March 2009 Archives

March 27, 2009

How to Transfer a horse to a Florida Revocable Living Trust

Often each state will have an association that keeps track of horses and their owners. For example in TN there is the Walking Horse Owners' Association. Thoroughbreds are kept track of in the Jockey Club.
The transfer of ownership for all registered Thoroughbreds may be reported to The Jockey Club by completing a Transfer of Ownership Form or through Interactive Registration at http://registry.jockeyclub.com.

For Florida bread horses, they are kept track of through the Florida Thoroughbred Breeders' & Owners' Association

March 6, 2009

Divorce and effect on Revocable Trust under Florida Law

Often a Florida Revocable Trust is not modified promptly upon a divorce. If the trust is subject to Florida law, Florida Statutes 736.1105 can amend the trust when the prior spouse is named as a beneficiary and the other spouse creates the trust.

736.1105 Dissolution of marriage; effect on revocable trust.--Unless the trust instrument or the judgment for dissolution of marriage or divorce expressly provides otherwise, if a revocable trust is executed by a husband or wife as settlor prior to annulment of the marriage or entry of a judgment for dissolution of marriage or divorce of the settlor from the settlor's spouse, any provision of the trust that affects the settlor's spouse will become void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce and any such trust shall be administered and construed as if the settlor's spouse had died on the date of the annulment or on entry of the judgment for dissolution of marriage or divorce.

If you have a joint trust that was not addressed in a divorce decree or anulent or have recently been divorced, you should Contact a Florida Estate Planning Lawyer to review your trust to make sure that your ex-spouse is treated as per your intentions and not what your documents state.

March 4, 2009

Reducing Florida Estate and Trust Litigation

Jonathan G. Blattmachr, a partner at Milbank, Tweed, Hadley & McCoy LLP, has published "Reducing Estate and Trust Litigation Through Disclosure, In Terrorem Clauses, Mediation and Arbitration" in the Cardozo Journal of Conflict Resolution, 9 Cardozo J. Conflict Resol. 237 (2008).

He suggests six methods to reduce litigation.

1. Advise Inheritors of Inheritance Plans. Especially when children of the decedent are treated unequally, will contests and litigation arise from disappointed feelings of entitlement. Telling the children ahead of time what their shares will be may avoid a later dispute. Blattmachr even suggests that one could enter into a contract (for consideration) with such a person that he or she will not object to the validity of the document. (Of course, as Blattmachr says, "advising a child that he or she will not receive an equal share may have adverse effects even if it prevents litigation after death." You think?)

2. Use a Revocable Trust in Lieu of a Will. Since a revocable trust can be funded and operate during lifetime, it is difficult to contest on the grounds that the individual was unaware of its terms. When the Settlor of the trust dies, there is no need to begin a court proceeding to "prove" the validity of the trust, such as there is for a will.

3. Use an Irrevocable Trust in Lieu of a Will or Revocable Trust. An irrevocable trust is even less likely, in Blattmachr's view, to be challenged than a revocable trust. Irrevocable trusts can be drafted in such a way so that transfers of property to them are not completed gifts. Alternatively, making a transfer that is a completed gift, paying gift tax, and filing a gift tax return disclosing details may be additional evidence that the transfer was truly intended. Again, Blattmachr believes that a lifetime trust that is significantly funded is less likely to be challenged.

4. Use an In Terrorism Clause. If the testator lives in a state that will enforce it, an in terrorism clause (or disinheritance clause) could be used. Or the testator could direct that his will be probated in a state that does enforce such clauses. A lot of trust and estate litigation is not about the validity of the document, it is about its interpretation or about actions taken by the fiduciary. In order to reduce this type of litigation, an in terrorism clause can cause a forfeiture of a beneficiary's interest if such a challenge is made.

5. Use Mediation or Arbitration Provisions. Arbitration or mediation cannot be used with respect to the challenge of a document's validity unless the parties agree to it. Using an in terrorism clause to cause forfeiture if the parties will not participate can be used. This could stop claims that are filed only to harass other beneficiaries or to delay distributions to others. Another approach would be having the parties enter into a contract agreeing to arbitration before the transfer.

6. Use a Condition Precedent to a Bequest as an Alternative Method of Causing Participation in Mediation or Arbitration. Since a person cannot be forced to participate in arbitration or mediation unless the law provides for enforcement, consideration must be given to how to get parties to use these methods. One can use the carrot instead of the stick. Parties can be given a benefit if they consent to use arbitration or mediation instead of resorting to court.


While a Terrorism clause may not be enforceable in Florida it is possible to give the Trustee the ability to flee the jurisdiction and use the laws of a jurisdiction where it can be enforced.

When creating estate plans or trust documents it is important to consider the potential for litigation and whether it should be addressed prior to the death or after the death of the people creating it. While much can be done prior to death to resolve potential disputes and keep communications open, often issues only arise after the death of the trustees.

To discuss your estate plan with a Florida Estate Planning Lawyer and discuss what can be done to reduce the likelihood of estate and trust litigation Contact an estate planning attorney familiar with litigation issues.

March 2, 2009

What Property is Exempt under a Florida Intestate Succession or Intestate Probate?

client-meeting.jpgIn a Florida Probate , if the decedent was domiciled in Florida at the time of his death, the surviving spouse or if there is no surviving spouse, the children shall have the right to a share of the estate of the decedent as provided in Florida Statute 732.403.

Warning: You will waive your right to exempt property under Florida Statute 732.403 if you fail to file a petition to determine exempt property within 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will, or any other matter affecting any part of the estate subject to the Florida Intestate succession and Wills

If you need help with a Florida Probate or figuring out Florida Probate Fees Contact a Florida Probate Lawyer or Attorney for help