Glass International, Inc. v. Reichhold, Inc., 454 F.3d 1203 (11th Cir. 2006) . . . . 13.2.D.1 Nedd v. Gary, 35 So. 3d 1028 (Fla. 4th DCA 2010) . . . . 3.2.C.3 Nelson v. Nelson, 206 So. 3d 818 (Fla. 2d DCA 2016) . . . . 4.10, 7.1.A Net First National Bank v. First Telebanc Corp., 834 So. 2d 944 (Fla. 4th DCA 2003) . . . . 9.3.F Neu v. Andrews, 528 So. 2d 1278 (Fla. 4th DCA 1988) . . . . 5.2.D.2.a Neumann v. Wordock, 873 So. 2d 502 (Fla. 2d DCA 2004) . . . . 13.2.C.2, 13.2.D.3, 13.3.C, 13.9 Nevitt v. Bonomo, 53 So. 3d 1078 (Fla. 1st DCA 2010) . . . . 2.2.A.1.b

New York Life Ins. & Annuity Corp. v. Gerth, 2013 U.S. Dist. LEXIS 110556 (M.D. Fla. 2013) . . . . 2.2.A.5 Newman v. Brecher, 887 So. 2d 384 (Fla. 4th DCA 2004) . . . . 3.2.A.3.b Newman v. Equitable Life Assur. Soc. of the United States, 119 Fla. 641, 160 So. 745 (1935) . . . . 5.2.D.2.a, 5.2.D.2.c Newman v. Newman, 766 So. 2d 1091 (Fla. 5th DCA 2000) . . . . 3.2.B.1.a Newman v. Smith, 77 Fla. 633, 82 So. 236 (1919) . . . . 3.2.A.3.b Nichols v. Nichols, 613 So. 2d 137 (Fla. 4th DCA 1993) . . . . 6.6.H Niemi v. Brown & Williamson Tobacco Corp., 862 So. 2d 31 (Fla. 2d DCA 2003) . . . . 12.3.B Niles v. Mallardi, 828 So. 2d 1076 (Fla. 4th DCA 2002) . . . . 9.4.C.2, 13.2.B.1, 13.2.C.1, 13.2.C.2, 13.9 Nivens v. Nivens, 312 So. 2d 201 (Fla. 2d DCA 1975) . . . . 11.3.I Nolan, In re Estate of, 712 So. 2d 421 (Fla. 2d DCA 1998) . . . . 6.11, 14.3.B Nordman v. McCormick, 715 So. 2d 310 (Fla. 5th DCA 1998) . . . . 8.3.C.1 Norman v. Bank of Hawthorne, 321 So. 2d 112 (Fla. 1st DCA 1975) . . . . 5.2.D.1.b Norregaard, In re Estate of, 220 So. 2d 653 (Fla. 3d DCA 1969) . . . . 6.5.D.1, 6.5.D.2 Norris v. Norris, 28 So. 3d 953 (Fla. 2d DCA 2010) . . . . 2.2.A.7.d North, State ex rel. v. Whitehurst, 145 Fla. 559, 1 So. 2d 175 (1941) . . . . 9.3.F Novick, In re Estate of, 526 So. 2d 200 (Fla. 4th DCA 1988) . . . . 9.4.D Nunez v. Allen, 292 So. 3d 814 (Fla. 5th DCA 2019) . . . . 11.2.C.2.a.i, 11.3.I Nunez v. Gonzalez, 456 So. 2d 1336 (Fla. 2d DCA 1984) . . . . 2.2.A.5

O O’Donnell v. Marks, 823 So. 2d 197 (Fla. 4th DCA 2002) . . . . 5.3.C.1, 5.3.C.2.a O’Neal v. Florida A&M University, 989 So. 2d 6 (Fla. 1st DCA 2008) . . . . 10.3.B.1, 10.3.C O’Neil v. Drummond, 824 So. 2d 1032 (Fla. 1st DCA 2002) . . . . 5.3.C.2.a Obergefell v. Hodges, 576 U.S. 644, 135 S. Ct. 2584, 192 L. Ed. 2d 609 (2015) . . . . 2.2.A.7.a Ocean Reef Club, Inc. v. UOP, Inc., 554 F. Supp. 123 (S.D. Fla. 1982) . . . . 7.5.C.2 Odza, In re Estate of, 432 So. 2d 740 (Fla. 4th DCA 1983) . . . . 9.3.E, 9.4.A Ogden v. Ogden, 159 Fla. 604, 33 So. 2d 870 (1948) . . . . 6.6.E Ohio Butterine Co. v. Hargrave, 79 Fla. 458, 84 So. 376 (1920) . . . . 5.2.D.2.a, 5.2.D.2.c Olin’s, Inc. v. Avis Rental Car System of Florida, 131 So. 2d 20 (Fla. 3d DCA 1961) . . . . 10.3.C Oliveira v. Sturm, 610 So. 2d 108 (Fla. 3d DCA 1992) . . . . 4.7 1978 Chevrolet Van, In re Forfeiture of, 493 So. 2d 433 (Fla. 1986) . . . . 10.3.C Onofrio v. Johnston & Sasser, P.A., 782 So. 2d 1019 (Fla. 5th DCA 2001) . . . . 9.4.K Orange Brevard Plumbing & Heating Co. v. LaCroix, 137 So. 2d 201 (Fla. 1962) . . . . 8.3.D Oreal v. Steven Kwartin, P.A., 189 So. 3d 964 (Fla. 4th DCA 2016) . . . . 6.7.B Orlando, City of v. Kensington, Ltd, 580 So. 2d 830 (Fla. 5th DCA 1991) . . . . 11.2.K.1.a Orlando Regional Medical Center, Inc. v. Estate of Heron, 596 So. 2d 1078 (Fla. 5th DCA 1992) . . . . 12.6 Orr v. State, 129 Fla. 398, 176 So. 510 (1937) . . . . 2.2.A.7.a

Ortiz v. Weiss, 282 So. 3d 949 (Fla. 3d DCA 2019) . . . . 6.3.A Ortolano, In re Estate of, 766 So. 2d 330 (Fla. 4th DCA 2000) . . . . 6.2.C, 14.6.D Osborn v. Griffin, 865 F.3d 417 (6th Cir. 2017) . . . . 10.3.B.4 Osborne v. Dumoulin, 55 So. 3d 577 (Fla. 2011) . . . . 2.2.A.7.f.ii, 8.3.E Ott v. Ott, 418 So. 2d 460 (Fla. 4th DCA 1982) . . . . 7.5.B.5 Owen v. Wilson, 399 So. 2d 498 (Fla. 5th DCA 1981) . . . . 7.5.B.5 Owens v. Estate of Davis ex rel. Holzauser, 930 So. 2d 873 (Fla. 2d DCA 2006) . . . . 7.1.C, 7.5.B.12, 7.5.C.2, 7.6.A.1 Oxford, In re Estate of, 372 So. 2d 1129 (Fla. 2d DCA 1979) . . . . 6.6.D.2

P Pabian v. Pabian, 469 So. 2d 189 (Fla. 4th DCA 1985) . . . . 14.9.D.4 Pacheco v. Wasserman, 701 So. 2d 104 (Fla. 3d DCA 1997) . . . . 14.6.D Padgett v. Estate of Gilbert, 676 So. 2d 440 (Fla. 1st DCA 1996) . . . . 9.2, 9.3.B Padilla v. Schwartz, 199 So. 3d 516 (Fla. 4th DCA 2016) . . . . 5.3.C.4 Paine’s Estate, In re, 128 Fla. 151, 174 So. 430 (1937) . . . . 9.4.C.3 Pajares v. Donahue, 33 So. 3d 700 (Fla. 4th DCA 2010) . . . . 8.3.D Palm Beach Estates v. Croker, 106 Fla. 617, 143 So. 792 (1932) . . . . 5.2.D.2.c Palm Beach Savings & Loan Ass’n v. Fishbein, 619 So. 2d 267 (Fla. 1993) . . . . 8.3.D Pancoast v. Pancoast, 97 So. 2d 875 (Fla. 2d DCA 1957) . . . . 7.5.B.12, 7.6.C Panzirer v. Deco Purchasing & Distributing Co., 448 So. 2d 1197 (Fla. 5th DCA 1984) . . . . 5.3.B.3 Paradise of Port Richey v. Estate of Boulis, 810 So. 2d 1044 (Fla. 4th DCA 2002) . . . . 1.4.D.2.b, 1.4.D.3.c Paris, In re Estate of, 699 So. 2d 301 (Fla. 2d DCA 1997) . . . . 3.2.C.3, 3.2.G.3, 9.3.I, 11.2.K.1.f Parker v. Estate of Bealer, 890 So. 2d 508 (Fla. 4th DCA 2005) . . . . 6.2.C Parker v. Parker, 185 So. 3d 616 (Fla. 4th DCA 2016) . . . . 13.6, 13.9 Parker v. Parker, 950 So. 2d 388 (Fla. 2007) . . . . 2.2.A.1.b Parker v. Shullman, 843 So. 2d 960 (Fla. 4th DCA 2003) . . . . 9.3.C Parker v. Shullman, 906 So. 2d 1236 (Fla. 4th DCA 2005) . . . . 9.4.C.1 Parker v. Shullman, 983 So. 2d 643 (Fla. 4th DCA 2008) . . . . 9.4.C.2, 9.4.C.4 Parker, In re Estate of, 110 So. 2d 498 (Fla. 1st DCA 1959) . . . . 7.5.B.12 Parker, In re Estate of, 382 So. 2d 652 (Fla. 1980) . . . . 3.2.A.4.b Parks v. Wells Fargo Home Mortgage, 185 So. 3d 541 (Fla. 4th DCA

2016) . . . . 14.9.D.2 Parr v. Cushing, 507 So. 2d 1227 (Fla. 5th DCA 1987) . . . . 9.3.D Parsons v. Bedford, Breedlove & Robeson, 3 Pet. 433, 7 L. Ed. 732, 28 U.S. 433 (1830) . . . . 10.3.B.2 Pasquale v. Loving, 82 So. 3d 1205 (Fla. 4th DCA 2012) . . . . 3.2.B.2.a, 13.3.C.1.b, 13.3.C.1.c, 13.9 Passalino v. Protective Group Securities, Inc., 886 So. 2d 295 (Fla. 4th DCA 2004) . . . . 5.2.D.2.a, 5.2.D.2.b Pastor v. Pastor, 929 So. 2d 576 (Fla. 4th DCA 2006) . . . . 1.4.C Paton, In re Estate of, 173 So. 2d 168 (Fla. 2d DCA 1965) . . . . 14.7.A Paulk, Estate of v. Lindamood, 529 So. 2d 1150 (Fla. 1st DCA 1988) . . . . 3.2.C.3, 7.7, 11.2.D, 14.8.F Pavan v. Smith, 137 S. Ct. 2075, 198 L. Ed. 2d 636 (2017) . . . . 2.2.A.7.b Pavlick, In re Estate of, 697 So. 2d 157 (Fla. 2d DCA 1997) . . . . 14.3.C Pavlides v. Roussis, 764 So. 2d 769 (Fla. 2d DCA 2000) . . . . 14.6.C.3 Payette v. Clark, 559 So. 2d 630 (Fla. 2d DCA 1990) . . . . 1.4.C, 1.4.D.1, 1.4.D.2.b, 1.4.D.2.c, 3.2.B.2.a, 9.4.F.2, 14.1 Peacock v. Melvin, 652 So. 2d 951 (Fla. 1st DCA 1995) . . . . 14.6.C.3 Pearce v. Foster, 454 So. 2d 721 (Fla. 4th DCA 1984) . . . . 14.9.C.3 Pearce, In re Estate of, 507 So. 2d 729 (Fla. 4th DCA 1987) . . . . 9.4.J Pearson v. Cobb, 701 So. 2d 649 (Fla. 5th DCA 1997) . . . . 14.3.C, 14.7.A Peffer v. Bennett, 523 F.2d 1323 (10th Cir. 1975) . . . . 13.4.A, 13.9 Pegram v. Pegram, 821 So. 2d 1264 (Fla. 2d DCA 2002) . . . . 5.2.B.2, 5.2.D.2.a Pellicer, In re Estate of, 118 So. 2d 59 (Fla. 1st DCA 1960) . . . . 3.2.B.3.a Pennington v. Waldheim, 669 So. 2d 1158 (Fla. 5th DCA 1996) . . . . 3.2.G.6 Perelman v. Estate of Perelman, 124 So. 3d 983 (Fla. 4th DCA 2013) . . . . 1.4.B Perkins v. O’Donald, 77 Fla. 710, 82 So. 401 (1919) . . . . 7.6.A.3 Perrott v. Frankie, 605 So. 2d 118 (Fla. 2d DCA 1992) . . . . 5.2.C.2.b Perry v. Farber, 115 Fla. 410, 155 So. 839 (1934) . . . . 11.3.F

Perry v. Perry, 976 So. 2d 1151 (Fla. 4th DCA 2008) . . . . 14.3.B, 14.3.D Peterson’s Estate, In re, 73 So. 2d 225 (Fla. 1954) . . . . 14.3.B, 14.3.D Pezzi v. Brown, 697 So. 2d 883 (Fla. 4th DCA 1997) . . . . 6.3.A, 6.8.A Phillips v. Hirshon, 958 So. 2d 425 (Fla. 3d DCA 2007) . . . . 8.2.A Phipps v. Estate of Burdine, 586 So. 2d 381 (Fla. 5th DCA 1991) . . . . 11.3.H Picchione v. Asti, 354 So. 2d 954 (Fla. 3d DCA 1978) . . . . 14.7.A Pierce v. Pierce, 128 So. 3d 204 (Fla.1st DCA 2013) . . . . 2.7, 14.3.B Pierre v. Estate of Pierre, 928 So. 2d 1252 (Fla. 3d DCA 2006) . . . . 3.2.A.4.b Pigna v. Messianu, 43 FLW D2260 (Fla. DCA 018) . . . . 14.3.B, 14.4 Pilot Life Insurance Co. v. Dedeaux, 481 U.S. 41, 107 S. Ct. 1549, 95 L. Ed. 2d 39 (1987) . . . . 12.8.D.1 Piloto v. Lauria, 45 So. 3d 565 (Fla. 4th DCA 2010) . . . . 9.2 Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013) . . . . 11.2.C.3.a Pisciotti v. Stephens, 940 So. 2d 1217 (Fla. 4th DCA 2006) . . . . 9.3.M Pitakos, In re Estate of, 183 So. 2d 696 (Fla. 2d DCA 1966) . . . . 7.6.B Pitcher v. Waldo, 159 So. 3d 422 (Fla. 4th DCA 2015) . . . . 2.7 Pitts v. Pitts, 120 Fla. 363, 162 So. 708 (1935) . . . . 1.4.D.1 Planas, In re, 1998 U.S. Dist. LEXIS 20524 (S.D. Fla. 1998) . . . . 5.2.D.2.a Planas, In re, 199 B.R. 211 (Bankr. S.D. Fla. 1996) . . . . 5.2.D.2.a Planned Parenthood of Greater Orlando, Inc. v. MMB Props., 211 So. 3d 918 . . . . 14.4 Plant City, City of v. Mann, 400 So. 2d 952 (Fla. 1981) . . . . 14.9.D.1 Plaster, In re, 271 B.R. 202 (Bankr. M.D. Fla. 2001) . . . . 8.3.D Platt v. Osteen, 103 So. 3d 1010 (Fla. 5th DCA 2012) . . . . 1.3.E.6.b.iii, 2.2.A.2.d Platt, In re Estate of, 586 So. 2d 328 (Fla. 1991) . . . . 3.2.C.3, 3.2.G.5.a, 11.2.A, 11.2.C.1.b, 11.2.K.1.a, 11.2.K.1.b, 11.2.K.1.d, 11.2.K.1.e, 11.2.K.2.a, 11.2.L.2, 11.2.M, 11.2.N, 11.3.I, 11.3.J, 11.6 Pomeranz & Landsman Corp. v. Miami Marlins Baseball Club, L.P., 143 So. 3d 1182 (Fla. 4th DCA 2014) . . . . 11.2.C.3.a Pompano Masonry Corp. v. Anastasi, 125 So. 3d 210 (Fla. 4th DCA

2013) . . . . 11.2.R.2 Poncier v. State, Dept of Health & Rehabilitative Services, Division of Family Services, 284 So. 2d 463 (Fla. 3d DCA 1973) . . . . 6.6.D.1 Pontrello v. Estate of Kepler, 528 So. 2d 441 (Fla. 2d DCA 1988) . . . . 2.4, 9.2 Poppell v. Padrick, 117 So. 2d 435 (Fla. 2d DCA 1960) . . . . 8.4.A Posner, In re Estate of, 492 So. 2d 1093 (Fla. 3d DCA 1986) . . . . 1.3.I, 14.5.A Potts, In re Estate of, 199 So. 2d 319 (Fla. 2nd DCA 1967) . . . . 11.2.R.2 Poulsen v. First National Bank of Palm Beach, 407 So. 2d 338 (Fla. 4th DCA 1981) . . . . 6.6.E Pounds v. Pounds, 703 So. 2d 487 (Fla. 5th DCA 1997) . . . . 7.5.C.3.c Pournelle v. Baxter, 151 Fla. 32, 9 So. 2d 162 (Fla. 1942) . . . . 3.2.B.3.b Powell v. Chancy-Stoutamire, Inc., 546 So. 2d 1135 (Fla. 1st DCA 1989) . . . . 6.5.D.2, 6.6.B, 6.6.D.2 Powell v. Metz, 55 So. 2d 915 (Fla. 1952) . . . . 5.3.C.2.a, 5.3.C.3 Pratt v. Gerber, 330 So. 2d 552 (Fla. 3d DCA 1976) . . . . 14.3.C Prescott v. Stanley, 710 So. 2d 674 (Fla. 5th DCA 1998) . . . . 14.6.D Preston, Dept. of Revenue ex rel. v. Cummings, 871 So. 2d 1055 (Fla. 2d DCA 2004) . . . . 2.2.A.1.b Preudhomme v. Bailey, 211 So. 3d 127 (Fla. 4th DCA 2017) . . . . 1.3.G.1 Price v. Abate, 9 So. 3d 37 (Fla. 5th DCA 2009) . . . . 3.2.A.2.c Price v. Austin, 43 So. 3d 789 (Fla. 1st DCA 2010) . . . . 11.3.I Price v. Davis, 180 So. 2d 474 (Fla. 3d DCA 1965) . . . . 6.8.A Price, Estate of v. West Florida Hospital, Inc., 513 So. 2d 767 (Fla. 1st DCA 1987) . . . . 8.3.D Price’s Estate, In re, 129 Fla. 467, 176 So. 492 (1937) . . . . 2.2.A.7.c Pridgeon, In re Estate of, 349 So. 2d 741 (Fla. 1st DCA 1977) . . . . 6.6.D.2 Proceeds of Jackson Nat’l Life Ins. Co. Policy, In re, 2016 U.S. Dist. LEXIS 203124 (M.D. Fla. 2016) . . . . 2.2.A.7.d Provident Life & Accident Insurance Co. v. Lewis, 709 So. 2d 587 (Fla. 4th

DCA 1998) . . . . 12.8.D.2.e Prudential Insurance Company of America, Inc. v. Baitinger, 452 So. 2d 140 (Fla. 3d DCA 1984) . . . . 2.2.A.5, 4.11, 10.3.B.4 Puhl v. U.S. Bank, N.A., 34 N.E.3d 530, 2015- Ohio 2083 (Ohio Ct. App. 2015) . . . . 9.4.H

Q Quick v. Leatherman, 96 So. 2d 136 (Fla. 1957) . . . . 5.2.D.1.a Quigley v. Kennedy & Ely Insurance, Inc., 207 So. 2d 431 (Fla. 1968) . . . . 8.4.A Quiroga v. Citizens Property Insurance Corp., 34 So. 3d 101 (Fla. 3d DCA 2010) . . . . 8.3.E

R R.A.B., In re Adoption of, 426 So. 2d 1203 (Fla. 4th DCA 1983) . . . . 2.2.A.2.b, 2.2.A.2.d R.A. Jones & Sons, Inc. v. Holman, 470 So. 2d 60 (Fla. 3d DCA 1985) . . . . 13.2.D.1 R.H.B. v. J.B.W., 826 So. 2d 346 (Fla. 2d DCA 2002) . . . . 2.2.A.1.b Rachins v. Minassian, 251 So. 3d 919 (Fla. 4th DCA 2018) . . . . 9.4.D Rader v. First National Bank in Palm Beach, 42 So. 2d 1 (Fla. 1949) . . . . 5.2.D.1.b, 5.2.D.2.b Raimi v. Furlong, 702 So. 2d 1273 (Fla. 3d DCA 1998) . . . . 3.2.A.3.b Rainier v. Calhoun, 510 So. 2d 999 (Fla. 3d DCA 1987) . . . . 6.5.E Rainier v. Calhoun, 534 So. 2d 735 (Fla. 3d DCA 1988) . . . . 6.7.B Ramos v. Estate of Ramos, 329 So. 3d 172 (Fla. 3d DCA 2021) . . . . 5.2.D.1.a Rand v. Giller, 489 So. 2d 796 (Fla. 3d DCA 1986) . . . . 9.3.C Randall v. Walt Disney World Co., 140 So. 3d 1118 (Fla. 5th DCA 2014) . . . . 12.3.B Ransburg, In re Estate of, 608 So. 2d 49 (Fla. 2d DCA 1992) . . . . 11.2.K.1.f, 11.3.E, 14.5.A Rasmussen v. Rasmussen, 909 So. 2d 969 (Fla. 2d DCA 2005) . . . . 5.3.B.2 Ratinska v. Estate of Denesuk, 447 So. 2d 241 (Fla. 2d DCA 1983) . . . . 5.2.C.2.a Raulerson v. Metzger, 375 So. 2d 576 (Fla. 5th DCA 1979) . . . . 10.3.B.1 Rayhill, In re Estate of, 516 So. 2d 26 (Fla. 3d DCA 1987) . . . . 3.2.C.3 RBC Ministries v. Tompkins, 974 So. 2d 569 (Fla. 2d DCA 2008) . . . . 3.2.A.3.b, 14.6.C.3 Read, In re Estate of v. A.D.K. Properties, 766 So. 2d 393 (Fla. 2d DCA 2000) . . . . 6.4 Read, In re Estate of, 766 So. 2d 393 (Fla. 2d DCA 2000) . . . . 3.3.G.1.c

Read, In re Guardianship of, 555 So. 2d 869 (Fla. 2d DCA 1990) . . . . 14.9.F Reese, In re Estate of, 622 So. 2d 157 (Fla. 4th DCA 1993) . . . . 7.1.C, 7.5.B.12, 7.5.C.3.c Regero v. Daugherty, 69 So. 2d 178 (Fla. 1954) . . . . 5.2.D.2.c Regions Bank v. Hyman, 91 F. Supp. 3d 1234 (M.D. Fla. 2015) . . . . 5.4.B.3.e Rehman v. Estate of Frye, 692 So. 2d 956 (Fla. 5th DCA 1997) . . . . 11.3.J, 14.3.D Reid v. Estate of Sonder, 63 So. 3d 7 (Fla. 3d DCA 2011) . . . . 11.2.C.2.a.i, 11.3.J Reilly, Estate of v. Commissioner, 76 T.C. 369 (1981) . . . . 11.5 Reinish v. Clark, 765 So. 2d 197 (Fla. 1st DCA 2000) . . . . 14.6.B Rekasis, In re Guardianship of, 545 So. 2d 471 (Fla. 2d DCA 1989) . . . . 3.2.B.2.a, 3.3.G.2, 13.8 Rekasis, In re Guardianship of, 545 So. 2d 471 (Fla. 2 DCA 1989) . . . . 3.3.G.2 Reliance Trust Co. v. Candler, 751 S.E.2d 47, 294 Ga. 15 (Ga. 2013) . . . . 9.4.H Renfro v. Dodge, 520 So. 2d 690 (Fla. 4th DCA 1988) . . . . 11.2.C.3.a Reopelle v. Reopelle, 587 So. 2d 508 (Fla. 5th DCA 1991) . . . . 2.2.A.7.d Republic National Bank v. Araujo, 697 So. 2d 164 (Fla. 3d DCA 1997) . . . . 14.7.A Retzel, Estate of v. CSX Transportation, Inc, 586 So. 2d 1247 (Fla. 1st DCA 1991) . . . . 9.3.O Ricciardelli v. Faske, 505 So. 2d 487 (Fla. 3d DCA 1987) . . . . 14.3.C Rice v. Corry, 854 So. 2d 772 (Fla. 2d DCA 2003) . . . . 5.3.C.2.a Rice, In re Estate of, 406 So. 2d 469 (Fla. 3d DCA 1981) . . . . 7.6.A.3 Rich v. Hallman, 106 Fla. 348, 143 So. 292 (1932) . . . . 5.3.C.1 Richard v. Richard, 193 So. 3d 964 (Fla. 3d DCA 2016) . . . . 6.2.C Richardson v. Jones, 508 So. 2d 739 (Fla. 2d DCA 1987) . . . . 11.2.M Richardson v. Richardson, 524 So. 2d 1126 (Fla. 5th DCA

1988) . . . . 7.5.B.6, 9.4.D Rickard v. McKesson, 774 So. 2d 838 (Fla. 4th DCA 2000) . . . . 2.2.A.2.a Riddle v. Riddle, 211 So. 3d 337 (Fla. 4th DCA 2017) . . . . 11.2.K.1.c Riggs, In re Estate of, 643 So. 2d 1132 (Fla. 4th DCA 1994) . . . . 7.5.C.2, 7.6.A.1 Riley v. Doing, 66 F. Supp. 825 (S.D. Fla. 1946) . . . . 7.5.C.3.a, 7.5.C.3.g Risley v. Nissan Motor Corp. USA, 254 F.3d 1296 (11th Cir. 2001) . . . . 12.3.B Ritter v. Shamas, 452 So. 2d 1057 (Fla. 3d DCA 1984) . . . . 5.3.B.2, 5.3.B.3 Robbie v. Robbie, 629 So. 2d 220 (Fla. 3d DCA 1993) . . . . 14.5.A Robbins v. Robbins, 360 So. 2d 10 (Fla. 2d DCA 1978) . . . . 8.2.B.6., 8.4.B Robbins v. Robbins, 411 So. 2d 1024 (Fla. 2d DCA 1982) . . . . 8.2.C Roberg, In re Estate of, 396 So. 2d 235 (Fla. 2d DCA 1981) . . . . 3.2.B.2.b Robert Rauschenberg Foundation v. Grutman, 198 So. 3d 685 (Fla. 2d DCA 2016) . . . . 3.2.C.3, 3.3.H.1, 11.6 Roberts v. Albertson’s, Inc, 119 So. 3d 457 (Fla. 4th DCA 2013) . . . . 12.8.C.2, 12.8.C.5 Roberts v. Jassy, 436 So. 2d 394 (Fla. 2d DCA 1983) . . . . 6.6.H Roberts, Estate of, 388 So. 2d 216 (Fla. 1980) . . . . 2.2.A.7.f.ii, 4.6.B Roberts, In re Estate of, 367 So. 2d 269 (Fla. 3d DCA 1979) . . . . 7.5.C.2 Robertson v. Robertson, 593 So. 2d 491 (Fla. 1992) . . . . 5.3.C.2.a, 5.3.C.3 Robertson, In re Estate of, 520 So. 2d 99 (Fla. 4th DCA 1988) . . . . 2.2.A.1.b Robins, In re Estate of, 463 So. 2d 273 (Fla. 2d DCA 1984) . . . . 6.5.C Robinson v. Robinson, 298 So. 3d 1202 (Fla. 3d DCA 2020) . . . . 2.2.A.1.a Robinson v. Robinson, 651 So. 2d 1271 (Fla. 4th DCA 1995) . . . . 5.2.D.1.b Robinson v. Robinson, 676 So. 2d 511 (Fla. 4th DCA 1996) . . . . 7.5.C.2 Robinson v. Robinson, 805 So. 2d 94 (Fla. 4th DCA 2002) . . . . 14.6.D Robinson v. State, 132 So. 2d 3 (Fla. 1961) . . . . 14.5.A Robinson v. Tootalian, 691 So. 2d 52 (Fla. 4th DCA 1997) . . . . 9.3.C Robinson, In re Estate of, 720 So. 2d 540 (Fla. 4th DCA

1998) . . . . 3.3.B.2.c, 7.5.B.12 Rocca v. Boyansky, 80 So. 3d 377 (Fla. 3d DCA 2012) . . . . 1.3.E.6.b.iii, 1.4.D.3.a, 3.2.B.2.a, 3.2.F.1, 3.2.F.2 Rodriguez v. Adoption of Rodriguez, 219 So. 3d 944 (Fla. 3d DCA 2017) . . . . 2.2.A.2.a Rodriguez v. Campbell, 720 So. 2d 266 (Fla. 4th DCA 1998) . . . . 11.3.I Rodriguez v. Levin, 524 So. 2d 1107 (Fla. 3d DCA 1988) . . . . 7.3.B Roger Dean Chevrolet, Inc. v. Fischer, 217 So. 2d 355 (Fla. 4th DCA 1969) . . . . 5.2.D.1.b Rogers v. Truitt, 596 So. 2d 1081 (Fla. 5th DCA 1992) . . . . 12.4.C Rogers & Wells v. Winston, 662 So. 2d 1303 (Fla. 4th DCA 1995) . . . . 1.4.D.2.c Rogers, In re Estate of, 180 So. 2d 167 (Fla. 2d DCA 1965) . . . . 7.5.C.3.d, 7.5.C.3.e, 7.6.B Rogers, In re Estate of, 199 So. 2d 741 (Fla. 4th DCA 1967) . . . . 14.3.C Rollins v. Alvarez, 792 So. 2d 695 (Fla. 5th DCA 2001) . . . . 5.2.D.2.b Romaniello v. Romaniello, 760 So. 2d 1083 (Fla. 5th DCA 2000) . . . . 7.5.C.2, 7.5.C.3.d Romano v. Olshen, 153 So. 3d 912 (Fla. 4th DCA 2014) . . . . 5.2.D.1.b, 5.4.A.3, 5.4.B.3.g Rose v. Sonson, 208 So. 3d 136 (Fla. 3d DCA 2016) . . . . 2.2.A.1.a, 2.2.A.1.b Rose, In re Estate of, 165 So. 2d 226 (Fla. 3d DCA 1964) . . . . 14.9.C.1 Rosecrans v. Eden, 538 So. 2d 970 (Fla. 5th DCA 1989) . . . . 5.4.B.3.c Rosenstein, In re Estate of, 326 So. 2d 239 (Fla. 3d DCA 1976) . . . . 2.2.A.7.f.ii Rosenthal, In re Estate of, 189 So. 2d 507 (Fla. 3d DCA 1966) . . . . 9.4.C.4 Ross v. Bernhard, 396 U.S. 531, 90 S. Ct. 733, 24 L. Ed. 2d 729 (1970) . . . . 10.3.B.2, 10.3.B.3 Rothschild, In re Estate of, 647 So. 2d 902 (Fla. 4th DCA 1995) . . . . 14.6.C.4 Rowe, In re, 712 N.Y.S.2d 87 (App. Div. 2000) . . . . 9.4.C.2

Rowland, In re Estate of, 504 So. 2d 543 (Fla. 4th DCA 1987) . . . . 3.2.B.1.c Royalty v. Florida Nat. Bank of Jacksonville, 127 Fla. 618, 173 So. 689 (1937) . . . . 1.4.D.1, 1.4.E Ruff’s Estate, In re, 32 So. 2d 840, 175 A.L.R. 370, 159 Fla. 777 (Fla. 1947) . . . . 4.2 Ruff’s Estate, In re, 159 Fla. 777, 32 So. 2d 840, 175 A.L.R. 370 (1947) . . . . 2.2.A.3 Ruppert, In re Guardianship of, 787 So. 2d 925 (Fla. 2d DCA 2001) . . . . 14.6.D Russo v. Ross, 545 So. 2d 460 (Fla. 3d DCA 1989) . . . . 14.6.B Russo & Baker, P.A. v. Fernandez, 752 So. 2d 716 (Fla. 3d DCA 2000) . . . . 11.2.C.3.a, 14.8.E Rust v. Brown, 13 So. 3d 1105 (Fla. 4th DCA 2009) . . . . 9.3.L, 14.3.D Rutenberg v. Rutenberg, 334 So. 2d 633 (Fla. 2d DCA 1976) . . . . 5.3.C.3 Ruth v. Dept. of Legal Affairs, 684 So. 2d 181 (Fla. 1996) . . . . 1.4.D.1 Rutherford v. Gascon, 679 So. 2d 329 (Fla. 2d DCA 1996) . . . . 8.3.E Rutland v. Rutland, 652 So. 2d 404 (Fla. 5th DCA 1995) . . . . 5.3.C.2.a, 5.3.C.3 Ruza v. Estate of Ruza, 132 So. 2d 308 (Fla. 3d DCA 1961) . . . . 6.4 Ryan v. Mixson, 700 So. 2d 694 (Fla. 2d DCA 1997) . . . . 3.2.B.1.a Ryan, In re Estate of, 576 So. 2d 767 (Fla. 3d DCA 1991) . . . . 14.6.C.1 Ryecheck, In re Estate of, 323 So. 2d 51 (Fla. 3d DCA 1975) . . . . 11.2.E, 11.2.L.2, 11.3.I

S S. J. Landau Corp. v. Estate of Riesner, 372 So. 2d 1134 (Fla. 2d DCA 1979) . . . . 6.6.E Sackett v. Shahid, 722 So. 2d 273 (Fla. 1st DCA 1998) . . . . 5.2.D.1.b, 5.2.D.2.a, 5.3.C.2.a Sackett, In re Estate of, 171 So. 2d 906 (Fla. 1st DCA 1965) . . . . 9.3.B, 9.3.E, 9.3.H Sacks v. Sacks, 267 So. 2d 73 (Fla. 1972) . . . . 2.2.A.1.b Sacks, In re Estate of, 300 So. 2d 706 (Fla. 3d DCA 1974) . . . . 10.3.B.5, 10.3.B.6 Sadow, In re Estate of, 356 So. 2d 845 (Fla. 4th DCA 1978) . . . . 14.7.A Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012) . . . . 13.2.D.1, 13.2.D.4, 13.4.A, 13.9 Saferight, Cason ex rel. v. Hammock, 908 So. 2d 512 (Fla. 5th DCA 2005) . . . . 1.4.D.3.b, 7.3.D, 9.3.G Saffan v. Saffan, 588 So. 2d 684 (Fla. 3d DCA 1991) . . . . 3.3.F.2 Sage, Estate of v. Sage, 515 So. 2d 1324 (Fla. 2d DCA 1987) . . . . 2.2.A.7.f.ii, 2.3.E Sager, In re Estate of, 171 So. 2d 580 (Fla. 2d DCA 1964) . . . . 14.3.D Saka v. Saka, 831 So. 2d 709 (Fla. 3d DCA 2002) . . . . 14.7.A Saks v. Smith, 145 So. 2d 895 (Fla. 3d DCA 1962) . . . . 8.4.A Salfi v. Columbia/JFK Med. Ctr. Ltd. P’ship, 942 So. 2d 417 (Fla. 4th DCA 2006) . . . . 12.3.B Salomon v. Salomon, 791 So. 2d 1150 (Fla. 3d DCA 2001) . . . . 9.4.E, 9.4.J Samad v. Pla, 267 So. 3d 476 (Fla. 2d DCA 2019) . . . . 3.2.B.2.a, 8.2.B.2 Sampson Farm Limited Partnership v. Parmenter, 238 So. 3d 387 (Fla. 3d DCA 2018) . . . . 1.4.D.2.b, 1.4.D.2.c, 1.4.D.3.c Samuels v. Estate of Ahern, 436 So. 2d 1096 (Fla. 4th DCA 1983) . . . . 3.2.C.3, 11.2.C.2.a.ii, 11.2.J Sanchez v. Masterhan, 837 So. 2d 1161 (Fla. 1st DCA 2003) . . . . 14.3.C

Sandler v. Jaffe, 913 So. 2d 1205 (Fla. 4th DCA 2005) . . . . 5.4.A.4 Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970) . . . . 14.7.A Saporta v. Saporta, 766 So. 2d 379 (Fla. 3d DCA 2000) . . . . 5.5.A Sarkis v. Allstate Insurance Co., 863 So. 2d 210 (Fla. 2003) . . . . 11.2.C.3.b Sauey, In re Estate of, 869 So. 2d 664 (Fla. 4th DCA 2004) . . . . 1.3.I, 4.3.B.6, 14.5.A Saunders v. Saunders, 796 So. 2d 1253 (Fla. 1st DCA 2001) . . . . 1.4.B, 3.2.B.2.b, 4.8.A Sauter v. Bravo, 771 So. 2d 1213 (Fla. 4th DCA 2000) . . . . 9.4.H Saxton v. ACF Indus., 254 F.3d 959 . . . . 13.2.D.4, 13.3.C, 13.4.A, 13.5.B, 13.9 Saxton, In re Estate of, 686 N.Y.S.2d 573, 179 Misc. 2d 681 (Surr. Ct. 1998) . . . . 9.4.C.2, 9.4.H Schacter v. Guardianship of Schacter, 756 So. 2d 1075 (Fla. 4th DCA 2000) . . . . 14.6.D Schatz, In re Estate of, 613 So. 2d 591 (Fla. 4th DCA 1993) . . . . 14.3.B, 14.3.C Scheidmantel, In re, 868 A.2d 464 (Pa. Super. Ct. 2005) . . . . 9.4.C.2 Scheurer v. Tomberlin, 240 So. 2d 172 (Fla. 1st DCA 1970) . . . . 7.6.A.2 Schilling v. Herrera, 952 So. 2d 1231 (Fla. 3d DCA 2007) . . . . 13.1, 13.2.A, 13.2.B.2, 13.2.C.1, 13.2.C.2, 13.2.D.4, 13.9 Schleider v. Estate of Schleider, 770 So. 2d 1252 (Fla. 4th DCA 2000) . . . . 2.4, 9.2, 14.3.C Schlossberg v. Estate of Kaporovsky, 303 So. 3d 982 (Fla. 4th DCA 2020) . . . . 5.2.C.2.b Schneider v. Shinn, 636 So. 2d 110 (Fla. 3d DCA 1994) . . . . 7.5.B.8 Scholtz, In re Estate of, 543 So. 2d 219 (Fla. 1989) . . . . 8.5.B.1 Schorr, In re Estate of, 409 So. 2d 487 (Fla. 4th DCA 1982) . . . . 14.7.A Schwartz v. DeLoach, 453 So. 2d 454 (Fla. 2d DCA 1984) . . . . 1.4.B Schwartz, Gold & Cohen, P.A. v. Streicher, 549 So. 2d 1044 (Fla. 4th DCA 1989) . . . . 11.3.I

Scott v. Reyes, 913 So. 2d 13 (Fla. 2d DCA 2005) . . . . 6.8.B, 14.3.C Scutieri v. Estate of Revitz, 510 So. 2d 1003 (Fla. 3d DCA 1987) . . . . 6.6.H Seeba v. Bowden, 86 So. 2d 432 (Fla. 1956) . . . . 3.2.F.4.f Segal v. Levine, 489 So. 2d 868 (Fla. 3d DCA 1986) . . . . 3.2.C.3, 7.7 Seidl v. Estate of Michelsen, 487 So. 2d 336 (Fla. 4th DCA 1986) . . . . 5.4.B.3.b Senopoulos v. Senopoulos, 253 So. 3d 1228 (Fla. 1st DCA 2018) . . . . 2.4, 4.12 Senz, In re Estate of, 417 So. 2d 325 (Fla. 4th DCA 1982) . . . . 9.3.B, 9.3.D Sepulveda v. Westport Recovery Corp., 145 So. 3d 162 (Fla. 3d DCA 2014) . . . . 8.4.A Serpa v. North Ridge Bank, 547 So. 2d 199 (Fla. 4th DCA 1989) . . . . 5.5.A, 5.5.B Serrill, In re Estate of, 159 So. 2d 246 (Fla. 2d DCA 1964) . . . . 14.7.A Sessions v. Jelks, 194 So. 2d 307 (Fla. 1st DCA 1967) . . . . 6.6.D.2 Sessions v. Willard, 126 Fla. 848, 172 So. 242 (1937) . . . . 9.3.O 73 Engle-Related Cases, In re, 239 So. 3d 166 (Fla. 1st DCA 2018) . . . . 12.3.B Sewell v. Sewell Properties, 159 Fla. 570, 30 So. 2d 361 (1947) . . . . 6.8.B Shakespeare v. Prince, 129 So. 3d 412 (Fla. 2d DCA 2014) . . . . 13.2.D.1, 13.2.D.4, 13.9 Sharp v. Barreto, 95 So. 3d 321 (Fla. 3d DCA 2012) . . . . 9.3.I Sharps v. Sharps, 219 So. 2d 735 (Fla. 3d DCA 1969) . . . . 2.2.A.7.f.ii Shaw v. Shaw, 334 So. 2d 13 (Fla. 1976) . . . . 14.6.C.1 Shaw, In re Estate of, 340 So. 2d 491 (Fla. 3d DCA 1976) . . . . 1.3.I, 9.3.G, 9.4.D Shear v. Hornsby & Whisenand, P.A., 603 So. 2d 129 (Fla. 3d DCA 1992) . . . . 3.2.A.3.b, 3.2.C.6 Shearer, Estate of Shearer ex rel. v. Agency for Health Care Administration, 737 So. 2d 1229 (Fla. 5th DCA 1999) . . . . 6.2.A Sheehan v. Hubbard, 378 So. 2d 1238 (Fla. 2d DCA 1980) . . . . 5.2.D.2.b

Sheffield v. Barry, 153 Fla. 144, 14 So. 2d 417 (1943) . . . . 2.2.A.2.d Sheffield v. Dallas, 417 So. 2d 796 (Fla. 5th DCA 1982) . . . . 11.2.E, 11.2.Q, 11.3.B.2 Sheffield, Estate of v. Estate of Sheffield, 112 So. 3d 652 (Fla. 3d DCA 2013) . . . . 14.3.B Shefner, Estate of v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009) . . . . 3.2.C.3, 3.2.G.3, 4.11, 8.3.D, 11.2.D Sheldon v. Waters, 168 F.2d 483 (5th Cir. 1948) . . . . 5.2.D.1.b, 5.2.D.2.a, 5.2.D.2.b Shelly L. Hall, M.D., P.A. v. White, 97 So. 3d 907 (Fla. 1st DCA 2012) . . . . 11.2.C.2.a.i Shen v. Parkes, 100 So. 3d 1189 (Fla. 4th DCA 2012) . . . . 14.6.C.4 Sherman v. Sherman, 279 So. 3d 188 (Fla. 4th DCA 2019) . . . . 11.2.C.2.a.i Shessel v. Estate of Calhoun, 573 So. 2d 962 (Fla. 3d DCA 1991) . . . . 6.6.H Shine, In re Estate of, 389 So. 2d 1191 (Fla. 4th DCA 1980) . . . . 7.5.B.1 Shore, In re Estate of, 605 So. 2d 951 (Fla. 4th DCA 1992) . . . . 4.7 Shriners Hospitals for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990) . . . . 3.2.A.2.a, 3.2.A.6.a Shuck v. Bank of America, N.A., 862 So. 2d 20 (Fla. 2d DCA 2003) . . . . 4.6.B, 6.4 Shuck v. Smalls, 101 So. 3d 924 (Fla. 4th DCA 2012) . . . . 1.3.E.2, 11.2.C.3.a, 11.2.D, 11.2.R.2 Sibley v. Estate of Sibley, 273 So. 3d 1062 (Fla. 3d DCA 2019) . . . . 14.3.B Siegel v. Siegel, 575 So. 2d 1267 (Fla. 1991) . . . . 1.4.B Siegel v. Siegel, 967 So. 2d 349 (Fla. 3d DCA 2007) . . . . 5.3.B.2, 5.3.B.3 Siegler v. Estate of Siegler, 995 So. 2d 1181 (Fla. 4th DCA 2008) . . . . 14.5.A Sigmund v. Elder, 631 So. 2d 329 (Fla. 1st DCA 1994) . . . . 8.3.C.1 Silveira v. Quiroga, 156 So. 3d 574 (Fla. 3d DCA 2015) . . . . 14.5.A Silver v. Schroeder, 474 So. 2d 857 (Fla. 3d DCA 1985) . . . . 7.5.B.1 Silver Beach Towers Property Owners Ass’n, Inc. v. Silver Beach

Investments of Destin, 231 So. 3d 494 (Fla. 1st DCA 2017) . . . . 14.9.D.6 Silverman, In re Estate of, 163 So. 2d 321 (Fla. 3d DCA 1964) . . . . 2.2.A.7.c Silvian, In re Estate of, 347 So. 2d 632 (Fla. 4th DCA 1977) . . . . 5.2.D.1.a, 5.2.D.1.b, 5.3.C.2.a Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018) . . . . 2.2.A.1.b Simmons v. Estate of Baranowitz, 189 So. 3d 819 (Fla. 4th DCA 2015) . . . . 1.4.D.2.c, 3.2.D.3.d, 3.2.G.3, 9.4.A, 11.3.A Simon v. Koplin, 159 So. 3d 281 (Fla. 2d DCA 2015) . . . . 5.2.C.2.a Simon, In re Estate of, 402 So. 2d 26 (Fla. 3d DCA 1981) . . . . 11.2.E, 11.2.L.2, 11.3.I, 14.8.C Simon, In re Estate of, 549 So. 2d 210 (Fla. 3d DCA 1989) . . . . 7.7, 11.2.C.2.a.ii, 11.2.C.2.b Simpson v. Estate of Simpson, 922 So. 2d 1027 (Fla. 5th DCA 2006) . . . . 6.2.C, 14.6.D Simpson v. Schoenemann, 263 So. 2d 854 (Fla. 1st DCA 1972) . . . . 5.4.A.4 Simpson v. Williamson, 611 So. 2d 544 (Fla. 5th DCA 1993) . . . . 3.2.A.2.c, 3.2.A.2.d Simpson, Estate of, 67 T.C.M. (CCH) 3062, T.C.M. (RIA) P94259 (1994) . . . . 7.1.C Simpson, In re Estate of, 113 So. 2d 766 (Fla. 2d DCA 1959) . . . . 6.8.A Sims v. Barnard, 257 So. 3d 630 (Fla. 1st DCA 2018) . . . . 2.3.D, 9.4.F.2 Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383 (Fla. 1983) . . . . 11.4.C Sine v. Davidson, 530 So. 2d 506 (Fla. 3d DCA 1988) . . . . 14.3.C, 14.3.D Sirdevan v. Sirdevan, 120 So. 3d 1280 (Fla. 1st DCA 2013) . . . . 2.2.A.1.b Sireci v. Deal, 603 So. 2d 35 (Fla. 3d DCA 1992) . . . . 6.6.D.2 Sitomer v. First of America Bank-Central, 667 So. 2d 456 (Fla. 4th DCA 1996) . . . . 11.2.K.1.a Sitomer v. Orlan, 660 So. 2d 1111 (Fla. 4th DCA 1995) . . . . 5.2.C.2.b, 5.2.D.1.b, 5.2.D.2.a, 5.2.D.2.b, 5.4.A.4, 5.4.B.3.g Sitter, In re Guardianship of, 779 So. 2d 346 (Fla. 2d DCA 2000) . . . . 14.6.D

Skelton v. Davis, 133 So. 2d 432, 89 A.L.R.2d 1114 (Fla. 3d DCA 1961) . . . . 14.6.C.2 Skinner, In re Estate of, 397 So. 2d 1193 (Fla. 4th DCA 1981) . . . . 7.5.B.2 Slater, In re Estate of, 437 So. 2d 1110 (Fla. 5th DCA 1983) . . . . 2.6 Slawson’s Estate, In re, 41 So. 2d 324 (Fla. 1949) . . . . 5.3.B.2 Slowinski v. Sweeney, 64 So. 3d 128 (Fla. 1st DCA 2011) . . . . 2.2.A.1.b Smith v. Agency for Health Care Administration, 24 So. 3d 590 (Fla. 5th DCA 2010) . . . . 12.8.C.2 Smith v. Anderson, 821 So. 2d 323 (Fla. 2d DCA 2002) . . . . 2.2.A.7.c Smith v. DeParry, 86 So. 3d 1228 (Fla. 2d DCA 2012) . . . . 3.2.A.4.b, 7.3.B Smith v. Guardianship of Estelle Knox, 751 So. 2d 763 (Fla. 3d DCA 2000) . . . . 14.6.D Smith v. Hindery, 454 So. 2d 663 (Fla. 1st DCA 1984) . . . . 5.2.B.1, 5.2.D.1.a, 5.2.D.1.b, 5.2.D.2.b Smith v. Smith, 232 So. 3d 509 (Fla. 1st DCA 2018) . . . . 9.3.G Smith v. Smith, 919 So. 2d 525 (Fla. 5th DCA 2006) . . . . 5.5.B Smith and Thurston, In re Estate of v. Thurston, 777 So. 2d 1001 (Fla. 1st DCA 2001) . . . . 2.2.A.1.a Smith, In re, 49 So. 2d 337 (Fla. 1950) . . . . 7.5.C.3.b Smith, In re Estate of, 685 So. 2d 1206 (Fla. 1996) . . . . 2.2.A.1.a, 2.2.A.1.b Smithers v. Smithers, 765 So. 2d 117 (Fla. 4th DCA 2000) . . . . 4.2 Smyer v. Gaines, 332 So. 2d 655 (Fla. 1st DCA 1976) . . . . 12.4.B Snow v. Mathews, 190 So. 2d 50 (Fla. 4th DCA 1966) . . . . 5.2.D.2.b Snyder v. Bell, 746 So. 2d 1100 (Fla. 2d DCA 1999) . . . . 3.3.H.4, 3.3.I, 6.7.C, 11.2.C.2.a.i, 11.2.C.2.b, 11.2.D, 14.6.D Snyder v. Davis, 699 So. 2d 999 (Fla. 1997) . . . . 2.2.B.1, 8.3.D, 11.2.B, 11.2.K.1.b Snyder v. Dinardo, 700 So. 2d 726 (Fla. 2d DCA 1997) . . . . 5.2.D.1.b, 5.2.D.2.a, 5.4.A.4 Snyder, In re Estate of, 333 So. 2d 519, 84 A.L.R. 3d 703 (Fla. 2d DCA 1976) . . . . 2.4, 9.2

Snyder, In re Estate of, 562 So. 2d 403 (Fla. 4th DCA 1990) . . . . 3.2.D.3.b Somogyi v. Nevai, 920 So. 2d 828 (Fla. 4th DCA 2006) . . . . 14.3.D Sorgen v. Sorgen, 162 So. 3d 45 (Fla. 4th DCA 2014) . . . . 5.3.C.2.a Soriano v. Estate of Manes, 177 So. 3d 677 (Fla. 3d DCA 2015) . . . . 6.2.C Sorrels v. McNally, 89 Fla. 457, 105 So. 106 (1925) . . . . 7.5.C.2 Souder v. Johnson, 501 So. 2d 745 (Fla. 4th DCA 1987) . . . . 7.6.A.3 Southeast Bank, N.A. v. David A. Steves, P.A., 552 So. 2d 292 (Fla. 2d DCA 1989) . . . . 14.3.C Southern Life & Health Insurance Co. v. Medley, 161 So. 2d 19 (Fla. 3d DCA 1964) . . . . 3.2.F.5.e Southern Walls, Inc. v. Stilwell Corp., 810 So. 2d 566 (Fla. 5th DCA 2002) . . . . 8.2.A Spangenberg, In re Estate of, 561 So. 2d 315 (Fla. 2d DCA 1990) . . . . 2.2.A.7.f.ii, 4.6.B Spaulding v. Estate of Frey, 666 So. 2d 935 (Fla. 5th DA 1996) . . . . 14.4 Spark v. Canny, 88 So. 2d 307 (Fla. 1956) . . . . 5.3.B.3, 5.4.B.2, 5.4.B.3.e, 5.4.B.3.h struSPCA Wildlife Care Center v. Abraham, 75 So. 3d 1271 (Fla. 4th DCA 2011) . . . . 7.5.A, 7.5.C.2, 7.5.C.3.b Special v. West Boca Medical Center, 160 So. 3d 1251 (Fla. 2015) . . . . 14.7.B Spector v. Spector, 226 So. 3d 256 (Fla. 4th DCA 2017) . . . . 8.3.D Speed Dry, Inc. v. Anchor Property & Casualty Insurance Co, 302 So. 3d 463 (Fla. 5th DCA 2020) . . . . 8.3.E Spevak v. Willis, 793 So. 2d 975 (Fla. 2d DCA 2001) . . . . 14.9.E Spitzer v. Branning, 135 Fla. 49, 184 So. 770 (1938) . . . . 8.2.E, 8.5.B.1 Spohr v. Berryman, 589 So. 2d 225 (Fla. 1991) . . . . 3.2.B.1.c, 6.2.A St. John’s Hospital & Health Center v. Toomey, 610 So. 2d 62 (Fla. 3d DCA 1992) . . . . 6.6.D.2 St. Petersburg, City of v. Wall, 475 So. 2d 662 (Fla. 1985) . . . . 14.9.D.2 Staley v. Jackson, 154 So. 2d 349 (Fla. 2d DCA 1963) . . . . 6.8.B

Stalley v. Williford, 50 So. 3d 680 (Fla. 2d DCA 2010) . . . . 2.4 Standafer v. Schaller, 726 So. 2d 352 (Fla. 2d DCA 1999) . . . . 10.3.B.5 Standard Guaranty Insurance Co. v. Quanstrom, 555 So. 2d 828 (Fla. 1990) . . . . 11.2.K.1.a, 11.2.K.1.e, 11.6 Stanley v. Powers, 123 Fla. 359, 166 So. 843 (1936) . . . . 5.2.D.2.b Starr’s Estate, In re, 125 Fla. 536, 170 So. 620 (1936) . . . . 3.2.A.3.a, 3.2.A.3.b State v. (see name of defendant) State, Dept. of Natural Resources v. Estech, Inc., 515 So. 2d 758 (Fla. 2d DCA 1987) . . . . 10.5 State ex rel. (see name of relator) State Farm Fire & Casualty Co. v. Palma, 555 So. 2d 836 (Fla. 1990) . . . . 11.2.C.2.b, 11.6 State Farm Fire & Casualty Co. v. Palma, 629 So. 2d 830 (Fla. 1993) . . . . 11.2.N State of (see name of state) Staum v. Rubano, 120 So. 3d 109 (Fla. 4th DCA 2013) . . . . 6.3.A Steele v. Brown, 197 So. 3d 106 (Fla. 1st DCA 2016) . . . . 14.3.B Steffen, In re, 406 B.R. 139 (Bankr. M.D. Fla. 2009) . . . . 8.2.A Steffens v. Evans, 70 So. 3d 758 (Fla. 4th DCA 2011) . . . . 2.2.A.7.f.ii Stein, In re Estate of, 301 So. 2d 120 (Fla. 3d DCA 1974) . . . . 3.2.B.3.a Stephenson v. Prudential Ins. Co. of Am., 2016 U.S. Dist. LEXIS 153299 (M.D. Fla. 2016) . . . . 2.2.A.5 Stern v. Miller, 348 So. 2d 303 (Fla. 1977) . . . . 12.4.C, 12.4.D Sternberg v. Florida Nat. Bank of Jacksonville, 114 Fla. 580, 154 So. 844 (1934) . . . . 7.5.C.3.g Stetzko, In re Estate of, 714 So. 2d 1087 (Fla. 4th DCA 1998) . . . . 14.6.D Stewart v. Hampton, 506 So. 2d 70 (Fla. 5th DCA 1987) . . . . 2.2.A.7.a Stewart v. Johnson, 142 Fla. 425, 194 So. 869 (1940) . . . . 3.2.B.5 Stewart v. KHD Deutz of America, Corp., 980 F.2d 698 (11th Cir. 1993) . . . . 7.5.C.2

Stewart v. United States, 512 F.2d 269 (5th Cir. 1975) . . . . 7.5.B.6 Stigletts v. McDonald, 135 Fla. 385, 186 So. 233 (1938) . . . . 5.3.C.1, 5.3.C.2.c Stilwell v. Estate of Crosby, 519 So. 2d 68 (Fla. 5th DCA 1988) . . . . 9.3.B Stisser, In re Estate of, 932 So. 2d 400 (Fla. 2d DCA 2006) . . . . 1.4.E, 3.3.E.2 Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) . . . . 3.2.C.3, 3.3.H.1, 9.3.I, 11.2.C.2.a.i, 11.2.K.1.f Stone v. Stone, 132 So. 3d 377 (Fla. 4th DCA 2014) . . . . 3.2.G.3 Stone v. Stone, 157 So. 3d 295 (Fla. 4th DCA 2015) . . . . 2.2.A.7.f.ii, 4.6.B, 8.3.C.1, 8.3.E Stough v. Stough, 18 So. 3d 601 (Fla. 1st DCA 2009) . . . . 5.3.C.2.a Stough v. Stough, 933 So. 2d 603 (Fla. 1st DCA 2006) . . . . 5.3.C.2.a, 5.3.C.3 Strafford v. Agency for Health Care Administration, 915 So. 2d 643 (Fla. 2d DCA 2005) . . . . 12.8.C.2, 12.8.C.3 Straitz, In re Guardianship of, 112 So. 2d 889 (Fla. 2d DCA 1959) . . . . 14.3.C Strauss v. Strauss, 148 Fla. 23, 3 So. 2d 727 (1941) . . . . 5.2.D.2.a Stregack v. Moldofsky, 474 So. 2d 206 (Fla. 1985) . . . . 2.2.A.7.f.ii, 4.6.B Strickland v. Peters, 120 F.2d 53 (5th Cir. 1941) . . . . 7.1.A Strulowitz v. Cadle Co., II, Inc., 839 So. 2d 876 (Fla. 4th DCA 2003) . . . . 6.2.C, 14.6.D Suarez v. Bank of New York Mellon Trust Co., 325 So. 3d 205 (Fla. 2d DCA 2021) . . . . 11.2.C.3.a Suarez v. Port Charlotte HMA, LLC, 171 So. 3d 740 (Fla. 2d DCA 2015) . . . . 12.8.C.2 Sudman v. O’Brien, 218 So. 3d 986 (Fla. 2d DCA 2017) . . . . 14.3.B Summerlin; United States v., 310 U.S. 414, 60 S. Ct. 1019, 84 L. Ed. 1283 (1940) . . . . 6.4 Sun Bank/Miami, N.A. v. Hogarth, 536 So. 2d 263 (Fla. 3d DCA 1989) . . . . 1.4.D.2.c, 1.4.E, 3.3.C.2, 13.3.C.1.b

Sun First National Bank of Orlando v. Santarsiero, 401 So. 2d 946 (Fla. 5th DCA 1981) . . . . 6.6.D.2 Sunshine Resources, Inc. v. Simpson, 763 So. 2d 1078 (Fla. 4th DCA 1999) . . . . 5.2.D.1.a, 5.2.D.2.a SunTrust Bank, Nature Coast v. Guardianship of Nichols, 701 So. 2d 107 (Fla. 5th DCA 1997) . . . . 9.3.G Supplee, In re Estate of, 247 So. 2d 488 (Fla. 2d DCA 1971) . . . . 3.2.A.3.a Sutton v. Stear, 264 So. 2d 838 (Fla. 1972) . . . . 14.3.C Swamy v. Hodges, 583 So. 2d 1095 (Fla. 1st DCA 1991) . . . . 12.8.D.3 Swan v. Florida National Bank of Miami, 445 So. 2d 622 (Fla. 3d DCA 1984) . . . . 3.3.B.1.c, 7.5.B.3 Swanson, In re Estate of, 397 So. 2d 465 (Fla. 2d DCA 1981) . . . . 7.5.C.3.a Swartz v. Lieberman, 712 So. 2d 479 (Fla. 4th DCA 1998) . . . . 14.3.C, 14.3.D Swartz v. Russell, 481 So. 2d 64 (Fla. 3d DCA 1986) . . . . 9.3.C, 9.3.E, 11.2.F Swickle v. Swickle, 723 So. 2d 310 (Fla. 4th DCA 1999) . . . . 5.3.C.2.a

T Taft v. Zack, 830 So. 2d 881 (Fla. 2d DCA 2002) . . . . 3.2.A.4.b Talcott v. Talcott, 423 So. 2d 951 (Fla. 3d DCA 1983) . . . . 7.5.B.6 Tanner v. Estate of Tanner, 476 So. 2d 793 (Fla. 1st DCA 1985) . . . . 1.3.E.6.b.iii, 1.4.D.3.a, 3.2.B.2.a Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997) . . . . 12.4.C Tanner, In re Guardianship of, 564 So. 2d 180 (Fla. 3d DCA 1990) . . . . 5.4.B.3.b Taplin v. Taplin, 88 So. 3d 344 (Fla. 3d DCA 2012) . . . . 3.3.G.2 Tarmy, In re Estate of, 518 So. 2d 471 (Fla. 4th DCA 1988) . . . . 3.2.B.2.a Tarsagian v. Watt, 402 So. 2d 471 (Fla. 3d DCA 1981) . . . . 3.2.A.3.b Tarver v. Evergreen Sod Farms, Inc., 533 So. 2d 765 (Fla. 1988) . . . . 2.2.A.2.d Taylor v. Maness, 941 So. 2d 559 (Fla. 3d DCA 2006) . . . . 8.3.D Taylor v. Taylor, 1 So. 3d 348 (Fla. 1st DCA 2009) . . . . 4.6.B Teague v. Estate of Hoskins, 709 So. 2d 1373 (Fla. 1998) . . . . 11.2.J Teasley v. Blankenberg, 298 So. 2d 431 (Fla. 4th DCA 1974) . . . . 5.2.C.1, 5.4.B.3.e Tensfeldt, In re Estate of, 839 So. 2d 720 (Fla. 2d DCA 2003) . . . . 3.2.B.1.c, 13.6, 13.8, 13.9 Terner v. Rand, 417 So. 2d 303 (Fla. 3d DCA 1982) . . . . 5.5.B Terrace Bank of Florida v. Brady, 598 So. 2d 225 (Fla. 2d DCA 1992) . . . . 5.2.D.1.b Thames v. Jackson, 598 So. 2d 121 (Fla. 1st DCA 1992) . . . . 6.2.B.1, 6.2.C Thiel v. Thiel, 770 So. 2d 240 (Fla. 1st DCA 2000) . . . . 14.3.D Thomas v. Thomas, 26 So. 3d 713 (Fla. 5th DCA 2010) . . . . 9.4.F.2 Thomas v. Thomas, 724 So. 2d 1246 (Fla. 4th DCA 1999) . . . . 1.4.B Thomas for Fennell v. Lampkin, 470 So. 2d 37 (Fla. 5th DCA 1985) . . . . 5.3.C.5

Thomas J. Konrad & Associates, Inc. v. McCoy, 705 So. 2d 948 (Fla. 1st DCA 1998) . . . . 5.2.D.1.b, 5.3.C.2.a Thompson v. Hibner, 705 So. 2d 36 (Fla. 3d DCA 1998) . . . . 8.2.A Thompson v. Hodson, 825 So. 2d 941 (Fla. 1st DCA 2002) . . . . 11.2.J, 12.7 Thompson v. Laney, 766 So. 2d 1087 (Fla. 3d DCA 2000) . . . . 8.3.D Thompson v. State Farm Mutual Automobile Insurance Co., 670 So. 2d 1070 (Fla. 3d DCA 1996) . . . . 12.4.E Thorton, In re Estate of, 259 So. 2d 760 (Fla. 3d DCA 1971) . . . . 8.2.A 381651 Alberta, Ltd. v. 279298 Alberta, Ltd., 675 So. 2d 1385 (Fla. 4th DCA 1996) . . . . 10.3.B.1 Thurston v. Thurston, 777 So. 2d 1001 (Fla. 1st DCA 2001) . . . . 2.2.A.1.b Tillman v. Smith, 526 So. 2d 730 (Fla. 5th DCA 1988) . . . . 7.7, 11.2.C.2.a.ii Tillman v. Smith, 533 So. 2d 928 (Fla. 5th DCA 1988) . . . . 11.2.J Tillman v. Smith, 560 So. 2d 344 (Fla. 5th DCA 1990) . . . . 11.3.I, 14.9.B Timmons v. Ingrahm, 36 So. 3d 861 (Fla. 5th DCA 2010) . . . . 7.5.C.3.e Tobin v. Damian, 723 So. 2d 396 (Fla. 4th DCA 1999) . . . . 3.3.G.1.c, 6.4 Tolin, In re Estate of, 622 So. 2d 988 (Fla. 1993) . . . . 3.2.A.4.b, 3.3.B.3.b, 7.5.C.2 Topper v. Stewart, 388 So. 2d 1270 (Fla. 3d DCA 1980) . . . . 2.2.A.7.f.ii Totten, In re, 71 N.E. 748 (N.Y. 1904) . . . . 5.5.A, 5.5.B Tower Hill Signature Insurance v. Speck, 199 So. 3d 350 (Fla. 5th DCA 2016) . . . . 12.8.D.3 Traeger v. Credit First National Ass’n, 864 So. 2d 1188 (Fla. 5th DCA 2004) . . . . 8.3.D Tramel v. Stewart, 697 So. 2d 821 (Fla. 1997) . . . . 8.3.D Trapani v. Gagliardi, 502 So. 2d 957 (Fla. 2d DCA 1987) . . . . 2.2.A.7.f.ii, 4.6.B Travieso v. Travieso, 474 So. 2d 1184 (Fla. 1985) . . . . 11.2.O Treat v. State ex rel. Mitton, 121 Fla. 509, 163 So. 883 (1935) . . . . 11.2.C.3.a Trenchard v. Estate of Gray, 950 So. 2d 1277 (Fla. 2d DCA 2007) . . . . 14.3.D

Trost, In Re Guardianship of, 100 So. 3d 1205 (Fla. 2d DCA 2012) . . . . 14.5.A Trotter v. Van Pelt, 144 Fla. 517, 198 So. 215, 131 A.L.R. 1018 (1940) . . . . 3.2.B.2.b, 7.5.C.3.a Trust of (see name of party) Tsuji v. Fleet, 326 So. 3d 143 (Fla. 1st DCA 2021) . . . . 6.3.A Tucker v. Ruvin, 748 So. 2d 376 (Fla. 3d DCA 2000) . . . . 1.3.H Tudhope, In re Estate of, 595 So. 2d 312 (Fla. 2d DCA 1992) . . . . 8.3.D Tull v. United States, 481 U.S. 412, 107 S. Ct. 1831, 95 L. Ed. 2d 365 (1987) . . . . 10.3.B.1, 10.3.B.3 Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S. Ct. 1340, 99 L. Ed. 2d 565 (1988) . . . . 6.2.B.2, 6.2.B.3, 6.2.C, 6.3.B, 6.7.A Turchin v. Turchin, 16 So. 3d 1042 (Fla. 4th DCA 2009) . . . . 5.3.C.2.a Turkish v. Brody, 221 So. 3d 1206 (Fla. 3d DCA 2016) . . . . 9.4.C.3, 9.4.H Turner v. Greyhound Financial Corporation, 567 So. 2d 1042 (Fla. 1st DCA 1990) . . . . 1.3.F.2 Turner v. Weeks, 384 So. 2d 193 (Fla. 2d DCA 1980) . . . . 2.2.A.2.a Tyler v. Huggins, 175 So. 2d 239 (Fla. 2d DCA 1965) . . . . 6.11 Tyson v. State, 83 Fla. 7, 90 So. 622 (1922) . . . . 4.2

U U.S. Borax, Inc. v. Forster, 764 So. 2d 24 (Fla. 4th DCA 1999) . . . . 14.6.D U.S. Trust Company of Florida Savings Bank v. Haig, 694 So. 2d 769 (Fla. 4th DCA 1997) . . . . 6.2.C Udell, In re Estate of, 324 So. 2d 703 (Fla. 4th DCA 1976) . . . . 3.2.F.4.f Udell, In re Estate of, 501 So. 2d 1286 (Fla. 4th DCA 1987) . . . . 7.7, 11.2.R.2, 14.8.A Uhl v. Holbruner, 146 Fla. 133, 200 So. 359 (1941) . . . . 5.4.A.4 Ullman v. Garcia, 645 So. 2d 168 (Fla. 3d DCA 1994) . . . . 3.3.G.2, 5.5.A Unanue, In re Estate of, 235 So. 3d 1006 (Fla. 2d DCA 2017) . . . . 11.3.B.2 United Bank v. Estate of Frazee, 197 So. 3d 1190 (Fla. 4th DCA 2016) . . . . 6.2.A, 14.3.B United Companies Financial Corp. v. Hughes, 460 So. 2d 585 (Fla. 2d DCA 1984) . . . . 11.2.C.3.a United Services Automobile Ass’n v. Phillips, 775 So. 2d 921 (Fla. 2000) . . . . 14.8.D United States v. (see name of defendant) United States Sugar Corp. v. Estate of Mullins, 211 So. 3d 110 (Fla. 4th DCA 2017) . . . . 14.5.A Universal Insurance Company of North America v. Warfel, 82 So. 3d 47 (Fla. 2012) . . . . 5.3.C.4 University Medical Center v. Zeiler, 625 So. 2d 120 (Fla. 5th DCA 1993) . . . . 9.4.C.3 University of Florida Foundation, Inc. v. Miller, 478 So. 2d 482 (Fla. 1st DCA 1985) . . . . 11.2.M Urbach v. J.R.U., 321 So. 3d 390 (Fla. 3d DCA 2021) . . . . 1.4.C

V Vail’s Estate, In re, 67 So. 2d 665 (Fla. 1953) . . . . 7.5.B.4 Val Bostwick v. Estate of Cowan, 326 So. 2d 454 (Fla. 1st DCA 1976) . . . . 14.3.C Valdes v. Estate of Valdes, 913 So. 2d 1229 (Fla. 3d DCA 2005) . . . . 2.3.E, 4.5.A, 4.5.B Valdes v. Muniz, 164 So. 2d 876 (Fla. 2d DCA 1964) . . . . 5.5.A Valleskey v. Flagship National Bank of Miami, 508 So. 2d 541 (Fla. 3d DCA 1987) . . . . 9.4.J, 11.2.C.2.b Valone, In re, 784 F.3d 1398 (11th Cir. 2015) . . . . 8.3.E Van Devere v. Holmes, 156 So. 2d 899 (Fla. 3d DCA 1963) . . . . 14.5.A Van Dusen v. Southeast First National Bank of Miami, 478 So. 2d 82 (Fla. 3d DCA 1985) . . . . 9.4.F.2 Van Horne, In re Estate of, 305 So. 2d 46 (Fla. 3d DCA 1975) . . . . 3.2.A.5.b, 3.2.B.1.a Van Vechten v. Anyzeski, 157 So. 3d 350 (Fla. 4th DCA 2015) . . . . 11.2.K.1.f Vandenberg v. Wells, 721 So. 2d 453 (Fla. 5th DCA 1998) . . . . 5.2.D.1.b Vander Voort v. International Development & Holding Corp., 579 So. 2d 887 (Fla. 2d DCA 1991) . . . . 10.3.B.1 Vandiver v. Vincent, 139 So. 2d 704 (Fla. 2d DCA 1962) . . . . 8.4.A Varela v. Bernachea, 917 So. 2d 295 (Fla. 3d DCA 2005) . . . . 5.3.B.2, 5.3.B.3, 5.3.C.2.a, 5.3.C.3, 5.4.B.3.e Vargas v. Vargas, 659 So. 2d 1164 (Fla. 3d DCA 1995) . . . . 5.5.A, 5.5.B Vasallo v. Bean, 208 So. 3d 188 (Fla. 3d DCA 2016) . . . . 14.5.A Vaughan v. Boerckel, 963 So. 2d 915 (Fla. 4th DCA 2007) . . . . 1.4.E Vaughn v. Batchelder, 633 So. 2d 526 (Fla. 2d DCA 1994) . . . . 9.3.B Velzy v. Estate of Miller, 502 So. 2d 1297 (Fla. 2d DCA 1987) . . . . 6.8.B Venis v. Greenspan, 833 So. 2d 208 (Fla. 4th DCA 2002) . . . . 11.2.K.1.b

Vernon, In re Estate of, 608 So. 2d 510, 608 So. 2d 510 (Fla. 4th DCA 1992) . . . . 1.4.D.2.c, 1.4.D.3.c, 1.4.E Vetrick v. Keating, 877 So. 2d 54 (Fla. 4th DCA 2004) . . . . 7.5.B.6 Via v. Putnam, 656 So. 2d 460 (Fla. 1995) . . . . 3.2.B.1.c, 4.8.A Vickery, In re Estate of, 564 So. 2d 555 (Fla. 4th DCA 1990) . . . . 3.2.B.1.c Vigliani v. Bank of America, N.A., 189 So. 3d 214 (Fla. 2d DCA 2016) . . . . 7.5.C.3.c, 7.8 Vine v. Scarborough, 517 So. 2d 726 (Fla. 3d DCA 1987) . . . . 10.3.B.1 Vining v. Martyn, 726 So. 2d 336 (Fla. 4th DCA 1999) . . . . 5.2.D.2.b Vista Centre Venture v. Unlike Anything, Inc., 603 So. 2d 576 (Fla. 5th DCA 1992) . . . . 7.2.C, 10.3.B.4, 10.4.A

W Wade v. Clower, 94 Fla. 817, 114 So. 548 (Fla. 1927) . . . . 1.4.B Wagner, In re Estate of, 423 So. 2d 400 (Fla. 2d DCA 1982) . . . . 7.5.B.2 Wagner, Vaughan, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 64 So. 3d 1187 (Fla. 2011) . . . . 12.4.A, 12.7 Waite v. Waite, 618 So. 2d 1360 (Fla. 1993) . . . . 5.4.A.4 Waks, In re Estate of, 386 So. 2d 307 (Fla. 4th DCA 1980) . . . . 5.2.C.2.b Wald v. State Farm Mut. Auto. Ins. Co., 2013 U.S. Dist. LEXIS 188673 (M.D. Fla. 2013) . . . . 6.3.A, 6.8.A Walker v. Bailey, 89 So. 3d 297 (Fla. 5th DCA 2012) . . . . 12.6 Walker v. Mickler, 687 So. 2d 1328 (Fla. 1st DCA 1997) . . . . 8.3.D Walker v. Mickler, 699 So. 2d 687 (Fla. 1997) . . . . 8.3.D Walker v. Redding, 40 Fla. 124, 23 So. 565 (1898) . . . . 8.2.E Walker v. Bailey, 89 So. 3d 297 . . . . 12.6 Walker, In re Trust of, 143 So. 2d 363 (Fla. 2d DCA 1962) . . . . 14.9.B Wall v. Altobello, 49 So. 2d 532 (Fla. 1950) . . . . 2.2.A.1.a Wall, Dorrell; In re Estate of, 502 So. 2d 531 (Fla. 4th DCA 1987) . . . . 2.2.A.2.d Wallace v. Keldie, 249 So. 3d 747 (Fla. 1st DCA 2018) . . . . 14.9.C.6 Wallace v. Watkins, 253 So. 3d 1204 (Fla. 5th DCA 2018) . . . . 2.2.B.2.c, 14.3.B Walters v. Agency for Health Care Administration, 288 So. 3d 1215 (Fla. 3d DCA 2019) . . . . 8.2.A Walters, In re Estate of, 700 So. 2d 434 (Fla. 4th DCA 1997) . . . . 6.11, 7.5.B.5, 7.6.A.2, 14.3.B, 14.3.C Walton v. Estate of Walton, 601 So. 2d 1266 (Fla. 3d DCA 1992) . . . . 14.6.C.4 Ward v. Nestor, 884 So. 2d 522 (Fla. 3d DCA 2004) . . . . 14.3.D Ward, In re Estate of, 172 So. 2d 869 (Fla. 1st DCA 1965) . . . . 14.9.F

Warrior Creek Development, Inc. v. Cummings, 56 So. 3d 915 (Fla. 2d DCA 2011) . . . . 3.2.H.2 Wartels, In re Estate of, 338 So. 2d 48 (Fla. 3d DCA 1976) . . . . 7.2.C, 8.4.C.1, 10.4.B Wartels, In re Estate of, 357 So. 2d 708 (Fla. 1978) . . . . 7.2.C, 8.2.A, 8.4.C.1, 10.4.B Wartman, In re Estate of, 128 So. 2d 600 (Fla. 1961) . . . . 14.9.A Warwick, In re Estate of, 586 So. 2d 327 (Fla. 1991) . . . . 11.2.L.2 Washington’s Estate, In re, 56 So. 2d 545 (Fla. 1952) . . . . 3.2.A.4.b Waterman v. Canal-Louisiana Bank & Trust Co., 215 U.S. 33, 30 S. Ct. 10, 54 L. Ed. 80 (1909) . . . . 7.1.A Waters v. Waters, 310 So. 2d 452 (Fla. 3d DCA 1975) . . . . 5.3.C.1 Watkins, In re, 75 So. 2d 194 (Fla. 1954) . . . . 3.2.A.2.c Watkins, In re Estate of, 572 So. 2d 1014 (Fla. 4th DCA 1991) . . . . 3.2.B.1.b, 9.4.D Watson v. First Florida Leasing, Inc., 537 So. 2d 1370 (Fla. 1989) . . . . 1.2 Watts v. Haun, 393 So. 2d 54 (Fla. 2d DCA 1981) . . . . 13.2.B.1, 13.2.B.2, 13.2.D.3, 13.2.D.4, 13.9 Watts v. Newport, 149 Fla. 181, 6 So. 2d 829 (1942) . . . . 14.6.C.2 Watts v. Newport, 150 Fla. 288, 7 So. 2d 104 (1942) . . . . 3.2.C.2 Webb v. Blue, 243 So. 3d 1054 (Fla. 1st DCA 2018) . . . . 8.3.C.3 Webb; State v., 335 So. 2d 826 (Fla. 1976) . . . . 10.2.A, 10.3.A Webster v. St. Petersburg Federal Savings & Loan Ass’n, 155 Fla. 412, 20 So. 2d 400 (1945) . . . . 5.3.B.1, 5.3.B.2, 5.4.B.2 Wehrheim v. Golden Pond Assisted Living Facility, 905 So. 2d 1002 (Fla. 5th DCA 2005) . . . . 3.2.B.1.a, 3.2.B.5, 3.2.D.1.b, 7.5.C.3.b, 9.3.G Weihe, In re Estate of, 268 So. 2d 446 (Fla. 4th DCA 1972) . . . . 3.2.A.3.a Weinberg v. Bort, 961 So. 2d 1017 (Fla. 4th DCA 2007) . . . . 14.9.E Weinstein, In re Estate of, 339 So. 2d 700 (Fla. 3d DCA 1976) . . . . 3.2.C.3 Weintraub v. Weintraub, 417 So. 2d 629 (Fla. 1982) . . . . 2.2.A.7.f.ii Weise v. Kizer, 435 So. 2d 381 (Fla. 5th DCA 1983) . . . . 5.2.C.2.b

Weisfeld-Ladd v. Estate of Ladd, 920 So. 2d 1148 (Fla. 3d DCA 2006) . . . . 2.2.A.7.f.ii, 4.6.B Weiss v. Berkett, 907 So. 2d 1181 (Fla. 3d DCA 2005) . . . . 14.3.A Weiss v. Stone, 220 So. 2d 403 (Fla. 3d DCA 1969) . . . . 8.4.A, 8.4.C.1 Wejanowski, In re Estate of, 920 So. 2d 190 (Fla. 2d DCA 2006) . . . . 9.4.C.3, 14.9.C.3 Wellington Trusts, In the Matter of, 85 N.Y.S.3d 497, 165 A.D.3d 809, 2018 NY Slip Op 06749 (App. Div. 2018) . . . . 9.4.C.2 Wells v. Menn, 154 Fla. 173, 17 So. 2d 217 (1944) . . . . 14.9.C.3 Wells v. Wells, 24 So. 3d 579 (Fla. 4th DCA 2009) . . . . 3.3.B.2.b Wells Fargo Bank, N.A. v. Rutledge, 230 So. 3d 550 (Fla. 2d DCA 2017) . . . . 5.2.D.2.b Wendy’s of N.E. Florida, Inc. v. Vandergriff, 865 So. 2d 520 (Fla. 1st DCA 2003) . . . . 11.2.C.3.a Werner v. Estate of McCloskey, 943 So. 2d 1007 (Fla. 1st DCA 2006) . . . . 2.4, 9.2 West v. West, 126 So. 3d 437 (Fla. 4th DCA 2013) . . . . 1.3.G.1, 6.6.E West Coast Hospital Ass’n v. Florida National Bank of Jacksonville, 100 So. 2d 807 (Fla. 1958) . . . . 3.3.H.1, 11.6 West Coast Life Ins. Co. v. Longboat, 2010 U.S. Dist. LEXIS 130889 (M.D. Fla. 2010) . . . . 2.2.A.5 Wexler v. Rich, 80 So. 3d 1097 (Fla. 4th DCA 2012) . . . . 5.2.D.1.b, 5.4.A.4, 5.4.B.3.g Whalen v. Prosser, 719 So. 2d 2 (Fla. 2d DCA 1998) . . . . 3.2.B.1.c, 13.1, 13.2.A, 13.2.B.1, 13.2.C.1, 13.2.C.2, 13.2.D.1, 13.2.D.2, 13.2.D.4, 13.3.A, 13.6, 13.8, 13.9 Wheeler v. Powers, 972 So. 2d 285 (Fla. 5th DCA 2008) . . . . 3.2.B.1.b Whirley v. State, 450 So. 2d 836 (Fla. 1984) . . . . 10.3.A White v. Marks, 325 So. 3d 160 (Fla. 5th DCA 2021) . . . . 2.2.A.1.a White v. Posick, 150 So. 2d 263 (Fla. 2d DCA 1963) . . . . 8.2.A, 8.4.A White v. Westlund, 624 So. 2d 1148 (Fla. 4th DCA 1993) . . . . 12.8.D.3 White; United States v., 853 F.2d 107 (2d Cir. 1988) . . . . 11.5

Whitehurst v. Camp, 699 So. 2d 679 (Fla. 1997) . . . . 6.7.B Whittaker, In re, 564 B.R. 115 (E.D. Mass. 2017) . . . . 9.4.C.2 Whitten v. Progressive Casualty Insurance Co., 410 So. 2d 501 (Fla. 1982) . . . . 11.2.C.3.a Wiggins v. Estate of Wright, 850 So. 2d 444 (Fla. 2003) . . . . 12.6, 12.7 Wiggins v. Parson, 446 So. 2d 169 (Fla. 5th DCA 1984) . . . . 5.2.C.2.b, 5.2.C.2.c, 5.4.A.4, 5.4.B.3.g Wiggins v. Williams, 36 Fla. 637, 18 So. 859 (1896) . . . . 10.3.B.1, 10.3.B.2, 10.4.A Wiggins, In re Estate of, 729 So. 2d 523 (Fla. 4th DCA 1999) . . . . 14.6.D Wilisch, In re Estate of, 384 So. 2d 223 (Fla. 3d DCA 1980) . . . . 6.6.D.2 Williams v. Dept. of Health & Rehabilitative Services, 522 So. 2d 951 (Fla. 1st DCA 1988) . . . . 5.3.C.1 Williams v. Dorrell, 714 So. 2d 574 (Fla. 3d DCA 1998) . . . . 2.2.A.2.d, 3.2.B.1.a, 8.3.C.2 Williams v. Estate of Pender, 738 So. 2d 453 (Fla. 1st DCA 1999) . . . . 2.2.A.2.d Williams v. Estate of Williams, 493 So. 2d 44 (Fla. 5th DCA 1986) . . . . 1.3.G.1, 6.6.B, 6.6.D.2, 6.6.E Williams v. King, 711 So. 2d 1285 (Fla. 5th DCA 1998) . . . . 7.7, 9.4.J Williams v. M & R Construction of North Florida, Inc., 305 So. 3d 353 (Fla. 1st DCA 2020) . . . . 5.2.D.2.a Williams v. Noel, 105 So. 2d 901 (Fla. 3d DCA 1958) . . . . 5.2.D.2.b Williams v. Powers, 619 So. 2d 980 (Fla. 5th DCA 1993) . . . . 12.2.B Williams v. State, 711 So. 2d 41 (Fla. 1st DCA 1998) . . . . 9.3.M Williams v. Williams, 152 Fla. 255, 9 So. 2d 798 (1942) . . . . 7.5.C.2 Williams v. Williams, 255 So. 2d 273 (Fla. 4th DCA 1971) . . . . 5.3.B.1, 5.3.B.2, 5.4.B.2 Williams, Estate of v. Jursinski, 160 So. 3d 500 (Fla. 2d DCA 2015) . . . . 11.2.C.3.a Williams, In re, 427 B.R. 541 (Bankr. M.D. Fla. 2010) . . . . 8.3.D

Williams, In re Estate of, 771 So. 2d 7 (Fla. 2d DCA 2000) . . . . 14.6.D Williams, In re Guardianship of, 313 So. 2d 411 (Fla. 1st DCA 1975) . . . . 5.4.B.3.g Williamson, In re Estate of, 95 So. 2d 244, 65 A.L.R. 2d 1195 (Fla. 1957) . . . . 1.4.D.1, 2.5 Williams-Paris v. Joseph, 329 So. 3d 775 (Fla. 4th DCA 2021) . . . . 2.2.A.7.f.ii Willie v. State, 600 So. 2d 479 (Fla. 1st DCA 1992) . . . . 1.4.C Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003) . . . . 11.2.C.3.b Wilmott’s Estate, In re, 66 So. 2d 465, 40 A.L.R. 2d 1399 (Fla. 1953) . . . . 3.2.A.3.a, 3.2.C.3, 14.6.C.2 Wilson v. First Florida Bank, 498 So. 2d 1289 (Fla. 2d DCA 1986) . . . . 7.5.C.2, 7.6.A.3 Wilson v. Florida National Bank & Trust Co. at Miami, 64 So. 2d 309 (Fla. 1953) . . . . 5.2.D.2.a Wilson v. Wilson, 138 So. 3d 1176 (Fla. 4th DCA 2014) . . . . 4.12 Wilson v. Wilson as Trustee of Paul C. Wilson Living Trust, 279 So. 3d 160 (Fla. 4th DCA 2019) . . . . 4.6.B Wilson, In re Estate of, 116 So. 2d 440 (Fla. 2d DCA 1959) . . . . 9.4.C.1 Winner v. Winner, 370 So. 2d 845 (Fla. 3d DCA 1979) . . . . 5.3.B.2 Winslow v. Deck, 225 So. 3d 276 (Fla 4th DCA 2017) . . . . 1.3.D, 3.2.D.1.a Winston, In re Estate of, 610 So. 2d 1323 (Fla. 4th DCA 1992) . . . . 11.2.M, 14.3.C Winters v. Parks, 91 So. 2d 649 (Fla. 1956) . . . . 5.2.D.1.b, 5.2.D.2.a Winterton v. Kaufmann, 504 So. 2d 439 (Fla. 3d DCA 1987) . . . . 5.3.B.3 Wintter & Associates, P.A. v. Kanowsky, 992 So. 2d 434 (Fla. 4th DCA 2008) . . . . 3.3.H.1 Wintter & Associates v. Kanowsky, 992 So. 2d 434 (Fla. 4th DCA 2008) . . . . 3.2.C.3 Wise v. Schmidek, 649 So. 2d 336 (Fla. 3d DCA 1995) . . . . 14.6.D Wittock v. Ramponi, 446 So. 2d 271 (Fla. 4th DCA 1984) . . . . 5.2.C.2.b

Wohl v. Lewy, 505 So. 2d 525 (Fla. 3d DCA 1987) . . . . 9.4.B, 9.4.C.4 Wolf v. Doll, 229 So. 3d 1280 (Fla. 4th DCA 2017) . . . . 1.3.E.2, 1.4.D.3.a, 13.3.A, 13.3.B, 13.9 Wolf Sanitary Wiping Cloth, Inc. v. Wolf, 526 So. 2d 702 (Fla. 3d DCA 1988) . . . . 1.4.D.2.c Wood v. U.S. Bank, N.A, 828 N.E.2d 1072, 160 Ohio App. 3d 831, 2005Ohio 2341 (Ohio Ct. App. 2005) . . . . 9.4.H Wood, In re Estate of, 226 So. 2d 46 (Fla. 2d DCA 1969) . . . . 7.5.B.12, 7.5.C.3.c Woods v. Estate of Woods, 770 So. 2d 1270 (Fla. 3d DCA 2000) . . . . 12.4.D, 14.6.D Woolf v. Reed, 389 So. 2d 1026 (Fla. 3d DCA 1980) . . . . 14.3.C, 14.3.D Wos v. E.M.A, 568 U.S. 627, 133 S. Ct. 1391, 185 L. Ed. 2d 471 (2013) . . . . 12.8.C.2 Wraight v. Wraight, 71 So. 3d 139 (Fla. 5th DCA 2011) . . . . 5.3.B.2 Wright, In re, 668 So. 2d 661 (Fla. 4th DCA 1996) . . . . 9.3.M Wylie v. Investment Management & Research Inc., 629 So. 2d 898 (Fla. 4th DCA 1994) . . . . 6.2.A

X Xayavong v. Sunny Gifts, Inc., 891 So. 2d 1075 (Fla. 5th DCA 2005) . . . . 5.2.D.1.b Xerox Corp. v. Sharifi, 502 So. 2d 1003 (Fla. 5th DCA 1987) . . . . 11.2.C.3.a

Y Yaffee v. International Co., 80 So. 2d 910 (Fla. 1955) . . . . 3.2.F.4.c Yerex, In re Estate of, 651 So. 2d 220 (Fla. 4th DCA 1995) . . . . 6.6.D.2 York v. Smith, 385 So. 2d 1110 (Fla. 1st DCA 1980) . . . . 3.2.A.3.a Young v. Altenhaus, 448 So. 2d 1039 (Fla. 3d DCA 1983) . . . . 3.2.G.4 Young v. Hector, 851 So. 2d 762 (Fla. 3d DCA 2003) . . . . 14.5.A Young v. St. Vincent’s Medical Center, Inc, 673 So. 2d 482 (Fla. 1996) . . . . 12.4.C Youngelson v. Estate of Youngelson, 114 So. 2d 642 (Fla. 3d DCA 1959) . . . . 2.3.E Yusuf Mohamad Excavation, Inc. v. Ringhaver Equipment Co., 793 So. 2d 1127 (Fla. 5th DCA 2001) . . . . 13.8

Z Zaloudek, In re Estate of, 356 So. 2d 1326 (Fla. 4th DCA 1978) . . . . 14.3.D, 14.4 Zeidel v. Estate of Rosenberg, 357 So. 2d 259 (Fla. 3d DCA 1978) . . . . 6.8.A Zepeda v. Klein, 698 So. 2d 329 (Fla. 4th DCA 1997) . . . . 11.2.N, 11.6 Ziering v. Berger, 209 So. 2d 681 (Fla. 3d DCA 1968) . . . . 9.4.C.3 Zimbrick, In re Estate of, 453 So. 2d 1155 (Fla. 4th DCA 1984) . . . . 14.3.C Zimmerman, In re Estate of, 84 So. 2d 560 (Fla. 1956) . . . . 3.2.A.3.a Zinnser v. Gregory, 77 So. 2d 611 (Fla. 1955) . . . . 3.2.A.3.b Zoldan v. Zohlman, 915 So. 2d 235 (Fla. 3d DCA 2005) . . . . 4.7 Zuckerman v. Alter, 615 So. 2d 661 (Fla. 1993) . . . . 3.3.B.1.a, 3.3.B.2.c Zureikat v. Shaibani, 944 So. 2d 1019 (Fla. 5th DCA 2006) . . . . 8.3.D Zurro v. Wells Fargo Bank, N.A., 209 So. 3d 27 (Fla. 2d DCA 2016) . . . . 3.2.C.3

Licensed to Otis K Pitts, Otis K Pitts

SUBJECT INDEX [References are to sections.] A B C D E F G H I J K L M N P R S T U V W

A ADEMPTION . . . . 7.5.B.4–7.5.B.5, 7.5.B.8 ADOPTION see INTESTATE SUCCESSION ADVANCEMENTS . . . . 2.8 ADVERSARY PROCEEDINGS Defined . . . . 1.3.A, 1.4.E Discovery . . . . 1.3.I Fees and commissions, objections to . . . . 11.3.C Generally . . . . 1.3.H Parties . . . . 1.3.I Revocation of probate, petition for . . . . 3.2.D.1.c.iii Statute of limitations . . . . 3.2.C.6 AGREEMENTS, PRIVATE . . . . 2.7 ALIENS, RIGHTS OF . . . . 2.2.A.6 ANATOMICAL GIFTS . . . . 4.12 ANTENUPTIAL AGREEMENTS 4.6.A–4.6.B, 8.3.E

. . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 2.3.E,

APPEALS Attorneys' fees Costs, jurisdiction to tax . . . . 14.8.F F.S 57.105, awards under . . . . 14.8.E Generally . . . . 7.7, 11.2.R.1, 11.3.K, 14.3.C, 14.8.B Inequitable conduct doctrine . . . . 14.8.E Jurisdiction . . . . 14.8.A Motion in appellate court . . . . 14.8.D Standard of review . . . . 14.8.C Briefs . . . . 14.9.H

Certiorari Procedure . . . . 14.5.B When available . . . . 14.5.A Checklist for attorney . . . . 14.2 Commencement of . . . . 14.9.B Court reporter, designation to . . . . 14.9.F Creditors' claims . . . . 6.11 Death of party . . . . 14.9.C.6 Designation to court reporter . . . . 14.9.F Error, appellate principles regarding . . . . 14.7.A–14.7.B Final order Appealable orders, examples of . . . . 14.3.C Defined . . . . 14.3.B Motion to delay rendition . . . . 14.3.E.1–14.3.E.2 Nonappealable orders, examples of . . . . 14.3.D Right to appeal . . . . 14.3.A Timely appeal, failure to . . . . 1.3.J Generally . . . . 1.3.J, 14.1, 14.3.A Harmless error rule . . . . 14.7.B Interlocutory order . . . . 14.4 Motion to delay rendition of final order . . . . 14.3.E.1–14.3.E.2 Nonfinal order Certiorari, review by petition for . . . . 14.5.A–14.5.B Generally . . . . 1.3.J, 14.4 Oral argument, request for . . . . 14.9.I Parties Administrator ad litem . . . . 14.9.C.2 Attorneys . . . . 14.9.C.4 Death of . . . . 14.9.C.6 Generally . . . . 14.9.C.1 Guardian ad litem . . . . 14.9.C.4 Lawyers . . . . 14.9.C.4 Personal representative . . . . 14.9.C.3 Representatives . . . . 14.9.C.4 Trustee . . . . 14.9.C.5 Perfection of . . . . 14.9.A–14.9.I Record on appeal . . . . 14.9.E, 14.9.G

Removal of personal representative . . . . 9.3.L, 14.3.C–14.3.D Rules governing . . . . 1.3.J Standards of review Attorneys' fees, award of . . . . 14.8.C Fact decisions Discretionary decisions . . . . 14.6.D Generally . . . . 14.6.C.1 Legal conclusions from undisputed evidence . . . . 14.6.C.4 Testamentary capacity . . . . 14.6.C.2 Undue influence . . . . 14.6.C.3 Generally . . . . 14.6.A Law decisions . . . . 14.6.B Stay pending review Conditions of . . . . 14.9.D.4 Generally . . . . 14.9.D.1 Money judgment upon posting bond, automatic stay of . . . . 14.9.D.5 Motion in trial court . . . . 14.9.D.3 Not required for appeal . . . . 14.9.D.2 Order, review of . . . . 14.9.D.6 Transcript of proceedings . . . . 14.9.E–14.9.F ATTORNEY Appeals by . . . . 14.9.C.4 Appearance, limiting . . . . 1.3.C Attorney of record defined . . . . 1.3.E.6.c Compensation see ATTORNEYS' FEES Malpractice see ATTORNEYS' FEES, subhead: Malpractice by attorney Multiple parties, representation of . . . . 3.2.C.4–3.2.C.5 Personal representative Attorney as . . . . 11.2.H, 11.2.K.2.b Removal of . . . . 9.3.I, 11.2.C.1.c Surcharge of Fees . . . . 9.4.J Liability of attorney to beneficiaries . . . . 9.4.K Witness, as . . . . 3.2.F.4.f, 11.2.K.1.c, 11.2.O ATTORNEYS' FEES

Adversary nature of proceeding . . . . 11.3.C, 11.3.E Appeals see APPEALS, subhead: Attorneys' fees Authority to pay . . . . 11.2.I Burden of proof . . . . 11.3.F Calculation of Attorney as witness . . . . 11.2.K.1.c Current law . . . . 11.2.K.1.b Historical perspective . . . . 11.2.K.1.a Platt rule . . . . 11.2.K.1.a, 11.6 Retroactive effect of current statute . . . . 11.2.K.1.d Separate fees for probate litigation . . . . 11.2.K.1.e Time records, need for Application . . . . 11.2.L.2 Generally . . . . 11.2.A, 11.2.L.1 Charging lien . . . . 11.4.C Construction proceedings . . . . 7.7 Contest, will . . . . 3.2.C.1–3.2.C.4 Contract, fee . . . . 3.2.C.1, 11.2.M Creditors' claims . . . . 6.7.C Debts of estate, effect of on fees . . . . 11.2.K.1.b Discharge or final accounting, objection to petition for . . . . 11.3.A, 11.3.B.2, 11.3.D Discovery . . . . 11.3.E Disgorgement of fees . . . . 1.4.C, 11.2.C.1.c “Double dipping” . . . . 11.2.K.2.b Ethical considerations . . . . 11.4.A Expert witness fee for attorney/witness . . . . 11.2.O Fees expended to obtain fees, right to . . . . 11.2.N Final hearing . . . . 11.3.G, 11.3.I Generally . . . . 3.2.G.3, 11.1, 11.2.B, 11.6–11.7 Hearing, final . . . . 11.3.G, 11.3.I Indebted estates, fees charged against . . . . 11.2.K.1.b Interest on fees awarded but unpaid . . . . 11.2.P Interim . . . . 11.2.Q Liens Charging lien . . . . 11.4.C Retaining lien . . . . 11.4.A–11.4.B

Malpractice by attorney Disgorgement of fees . . . . 1.4.C, 11.2.C.1.c Generally . . . . 3.2.C.6 Removed or resigned personal representative, attorney representing . . . . 11.2.C.1.c Mediation . . . . 11.2.R.2 Multiple attorneys . . . . 11.2.G Nonadversary versus adversary proceeding . . . . 11.3.C Objection to petition for discharge or final accounting . . . . 11.3.A, 11.3.B.2, 11.3.D Order, final . . . . 11.3.J Partial . . . . 11.2.Q Parties to petition to determine . . . . 11.3.A Personal representative Attorney as . . . . 11.2.H, 11.2.K.2.b Attorney representing Fees expended to obtain fees, right to . . . . 11.2.N Generally . . . . 11.2.C.1.a Paralegal fees . . . . 11.2.C.1.b Removed or resigned personal representative . . . . 9.3.I–9.3.J, 11.2.C.1.c Will offeror, attorney representing unsuccessful . . . . 11.2.C.1.c Petition, need for . . . . 11.2.I, 11.3.B.1 Pleading requirements . . . . 11.2.K.1.f, 11.3.D Presumptively reasonable fee . . . . 11.2.B, 11.2.K.1.b Priority of payment of . . . . 11.2.J Procedure to obtain . . . . 11.3.A–11.3.K Retaining lien . . . . 11.4.A–11.4.B Separate fees for probate litigation . . . . 11.2.K.1.e Settlement . . . . 11.3.H Surcharge actions under F.S. 733.609 . . . . 9.4.J, 11.2.C.2.b Tax considerations . . . . 11.5 Third party, attorney representing Absence of justiciable issue . . . . 11.2.C.3.a “Benefit to the estate” under F.S. 733.106(3) . . . . 11.2.C.2.a.ii Disqualifications under F.S. 733.3101 . . . . 11.2.C.2.c Fees under F.S. 57.105 . . . . 11.2.C.3.a

Fees under F.S. 768.79 . . . . 11.2.C.3.b Fees under F.S. 772.11 . . . . 11.2.C.3.c Frivolous litigation . . . . 11.2.C.3.a Generally . . . . 11.2.C.2.a.i Surcharge . . . . 9.4.J Surcharge actions under F.S. 733.609 . . . . 11.2.C.2.b Third party, fees charged against . . . . 11.2.D Time records, need for Application . . . . 11.2.L.2 Generally . . . . 11.2.A, 11.2.L.1 Timing of payment of . . . . 11.2.I When payable . . . . 11.2.I Witness, attorney as Fee . . . . 11.2.O Necessity for . . . . 11.3.I Wrongful death actions . . . . 12.7

B BANK ACCOUNTS, JOINT see JOINT INTERESTS BANKRUPTCY PROCEEDINGS Appeal, stay of . . . . 14.9.D.1 Joint property . . . . 5.2.D.2.a BENEFICIARIES, SUCCESSION

DETERMINATION

OF

see

INTESTATE

C CHARITABLE DEVISES . . . . 3.2.A.6.a CHILDREN, RIGHTS OF Intestacy, inheritance under laws of see INTESTATE SUCCESSION Nonmonetary rights . . . . 4.12 Pretermitted . . . . 2.2.A.2.c, 3.2.A.6.c, 4.9.A–4.9.B Wrongful death action, status as survivor in . . . . 2.2.A.2.d, 12.4.C CLAIMS BY CREDITORS Action when no claim filed . . . . 6.8.A–6.8.B Appeals . . . . 6.11 Attorneys' fees . . . . 6.7.C Compulsory payment, petition for . . . . 6.7.A Counterclaims . . . . 6.8.A Department of Revenue, claims by . . . . 6.8.A Executions . . . . 6.9 Extensions of time Filing and serving objection to claim . . . . 1.3.G.2, 6.5.D.1–6.5.D.2 Filing claim . . . . 1.3.F.3, 6.2.C Filing independent action . . . . 1.3.F.3, 6.6.C–6.6.D.2 Fees charged by administration attorney, effect of claims on . . . . 11.2.K.1.b Generally . . . . 6.1 Independent action Death, action pending at . . . . 6.6.H Filing Extension of time for Generally . . . . 1.3.F.3, 6.6.D.1 Good cause . . . . 6.6.D.2 Failure to file . . . . 6.6.B Place of . . . . 6.6.E Time for . . . . 1.3.F.3, 1.3.G.1–1.3.G.2, 6.6.C Generally . . . . 1.3.G.1–1.3.G.2, 1.4.E, 6.6.A

Judgment, priority of . . . . 6.6.I Jurisdiction . . . . 1.3.G.1, 1.4.E, 6.6.E Necessary parties . . . . 6.6.F Notice of . . . . 6.6.G Parties, necessary . . . . 6.6.F Priority of judgment . . . . 6.6.I Transfer to civil division . . . . 1.3.G.1 Where brought . . . . 1.3.G.1, 1.4.E, 6.6.E Insurance . . . . 6.8.A Interest on . . . . 6.7.B Jurisdiction . . . . 1.3.G.1 Levies . . . . 6.9 Liens . . . . 6.8.A Nonclaim statute, two-year Generally . . . . 6.3.A Notice . . . . 6.3.B Notice Generally . . . . 1.3.E.6.a, 1.3.E.6.c Independent action . . . . 6.6.G Nonclaim statute, two-year . . . . 6.3.B Objections to Failure to serve . . . . 6.5.C Filing Extension of time for Generally . . . . 1.3.F.3, 6.5.D.1 Good cause . . . . 6.5.D.2 Failure to file . . . . 6.5.E, 9.3.B, 9.4.C.3 Objections to claims . . . . 1.3.G.2 Requirements . . . . 1.3.G.2 Generally . . . . 1.3.F.2, 6.5.A Service of . . . . 6.5.B, 6.5.D.1 Payment of Interest . . . . 6.7.B Petition for compulsory . . . . 6.7.A Revocable trusts, claims against . . . . 6.4 Standing of creditor to bring surcharge action . . . . 9.4.D Statute of limitations

Death of decedent, effect of . . . . 6.10 Nonclaim statute as . . . . 6.2.B.1–6.2.B.4 Tolling of . . . . 6.10 Surcharge action by creditor . . . . 9.4.D Three-month/thirty-day claim statute Extension of time to file claim . . . . 1.3.F.3, 6.2.C Generally . . . . 6.2.A May v. Illinois National Insurance, analysis of . . . . 6.2.B.2–6.2.B.4 Statute of limitations, comparison with . . . . 6.2.B.1–6.2.B.4 Trust claims . . . . 6.8.B Revocable trusts . . . . 6.4 Wrongful death awards to estate . . . . 12.4.F COLLATERAL HEIRS . . . . 2.3.C, 2.3.F COMMUNITY PROPERTY, DISPOSITION OF . . . . 4.13 COMPENSATION DISPUTES Attorneys' fees see ATTORNEYS' FEES Personal representative see PERSONAL REPRESENTATIVE CONSTRUCTION OF WILL see WILLS CONTEST Trust, of see TRUSTS Will, of see WILLS CREDITORS' CLAIMS see CLAIMS BY CREDITORS

D DEAD PERSON'S STATUTE, REPEAL OF . . . . 3.2.A.2.c, 3.2.E.3, 3.2.F.4.c DEED, PERSONAL REPRESENTATIVE'S . . . . 2.6–2.7 DISCOVERY Estate information, request for . . . . 1.3.E.7.b Fee disputes . . . . 11.3.E Generally . . . . 1.3.A, 1.3.E.7.b, 1.3.I Will contests see WILLS DURESS Contest of trust . . . . 3.3.B.2.a–3.3.B.2.b Contest of will . . . . 3.2.A.3.b Intestate succession Beneficiaries, determination of Marriage procured by fraud, duress or undue influence . . . . 2.2.A.7.g Spousal rights procured by fraud, duress or undue influence . . . . 4.2

E ELECTIVE SHARE Post-September 30, 2001 law Amount of, determination of . . . . 4.3.B.5 Elective estate . . . . 4.3.B.2 Entitlement to, determination of . . . . 4.3.B.4 Exercise of election . . . . 4.3.B.3 Generally . . . . 4.3.B.1, 4.3.B.6 Marital agreement, effect of . . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 4.6.B–4.7 Pre-October 1, 2001 law . . . . 4.3.A ELECTRONIC FILINGS e-Portal . . . . 1.3.E.3.b, 1.3.E.3.c Informal notice, service of . . . . 1.3.E.3.b Pleadings and motions . . . . 1.3.D EVIDENCE CODE, APPLICATION OF . . . . 1.3.B EXECUTION Creditor, by . . . . 6.9 Pleadings, of . . . . 1.3.D, 7.3.A Wills, of see WILLS EXEMPT PROPERTY . . . . 2.3.D, 4.4.A–4.4.B

F FAMILY ALLOWANCE . . . . 2.3.E, 4.5.A–4.5.B FEES Attorneys see ATTORNEYS' FEES Personal representative see PERSONAL REPRESENTATIVE FINAL ORDERS see APPEALS FLORIDA UNIFORM DISPOSITION OF COMMUNITY PROPERTY RIGHTS AT DEATH ACT . . . . 4.13 FLORIDA UNIFORM TRANSFER-ON-DEATH REGISTRATION ACT . . . . 5.6

SECURITY

FORMAL NOTICE “Claw back” claim . . . . 1.4.D.2.c Generally . . . . 1.3.E.2, 1.4.C In personam jurisdiction . . . . 1.4.D.2.a, 1.4.D.2.c Service Attorney of record . . . . 1.3.E.6.c Generally . . . . 1.3.E.2 In manner provided for service of formal notice . . . . 1.3.E.5 Interested persons . . . . 1.4.D.3.c Minors . . . . 1.4.D.3.b Non-residents doing business in Florida . . . . 1.4.D.2.c FORMS Construction of will Consent to stipulation . . . . 7.4.B.2 Notice . . . . 7.3.E Proof of service of formal notice . . . . 7.3.F Sample petition . . . . 7.3.C Waiver of notice . . . . 7.4.B.2

Contest of trust, limitations notice . . . . 3.3.G.2 Contest of will Costs of discovery, notice of intention to seek assessment of . . . . 3.2.E.2 Judgment . . . . 3.2.G.4 Orders allowing fees . . . . 3.2.G.5.a–3.2.G.5.b Petition for revocation of probate . . . . 3.2.D.1.b Settlement . . . . 3.2.H.3 Homestead Affidavit of diligent search and inquiry . . . . 8.5.C.2 Guardian ad litem Oath . . . . 8.5.D.4 Petition for appointment . . . . 8.5.D.2 Notice of action . . . . 8.5.C.3 Notice of hearing on petition to determine . . . . 8.5.B.2 Revocation of probate, petition for . . . . 3.2.D.1.b FRAUD Contest of trust . . . . 3.3.B.2.a–3.3.B.2.b Contest of will . . . . 3.2.A.3.b Intestate succession Beneficiaries, determination of Marriage procured by fraud, duress or undue influence . . . . 2.2.A.7.g Spousal rights procured by fraud, duress or undue influence . . . . 4.2

G GENEALOGICAL CHART . . . . 2.9 GENEALOGICAL TRACING SERVICES . . . . 2.2.B.5 GIFTS CONTESTED IN WILLS . . . . 3.2.A.3.c GUARDIAN AD LITEM . . . . 2.2.B.2.a, 2.2.B.2.e, 2.2.B.4–2.2.B.5, 7.3.B, 8.5.D.1–8.5.D.4

H HALF BLOOD INHERITANCE . . . . 2.2.A.4, 2.3.F HEIRS, DETERMINATION OF see INTESTATE SUCCESSION HOMESTEAD Affidavit of diligent search, form for . . . . 8.5.C.2 Burden of proof, presumption of . . . . 8.4.A Cooperative apartments . . . . 8.2.D Definition Applicable law . . . . 8.2.C Constitutional provisions . . . . 8.2.A Descent of homestead . . . . 8.2.B.2 Devise . . . . 8.2.B.3 Form of ownership of property . . . . 8.2.D Inter vivos transfer . . . . 8.2.B.4 Protections . . . . 8.2.B.1, 8.2.B.5 Statutory provisions . . . . 8.2.B.1–8.2.B.6 Testamentary and revocable trusts . . . . 8.2.B.5 Determination of status Claims exemption, creditors issues . . . . 8.3.D Factual issues Family status . . . . 8.4.C.3 Generally . . . . 8.4.C.1 Residency . . . . 8.4.C.2 Time of execution of instrument, importance of . . . . 8.4.B Devise, generally . . . . 8.3.C.3 Forms see FORMS Generally . . . . 8.1, 8.3.A, 8.5.A Guardian ad litem, appointment of Generally . . . . 8.5.D.1 Oath, form for . . . . 8.5.D.4 Order, form for . . . . 8.5.D.3 Petition, form for . . . . 8.5.D.2

Inheritance, generally . . . . 8.3.C.2 Inter vivos alienation of property . . . . 8.3.C.1 Inter vivos trust, devise to . . . . 8.3.C.3 Leasehold interests . . . . 8.2.D Lien on, personal representative's . . . . 2.6, 8.2.E Life estates . . . . 8.2.D Marital agreement, effect of . . . . 8.3.E Order determining . . . . 8.5.E Petition to determine Generally . . . . 8.5.A, 8.5.E Notice of action . . . . 8.5.C.3 Notice of hearing on Form . . . . 8.5.B.1 Generally . . . . 8.5.B.2 Pleading and procedure generally . . . . 8.5.A Possession of by personal representative Generally . . . . 8.2.E Lien, personal representative's . . . . 2.6, 8.2.E Notice of taking possession . . . . 8.5.F Revocable trust, property held in . . . . 8.2.B.5 Search for heirs Affidavit of diligent search, form for . . . . 8.5.C.2 Necessity of . . . . 8.5.C.1 Status of property as homestead see within this heading Determination of status Tax exemption issues . . . . 8.3.B Testamentary trust, property held in . . . . 8.2.B.5 Waiver of right to . . . . 8.3.E

I INFORMAL NOTICE Generally . . . . 1.3.E.1, 1.3.E.3.a Service Certificate of service . . . . 1.3.E.3.c Delivery or mailing . . . . 1.3.E.3.c Electronic mail . . . . 1.3.E.3.b Minors . . . . 1.3.E.4 INTERESTED PERSON . . . . 1.4.D.2.c, 1.4.D.3.c, 9.3.G, 9.4.D IN TERROREM CLAUSE . . . . 3.2.B.4, 3.3.G.4, 7.5.B.10 INTESTATE SUCCESSION Advancements . . . . 2.8 Agreements as to succession . . . . 2.7 Avoidance of by construction of will . . . . 7.5.C.3.b Beneficiaries, determination of Adoption Death of party to proceeding . . . . 2.2.A.2.b De facto adoption . . . . 2.2.A.2.d, 3.2.B.1.a Equitable adoption . . . . 3.2.B.1.a Foreign judgment, effect of . . . . 2.2.A.2.d Judgment, effect of . . . . 2.2.A.2.a Pretermitted child, adoptee's status as . . . . 2.2.A.2.c Virtual, or Equitable adoption . . . . 2.2.A.2.d Legitimacy . . . . 2.2.A.1.a–2.2.A.1.b Marriage Annulment, effect of . . . . 2.2.A.7.e Antenuptial agreements . . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 4.6.A–4.6.B Common law marriages . . . . 2.2.A.7.c Dissolution, effect of . . . . 2.2.A.7.d Fraud, duress or undue influence, marriage procured by . . . . 2.2.A.7.g

Generally . . . . 2.2.A.7.a Postnuptial agreements . . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 4.7 Proof of . . . . 2.2.A.7.b Rights of spouse see SPOUSE, RIGHTS OF Statutory requirements . . . . 2.2.A.7.b Procedure Evidentiary considerations . . . . 2.2.B.3 Genealogical tracing services . . . . 2.2.B.5 Generally . . . . 2.2.B.1 Guardian ad litem . . . . 2.2.B.2.a, 2.2.B.4 Petition Contents . . . . 2.2.B.2.a Default . . . . 2.2.B.2.d Eligibility to file . . . . 2.2.B.2.b Service of process . . . . 2.2.B.2.c Waiver of notice . . . . 2.2.B.2.e Generally . . . . 2.1 Inheritance rights Abuse, neglect, exploitation, or aggravated manslaughter of elderly person or disabled adult, forfeiture for . . . . 2.2.A.5 Afterborn heirs . . . . 2.2.A.3 Aliens . . . . 2.2.A.6 Collateral heirs . . . . 2.3.C, 2.3.F Exempt property . . . . 2.3.D, 4.4.A–4.4.B Family allowance . . . . 2.3.E, 4.5.A–4.5.B Generally . . . . 2.3.A Half bloods . . . . 2.2.A.4, 2.3.F Heirs other than spouse . . . . 2.3.C Killer of decedent (Slayer Statute) . . . . 2.2.A.5, 4.11, 10.3.B.4, 10.3.B.6 Lineal heirs . . . . 2.3.C, 2.3.F Spouse . . . . 2.3.B Personal representative see PERSONAL REPRESENTATIVE Possession of property, right to . . . . 2.6 Private agreements . . . . 2.7 Vesting of property . . . . 2.6 Will, discovery of after commencement of administration . . . . 2.5

Wrongful death see WRONGFUL DEATH

J JOINT INTERESTS Convenience accounts . . . . 5.4.B.3.h Elective share, survivorship property subject to . . . . 4.3.B.1 Florida Uniform Transfer-on-Death Security Registration Act . . . . 5.6 Forms of Generally . . . . 5.2.A Joint tenancy Characteristics Severance . . . . 5.2.C.2.b Survivorship . . . . 5.2.C.2.c Unities . . . . 5.2.C.2.a Creation . . . . 5.2.C.1 Tenancy by the entireties Characteristics Severance . . . . 5.2.D.2.b Survivorship . . . . 5.2.D.2.c Unities . . . . 5.2.D.2.a Creation Personal property . . . . 5.2.D.1.b Real property . . . . 5.2.D.1.a Tenancy in common Characteristics . . . . 5.2.B.2 Creation . . . . 5.2.B.1 Generally . . . . 5.1 Gift, creation of interest by Burden of proof Generally . . . . 5.3.C.1 Presumptions . . . . 5.3.C.2.a–5.3.C.5 Elements of Acceptance . . . . 5.3.B.1, 5.3.B.4 Delivery . . . . 5.3.B.3 Generally . . . . 5.3.B.1 Intent . . . . 5.3.B.2

Generally . . . . 5.3.A Presumptions Evidence Code, treatment of presumptions under . . . . 5.3.C.4 Generally . . . . 5.3.C.1 Joint titling or registration, arising from . . . . 5.3.C.2.a–5.3.C.2.b Overcoming gift presumption . . . . 5.3.C.3 Possession of property by donee, effect of . . . . 5.3.C.2.c Relationship of parties, arising from . . . . 5.3.C.2.b Undue influence . . . . 5.3.C.5 Joint accounts Generally . . . . 5.4.B.1 Ownership interests before death of parties Accountability to other party to account . . . . 5.4.A.4 Establishing interest, generally . . . . 5.4.A.3 Generally . . . . 5.4.A.1 Statutes not determinative . . . . 5.4.A.2, 5.4.B.3.a Withdrawal authorization . . . . 5.4.A.4 Statutes Banks (1971-1992) . . . . 5.4.B.3.c Consolidated statute (since 1992) . . . . 5.4.B.3.e Convenience accounts . . . . 5.4.B.3.h Former statutes (pre-1992), contrast between . . . . 5.4.B.3.d Generally . . . . 5.4.B.3.a Not controlling to establish ownership interest during life of parties . . . . 5.4.A.2, 5.4.B.3.a Pay-on-death account statute (since 1995) . . . . 5.4.B.3.f Savings associations (1965-1992) . . . . 5.4.B.3.b Severance . . . . 5.4.B.3.g Survivorship theories . . . . 5.4.B.2 Pay-on-death account statute . . . . 5.4.B.3.f Security, transfer of at death . . . . 5.6 Totten trusts Characteristics . . . . 5.5.A Creation . . . . 5.5.A Revocation . . . . 5.5.B JOINT TENANCY see JOINT INTERESTS

JURISDICTION, PROBATE Concurrent jurisdiction . . . . 1.4.B Constitutional revisions . . . . 1.4.A Construction proceeding . . . . 7.1, 7.2.A–7.2.B Contested claims . . . . 1.3.G.1 History of . . . . 1.4.A In personam Distinguished from in rem jurisdiction . . . . 1.4.D.1 Generally . . . . 1.4.D.2.a, 1.4.D.2.c Procedure . . . . 1.4.D.2.b Service of process . . . . 1.4.D.2.a In rem Distinguished from in personam jurisdiction . . . . 1.4.D.1 Generally . . . . 1.4.D.1, 1.4.D.3.a Interested persons . . . . 1.4.D.3.c Minors . . . . 1.4.D.3.b Service by mail . . . . 1.3.E.5 Priority of jurisdiction . . . . 1.4.B Removal of personal representative . . . . 9.3.F Separate actions within and outside probate proceeding . . . . 1.4.E Subject matter, generally . . . . 1.4.C Surcharge of personal representative . . . . 9.4.A Territorial jurisdiction . . . . 1.4.B JURY see TRIAL BY JURY

K KILLING OF DECEDENT BY BENEFICIARY (SLAYER STATUTE) . . . . 2.2.A.5, 3.2.A.6.d, 4.11, 5.2.D.2.b, 5.5.B, 10.3.B.4, 10.3.B.6

L LATER-DISCOVERED WILL . . . . 2.5 LAWYER See ATTORNEY LEGAL MALPRACTICE Malpractice by attorney

see

ATTORNEYS'

FEES,

LINEAL HEIRS . . . . 2.3.C, 2.3.F LOST WILL, PROCEEDING TO ESTABLISH . . . . 3.2.A.4.b

subhead:

M MARITAL AGREEMENTS Postnuptial see POSTNUPTIAL AGREEMENTS Prenuptial see PRENUPTIAL AGREEMENTS MARRIAGE TERMINATION RIGHTS . . . . 4.10 MEDIATION . . . . 3.2.F.3 MORTMAIN STATUTE . . . . 3.2.A.6.a MOTIONS, GENERALLY . . . . 1.3.D

N NONFINAL ORDERS see APPEALS NOTICE REQUIREMENTS Bifurcation of . . . . 1.3.E.6.a Construction proceedings . . . . 7.3.D–7.3.F Creditors' claims see CLAIMS BY CREDITORS, subhead: Notice Default, entry of . . . . 1.3.E.2 Electronic mail . . . . 1.3.E.3.b Generally . . . . 1.3.E.1–1.3.E.7.b, 1.3.F.2 Hearings . . . . 1.3.F.2 Homestead . . . . 8.5.B.1–8.5.B.2 Limited appearance by attorney . . . . 1.3.C Minors, on . . . . 1.3.E.4, 1.4.D.3.b Personal representative, deemed service of notice on . . . . 1.3.E.6.b.ii Petition for administration . . . . 1.3.E.6.b.iii Request for notice . . . . 1.3.E.7.a Service of notice see SERVICE OF NOTICE

P PARALEGALS Compensation . . . . 11.2.C.1.b PERSONAL REPRESENTATIVE Appeals by . . . . 14.9.C.3 Appointment . . . . 2.4, 4.12 Attorney as personal representative . . . . 11.2.H, 11.2.K.2.b Attorney for . . . . 9.3.I–9.3.J, 9.4.J–9.4.K Fees see ATTORNEYS' FEES Compensation Adversary nature of proceeding . . . . 11.3.C, 11.3.E Attorney as personal representative . . . . 11.2.H Authority to pay . . . . 11.2.I Burden of proof . . . . 11.3.F Calculation of . . . . 11.2.K.2.a–11.2.K.2.b Construction of will . . . . 7.7 Contract, fee . . . . 3.2.C.1, 11.2.M Debts of estate, effect of on fees . . . . 11.2.K.1.b Discovery . . . . 11.3.E Final hearing . . . . 11.3.G, 11.3.I Final order . . . . 11.3.J Generally . . . . 11.1, 11.2.E, 11.6–11.7 Hearing, final . . . . 11.3.G, 11.3.I Indebted estates, fees charged against . . . . 11.2.K.1.b Interim fees . . . . 11.2.Q Multiple personal representatives . . . . 11.2.F Nonadversary versus adversary proceeding . . . . 11.3.C Conflict of interest transactions . . . . 9.4.E Deed from . . . . 2.6–2.7 Deemed service of notice on . . . . 1.3.E.6.b.ii Defined . . . . 2.4 Discharge or final accounting, objection to petition for see within this heading Objection to petition for discharge or final accounting

Joint personal representatives . . . . 11.2.R.2 Liability and surcharge for mismanagement Accountings, failure to object to . . . . 9.4.F.1–9.4.F.2 Appeals . . . . 3.2.C.4, 9.4.I Attorney for personal representative, liability of . . . . 9.4.K Attorneys' fees . . . . 9.4.J, 11.2.C.2.b Bar to action against personal representative . . . . 9.4.F.1–9.4.F.2 Business, operation of decedent's . . . . 9.4.C.1 Claims and litigation involving estate . . . . 9.4.C.3 Conflicts of interest . . . . 9.4.E Exculpatory clauses . . . . 9.4.H Hiring of agents . . . . 9.4.C.4 Investments . . . . 9.4.C.2 Jurisdiction . . . . 9.4.A Jury trial, right to . . . . 9.4.A, 10.3.B.5–10.3.B.6 Punitive damages, availability of . . . . 9.4.A Remedies for mismanagement . . . . 9.4.A Standard of conduct . . . . 9.4.B Standing . . . . 9.4.D Surety bond, action on . . . . 9.4.G Lien on homestead by . . . . 2.6, 8.2.E Objection to petition for discharge or final accounting Generally . . . . 11.3.B.2 Order, final . . . . 11.3.J Partial fees . . . . 11.2.Q Parties . . . . 11.3.A Petition, need for . . . . 11.2.I, 11.3.B.1 Pleading requirements . . . . 11.3.D Priority of payment of fees . . . . 11.2.J Procedure to obtain . . . . 11.3.A–11.3.K Settlement . . . . 11.3.H Tax considerations . . . . 11.5 Timing of payment . . . . 11.2.I When payable . . . . 11.2.I Prudent man versus prudent trustee standard . . . . 9.4.B Removal of Accounting . . . . 2.5, 9.3.M

Administration following removal . . . . 9.3.O Appeal, right of . . . . 9.3.L Attorney for personal representative, removal of . . . . 9.3.J Attorneys' fees and costs . . . . 9.3.I, 9.3.L, 11.2.C.1.c Commencement of proceedings . . . . 9.3.E Delivery of assets and records . . . . 2.5, 9.3.N Generally . . . . 9.1 Grounds Conflict between co-personal representatives . . . . 9.3.C Discovery of will after commencement of administration . . . . 2.5 Hostility of beneficiaries . . . . 9.3.C Judicial construction of statutory grounds . . . . 9.3.B Requirement that estate be endangered . . . . 9.3.D Statutory grounds . . . . 9.3.A Jurisdiction . . . . 9.3.E Jury trial, right to . . . . 9.3.K, 10.3.B.6 Standing . . . . 9.3.F–9.3.G Successor personal representative . . . . 9.3.O Timing . . . . 9.3.H Venue . . . . 9.3.E Revocation of appointment or refusal to appoint versus removal . . . . 9.2 Service of notice on . . . . 1.3.E.6.b.ii Statute of limitations, suspension of . . . . 1.3.F.4 Successor . . . . 9.3.O Surcharge of see within this heading Liability and surcharge for mismanagement Tax returns of estate . . . . 11.2.K.2.a Wrongful Death Act, duties under see WRONGFUL DEATH PER STIRPES DISTRIBUTION Devises . . . . 7.5.B.9 Intestate succession . . . . 2.2.A.4, 2.3.C PLEADINGS Attorneys' fees . . . . 11.2.K.1.f, 11.3.D Electronic filings . . . . 1.3.D Execution of . . . . 1.3.D, 7.3.A

Verification of . . . . 1.3.D, 7.3.A POSTNUPTIAL AGREEMENTS . . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 2.3.E, 4.7, 8.3.E PRENUPTIAL AGREEMENTS . . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 2.3.E, 4.6.A– 4.6.B, 8.3.E PRETERMITTED HEIRS . . . . 2.2.A.2.c, 2.2.A.7.d, 3.2.A.6.c, 4.8.A– 4.9.B, 7.5.C.3.e PRIVATE AGREEMENTS . . . . 2.7 PROBATE CODE Enactment of . . . . 1.2 Procedure, impact on . . . . 1.2

R REMOVAL PROCEEDINGS see PERSONAL REPRESENTATIVE REQUEST FOR NOTICE AND OTHER ESTATE INFORMATION . . . . 1.3.E.7.a–1.3.E.7.b REVOCATION OF PROBATE see WILLS RULES OF PROCEDURE Adversary proceedings . . . . 1.3.A, 1.3.H–1.3.I Amendments, recent . . . . 1.2 Appeals see APPEALS Construction proceedings . . . . 7.4.A Discovery matters . . . . 3.2.E.1 Generally . . . . 1.2, 1.3.A Notice, generally . . . . 1.3.E.1–1.3.E.7.b Statutes, interplay with . . . . 1.2

S SERVICE OF NOTICE Default, entry of . . . . 1.3.E.2 Electronic mail . . . . 1.3.E.3.b e-Portal . . . . 1.3.E.3.b, 1.3.E.3.c Formal notice . . . . 1.3.E.2, 1.3.E.5 Generally . . . . 1.3.E.1 Informal notice see INFORMAL NOTICE, subhead: Service In personam jurisdiction . . . . 1.4.D.2.a Personal representative, deemed service of notice on . . . . 1.3.E.6.b.ii Signed receipt of notice . . . . 1.3.E.5 SETTLEMENT Compensation disputes . . . . 11.3.H Contest of will . . . . 3.2.H.1–3.2.H.3 Wrongful death claim . . . . 12.5–12.6 SLAYER STATUTE 10.3.B.4, 10.3.B.6

. . . . 2.2.A.5, 3.2.A.6.d, 4.11, 5.2.D.2.b, 5.5.B,

SPOUSE, RIGHTS OF Antenuptial agreements . . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 4.6.A–4.6.B Charitable devises, avoidance of . . . . 3.2.A.6.a Dissolution of marriage, effect of . . . . 2.2.A.7.d Elective share see ELECTIVE SHARE Exempt property . . . . 2.3.D, 4.4.A–4.4.B Family allowance . . . . 2.3.E, 4.5.A–4.5.B Generally . . . . 4.1 Intestate succession . . . . 2.3.B Marriage termination, rights resulting from . . . . 4.10 Nonmonetary rights . . . . 4.12 Postnuptial agreements . . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 2.3.E, 4.7, 8.3.E Prenuptial agreements . . . . 2.2.A.7.f.i–2.2.A.7.f.ii, 2.3.E, 4.6.A–4.6.B, 8.3.E

Pretermitted spouse Establishment of status . . . . 4.8.B Generally . . . . 2.2.A.7.d, 3.2.A.6.c, 4.8.A Procured by fraud, duress or undue influence . . . . 4.2 Will construction, rule favoring spouse . . . . 7.5.C.3.e Wrongful death actions . . . . 12.4.B STANDING Removal of personal representative . . . . 9.3.F–9.3.G Surcharge action, standing of creditor to bring . . . . 9.4.D Trust contests see TRUSTS Will contests see WILLS STATUTES OF LIMITATIONS Contest, will . . . . 3.2.C.6, 7.5.C.3.b Creditors' claims see CLAIMS BY CREDITORS Malpractice implications . . . . 3.2.C.6 Tolling for personal representative . . . . 1.3.F.4 Tortious interference with expectancy . . . . 13.8 Wrongful death . . . . 12.3.D SURCHARGE OF PERSONAL REPRESENTATIVE see PERSONAL REPRESENTATIVE

T TENANCY BY ENTIRETIES see JOINT INTERESTS TENANCY IN COMMON see JOINT INTERESTS TIME, COMPUTATION OF Extension of time . . . . 1.3.F.3 Generally . . . . 1.3.F.1 Hearings, notice of . . . . 1.3.F.2 Statutes of limitations see STATUTES OF LIMITATIONS TORTIOUS INTERFERENCE WITH EXPECTANCY Bibliography . . . . 13.10 Burden of proof . . . . 13.7 Case summaries . . . . 13.9 Constructive trust . . . . 13.4.B Destruction of expectancy Causation . . . . 13.2.D.2–13.2.D.3 Damages . . . . 13.2.D.1 Generally . . . . 13.2.D.4 Elements of tort . . . . 13.2.A–13.2.D.4 Equitable lien . . . . 13.4.B Exhaustion of other remedies Adequacy of remedy Generally . . . . 13.3.C Incorporation of trust into will . . . . 13.3.C.1.c Multiple related transactions, consistency in . . . . 13.3.D Pour-over wills . . . . 13.3.C.1.b Trust devises . . . . 13.3.C.1.a, 13.3.C.1.b Generally . . . . 13.3.A Later tort action Generally . . . . 13.5.A When not permitted . . . . 13.5.C When permitted . . . . 13.5.B

Policies underlying exhaustion requirement . . . . 13.3.B Generally . . . . 13.1 Jury trial, right to . . . . 10.3.B.5 Monetary damages . . . . 13.4.A Remedies Constructive trust . . . . 13.4.B Equitable lien . . . . 13.4.B Exhaustion of other remedies see within this heading Exhaustion of other remedies Monetary damages . . . . 13.4.A Restitution . . . . 13.4.B Restitution . . . . 13.4.B Statute of limitations . . . . 13.6, 13.8 Time to bring action . . . . 13.6 TOTTEN TRUSTS Characteristics . . . . 5.5.A Creation . . . . 5.5.A Revocation . . . . 5.5.B TRIAL BY JURY Accounting, objections regarding . . . . 10.3.B.6 Adversary proceedings in probate . . . . 10.3.B.6 Advisory jury . . . . 3.2.F.1, 7.2.C, 8.4.C.1, 9.3.K, 10.4.A–10.4.C Appeal of denial of demand for . . . . 10.5 Claims, creditors' . . . . 10.3.B.5 Compensation disputes . . . . 10.3.B.5–10.3.B.6 Construction proceedings . . . . 7.2.C, 10.3.B.6 Constructive trust, imposition of . . . . 10.3.B.6 Contest of will or trust . . . . 3.2.F.1–3.2.F.2, 3.3.I, 10.3.B.6 Determination of right . . . . 10.3.B.1–10.3.B.6 Disqualification of beneficiary who kills decedent . . . . 2.2.A.5, 10.3.B.4, 10.3.B.6 Enforcement of right to . . . . 10.5 Generally . . . . 1.4.A, 7.2.C, 10.1, 10.3.B.2–10.3.B.4 Liberal construction of right . . . . 10.3.C Remote trials . . . . 10.6

Removal of personal representative . . . . 9.3.K, 10.3.B.6 Review of order denying or striking demand for . . . . 10.5 Sources of right to jury trial Constitution . . . . 10.2.A, 10.3.A, 10.3.B.3 Statutes . . . . 10.2.B Surcharge of personal representative . . . . 9.4.A, 10.3.B.6 Tortious interference with expectancy . . . . 10.3.B.5 Waiver of right . . . . 7.2.C TRUSTS Appeals by trustee . . . . 14.9.C.5 Claims against . . . . 6.8.B Revocable trusts . . . . 6.4 Contest of Fees Chancery considerations . . . . 3.3.H.4 Generally . . . . 3.3.H.1, 3.3.H.3 Trustee's power to pay . . . . 3.3.H.2 Foreign trust . . . . 3.3.F.1–3.3.F.2 Generally . . . . 3.3.A Grounds Duress . . . . 3.3.B.2.a–3.3.B.2.b Elements for . . . . 3.3.B.2.a Execution or qualification . . . . 3.3.B.1.a–3.3.B.1.c Fraud . . . . 3.3.B.2.a–3.3.B.2.b Gifts to lawyers and other persons . . . . 3.3.B.2.e Mistake . . . . 3.3.B.2.a, 3.3.B.2.c Revocation . . . . 3.3.B.3.a–3.3.B.3.b Statutory grounds . . . . 3.3.B.2.a–3.3.B.2.e Undue influence . . . . 3.3.B.2.a–3.3.B.2.b Unenforceable trusts . . . . 3.3.B.2.d Proceedings, commencement of Consolidation . . . . 3.3.C.2 Independent action . . . . 3.3.C.1 Venue . . . . 3.3.D.1–3.3.D.2 Service of process Formal notice . . . . 3.3.E.2

Statutory service . . . . 3.3.E.1 Standing to contest Filing requirements . . . . 3.3.G.2 Interest in trust Beneficiary . . . . 3.3.G.1.b Contractual rights . . . . 3.3.G.1.c Heir at law . . . . 3.3.G.1.a In terrorem clause . . . . 3.3.G.4 Limitations notice, form . . . . 3.3.G.2 Renunciation of benefits . . . . 3.3.G.3 Time limitations . . . . 3.3.G.2 Trial considerations . . . . 3.3.I Fees payable from Attorneys' fees . . . . 11.2.C.2.b, 11.2.D, 11.2.K.1.b, 11.3.B.1 Trustees' fees . . . . 11.6 Homestead held in trust . . . . 8.2.B.5, 8.3.C.3 Totten Trusts see TOTTEN TRUSTS

U UNDUE INFLUENCE Appealability of order . . . . 14.6.C.3 Contest of trust . . . . 3.3.B.2.a–3.3.B.2.b Generally . . . . 1.4.E, 3.2.A.3.b Gifts . . . . 5.3.C.5 Intestate succession Beneficiaries, determination of Marriage procured by fraud, duress or undue influence . . . . 2.2.A.7.g Spousal rights procured by fraud, duress or undue influence . . . . 4.2 Wills see WILLS

V VENUE Challenges to, generally . . . . 1.3.E.6.b.i, 1.4.B Removal of personal representative . . . . 9.3.E Trust proceedings . . . . 3.3.D.1–3.3.D.2 Wrongful death actions . . . . 12.3.E

W WILLS Construction of Applicable law . . . . 7.5.C.3.g Compensation of attorney and personal representative . . . . 7.7 Complaint see under this subhead Petition Consent to stipulation Generally . . . . 7.4.B.1 Sample . . . . 7.4.B.2 Date of . . . . 7.5.C.3.g Default . . . . 7.4.B.3 Extrinsic evidence, admissibility of Ambiguities Generally . . . . 7.6.A.1 Latent . . . . 7.6.A.2 Patent . . . . 7.6.A.3 Examples of admissible extrinsic evidence . . . . 7.6.B Execution of will, circumstances surrounding . . . . 7.6.C Forum, choice of . . . . 7.2.A–7.2.B Guardian ad litem, appointment of . . . . 7.3.B Jurisdiction . . . . 7.1, 7.2.A–7.2.B Jury trial . . . . 7.2.C, 10.3.B.6 Notice . . . . 7.3.D–7.3.E, 7.4.A Parties . . . . 7.3.B Petition Contents . . . . 7.3.B Default . . . . 7.4.B.3 Execution of . . . . 7.3.A Form for notice . . . . 7.3.E Form for proof of service of formal notice . . . . 7.3.F Generally . . . . 7.3.A Notice Form for . . . . 7.3.E Generally . . . . 7.3.D

Waiver of Generally . . . . 7.4.B.1 Sample . . . . 7.4.B.2 Proposed construction . . . . 7.3.A Sample . . . . 7.3.C Procedure Generally . . . . 7.4.A–7.4.B.3 Jurisdiction . . . . 7.1, 7.2.A–7.2.B Jury trial, availability of . . . . 7.2.C, 10.3.B.6 Rules of construction Generally . . . . 7.5.A Interpretative and probative rules Blood relatives, preference for . . . . 7.5.C.3.e Choice of law . . . . 7.5.C.3.a Conflicting clauses . . . . 7.5.C.3.d Date of construction . . . . 7.5.C.3.g Disinheritance of heir . . . . 7.5.C.3.h Entire instrument considered . . . . 7.5.C.3.c Generally . . . . 7.5.C.1 Intent of testator . . . . 7.5.A, 7.5.C.2, 7.5.C.3.c, 7.6.A.1 Intestacy, avoidance of by construction . . . . 7.5.C.3.b Position of clauses in instrument . . . . 7.5.C.3.d Republication of will . . . . 7.5.C.3.f Tax provisions relating to suspension of federal estate tax and generation-skipping transfer tax . . . . 7.8 Statutory rules Accessions . . . . 7.5.B.4 Ademption . . . . 7.5.B.4–7.5.B.5, 7.5.B.8 Antilapse rule . . . . 7.5.B.2 Change in securities . . . . 7.5.B.4 Deceased devisee . . . . 7.5.B.2 Exercise of power of appointment . . . . 7.5.B.6 Failure of testamentary provision . . . . 7.5.B.3 Income, allocation to . . . . 7.5.B.11 In terrorem clause . . . . 3.2.B.4, 7.5.B.10 Nonademption . . . . 7.5.B.4–7.5.B.5, 7.5.B.8 Penalty clause for contest . . . . 3.2.B.4, 7.5.B.10

Per stirpes, construction of devise as . . . . 7.5.B.9 Power of appointment . . . . 7.5.B.6 Principal, allocation to . . . . 7.5.B.11 Simultaneous death . . . . 7.5.B.1 Terms . . . . 7.5.B.7 Will reformation and modification . . . . 7.5.B.12 Waiver of notice Generally . . . . 7.4.B.1 Sample . . . . 7.4.B.2 When to bring action Necessity of probate . . . . 7.1 Review of facts and law . . . . 7.1.A Stipulated construction . . . . 7.1.B Contest of Attorney-client relationship Conflict of interest . . . . 3.2.C.4–3.2.C.5 Contingent fee arrangements . . . . 3.2.C.2 Fees set by court . . . . 3.2.C.3 General considerations . . . . 3.2.C.1 Malpractice . . . . 3.2.C.6 Multiple parties, representation of . . . . 3.2.C.4–3.2.C.5 Discovery Admissions, request for . . . . 3.2.E.1 Costs of . . . . 3.2.E.1–3.2.E.2 Dead Person's Statute, repeal of . . . . 3.2.A.2.c, 3.2.E.3, 3.2.F.4.c Depositions, use of . . . . 3.2.E.3, 3.2.F.4.g Interested witnesses . . . . 3.2.E.3 Rules of procedure, applicability of . . . . 3.2.E.1 Generally . . . . 3.1 Grounds Duress . . . . 3.2.A.3.b Execution or qualification Age of testator . . . . 3.2.A.2.b Generally . . . . 3.2.A.1–3.2.A.2.a Self-proving will, effect of . . . . 3.2.A.2.d Statutory formalities . . . . 3.2.A.2.c Fraud . . . . 3.2.A.3.b

Gifts . . . . 3.2.A.3.c Incompetency . . . . 3.2.A.3.a Insane delusion . . . . 3.2.A.3.a Mistake . . . . 3.2.A.3.b Revocation Act, by . . . . 3.2.A.4.b Electronic wills . . . . 3.2.A.4.b Partial revocation . . . . 3.2.A.5.a–3.2.A.5.b Writing, by . . . . 3.2.A.4.a Special grounds Charitable devises . . . . 3.2.A.6.a Marriage termination, rights resulting from . . . . 4.10 Pretermitted heirs . . . . 3.2.A.6.c Public policy . . . . 3.2.A.6.d Rule against perpetuities . . . . 3.2.A.6.b Undue influence . . . . 1.4.E, 3.2.A.3.b Judgment Elements of . . . . 3.2.G.1 Facts, recitation of . . . . 3.2.G.2 Fees, allowance of . . . . 3.2.G.3 Form . . . . 3.2.G.4 Orders allowing fees, form for . . . . 3.2.G.5.a–3.2.G.5.b Rehearing . . . . 3.2.G.6 Limitations period . . . . 3.2.C.6, 7.5.C.3.b Pleadings Motions Generally . . . . 3.2.D.3.a Jurisdictional grounds . . . . 3.2.D.3.d Motion to dismiss . . . . 3.2.D.3.b Summary judgment . . . . 3.2.D.3.c Petition for revocation of probate Form . . . . 3.2.D.1.b Generally . . . . 3.2.D.1.a Service Generally . . . . 3.2.D.1.c.i Methods of . . . . 3.2.D.1.c.iii Parties . . . . 3.2.D.1.c.ii

Reply to petition for revocation Attack on standing of petitioner . . . . 3.2.D.2.c Special grounds . . . . 3.2.D.2.b Standard grounds . . . . 3.2.D.2.a Settlement Complete . . . . 3.2.H.2 Form . . . . 3.2.H.3 Partial . . . . 3.2.H.1 Standing Caveat . . . . 3.2.B.6 Dependent relative revocation . . . . 3.2.B.1.a, 3.2.B.5 Filing requirements Foreign state, probate in . . . . 3.2.B.2.b Notice of administration . . . . 3.2.B.2.a Interest in estate Beneficiary or personal representative under former will . . . . 3.2.B.1.b Contractual rights . . . . 3.2.B.1.c Heir at law . . . . 3.2.B.1.a In terrorem clause . . . . 3.2.B.4, 7.5.B.10 Penalty clause for contest . . . . 3.2.B.4, 7.5.B.10 Renunciation of benefits . . . . 3.2.B.3.a–3.2.B.3.b Trial Documentary evidence Activities, records of . . . . 3.2.F.5.g Death certificates . . . . 3.2.F.5.e Generally . . . . 3.2.F.5.a Government records . . . . 3.2.F.5.f Medical records . . . . 3.2.F.5.c Previous wills . . . . 3.2.F.5.d Writings of decedent . . . . 3.2.F.5.b Jury . . . . 3.2.E.3, 10.3.B.6 Mediation . . . . 3.2.F.3 Nonjury . . . . 3.2.F.2 Pretrial conference . . . . 3.2.F.3 Witnesses' testimony see WITNESS Discovery of will after commencement of administration . . . . 2.5

Electronic wills, revocation of . . . . 3.2.A.4.b Lost will, proceeding to establish . . . . 3.2.A.4.b WITNESS Attorney as witness . . . . 3.2.F.4.f, 11.2.K.1.c, 11.2.O, 11.3.I Dead Person's Statute, repeal of . . . . 3.2.A.2.c, 3.2.E.3, 3.2.F.4.c Depositions . . . . 3.2.E.3, 3.2.F.4.g Discovery of . . . . 3.2.E.3 Evidence, rules of . . . . 3.2.F.4.d Expert testimony . . . . 3.2.F.4.b, 11.2.K.1.c, 11.3.I Interested witnesses . . . . 3.2.F.4.a Lay testimony . . . . 3.2.F.4.e WRONGFUL DEATH Attorneys' fees, allocation of . . . . 12.7 Claims pending at death . . . . 12.3.B Comparative fault statute, conflicts between wrongful death statute and . . . . 12.3.A Generally . . . . 12.1 Insurance coverage, determining availability of . . . . 12.2.C Liens on recovery Generally . . . . 12.8.A Group insurance ERISA policies . . . . 12.8.D.1 Future payments, no lien on . . . . 12.8.D.3 Non-ERISA policies Duty of provider to cooperate . . . . 12.8.D.2.d Generally . . . . 12.8.D.2.a Judicial settlement of disputes . . . . 12.8.D.2.e Notification to provider . . . . 12.8.D.2.b Waiver of lien . . . . 12.8.D.2.c Medicaid Distribution of recovery . . . . 12.8.C.3 Generally . . . . 12.8.C.1 Impact of Ahlborn and Bradley . . . . 12.8.C.5 Lien amount . . . . 12.8.C.2 Waiver for undue hardship . . . . 12.8.C.4

Medicare Legal basis for . . . . 12.8.B.1 Post-recovery liens, handling . . . . 12.8.B.3 Pre-recovery liens, handling . . . . 12.8.B.2 Limitations period . . . . 12.3.D Medical malpractice . . . . 12.2.B, 12.4.C Party substitution . . . . 12.3.F Personal representative Foreign . . . . 12.3.C General duties of . . . . 12.2.A, 12.3.A Procedural considerations generally . . . . 12.3.A Settlement of claim . . . . 12.5–12.6 Statute of limitations . . . . 12.3.D Survivors Children . . . . 12.4.C Equitably adopted child . . . . 2.2.A.2.d, 12.4.C Estate of decedent . . . . 12.4.F Generally . . . . 12.4.A, 12.4.E Parents . . . . 12.4.D Spouse . . . . 12.4.B Unborn children . . . . 12.4.C Venue . . . . 12.3.E