General by ps94506


									  The Honorable
Walter L. Schafer, Jr.

          Local Court Requirements

             June 17, 2010
               The Honorable Walter L. Schafer, Jr.
                  Probate & Guardianship Workshop

                          TABLE OF CONTENTS

Local Court Requirements ……………………………………….                   3

Electronic E-Filing ………………………,…………………….….                   4

General Guidelines For Hearings…………………………………                4-5

Proposed Orders and
Letters of Administration/Guardianships ………………………           5-6

General Guidelines For Estate Cases
     Formal Administration ……………………………………..                 6-8
     Summary Administration…………………………………..                  8-9

General Guidelines For Guardianships
     Petition For Fees ……………………………………………..                  9 - 10
     Consideration Of The Following Requirements
     Court To Determine Fees …………………………………..                10 - 11
     Appointment Of Guardians …………………………………..               11
     Audits …………………………………………………………….                        11
     Settlements ………………………………………………………                      12
     Other Miscellaneous Guardianships ………………………..          12

Court Requirements Relating To Trusts ……………………………           12

General Requirements …………………………………………………                    13

The Sixth Judicial Circuit Pasco and
Pinellas Counties Local Rules ………………………………………..             14 - 15

Judicial Practice and Preferences
      Probate Proceedings…………………………………………….                 16 - 18

Thou Shalt …………………………………………………………………                        19

Order Directing Counsel To Supervise
The Deposit Of Funds ……………………………………………………                   20 - 21

Affidavit Of Heirs ……………………………………………………………                  22 - 25

Order On Motion To Withdraw As Attorney of Record ……………….   26 - 27

Kelley’s Homestead Paradigm ……………………………………………               28 - 29

Florida Case Law Developments …………………………………………              30 - 46

                        THE HONORABLE WALTER L. SCHAFER, JR.

                                            Local Court Requirements

            Electronic E-Filing

               All cases and documents are required to be electronically filed. If you are not a
               subscriber to LexisNexis, The Clerk & Comptroller’s Office has available the Public
               Access Terminal to file without charges. There is no charge to subscribe to
               LexisNexis. If cases and documents are not electronically filed the court may contact
               you for an explanation.

               Multiple Petitions and Orders are not to be combined into one document. Documents
               are filed in PDF Format and can not be altered once they are filed for record. Orders
               are to be in word format. If you combine your documents, the system can not account
               for the combined Petition in the system. The event codes will account for one and you
               may become delinquent on a required document.

                   Examples: A Petition for Unclaimed Funds and a Petition for Discharge; Motion
                   and Order for Default

               Margins must be 1 ½ inches on the left and right side to allow for the electronic
               stamps: Judge’s signature on the left side margin and the date filed stamp that
               contains the case number on the right-side of the document. See Examples 1 and 2
               on side margins.

               All orders are to be in word format, not in PDF. This allows the court to make changes
               to the proposed order submitted.
Example 1                                                                                               Example 2
             General Guidelines for Hearings
            1. Petitions for Settlement will require a hearing.
               · Attach settlement sheet
               · Attorneys’ fee agreement
               · Exception: When the personal representative is the sole beneficiary and “survivor” and
                   all money will be allocated to the surviving spouse

            2. Telephonic hearings are allowed if:
               · Less than fifteen (15) minutes
               · Calendared by the judicial assistant
               · When a witness appears telephonically, a notary must be present with the witness to
                  administer the oath.
               · Notice of hearing must state that it is a telephonic hearing
               · Notice of hearing is required five (5) business days before the hearing
               · All proposed orders must be e-filed five (5) days before the hearing
               · Evidentiary matters will NOT be considered
               · The number to call for a telephonic hearing is (727) 815-7105

                   Exception: Order to File Required Documents or To Show Cause Hearings cannot be
                   telephonic. The parties must appear in person.

3. The Court requires that both the attorney and the Personal Representative or Guardian must
   attend Order to Show Cause Hearings

4. All documents are to be filed with the Clerk five (5) days prior to hearings.

5. The case maintenance clerk will contact the judicial assistant and will notify the attorney of
   record when an Order to Show Cause hearing has been cancelled to remove it from the
   Judge’s calendar

6. An Order to Show Cause Hearing will not be cancelled:
   · If all requirements are not fully complied with pursuant to the Order
   · If partial requirements are filed
   · If the document(s) are not filed at least five (5) business days prior to the hearing date
   · If all certified mail fees have not been paid

7. The Court requires that all exhibits be marked with the Clerk in advance

8. Courtroom Demeanor Comments:
   · State grounds for any objections; do not argue objection unless asked to approach the
   · Never argue with opposing counsel
   · Direct all arguments to the Court
   · Upon leaving the bench, do not say “thank you” in a voice audible to the jury

9. Cell phones are to be turned off

10. No gum chewing

Proposed Orders and Letters of Administration/Guardianship

1. A Caption and Header is required on all proposed orders submitted (Civil Rule 1.901.

   A Header is required on all remaining pages of a proposed order:

       ·   Name of case
       ·   Case number
       ·   Title of Order
       ·   Page number

      2. Do not place the name of the Judge or a date on the proposed order where the signature
         line is located, only Circuit Judge. The proposed order should appear as the example below.
         Electronic filing does not allow the judge to grant your order or change the typed name if it is
         spelled incorrectly or another judge is assisting.

      3. Letters of Administration or Guardianship will not be signed until the original paper bond has
         been approved by the deputy clerk
             · Original bonds must contain the local agents name, address, and phone number

      4. Time lines for orders entered by the Court:
            · Order on Review: Thirty (30) days
            · Order to File Required Documents: Fifteen (15) days
            · Order to File Required Documents or To Show Cause: Thirty (30) days depending on
                 the Courts availability or the time

      5. Proposed Orders containing real property descriptions must appear as in public records, i.e.
         Warranty Deed that contains the Parcel ID plus physical address (see Example 3 below)

Example 3

      6. Do not place dollar amounts on proposed fee orders; the amount of the fee is to be left

      7. Do not fill in bond amount or “waived” in proposed orders of appointment

      8. Submit all proposed orders electronically in a word format five (5) days prior to all
         hearings. This will reduce the delay time in the court granting your petition/motion. If
         the proposed order is electronically filed in a word format the court may alter the
         proposed order during or shortly after the hearing

      General Guidelines for Estate Cases

      Formal Administration

      1. Bond consideration by the court:

             ·   Minimum bond required on all formal administrations with a tort claim as the asset is
                 $15,000 (minimum bond premium)

       ·   If the Personal Representative resides in Florida, the bond shall be on one-hundred
           percent (100%) of the liquid assets less the Personal Representatives’ share

       ·   If the Personal Representative resides out of the State of Florida, the minimum bond
           shall be one hundred percent (100%) of all assets (including real property) less the
           personal representatives’ share

       ·   A restricted depository account or an attorney’s trust account is not an alternative
           when the Judge has set bond.

2. The Court requires an Affidavit of No Separate Writing if the Will indicates that there is a
   separate writing and there is not one filed.

3. When requested the last four digits of the decedent’s social security number may be used

4. On new cases that have a tort claim as an asset, the following language is required on the
   proposed Letters of Administration:

   “The Personal Representative may not compromise or settle any claim or dispose of or
   encumber any estate asset without specific court approval”

5. On all Estates that have a Trust as a beneficiary, the Court will require that the date of the
   trust be included under the beneficiaries as:

        “……Revocable Trust dated………”

       If the Personal Representative is a beneficiary and their share of the Trust is designated in
       the estate this information will help the Court in determining bond amount.

6. Petitions for Sale of Real Property require the following:

       ·   A photocopy of the signed contract.

       ·   If filed prior to the end of the creditor claims period, the proposed Order must state that
           the funds are to be placed into the attorney’s escrow account and cannot be disbursed
           without further order of the Court. If these funds exceed two hundred fifty thousand
           dollars ($250,000.00), they must be placed in more than one (1) account.

       ·   The legal description on Petitions and motions containing real property descriptions
           must appear as in public records, i.e. Parcel ID plus physical address (See Exhibit 3,
           page 6, number five (5) of this booklet)

7. Petition to Determine Homestead

       ·   The legal description on the Petition and Order of Homestead must appear as in public
           records, i.e. Parcel ID plus physical address (See Exhibit 3, page 6, number five (5) of
           this booklet)

       ·   Follow Kelly’s Homestead Paradigm (10-07 version attached), which is a graphical
           instructional tool explaining the interpretation of homestead law (newer version 5/10)
           located on page 29.

8. When filing a Petition to Extend Time, the following is required:

       ·   If the estate is more than two (2) years old, a hearing is required (may be telephonic).
       ·   The Personal Representative is required to sign the petition.
       ·   Leave the extension date blank on the proposed Order.

9. All Intestate Formal Administration cases require:

       ·   A Petition to Determine Beneficiaries
       ·   Affidavit of heirs by a disinterested person; updated form located on page 25
       ·   A hearing with notice to all interested parties
       ·   If there is a spouse, the requirement is to use the Florida Bar Form, “Petition for
           Allocation of Spouse’s Share”

10. The Order Admitting Lost or Destroyed Will should have a photo copy of the will attached as
    “Exhibit A attached hereto and made a part hereof”

11. The inventory filed in an estate proceeding must include a detailed description of all assets
    and where they are located. The following items are also required:

   ·   The Vehicle Identification Number (VIN) must be included for all vehicles listed on the
       inventory (both guardianships and estates). This list includes, but is not limited to cars,
       trucks, trailers, motorcycles, boats, motor homes and mobile homes.
   ·   Real property descriptions must appear as in public records, i.e. Parcel ID plus physical
       address (see Exhibit 4)
   ·   Complete account numbers for bank accounts and insurance policies and any other
       financial accounts
   ·   Stock certificates must have complete description and certificate numbers
   ·   Guns listed on the inventories must have the make, model, serial number; length of,
       barrel, and finish, (i.e. blue, nickel, stainless steel)

Summary Administration: The following items are required for Summary Administrations:

1. A paid funeral bill

2. An Affidavit of No Separate Writing, if the will indicates a separate writing and there is not one
   being filed

3. When requested the last four digits of the decedent’s social security number may be used

4. If real property is an asset, an Affidavit of No Florida Estate Tax Due

5. A Probate Asset

   ·   Homestead property is not a probate asset.
   ·   Exempt property does qualify as a probate asset.

6. A detailed description of all assets on both the petition and proposed order

   ·   Do not place the homestead property on the Order of Summary Administration
   ·   The Bar form does require that both exempt and homestead property be listed on the
7. An “Affidavit of Heirs” by a disinterested person for intestate estates; updated form is attached
   on page 25

8. Claims filed in Summary Administration will delay the processing of case:
       · Florida Statute 735.201(2) :

Local Court Requirements for Guardianships

General Guidelines For Fees

1. Petitions for Fees

   ·   Petitions for attorney’s fees will be considered two (2) times a year.
   ·   Guardian’s fees will be considered four (4) times a year.
   ·   Exception to the two (2) or four (4) times a year for billing:
           1. You know the ward is dying
           2. The Ward is going onto Medicaid

       Note: Florida Statute 744.524 requires the guardian must file a final report with the Court
       no later than forty-five (45) days after he or she has been served with letters of
       administration or letters of curatorship

   ·   Paralegal and attorney fees are to be separately stated in the Petition and the proposed
   ·   The Court will not pay for hourly assistants in the law firm; the assistant’s duties is
       included in the attorney’s fees
   ·   The name of the attorney providing the service must be indicated in cases where the law
       firm has more than one attorney
   ·   Service to guardian

2. Fees awarded to guardians will be based on the following:

   ·   How many years a professional guardian has been active
   ·   Complexity of the case
   ·   The time and labor required
   ·   The novelty and difficulty of the questions involved and the skill required to perform the
       services properly
   ·   The fee customarily charged in the locality for similar services
   ·   The nature and value of the ward’s property, the amount of income earned by the estate
       and the responsibilities and potential liabilities assumed by the person
   ·   The nature and length of the relationship with the ward
   ·   The experience, reputation, diligence, and ability of the person performing the service
   ·   How long have you been a guardian
   ·   Type and value of assets managed
   ·   How many guardianships are currently active
   ·   What types of guardianship cases handled
   ·   How many cases are in Pasco, Hernando or Pinellas
   ·   Other duties rendered on behalf of the ward
   ·   Travel Time
   ·   How many non-judicial cases do you have; such as acting as an attorney in fact, power of
       attorney, health care surrogate, etc.

3. Attorneys are to bill in increments of 1/10th of an hour

4. Generally all issues regarding attorney’s fees shall be left for a subsequent hearing

5. Guardians are to bill in one (1) minute increments

6. Dollar amounts on the proposed fee orders should be left blank

7. Guardians will not be awarded costs for transcribing of their notes

Consideration of the Following Requirements Will be Reviewed by the Court When
Determining Fees

1. Consideration of how timely reports are filed pursuant to Chapter 744 Florida Statutes:
   · The guardian shall file an initial guardianship report in accordance with F.S. 744.362
   · The guardian shall file a guardianship report annually in accordance with F.S. 744.367
   · The guardian of the person shall implement the guardianship plan

2. Consideration of a guardian who is given authority over any property of the ward shall:

   ·   Protect and preserve the property and invest it prudently as provided in Chapter 518
       Florida Statutes, apply it as provided in F.S. 744.397, and account for it faithfully
   ·   The guardian shall observe the standards in dealing with the guardianship property that
       would be observed by a prudent person dealing with the property of another, and, if the
       guardian has special skills, or is named guardian on the basis of representations of special
       skills or expertise, he or she is under a duty to use those skills.

3. Consideration of a professional guardian ensuring that each of the guardian’s wards is
   personally visited by the guardian or one of the guardian’s professional staff at least once (1)
   each calendar quarter. During the personal visits, the guardian or the guardian’s professional
   staff person shall assess:

   ·   The ward’s physical appearance and condition
   ·   The appropriateness of the ward’s current living situation
   ·   The need for any additional services and the necessity for continuation of existing
       services, taking into consideration all aspects of social, psychological, education, direct
       service, health, and personal care needs

   Note: The Court may take issue with excessive and/or unnecessary visits

4. Consideration of the number of compliance orders issued:

   ·     Order To File
   ·     Order On Review
   ·     Order To Show Cause

   Note: If the guardian fails to file the guardianship report, the court shall order the guardian to
   file the report within fifteen (15) days after the service of the order pursuant to F.S. 744.3685.
   If the guardian fails to file their report within the time specified by the order without good
   cause, the Court may cite the guardian for contempt of court and may fine the guardian. The
   fine can not be paid out of the ward’s property.

Appointment of Guardian(s)

1. In guardianship cases where a family member is involved, the Court will bifurcate the case.
   The family member will be appointed as guardian of the person and a professional guardian or
   a Trust Company will be appointed guardian for the property

2. Appointments of Co-Professional Guardians or Associates will not be allowed. If a situation
   exists where the guardian can not perform their duties; F.S. 744.442 Delegation of authority,
   provides that a surrogate guardian may be appointed

3. A nonprofit corporate guardian must be an organization for religious or charitable purposes

4. The Court may require the guardian to appear before the court at the time the guardian files
   the annual guardianship report or at any other time the Court determines in order to inquire as
   to any matter relating to the well-being of the ward

5. On the Petition for Appointment of Emergency Temporary Guardian, the Court feels that it
   should be brought to the Court only in a circumstance of life, death, or substantial waste of


1. Restrictive accounts are not to have investment powers; however, this may be addressed by
   the court on a case by case basis

2. Guardianships with Investment accounts do not qualify to file a simplified accounting

3. The Vehicle Identification Number (VIN) must be included for all vehicles listed on the

4. Guns listed on the inventories must have the make, model, serial number; length of, barrel,
   and finish, (i.e. blue, nickel, stainless steel)

5. Petition for Sale of Real Property in Guardianship cases require the following:
   · Contract for Sale and Purchase signed by both parties must be signed within the last
       ninety (90) days
   · An appraisal of the property within the last ninety (90) days
   · Letter from primary physician stating that the ward is unable to return home
   · Consents by all interested parties


1. Minor settlements involving annuities require the following language on the annuity contract:
   “The annuity cannot be amended, altered, or hypothecated without prior Court approval”

2. All minor settlements involving an annuity with a value exceeding $15,000.00 to the minor will
   require a guardianship and the annuity will be an asset of that guardianship

3. If a settlement is approved after the guardianship has been established, a proposed
   settlement with an annuity to be dispersed after the minor becomes eighteen (18) years of age
   will not be approved.

4. On the Termination of Minor Guardianships the following are required:
   · File receipt for monies
   · Petition/Order for fees must be filed prior to terminating the minor guardianship

5. On settlement cases the following are additional requirements:
   · Notice to all parties (e.g. Medicaid, Medicare, all creditors, interested persons)
   · Attach itemized costs (i.e. copies, faxes, postage)
   · Attorneys fee agreement (both Probate and PI attorney)
   · Present at hearing – Personal Representative/surviving spouse, PI Attorney and all
      interested parties
   · A hearing is required

Other Miscellaneous Guardianship

6. Ward’s are not to be moved out of Assisted Living Facilities (ALF) without a court order

7. Minor guardianships of the person only filed in the Probate Division must qualify to be opened
   as a guardianship; otherwise, the jurisdiction may be under F.S. 751.01 in Domestic
   Relations, Civil

Court Requirements Relating To Trusts
1. The Court will continue jurisdiction over trust assets

2. There will be no investment made without Court approval

3. The annual accounting will be filed within thirty (30) days after the end of the trust’s fiscal year

4. Audit fee will be paid according to the guardianship statutory fee schedule

5. Fee schedule of the Trustees will be required

6. Photocopy of trust and adoption agreement is required

7. Trustees may be required to submit a bond

8. No fee to be paid without Court approval

9. Guardian/Trustee must submit to the jurisdiction of the Sixth Judicial Circuit Court if domiciled
   in Pasco County

10. The trustee can spend up to one thousand dollars ($1,000) without a Court Order

General Requirements

1. Current Bar forms are required to be utilized.

2. Attorneys should have a letter from the personal injury attorney showing that the settlement is
   for the policy limits and that the tort-feaser is uncollectable (or this information may be
   contained in the body of the Petition on settlement cases):

   Sample: “The driver of the vehicle, XXXX, was not cited in the accident and the law firm’s
   review of the driver’s financial background and assets showed that a settlement from State
   Farm for the policy limits was in the best interest of the estate. The personal representative is
   in full agreement with the settlement of the matter and has no objections to the closing

3. When filing original Wills, bonds, and death certificates after a case is submitted electronically,
   the documents must have a case number and name when filed with the Clerk and
   Comptroller’s Office; as this may cause a delay in the processing.

4. When an Oath of Witness to Will is executed the following is required:
   · Case name and case number on the oath
   · Copy of the Will
   · Proper Clerk fee amount
   · All documents must be electronically filed. Contact LexisNexis or the Probate Department
     for instructions or to file through the PAT machine
   · Do not send Documents or new cases to my Office. All documents must be filed for
     record through the Clerk. If you do send responses, documents, and orders to my office
     there will be a delay in processing





Rule 1 - Divisions of Court

(A) Circuit Court

1. Appellate Division
2. Civil Division
3. Criminal Law Division
4. Family Law Division
5. Probate and Guardianship Division

(B) Pasco County Court

(C) Pinellas County Court

Rule 2 - [Rescinded]

Rule 3 - Assignment of Cases

(A) Initial Assignment of Cases

(B) Reassignment of Cases

Rule 4 - [Rescinded]

Rule 5 - General

(A) Cancellation of Proceedings
(B) Emergency Matters
(C) Affidavit of Good Faith, Motions to Compel
(D) Non-Military Affidavits

Rule 6 - Clerks of the Circuit Court

Rule 7 - [Rescinded]

Rule 8 - [Rescinded]

Rule 9(A) - Electronic Jury Selection - Pinellas County

Rule 9(B) - Electronic Jury Selection - Pasco County

5. Probate and Guardianship Division

All causes, proceedings, matters and actions pertaining to the probate of estates, administration of
guardianships, incapacity proceedings, proceedings arising out of Chapter 393, Florida Statutes,
the Baker Act, and Marchman Act, the Life-Prolonging Procedures Act, any proceeding arising
under the Florida Probate Rules, and the administration of trusts, are assigned to the Probate and
Guardianship Division.

       Honorable Walter L. Schafer, Jr.
        Judicial Practice Preferences

“Good moral character” includes qualities of honesty, fairness,
candor, trustworthiness, observance of fiduciary responsibility,
respect for and obedience to the laws of the state and the nation
and respect for the rights of others and for the judicial process.”
                              Taken from the State Bar of California

                           Honorable Walter L. Schafer, Jr.
                            Judicial Practice Preferences
Probate Proceedings

1. For courtroom trials, Judge Schafer prefers that attorneys request permission to
   approach the bench and to approach the witness.

2. Judge Schafer indicated that he conducts voir dire examination by having attorneys
   question an entire jury panel, not just the six (6) jurors placed in the jury box.

3. Judge Schafer indicated that he never permits the practice of serial voir dire in his

4. Judge Schafer prefers to hear Motions in Limine before trial at a scheduled hearing.

5. Regarding pre-trial conference practice, Judge Schafer will only pre-try a case
   involving trial time set for periods exceeding one (1) hour.

6. Judge Schafer will sometimes enter an Order, sua sponte, declaring matters

7. With respect to venue, Judge Schafer will always try cases in his chambers, unless a
   courtroom is requested by counsel.

8. Judge Schafer finds that all issues regarding attorney fees shall be left for a
   subsequent hearing.

9. Regarding experience with probate lawyers trying cases, Judge Schafer feels that the
   Probate Bar should sometimes associate with experienced trial lawyers when trying

10. (a) When marking potential evidence to be used at trial, Judge Schafer prefers that all
   potential evidence be marked with the clerk in advance of its intended use.

   (b) When showing tangible evidence to the Court, Judge Schafer prefers that the
   attorney, after showing same to opposing counsel, then show the exhibit to the
   witness without showing it to the Judge first.

11. When there are witnesses or parties involved in a Will contest or other adversary
    action from around the country, Judge Schafer never allows testimony by telephone.

12. Judge Schafer always requires parties to attend mediation prior to trying disputes
    involving probate matters.

13. Judge Schafer will not hear any Motion that has not been noticed.

14. Do not fax or e-mail any document to the Judge’s Office without prior permission.
15. Courtroom-Request Permission for the following:
    · To approach the bench
    · To approach the witness
    · To approach the clerk

16. Attorney Fees:
    · Generally all issues regarding attorney’s fees shall be left for a subsequent hearing

17. Marking Evidence To Be Used At Hearing or Trial:
    · Judge Schafer prefers that all evidence be marked with the Clerk in advance of its
      intended use

18. Mediation
    · Judge Schafer requires mediation for all jury trials and multiple hour bench trials

19. Courtroom Demeanor Comments:
    · When making an objection state the grounds for the objection. Do not argue
      objection unless asked to come to the bench
    · Never argue with opposing counsel
    · Direct all arguments to the Court
    · Upon leaving the bench, do not say “thank you” in a voice audible to the jury

20. Other Practice and Procedure Pointers:
    · Please be sure to have the name of the Judge spelled correctly
    · Cross-noticing on another attorney’s time is strictly prohibited. If you cross-notice,
       your motion will not be heard
    · Please do not complain to the Judge’s office when a hearing has not been cleared
       with your office
    · If a case has settled, please call the Judge’s office to cancel any hearings or trials
       that may be scheduled
    · Do not assume that you can appear by telephone, please check with the Judge’s
       office first
    · After you have obtained a hearing time, please confirm with the Judge’s office. Do
       not just send in a notice
    · Rule of Judicial Administration 2.060(h) requires that all substitutions of counsel be
       signed by the client
    · Continuances must also be signed by the clients
    · The correct mailing address for the Judge’s Office is: West Pasco Judicial Center,
       7530 Little Road, New Port Richey, Florida 34654
    · All documents must be electronically filed. Contact LexisNexis or the Probate
       Department for instructions or to file through the PAT machine
    · Do not send documents or new cases to the Judge’s office. All documents must
       be filed for record through the Clerk. If you do send responses, documents, and
       orders to the Judge’s office there will be a delay in processing

                              Thou shalt honor thy opponent
1.    Thou shalt not address thy opponent by first name
2.    Thou shalt meet in person to resolve discovery disputes
3.    Thou shalt not interrupt thy opponent
4.    Thou shalt not demean or personally attack thy opponent
5.    Thou shall assist the court with pro se litigant
6.    Thou shalt talk with thy opposing before setting matters for hearing
7.    Thou shalt provide thy opposing counsel with whatever documents are given to the judge
8.    Thou shalt not make arguments directly to thy opposing counsel rather than the judge
9.    Thou shalt not argue items not in a motion or noticed for hearing
10.   Thou shalt not file memoranda of law without adequate time for review

                                   Thou shalt honor thy judge
1. Thou shalt preserve thy objections without unnecessary respective renewals
2. Thou shalt highlight thy case
3. Upon ruling thou shalt not roll thy eyes. Thank the judge, say “but Judge” or ask the judge to
4. Thou shalt prepare a proposed order with the relief sought
5. Thou shalt organize thy exhibits into 3-ring binders
6. Thou shalt not lie to the judge, for he or she will not forget
7. Thou shalt not file lengthy memos with shot-gun arguments
8. Thou shalt not box they judge into a corner by phrasing your position to make the judge look stupid
9. Thou shalt not object to an adverse ruling
10. Thou shalt not begin your response to the judge by saying “with all due respect”

                               Thou shalt honor thy courtroom
1. Thou shalt button they top button and dress appropriately
2. Thou shalt refrain from bringing in food or drink, except water with the permission of the
3. Thou shalt stand up for the opening and closing of court for all objections and when addressing thy
4. Thou shalt turn off thy phone and refrain from checking thy blackberry; except for advising of
    availability on calendar
5. Thou shalt be prepared and ready, on time, to begin the proceeding
6. Thou shalt control they client
7. Thou shalt honor thy court reporter by not talking before he or she is ready
8. Thou shalt not approach the podium until ready
9. Thou shalt not chew gum
10. Thou shalt be ready when the jury is ready

        DEPOSIT OF


IN RE: THE GUARDIANSHIP OF                       FILE NO.



         BASED AND PREDICATED upon the Order of this Court, establishing and
designating a depository for the case assets in the above styled guardianship pursuant to
Florida Statutes 69.031,                                                      ,
counsel for the guardian in the said cause, is hereby directed to supervise the deposit
of all funds by the guardian that are the property of the ward into said
depository without undue delay. Counsel for the guardian of a minor shall not
release funds until the restricted depository is established. SAID COUNSEL
DEPOSITORY’S RECEIPT OF ASSETS showing the amount of cash received by the
depository, along with the account number into which said funds were deposited within
thirty (30) days from the date of this Order. Counsel shall specifically bring to the
depository’s attention that the Letters of Guardianship contain the restrictions that there
are to be no withdrawals from any account WITHOUT COURT ORDER.

      If, for any reason, the depository of said funds is delayed, that fact is to be
brought to the attention of the Court immediately.


DONE AND ORDERED in Chambers in New Port Richey, Pasco County, Florida this

        day of                            , 20   .

                                                 Circuit Judge
Copies to: Guardian
           Attorney for Guardian


                      IN AND FOR PASCO COUNTY, FLORIDA
                              PROBATE DIVISION

                                               CASE NUMBER:



        For purposes of this document, you must list ALL RELATIVES of the decedent, including
yourself, if applicable. If the relative was deceased at the time of the decedent’s death, please
provide the deceased relative’s name, indicate deceased, and date of death. Answering with n/a,
not applicable, or any other such designation is inappropriate for this document; unless the
decedent never had a relative within a particular category (i.e. the decedent was an only child, and
therefore had no sibling(s)). When appropriate you must
indicate if the relationship is that of a half-relative (i.e. half-brother or half-sister).

_____1.        I have no interest in this estate.

               I am not ____ am ____ related to the decedent as follows _________.

               I have known the decedent for _______________ years.

____ 2.        Spouse of the Decedent. (Provide name, age, and address; or if deceased, provide
               name, indicate deceased, and date of death).



____ 3.        Children of the Decedent, or descendants of deceased children. (Provide name, age,
               and address; or if deceased, provide name, indicate deceased, and date of death). If
               any of the children are NOT biologically related to BOTH the decedent and the
               spouse at the time of death, provide the name of that particular child’s other
               biological parent.



____ 4.         Parents of the Decedent. (Provide name, age, and address; or if deceased, provide
               name, indicate deceased, and date of death).



____ 5.   Siblings, and descendants of deceased siblings. You must indicate whether the
          relationship is that of a half-relative (i.e. half-brother or half-sister). (Provide name,
          age, and address; or if deceased, provide name, indicate deceased, and date of






____ 6.   Grandparents. (Provide name, age, and address; or if deceased, provide name,
          indicate deceased, and date of death).






____ 7.   Aunts and Uncles of the Decedent. (Provide name, age, and address; or if deceased,
          provide name, indicate deceased, and date of death).





____ 8.         Kindred of the last deceased spouse (ONLY IF filing intestate and is not previously
                listed above). (Provide name, age, and address; or if deceased, provide name,
                indicate deceased, and date of death).



        Under penalties of perjury, I declare that I have read the foregoing Affidavit of Heirs and
the facts stated therein are true.

                                                     Print Name of Affiant


                                                     Address of Affiant

State of Florida
County of ________________

Subscribed and sworn before me this _______ day of _______________________ , 20             _.


                                                             Notary Public or Deputy Clerk

__ Personally known                                           _________________________

__ Produces identification                                   Print, type or stamp commissioned
                                                             name of Notary or deputy clerk

Type of identification:


wls 9-25-2009

Order On Motion To
   Withdraw As
Attorney Of Record

                                        PASCO COUNTY, FLORIDA
                                           PROBATE DIVISION

IN RE: ESTATE OF                                                  File No.:

                                        ORDER ON MOTION TO WITHDRAW AS
                                          ATTORNEY OF RECORD

        THIS CAUSE coming on to be heard on the Motion to Withdraw as attorney of record
for the representation of ______________________, as the Personal Representative of the
Estate of ___________________, with regard to the Estate, hereby moves this Court to
withdraw as attorney for the Personal Representative in this cause because of irreconcilable
differences, and the Court being further and duly advised in the premises, it is thereupon,

       ORDERED and ADJUDGED that the Motion to Withdraw as Attorney of Record for
the representation of __________________, as the Personal Representative of the Estate
of ___________________________________, filed by _________________________,
Esquire is hereby granted. The said Personal Representative is Ordered to retain a new
attorney to represent him within thirty (30) days and if the Personal Representative fails to
do so the estate will be administratively closed. All future notices shall be sent

       DONE and ORDERED in Chambers, in New Port Richey, Pasco County, Florida,
this ______ day of _______________________, 200__.

                                                  Circuit Judge

Order on Motion to W/draw as Attorney of Record 01-20-09


Estates, Trusts, Guardianships & Other
         (Decisions through April 30, 2010)

Estates, Trusts, Guardianships & Other
         (Decisions through April 30, 2010)

            Steven L. Hearn
            Steven L. Hearn, P.A.
               Tampa, Florida

               June 21, 2010


1)     TRUST JURISDICTION - Kountze v. Kountze, 20 So. 3d 428 (Fla. 2nd DCA
October 16, 2009) - In 1976, the decedent and his former wife established a trust as part
of a marital settlement agreement in Nebraska. The principal place of administration for
the trust was Nebraska. The decedent died in 2005, a resident of Collier County,
Florida. The personal representative of the Florida estate administration brought
proceedings against the Nebraska-based trustee for possession of assets in the trust,
apparently based upon potential federal estate tax liability. The Nebraska trustee (and
beneficiary) objected to the Florida court jurisdiction. The appellate court reversed a
probate court order requiring the Nebraska parties to maintain the status quo of all
property. The court remanded the proceedings for evidentiary hearings on jurisdictional
issues, as well as an evidentiary hearing regarding the four-part test for temporary
injunctions. The opinion includes a lengthy discussion of the various elements for
determining jurisdiction over nonresident parties.


2)     DEVISE OF LIFE ESTATE - Chin v. Estate of Adolph E. Chin, 15 So. 3d 894 (Fla.
3 DCA August 5, 2009) - A decedent’s son had a dispute with the decedent’s sister
regarding whether that sister held a life estate in property jointly owned with the
decedent. The decedent’s will indicated “I direct that property held by me in co-
ownership with my brother... and with my sister... shall not be sold as long as my said
brother or sister desire to occupy same.” The decedent’s son argued the provision
applied only to parcels owned jointly by the decedent and both his brother and sister.
The trial court and appellate court rejected that argument, applying the provision to any
parcels owned jointly between the decedent and either sibling.


5)      CONTINGENCY FEES - GUARDIANSHIP - Stinson v. Geico Insurance
Company, 35 Fla. L. Weekly D162 (Fla. 2nd DCA January 15, 2010) - An 18-year-old was
incapacitated as the result of a bicycle collision with a car. Shortly after the collision and
prior to the appointment of a guardian, the minor child’s mother signed a standard
contingency fee agreement for representation of the child. The Firm approached the
insurer, who subsequently tendered the full policy limits. Subsequently, the child’s
mother petitioned to seek appointment as guardian. The court-appointed attorney for the
child recommended a professional guardian and a professional guardian later petition for
appointment. After the law firm filed a petition to approve the settlement and to confirm
retention, the court appointed the professional guardian as plenary guardian. That
professional guardian subsequently filed a petition to strike the request for approval of
settlement and confirmation. After an evidentiary hearing, the lower court found that the
minor’s mother was not authorized to act in any capacity when she signed a retainer with
the Firm, and that therefore the Firm had no contract with the child or the Guardian. The
appellate court held it was improper for the court to strike the petition without first
determining (1) whether it was reasonably necessary to employ an attorney on behalf of
the minor; and (2) that the contract by which the attorney was employed was fair and

                            FLORIDA CASE LAW DEVELOPMENTS 2009
                                          PAGE 32
reasonable at the time it was entered into. The matter was remanded for further

So. 3d 1210 (Fla. 4th DCA July 1, 2009) - In a guardianship proceeding in which the ward
was not found incapacitated, the guardianship court apparently entered an order
requiring the ward to pay the fees of the court-appointed attorney. The appellate court
reversed, noting that “any award of fees incurred by counsel appointed to represent the
subject must come, if at all, from the petitioner.”

7)      COUNSEL FOR INCAPACITATED WARD - McCallum v. Ehrisman, 35 Fla. L.
Weekly D107 (Fla. 1st DCA December 31, 2009) / Colson v. Ehrisman, 35 Fla. L. Weekly
D106 (Fla. 1st DCA December 31, 2009) - In two separate guardianship proceedings, a
trial court apparently denied a motion for substitution of counsel on behalf of wards who
already had been determined to be incapacitated. The appellate court affirmed and
concluded “appellant’s attorney was not legally authorized to represent her in either the
trial court or this appeal....”


8)     PRIORITY OF CREDITOR CLAIMS - Copeland v. Buswell, 20 So. 3d 867 (Fla.
2nd DCA July 29, 2009) - During the course of a wrongful death lawsuit, the defendants
independently negotiated a payment of $300,000 for hospital medical expenses of
$492,224. The settlement was done without the knowledge or participation of the
personal representative. After the trial court found the defendants solely liable for the
wrongful death, it entered final judgment but refused to include the former $492,224
medical expense in light of the hospital’s execution of a release in favor of the Estate.
The appellate court reversed the damage award, noting that the actions by the
defendants and the hospital effectively circumvented the priority statutes for payment of
creditor claims and that the defendants did not have the power to reduce the damages of
the estate through independent negotiation of a settlement.

9)      LATE FILED CLAIMS - Mack v. Perri, 34 Fla. L. Weekly D2619 (Fla. 1st DCA
December 22, 2009) - An estate creditor appealed an order striking their claims, which
were filed after the three-month claims period based upon publication. The creditors
filed their late claim, but failed to file a petition for extension of time to file claim prior to
expiration of two years after the decedent’s date of death. The trial court ruled, and the
appellate court affirmed, that failure to file the motion for extension resulted in the claim
being barred after two years. The appellate court also rejected an argument that the
claims were timely based upon publication of a second notice to creditors in the estate,
indicating the creditor period runs from the first publication and that, therefore, the
second publication was “unnecessary surplusage.”

10)     LATE FILED CLAIMS - Morgenthau v. Estate of Richard M. Andzel, 35 Fla. L.
Weekly D86 (Fla. 1st DCA December 31, 2009) - Approximately 10 months after
expiration of the claims period, a party filed a claim in the Estate. After the filing of a
petition for order striking untimely claim, the trial court entered an order striking the claim

                              FLORIDA CASE LAW DEVELOPMENTS 2009
                                            PAGE 33
without a hearing. On appeal of that order, the decision was affirmed, the appellate court
noting that the claimant had failed to file a motion for extension of time to file claim prior
to filing the claim.

11)     SERVICE OF NOTICE TO CREDITORS - Grainger v. Wald, 35 Fla. L. Weekly
D381 (Fla. 1st DCA February 12, 2010) - At the time of the decedent’s death, he was a
defendant in a personal injury lawsuit. After death, the plaintiff obtained judgment
against the decedent. As part of the estate administration, a Notice to Creditors was
served upon the attorney representing the Plaintiff in the personal injury action. That
plaintiff failed to file a claim in the probate proceedings until 10 days after expiration of
the statutory 30 day limitations period. The probate court refused to strike the claim
based upon a finding that the notice was ineffective because it was served upon the
creditor’s “personal injury” attorney rather than upon the creditor’s “probate” attorney.
The appellate court reversed, noting that the relevant statutes and rules make no
distinction between a “probate” attorney versus a “personal injury” attorney and that
“semantics should not be allowed to render Rules meaningless and statutes uncertain.”

12)      CLASS ACTION CLAIMS - Baillargeon v. Sewell, 35 Fla. L. Weekly D978 (Fla.
2d DCA April 30, 2010) - A decedent died while a defendant in a pending class-action in
federal court. At the time of death, the action was pending but the federal court had not
certified a class. After death, the Personal Representative for the estate was substituted
as a party defendant and the plaintiffs filed a first amended class action complaint
specifically naming the personal representative. The class plaintiffs subsequently filed a
timely claim in the estate “both individually and on behalf of [a] class of claimants.” The
Personal representative moved to strike the claim on various grounds, including that a
claim for a class of unnamed claimants is not permitted by Florida law. The trial court
denied the motion to strike, including the claim was not necessary in light of the pending
federal court action and allowing an extension of six months to amend the claim
(apparently to give the claimants additional time to identify the specific class claimants).
On appeal, the trial court decision was reversed, with the Second DCA concluding the
Florida Probate Code does not authorize the filing of a claim for a group of unnamed
potential claimants. The court further concluded an amendment to add the specific
names of claimants would be an impermissible substantive amendment rather than an
amendment as to form. Finally, the court noted that in light of amendments to the Florida
Probate Code, the existence of a pending lawsuit does not substitute for the requirement
to file a claim in a pending estate.


Insurance Company v. The Governor of Florida, 34 Fla. L. Weekly D2441 (Fla. 4th DCA
November 25, 2009) - A personal representative and bonding company appealed an
order denying their motion to dismiss petitions for surcharge and to remove the personal
representative. The motions to dismiss had been based upon a provision in the
decedent’s Will limiting the personal representative’s liability to “willful misconduct.” The
basis for the surcharge claim was that the personal representative had lost virtually all of
the estate assets through inappropriate investments. Because the denial of the motion

                             FLORIDA CASE LAW DEVELOPMENTS 2009
                                           PAGE 34
to dismiss was not a final determination of rights or obligations, the appellate court
dismissed the appeal on the grounds that the matter was a nonfinal and non-appealable

                                   FEES AND COSTS

14)    PREPAID LEGAL SERVICES - Glantz and Glantz, P.A. v. Chinchilla, 17 So. 3d
711 (Fla. 4th DCA June 3, 2009) - The Personal Representative of an estate retained a
prepaid legal services program, which agreed to charge a 51% discounted rate from their
normal billing rates. Based upon that agreement, the program charged a total of
$12,400 plus costs. Later, the personal representative objected to the fee and the court
held an evidentiary hearing on the issues. The court accepted the testimony of an expert
indicating a $13,500 fee would be reasonable, but reduced that amount by 51%. On
appeal, the decision was reversed, with the appellate court finding the “inexplicably
reduced” fee was an abuse of discretion.

15)      FEES TO PURSUE FEES - INDIVIDUAL LIABILITY - Geary v. Butzel Long P.C.,
13 So. 3d 149 (Fla. 4th DCA June 10, 2009) - This appeal originated from an initial
dispute over an attorney fee of $4,127. After the firm was awarded its full fee, it
petitioned for payment of fees of $19,000 and costs of $4,000 incurred during the 18
month litigation over the initial $4,127 fee. The personal representative continued to
litigate that issue and, during the course of that litigation, paid herself $18,600 in
personal representative fees and paid her new estate attorney over $43,000 in fees
related to the challenge to the $19,000 fee request. After three years of litigation, the
trial court entered an award of $49,000 in fees to the original law firm. The trial court
found that the personal representative’s actions were neither necessary nor reasonable
and, by prolonging the litigation, the fee claim was increased from $19,000 to $49,000.
The trial court ordered both the personal representative and her law firm to repay to the
estate the fees that had been paid. The court further made the personal representative
personally liable for payment of the petitioning law firm’s fees incurred during the course
of the fee litigation. On appeal, the court affirmed the ruling with the exception of the
initial $19,000 in fees, based upon the a trial court determination that the personal
representative was initially justified in litigating the $4,127 fee. The appellate court
affirmed the award of fees against the Personal Representative, individually, and
rejected the argument that such award required a showing of bad faith.

16)    FEES - PLEADING REQUIREMENT - Mercer v. Kanowsky, 15 So. 3d 814 (Fla.
4 DCA July 22, 2009) - A trustee appealed an order requiring him to pay one-half of
attorney’s fees the trust beneficiary incurred in defending a successful challenge to
extraordinary attorneys fees and costs charged by the trustee. The appellate court
previously had reversed a similar award against the law firm who had represented the
trustee. See 917 So.2d 222. Because the beneficiary had failed to comply with
requirements for pleading entitlement to fees, the court reversed the fee award against
the trustee.

17)   TRUSTEE FEES - Burgess v. Prince, 35 Fla. L. Weekly D222 (Fla. 2d DCA
January 22, 2010) - A trial court removed a trustee and ruled that the trustee was not

                            FLORIDA CASE LAW DEVELOPMENTS 2009
                                          PAGE 35
eligible for payment for managing a business that was a trust asset, relying upon
language in the trust indicating “any trustee who is also a beneficiary under the trust shall
serve without compensation.” The appellate court reversed the portion of the order
denying compensation, distinguishing between compensation for services as trustee and
compensation as an employee of the business that was a trust asset.

18)    ATTORNEYS FEES - ABANDONMENT - Rakusen Law Firm v. Estate of Richard
A. Dennis, 35 Fla. L. Weekly D296 (Florida 3d DCA February 3, 2010) - A probate court
entered summary judgment against two law firms requesting payment for attorneys fees
incurred in conjunction with an appellate matter in Arizona, on the grounds that the firms
had abandoned their representation of the Estate. The appellate court reversed, finding
several instances in which issues of material fact would prevent entry of summary

19)    SUBSEQUENT ADMINISTRATION - Betancourt v. Misdraji, 13 So. 3d 489 (Fla.
3rd DCA May 6, 2009) - A pro se beneficiary appealed the denial of a petition for
subsequent administration, her third such petition subsequent to the initial order of
discharge. The beneficiary also had attempted to disqualify the probate judge who had
denied her prior efforts to reopen the estate. The appellate court determined that “all
issues have been adjudicated and may not be asserted successively,” and affirmed the
lower court ruling.

20)    FORMAL NOTICE - TIME FOR SERVICE - Aguilar v. Aguilar, 15 So. 3d 803 (Fla.
2 DCA July 22, 2009) - Within three months after service of notice of administration, the
wife of the decedent filed a petition to contest the will and remove the personal
representative. The motion was served by regular US mail to counsel for the personal
representative. After expiration of the three-month period, the surviving spouse served
formal notice of the pending petition and the personal representative moved to dismiss
the petition for failure to serve by formal notice within the three-month period. The trial
court dismissed the petition and was reversed on appeal. The appellate court noted that
the Florida Probate Code requires only the “filing” of objections within three months after
the notice of administration and that there are no statutes or rules requiring service of
formal notice within that three-month time period.

21)     STANDING - JURISDICTION - Wells v Wells, 34 Fla. L. Weekly D1897 (Fla. 4th
DCA September 16, 2009) - The plaintiff sued her sister, several financial advisors, a
Florida attorney, and several parties (including attorneys) in Arizona, alleging that her
sister had unduly influenced their mother to remove her as co-trustee and, with the
assistance of the other representatives, had conspired to take control of and convert
trust assets. The plaintiff, acting pro se, was subjected to repeated motions to dismiss,
all of which resulted in a final dismissal, with prejudice, of her third amended complaint.
The appellate court partially reversed the dismissal, finding that the plaintiff had standing
to pursue a declaratory judgment against her former co-trustee (her sister) and that,
should she prevail in that declaratory proceeding, she would have standing to bring
breach of fiduciary duty and tortious interference causes of action against her sister and
the Florida lawyer.

                            FLORIDA CASE LAW DEVELOPMENTS 2009
                                          PAGE 36
22)    SUMMARY ADMINISTRATION - VOIDABLE - Jones-Bishop v. Estate of
Catherine B. Sweeney, 35 Fla. L. Weekly D305 (Fla. 5th DCA February 5, 2010) - The
decedent’s granddaughter filed a Petition for Summary Administration for which she
obtained consents from all beneficiaries of the decedent’s Will (the great-grandchildren).
The nominated Personal Representative, who was not a beneficiary, successfully
obtained an order setting aside the Petition for Summary Administration, arguing the
Petitioner had no standing to pursue the initial Petition because she was not a
beneficiary of the estate. On appeal, the court reversed the order setting aside the
Petition, noting that at best the lower court order was voidable, not void, that all estate
beneficiaries had consented to the Petition, and that the relevant rules did not require
any prior notice to the nominated Personal Representative.

23)     ACCOUNTING OBJECTION UNTIMELY - Thomas v. Thomas, 35 Fla. L. Weekly
D302 (Fla. 5th DCA February 5, 2010) - The probate court dismissed adversary
proceedings on objections to an accounting, claiming mismanagement of securities by a
stockbroker. The basis for the ruling was that the objection to the final accounting was
not timely filed. The objecting party argued that the final accounting was not complete
and thus not a final accounting, therefore they were not under any obligation to object
within the standard 30 day period. The appellate court rejected that argument, noting
“appellants cite no authority for their position and this Court disagrees.” The opinion
contains an error regarding interpretation of Florida probate rule 5.401(d), which the
court indicates requires that the parties must “have a hearing” within 90 days after the
filing of the objection. The rule simply requires service of a notice of hearing within 90

24)     ESTOPPEL - Batie v. Batie, 35 Fla. L. Weekly D800 (Fla. 1st DCA April 7, 2010) -
A trial court entered summary judgment based upon the conclusion that the Plaintiff was
estopped from bringing a lawsuit because the Plaintiff had taken an inconsistent position
in a prior lawsuit against the same defendant. The appellate court reversed, indicating
estoppel applies only if the inconsistent position is successfully maintained in the prior

Weekly D730 (Fla. 1st DCA March 31, 2010) - The nominated personal representative in
the decedent’s Will petitioned for and obtained appointment as personal representative.
That person was a resident of New York. The Estate served the decedent’s mother with
notice of administration and, more than three months after receipt of the notice, the
decedent’s mother moved to disqualify the personal representative on the grounds that
he was not a lineal descendent of a spouse of the decedent and, therefore, was an
unqualified nonresident. The trial court denied the motion, concluding the individual
qualified as a nonresident personal representative pursuant to the Florida Statutes and
noting that the motions to disqualify were served more than three months after service of
the notice of administration. On appeal, the court concluded that the motions to
disqualify were time barred pursuant to the Florida Statutes section 733.212(3) even if
the Personal Representative was an unqualified non-resident. The appellate court
expressly disagreed with the opposite conclusion of the Third District Court of Appeal in

                            FLORIDA CASE LAW DEVELOPMENTS 2009
                                          PAGE 37
Angelus v. Pass, 868 So. 2d 571 (Fla. 3rd DCA 2004), in which the Third District Court of
Appeal had concluded the three-month statute of limitations does not apply in instances
in which the individual was never legally qualified to serve as personal representative at
any time, and certified conflict with that decision.


26)    HOMESTEAD - PR POSSESSION - Bayview Loan Servicing LLC v. Giblin, 9 So.
3d 1276 (Fla. 4th DCA April 29, 2009) - During a probate administration, the decedent’s
personal representative secured a loan with a mortgage on the decedent’s homestead.
During later foreclosure proceedings, the surviving spouse filed a petition to determine
homestead. After the trial court determined the property was protected homestead, the
lender appealed. The appellate court affirmed the ruling, noting “the lender is free to
pursue any available cause of action not inconsistent with this determination.”

27)    HOMESTEAD SALES PROCEEDS - Zivitz v. Zivitz, 16 So. 3d 841 (Fla. 2d DCA
May 22, 2009) - This appeal involves a final judgment of garnishment regarding
proceeds from the sale of a party’s homestead residence, which were held in a law firm
trust account. The garnishment was related to a final judgment on a promissory note
unrelated to the homestead. The debtor failed to timely respond to the garnishment
notices and the trial court found that those actions effectively waived any claim of
exemption based upon the homestead status of those proceeds. The appellate court
affirmed, rejecting arguments that homestead property deserves unique status with
respect to garnishments, and confirming that failure to file a timely response to the
garnishment notice constitutes a waiver of any claim for exemption of the proceeds from
sale of a homestead.

28)     HOMESTEAD - FEES FOR ADMINISTRATION - Herrilka v. Yates, 13 So. 3d 122
(Fla. 4 DCA June 3, 2009) - At the request of the estate’s curator, the probate court
imposed a lien against homestead property for payment of the attorneys fees and costs
incurred by the curator while acting on behalf of the estate. The appellate court
reversed, finding that the lien was improper in light of the fact that the decedent’s
surviving spouse occupied the property and the fees incurred by the curator were not
incurred for the purpose of preserving, maintaining, insuring, or protecting the
homestead property.

29)    HOMESTEAD - APARTMENT UNITS - Buettner v. Fass, 21 So. 3d 114 (Fla. 4th
DCA October 28, 2009) - After ruling that two units in an apartment complex owned by
the decedent were homestead and passed to her son, the court entered a subsequent
order evicting the son from the entire premises of the apartment building and directing
the personal representative to take possession of those premises. On appeal, the court
affirmed the ruling regarding homestead but reversed the eviction order, noting that
“remedies must be sought other than to dispossess [the son] from his own property
where the personal representative has no ownership interest in the homestead.”

30)   AD VALOREM TAX HOMESTEAD - Karayiannakis v. Nikolits, 34 Fla. L. Weekly

                           FLORIDA CASE LAW DEVELOPMENTS 2009
                                         PAGE 38
D2534 (Fla. 4th DCA December 9, 2009) - An individual held title to a two-story
apartment building containing five units. She lived in one unit and rented the remaining
four. For purposes of ad valorem property taxes, the tax appraiser apportioned 37% of
the building as eligible for a homestead tax exemption. The property owner appealed,
claiming her homestead exemption applied to the property “and contiguous real
property.” The appellate court affirmed the determination by the tax appraiser,
confirming that real property is divisible for tax exemption purposes and that special tax
treatment will not apply to the non-homestead portion of the property.

31)     HOMESTEAD INSURANCE PROCEEDS - Quiroga v. Citizens Property
Insurance Corp., 35 Fla. L. Weekly D767 (Fla. 3rd DCA April 7, 2010) - A law firm
working under a contingency fee agreement successfully secured proceeds of
homeowners insurance for damages caused by two separate hurricanes. In appreciation
for the attorneys’ work, the client promptly terminated the contingency fee agreement
and argued the proceeds were not subject to a charging lien because they were related
to his constitutionally protected homestead. The trial court denied the law firm’s motion
to impress a charging lien and the appellate court affirmed the decision noting “the
equities of the matter notwithstanding,” “in the event a homestead is damaged through
fire, wind or flood, the proceeds of any insurance recovery are imbued [with the
privileges of constitutionally protected homestead real estate].”

32)    DEVISE OF HOMESTEAD - Pajares v. Donahue, 30 Fla. L. Weekly D605 (Fla. 4th
DCA March 17, 2010) - The decedent, who died without a surviving spouse or children,
executed a will containing conflicting provisions regarding disposition of her homestead
residence. Article 3 made specific dollar bequests to certain individuals to be paid “from
the sale of” the homestead property. Article 4 contained provisions devising the
“homestead or primary residence” to two named individuals, but also contained language
stating “see above primary residence.” The appellate court affirmed the probate court
determination that the decedent intended the homestead property to be sold and the
proceeds distributed to the specific devisees, construing articles 3 and 4 together to
determine the decedent’s intent and rejecting an argument that the Will should be strictly
construed in favor of retaining the homestead protections of the Florida Constitution.


33)     ATTORNEY CLIENT RELATIONS - The Florida Bar v. Tipler, 8 So. 3d 1109 (Fla
Sup. Ct. April 30, 2009) - An attorney was disbarred for various violations of the
disciplinary rules, including entry into a fee agreement which allowed a credit for each
time the client engaged in sex with the attorney and a credit if the client arranged for
other females to have sex with him.

Zelman, 19 So. 3d 1048 (Florida 3rd DCA September 30, 2009) - The plaintiffs in
this action were nonresidents who became involved in a financial business transaction
arranged by a Florida attorney who, at the time, was a member of the Sacher, Zelman
law firm. The attorney arranged the transactions without the knowledge of the firm,
although documentation regarding the transactions included the firm name. The trial
court determined the agreements were unenforceable loan agreements under Florida’s
                            FLORIDA CASE LAW DEVELOPMENTS 2009
                                          PAGE 39
usury laws, and that the law firm was not liable because the attorney (who was
subsequently disbarred) had no authority to bind the law firm on those transactions and
that the transactions were both clearly illegal and otherwise not within the scope of his
employment. The decision was affirmed on appeal.

35)    ATTORNEY DISQUALIFICATION - Kaplan v. DiVosta Homes, L.P., 20 So. 3d
459 (Fla. 2nd DCA November 4, 2009) - The plaintiff in these proceedings moved to
disqualify counsel for the defendants, claiming that another attorney in the Firm was
acting as counsel for the personal representative in a separate unrelated probate
proceeding in which the plaintiff was an adverse party. The trial court and appellate
court rejected the motion, noting that there existed no attorney-client relationship
between the plaintiff, as a beneficiary, and the law firm representing the personal
representative. The court also noted that even if the attorney for the estate has some
type of fiduciary duty regarding administration of the estate, the existence of that duty
does not create an attorney-client relationship requiring disqualification.

36)     ATTORNEY DISQUALIFICATION - Castellano v. Winthrop, 35 Fla. L. Weekly
D260 (Fla. 5th DCA January 29, 2010) - During the course of “protracted litigation”
regarding child custody and medical treatment of children involved in a divorce, the
mother obtained the father’s USB drive“illegally” and without the knowledge or consent of
the father. The drive contained attorney-client, work product, and other privileged
documentation related directly to the matter. The mother’s law firm spent in excess of
100 hours reviewing the files and, based upon those files, filed pleadings alleging
intentional fraud upon the court. The father filed an emergency motion seeking return of
the USB drive, disqualification of the mother’s counsel, and imposition of sanctions. The
presiding trial judge appointed a senior judge to determine the motion. That judge, after
an evidentiary hearing, disqualified the mother’s law firm because “an informational
advantage was obtained.” The judge further required the pleadings be struck, that all
confidential information be deleted from the computers of the mother and firm, with
confirmation by a third party inspection, all at the expense of the law firm, and that the
law firm and the mother were to indemnify the father for any damages. The mother
appealed the portion of the order disqualifying her attorney and the appellate court
affirmed the ruling noting a professional ethics opinion indicating that “when an attorney
receives confidential documents he or she knows or reasonably should know were
wrongfully obtained by his client, he or she is ethically obligated to advise the client that
the materials cannot be retained, reviewed, or used without first informing the opposing
party that the attorney and/or client have the documents at issue. If the client refuses to
consent to disclosure, the attorney must withdraw from for the representation.”

37)     NON- FLORIDA ATTORNEYS - Morrison v. West, 35 Fla. L. Weekly D391 (Fla.
4th DCA February 17, 2010) - In a dispute between an income beneficiary and the trustee
of a Florida trust, the beneficiary retained a North Carolina attorney to represent her
interests and entered a written contract for payment of that attorney’s fees. That
attorney subsequently represented the beneficiary at a pre-suit mediation in Florida
resulting in a substantial settlement, including a distribution of $1,000,000 the North
Carolina attorney stated was for payment of his fee. The North Carolina attorney on
several occasions confirmed with the client that he was not admitted to the Florida Bar.
Additionally, that attorney had communications with Florida counsel regarding application
                            FLORIDA CASE LAW DEVELOPMENTS 2009
                                          PAGE 40
for pro hac vice admission in the matter, but never actually applied. The trial court ruled
that the written contract was void as against public policy prohibiting unlicensed practice
of law, but awarded the $1,000,000 fee on a quantum meruit basis. The decision was
reversed on appeal, with the Court concluding “to award fees for illegal activities is
contrary to public policy.” In response to the attorney’s argument that the client was
aware he was not admitted in Florida and consented to his conduct, the court further
commented the knowledge “should not permit an unlicensed attorney from [sic]
recovering for illegal activity,” and “allowing an attorney to recover fees for the
unauthorized practice of law is a violation of public policy, irrespective of the private
interests and understandings of the parties.” Finally, the court refused to retroactively
apply the 2005 rules amendments regarding multijurisdictional practice while also
concluding that the attorney’s conduct did not comply with the amended rules. Based
upon its conclusions, the appellate court rejected the claim for the $1,000,000 fee and,
additionally, ordered that the attorney disgorge all prior fees paid to him by the


38)     SPOUSE GIFTS - PRENUPTIAL AGREEMENT - Turchin v. Turchin, 16 So. 3d
1042 (Fla. 4th DCA September 9, 2009) - A surviving spouse filed a claim against her
husband’s estate asserting the right to ownership of proceeds from the sale of two
parcels of real estate which had been held jointly prior to sale. The parcels were
purchased with the husband’s premarital assets, titled in the names of both spouses, and
the proceeds from sale of one of the two properties were placed in a joint checking
account and later withdrawn by the husband prior to his death. The trial court applied
the terms of a prenuptial agreement in holding that the spouse was entitled to only one
half of the proceeds placed in the joint account and none of the proceeds from sale of
the other parcel. The appellate court affirmed, noting that the usual presumption of a gift
between spouses when property is purchased by one spouse and placed in joint names
does not apply when a prenuptial agreement has specific provisions regarding
distribution of jointly held property.

39)    DUTIES OF LIFE TENANTS - Vaughn v. Boerckel, 20 So. 3d 443 (Fla. 4th
DCA October 21, 2009) - This is an appeal from an order dismissing the complaint
against a decedent’s surviving spouse, in her individual capacity, regarding alleged
breaches of her duties as a life tenant of certain property held in trust. The initial
complaint had failed to separate allegations regarding liability as trustee versus liability
individually (and separate from the individual liability for breach of duties as trustee).
Finding that the proposed amended complaint contained sufficient allegations to
establish separate individual liability based upon the spouse’s duties as a life tenant, the
appellate court reversed the dismissal.

Foundation for the Developmentally Disabled, Inc., v. Step by Step Early Childhood
Education and Therapy Center, Inc., 35 Fla. L. Weekly D701 (Fla. 2d DCA March 26,
2010) - A corporation operating a program for disabled preschoolers brought an action
against a charitable foundation attempting to charge rent for use of the property on which
the school is located. The school argued the initial donations to the Foundation were for
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                                          PAGE 41
the purpose of acquiring the land and building the facility in which the school was
operated and successfully convinced the trial court to impose constructive and resulting
trusts on the property for the benefit of the School. The judgment was reversed on
appeal. With respect to the claim for a resulting trust, the appellate court found the
absence of any evidence of actual intent to create a trust relationship with a failure to
execute documents or establish adequate evidence of that intent. Regarding the request
for a constructive trust, the appellate court found no evidence of any fraud, undue
influence, abuse of confidence, or mistake.

                                WILL/TRUST CONTESTS

Wedell, 12 So. 3d 273 (Fla. 4th DCA May 20, 2009) - Weeks prior to her death, the
decedent withdrew funds from her revocable trust and placed them into a joint account
with one of her three sisters. After the decedent’s death, the remaining two sisters (who
had been equal one-third beneficiaries of the decedent’s trust) challenged the
transactions as unduly influenced. The trial court, applying Genova, dismissed the
action with prejudice. The appellate court affirmed, extending Genova to actions
challenging a settlor’s removal of funds from a trust (Genova dealt with challenge to
revocation of a trust). The appellate court rejected an attempted distinction based upon
the fact that Genova was a pre-death action. The court also distinguished between
actions involving challenges to the creation of a trust versus revocation or removal of
trust assets.

42)    VIRTUAL ADOPTION - ADVISORY OPINIONS - McMullen v. Bennis, 20 So. 3d
890 (Fla. 3rd DCA September 2, 2009) - This is an appeal from an order determining a
party was a virtually adopted daughter of the decedent. In the underlying proceedings,
the parties acknowledged the existence of a will and the likelihood of a will contest, but
requested the trial court to first rule upon the virtual adoption question because of its
potential impact upon final distribution of the estate. The appellate court reversed the
determination of virtual adoption, finding that the order was an improper advisory opinion
and that, despite the request by the parties, the court would first be required to determine
whether the will was valid or invalid.

43)     LINEAL DESCENDANTS - BLOOD RELATIVES - Doe v. Doe, 20 So. 3d 892
(Fla. 2 DCA September 4, 2009) - A husband-and-wife established trusts for the benefit
of their children and grandchildren, including language stating that “for all purposes,
hereunder, in determining whether a person is a child or descendent, only children and
descendents by blood shall be included.” After the death of the grantors, and the
subsequent death of their children, proceedings were initiated to determine whether one
of the grandchildren was related by blood to the grantors. Prior to the death of that
grandchild’s father, voluntary DNA testing had conclusively established that she was not
the daughter of the child. Additionally, DNA testing in the trial court proceeding
confirmed that conclusion. Based upon the testing results, the trial court entered
summary judgment against the granddaughter. The appellate court reversed that
determination and remanded for entry of summary judgment in favor of the
granddaughter. In an extensive opinion, the court reasoned that, as a matter of law, the
granddaughter was deemed the child of her father in light of his acknowledgment of
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                                          PAGE 42
paternity and agreement in a marital settlement agreement to support her. The court
further reasoned that the term “descendents by blood” was a legal term of art rather than
a scientific term and that, based upon history of the use of the term, the granddaughter
was not excluded as a recipient.

44)     DEPENDENT RELATIVE REVOCATION - Carey v. Rocke, 18 So. 3d 1266 (Fla.
2 DCA October 23, 2009) - This was an appeal from an order granting an objection to a
petition for administration, in which the trial court voided the residuary clause of the
decedent’s will. The court determined that the residuary estate would pass by intestacy
and admitted the balance of the will to probate. The party challenging the will had
argued the court should apply partial dependent relative revocation and direct that the
property pass pursuant to a residuary clause in the last of the decedent’s Wills that was
not procured through undue influence. On appeal, the court affirmed the decision
striking the validity of the residuary provision, but remanded for evidentiary proceedings
to determine whether the residuary clause in one of the prior Wills is enforceable
pursuant to partial dependent relative revocation.

45)     UNDUE INFLUENCE PRESUMPTION - Estate of Josefina Madrigal v. Madrigal,
22 So. 3d 828 (Florida 3rd DCA November 25, 2009) - In review of a trial court order
finding a presumption of undue influence and determining the sole beneficiary procured
a will through undue influence, the appellate court affirmed, finding the existence of
competent, substantial evidence.


46)     VALUATION OF LIMITED PARTNERSHIP - Zoldan v. Zohlman, 11 So. 3d 982
(Fla. 3 DCA May 13, 2009) - After a prior appeal upholding the validity of a post-nuptial
agreement, the beneficiary of that post-nuptial agreement returned to the probate court
to enforce the terms of that agreement, which had required the decedent to make his
wife’s daughter an equal heir to his three sons. After remand, the estate tendered a 25%
interest in the limited partnership that comprised the corpus of the decedent’s trust, as
well as a cash payment equal to those previously distributed to the beneficiaries. The
daughter rejected those tenders, and instead sought damages for breach of the post-
nuptial agreement. As damages, the daughter claimed a “fair valuation” of the limited
partnership interest was approximately $6.5 million. The estate took the position that a
“fair market valuation” of that same interest was approximately $2.25 million. The trial
court found in favor of the estate’s position and the appellate court affirmed, determining
that the “fair market valuation” was the appropriate method for determining the value of
the share.

47)    WRONGFUL DEATH - APPORTIONMENT - Rust v. Brown, 13 So. 3d 1105 (Fla.
4th DCA July 15, 2009) - In a dispute regarding allocation of proceeds from a wrongful
death claim, the probate court entered summary judgment in favor of the surviving
spouse’s objection to a distribution plan proposed by the personal representative. The
appellate court dismissed the appeal, determining that “an order merely granting a
motion for summary judgment is not a final order because it does not enter judgment for
or against a party.”

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                                         PAGE 43
48)     APPORTIONMENT OF ESTATE TAXES - Boulis v. Blackburn, 16 So. 3d 186
(Fla. 4th DCA August 5, 2009) - A surviving spouse who was not a United States citizen
(and therefore not entitled to a marital deduction) objected to apportionment of estate
taxes to her elective share claim, as well as apportionment upon life insurance and
homestead property. Because the decedent died on February 6, 2001, the trial court
and appellate court applied the old version of the elective share statute in determining
that the language in the decedent’s will was insufficient to require apportionment of all
taxes to the residue of the estate. Because this case involves older statutes, exercise
caution in applying this to any decedents who died after October 1, 2001.

49)     PATERNITY TESTING - Doe v. SunTrust Bank of Tampa Bay, 35 Fla. L. Weekly
D2 63 (Fla. 2d DCA January 29, 2010) - In an action to determine beneficiaries of a trust,
a party claiming to be a descendent of the grantor requested that the court compel the
decedent’s other children to provide DNA samples for purposes of paternity testing. The
guardian ad litem appointed for those children objected to the request, arguing that the
relevant Florida statutes permit testing only of the mother or father, but not other children
of the father. In reversing the trial court’s order compelling production of the samples,
the appellate court rejected the theory that the Florida Statutes “categorically prohibited”
the trial court from requiring the sample. Instead, the court explained the request should
be analyzed pursuant to Florida Rule of Civil Procedure 1.360 dealing with “examination
of persons.” The court explained that the request must “satisfy the ‘good cause’ and ’in
controversy’ requirements of rule 1.360 even though the rule is not a precise fit given
that the petitioners are not being examined, but rather, are being asked to produce
something.” In anticipation of a new request upon remand, the Court further explained
the “good cause” showing would require two elements: evidence that a comparison of
the DNA could produce a result that would tend to prove or disprove the existence of a
genetic link, and a specific showing of need for the samples. Finally, the court discussed
the need to balance between providing the purported heir a fair opportunity to prove
paternity against the privacy interests of the other children.

50)    DAMAGES - DECLINING VALUES - CIMA Capital Partners, LLC. V. PH Cellular,
Inc., 35 Fla. L. Weekly D738 (Fla. 3rd DCA March 31, 2010) - In this action, the plaintiff
sued for breach of contract for failure to deliver shares of stock pursuant to a written
contract. The trial court concluded the defendant had breached the contract, but rather
than awarding money damages directed specific performance of the contract. At the
time of the breach, the shares were worth substantially more than at the time of the final
judgment. On appeal, the court reversed the portion of the judgment requiring specific
performance, instead directing the court to enter a judgment for monetary damages
based upon the value of the stock as of the date of the breach, indicating “the aim of
money damages... is to place the plaintiff in the position he would have been in had the
contract been fulfilled.”

51)    VALIDITY OF MARRIAGE - Hall v. Maal, 35 Fla. L. Weekly D709 (Fla. 1st DCA
March 30, 2010) - In conjunction with a divorce proceeding initiated by the wife, the
husband denied the existence of a valid marital relationship. Four years prior, the parties
were in the process of negotiating a prenuptial agreement prior to a scheduled wedding
ceremony. Because they had not agreed upon the prenuptial agreement, the parties did
not obtain a marriage license but “participated in a full wedding ceremony performed by
                            FLORIDA CASE LAW DEVELOPMENTS 2009
                                          PAGE 44
a minister at the church with numerous family members and friends present, complete
with attendants, music, and flowers, and followed by a very nice reception.” One year
later, the couple obtained a marriage license, but the license was neither solemnized nor
returned to the clerk as required by law. In an earlier opinion, the First District had ruled
that a valid marriage existed (see 34 Fla. L. Weekly D2152). In this rehearing en banc,
the court withdrew its prior decision, concluded that the marriage statutes require “good
faith and substantial compliance,” and determined the failure to solemnize the license
with knowledge that they did not have a valid prior marriage was an absolute bar to the
existence of a valid marriage relationship.

                            FLORIDA CASE LAW DEVELOPMENTS 2009
                                          PAGE 45
                                                  TABLE OF CONTENTS

JURISDICTION/VENUE ................................................................................................... 2

CONSTRUCTION ....................................................................................................................... 2

GUARDIANSHIPS...................................................................................................................... 2

CLAIMS ...................................................................................................................................... 3

APPEALS .................................................................................................................................... 4

FEES AND COSTS ..................................................................................................................... 4

RULES/PROCEDURE................................................................................................................. 6

HOMESTEAD ............................................................................................................................. 7

ATTORNEYS.............................................................................................................................. 9

FIDUCIARY POWERS ............................................................................................................... 9

TRANSFER/OWNERSHIP OF PROPERTY ............................................................................. 10

WILL/TRUST CONTESTS ....................................................................................................... 11

MISCELLANEOUS................................................................................................................... 12




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