June 2012 Archives

June 22, 2012

Florida Elders can Improve Memory through Exercise

happy_elderly_couple_americare.jpgJacksonville Elder Law Lawyers keep up with legal matters as well as non-legal matters when it comes to advocating and educating the elderly. A recent article published in the Times of India discusses a study conducted by scientists at the University of South Florida and the University of Shanghai.

The findings of an 8 month controlled trial, compared a group of Chinese seniors who practiced Tai Chi (a Chinese form of self-defense that has evolved into a graceful exercise) 3 times a week to a group with no intervention. The results of the study found increases in brain volume and improvements on tests of memory and thinking in those seniors who practiced Tai Chi three times a week. The same trial also showed increases in brain volume and more limited cognitive improvements in a group that participated in lively discussions 3 times per week over the same period.

This was the first trial to show that a less aerobic form of exercise, Tai Chi, as well as stimulating conversation, led to increases in brain volume and improvements on psychological tests of memory and thinking.

Unlike many exercises, when engaging in Tai Chi one uses cognitive functions such as attention and coordination that may strengthen not only the body's muscles but also the brain's muscles. No doubt this gentle "meditation in motion" exercise will have beneficial results for many elders.

There are also numerous legal methods to ensure that Florida elderly combat the negative results that accompany dementia and Alzheimer's. Negative results are when an aging person is no longer able to dictate and make his or her own decisions. When an elderly person begins to lose their capacity, their children or other relatives may end up making financial and health decisions for them. These decisions may be contrary to what the elderly person would have chose.

Having a discussion with Elder Law Attorneys is good for your health. Elders will learn about ways to qualify for Medicaid, ways to protect their assets, and ways to preserve their wishes about health, finances and inheritance matters. It is in the best interest of the elderly to talk with an attorney prior to the onset of physical and cognitive disability.

So, engaging in exercise, especially the moderate movements of Tai Chi is good for one's mental health. Likewise, consulting with a Jacksonville Elder Law Lawyer, is also good for one's health.

June 6, 2012

Removing a Personal Representative in a Florida Probate

In Florida the personal representative is appointed by a court and does not become a personal representative until appointed even if they are named as the personal representative in a decedent's Will. The court will look first to any Will that specifies the priority of a Florida personal representative. If there is no Will, the court will look first to a surviving spouse and then a person selected by a majority of the heirs.

It is difficult but not impossible to remove a personal representative who has been appointed by the court unless there has been a failure to provide proper notice of the probate proceeding.

Removing A Florida Personal Representative
There are circumstances when a Florida probate court can override a decedent's choice of an executor or personal representative. Sometimes there is a dispute over the validity of a Last Will and Testament or problems between people with equal representation. In some of the cases the Florida Probate Court may choose to appoint a temporary personal representative or a curator to serve as the personal representative.

A personal representative or curator are entitle dot a reasonable compensation under the Florida Probate Code. Compensation in estates with less than 1 million in assets is approximately 3% of the probate estate. The Florida Probate Code has a schedule of reasonable fees that cover ordinary duties. If there is additional litigation or tasks outside of the ordinary course of a probate proceeding, the personal representative may be entitled to a larger fee. In some cases when an attorney is appointed to serve as a personal representative by the court, the fee may be based on an hourly rate as approved by the court.

When there is more than one person who is legally qualified to act as a personal representative the probate judge my select the one who is "best qualified".
Reasons to Remove a Personal Representative.

Because of the duty owed to the estate, a personal representative may be removed if they do not act in the best interest of the estate. In such a case, the court can remove the personal representative and appoint a successor.

The Florida Probate Code lists causes for removal of a Personal representative.
If the Personal representative becomes adjudicated by a court to be incapacitated.
A physical or mental incapacity which leaves the personal representative unable to perform his or her duties.

  1. Failure of the personal representative to comply with a court order.
  2. Failure to account for the sale of property or provide an inventory.
  3. Wasting the assets of an estate.
  4. Failure to post bond.
  5. Conviction of a felony.
  6. Insolvency or a corporate personal representative.
  7. Except for a surviving spouse, acquiring a conflict of interest that may or will interfere with the administration of the estate.
  8. Revocation of the will naming the person as personal representative.
  9. Removal of Florida as a Domicile unless domicile is not a requirement.
  10. If the personal representative would not now be entitle to appointment.
Any "interested person" can petition the court for removal. This is quite a low bar, and means that anyone who stands to lose something due to the personal representative's actions (usually a person who anticipates receiving assets of the estate) can file a petition. Alternatively, the court can initiate removal proceedings on its own.

Once a personal representative has been removed, he or she must file a final accounting of his or her administration and surrender any assets in his or her possession to the new personal representative appointed by the court.

If you are involved in a probate where you feel that the personal representative is not qualified or should be removed, or you believe that your appointment as a personal representative in a Florida probate will be challenged, you should contact a Jacksonville Probate Lawyer to discuss your circumstances and options.

June 5, 2012

Planning for Pets who are Part of Your Family: Can a Pet Trust help?

Is your pet a member of your family? If so, you will want to read this article. Do you know what would happen to your pet if something happened to you? Many pet owners have not considered the fate of their pet. After all your pet state laws have not created provisions for you pets to the same extent as they have for your children. Pets in Florida and most states are considered personal property and are dealt with as such.

If you become disabled or die, who will take care of your pets, who will pay for their food, shelter, doctor bills? Who will receive them? Do you want the same person who receives your other personal property to get your pet?

These are some of the issues that pet owners should deal with to create plans for the case where your pet survives you and your spouse.

In Florida What Will Happen to Your Pets When If You Become Disabled or Pass Away?


Without proper planning, your pets may euthanized. Local laws in the area where you pet is located at the time of your death will control what happens to you pet without other provisions. Sometimes in a few days, your pet could be killed if nobody comes forward to claim your pet.

Outright Gifts
Florida law treats pets as personal property. You cannot leave money to a pet directly. You may leave money to a caretaker but you cannot require actions of the caretaker after they receive the money. What will happen if your caretaker does not survive you or the pet?

Statutory Pet Trusts
Most states including Florida have enacted pet trust statutes. These trusts allow you to designate a third-party to use the trust funds for the benefit of pets. While pet trusts can offer a solution, many are choosing to create custom provisions in their standard estate planning that can offer more flexibility without the limitations placed on Pet Trusts by statute.

In determining how much money to allocate for your pets you should consider the current level of care as well as the cost of food, treats, daycare, medical, grooming, insurance and if any additional costs will be incurred because of the amount of land or property needed for the pets. While many people think of pets as dogs and cats, there is growing percentage of the population who have pets with much longer life spans and some can live for more than 100 years. (Birds, horses, reptiles)

Often a standard Will is inadequate for pets. Wills generally do not address disability and because of the long time required to probate a Will.

Funding Pet Care
You may find that other assets can be used to fund the care of your Pet. If you do not have enough assets to take care of your Pet without your continued income, you may consider a life insurance policy that funds the trust or is owned by a trust so that money will be available to take care of your pets in the case of your disability of death.

Conclusion
 There are many issues to consider when making plans for your disability or death in regards to the family pets. In addition, one must be careful not to encourage fraud by the caretaker by creating proper controls and checks. For those of us who consider pets part of our family, most pet trust statutes help but can be to restrictive for many situations. It is important to discuss your goals and objectives with a Florida estate-planning lawyer to determine what if anything you should do to properly provide for your family and your pets.

June 4, 2012

Does Ex-Wife Have Rights to Personal Property?

If you die without a will in Florida, your ex-wife has no rights to any of your personal property unless you have her named a beneficiary in a will or trust or your personal accounts have her listed as a joint account holder or a beneficiary on an account.

Generally most people do not intend to leave their ex-spouse money or property. If you do want to, then its important to make sure you document will be honored. If you will or trust was created before the divorce, then the ex-spouse will be treated as predeceasing you.

If someone who takes personal property of a decedent, they can be subject to criminal charges. It may be necessary to open a Florida Probate to pursue recover of the items that belong to the estate and then distribute them to the correct beneficiaries.

If you are involved in an estate where property is missing or has been taken by the wrong person, contact a Florida Probate attorney to discuss your circumstances by filling out the contact us form on this page.