Probate Section Report
by
Larry E. Ciesla

The probate section has continued its monthly meetings throughout the summer months. Several new members have recently been in attendance. Michelle Farkas is an associate with Cynthia Stump Swanson’s office who, in addition to family law and adoptions, is working in the areas of wills and estates. Zana Dupee and Tracy Geon have become associated with Bill Allen’s office. Both will be working in the probate arena, with Zana, who has a background as a realtor, concentrating more in the area of real estate and closings. The probate section welcomes these new members and encourages them, as well as all other practitioners, to bring questions and issues of interest to the meetings for discussion.

Randy Childs, the staff attorney handling all probate cases in Alachua County, has left us to pursue an L.L.M. tax degree in St. Louis. We thank Randy for the good work he did while he was with us and we wish him much success in his future endeavors. Randy will be replaced by Judy Paul, who has been handling guardianship cases in Alachua County. In addition to Alachua County probates, Judy will be handling both probate and guardianships in Gilchrist and Levy counties. Judy’s former position has been filled by Ryan Hulslander. In addition to guardianships in Alachua County, Ryan will be in charge of both probate and guardianships in Baker, Bradford and Union Counties. We welcome Ryan and look forward to meeting him at an upcoming probate section meeting.

Richard White has been serving on the Executive Committee of the RPPTL Section of the Florida Bar and reported on several legislative initiatives of the RPPTL Section. One involves an amendment to Chapter 733, Florida Statutes, so that, in addition to the Inventory, other probate documents containing financial data will be filed under seal. These would include accountings and documents related to elective share computations. Another involves changing the definition of “Insolvent”, as set forth in Section 739.102(8), Florida Statutes, which limits who may file a disclaimer. As it currently stands, the definition of “Insolvent” focuses on the amount of debt exceeding the value of assets, which apparently prohibits disclaimers by some people who timely pay all of their obligations. The new definition would include a provision that would permit a disclaimer so long as one’s obligations are being regularly paid.

A new Section, 736.014117, has been passed, effective July 1, 2007. This provision allows a trustee who has been given “…absolute power under the terms of a trust to invade the principal of the trust…”, to appoint and transfer principal to a separate second trust, for the benefit of the beneficiary of the first trust (as opposed to invading principal and distributing it directly to the beneficiary). Finally, Richard’s group is working on creating a new fiduciary, “health care representative”, which will be a combination of power of attorney and health care surrogate. Stay tuned for further details in future months.

Steve Graves led a discussion regarding the technicalities involved when an account has been established in another state under that state’s version of the Uniform Gift to Minors Act, and the custodian and/or beneficiary subsequently moves to Florida and moves the account to a different bank or brokerage firm. In such cases, it was the general consensus of the group that the law of the foreign state would govern distribution of funds to the beneficiary (usually at either age 18 or 21), even if the account has mistakenly been re-registered under Florida’s UGMA law. Another issue presented for discussion by Steve is whether to serve formal notice in an estate to persons who have been disinherited by will and who would otherwise have standing to bring a will contest. Despite a lively discussion, no consensus could be reached.

The upside to providing notice is that once the 90 days runs, if nothing is filed, you know you are good to go. Of course, if a will contest is filed, you are stuck in litigation. If you elect not to give formal notice, a challenger has until the estate is closed to file a contest. If the estate is not complicated, you may be able to quickly administer it and get it closed and thereby foreclose any potential challengers.

Judy Paul would like everyone to be aware that the court’s website, www.circuit8.org, has been updated and contains current versions of various checklists used by the staff attorneys in reviewing various aspects of probate and guardianship filings. The probate section continues to meet on the second Wednesday of each month at 4:30 p.m. in the fourth floor meeting room in the civil courthouse. All interested practitioners are welcome to attend.

 
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