When one files a wrongful death case, but is not  the personal representative of the estate, courts may permit the duly appointed personal representative to, later, be “substituted in” for the one who  filed the suit (the “nominal plaintiff.”) The estate of the decedent  is the “real party in interest.”  Put another way, the beneficiaries of the estate are also considered the real parties in interest.   A recent 3rd District Court of Appeal case discusses this. For a copy of the Eisen case, please email michelle@pankauskilawfirm.com.

May someone other than the  duly appointed personal representative of a  Florida decedent’s estate file a lawsuit on behalf of the estate or the estate’s beneficiaries?  Generally, no.  However, if a lawsuit needed to be filed (e.g. to preserve rights  or to file before the statute  of limitations has  “run”) or if one was filed by one without  authority,  it may be possible to permit  the suit to go  forward.  A recent 3rd  District Court of Appeal case suggests that the case may proceed if the duly  appointed personal representative is properly substituted for the person who filed the complaint.  For a copy of this Eisen  opinion, please  email  michelle@pankauskilawfirm.com

Discovery can be voluminous when litigating matters involving wills, trusts, estates and guardianships. Often, the other side may seek documents which they want you to produce, but which may not be required to be produced. As an example of this is when you have documents which are protected by the attorney-client or work product privilege. Knowing when to file a so called “privilege log” is important . A recent case from the 4th District Court of Appeals in West Palm Beach, Florida spoke to this issue, although it is not a matter involving wills, trusts, estates and guardianships. If you would like a copy of the DLJ Mortgage Capital, Inc. v. Fox opinion, email michelle@pankauskilawfirm.com

A personal representative may have great integrity, and be capable of administering an estate competently and efficiently, and may even be “an excellent attorney”…… but nonetheless should not serve if he or she has a conflict of interest and cannot administer the estate in the interest of all the beneficiaries.  For more  on this,  email michelle@pankauskilawfirm.com.

A  personal representative  or executor of an estate may be removed from that fiduciary position if he  or she is “unsuitable.” The 2nd District  Court  of Appeal of Florida recently discussed this  concept in Long v Long, which was issued on April 26, 2013.

A personal representative of an estate, or executor, may be removed if he or she is unsuitable.  A recent appellate opinion discussed this issue and a copy is available by emailing michelle@pankauskilawfirm.com.

No.  A person who is named, or nominated, under a last will to serve as executor, or  personal representative, does  not have an absolute or unfettered right to serve in that fiduciary role.  A probate court has the discretion to appoint someone else to serve as personal representative of an estate (sometimes referred to as an executor in states other than Florida).  The probate court may not appoint someone named in a will to serve as personal representative or executor if that person has a conflict of interest, or is “unsuitable.”  The Second District Court of Appeal recently discussed this in an opinion dated April 26, 2013.  For a copy, email michelle@pankauskilawfirm.com.

The top income tax rate for trusts is 39.4% for un-distributed income over $11,950. Add on another 3.8% medicare tax for un-distributed investment income and you are over 40%. In states like Florida where trustee fees and perhaps other expenses are paid half from income, you can see your that income dwindle. Beneficiaries, and trustees, of trusts should consider asset selection more carefully than ever before. Consider holding long term growth assets in trusts and keeping your bonds, REITS and high yielding stocks in your IRA or qualified retirement plan.

The new American Taxpayer Relief Act of 2012 was signed by President Obama on January 1st of this year and introduces a new transfer tax rate of 40% (gift tax, estate tax and generation-skipping transfer tax). It also permits a taxpayer to give away, during life, or at death, $ 5 million dollars which is indexed for inflation—$5,250,000 in 2013. If you have a spouse who predeceases you, who has not used the full $ 5 million, you may use your deceased spouse’s unused amount. For clients thinking of making small or sizeable gifts during life or at death, consult an experienced estate and trust attorney for your options.