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Hypothetical

My mother recently passed. A week ago, I discovered that my sister had taken nearly all my mother's assets (without consent) and used them for herself and her own children, all in my mother's final two years alive. Is there any hope for justice? 

The vulture

Unfortunately, many people (more accurately, vultures) exploit close relatives faltering in their final years, when they're most vulnerable, by preying on their hard-earned assets.

A vulture may strictly control the relative's life, carefully managing, and sometimes even choreographing, the victim's remaining days with a specific aim: to create pretexts, for later use, in defense of the vulture's misappropriations. Of course, no one enjoys being used as a pawn or prop, particularly at the end of his/her life. But a vulture generally doesn't care and is happy to strip any remaining joy left in the victim's life if doing so advances a scheme.

Worse yet, vultures tend to cloak themselves in “caretaker” or “fiduciary” roles, which may (i) allow them access to victims' assets; and (ii) create openings for sham rationales, including those for taking actions that, in substance and effect, are simply misappropriations.⁽¹⁾

Tragically, a victim may die with the vulture's actions and schemes as his/her last experience. To the (hypothetical) questioner, does this sound familiar?  Left unresolved, these events can create an unbearable injustice.

The response

Instinctively, you may want to challenge every instrument that was purportedly executed during the period in question—i.e., when the vulture held key access. That may or may not be a worthwhile commitment of time and resources. Regardless, depending on the facts, you may also consider the following options, among others, in Florida:

1. Removal:

If the vulture is serving as personal representative (“PR”), ask yourself whether there is cause for removal. Cause may include the PR “[h]olding or acquiring conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole.” § 733.504(9), Fla. Stat. For instance, consider an estate with negligible liquid assets. Suppose the vulture has been charged with criminal exploitation of the deceased relative, but he/she has pleaded not guilty and is opposed to resigning as PR. Further assume that any other PR would, in all likelihood, initiate a civil action against the vulture for the same exploitation. This action would be independent of, but founded on the same conduct and statutory language as, the criminal action. If successful, the civil action could result in a substantial treble-damage judgment in favor of the estate against the vulture. Now query whether it is appropriate for the vulture to serve­­­ as PR...

2. Report criminal actions of vulture:

Some people are reluctant to get “the state” involved on these matters. They observe that law enforcement is not always keen to investigate “family disputes,” particularly when (1) the victim is deceased, and (2) the matter can be raised through civil or probate proceedings. But, then again, police departments and sheriff's offices are not legislatures. Indeed, when the Florida Legislature broadly defined exploitation, it did so for a reason. And if a family member or loved one doesn't inform law enforcement, the vulture's conduct may slip under the radar of criminal justice.

When talking with law enforcement, be focused and practical regarding potential financial crimes. Understand there may be discretion in investigating—and perhaps, down the road, prosecuting—certain matters. Also, after you initially report the matter, you should give the detective(s) and other personnel time and space to investigate. Similarly, it's critical that you respect boundaries when conversing with law enforcement and/or prosecutors. Disclosure of information relating to the vulture's actions may be appropriate, but you should never conflate civil or probate proceedings of which you're a part with the criminal action. There are key differences in the objectives and premise of each proceeding.

However, that doesn't mean benefits can't accrue from a vulture's conviction:

• • Forfeiture for exploitation: A conviction may lead to the vulture being stripped of rights to estate property and certain non-probate property and transfers. See § 732.8031, Fla. Stat., including presumptions for “qualifying convictions,” etc.⁽²⁾ 

• • Potential collateral estoppel under § 772.14, Fla. Stat.: Of course, you should never rely on a criminal proceeding to advance your own matter. Still, keep an eye on it because its final judgment or decree could ultimately spare you significant time and expense in a parallel civil action. When applicable, this statute removes the doctrine of “mutuality,” by treating a civil-action plaintiff as if he/she were a “party in the criminal action.” As a result, you may be able to avoid litigating significant matters that were previously adjudicated.

3. Civil Action(s):

Depending on the facts, numerous causes of action may be available. And often, when dealing with fraudsters, you won't learn the full extent of scheme(s) until after you file an initial complaint and begin discovery. For instance, tracing cash flows, investigating related parties and purported vendors, and deposing witnesses may unearth new theories of liability and potential defendants. As hinted, there may be benefits in seeking civil relief for a criminal offense, when available, such as through § 772.11, Fla. Stat. (Doing so may also induce headaches for vultures when it comes to their privilege against self-incrimination.)

Conclusion

Ultimately, it's essential that, in considering the above options and others, you engage competent counsel. Even then, you'll need to accept the toll that these matters can take on litigants over time. Not to mention, even if you obtain a large judgment for the estate, post-judgment collection from vultures, who may resort to fraudulent transfers, may become needlessly time-consuming and expensive. Generally, no one can guarantee “your” vulture will end up in prison, with a forfeited inheritance, and on the losing end of a recoverable civil judgment. But then again, in seeking justice, you may find that inaction carries its own “costs.”

The appropriate response to a vulture can involve a tangled web of fiduciary issues, practical considerations, and other case-specific circumstances. Regardless, seeking counsel and becoming fully informed is a critical first step.

(1) One might question how strict duties owed to a relative could ever allow a vulture more flexibility to shape a fraudulent narrative. It's complicated, but in the firm's view, the fraudster often attributes self-serving actions to valid exercises of authority. I.e., somehow, in an alternate universe, these actions were necessary to honor the relative's intentions or interests and, thus, to carry out such duties. By changing the inquiry's focus, the fraudster creates a practical dilemma for those who genuinely care(d) about the relative: the deceased relative is not alive to contest the carefully designed stories and pretexts. In most proceedings, a party contesting a vulture's actions faces a difficult burden, particularly if the challenger must, at least initially, pay attorney fees and costs out of pocket.

(2) The firm applauds Florida in expanding the historically narrow “slayer statute.” Even so, language in the forfeiture-by-exploitation rule, effective July of 2021, requires legislative clarification. For instance, the causation (or “contributed to by”) determination, which a court must make when there is no “qualifying conviction,” is awkward and vague. More generally, although inquiry into a death's causation is well suited for a (traditional) “slayer” case, its role in forfeiture by exploitation seems misplaced. In addition, the non-probate provisions need further definition and guidance regarding their scope and implications. To boot, the “claim” notice requirement in subsection (6) is unrealistic, and it overly protects financial institutions, particularly given the swift post-death transfers that  banks often make for non-probate assets. Such institutions may otherwise have knowledge of specific grounds on which the rule may reasonably be invoked. (The standard of “knowledge,” for this purpose, should be similar to that in UCC § 1-202.) In these instances, they shouldn't be able to fall back on 2-business-day “claim” notice. Also, understandably, the statute protects third-party purchasers without notice. However, subsections (4)-(5) fail to meaningfully address the mechanics of “clawback” situations. After all, the timing of a successful prosecution will often follow that of tainted payments and distributions. Regardless, the rule, though flawed as written, promises to hold exploiters more accountable, and it unquestionably will create more just outcomes.

Content posted November 10, 2023.