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Attacking a Florida Will or Trust: do you have to renounce your interest in the estate or trust?

Uncategorized Sep 2, 2013

To object to a will or a trust as invalid, that is, to attack the validity of a will or a trust in Florida, and have it (them) declared void, one must consider the renunciation rule.  Generally, one cannot also receive a benefit from a will or a trust in Florida, and still attack that will or trust as invalid.  You must renounce it.  The renunciation of that will or trust in Florida may be conditional: such as conditioned on your success in that trust litigation or your probate litigation contest.  However, a recent case, Fintak v. Fintak, decided August 23, 2013 by Florida’s Second District Court of Appeal, suggests that this rule is not applicable when the grantor or creator of the trust, is the one who is trying to set the trust aside. This case held that a settlor or grantor or creator of a trust who is also a beneficiary is not required to renounce his interest in the trust to attack its validity—even where the settlor received money and distributions from the trust prior to attacking it.  So, the renunciation rule is applicable, at least in the Second District in Florida, to only attacks on trusts where the trust is created by a third party for the beneficiary (i.e. it is not a self-settled trust).   Advocate hard. Litigate strong.