Most parents want to treat their children fairly in their estate planning, but fair doesn’t necessarily mean equal. We all know there are perfectly valid reasons for why a parent might opt to NOT divide the family pie in equal shares, such as compensating a middle-aged child who’s given up part of his or her own life to care for mom or dad. This type of scenario comes up all the time in undue influence…

Prof. John Langbein recently wrote, “In modern American practice the state-operated court system for transferring wealth on death, called probate, is being displaced. The wealth-transfer process has been increasingly privatized, conducted now mostly in the back offices of financial institutions rather than in the probate courts.” Referred to as the “nonprobate revolution” (a term Langbein coined over 30 years ago), this paradigm shift has profound implications for how inheritance disputes are prosecuted.…

If a married couple transfers their tenants by the entireties (TBE) property to a joint revocable trust, have they forfeited its creditor protection shield? That’s the question at the heart of two recent Florida bankruptcy court rulings that came to opposite conclusions! In In re Givans the court concluded that TBE property’s creditor protection shield is lost when it’s transferred to a joint trust. And in In re Romagnoli the court came to the…

If you run a search for the term “undue influence” in Florida’s statutes, you’ll get over 30 hits. But try finding a single statutory definition for undue influence. It doesn’t exist.  What we’re left with instead is case law, which is context specific and open to a broad range of interpretation by whomever your judge (or jury) happens to be. It’s basically a “I know it when I see it” standard.…

A few years ago Jonathan Galler published an excellent article in the Florida Bar Journal explaining the nuts and bolts of how creditor claims are litigated in probate proceedings. The article’s entitled This Party’s Dead! But Will the Lawsuit Survive? Here’s an excerpt: The creditors’ claims process can be broken down into four phases: 1) service or publication of the notice to creditors; 2) the filing of a statement of claim; 3) the filing of…

I recently reported on the Erlandsson v. Erlandsson decision and how the 4th DCA’s opinion highlighted the sometimes gut wrenching ethical challenges attorneys face when representing an adult client who’s cognitively impaired in a way that is clearly affecting his or her decision making. Enrique Zamora, one of South Florida’s premier elder law attorneys, graciously agreed to share his thoughts on the case. [1] Can you give us some background on your experience as…

If ownership of a business asset is contested in an estate, the answer to “who gets it?” might be found in the controlling contract, not the decedent’s will or trust. This key point is often overlooked. For example, in the Blechman case there was a dispute over ownership of the decedent’s 1/2 interest in an LLC. In that case the LLC operating agreement contained the following clause: … in the event of a death of…