Probate Section Report
Larry E. Ciesla

The April meeting of the probate section was held on April 13, 2005. New attendees included Susan Gerling, an associate at the Salter, Feiber firm; Susan St. John, an associate (with a recent LLM degree) in Richard White’s office; and Paul Ghiotto, a staff attorney at the courthouse. The meeting commenced with a discussion led by Paul regarding the issue of which staff attorneys will be handling probate and guardianship cases during the transition period following Jean Sperbeck’s departure.

As of press time, my understanding of the status is as follows. A new staff attorney, Mary Ellen Cross, has just been hired and is expected to take Jean’s place and will handle all probate cases in all counties in this circuit, as well as all guardianships in all counties except Alachua. It is anticipated that she will assume her duties on May 2 or shortly thereafter. Staff attorney Monica Brasington, who has been handling all guardianships in Alachua County, is leaving in May to work with Shannon Miller. Until then, she will continue to handle Alachua County guardianships. Her replacement will take over her caseload of Alachua County guardianships. Another issue discussed was the fact that staff attorneys, whose offices are in Gainesville, do not have the ability to remotely access documents in court files in other counties.

Accordingly, if it is necessary for a staff attorney to review the contents of a document in order to remove a case from a case management conference docket in another county, it will be necessary for the lawyer involved to get a copy of the document to the staff attorney in Gainesville, either by email, fax or hand delivery (I assume snail mail would be too slow). One good way to handle this would be to scan the document and email it to the staff attorney. The meeting next proceeded with a discussion of living wills and various forms therefor. Barbara Bourguinon shared with the group the living will which she uses, indicating that it is considerably more detailed than the statutory form. It appears that most section members are using living will forms which contain much more direction than the statutory form. A number of these forms have been circulated among the group in the past. I have copies of a couple of these, which can be had by interested practitioners, free for the asking.

Since the probate section’s meetings have been approved for monthly CLE credit, the next item for discussion was the recently issued opinion in the case of Cohen v. Guardianship of Cohen, 30 FLW D664 (4th DCA March 9, 2005), dealing with the issue of how to resolve a conflict between family members regarding burial of a decedent. In that case, the decedent signed a will in New York in 1992, containing a direction that he be buried in his “family plot in Mount Hebron,” a Jewish cemetery in New York. In 1998 the decedent and his wife, who was not Jewish, moved to Florida. They had apparently lived their entire lives in New York up until their move to Florida. They were married for 40 years.

After moving to Florida, the decedent was heard to stated that he wished to be buried in Florida, next to his wife (who survived the decedent). Since she was not Jewish, she could not be buried in the decedent’s family plot in New York. The appellate Court held that, (1) The decedent’s instructions as to burial set forth in his will are not binding, as they do not relate to the actual transfer of assets; (2) The trial court in such cases must ascertain the decedent’s most recent expressed intent on this issue; and (3) In doing so, the trial court may consider subsequent oral statements made by the decedent regarding his or her burial wishes.

The next meeting of the probate section will be held on May 11, 2005 in the former grand jury room of the old courthouse. All interested practitioners are invited to attend (and receive CLE credit).

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