Probate Section Report
by
Larry E. Ciesla

A regular monthly meeting of the Probate Section was held on March 5, 2005. The meeting began with an announcement that thanks to the efforts of Gary Grunder and his assistant, Sarah Nystrom, the Florida Bar has authorized the awarding of 1.5 hours of CLE credit for attendance at each Probate Section Meeting from February 2005 through January 2006. The course number is 3212 5. The credit will be for general CLE credit only. Each attendee will be responsible for reporting his or her own hours. Many thanks to Gary and Sarah for their initiative in obtaining CLE approval.

The meeting next proceeded with an announcement by Jean Sperbeck that she is leaving her long-held position as a staff attorney for the circuit court, to take a position as counsel for the Clerk of Court. Jean will replace Marynelle Hardee, whom I understand has become an assistant city attorney for the City of Gainesville. Jean indicated that she will be changing jobs on or about April 1, 2005. As of the date of the meeting, Jean’s successor has not been named and interviews for the position were being conducted. A going away party for Jean will be held April 1. Contact Barbara Dawicke for details (337-6277 or bld@circuit8.org).

The meeting then proceeded with a discussion with this month’s special guest, Judge Roundtree. Judge Roundtree indicated that as far as he has been able to determine from his short tenure on the probate bench, the system seems to be operating fairly well, therefore, he sees no reason to make any changes. Once Jean’s successor is selected, Judge Roundtree expects us to run everything by the new person, just as we would do were Jean still here. If urgencies arise, Judge Roundtree indicated he will make himself available, whether before his regular hours; during lunch; or in between other appointments. When asked for feedback on the issue of things that the attorneys might pay more attention to, Judge Roundtree indicated that it will save time for all parties if the attorneys will coordinate more closely with Jean or her successor on the status of documents filed immediately prior to a scheduled case management hearing. There is no need to go to a hearing just to say that a particular document was filed that day, or the day before. The better practice would be to advise the staff attorney, so the hearing can be cancelled. Judge Roundtree closed by stating that if things are not working as they should, please let him know and he will do what he can to make things right.

A brief discussion was then held regarding Senate Bill 1958, which is currently pending before the legislature. Thanks to Sam Boone for bringing this bill to my attention. The bill contains substantial amendments to Chapter 744 and, according to Sam, stands an excellent chance of becoming law this year, as it is one of those “non-controversial” bills primarily prepared by the Florida Bar Reptile Section, containing many “technical” type amendments. The bill is essential reading for all guardianship practitioners (assuming its passage), as is contains many important changes to the procedures to be used in incapacity and guardianship proceedings (42 pages worth, based on my copy). A more detailed analysis will follow in a future column.

Finally, Peter Ward reported, based on a recent article in the Wall Street Journal, that a federal district court in Virginia recently ruled that a life insurance company was acting lawfully when it denied payment of a 2.4 million dollar claim brought by the trustees of a life insurance trust (as owners of the policy), holding that there had been a violation of the “insurable interest” rule. Apparently the grantor had wanted the proceeds to go to a non-relative beneficiary and the company initially refused to issue the policy to the individual who was the grantor of the trust. Evidently he thought he could get around the problem by creating an insurance trust and making the beneficiary a co-trustee of the trust. It appears this was then submitted to and approved by the company. A policy was issued to the trustees and the premium checks were cashed and spent by the company. If the court’s rationale (the beneficiary didn’t rely on the policy and isn’t out of pocket anything) is accepted by other courts, estate planning lawyers and life insurance sales people both may find this area of planning a little less attractive.

The next meeting of the Probate Section will be on April 13, 2005. All interested practitioners are invited to attend (and receive CLE credit).

 
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