Florida’s Trust Code consists overwhelmingly of default rules that settlors are free to opt out of or modify anytime. There are, however, a core set of rules listed in F.S. 736.0105 that are mandatory; you can’t draft around them. For example, under F.S. 736.0105(2)(e) your trust agreement can’t eliminate the “power of the court to take such action and exercise such jurisdiction as may be necessary in the interests of justice.” This rule is taken…

To be clear, under Florida law there’s no such thing as a separate legal entity known as an “estate.” If you want to sue, get paid from, or transfer property to an “estate,” all of that needs to happen via a court-appointed personal representative (“PR”). You’d be surprised how often this basic point gets overlooked (see here, here). In the De La Riva case linked below, the 4th DCA provided this short summary…

Deeding property “into” and “out” of trusts is the kind of bread and butter work trusts and estates lawyers do all the time. But just because deeds-to-trust are commonplace, doesn’t mean you don’t have to sweat the details. Skip the basics of F.S. 689.07, and the property you thought was going into your trust will instead find itself in the middle of someone else’s lawsuit (see here). On the other hand, ignoring the…

Under the Florida Uniform Disposition of Community Property Rights at Death Act, married couples moving to Florida from community property jurisdictions bring their testamentary community property rights with them. This includes couples moving to Florida from any of our nine U.S. community property states, and also includes those moving to Florida from anywhere else on the planet that’s a community property jurisdiction (think virtually all of continental Europe and Latin America). These valuable…

In Florida we don’t have jury trials in will contests. But if you’re creative and the facts line up just right, your inheritance case could be decided by a jury if it’s framed as a “tortious interference with an expectancy” claim. The question then becomes, does it matter? Short answer: YES! If you think of will contests as proxies for all forms of inheritance litigation, there’s plenty of data comparing the results of jury and non-jury…

Prenuptial agreements get litigated all the time in probate proceedings. The challenge in these cases (as in all inheritance litigation) is to not let yourself get caught up in your client’s wishful thinking. Just because a certain outcome seems really unfair doesn’t mean your probate judge will (or should) rule in your favor. This may seem like an obvious point, but you’d be surprised how hard it can be not to fall into this trap…