Probate Trust & Guardianship Litigation

Complex & Disputed Probate, Trust & Guardianship Litigation

In this area of practice, we assist clients in all facets of will, trust and guardianship contests and defense of fiduciaries and beneficiaries, including representation of beneficiaries, fiduciaries, and other interested persons in disputes relating to wills, trusts, guardianships, probate administration, and related matters, including issues, contests and challenges relating to:

+ Undue influence
+ Incapacity
+ Abuse by caregivers and elder abuse
+ Breach of fiduciary duties
+ Will and trust construction
+ Trust modifications, revocation, and termination
+ Fiduciary surcharge and removal
+ Prosecution and defense of creditor matters
+ Improper application of trust standards of distribution or division
+ Theft and misappropriation
+ Breach of trust issues
+ Failure to diversify or properly invest or manage trust or estate assets
+ Resolution via settlement negotiations, mediation, arbitration, or trial

Mediation Services

Our litigators regularly are employed as mediators to assist disputants in the resolution of their disputes.

Estate And Guardianship Representation And Administration

In this area of practice, we assist persons and entities in all aspects of probate and guardianship administration, including:

+ Representation of fiduciaries, estates, beneficiaries, and claimants in the probate administration process
+ Representation of guardians, incapacitated persons, and other interest persons in guardianship proceedings and administration
+ Income and transfer tax planning for estates and guardianships
+ Estate tax return preparation and review and guidance of other tax filings
+ Post-mortem tax planning, including Section 303 and 6166 issues, and creditor controversies

Trust Administration & Representation

In this area of practice, we assist persons and entities in all aspects of trust administration, including:

+ Representation of fiduciaries, beneficiaries, and other interested persons in trust administrations
+ Guidance on ongoing duties and obligations and tax filings
+ Tax planning for trusts and review of tax filings
+ Estate tax return preparation

Recent News

15 May 2023

Jenna Rubin presents at ABA National Symposium

On May 12, 2023, Jenna Rubin presented at the 35th Annual Real Property Trust and Estate Law Section of the American Bar Association’s National CLE Conference in Washington DC. She took part in a panel discussion on “Black Tie Optional: The Eroding Formalities to Creating a Valid Will.”

24 Feb 2022

Article by Charles and Jenna Rubin featured on cover of Florida Bar Journal

An article written by Charles Rubin and Jenna Rubin is featured on the cover of this month’s Florida Bar Journal and can be found here.

27 Dec 2021

Jenna Rubin appointed to ACTEC Fiduciary Litigation Committee

Gutter Chaves is pleased to announce that Jenna G. Rubin has been appointed to the Fiduciary Litigation Committee of the American College of Trust and Estate Counsel (ACTEC) for the 2022-2023 year.

14 Dec 2021

FBAR Case Reversed – Nonwillful Filing Penalties Based on Number of Accounts Not Reported

Back in 2000, I wrote here about a case where a taxpayer did not report multiple foreign accounts on an FBAR. The question for the court was whether the $10,000 penalty for a nonwillful failure to file meant $10,000 per return not filed, or $10,000 per account not reported on the return. For . . .

22 Nov 2021

Of Spousal Gifts and the Substance Over Form Doctrine

U.S. spouses each have a unified credit that allows for substantial gifting to third parties without requiring the payment of gift tax. What happens if one spouse has assets to be gifted away, but that spouse does not have sufficient remaining unified credit exemption to cover the gift and wants to use the exemption of the other spouse?

At times, the spouses can agree to split the gift for gift tax purposes, which treats 1/2 the gift as coming from each spouse. This allows the unified credit of the spouse not making the gift to be used to avoid gift tax on the 1/2 that such spouse is treated as making. However, it can be an imperfect solution if the spouse with the assets does not have enough unified credit to offset his or her 1/2 of the gift.

Oftentimes, the parties may contemplate having the party with the assets transfer them by gift to the other spouse (a tax-free gift under the gift tax marital deduction), and then the receiving spouse makes a gift to the third party applying his or her own unified credit. The question in these circumstances is whether the IRS will respect the transaction and allow the receiving spouse’s unified credit to be applied to the gift to the third party, or whether it would seek to apply the “substance over form” doctrine to treat the gift as coming from the spouse who transferred the assets to the other spouse and does not have enough unified credit to fully cover the gift.

This is not a black and white issue. On one end of the spectrum. . .

Probate Trust & Guardianship Litigation

tax, estate planning, probate, trust & guardianship law and litigation, and related commercial matters