I. What is partition?
Partition is the legal mechanism to force the sale or division of real property owned by multiple parties. If co-owners of real property are in disagreement about the sale of jointly owned real property, or if one owner is unfairly bearing the burden of taxes, insurance, and maintenance, the parties can request that a court order the property to be sold or divided. This article will focus on the remedy of a forced sale, and not the less common remedy of division.
II. What is the Uniform Partition of Heirs Property Act, and who does it apply to?
Prior to the enactment of the Uniform Partition of Heirs Property Act (the “Act”) effective July 1, 2020, there was only one available process to partition real property: one or more co-owners files a lawsuit against the other co-owners and asks the court to determine the rights of the parties (e.g., what percentage interest does each co-owner own; how much are they owed for reimbursement of taxes, insurance, and maintenance; etc.) and to order that the property be sold. The court has broad discretion under these “standard” partition laws to fashion an appropriate remedy. In a “standard” partition case, the court does not make a determination as to the value of the property; rather, the value is simply the highest and best offer to purchase the property at public auction.
The Act outlines a new additional procedure for partition actions filed after July 1, 2020, to the extent the property requested to be partitioned qualifies as “heirs property.” The Act defines “heirs property” as real property held in tenancy in common and
- there is no agreement in a record binding all the co-owners which govern the partition of the property, and
- one or more of the co-owners acquired title from a relative, whether living or deceased, and
- either 20% of more of the interests are held by co-owners who are relatives, or 20% or more of the interests are held by an individual who acquired title from a relative, whether living or deceased, or 20% or more of the cotenants are relatives.
The court is required to determine whether the property to be partitioned constitutes “heirs property,” and if so, the Act will apply unless all co-owners agree otherwise.
III. New Procedures Under the Act
The biggest difference between the procedure implemented under the Act and a “standard” partition procedure is that, under the Act, the Court is required to make an adjudication as the value of the property and provide co-owners with the right to buy out the parties requesting partition by sale.
Unless all co-owners have agreed to the value of the property, the court must order an appraisal unless it determines that the cost of an appraisal outweighs its evidentiary value. The court will appoint a disinterested real estate appraiser to determine the fair market value assuming sole ownership of the fee simple estate, and the appraiser will file a sworn appraisal with the court. Within 10 days of the appraisal being filed, the court is required to give notice to the parties with the appraised value and notify the parties they have the right to object within 30 days. Regardless of whether an objection is filed or not, the court is required to conduct a hearing 31 or more days after the notice of appraisal is sent to the parties, and may consider the appraisal and other evidence to make a final determination of the value of the property. At the hearing, the court will also determine any equitable accounting (i.e., how much each party may be owed for taxes, insurance, maintenance, etc.) and appropriately adjust any price, purchase price, apportioned price, buyout, judgment, or partition granted based on the results of the equitable accounting. The court is required to send another notice to the parties after the determination is made.
The court is also required to notify the parties that any co-owner except a co-owner that requested partition by sale may buy all the interests of the co-owners that requested partition by sale. A co-owner has 45 days to advise the court that he or she elects to buy out the interests of the co-owner that requested partition by sale. If one or more co-owners elects to purchase other interests in the property, the court will appropriately allocate interests and values and provide notice to the parties. Then the co-owner who wishes to buy out another co-owner will have 60 days to pay the apportioned buy-out price into the court registry. The court will then enter a judgment of partition reallocating all the interests of the co-owners and disburse the amounts held as appropriate.
If there is not a complete buyout of co-owners’ interests, the court will order a sale of the heirs property on the open-market, unless the court finds that a sale by sealed bids or auction would be more economically advantageous and is in the best interest of the co-owners as a group. Unless the parties can agree on a real estate broker within 10 days of the order of sale, the court will appoint a broker to offer the property for sale in a commercially reasonable manner at a price no lower than the value of the property as determined by the court. The Act provides specific rules and notice procedures concerning any offers for purchase that are obtained by the broker. Note that an existing co-owner may be the purchaser of the entire property and that purchaser is entitled to a credit against the price in an amount equal to his or her share of the proceeds.
IV. Attorneys’ Fees
Although the provisions in the Act do not expressly discuss the right to recover attorneys’ fees from the parties (either through judgment or from the net proceeds of the sale of the property), the Act incorporates the provisions of the “standard” partition laws to the extent they do not conflict with the Act. Thus, a strong argument could be made that recovery of attorneys’ fees is still available in an action to partition heirs property.
If you have questions about the Uniform Partition of Heirs Property Act, please contact our Fiduciary Litigation team to learn more.
When an elderly person seems to be declining or is being subject to elder exploitation, filing for guardianship is something you may want to consider. Guardianship should be filed in situations where no advance directives, such as a durable power of attorney, are in place, or where those directives have been revoked or are not working. Watch as ShuffieldLowman attorney, Stephanie Cook, explains signs of cognitive decline in elders and when you should obtain an attorney to help you file for guardianship.
Many litigation cases are referred to mediation by either the court or one of the parties. Mediation is intended to be a neutral process in which a third party can step in and resolve issues, hopefully avoiding the need to go to court. The mediator facilitates communication and expresses the goals of each party in order to create an amicable solution. Watch as ShuffieldLowman attorney, Loren Vasquez, explains how a mediator, along with our attorneys, can help bring your dispute to a settlement agreement without needing a trial.
Congratulations to attorneys Clay Roesch and Alex Douglas, paralegal Kelly Hammond and the entire ShuffieldLowman team for winning total summary judgment on claims asserted against an estate totaling more than $550,000. The Plaintiff had asserted the estate was liable for the decedent’s alleged breach of a prenuptial agreement and failure to comply with the terms of a final judgment of divorce. Additionally, the Plaintiff had sought a declaration that the decedent was subjected to undue influence or otherwise lacked capacity. The ShuffieldLowman team was able to show that the decedent’s estate planning document complied with the requirements of the prenuptial agreement and final judgment and that there was no evidence of undue influence or lack of capacity. A great result for our client!
Once a trustee accepts trusteeship of a trust, there are certain fiduciary duties to the trust beneficiaries, according to the Florida Trust Code. Some of these fiduciary duties cannot be modified, regardless of how the trust is written.
What does it mean to accept a trusteeship? A written document expressly acknowledging his acceptance is the most obvious example. However, trustees should understand that acceptance of trusteeship can occur in other ways too. This means a trustee is “on the hook” to comply with his fiduciary duties if he accepts trusteeship by substantially complying with a method of acceptance provided in the terms of the trust, or if the trust does not provide a method for acceptance of trusteeship, if he accepts delivery of trust property, exercises powers or performs duties as a trustee, or otherwise indicates acceptance of trusteeship.
Once a trustee has begun acting as a trustee, he has a mandatory duty to administer the trust in good faith and in accordance with the terms and purposes of the trust, and in the interests of the beneficiaries. The Florida legislature made a recent change to the definition of “interests of beneficiaries” to make it clear that the settlor’s wishes, as expressed in the trust, should be considered. This means that beneficiaries generally cannot circumvent a settlor’s wishes by claiming that their interest is best served some other way. For example, if a settlor expressed in the trust that he only wants a beneficiary to receive lump sum distributions at certain lifetime milestones (e.g., graduating from college, getting married, etc.), the beneficiary cannot alternatively demand trust distributions on a monthly basis.
Similarly, a trustee’s mandatory duty of loyalty requires him to administer the trust solely in the “interests of the beneficiaries,” and to avoid conflicts and self-dealing. Actions by a trustee involving a conflict of interest that are not specifically authorized by the trust or the Florida Trust Code, or otherwise approved by the Court, are voidable and may subject a trustee to liability to the trust beneficiaries.
Another fiduciary duty owed by a trustee is the duty of impartiality. This does not necessarily mean that all beneficiaries should be treated equally. Rather, the trustee should consider the facts and circumstances of each request or action, as well as the terms in the trust, when deciding the best way to proceed. A trustee should not favor one beneficiary over another in conflicts that are merely between beneficiaries and do not relate to the validity of the trust. In the case of Barnett v. Barnett, 340 So. 2d 548, 550 (Fla. 1st DCA 1976), a trustee’s litigation fees were denied because the trustee took a partisan stance and argued the side of one or more of the claimants.
In the event someone contests the validity of the trust, the trustee has an obligation to defend the trusts’ validity surprisingly, while there is no statute. A trustee also has a duty to keep clear, distinct, and accurate records. As part of this duty, a trustee should also make sure that he is keeping trust property separate from his own property. If inadequate recordkeeping results in any obscurities or doubts, all presumptions are against the trustee. It is important for trustees to document each decision made and why the decision was made.
Trustees should also consider making and keeping records simultaneously with the actions taken to avoid any doubt concerning accuracy. If a trustee is seeking compensation, he or she must keep accurate time records. If the trust does not specify how the trustee should be compensated, the trustee is entitled to compensation that is reasonable under the circumstances. The burden will be on the trustee to show the reasonableness of his or her fees.
If there is a lack of documentation, there is a presumption of impropriety against the fiduciary. Even saying that a hurricane blew away your records is not an excuse! Really! In Traub v. Traub, the Court held that, because the trustee failed to keep accurate records, even though the records were allegedly destroyed, the burden shifted to the trustee to show that the trust money expended was proper.
Next, a trustee has a duty to keep beneficiaries informed regarding the administration of the trust and to provide accountings. Initially, a trustee must notify qualified beneficiaries of the existence of the trust, identify himself as the trustee, and explain the beneficiaries’ right to receive trust accountings. Other mandatory duties of the trustee are to provide a complete copy of the trust and to account to qualified beneficiaries by providing a trust accounting at least once annually. Additionally, if a qualified beneficiary of an irrevocable trust requests relevant information about the assets, liabilities, or particulars relating to the trust administration, a trustee has a mandatory fiduciary obligation to provide the requested information. However, as long as a trust is revocable, the trustee’s duty is only owed to the settlor (the person who made the trust) of the trust.
Another important fiduciary duty is the duty of prudent administration. There is no “winging it” when it comes to trust administration. A trustee must administer the trust as a prudent person would, by considering the purposes, terms, distributions, requirements, and other circumstances of the trust. Trustees must exercise “reasonable care, skill, and caution.” If a trustee is unsure whether certain action (or inaction) is the best choice, he should investigate and seek all information necessary to make an informed decision. This is good advice even if all beneficiaries consent to the action or inaction– trustees still need to make sure their discretionary actions make sense and are in the best interest of the beneficiaries as defined by the trust.
During the course of prudent administration of the trust, the trustee should only incur reasonable expenses. A trustee should consider what is reasonable for him to do on his own, versus what is better for a professional to do. If a trustee is hiring an outside vendor to perform a task (e.g., accountants, attorneys, etc.), he should negotiate a reasonable fee for the work needed. If a trustee has his own set of special skills, he will be expected to use that set of skills. A corporate fiduciary will be held to a higher standard than an individual. Fair compensation should be based upon the trustee’s particular skills.
When it comes to hiring third parties, a trustee must choose wisely. He should investigate the background of all professionals and agents hired, including attorneys, accountants, investment advisors or other agents. Generally, a trustee may act on the recommendations of such persons without independent investigations.
Finally, when it comes to claims of creditors, a trustee has a mandatory obligation to file a notice of trust upon the settlor’s death. A trustee must also pay expenses and obligations of the settlor’s estate, in the event the assets of the settlor’s estate are not sufficient to satisfy valid creditors’ claims.
Navigating this process can get complicated, so should you have any questions regarding the duties of a trustee, feel free to contact one of our highly-qualified and experienced trust attorneys.
Learn about protecting yourself as a trustee in our other blog post: How to Protect Yourself as a Trustee.
In the event that a problem develops in the trust administration of an irrevocable trust (a trust that cannot be amended by the person who created the trust), or if there is an ambiguity in the trust document itself, or there are allegations by the beneficiaries that the trustee is not serving the interest of the beneficiaries, the first safe harbor to consider is a non-judicial settlement agreement. This is an agreement that is signed by the trustee and the beneficiaries that have a present income or beneficial interest in the trust, and from the beneficiaries that get the rest of the trust (i.e. the “residual” or “remainder” beneficiaries) when the persons who have the present income or beneficial interest die (these persons are also called the “qualified beneficiaries” under the trust code). You may not use a non-judicial settlement agreement to produce a result not authorized by other provisions of Florida’s Trust Code, or that could not be properly approved by the court. These types of agreements may cover:
- The interpretation or construction of the terms of the trust;
- The approval of a trustee’s report or accounting;
- The direction to a trustee to perform, or refrain from performing, a particular act; or
- The liability of a trustee for an action relating to the trust.
Another safe harbor is to obtain the consent and release from all of the qualified beneficiaries. When obtaining a consent and release from the qualified beneficiaries, the trustee should give full disclosure of the relevant facts. Alternatively, a trustee may ask the court to provide the trustee direction which is also called “declaratory relief” or “declaratory action”. Any interested person can invoke the court’s jurisdiction to obtain declaratory relief, and the proceeding can relate to construction, validity, administration, or distributions of trust. A declaratory action can also be utilized to have the court review a trustee’s fees, review and settle interim trust accountings or final trust accountings, determine any right or duty of the trustee, seek instruction by the trustee, or determine any other matters involving trustees or beneficiaries.
For instance, let’s say a family relative dies and leaves a trust for you and your siblings so you can pursue a “college or higher education degree” and the bank is the trustee. Let’s also assume that your child wants to go to a technical school to become a mechanic and wants the trust to pay for this education. The trustee may raise a concern that the technical school will not result in a “college degree” and therefore could file an action with the court to ask the court to interpret the trust or permit the trustee to use trust funds to pay for the technical training. The trustee alternatively could obtain the written consent of all of the trust’s qualified beneficiaries (assuming they are of age or have their parent’s consent) to use the trust funds to pay for the technical training.
Finally, a trustee who is considering exercising a discretionary power may seek judicial approval before acting if there is concern that a beneficiary may object. In such circumstances, the trustee should file a petition that describes the proposed exercise or non-exercise of the discretionary power and sets forth sufficient information to inform the qualified beneficiaries of the reasons for the proposal, the facts upon which the trustee relies, and explains how other beneficiaries will be affected. The burden is then on the objecting beneficiary to show why the proposed exercise or non-exercise of the power by the trustee is an abuse of the trustee’s discretion.
For example, if a trustee is allowed to distribute trust funds in any amount that the trustee deems just and proper for the benefit of three beneficiaries, and one beneficiary has a greater financial need because of a disability than the other two, the trustee before making the distribution can seek judicial approval to favor the beneficiary that has more financial needs over the other two beneficiaries. Otherwise, without court approval or consent of the beneficiary, the trustee could be exposed to allegations that the trustee inappropriately favored one beneficiary over another and otherwise that the trustee breached his or her duty of good faith.
The facts and circumstances governing trust administrations differ on a case-by-case basis. ShuffieldLowman has an experienced team of trust attorneys that can guide trustees through the trust administration process to ensure they are complying with their mandatory fiduciary duties. Our attorneys can also assist trust beneficiaries with understanding their rights and recognizing breaches of fiduciary duty by a trustee who has veered off course.
Learn more about the duties of a trustee in our blog post: Understanding the Fiduciary Duties of a Trustee.
Under Florida law and as a matter of public policy, settlements are highly favored and will be enforced whenever possible. Settlement agreements are governed by the rules of contracts, and the existence of an enforceable contract is contingent upon the Parties’ agreement to the essential terms of the agreement. What happens when you think you have a settlement agreement, but the other party refuses to sign a formal written settlement agreement?
Is a formal written agreement required to enforce a settlement in Florida?
Creating an enforceable settlement requires agreement to the essential terms of an agreement. What constitutes a material or essential term varies from case to case. Nevertheless, once the parties reach an agreement on the essential terms, a formal written agreement is not required to enforce a settlement. Numerous courts in Florida, both state and federal, have enforced agreements reached through a series of emails between attorneys.
For example, in Warrior Creek Development, Inc. v. Cummings, 56 So. 3d 915 (Fla. 2d DCA 2011) the attorneys involved negotiated a settlement over e-mail. Their emails set forth the “essential and material terms” of the agreement between the parties. The attorneys subsequently drafted a written settlement agreement, which one party refused to sign, stating “the deal is off”. The Second District Court of Appeals affirmed the trial court’s order enforcing the settlement, finding that the “parties had agreed upon all of the essential and material terms for settlement and that those terms were reflected in the November e-mail. Similarly, in Miles v. Northwestern Mut. Life Ins. Co., 677 F. Supp. 2d 1312, 1315-1317 (M.D. Fla. 2009) the Court held that a written settlement agreement is a mere formality where the parties act with the intent to follow the settlement, and the written agreement is essentially what was already agreed upon.
Negotiating a settlement over email – the considerations
These cases illustrate the risks inherent in negotiating a settlement over email. A party who wants to avoid being bound in the absence of a written settlement agreement should consider making an offer conditional upon the execution of a mutually agreeable settlement agreement and release. Conversely, setting out the essential terms of an agreement in written communication can result in a settlement that is enforceable against a party who gets cold feet.
COVID-19 closes Florida courts – Is it time for a settlement agreement?
As COVID-19 closes courts across Florida and the entire Unites States, litigants may be more interested in settling a dispute for a couple of reasons. First, litigation is a lengthy process with an average dispute taking 1-3 years if there is no settlement. Now, with COVID-19, timelines have been extended significantly and will prolong the litigation process further with indefinitely postponed trials.
This pandemic has also caused many to feel uncertain when it comes to their financial status and job security. Litigation is expensive, time-consuming, and stressful. By settling, you can avoid costly attorneys’ fees and most likely will receive financial compensation sooner than you would by going to court.
If you have questions on enforcing a Florida settlement agreement or entering into a settlement, you can contact our fiduciary or commercial & civil litigation teams.
If you are a beneficiary of a trust or an estate and you have a trustee not doing a good job, you may be able to remove him or her under Florida law. ShuffieldLowman can assist with fiduciary issues such as self-dealing, favoring one beneficiary over another, failure to give an accounting at least once a year or failure to keep you reasonably informed. If the trustee is not fulfilling their fiduciary duties or has committed a serious breach you are entitled to seek their removal under Florida Law. You may be able to recover your attorneys’ fees, as well. Watch as fiduciary litigation attorney, Alex Douglas, explains the steps to remove a trustee or personal representative.
One of the most important decisions you will make when you do your estate planning is choosing who will be in charge of your estate or your trust to administer your affairs after you’re gone. Whether that person is your child or children, trusted friend, or a bank, ShuffieldLowman can assist with your planning decisions in order to avoid unnecessary potential legal fees and litigation. Watch as ShuffieldLowman fiduciary litigation attorney, Alex Douglas, explains the importance of choosing a fiduciary for your estate planning documents.
In honor of Elder Abuse Awareness Day on June 15th, ShuffieldLowman’s Alex Douglas was recently featured on The Florida Bar Podcast to speak about different forms of elder abuse and what people can do to protect themselves and their loved ones. Listen to this episode to hear about the different resources available, including the elder abuse hotline, and to learn about the complexities of guardianship. Alex practices in the area of fiduciary litigation with extensive experience in trust, probate and guardianship litigation.
To listen to the podcast visit the Legal Talk Network website: https://legaltalknetwork.com/podcasts/florida-bar/2018/06/2018-annual-florida-bar-convention-elder-law-update/