May 2012 Archives

May 24, 2012

Tort and Probate Law: Tortious Interference and Expected Inheritance

The recent decision of a Florida appellate court has shed some light on a little discussed aspect of tort and probate law in the state of Florida. The Third District Court of Appeals ruled in the case of Saewitz v. Saewitz that to sustain a prima facie case for tortious interference with expected inheritance the plaintiff must prove damages.

In this case, two daughters, Mercedes and Brooke Saewitz claimed that while their father was dying their step-mother Lynn Saewitz manipulated their father and tortuously interfered with their inheritance. At trial, the case was dismissed because the trial judge held that the daughters did not prove the damage element required to make a prima facie case of tortious interference. The elements of the cause of action are as follows:

(1) expectancy by the plaintiff to receive an inheritance;
(2) intentional interference with that expectancy by the defendant;
(3) defendant's interference involves tortious conduct;
(4) reasonable certainty that but for the defendant's tortious interference the plaintiff would have his/her expectancy; and
(5) damages.

Like any tort or crime, all of the elements must be met in order to sustain the claim. If one of the elements is missing, the plaintiff cannot recover. In the Saewitz case the plaintiffs could not determine with any certainty the value of the property that they claim was tortiously interfered with. At trial, three witnesses testified regarding the value of the property, however no one could provide a specific value of the property at the legally recognizable time. Florida requires that the value of the property be measure at the time of conversion. Since no one testified about when the property was actually converted, there is no proper measuring standard.

Because this tort is relatively new in the state of Florida, those who may be going through probate would need a Florida estate planning attorney to assist them if they believe someone has tortiously interfered with their inheritance. If you questions regarding Florida probate law, contact the Apple Law Firm PLLC and speak with a Jacksonville Probate Litigation Attorney today at (904) 685-1200.

Source: "Tortious Interference with Expected Inheritance in Florida," published at BusinessReviewUSA.com.

May 23, 2012

Florida Appellate Court Adds New Requirement for Trust Contestants

The Fourth District Court of Appeals recently handed down a decision which may impose new requirements on probate plaintiffs who are challenging trusts. In Pasquale, Jr. v. Loving, et. al., the Court held that if a person is contesting a trust, the contestant must also contest the will if the trust is incorporated by reference into the will.

The plaintiffs filed a complaint with the probate court challenging trust documents that accompanied a last will and testament. The complaint did not address the last will and testament directly. The defendants moved to dismiss the complaint because the defendant's argued that the plaintiff's complaint did not attack the will, which was required since the trust was incorporated into the last will by reference. "In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will." The probate court agreed with the defendant's and dismissed the probate suit with prejudice.

The Fourth District Court of Appeals reversed the probate court's ruling, even though the language of the appeal suggested that the Court agreed with the defendant's reasoning. The Court held that a trust contestant is required to challenge the will if the trust is incorporated into the will by reference, but when the Court analyzed the facts of this case, it held that the complaint could be construed as challenging the will even though the precise language is missing.

What is important for probate attorneys is that the Court has imposed a new requirements for when a client is claiming that a trust is legally ineffective. Such a requirement may be overlooked by those pursuing probate claims without the assistance of a Jacksonville estate planning attorney. If you have questions about a Florida Probate, an estate, or about a will or a trust, contact the Apple Law Firm PLLC today at (904) 685-1200.

Source: "Fourth DCA: A Trust Contestant May Need to Challenge the Will, Too [Florida]," by Charles Rubin, published at JDSupra.com.

See Our Related Blog Posts:
Jacksonville Gay and Lesbian Issues Lawyer with Breaking News

What are Probate Assets in Florida?

May 10, 2012

Adding Kids To Deeds Can Place Florida Homestead in Jeopardy to Creditors

Joseph Percope has written an article The Impact of Co-ownership on Florida Homestead in the Florida Bar Journal that discusses the tree kinds of homesteads defined in a 1997 Florida Supreme Court case: The tax exemption; The Protection from Creditors; and The restrictions on alienation of homestead property in Florida.

While most are primarily concerned with their tax breaks, as a Florida Estate Planning Lawyer we often deal with the second two more often in our planning. We see families attempting to avoid probate by adding kids on to deeds all the time. We also see parents who own part of their children's homes. The problem begins when in either of these situations one or more of the owners does not live in the home. The home or at the ownership of the person not living in the home is subject to the claims of their creditors.

When no ownership percentage is specified, Florida will apply equal percentages of ownership to each person named on the deed. If a single person adds their child onto their deed as joint tenants with rights of survivorship, 50 percent of the equity in the home will be exposed to the creditors of the child who is not living in the home.

Once a creditor takes an ownership in the home, it is possible to force the sale of the home.

While these types of deeds are rarely a good idea because of the tax and basis considerations, many have not considered the additional risk due to the creditors of co-owners who do not live in the home or qualify for the second type of homestead (the constitutional protection from creditors)

The same scenario applies to those who try to use a traditional life estate deed to avoid probate. ( a Florida Enhanced Life Estate Deed does not have many of the problems that a traditional life estate does.

If you are trying to avoid probate in Florida and would like to also have protection for your homestead from creditors, not have adverse tax consequences, not lose stepped up basis, and/or not create a disqualifying transfer of assets for Medicaid purposes, you should contact a Florida Estate Planning Lawyer to discuss how to protect your homestead and the options available that deal with your circumstances and goals.
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May 8, 2012

Can a Florida Will Be Changed After Death?

Thumbnail image for will and testament.bmpHistorically a Florida Will could not be changed and had to be strictly complied with by in a Florida Probate.

A recent change to Florida Probate allows for the court to step in and change the terms of a person's will when there is no question about what the terms when there is clear evidence that what the testator intended.

Anyone can ask a court to change the terms of a Florida Will when there is clear and convincing evidence that a mistake of fac or mistake of law caused the will to reflect something other than the testator's true intent.

Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a court.

The underlying intent of this new law is to carry out the true intentions of the testator.

May 4, 2012

Florida Enhanced Life Estate Deed and Medicaid Planning

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed" is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family and avoid a Probate in Florida. Upon the death of the homeowner's the property will pass to the people designated without the need for a costly probate process in much the same way as a bank account with a beneficiary designation.

Jacksonville Duval Clay Orange ParkWhy Use an Enhanced Life Estate Deed?
The Florida Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Who should use the Enhanced Life Estate Deed?
A Florida Enhanced Life Estate Deed or Florida Lady-Bird Deed should be use by individuals or couples who want to simplify the transfer of their property upon their death and retain full authority and possession over their property.

Will using an Enhanced Life Estate Deed affect my Florida Medicaid Eligibility?
As long as the individuals demonstrate an "intent-to-return" to the homestead Medicaid Eligibility should not be affected.

What are some common mistakes with deeds?
Many Florida residents add their children on their deeds as Joint Tenants with Rights of Survivorship.
Many Florida Residents deed their property to their children and retain a life estate.

What can happen if I have made a common mistake on my deed?
1) My home may not be protected from creditors and/or loose its homestead protection.
2) I may be disqualified from Medicaid in the event that I need to go into a Nursing home.
3) I may have made a gift, subject to Federal Gift Taxes, Penalties, and Interest which my heirs and/or family may be responsible for paying.
4) I may not be able to sell my home or use the proceeds from my home to enhance my quality of life, travel, or pay for the necessary medical care I need.

If I have made a mistake transferring my property, can it be fixed?
Yes, You should meet with a Florida Estate Planning Lawyer to evaluate your situation, and prepare the documents necessary to allow you to qualify for Medicaid, deal with the Gift taxes, protect your homestead, and pass your homestead to the desired beneficiaries without the costly expense and delay of Florida probate.

May 3, 2012

Gay and Lesbian Issues Breaking News

The fight for Jacksonville equality is reaching its crescendo. The Jacksonville City Council will soon consider legislation presented to them which if passed would offer protections to the LGBT community. Currently, the Jacksonville human rights ordinance does not provide protection for the gay community. That means that those persons who are gay, lesbian, and transgender have little to no shelter from discrimination in the workplace, housing, and public accommodations.

There have been several Florida cities and municipalities that have amended or put in place legislation to protect this vulnerable segment of society. If passed the bill in Jacksonville would prohibit discrimination based on sexual orientation and gender identity.

Almost two weeks ago, Tampa Mayor, Bob Buckhorn signed legislation that will put into place a Domestic Partnership Registry. Similar registries exist in Palm Beach County, Miami-Dade County, and more recently Orange County.

The requirements to register are many but usually require that, among other things.

(1) The couple resides in the county where they apply;
(2) each person is 18 years of age; and
(3) Each party agrees to be jointly responsible for each other's basic good, shelter, common necessities of life and welfare.
The benefits can be huge, including the ability to visit and make decisions regarding health care and funeral/burial arrangements, pre-need guardian designation for incapacitated partners, and visitation rights in correctional and health care facilities.

If you are interested in learning ways in which you can protect your rights and the rights of your partner, contact a Jacksonville Gay and Lesbian Estate Planning Lawyer.

May 1, 2012

What are Probate Assets in Florida?

Florida statutes define probate assets as those assets subject to a probate administration. There are several types of Probate in Florida which are discussed in our Free Florida Probate Handbook that you can request.

Often it is easier to define which assets are not subject to probate.
In Florida any asset with a surviving joint owner, valid payable on death designation, or contract clause which defines what happens to the asset upon death are not subject to probate. Often these include life insurance policies, annuities contract or retirement account with a transfer on death clause, jointly owned bank accounts, real estate with and valid beneficiary designation clause. One of the most common items that is not subject to probate is a Florida homestead. While a homestead is not devised through probate typically, title companies will often require it to be dealt with in a Florida probate to issue title insurance. The good news is unless you messed up your will or other documents, a Florida Homestead will not be subject to the claims of your creditors or the creditors of your beneficiaries if it is their homestead.

a Florida Probate can be expensive so it is wise to review your estate plan with a Jacksonville Estate Planning Lawyer to see if any of your assets will be subject to a Florida Probate and if a probate in Florida can be avoided.