March 2008 Archives

March 31, 2008

Surving Spouse has no Property Interest in Husband's Body

City of Key West v. Knowles, 948 So.2d 58 (Fla. 3 DCA January 10, 2007)

A surviving spouse sued the city of Key West, Florida claiming she was deprived of her property interest in her husband's buried remains without due process in violation of 42 U.S.C. 1983.

The Court found that an individual has no constitutionally protected property interest to a decedent's remains after the point of burial or other lawful disposition, the appellate court reversed the $15,000 jury verdict that had been entered in favor of the surviving spouse.

March 30, 2008

Florida Upholds Homestead Against Legal Fees

Chames v. Demavo, 32 Fla. L. Weekly S820 CR. Sup. Ct. December 20, 2007

An attorney owed fees from his clients under a retainer agreement attempted to enforce a lien against the homestead of the clients. The retainer agreement had expressly waived the parties' constitutional homestead protection against claims of creditors.

Asking the Court to recede from prior Florida precedent in Carter and Sherbill, the appellant argued the 1995 constitutional amendment removing "head of family" changed the purpose of the creditor protection, that the trend in other states was to permit waivers, and permitting the waiver was consistent with other precedent allowing waivers.

The Court rejected the arguments of the waiver and concluded "the waiver of the homestead exemption will become an everyday part of contract language for everything from hiring of counsel to purchasing cellular telephone services ... [which will inevitably result in whittling away this century old constitutional exemption until it becomes little more than a distant memory."

A waiver of your homestead rights in a contract is still not valid in Florida (except with regards to pre and post nuptial agreements).

March 29, 2008

Can Co-op be a Homestead in Florida?

Phillips v. Hirshon, 963 So. 2d 227 (Fla. 2007).
The supreme court agreed to hear a case which will determine if Florida's revisions to the homestead laws allow for a cooperative apartment to be considered homestead property for descent purposes. We should have an answer on this question by the end of April.

If you own a property and are concerned about its status as a Florida Homestead please Contact a Florida Estate Planning Lawyer to discuss your circumstances.

March 28, 2008

Florida Disclaimer of Interest and Effect on PR

Qarcia v. Morrow, 954 So.2d 656 (Fla. 3rd DCA April 4,2007)

This case involves competing petitions for appointment as personal representative filed by a decedent's grandson with statutory priority to be appointed as personal representative and the former wife of the decedent's son. After his mother's death, and while in prison, the decedent's son acquiesced in a state court order requiring him to transfer his mother's condominium unit and certain financial accounts to his ex-wife to satisfy past-due child support payments. The son later executed a disclaimer of the interest in his mother's estate and the grandson filed that disclaimer in support of his petition to be appointed as personal representative. The former spouse argued the fling of the disclaimer was an effort to work a fraud on the court and, without an evidentiary hearing, the court appointed the former spouse as personal representative. The appellate court reversed the decision and remanded for a further evidentiary hearing to determine whether the grandson "lacks the necessary qualities and characteristics" to be personal representative.

March 27, 2008

Father by Court order remains Father after Death of Child

Glover v. Miller. 947 So.2d 1254 (Fla. 4th DCA January 31, 2007)

After a 16-year-old child was killed by a police officer, two separate men claimed they were his father and asserted the right to be appointed personal representative of the child's estate for purposes of pursuing a wrongful death action. One man had been declared the decedent's father in a paternity action 12 years previously and had been required to pay child support. Post-death DNA testing showed a 99% likelihood that the other man actually was the decedent's natural father. The appellate court affirmed a trial court's determination that the man previously declared to be the father was entitled to priority in appointment and that absent having the judgment of paternity vacated and a new determination of paternity entered, the man previously deemed the father was, for purposes of appointment of personal representative, the decedent's "father in the eyes of the law, regardless of the results of DNA testing."

March 26, 2008

Court Must Have Reason to Deny Will's Appointment of PR

Hemandez v. Hernandez, 946 So.2d 124 (Fla. 5th DCA January 19, 2007)

A trial court refused to appoint the decedent's son as personal representative, despite the fact the decedent had nominated a son in his last will, instead appointing an unrelated attorney. The only basis for the courts ruling was that there was animosity between the nominated personal representative and his brother. Citing the absence of any evidence that the nominated personal representative does not meet the statutory criteria to qualify, and that there are no other "exceptional circumstances," the appellate court reversed the trial court.

March 25, 2008

Florida and The Medicaid Look Back Period -"Why you Can't Just Give It All Away"

Florida and The Medicaid Look Back Period -"Why you Can't Just Give It All Away"

Many people simply try to give their assets away to their children in an attempt to safeguard their estate. The Medicaid people have caught on to this. Many years ago, a popular planning technique was to transfer your assets into an irrevocable Medicaid Trust. This technique attempted to move your assets out of your name and control so that the would not be counted towards the asset test. Now any transfer to a Florida Revocable Trust is a disqualifying transfer for Medicaid purposes.

In 1993, the federal government partially closed this loop hole. Prior to February 2006, there were "look back" periods of 36 months or 60 months. Florida implemented these guidelines as of November 2007. This means is that if you have transferred assets to anyone other than your spouse (for less than value) within 36 months of applying for Medicaid, you will be denied Medicaid benefits and subject to an exclusionary period. The exclusionary period is equal, in months, to the dollar amount of the transfers divided by the average cost of a month of nursing home care (currently $3,300.00 in Florida). It is important to note that this number was rounded down and the exclusionary period was calculated from the date of the gift.

In February of 2006, the law changed! The Federal government has radically altered Medicaid qualification with the passage of the Debt Reduction Act of 2005 (DRA 2005). This law only applies to any transfer of assets after February 8, 2006 though the Department of Children and Families will enforce these and the other provisions of DRA 2005 only on asset transfers after November 2007. The "look back" period is now five years (60 months) for everyone. If you have transferred any assets for less than fair market value after November 2007, they will sum up the total of the transfers and divide by $3300. The resulting number is the number of months that you are disqualified from receiving Medicaid benefits from the time you apply for Medicaid. While it is impossible to know who will have a long term care event five years before it happens, do not transfer any assets after February 8, 2006. This includes gifts to your children, a charity or a church. You could be in a nursing home and private pay for three years (roughly $220,000) and still be denied benefits because you gave your church $5,000 four and a half years ago! Furthermore, DCF will no longer round down. This means any gift, no matter the value, will result in a disqualification period!

Gifts or transfers prior to November 2007 can be remedied by time. The current rate is $5000 for each month. You should Contact a Florida Estate Planning Lawyer to discuss how your specific needs are affected by any transfers.

Transfers include adding children's names to the title of assets such as deeds or bank accounts, removing your name from the title of an asset, or simply giving your children a check.

* Example: John adds his adult children, Beth and David, to the deed to his house within five years (60 months) of applying for Medicaid. The house is worth $132,000. Providing John remains on the deed as well and resides in the house, his portion would be exempt (Homestead). However, the portion transferred ($99,000 or 2/3 of $132,000) would not be exempt providing that the children did not reside with her and provide care for her. Thus, John would be denied benefits for a period of 30 months ($99,000/$3,300) from the time of application. Remember, the homestead is not counted. It is exempt. So there is no need to transfer it to your children.

Often clients do these types of transfers to avoid probate. There are other ways of accomplishing the goal of avoiding Florida Probate without risking the Medicaid ineligibility.

If you are a concerned relative or friend of an elderly person and need help with Florida Estate Planning, Elder Law, or Medicaid and are in the Jacksonville, Orange Park, St. Augustine, Fernandina Beach areas of North Florida, you should Contact a Florida Estate Planning Lawyer to discuss your Medicaid and Florida Estate Planning needs.

March 24, 2008

Florida Medicaid Asset Test

The Medicaid Asset Test

If you qualify under the income test or can create a Qualified Income Trust (QIT) you must still pass the Medicaid asset test. This test can be the most daunting and confusing. First, you must know the asset test limits. These vary between single and married individuals. The reason for this is so that a survivor of a Medicaid recipient is not left destitute by the spend down (more on this in a moment). The asset test level for an individual is $2,000 in countable assets and $104,000 (2008) in countable assets for a community spouse who not in a nursing home facility. For married couples, both persons must qualify under the asset test.

Second, you must understand the difference between exempt (countable) and non-exempt assets (non-countable). Exempt assets do not count towards the asset test limits and non-exempt assets do count towards the asset test limits. The following are exempt assets:

* Homestead of any value (with some limitations)
* First Car of any value
* Second car if >7 years old but <25 years old. (Cannot be a luxury car)
* Life Insurance up to $2500 or cash value of Life insurance if in face value is in excess of $2,500
* Burial Plots for you and your spouse and others in your name ($2,500 each)
* Household and personal belongings
* Irrevocable Burial Contracts
* The principal in certain annuities and IRAs or other qualified plans
There are some other non-countable assets but for the most part this is it. What this means is that checking and savings accounts, stocks, bonds, mutual funds, IRAs, 401(k)s, 403(b)s and trust assets are all counted towards the asset test. In short, any asset that is not exempt and can be turned into cash is counted. Please see the Florida Administrative Code Section 65A-1.712 (SSI ¬Related Medicaid Resource Eligibility Criteria) for a more technical analysis.

What happens if you (and your spouse's assets) are over the asset test limits? You will have to "spend down" until you qualify. In other words, you will have to spend your own assets on you or your spouse's nursing home care until such time as they are below the asset test limits and you can qualify. Some call this the "Pre-Death Tax".

However, there still are some things that you can do. Just as the income test had planning alternatives, so does the asset test. But first you need to know some other rules concerning the asset test.

If you are a concerned relative or friend of an elderly person and need help with Estate Planning, Elder Law, or Medicaid and are in the Jacksonville, Orange Park, St. Augustine, Fernandina Beach, you should Contact a Florida Estate Planning Lawyer or Jacksonville Elder Law Lawyer.

March 24, 2008

Florida Elective Share Held Constitutional

Magee v. Magee, 32 Fla. L. Weekly 02307 (Fla. 2d DCA September 26, 2007)

In a challenge to the constitutionality of Florida’s elective share statutes, the Second District Court of Appeal upheld a lower court ruling that the statute is constitutional. The Court applied a test of whether there is "any reasonable relationship between the act and the furtherance of a valid governmental objective," and rejected the challenger’s argument that the "far more rigorous analysis" of whether the statute is "reasonably necessary to protect the public." The Court found that the state has a strong public policy concerning protection of the surviving spouse about
marriage in existence at the time of the decedent’s death and that, therefore, the provisions of the elected chair statutes serve a legitimate legislative purpose. On February 20, 2008, the Florida Supreme Court refused to accept jurisdiction for an appeal of this decision.

March 24, 2008

Response from RocketLawyer about Defective Durable Power of Attorney

Today, I received a response from RocketLawyer about the article I wrote on using a Free Durable Power of Attorney and potential problems. The good news is they are asking for help to fix the problems. As noted in their email, they do encourage visitors to seek legal counsel from attorneys like me when they are unsure of doing something for themselves. My only question which I shall pose to them, is how is a consumer who is uneducated in legal matters supposed to determine when they are unsure of how to do something. Isn't the point of using a service like theirs to rely on their expertise to help create legal documents?
Below is a copy of their email

Dear David,

I recently read your critique of our Florida Durable Power of Attorney form on your blog. We strive to offer the best legal help to consumers online and we take criticism like yours seriously.

As such, perhaps you would be willing to help us perfect the form to remedy the defects that you think exist? We have our own staff attorneys who review our documents for accuracy regularly. But, that doesn't mean that someone like you can't add additional value for our visitors.

You also wrote about how to cancel a RocketLawyer.com membership. It is very easy. We stand by our promise of a free document, and [canceling] is clearly detailed on our support page, which is accessible from every page on the site. Our customer service reps are also trained to send people to this page immediately, as we have a 100% satisfaction guarantee.

Lastly, we also encourage visitors to seek legal counsel from attorneys like you, when they are unsure about doing something for themselves. Perhaps you would be willing to create a free profile at RocketLawyer.com to potentially help our visitors and even promote your services to potential clients?

Please feel free to contact me directly and perhaps after you have had a chance to create your profile and work with our editorial team, you may reconsider your assessment and help us deliver affordable legal help together.

Kind regards,
Charley Moore
I will keep you updated with the progress on this topic.

March 23, 2008

Florida Land Owner Dies prior to sale of Property

Vazpuez v. Bvrski, 32 Fla. L. Weekly D2415 (Fla. 2d DCA October 10, 2007)

Prior to his death, a decedent entered a contract to sell real property. The decedent died prior to closing on the contract. The purchaser filed a Petition for Administration in which he expressly alleged the obligation based upon the purchase and sale agreement. The purchaser subsequently filed a Petition for Appointment of Guardian Ad Litem to represent the interests of unidentified heirs, and again alleged the obligation based upon the purchase and sale agreement. The personal representative of the estate subsequently filed a petition for authorization to sell the real property pursuant to the contract.
The guardian ad litem objected claiming, inter alia, the purchaser had failed to file a claim in the estate. The trial court agreed and denied the request for authorization to sell the property.

On appeal, the Second DCA reversed, finding that the initial petition for administration and subsequent documents filed in the probate proceeding, while defective as to form, sufficiently stated the character and extent of the claim and were substantially sufficient to place interested persons on notice of the claim.

March 22, 2008

Blogging from China

I am currently in Shanghai China for the next 5 days and then heading to Osaka and Tokyo for 3 nights each. I am planning to keep posting new issues to my blog while I am gone. In addition, I will be responding to emails and will be available over my VOIP number for calls or issues that need immediate attention. Feel free to continue to send in your questions. I wanted to apologize upfront for any additional delay in responses. Please be conscientious that it is 12 hours ahead of EST and this along with being on vacation means I will typically respond to any issues between 8AM - 12 PM EST or 8PM to -12AM my time.

March 22, 2008

Real Estate Titled wrong prior to Death and Probate

Fernandez-Fox v. Estate of David P. Lindsay, 33 Fla. L. Weekly D259 (5th DCA January 18, 2008)

Fox and the Decedent had owned real property they had intended to have titled joint with rights of survivorship. Because of an error, the title was not correctly designated in the public records and the decedent died before the error could be corrected. Fox initiated probate proceedings and filed claims for storage fees, funeral expenses, and maintenance of the property. One of the beneficiaries of the decedent's Florida Will filed a Motion to Strike the claims, which was denied. In the interim, Fox initiated a quiet title action against the Estate and the estate beneficiaries. A personal representative was appointed, and the PR filed objections to the Fox claims nine months after being appointed.

Fox petitioned for an extension of time to file independent action on her claims. The Florida Probate Court denied the motion, ruling that the earlier Motion to Strike was an objection requiring filing of an independent action within 30 days.

On appeal, the decision was reversed on the grounds the Motion to Strike failed to meet the requirements of an objection pursuant to Florida Probate Rule 5.496. The appellate decision had good discussion of the types of actions and information that would serve to put an estate on notice of a potential claim and indicates a request for extension should be granted only if the estate can establish it would be prejudiced or unfairly surprised. Both parties requested fees, claiming their actions benefited the estate.

The court rejected both claims: 1 the reversal allowed Fox to pursue her claims, obviously not of benefit to the estate and 2 the Estate lost the appeal, will be required to litigate the claims and, in the opinion of the court, thus had not benefited the estate.

March 21, 2008

Family Member Disqualified as Guardian Because ofr Conduct

Major v. Rowe, 965 So. 2d 847 (Fla. 2nd DCA September 28, 2007)

Appointment of a professional non-family Florida Guardian is appropriate even though a family member is willing to serve as a Florida Guardian for the ward. The court noted that "family members, if otherwise qualified, are generally entitled to preference in appointment as guardian over strangers, [but] that preference can be overcome if they, intentionally or unintentionally, engage in conduct detrimental to a ward's best interests. Moreover, even when a family member has acted with the best interests of the ward in mind, there may well be instances where it would not be an abuse of discretion for the Florida Probate court to nevertheless appoint a non-family member guardian."

March 20, 2008

Contempt Overtruned for Son Hiding Incapacitated Mother

Graham v. Florida Dept of Children and Families (Graham II), 970 So.2d 438 (Fla. 4th DCA December 5, 2007)

This is the continuing saga of the battle between Luke and Laurence over their mother Betty, who DCF had determined was in need of guardianship after determining "Luke is the son who most has Betty's interests in mind." After Laurence failed to comply with the guardianship court order to disclose the out-of-state location to which he had moved his mother, the court held him in civil contempt. The Court also appointed Luke as temporary plenary guardian of Betty's person and property, electing to disregard an advance directive Betty had executed over 8 months after the guardianship proceedings had been initiated.

On appeal, the finding of contempt was reversed for failure to properly serve the order to show cause. The appellate court also reversed the order appointing temporary guardian, holding the trial court had failed to properly determine and indicate the specific grounds upon which the advance directive was revoked by the court. The court further noted that the surrogate under an advance directive is not under any duty to prove the validity of the advance directive. Finally, the court noted two of the examining committee reports were filed over two months before the final hearing and, relying upon two physicians' affidavits filed before and after the hearing to determine incapacity use the wrong burden of proof - the correct burden of proof in a hearing to determine incapacity of a alleged incapacitated person (AIG) is by clear and convincing evidence. Thus the Court ordered the proceedings be dismissed.

March 19, 2008

Nebraska NFA Gun Trust Lawyer®

Nebraska has joined the growing list of states in which we have a relationship with a lawyer who is familiar with the (NFA) National Firearms Act's requirements relating to the formation of trusts to purchase Title II Firearms (sold by Class 3 SOT dealers). These include silencers, short barrel rifles, and machine guns.

If you are looking to create a Nebraska NFA Gun Trust, please Contact us and we can help make sure your trust deals with the many unique issues surrounding owning these firearms in a Revocable Trust.

If you live in Indiana or another state and wish to create a NFA trust to protect your family and purchase NFA firearms (Title II) or Title I firearms Contact a NFA Gun Trust Lawyer® in your state.

If you are a lawyer licensed in any state and would like to work with us to provide NFA trusts to clients in your state, please Contact David Goldman a Florida Gun Trust Lawyer®.

March 19, 2008

Florida Court Maintains Jurisdiction when Ward is Moved to Another State

Weissenbom v. Graham (Graham 1), 963 So. 2d 275 (Fla. 4th DCA August 1, 2007)
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During the course of a Florida Guardianship Dispute between the wards two sons, one of the sons moved the ward from Florida to a "secret location" in another state.

That son then arranged for an attorney to appear on behalf of the ward. Although the attorney never was authorized to represent the ward, he argued the guardianship must be terminated because the emergency temporary guardian was unaware of the location of the ward. The attorney also argued that the Florida court no longer had jurisdiction over the ward and that, therefore, the guardianship must be dismissed.

The appellate court, in reviewing an appeal from the trial court's refusal to allow the attorney to represent the ward, rejected all of the arguments and found that, notwithstanding the unauthorized relocation of the ward to another state, the Florida court still had jurisdiction over the ward and any interested persons involved in the guardianship.

March 19, 2008

Supreme Court Hears Arguments in D.C. Gun Ban Case

The Supreme Court heard oral arguments in District of Columbia v. Heller, a case the Court has stated is "limited to the following question: Whether Washington, D.C.'s bans [on handguns, on having guns in operable condition in the home and on carrying guns within the home] violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes."

The case came before the Supreme Court on appeal by the District of Columbia, after the U.S. Court of Appeals for the District of Columbia declared the city's gun bans unconstitutional.

The Court of Appeals decision--consistent with the views of the Framers of the Bill of Rights, respected legal commentators of the 19th century, the Supreme Court's ruling in U.S. v. Cruikshank (1876), numerous court decisions of the 19th century, the Supreme Court's ruling in U.S. v. Miller (1939), the position of the U.S. Department of Justice, and the vast majority of Second Amendment scholars today-concluded that "the Second Amendment protects an individual right to keep and bear arms. That right existed prior to the formation of the new government under the Constitution and was premised on the private use of arms for activities such as hunting and self-defense, the latter being understood as resistance to either private lawlessness or the depredations of a tyrannical government (or a threat from abroad)."

In today's argument, the Justices aggressively questioned advocates for all sides, including Walter Dellinger for the District, Solicitor General Paul Clement for the Department of Justice, and Alan Gura for the plaintiffs challenging D.C.'s law.

Some justices' questions clearly suggested where they stand-as when Chief Justice John Roberts, questioning the District's Dellinger, scoffed at the idea that a citizen awakened by an intruder in the middle of the night could "turn on the lamp . pick up [his] reading glasses," and disengage a trigger lock. Dellinger back-pedaled from D.C.'s longstanding position that its laws prohibit self-defense, claiming that D.C. actually supports citizens having functional firearms for defense.

Justices extensively questioned all three attorneys on the meaning and effect of the Second Amendment's "militia clause," with Dellinger taking the extreme position that unless a state "had attributes of [a state] militia contrary to a Federal law," the Second Amendment would have no effect as a restraint on legislation. Several justices seemed to disagree strongly with that view, with Justice Antonin Scalia noting that even if the militia clause describes the purpose of the Second Amendment, it's not unusual for a law to be written more broadly than necessary for its main purpose.

Justice Anthony Kennedy questioned the attorneys very actively, especially on the importance of self-defense in the Founding era. Justice Kennedy suggested that even the Supreme Court's 1939 Miller decision-which gun control advocates have often wrongly cited as protecting only a "collective" right-was "deficient" and may not have addressed the "interests that must have been foremost in the Framers' minds when they were concerned about guns being taken away from the people who needed them for their defense."

Plaintiffs' attorney Gura-in addition to responding to many hypothetical questions-noted that the Second Amendment was clearly derived from common law rights described by Blackstone and other 18th Century commentators. Although the militia clause "gives us some guide post as to how we look at the Second Amendment," Gura said, "it's not the exclusive purpose of the Second Amendment."

NRA Executive Vice President Wayne LaPierre and NRA-ILA Executive Director Chris Cox (who both attended the arguments) commented, "Washington, D.C.'s ban on keeping handguns and functional firearms in the home for self-defense is unreasonable and unconstitutional under any standard. We remain hopeful that the Supreme Court will agree with the overwhelming majority of the American people, more than 300 members of Congress, 31 state attorneys general and the NRA that the Second Amendment protects the fundamental, individual right to keep and bear arms, and that Washington, D.C.'s bans on handguns and functional firearms in the home for self-defense should be struck down."

Amicus briefs filed with the Supreme Court in support of the Court of Appeals' decision included those by the National Rifle Association and the NRA Civil Rights Defense Fund; Vice-President Dick Cheney (in his capacity as President of the Senate) and Members of Congress; the state attorneys general; and noted Second Amendment scholars. All the briefs in the case are available at www.nraila.org/heller.


Listen to the audio recording of the oral arguments (RealPlayer required)

View the transcript (PDF format)

March 18, 2008

Indiana NFA Gun Trust Lawyer®

Indiana has joined the growing list of states in which we have a relationship with a lawyer who is familiar with the (NFA) National Firearms Act's requirements relating to the formation of trusts to purchase Title II Firearms (sold by Class 3 SOT dealers). These include silencers, short barrel rifles, and machine guns.

If you are looking to create a Indiana NFA Gun Trust, please Contact us and we can help make sure your trust deals with the many unique issues surrounding owning these firearms in a Revocable Trust.

If you live in Indiana or another state and wish to create a NFA trust to protect your family and purchase NFA firearms (Title II) or Title I firearms Contact a NFA Gun Trust Lawyer® in your state.

If you are a lawyer licensed in any state and would like to work with us to provide NFA trusts to clients in your state, please Contact David Goldman a Florida Gun Trust Lawyer®.

March 18, 2008

Florida Guardianship Court Takes Action to Preservie Ward's Assets

Ripoll v. Comprehensive Personal Care Services Inc., 963 So.2d 789 (Fla. 3rd DCA July 18, 2007)

The Florida guardianship court has the inherent authority to monitor a guardianship and to take action it deems necessary to preserve the assets for the benefit of the beneficiaries, including the authority to issue temporary injunctions freezing assets claimed to belong to a guardianship even though ultimate ownership of those assets may be in dispute.

March 17, 2008

Probate in Florida: Consumer Pamphlet: Florida Bar

The Florida Bar has created a Florida Probate Pamphlet to help individuals understand Florida Probate.
It discusses the following information
1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
4. WHAT IS A WILL?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO WILL THE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. WHAT ARE THE ESTATE’S OBLIGATIONS TO ESTATE CREDITORS?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. WHAT ARE THE RIGHTS OF THE DECEDENT’S SURVIVING FAMILY?
16. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES HAVE IN THE DECEDENT’S PROBATE ESTATE?
17. HOW LONG DOES PROBATE TAKE?
18. HOW ARE THE PERSONAL REPRESENTATIVE’S COMPENSATION AND PROFESSIONAL FEES DETERMINED?
19. WHAT ALTERNATIVES TO FORMAL ADMINISTRATION ARE AVAILABLE?

If you would like to know more about Florida Probate Contact a Florida Estate Planning Lawyer who deal with Florida Probate.

March 17, 2008

Preneed Guardian Not Appointed: Court looks at Best Interest of Ward

Miller v. Goodall, 958 So. 2d 952 (Fla. 4th DCA April 25, 2007)

A daughter filed a petition to determine her mother's incapacity and be appointed as guardian.

The ward's sister (daughter's aunt) also filed a petition seeking to be appointed as plenary guardian.

The court denied the sister's petition and instead appointed a third party attorney as plenary guardian.
The sister appealed the case on two grounds, arguing:

1) the court lacked personal jurisdiction over the ward, and
2) the court erred by not complying with the ward's preneed guardianship declaration that named the sister as guardian.
The appellate court affirmed, ruling the lower court had personal jurisdiction over the ward because the ward's attorney had consulted with her and obtained her consent to jurisdiction. The trial judge found the presumption of appointment of the designated preneed guardian had been overcome.

The appellate court noted the trial judge had also considered section 744.3124, Florida Statutes which states the court shall appoint a preneed guardian "unless the court determines that appointing such person is contrary to the best interests of the ward" and had specifically found it was contrary to the ward's best interests to appoint her sister.

March 16, 2008

Can Trust be Modified by Agent Acting Under a Durable Power of Attorney

Gurfinkel v. Marmor, 32 Fla. L. Weekly D2931 (Fla. 3rd DCA December 12, 2007)

The decedent's trust beneficiaries challenged a pre-death "amendment" executed by the decedent's spouse as attorney in fact pursuant to a valid Durable Power of Attorney . The amendment "deleted" the trust's primary asset stock in a family corporation. The stock was subsequently transferred to one of the decedent's sons. The trial court relied upon language in the Durable Power of Attorney to uphold the amendment. The appellate court reversed, relying upon language in the Trust which indicted powers granted by the trust could be exercised only by the grantor and not by a conservator, guardian, or any person other than the grantor.

What does this mean, if you want your agent acting under a Durable Power of Attorney to be able to change your trust, your trust should include language to allow for it.

To review your Durable Power of Attorney and Florida Revocable Trust Contact a Florida Estate Planning Lawyer.

March 16, 2008

Trust Provision interpreting distribution to someone who dies before distribution is complete.

Bryan v.Dethlefs, 959 So. 2d 314 (FIa. 3d DCA May 16, 2007)

The decedent's trust stated,

"Upon my death, the then balance of principal and accumulated income remaining in the trust fund shall be distributed to my grandson, Robert R. Bizzell, if he is living at the time of distribution."
The trust provided for distributions to other beneficiaries if Bizzell was not living.
Bizzell survived the decedent, but died intestate prior to receiving complete distribution of the trust assets, Bizzell's half-sister one of the beneficiaries of his estate asserted the trust instrument vested the assets with Bizzell at the time of the decedent's death, The appellants argued the trust assets vest only at the time of distribution and all undistributed assets should therefore be distributed to them as the decedent's beneficiaries.

The lower court agreed with Bizzell's half-sister and the appellate court affirmed, reviewing that the law favors early vesting of estates and any doubts should be resolved in favor of vesting.

The court determined the trust provision in question mandated distribution upon the death of the decedent and the last clause of the sentence "if he is living at the time of distribution" could lead only to the conclusion that the time of distribution intended by the decedent was at his death.

March 16, 2008

Probate - Jurisdiction / Venue Case

1. Anscher v. Lebenthal & Co., 963 So.2d 921 (Fla. 3rd DCA August 29, 2007)

Spouse vs. Estate of spouse, co-trustee, & brokerage company

The decedent's surviving spouse bought an action in probate court against the decedent's estate, the co-trustees of his trust, and his brokerage for failure to transfer securities out of the trust based upon written instructions from the decedent to the brokerage delivered two days before his death. The spouse settled the claim against the estate and the co-trustees, leaving only the claim against the brokerage.

The probate action became non-adversarial and was subject to being dismissed. To avoid statute of limitations issues, the spouse filed a second action in the general jurisdiction division of the Circuit Court, which was removed to federal court by the defendant. The defendant brokerage filed a motion to dismiss the probate proceeding, which was granted. The appellate court affirmed the lower court, although noting that "the probate court should have transferred the probate action rather than grant the motion to dismiss," but finding that the probate court order of dismissal was harmless.

March 14, 2008

Quicken WIll = Unauthorized Practice of Law for Insurance Agent

Ernest Chavis is a South Carolina insurance agent who previously had some business dealings with a 91-year-old woman named Annie Belle Weiss. On July 20, 2004, Chavis visited her and, at some point in the conversation, Weiss asked him "Can you help me make a will?"

She wanted "someone objective" and told Chavis how she wanted her property divided up. Chavis used Quicken software--apparently Quicken WillMaker or Quicken Family Lawyer--to fill in the blanks and then brought the completed will to her in the hospital. Weiss signed it on July 31, 2004, and died two months later.

Beth Franklin and Julianne Franklin, Weiss' grandnieces, filed a lawsuit contesting her will and claiming Chavis engaged in the unauthorized practice of law. Chavis was named as Weiss' personal representative, but not as a beneficiary. (He would be, however, entitled to up to 5 percent of the estate's value under state law because of his duties as personal representative.)

As far back as 1941, a Pennsylvania court ruled that "furnishing advice" about the practical issues that wills and insurance policies raise "constitutes the practice of the law."

The Supreme Court of South Carolina held that Chavis was no acting as a mere "scrivener" or stenographer, but because Chavis did the work away from the hospital outside of Weiss's presence and was guilty of an unauthorized-practice-of-law violation.

The court said "The purpose of prohibiting the unauthorized practice of law is to protect the public from incompetence in the preparation of legal documents and prevent harm resulting from inaccurate legal advice. ("The amateur at law is as dangerous to the community as an amateur surgeon....")

We construe the role of "scrivener" in this context to mean someone who does nothing more than record verbatim what the decedent says. We conclude respondent's actions in drafting Ms. Weiss's will exceeded those of a mere scrivener and he engaged in the unauthorized practice of law...

March 14, 2008

Florida Wills

How can you tell if a Will has been altered?
Most of the time you cannot tell by simply looking at the document. Often these documents are "tampered with" behind the scenes: friends, relatives, heirs or neighbors pressure, threaten or trick someone into changing, modifying or preparing a new Last Will and Testament or Codicil (an amendment to the Will). It takes an experienced lawyer to discover the facts and circumstances behind the preparation and execution (signing) of a Will.

Can a child be cut out of a Will?
In Florida, an adult child can be cut out of a Florida Will . So long as the parent is competent. An adult child can be removed from a Last Will and Testament (or a Florida Revocable Trust) for any reason. If a child is not mentioned in a Florida Will , it may be a mistake and grounds may exist for a Will contest. A child that is born or adopted after the decedent makes a Florida Will , may be entitled to receive 50% of the decedent's estate under the Pretermitted Child statute. However, a minor child has special "homestead" rights which prohibit the decedent from gifting his home if he or she is survived by a minor child.

When is litigation the only option?
Often litigation is cause by a failure to communicate. You will find that if people communicate and treat each other fairly or as they would want others to treat them any disagreements can be resolved amicably and without the need for lawyers. Most Probate disputes, Will contests and Trust litigation end up settling before trial.

When does helping a relative become Undue Influence?
If you make a telephone call to a lawyer to help a relative or friend prepare a Trust or Last Will and Testament, there may be a presumption that you exercised undue influenced over that person, especially if you're a beneficiary of the estate. The lines between helping a person and coercing them often become blurred in a fight over estate assets. Seemingly harmless assistance to a mother or father can be twisted into deceitful or dishonest behavior. Sometimes seemingly harmless assistance is deceitful or dishonest behavior that will go unchallenged without the helped of a skilled attorney. If you are planning on assisting another with the preparation of estate planning documents, ask the attorney what steps can be taken to reduce the appearance of impropriety, influence or over reaching.

Can a Spouse be cut out of a Will or Trust?
No. Florida law requires that in the absence of valid pre/post marital agreement, the surviving spouse is entitled to an elective share (approximately 30% of the fair market value of the decedent's assets); exempt property (household furniture, certain automobiles and Florida College saving programs); family allowance ($18,000); and/or entitlement to an Intestate or Pretermitted share of the decedent's estate. The right of the surviving spouse to receive from the decedent's estate is neither obvious nor straight forward. Multiple overlapping laws come into play that if analyzed incorrectly could costs the surviving spouse a fortune.

March 13, 2008

Key Considerations in Pet Trusts and Estate Planning

Gerry Beyer, author of the Wills, Trusts & Estate Professors Blog has a post on his blog Becoming a "Pet Friendly" Estate Planner which points to an article he wrote in Legal Times. "Your Trust-worthy Pet" discusses the history of providing for pets which began in England in 1889. Now around 40 states have authorized statutory pet statutes.

In the Legal Times article he lists 13 important consideration for traditional pet trusts:

1. Create the trust inter vivos or in the pet owner's will?
2. Who is the animal's caregiver (the beneficiary of the trust)?
3. Who is the trustee and will the trustee be paid?
4. When should ownership of the pet be transferred?
5. What and how much property should be transferred to the trust?
6. What is the desired standard of living for the pet?
7. How is the distribution of trust property to the caregiver determined?
8. Should the caregiver be "paid" for services?
9. When should the trust end?
10. Who should be the remainder beneficiary when the trust ends?
11. How should the animal be identified?
12. How should the animal's welfare be monitored?
13. What happens to the pet when it dies?

To create a Florida Pet Trust you should Contact a Florida Estate Planning Lawyer to discuss how you can modify your Florida Will or Florida Revocable Trust.

March 12, 2008

Can Your Dog Inherit Your Estate?

In Florida, and many other states animals are now allowed to be the beneficiaries of a special trust that is created to take care of them. These are often referred to as a Florida Pet Trust.

Today I was reading an article published in Arizona which stated that a Dog could inherit one's estate. While the article gives the correct advice the title is misleading and seems to suggest that a dog could inherit your estate. A pet may only receive the benefit of a Florida Pet Trust while the animal is alive. Being the beneficiary of a trust is not the same as inheriting part of an estate. In fact, a gift to a pet which is not in the form of a Florida Pet Trust would be void in Florida and most states.

To create a valid Florida Pet Trust please Contact a Florida Estate Planning Lawyer.

March 12, 2008

Free Combination Living Will, Designation of Health care Surrogate and HIPAA Release

The other day, I wrote an article on the pitfalls of using a Free Florida Durable Power of Attorney. I have been thinking of a way to provide a good power of attorney for my readers. I have been unable to come up with a generic form that I feel comfortable publishing because of the huge liability associated with the Power of Attorney in Florida. Perhaps I will figure a way to accomplish this in the future. In the mean time, I have created the second most important document to any Florida Estate Plan - the Combination Living Will, Designation of Health care Surrogate and HIPAA Release.

You may ask what is a Combo Living Will and how is it different than my existing document. The biggest difference is that this document contains a HIPAA release which is necessary for your agent to obtain medical records, and the power for your agent to make decisions when you are unable to.

Many lawyers provide these as 3 separate documents. I find that my clients like to have them in a single document because it avoids the ability for your agent to show one or more but not all of the documents to achieve their desired results and circumvent yours. By having a single document you can make sure the objectives of Florida Living Will are preserved and consistent with any actions taken by your medical agent.
Free Combination Living Will, Designation of Health care Surrogate and HIPAA Release

You should have this document reviewed to make sure it was executed properly. Please contact your Florida Estate Planning Lawyer or Florida Lawyer to review the document.

March 11, 2008

Florida Estate Planning Questionnaire

Many of my clients have been asking me to post a copy of my Florida Estate Planning Questionnaire in a Microsoft word document so they can fill in and forward me the information online.

This information will be useful to any Florida Estate Planning Lawyer in the creation of an estate plan. If you would like a free review of your needs and suggestions on ways to save probate costs, estate taxes, and provide for your family the way you desire, take a few moments and fill out the form and email me a copy asking me for your free review. (my direct email address is in the document)

I will try to review the documents and discuss what makes sense for you within 72 hours.

If you are an Estate Planning Lawyer feel free to use this form and or provide any feedback on ways to improve it.

Note: The financial information only needs to be an estimate, no exact values are necessary. It is used to provide an estimate of the amount and types of assets so that proper planning can be addressed.

March 11, 2008

Can Your Dog Inherit Your Estate?

In Florida and many other states animals are now allowed to beneficiaries of a special trust that is created to take care of them. These are often referred to as a Florida Pet Trust.

Today I was reading an article published in Arizona where a letter to the editor basically stated that a Dog could inherit ones estate and referred to Leona Helmsley as an explanation of this. While the article gives the correct advice the title is misleading and seems to suggest that a dog could inherit your estate. A pet only receives the benefit of a Florida Pet Trust while it is alive and the pet does not have the ability to use it for anything they want. A beneficiary of a trust is not the same as inheriting one's estate. In fact a gift to a pet that is not interpreted as a Florida Pet Trust would be void in Florida and most states.

To create a valid Florida Pet Trust please Contact a Florida Estate Planning Lawyer.

March 10, 2008

Free Florida Durable Power of Attorney - Will it work?

Over the weekend, I read an article about a Free Power of Attorney written by Jerry Bartholomew of the Michigan Elder Law Blog and decided to look for a FreeFlorida Durable Power of Attorney. I ran across a website by H & R Block called RocketLawyer.com.

This website offered me a free Durable power of attorney for Florida residents. In reading fine print, I discovered that the "Free" document was going to charge my credit card 19.95 per month for ever if I did not cancel my account within 5 days. ( I did cancel my account, but it took me a while because they do not tell you how to cancel the account. (FYI to cancel your RocketLawyer account simply send and email to support@rocketlawyer.com with the words Cancel Account in the subject.

Anyway, I thought being a lawyer I could use their service to create a valid Power of Attorney but I wanted to know if someone who did not know what to do could create an invalid document.

I must say that I was surprised that not only was the document not Florida specific, and did not offer any of the protections that a valid Durable Power of Attorney can offer Florida Residents like being reimbursed for the costs of refusal to accept the agent's authority. The Free software also allowed me to create an invalid document.

Even scarier that an invalid document, it allowed me to simply revoke prior designations by putting a line in my document. Anyone who has been to a Florida Estate Planning Lawyer knows that give proper notice of a revocation for a Durable Power Of Attorney one must file a revocation in the county where they live.

What did I learn from creating my Free Florida Durable Power of Attorney? I learned that for $240 a year, I can create an invalid, unenforceable Florida Durable Power of Attorney which wrongly purports to revoke my old Florida Durable Power of Attorney. This invalid revocation could allow my old agent to continue to act as my agent in making decisions on my own. I would be responsible for my agents actions because I did not give proper notice for the revocation to become effective.

Oh yea, did I forget to mention that I was not given the opportunity to create a contingent deployment version of the Durable Power of Attorney, the free version took effect immediately, its a good think that the free version was not valid.

What a bargain.

March 10, 2008

Mom's hand-written is it valid?

Rules regarding wills are usually based upon where the will was created. The general rule is that when a Will is valid at the time of creation, Florida will honor the will.

There is an exception to this and it regards certain handwritten or holographic wills. a Holigraphic Will is not valid in Florida unless it complies with the Florida Statute of Wills.

So even while your Mom's handwritten will in California may be valid, it will not be valid in Florida. To make sure you have a valid Florida Will please Contact a Florida Estate Planning Lawyer

March 8, 2008

Gifts to yourself with a Power of Attorney

Although a Power of Attorney often authorizes the agent to give gifts, agents should be careful when making gifts to themselves.

The Chicago Tribune has an article on an agent who gave herself $180,000 in gifts and the ensuing court battle over theft by deception, financial exploitation of an elderly person and conspiracy to commit financial exploitation of an elderly person.

If you believe someone has taken advantage of your or a loved on by the inappropriate use of a Durable Power of Attorney or Power of Attorney you should Contact a Florida Estate Planning Lawyer to review the facts.

March 7, 2008

Death Detective Aids South Florida Researchers

If you need information on someone who died in south Florida in the last 100 years, you may be in luck.

A south Florida resident, Ann McFadden, has compiled a 4,000-page record of all most every death listed in a local newspaper for more than the last 100 years.
Now people are using this information to help resolve tricky genealogy research issues, reports the Miami Herald.

Ms. McFadden is a fixture at the main Miami library downtown. Deaths are not her only interest according to the Miami Herald. Ms. McFadden has also "indexed local adoption, military and probate records and has compiled a short history of a handful of local cemeteries, including Palms Woodlawn in Naranja, Miami City Cemetery on Northeast Second Avenue, Pinewood in Coral Gables and Woodlawn North on Southwest Eighth Street."

Ms. McFadden who is now 74 became interested in such work because she wanted to find out about her own family after living with her grandmother for 25 years and never asking her a single question about her family.

If you are searching for an heir in South Florida, you may check out the information Ms. McFadden has compiled.

March 6, 2008

Florida Long Term Care Insurance Backfires

Many individuals have long term care insurance to help with nursing home and assisted living costs. Generally long term care insurance is considered a good investment when individuals are healthy can afford the premiums. Rarely does having long term care insurance lead to a negative result.

Things might have changed in Florida with outcome of a recent caseRosenshein v. Florida Department of Children (Fla. Ct. App., 3rd Dist., No. 3D07-989, Oct. 24, 2007). The Appeals court agreed with the state's determination that payments received from a long-term care insurance policy are income. This income can create an ineligibility for Medicaid benefits.

What does this mean for your current long-term care policy? Should you abandon long term care insurance to help pay for nursing home costs? I don't think so. You do need to evaluate the way in which your policy is written and how benefits are paid to avoid this type of outcome. If you would like your long-term care policy reviewed you should Contact a Florida Estate Planning Lawyer to review your policy in light of the outcome of Rosenshein v. Florida Department of Children.

This topic was covered by SeniorLaw Link on December 17, 2007 in an article by Richard Shea, a CT Estate Planning and Elder Law Attorney

March 5, 2008

NFA Trusts - Certificate of Trust will not work

The BAFTE will no longer accept a certificate of trust with a Form 1 or Form 4 application for the purchase of Class III items. According to the person in charge of reviewing all trusts, all applications without the declaration of trust will be rejected.

There are many unique issues with Class 3 ownership and the typical trust does not deal with these issues. Please review the information on NFA Gun Trust to protect yourself and your family from the $250,000 penalty and 10 years in jail which are associated with the improper transfer or possession of these items.

To find a lawyer in your state who can help with a NFA Gun Trust please Contact an Estate Planning Lawyer

March 5, 2008

Florida Guardianship Procedures

A person is qualified under Florida Law to serve as a guardian if he or she:

1. Is over the age of 18 years of age;
2. Is a Florida resident; or a non resident who is:
1. Related by lineal consanguinity to the ward;
2. A legally adopted child or adoptive parent of the ward;
3. A spouse, brother, sister, uncle, aunt, niece, or nephew of the ward, or someone elated by lineal consanguinity to any such person; or
4. The spouse of a person otherwise qualified above; and
4. Has never been convicted of a felony.

Filed with the Court, along with the Petition to Determine Incapacity, is a Petition for Appointment of Guardian, and an Application for Appointment as Guardian.

In, Florida, unless the Alleged Incapacitated Person is indigent, the Petition must also be accompanied by a check to the Clerk of Court for the filing fees of around $288.50, and a check in the amount of $20.00 to the County Sheriff for service of process. (fees may vary slightly per county)

Upon the filing of a Petition to Determine Incapacity, the Court will appoint three individuals to serve as members of an examining committee.

One member must be a psychiatrist or another type of physician.
The other two members must be either a psychologist, gerontologist, physician, a registered nurse, nurse practitioner, a licensed social worker, a person with an advanced degree in gerontology from an accredited institution of higher education, or other person who by knowledge, skill, experience, training, or education may, in the court's discretion, advice the court in the form of an expert opinion.

At least one of three members must have knowledge of the type of incapacity alleged in the petition. Generally without good cause, the family physician may not be appointed to the committee.

Next the examining committee members will each meet independently with the alleged incapacitated person to evaluate his or her abilities and file a written report with the Court.

The Court will also appoint an attorney to represent the alleged incapacitated person. The alleged incapacitated person may substitute their own attorney to represent them throughout the proceeding.

If a family member is appointed by the Court to serve as guardian, that family member will be required to attend an eight (8) hour educational course for guardians. They must also submit to criminal and credit background checks, proof of which must be filed with the Court. It is possible for non Florida residents to "attend" the educational course by listening to audio tapes.

The approximate cost to open a guardianship, which includes court costs, the examining committee fees, the court appointed attorney's fees, and your attorney's fees, range from approximately $5,000.00 to $7,500.00 or more if contested by other family members. After the guardianship is setup there will also be yearly fees associated with the requirements of the court. These fees and costs can range from $300.00 to over $2,500.00 per year.

For more information on Florida Guardianships Contact a Florida Estate Planning Lawyer who handles Florida Guardianships.

March 5, 2008

Anna Nicole Smith Baby Inherits Her Estate

Florida Will's and Florida Estate PlanningA Los Angeles judge has decided that the young daughter of former Playboy bunny and television personality Anna Nicole Smith will inherit her estate.

Although Smith's will, drafted before her now 18-month-old daughter was born, gave everything to her son, Daniel, it also said she intended that the assets in trust for him be shared equally if she had future children, reports the Associated Press. Meanwhile, Daniel died, at age 20, three days after Smith's daughter, Dannielynn, was born in 2006. Smith herself died about five months later, in early 2007, of an accidental prescription drug overdose.

She is perhaps best known as the young wife of an elderly Texas oil billionaire, J. Howard Marshall II. The two married in 1994, when she was 26 and he was 89. He died a little over a year later, and litigation over his estate is still ongoing. If Smith's estate prevails or a settlement is reached, her daughter could potentially inherit millions, Reuters points out.

March 4, 2008

Charities Loose Battle over $8 Milliion Will Contest

Only five weeks before his death Leonard R. Brener made a change to his will. He decided to change his beneficiaries form four local charities to his niece and her husband who took care of him while he was dying.

The non-profits were stunned and file a suit to battle over the money. The case took more than five years that the state appeals court recently ruled that Brener was mentally competent and his decision to leave the money to his family should stand.

The charities tried to argue that his change was unnatural because it would trigger significant estate taxes which he had previously stated he wanted to avoid.
(Estate taxes on 8M today are 2.7 Million Dollars) with proper estate planning its possible to have reduced the tax to 1.8 Million or less) Although the estate taxes from 2001 were significantly more than they are today.

This lengthy estate battle could have been avoided with the privacy afforded by a Florida Revocable Trust and some explanation within the will as to why the changes were being sought. In addition a Florida Revocable Trust would help to avoid the costs associated with a Florida Probate. If you would like more information on how a Florida Revocable Trust could benefit your or your family, Contact a Florida Estate Planning Lawyer for more information.

March 3, 2008

Estate Planning for Pets

Theresa Harrington of the Contra Costa Times has written about groups that encourage estate plans for pets. These are often referred to as Pet Trusts or may be included in a will with language that creates a testamentary Pet Trust.

She has found that it is suggested that $10,000 - $15,000 a year be set aside for the care of one's pet.

"Most people think some relative will take them. Sometimes they do, and sometimes they don't. She quotes, "From working in animal rescue, I see what happens to animals when their owners die. Approximately 500,000 pets are euthanized nationwide every year because they have gone into shelters when their owners passed away and homes couldn't be found for them.

If you want to ensure the care of your pet, Contact a Florida Estate Planning Lawyer to create a Florida Will with testamentary trust provisions for your pet or a Florida Pet Trust.

March 2, 2008

Will I Lose My Homestead Exemption if I add someone to my Florida deed?

Adding names to the ownership of your home normally does not change your $25,000 Homestead Exemption, BUT you may lose all or part of the protection your property receives from the Save Our Homes (SOH) assessment limitation or "cap". The SOH cap keeps the assessed value of your home from increasing more than 3% per year as long as you maintain your Homestead Exemption. A loss of protection from the SOH cap will increase the amount of property taxes you pay.

March 1, 2008

Will I lose my Save Our Homes Cap if I add someone to my deed?

Maybe, depending on how you own the property (the "tenancy"), and if the new owner files for Homestead Exemption on your property. "Tenancy" is the term used to describe the way property is owned, the relationship between the owners, and what happens to the property when an owner dies. The most common forms of tenancy are: tenancy by the entireties, joint tenants with right of survivorship, and tenants in common. If two or more people own property with a homestead exemption, the type of tenancy that appears on the deed can have an effect on the "Save Our Homes" provision, and ultimately the amount of taxes that are owed.

If the new owner is your spouse, or someone who is legally or naturally dependent on you, he or she must apply for homestead exemption. Your current Save Our Homes cap will not be adjusted.

Joint Tenants with Right of Survivorship:

If the new owner is a joint tenant with right of survivorship, and he or she DOES NOT apply for Homestead Exemption, your SOH cap WILL NOT be adjusted.

If the new owner is a joint tenant with right of survivorship and DOES apply for Homestead Exemption, your SOH cap WILL be adjusted to market value and start anew the following year. In future years, the SOH Cap will protect 100% of the property.

One Important Note! If the new owner is living with you and intends to make the property his or her permanent residence, it may make more sense to apply for the new Homestead Exemption now rather than waiting until a later date. Your Homestead Exemption and SOH cap protects only you, and not the new owner. In the future if you no longer reside in this home, the new owner will have to apply at that time, and the property value and taxes will most certainly be much higher than they are now.

Tenants in Common

If the new owner is a tenant in common and DOES NOT apply for homestead exemption, your SOH cap WILL BE adjusted to protect only your proportionate or "percent" interest in the property. The "percent" interest of any owner who does not have homestead exemption will be assessed at market value each year.

If the new owner DOES apply for Homestead Exemption, your SOH cap WILL BE adjusted to market value and start anew the following year.