Proper Use Of Gifting Powers Under A Durable Power Of Attorney

By: David M. Garten, Esq.

Proper Use Of Gifting Powers Under A Durable Power Of Attorney

Chapter 709 entitled “Powers Of Attorney And Similar Instruments” (effective October 1, 2011) reads in relevant part:

709.2202 Authority that requires separate signed enumeration.—

 (1) Notwithstanding s. 709.2201, an agent may exercise the following authority only if the principal signed or initialed next to each specific enumeration of the authority, the exercise of the authority is consistent  with the agent’s duties under s. 709.2114, and the exercise is not otherwise prohibited by another agreement or instrument:

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  (c) Make a gift, subject to subsection (3);

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 (2) Notwithstanding a grant of authority to do an act described in subsection (1), unless the power of attorney otherwise provides, an agent  who is not an ancestor, spouse, or descendant of the principal may

RIGHTS THAT TERMINATE AT DEATH

ARTICLE: RIGHTS THAT TERMINATE AT DEATH 

The purpose of the article is to explore those rights that terminate at death, i.e., those rights that

are not enforceable either by or against the decedent’s estate.

PRIVACY RIGHTS:   Privacy rights are personal and die with the individual. See Nester v.

Posner, 857 So. 2d 953 (Fla. 3^rd DCA 2003).  In  Nester, the  decedent's employees signed

confidentiality agreements which barred the disclosure of any information regarding the

decedent’s private life, finances, state of mind, health, etc.  One of the employees was a witness

to the decedent's will. When the decedent’s grandchildren sought information from the employee

concerning the decedent's testamentary capacity and possible undue influence, the PR sued the

grandchildren for tortious interference with the employee's confidentiality agreement.   The

grandchildren moved to have the confidentiality agreements nullified so they can conduct

Who Is An Interested Person In Probate?

By: David M. Garten, Esq.

ARTICLE: WHO IS AN “INTERESTED PERSON” IN PROBATE?

Have you ever represented a client in a probate dispute? If so, then chances are you had to
determine whether one or more parties to the dispute had standing. Only an “interested person”
has standing to pursue any available probate remedies. The purpose of this article is to provide
concrete examples of how case law and Florida Statutes define an “interested person” in probate
and testamentary trust proceedings. Whether this term applies to non-testamentary Trusts is
beyond the scope of this article.

I. STATUTORY DEFINITION OF AN “INTERESTED PERSON”:

Sec. 731.201(23), Fla. Stat. defines the term "interested person" as:

[A]ny person who may reasonably be expected to be affected by the outcome of

CAN A PERSONAL REPRESENTATIVE TAKE POSSESSION OF PROTECTED HOMESTEAD PROPERTY

By: David M. Garten, Esq

CAN A PERSONAL REPRESENTATIVE TAKE POSSESSION OF PROTECTED                                                                     
HOMESTEAD PROPERTY?

Effective January 1, 2002, if  homestead  property is not occupied by a person who appears to have an interest in the property, the personal representative is authorized, but not required, to take possession of that property for the limited purpose of preserving, insuring, and protecting it for the person having an interest in the property, pending a determination of its homestead status.

Do I have to File A Claim

By: David M. Garten, Esq.

ARTICLE:  DO I HAVE TO FILE A CLAIM?

The purpose of this article is to provide concrete examples of when it is necessary to file a claim

against an estate, and to clarify the “trust” exception to the claims statute.  

I.  "CLAIM" DEFINED:

Sec. 733.702, Fla. Stat. defines a "claim" as a demand against the decedent's estate that arose before

the death of the decedent, even if the claims are unmatured, contingent, or unliquidated.  Therefore,

if the demand or expense was incurred by your client post-death, it may not be necessary to file a

claim.

Proper Venue (Jurisdiction) for Proceedings Against a Foreign Trust

By: David M. Garten, Esq.

Article: Proper Venue (Jurisdiction) for Proceedings Against a Foreign Trust 

Sec.736.0205, Fla. Stat. reads:

736.0205 Trust proceedings; dismissal of matters relating to foreign trusts.--Over the objection of a party, the court shall not entertain proceedings under s. 736.0201 for a trust registered, or having its principal place of administration, in another state unless all interested parties could not be bound by litigation in the courts of the state where the trust is registered or has its principal place of administration. The court may condition a stay or dismissal of a proceeding under this section on the consent of any party to jurisdiction of the state where the trust is registered or has its principal place of business, or the court may grant a continuance or enter any other appropriate order.

Homestead - Registered Aliens Under A Temporary Visa

By: David M. Garten, Esq.

Art. X, § 4, Fla. Const. provides in pertinent part:

SECTION 4. Homestead; exemptions.—

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:

Is an Attorney allowed to render fees for an Estate?

 By: David M. Garten, Esq.

ARTICLE: Attorney's Fees For Rendering Services To An Estate

Sec. 733.106(3) provides: “Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” This statute is not restricted to services that bring about an enhancement in value or an increase in the assets of the estate, but also includes services that are successful in effectuating the testamentary intention set forth in the will, that prevent the appointment of a personal representative, or that obtain the removal of a personal representative.

What is Active Procurement?

By: David M. Garten, Esq.

ARTICLE: “Active Procurement” Defined

This is the fourth and final article in a four part series pertaining to undue influence. There is a presumption of undue influence when the undue influencer: (1) occupies a confidential relationship with the decedent; (2) is a substantial beneficiary under the will; and (3) was active in procuring the will.

In In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court listed several criteria to be considered in determining active procurement. The seven “Carpenter factors” are:

SO YOU WANT TO CONTEST A WILL? A SIMPLE ROADMAP THROUGH THE LITIGATION MAZE

By:  David M. Garten, Esq.

SO YOU WANT TO CONTEST A WILL? A SIMPLE ROADMAP THROUGH THE LITIGATION MAZE

I.   REASONS TO CONTEST A WILL OR TRUST

Your mother, who was suffering from Alzheimer’s disease, leaves all of her money to her male

nurse. Your brother unduly influences your father into changing the title on his brokerage accounts

to joint tenants with right of survivorship with your brother.  Your 90 year old father amended his

Trust one week prior to death and stated that he left you $1 “for reasons best known to my son”. 

What reasons?  What happened between the time you last saw your father and the date he signed

the Trust amendment?