Third District Court of Appeal State of Florida
Opinion filed September 10, 2025. Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D24-1367 & 3D24-1426 Lower Tribunal No. 23-5847-CP-02 ________________
Antonio Izquierdo & Teresita Pena, etc., Appellants,
vs.
Carlos Izquierdo, Appellee.
Appeals from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
Gastesi Lopez & Mestre PLLC and Raul R. Lopez, and Jennifer M. Vazquez; Fred E. Glickman, P.A., and Fred E. Glickman, for appellants.
The Hachar Law Group, and Michael McCormick, Jr., and Kendrick Almaguer, for appellee.
Before FERNANDEZ, LOGUE, and LINDSEY, JJ.
LINDSEY, J. Appellants Antonio Izquierdo and Teresita Pena, Antonio’s wife,
appeal from a final order dismissing Antonio’s Adversary Petition in the
underlying probate matter.1 The Petition sought to establish title to funds
held in a Guardianship Account created for the benefit of Antonio’s late
Mother. Antonio argues that after his Mother died, the funds should have
been disbursed to the named beneficiaries of certain closed payable on
death accounts (alleged “Totten Trusts”). 2 The probate court determined
that the alleged Totten Trusts were terminated when all funds were
transferred to a single Guardianship Account before the Mother’s death, and
the funds became Estate property subject to probate when the Mother died.
We agree and therefore affirm.
I. BACKGROUND
This case is primarily an inheritance dispute between two brothers:
Appellant Antonio Izquierdo and Appellee Carlos Izquierdo. According to the
1 Antonio is the Appellant in 3D24-1367 and Teresita is the Appellant in 3D24-1426. The cases have been consolidated for the purpose of traveling together. 2 “Apparently the name ‘Totten Trust’ was derived from the name of William H. B. Totten, as administrator, who was one of the parties in the leading case, [In re Totten, 71 N.E. 748 (1904)]. In that case the New York Court of Appeals held that a person depositing his own money in a savings bank in his own name as trustee for another does not establish an irrevocable trust until the depositor completes the gift by some unequivocal act or declaration during his lifetime, or unless the depositor dies before the beneficiary without revocation.” First Nat. Bank of Tampa v. First Fed. Sav. & Loan Ass’n of Tampa, 196 So. 2d 211, 213 (Fla. 2d DCA 1967).
2 allegations in Antonio’s Adversary Petition, prior to 2016, the Mother had five
bank accounts with designated payable on death beneficiaries. In May 2016,
Antonio, who was a joint account holder, closed the Mother’s accounts and
opened new accounts in his name held in trust for his Mother. 3 In July 2016,
Antonio initiated guardianship proceedings and sought to be appointed as
plenary guardian of his Mother. Carlos filed a counter-petition for
appointment. Antonio and Carlos were ultimately appointed as co-
guardians.
In March 2017, the court ordered all the Mother’s funds in Antonio’s
possession to be transferred into a single guardianship restricted depository
account (the “Guardianship Account”). The order contained no language
preserving the accounts or the named beneficiaries. Neither Antonio nor
Carlos objected. Antonio closed the accounts and transferred all funds to
the Guardianship Account.
The funds remained in the Guardianship Account until the Mother
passed away in February 2019. In December 2023, over seven years after
the Mother’s original accounts were closed, Antonio filed the underlying
Adversary Petition in probate court seeking to recognize the funds in the
Guardianship Account as Totten Trust funds held in trust for the named
3 Antonio closed four of the accounts. One of the original accounts remained and eventually served as the Mother’s Social Security account.
3 beneficiaries of the closed accounts. Carlos moved to dismiss arguing that
because the accounts were closed and all funds were transferred to the
Guardianship Account before the Mother’s death, the funds should be
probated.
After a hearing, the trial court dismissed Antonio’s Petition. The court
concluded that the alleged Totten Trusts were essentially tentative trusts,
which were terminated when all funds were transferred to the Guardianship
Account. After the court denied Antonio’s motion for rehearing and clarified
that dismissal was with prejudice, Antonio timely appealed.
II. ANALYSIS
The parties agree that dismissal of an adversary petition is comparable
to dismissal of a complaint. Thus, the standard of review is de novo. See,
e.g., Williams Island Ventures, LLC v. de la Mora, 246 So. 3d 471, 475 (Fla.
3d DCA 2018); see also LaCalle v. Barquin, 987 So. 2d 1245, 1246 (Fla. 3d
DCA 2008) (“[I]t is apodictic that matters dehors the four corners of a
complaint or petition may not be considered on a motion to dismiss.”). 4
4 The dismissal order expressly states that the parties stipulated that the court could consider some matters outside of the Petition. On appeal, Antonio takes issue with this. But he has not included a transcript of the hearing, so this Court is unable to ascertain what the parties stipulated to. See, e.g., Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an
4 On appeal, Antonio argues that the alleged Totten Trusts were not
terminated because there is a strong presumption that an absolute trust is
created when a depositor of a Totten Trust dies before a beneficiary without
revoking the trust. We reject this argument because the alleged Totten Trust
accounts were closed and all funds transferred to the Guardianship Account
before the Mother passed away. See Vargas v. Vargas, 659 So. 2d 1164,
1166 (Fla. 3d DCA 1995) (“A deposit by one person of his own money in his
own name as trustee for another, standing alone, does not establish an
irrevocable trust during the lifetime of the depositor. It is a tentative trust
merely, revocable at will, until the depositor dies or completes the gift in his
lifetime by some unequivocal act or declaration . . . .” (quoting Seymour v.
Seymour, 85 So. 2d 726, 727 (Fla.1956))); see also First Nat. Bank of
Tampa, 196 So. 2d at 213 (explaining that in guardianship proceedings, a
court has the power to revoke a tentative trust when “necessary for [the
ward’s] proper care and support.” (quoting Rickel v. Peck, 211 Minn. 576,
581, 2 N.W.2d 140, 143 (1942))). Moreover, neither party objected when the
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Third District Court of Appeal State of Florida
Opinion filed September 10, 2025. Not final until disposition of timely filed motion for rehearing.
________________
Nos. 3D24-1367 & 3D24-1426 Lower Tribunal No. 23-5847-CP-02 ________________
Antonio Izquierdo & Teresita Pena, etc., Appellants,
vs.
Carlos Izquierdo, Appellee.
Appeals from the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
Gastesi Lopez & Mestre PLLC and Raul R. Lopez, and Jennifer M. Vazquez; Fred E. Glickman, P.A., and Fred E. Glickman, for appellants.
The Hachar Law Group, and Michael McCormick, Jr., and Kendrick Almaguer, for appellee.
Before FERNANDEZ, LOGUE, and LINDSEY, JJ.
LINDSEY, J. Appellants Antonio Izquierdo and Teresita Pena, Antonio’s wife,
appeal from a final order dismissing Antonio’s Adversary Petition in the
underlying probate matter.1 The Petition sought to establish title to funds
held in a Guardianship Account created for the benefit of Antonio’s late
Mother. Antonio argues that after his Mother died, the funds should have
been disbursed to the named beneficiaries of certain closed payable on
death accounts (alleged “Totten Trusts”). 2 The probate court determined
that the alleged Totten Trusts were terminated when all funds were
transferred to a single Guardianship Account before the Mother’s death, and
the funds became Estate property subject to probate when the Mother died.
We agree and therefore affirm.
I. BACKGROUND
This case is primarily an inheritance dispute between two brothers:
Appellant Antonio Izquierdo and Appellee Carlos Izquierdo. According to the
1 Antonio is the Appellant in 3D24-1367 and Teresita is the Appellant in 3D24-1426. The cases have been consolidated for the purpose of traveling together. 2 “Apparently the name ‘Totten Trust’ was derived from the name of William H. B. Totten, as administrator, who was one of the parties in the leading case, [In re Totten, 71 N.E. 748 (1904)]. In that case the New York Court of Appeals held that a person depositing his own money in a savings bank in his own name as trustee for another does not establish an irrevocable trust until the depositor completes the gift by some unequivocal act or declaration during his lifetime, or unless the depositor dies before the beneficiary without revocation.” First Nat. Bank of Tampa v. First Fed. Sav. & Loan Ass’n of Tampa, 196 So. 2d 211, 213 (Fla. 2d DCA 1967).
2 allegations in Antonio’s Adversary Petition, prior to 2016, the Mother had five
bank accounts with designated payable on death beneficiaries. In May 2016,
Antonio, who was a joint account holder, closed the Mother’s accounts and
opened new accounts in his name held in trust for his Mother. 3 In July 2016,
Antonio initiated guardianship proceedings and sought to be appointed as
plenary guardian of his Mother. Carlos filed a counter-petition for
appointment. Antonio and Carlos were ultimately appointed as co-
guardians.
In March 2017, the court ordered all the Mother’s funds in Antonio’s
possession to be transferred into a single guardianship restricted depository
account (the “Guardianship Account”). The order contained no language
preserving the accounts or the named beneficiaries. Neither Antonio nor
Carlos objected. Antonio closed the accounts and transferred all funds to
the Guardianship Account.
The funds remained in the Guardianship Account until the Mother
passed away in February 2019. In December 2023, over seven years after
the Mother’s original accounts were closed, Antonio filed the underlying
Adversary Petition in probate court seeking to recognize the funds in the
Guardianship Account as Totten Trust funds held in trust for the named
3 Antonio closed four of the accounts. One of the original accounts remained and eventually served as the Mother’s Social Security account.
3 beneficiaries of the closed accounts. Carlos moved to dismiss arguing that
because the accounts were closed and all funds were transferred to the
Guardianship Account before the Mother’s death, the funds should be
probated.
After a hearing, the trial court dismissed Antonio’s Petition. The court
concluded that the alleged Totten Trusts were essentially tentative trusts,
which were terminated when all funds were transferred to the Guardianship
Account. After the court denied Antonio’s motion for rehearing and clarified
that dismissal was with prejudice, Antonio timely appealed.
II. ANALYSIS
The parties agree that dismissal of an adversary petition is comparable
to dismissal of a complaint. Thus, the standard of review is de novo. See,
e.g., Williams Island Ventures, LLC v. de la Mora, 246 So. 3d 471, 475 (Fla.
3d DCA 2018); see also LaCalle v. Barquin, 987 So. 2d 1245, 1246 (Fla. 3d
DCA 2008) (“[I]t is apodictic that matters dehors the four corners of a
complaint or petition may not be considered on a motion to dismiss.”). 4
4 The dismissal order expressly states that the parties stipulated that the court could consider some matters outside of the Petition. On appeal, Antonio takes issue with this. But he has not included a transcript of the hearing, so this Court is unable to ascertain what the parties stipulated to. See, e.g., Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (“Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an
4 On appeal, Antonio argues that the alleged Totten Trusts were not
terminated because there is a strong presumption that an absolute trust is
created when a depositor of a Totten Trust dies before a beneficiary without
revoking the trust. We reject this argument because the alleged Totten Trust
accounts were closed and all funds transferred to the Guardianship Account
before the Mother passed away. See Vargas v. Vargas, 659 So. 2d 1164,
1166 (Fla. 3d DCA 1995) (“A deposit by one person of his own money in his
own name as trustee for another, standing alone, does not establish an
irrevocable trust during the lifetime of the depositor. It is a tentative trust
merely, revocable at will, until the depositor dies or completes the gift in his
lifetime by some unequivocal act or declaration . . . .” (quoting Seymour v.
Seymour, 85 So. 2d 726, 727 (Fla.1956))); see also First Nat. Bank of
Tampa, 196 So. 2d at 213 (explaining that in guardianship proceedings, a
court has the power to revoke a tentative trust when “necessary for [the
ward’s] proper care and support.” (quoting Rickel v. Peck, 211 Minn. 576,
581, 2 N.W.2d 140, 143 (1942))). Moreover, neither party objected when the
court required the accounts to be closed and the funds transferred, and no
language was included in the order to preserve the named beneficiaries.
appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal.”).
5 Antonio cites Beane v. SunTrust Banks, Inc., 47 So. 3d 922 (Fla. 4th
DCA 2010) for the proposition that withdrawal of funds from a Totten trust
does not revoke the trust. See id. at 924 (“[M]erely withdrawing money from
the Totten trust does not, as a matter of law, change the ‘disposition effective
at the principal’s death.’”). But here, the funds were not merely withdrawn
from the alleged Totten Trust accounts. All funds were withdrawn and
transferred to a separate Guardianship Account, and the alleged Totten
Trust accounts were closed. See Serpa v. N. Ridge Bank, 547 So. 2d 199,
200 (Fla. 4th DCA 1989) (“Placing a bank account in the name of one
individual ‘in trust for’ another individual creates a tentative or Totten trust.
Such a trust is tentative because partial revocation occurs every time there
is a withdrawal, and the trust is revocable during the lifetime of the
depositor/settlor.”).
Indeed, none of the cases Antonio cites is on point with the situation
here, where the alleged Totten Trusts were closed and all funds transferred
to a different account before the depositor’s death. We therefore agree with
the probate court that, as a matter of law, the alleged Totten Trusts were
terminated when the accounts were closed and the funds transferred. 5
5 Antonio also argues on appeal that he should be granted leave to amend his Petition. But given that the Totten Trusts were terminated as a matter of law, any amendment would be futile. See, e.g., Readon v. WPLG, LLC, 317 So. 3d 1229, 1238 (Fla. 3d DCA 2021) (“Generally, refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly
6 The consolidated case (3D24-1426) also fails to convince us that there
is reversible error. In that case, Appellant Teresita Pena, Antonio’s wife,
argues on behalf of their son, Erik. Erik was one of the named beneficiaries
of the alleged Totten Trusts. Teresita argues that the order transferring funds
from the alleged Totten Trusts to the Guardianship Account violated Erik’s
due process rights because he was not given notice. 6
As an initial matter, we note that the order transferring funds was
entered in a separate guardianship proceeding. But this is an appeal from
an order dismissing the underlying Adversary Petition in the probate court.
As such, Teresita cannot challenge the order transferring funds in this appeal
from a dismissal order in a different underlying probate proceeding.
But even if the appeal were proper, we are unpersuaded. Erik’s father,
Antonio, certainly had notice. Teresita contends that serving Erik’s biological
father is not sufficient because nothing in the record shows anything about
the relationship between Antonio and Erik. But it is black letter law that in
appellate proceedings, the burden is on the appellant to demonstrate error.
See, e.g., Joseph v. Henry, 367 So. 3d 1280, 1281 (Fla. 3d DCA 2023).
Teresita has not met her burden here.
appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or the amendment would be futile.”). 6 This argument was not raised below.
7 III. CONCLUSION
The trial court correctly concluded that the alleged Totten Trusts were
terminated when the accounts were closed and all funds transferred to the
Guardianship Account before the Mother’s death. We therefore affirm the
order dismissing Antonio’s Adversary Petition.
Affirmed.