CopyCited 8 times | Published | Florida 2nd District Court of Appeal
...ation to perform, or confirmation of, a sale of an incompetent's property was to be by petition stating the facts showing the expediency or necessity for the action, a description of any property involved, and the price and terms of the transaction. Section 744.457, Florida Statutes (1977), provided in part as follows: (1)(a) All legal or equitable interests in real and personal property owned as an estate by the entirety by an incompetent for whom a guardian of the property has been appointed may be sold, transferred, conveyed, or mortgaged in accordance with s....
CopyCited 4 times | Published | Florida 4th District Court of Appeal | 2014 WL 940700
...The designation of the account as a tenancy by the entireties was significant in this case because, where the ward is an incapacitated spouse, Chapter 744 appears to condition access to an entireties account on the consent of the spouse who is not incapacitated. Section 744.457(l)(a), Florida Statutes (2012), provides that [a]ll legal or equitable interests in property owned as an estate by the entirety by an incapacitated person for whom a guardian of the property has been appointed may be sold, transferred, conveyed, or mortgaged in accordance with s....
...744.447, if the spouse who is not incapacitated joins in the sale, transfer, conveyance, or mortgage of the property. (Emphasis added). Without the application of some equitable principle that would override the language of the statute, an estranged spouse would be able to block payment of a ward’s necessary expenses under section 744.457(l)(a), even though the ward was the source of the funds in the account and even though each spouse is “seized of the whole” of property held in a tenancy by the entireties account....
...Because the Oppenheimer Account was a joint tenancy with right of survivorship, the court could authorize the Guardian to access it to pay authorized expenses, including the Guardian’s fee and the fees for the Guardian’s attorneys. See §§
744.397(1),
744.457(l)(b), Fla....
...7 The Legislature Should Consider Amending Section 7kh-h57(l)(a) to Allow Access to a Tenancy By the Entireties Bank or Brokerage Account for the Necessary Expenses of the Ward, Even Where the Spouse of the Ward Does Not Agree Although not crucial to the decision in this case, section 744.457(l)(a) could be read to block a guardian’s access to an entireties bank or brokerage account without the consent of a ward’s non-incapacitated spouse....
...estate by the entireties”; it provides that such interests in property may not be “sold transferred, conveyed, or mortgaged” unless “the spouse who is not incapacitated joins in the sale, transfer, conveyance, or mortgage of the property.” § 744.457(l)(a), Fla....
CopyCited 3 times | Published | Florida 2nd District Court of Appeal | 2000 WL 801133
...Bald of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., Sarasota, for Appellee. WHATLEY, Judge. Marion Winnifred Clarke appeals the order denying her motion to compel her husband's guardian to distribute to her one-half of payments collected on certain intangible property pursuant to section 744.457(1)(c), Florida Statutes (1999)....
...Clarke's request for payment of one-half of the amount he has collected in dividends on stocks and in interest and principal payments on mortgages because the instruments were titled solely in Mr. Clarke's name. The trial court concurred, ruling that section 744.457(1) applies only to property held as tenants by the entireties, and therefore, subsection 744.457(1)(c) is only applicable to intangible property held as tenants by the entireties. Section 744.457(1), entitled "Conveyance of various property rights by guardians of the property," provides as follows with regard to situations where one spouse is incapacitated: (1)(a) All legal or equitable interests in property owned as an estate...
...tended." State v. Mark Marks, P.A.,
698 So.2d 533, 541 (Fla.1997) (quoting Department of Prof'l Regulation v. Durrani,
455 So.2d 515, 518 (Fla. 1st DCA 1984)). Thus, the trial court erred in inserting a term, to wit: tenants by the entireties, in subsection
744.457(1)(c) that the legislature excluded....
...Rooney, Inc.,
654 So.2d 911, 914 (Fla.1995) ("When the legislature has used a term... in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded."). Mrs. Clarke also argues that the term "securities" in subsection
744.457(1)(c) includes stocks....
...Section
731.201(31) of the probate code refers to section
517.021 for the definition of security, and subsection
517.021(19)(b) provides that a security includes "a stock." Accord Black's Law Dictionary 1215 (5th ed.1979) (defining "securities" to include stocks). Accordingly, we conclude that pursuant to section
744.457(1)(c), Mrs....
CopyPublished | Florida 5th District Court of Appeal
...with the guardianship court’s
approval.” (citing Cohen v. Cohen,
346 So. 2d 1047 (Fla. 2d DCA 1977))).
Moreover, even if a property transaction has been rescinded, the court
cannot then allocate the property contrary to established legal principles.
Section
744.457(1)(a) provides:
All legal or equitable interests in property owned as
an estate by the entirety by an incapacitated person
for whom a guardian of the property has been
appointed may be...
..., conveyed, or
11
mortgaged in accordance with section
744.447, if the
spouse who is not incapacitated joins in the sale,
transfer, conveyance, or mortgage of the property.
§
744.457(1)(a), Fla. Stat. (2021) (emphasis added). As a result, section
744.457(1)(a) requires the spouse who is not incapacitated to consent before
an entireties interest in property can be transferred or conveyed. Romano v.
Olshen,
153 So. 3d 912, 921 (Fla. 4th DCA 2014) (noting that section
744.457(1)(a) is “consistent with the Florida view of entireties ownership, that
the husband and wife hold the property ‘per tout,’ Bailey v....
