Probate Section Report
by
Larry E. Ciesla

The probate section continued to meet during the summer months. In no particular order, here are some of the topics discussed at recent meetings.

Richard White (always thinking outside the box) raised the issue of the legality of holding an attorney’s ownership of stock in the attorney’s P.A. in the attorney’s personal revocable trust, or naming the successor trustee of the attorney’s revocable trust as pay-on-death beneficiary pursuant to the provisions of Ch. 711, Florida Statutes. Unfortunately, the Rules of Professional Conduct appear to prohibit such an arrangement, as is pointed out in a written Florida Bar Staff Opinion (No. 28879) addressed to Richard dated July 14, 2009, in which Bar counsel cites to opinions issued in Ohio and Illinois reaching the same conclusion.

Richard also led a discussion regarding a conflict between F.S. 733.212(2) and Florida Rule of Probate Procedure 5.240(b), regarding the required content of Notice of Administration. Richard pointed out that the statue provides that the Notice must contain the time limits within which certain proceedings must be filed 3 months to challenge the will or personal representative; 4 months to claim exempt property; and 6 months to claim elective share, while the Rule (and, importantly, the form promulgated by FLSSI, which most practitioners follow) simply uses the term, “within the time provided by law”. Accordingly, while the RPPTL folks and the FLSSI folks work on amending the current version of the FLSSI form for Notice of Administration, practitioners may wish to consider the advisability of reviewing and, if necessary, revising whichever Notice of Administration form they are currently using.

Richard next led a discussion regarding the current status of the requirement of serving a copy of a probate Inventory on the Florida Department of Revenue. F.S. 733.604 contains no such requirement. Former F.S. 199.062 contained such a requirement, however, it was repealed as of 2006 when the intangible tax was repealed. Current Rule 5.340 contains such a requirement, with a citation following the Rule in the “Statutory References” section, to F.S. 199.062.

Since that statue has been repealed, the continued viability of the Rule is doubtful. The Florida Probate Rules Committee has recommended to the Supreme Court that the requirement of serving the Department of Revenue be deleted from the Rule. According to Richard, if you ask the Department of Revenue, they will tell you they no longer require the Inventory, however, most people in the probate would, including judges and staff attorneys, still require proof of service of same. It should be pointed out that Florida Statue 733.2121 requires the personal representative to serve the Department of Revenue with a copy of Notice to Creditors, and that the service of a copy of the Inventory shall be sufficient to satisfy the foregoing requirement. In summary, even though the statutory requirement to serve a copy of the Inventory on the Department of Revenue has ben repealed, good reasons still exist to continue to do so and to file proof of same with the court.

On the subject of service to the Department of Revenue, Monica Brasington advises that the Department of Revenue is requesting mail to be addressed as follows:

Florida Department of Revenue
ATTN: Paul Brunarski/Complaince Suppport
5050 W. Tennessee Street
Tallahassee, Florida 32399-0100

In yet another issue of interest to probate practitioners and personal representatives, Richard White raised the question of the extent of the duty of a personal representative to take steps to attempt to recover funds contained in a so-called “joint” bank account where the funds have passed to the surviving joint owner, outside of probate, upon the death of the person who established the account (using his or her own funds). Most practitioners assume the personal representative is under no duty to chase after such non-probate funds, however, there are many Florida decisions wherein such funds have been returned to a personal representative under theories including undue influence; lack of capacity; and lack of intent to create a survivorship account. Accordingly, the extent of the personal representative’s duty in such cases is less than clear.

Personally, your author examines such matters on a case-by-case basis, by closely examining the account documentation in order to determine whether there exists a clear intention to create a survivorship account. Your author has been successful in at least one trial where funds were found to not have passed to the alleged joint owner due to a lack of intent to create a survivorship account. In any event, Richard advises that the RPPTL folks are working on a draft of a new statue which, if passed, would hopefully clarify the extent of the duties of a personal representative in such cases.

The probate section continues to meet on the second Wednesday of each month at 4:30p.m. in the fourth floor meeting room in the civil courthouse. All interested practitioners are welcome to attend. If you would like to join the mailing list for notices of the monthly meetings, you may do so by sending an email to lciesla@larryciesla-law.com.

 
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