April 2, 2013

General Guidelines for Successor Trustees in Florida

The management of a revocable living trust is intended to be a simple, private, inexpensive matter handled by the Settlor and those people the Settlor chooses, without court intervention. It is always a good idea to seek professional advice when taking over the management of another persons trust. Generally the roles, responsibilities, and duties can be explained quickly and stop many problems before then create harm.

The following are general guidelines that you should supplement with the specifics of the trust you will be managing; these guidelines are not intended to be specific advice for any particular situation. These guidelines apply to successor trustees who find themselves in charge of a trust.

There are three situations in which you may have assumed the title of Trustee: 1) The Settlor has been determined to be incapacitated as defined in the Trust; 2) The Settlor has died; or 3) The Settlor has resigned as the Trustee and either appointed you as the Successor Trustee or named you the Successor Trustee in the Trust document.


An Overview
Regardless of why or how you came to be trustee, all successor trustees should keep a few general ideas in mind.

  1. You are handling someone else's property, not your own. When you act as a Trustee you should follow the rules and laws that apply to the trust. These rules and laws come from two sources. The first source is the trust document. In that document you will find many paragraphs that describe what you are allowed to do, what you are required to do, and what authority you have to exercise your own discretion in making decisions. The second source is the state and federal laws that apply to the trust.

    A successor trustee should immediately familiarize himself or herself with the trust document, and any amendments to the trust, to be certain that the successor trustee knows what is expected and what is required by way of management, distributions, reporting, accounting, and any other specific duties that the trust might place on the trustee.

  2. You will be required to account for and explain your decisions and activities in the management of the trust. You will be required to provide regular accountings to the beneficiaries of the trust, and may be required to make certain reports to the tax authorities. Detailed records will make that reporting a lot easier. Your records might include detailed checking ledgers much like you would keep for your own checkbook. The records should show the check number, date, amount paid or received, whom the payment was from or to, and the purpose of the payment. Another good idea is to keep a journal or log book of activities for the trust, in which you would make notes about what you have done and why. You should have a good initial accounting where you list the assets at the time you took over the job.
  3. Clear communication between the trustee and the beneficiaries can avoid future misunderstandings.
  4. Avoid self-dealing. Do not have your spouse or family provide services for the trust if they will be paid for their work. If you feel that you must be involved people who you have a close relationships with, you should only do so after a full disclosure of the terms and circumstances and obtaining written approval from each of the beneficiaries. A small degree of formality now can avoid a major misunderstanding later when the trustee and the beneficiary may have quite different recollections of an arrangement.

Continue reading "General Guidelines for Successor Trustees in Florida" »

March 30, 2013

How to Transfer the Decedent's Property in Florida to Your Name

Below is a summary of the more common ways that property is transferred in the state of Florida when someone dies.

housepuzzle.pngSomebody just died leaving you an interest in a piece of property. To reclaim your interest in the property you must prove that you own it by documenting the transfer from the estate of the decedent to you. The procedure involved varies depending on the interest held on the property by the decedent, and on many other factors.

Joint Tenancy with Rights of Survivorship
When two people own a property as joint tenants with rights of survivorship, each one of them owns an undivided interest in the property. When one owner dies, his or her title passes automatically to the surviving owner. However, the instrument creating the joint tenancy must explicitly provide for the right of survivorship. If decedent and you owned the property as joint tenants with right of survivorship, then the real property is automatically transferred to you. To reclaim your interest in the property, you just need to file with the clerk of court the decedent's death certificate.

Tenancy by the Entirety
This is a special form of joint ownership available only to married couples. A property held in this manner does not belong to one spouse individually; each spouse owns the property as a whole. Consequently, the property passes automatically to decedent's surviving spouse if it was owned as a tenancy by the entirety.

Tenancy in Common or Single Ownership
Probate is necessary if a person dies owning anything in his or her name individually. Probate is a court-supervised procedure in which the assets of the decedent are identified and gathered to pay decedent's debts and to be distributed among the decedent's heirs or beneficiaries. The following steps illustrate the distribution process of the property through probate:

1. Probate is opened.
2. Court appoints a personal representative (PR).
3. PR can use decedent's estate to pay for the costs involved in the probate procedure.
4. Court determines if the property is homestead (not subject to the claims of creditors) or non-homestead (subject to the claims of creditors)
5. PR notifies and pays decedent's creditors. If the property is non-homestead the property may be available to pay creditors' claims
6. PR distributes decedent's remainder assets to decedent's beneficiaries or heirs.

  • If decedent died with a will: You will receive a deed naming you as an owner of the property devised to you under decedent's Will.
  • If decedent died without a will: All decedent asset's will be distributed as stipulated in Florida Statutes section 732.102, 732.103, 732.104. You will receive a deed naming you as an owner of the property you are entitled to under Florida law.

7. Record the deed in the real property records of the county where the property is located.

Ancillary administration: It is the administration of a decedent estate in a state other than the one in which he or she lived. Ancillary administration might be needed when the decedent died living property in Florida and a domiciliary probate for his or her estate has been commenced in another state. To start this process, file a petition in the circuit court where the decedent's property is located. You must attach an authenticated copy of each of the following original documents:

  • The foreign will.
  • The petition for probate.
  • The order admitting the will to probate appointing the personal representative.

Keep in mind that authenticated means that each copy must have a court seal from the court where the original document was filed stating that the copy is an authenticated copy of the original.

SEEK ASSISTANCE FROM AN ESTATE PLANNING ATTORNEY
An estate planning attorney can discuss with you the options you have to dispose of your property avoiding probate. Moreover, an estate planning attorney can assist you in the process of transferring the property from the decedent to the person entitled to it. For an estate planning attorney in Florida call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

March 29, 2013

How to Obtain Your Devised or Inherited Property from a Florida Resident

Thumbnail image for probate.jpgWhen someone dies, his or her assets will not necessarily be distributed automatically to those entitled to them. If a person dies with a Will that devises his or her assets to you, then probate is necessary to carry out the instructions of the Will. Similarly, probate becomes necessary when a person dies owning anything in his or her name individually. This blog discusses the things that you need to receive your devised or inherited property that is in Florida and the process involved.


INGREDIENTS

  • Decedent's original Will.
  • The Will's self proving affidavit. If it is not available, then an oath from one of the following will be required: a witness to the Will, the nominated personal representative, or any disinterested person who believes the Will is genuine.
  • Probate's filing fee and advertising costs. These fees vary based on the type of proceeding and county of the decedent's residence.

PROCEDURE
NOTE: In Florida most probate cases require hiring an attorney.

  1. The custodian of the Will must deposit the original Will in the office of the clerk of Court within ten days of receiving information that the person is deceased. The custodian should deposit the Will with the Clerk of the Circuit Court in the county where the decedent resided. The custodian must also supply the decedent's date of death or decedent's social security number to the clerk upon deposit of the Will, if this information is available.
  2. There are three basic types of proceedings to administer a decedent's estate and the one used depends on the size of decedent's estate:
    • a. Formal administration: used when there are considerable assets and it is necessary to appoint a personal representative to act on behalf of the estate.
    • b. Summary administration: used when the value of the entire estate does not exceed $75,000 or when the decedent has been dead for more than two years.
    • c. Disposition of personal property without administration: used to request release of the decedent's assets to the person who paid for final expenses such as funeral bills or medical bills that accrued in the last 60 days.
  3. Once Probate is opened and the appropriate proceeding has been selected, the court appoints a personal representative for decedent's estate. The court gives deference to the person nominated as the personal representative in decedent's Will.
  4. The personal representative is under a duty to settle and distribute the estate of the decedent in accordance with the terms of the decedent's Will and the Probate Code as expeditiously and efficiently as is consistent with the best interest of the estate.
  5. The personal representative can use decedent's estate to pay for the costs involved in probate and must notify decedent's creditors so that they can file their claims against decedent's estate.
  6. After paying decedent's creditors, the personal representative distributes the remainder of decedent's assets to the beneficiaries entitled to them.
  7. After the administration of decedent's estate has been completed, the personal representative is discharged.

What if There is Not a Will?
If there is not Will, probate might still be necessary to distribute decedent's assets. Probate proceedings are initiated by filing a petition seeking to administer decedent's estate. A filing fee will also be required. Decedent's assets will be distributed according to Florida Statutes section 732.102, 732.103, and 732.104.

Contact a Florida Estate Planning Attorney
Going through the probate process can be a frustrating and daunting scenario. The best thing to do is to hire an estate planning attorney to assist you with this issue. Moreover, an estate planning attorney can help you plan your estate to assure an efficient distributions of your assets. For an estate planning attorney in Florida, contact the Law Office of David M. Goldman PLLC by dialing the number (904) 685 - 1200, or by clicking the "Contact Us" tab at the top of this page.

March 29, 2013

The Guardianship, the Guardian, and the Ward

When a person cannot take care of himself or herself, a court may appoint a guardian to take care of that person and/or that person's affairs. The person appointed a guardian is known as "ward." A guardian has the powers and duties stated in Florida Statutes section 744.361. The Ward retains the rights stated in Florida Statutes section 744.3215.

Types of Guardianship
There are three types of guardianship: guardianship of the person, of the property, and of the person and property. The court may appoint the type of guardianship that it determines is appropriate for the ward's incapacity.

The Guardian's Powers and Duties
The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and delegated to the guardian. The guardian of a minor has to exercise the powers of a plenary guardian. A guardian has the following duties:

  • Duty to file an initial guardianship report.
  • Duty to file a guardianship report annually.
  • Duty to implement a guardianship plan.
  • Duty to consult with other guardian, when more than one guardian has been appointed.

A guardian who is given authority over any property has the following duties:

  • Protect, preserve, invest prudently, and account faithfully for any loss in the property.
  • Perform all other duties required by law.
  • Deliver the property of the ward to the person lawfully entitled to it at the termination of the guardianship.
The Ward's Rights A person who has been determined to be incapacitated retains the following rights:
  • Right to have an annual review of the guardianship report and plan.
  • Right to have continuing review of the need for restriction of rights.
  • Right to be restored to capacity at the earliest possible time.
  • Right to be treated humanely, with dignity and respect, and to be protected against abuse, neglect, and exploitation.
  • Right to have a qualified guardian.
  • Right to remain as independent as possible.
  • Right to be properly educated.
  • Right to receive prudent financial management for his or her property and to be informed how his or her property is being managed, if he or she has lost the right to manage property.
  • Right to receive services and rehabilitation necessary to maximize the quality of life.
  • Right to be free from discrimination because of his or her incapacity.
  • Right to have access to the courts.
  • Right to counsel.
  • Right to receive visitors and communicate with others.
  • Right to notice of all proceeding related to the determination of capacity and guardianship, unless the court finds the incapacitated person lacks ability to comprehend the notice.
  • Right to privacy.
The following rights may be removed from a person by an order determining incapacity, but may NOT be delegated to the guardian:
  • Right to marry: if the right to enter into a contract has been removed, the right to marry is subject to court approval.
  • Right to vote.
  • Right to PERSONALLY apply for government benefits.
  • Right to have a driver's license.
  • Right to travel.
  • Right to seek or retain employment. The following rights may be removed from a person by an order determining incapacity and MAY be delegated to the guardian:
    • Right to contract.
    • Right to sue and defend lawsuits.
    • Right to apply for government benefits.
    • Right to manage property or to make any gift or disposition of property.
    • Right to determine his or her residence.
    • Right to consent to medical and mental health treatment.
    • Right to make decisions about his or her social environment, or other social aspects of his or her life.
    Contact a Florida Guardianship Attorney

    Guardianship is a last resort process and it is established only when there are not less restrictive means of intervention. Therefore, the best thing to do is to contact a guardianship attorney before facing with the possibility of needing a guardian to discuss the options available to avoid guardianship. For an attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

March 28, 2013

Guardianship in Florida

guardianship.pngWhat is Guardianship?
Guardianship is a legal process in which the circuit court appoints someone to protect and exercise the legal rights of an incapacitated person. A person is incapacitated if it is judicially determined that the person lacks capacity to manage at least some of his or her property, or to meet at least some of the essential health and safety requirements. An incapacitated person is known as a "ward," and the individual appointed by the court to act on behalf of the ward's person, property, or both is known as a "guardian." A guardian can be an individual or an institution.

How is it Determined that a Person is Incapacitated?
Any adult can commence the process to determine whether someone is incapacitated. The first step is to file a verified petition in court stating the following points: (Fla. Stat. § 744.3201)

  • Name, age, and present address of the person filing the petition and his or her relationship to the alleged incapacitated person;
  • Name, age, county of residence, and present address of the alleged incapacitated person;
  • The primary language spoken by the alleged incapacitated person, if known;
  • A declaration that person filing the petition believes that the alleged incapacitated person is incapacitated and specify the factual information in which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
  • Name and address of the alleged incapacitated person's attending or family physician, if known;
  • The rights enunciated in Florida Statutes that the alleged incapacitated person is incapable of exercising, to the best of petitioner's knowledge.
  • Names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, and specify the dates of births of any who are minors.


The court then appoints a committee to determine whether the person alleged to be incapacitated is in fact incapacitated. This committee is composed of three persons: two physicians and one person with the capacity to form an expert opinion

The person alleged to be incapacitated is represented by an attorney, either one that he or she chooses or one provided by the court. If the examining committee finds that the person is unable to exercise certain rights, the court will schedule another hearing to determine whether the person is totally or partially incapacitated. However, a guardian will be appointed if it is determined that the person is incapacitated in any respect - unless there is a lesser restrictive alternative to guardianship that adequately addresses the person's incapacity.

Can Guardianship be Avoided?
Probably. Florida law requires the use of the least restrictive alternative to protect someone incapable of caring for himself or herself. For example, a health care directive might prevent the need for a guardian in the event of incapacity. Therefore, it is always wise to discuss with an Estate Planning Attorney the available options to avoid Guardianship.

Is a Guardianship Permanent?
Not necessarily. If the person declared to be incapacitated recovers in whole or in part from the condition that caused him or her to be incapacitated, then a petition can be filed with the court to restore the ward's rights. After the petition is filed, the court will have the ward reexamined and can restore some or all of his or her rights.

Contact a Florida Guardianship Attorney
For more information about guardianship, contact an attorney. For an Estate Planning Attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200. Or click the "Contact Us" tab at the top of the page.

March 24, 2013

Florida Pet Trust

florida-pet-trust.jpgWe often get questions regarding the creation of Pet Trusts in Florida. Florida Statutes have provided for pet trusts for many years but they do not always make sense. I have attached a document which you can use to help gather information that will be necessary to determine if a Florida Pet trust is right for your family or you should be looking to add separate provisions to your Florida Will or Florida Revocable Trust to deal with taking care of your pets in the case that you are unable to. Which ever way you decide to go, we provide free Pet Trust provisions or instructions with all of our estate plans when they are requested. This means that there are no additional charges for standard instructions or basic Pet Trusts with any estate plan we draft. Obviously if your situation requires a more complex plan there will be charges associated with it, but we love animals and want to make it easy and inexpensive to take care of your pets.

To begin the process download the Florida Pet Trust Document, take a few minutes to complete it and return it to us with your estate planning objectives.

March 20, 2013

The Effects of Using a Deed to Transfer Real Estate Property Ownership to Avoid Probate

greenhouse.pngYou can transfer ownership of your real estate property through probate, or by signing an instrument known as a deed.1 Using a deed to transfer ownership of your real estate allows you to bypass probate, but there are some risks associated with this alternative. This blog discusses the advantages and disadvantages of using a deed to transfer ownership of your real estate property.
Advantages of Using a Deed to Transfer Ownership


  1. A transfer by deed can allow you to reserve the right to use the real estate property transferred for the remainder of your lifetime: There are different types of deeds that can be used to transfer property and each one of them serve a different purpose. Some deeds, like the life estate deed, allow you to transfer ownership of your real estate property while reserving you the right to use the property for the remainder of your lifetime.

  2. A transfer by deed can simplify the transfer of your real estate property: A deed transfers ownership of your real estate property automatically and bypasses probate. Therefore, a transfer by deed avoids you the delays and expenses of Florida probate.

  3. A transfer by deed can bypass both your creditors and your beneficiaries' creditors: Property transferred through probate is subject to the claims of your creditors and the creditors of your beneficiaries unless the property transferred qualifies as your homestead.


Disadvantages of Using a Deed to Transfer Ownership

  1. A transfer by deed can place your home in jeopardy to other's creditors: The Florida Supreme Court noted in Snyder v. Davis that there are three kinds of homestead that have the following purpose: preserve the family home for its owner and his or her heirs. One kind of homestead protects the home from forced sale by creditors. Sometimes families attempt to transfer their home by adding kids on to the house deed to avoid probate. These families face a problem when one or more of the owners mentioned in the deed do not live in the home. The problem is that the ownership percentage of the person not living in the home is subject to the claims of his or her creditors. The problem is aggravated when no ownership percentage is specified in the deed since Florida assumes that there are equal percentages of ownership to each person named on the deed. If a creditor takes an ownership in the home, then he can force the sale of the whole property. Therefore, adding someone to your house deed to transfer ownership of the property avoiding probate might leave you with nothing to transfer. The same scenario applies to those who try to transfer ownership of their house with a Florida life estate deed.

  2. A transfer by deed brings adverse tax consequences: There may be gift taxes or penalties associate with the failure to report the gift if the value is over the yearly gift tax limits.

  3. A transfer by deed can cause you to lose stepped up basis: This can cause a much greater income tax upon the sale of the property in the future.

  4. A transfer by deed might cause you to pay gift tax: If you do not receive payment for the transfer, then the IRS views the transaction as a gift and requires you to pay a gift tax. However, there are some exclusions to this tax.

  5. A transfer by deed can create a disqualifying transfer of assets for Medicaid purposes: This can be for as long as 5 years.


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. To contact a Florida Estate Planning lawyer call the Law Office of David M. Goldman PLLC at (904) 685 - 1200.

January 4, 2013

Recent Florida Law Changes Make having a Will More Important.

What happens if I die without a will in Florida?

Florida probate law has changed recently with regard to people who die intestate (without a will) and are married.

If you have no descendants, your entire intestate estate will go to your spouse. This does not typically include your home or other non-probate assets.

If you and your spouse have descendants, and your spouse has no descendants other than those which are common to you, then again your spouse receives your entire intestate estate.

If you have children from a previous relationship your spouse will only receive one-half of your estate. The same is true if your spouse has children that are not yours and you have some children in common.

If you own a homestead with your spouse then the spouse will receive the homestead outright. If your homestead was only owned by you then your spouse will receive a life estate or may elect to take 50% of the home as tenants in common with your children. If your spouse does not elect to take the 50% ownership then your children will receive the remainder of the home.

This new election that the spouse has can create some problems or unexpected results that can be dealt with by using a will or trust in Florida.

January 3, 2013

When is IRS Form 706, United States Estate Tax Return, Due?

While personal income tax returns and gift tax returns for taxable gifts made during 2011 are due on or before April 17, 2012, estate tax returns for decedents who died during 2011 are not due on April 17, 2012.

If a decedent who died in 2011 is required to file a federal estate tax return or a generation-Skipping Tax Return, it is due on or before nine months after the decedent's date of death.

For example, if the death occurred on April 1, 2011, then IRS Form 706 will be was Due on or before January 1, 2012. If they died after April 1st you still have time to file the returns.

Do I need to file a return? This information will help you to determine if Form 706 is needed for a decedent who died in 2011:

If the Gross estate exceeds $5 million the a Form 706 must be filed for the estate of every U.S. citizen or resident who died in 2011 and whose gross estate, plus adjusted taxable gifts and specific exemption, is more than $5 million. To determine whether a return must be filed, add:


  1. The adjusted taxable gifts (under section 2001(b)) made by the decedent after December 31, 1976;

  2. The total specific exemption allowed under section 2521 (as in effect before its repeal by the Tax Reform Act of 1976) for gifts made by the decedent after September 8, 1976; and

  3. The decedent's gross estate valued at the date of death. (See Instructions for Form 706 for additional information.)


Should I Make the portability election. Even if the value of an estate of a decedent who died in 2011 does not exceed $5 million, the surviving spouse will want to consider filing IRS Form 706 in order to take advantage of the election to use the deceased spouse's unused estate tax exemption.

Note: The estate tax exemption has dropped to 1 Million for 2013 so this will apply to many more people unless congress acts to change the estate tax and gift tax exemptions this year

January 1, 2013

Will Contest and Summary Administration

In Florida when a Summary Administration is used to Probate an estate the Florida Probate must be converted to a Formal Administration to allow for a will contest.

There are time limits to object to a will so it is important to file documents timely. If the probate has not been opened in Florida it is possible to file a caveat. A caveat is a notice that is file in the probate court that allows you an opportunity to object to a will or the appointment of a personal representative. It is basically a notice to the court to give you an opportunity to respond before the court appoints a PR or admits the will for probate in Florida.

It is more difficult to remove a PR after they are appointed so if you feel that something is wrong, it is a good idea to file a caveat as soon as possible.

One a Florida Summary Administration Probate has been opened, it will need to be converted to a Formal Administration before you can object to the Last Will and Testament on grounds of undue influence.

While objections are not common in a summary administration there are circumstances when they may make financial sense. If you feel that a will was obtained by undue influence or created when someone lacked the capacity to create the will, you should contact a Jacksonville Estate Planning Lawyer or fill out the contact us form on this page.

November 6, 2012

Estate Tax Law Changes Worry Many Farmers & their Families

John Buchanan has an article in Central Florida's Agri-Leader which was published on October 24th which discusses the effects of the expiration of the estate tax exemption on farmers.

Many farmers end up loosing farms because of estate taxes and the inability of their families to become liquid enough to pay the estate tax bills. Over the past few years, the estate tax exemption has been high enough that many small farmers have not had to worry about this effect, but that could all change on January 1, 2013.

I was interviewed by John Buchanan about some of the potential solutions that small farmers could use to help insulate against the huge tax changes set to take effect next year.

One solution involves the purchase of life insurance to offset the taxes that will become due. Another solution involves a gifting strategy that takes advantage of the 5 million dollar gift tax exemption that is also set to expire 12/31/2012. There are other strategies, but you should discuss your objective and circumstances with an estate planning lawyer to see which options make sense for you and your family.

September 14, 2012

Childless and Aging? Time to Designate a Caregiver

Phyllis Korkki with the NY Times wrote an article dealing with some of the problems our aging society has when they have no children or natural caregivers and ways to help deal with it. In the article, she quotes me in dealing with some ways you can use legal documents that can be prepared by an attorney to deal with giving someone legal rights to help you make decisions if and when you need it.

These documents can also help avoid a guardianship and limit the ability for some to hijack your assets and use them up with unnecessary fees.

Follow this link to the NY Time article or contact us to discuss how we can provide documents to help manage these situations for your, your friends, or your family.

September 10, 2012

Florida Court Finds that Settlor Lacked Requisit Capacity to Execute Trust Amendment

florida-case-law.jpgIn the Florida case of Jervis v. Tucker, 37 Fla. L. Weekly D349 (Fla. 4th DCA 2012)

Bernice J. Meikle executed a revocable trust agreement in 1991, which she subsequently amended by executing a first amendment. Her trust, as amended by the first amendment,
provided that Meikle's power to revoke or amend the trust would be suspended upon her being "adjudicated incapacitated by a court of appropriate jurisdiction." The trust further provided that Meikle's powers could be restored by an order of an appropriate court having jurisdiction over Meikle, or upon the issuance and receipt by the Trustee of a written opinion from two licensed physicians after their examination of Meikle.

Meikle was adjudicated incapacitated in 2000. On December 27, 2001, Meikle executed a second amendment to her trust without obtaining a court order authorizing the amendment or restoring her capacity to amend the trust,and without written opinions from two licensed physicians.

The second amendment attempted to reallocate the distribution of her assets. Meikle died in 2007 and the second amendment to her trust was subsequently challenged by beneficiaries under her first trust amendment. In granting a motion for summary judgment, the trial court ruled that the second amendment was "void and of no legal effect." On appeal, Appellant argued that the record evidence showed that Meikle did not lack testament capacity when she executed the second amendment in 2001. The Fourth District found that the plain meaning of the trust agreement, as amended by the first amendment, required Meikle to either have her capacity restored by the court or through the written opinion of two licensed physicians.

Although the trial court had judicially restored certain of Meikle's rights before her death, it had not restored her rights concerning her property. Moreover, at the trial level, Appellant only offered the opinions of one licensed physician in support of his argument that Meikle had testamentary capacity. Although Appellant also offered the opinion of a licensed nursing home health care administrator, the Fourth District noted this witness, even though possessed of expert experience, was without a physician's license.

Therefore, because the unambiguous provisions of the trust had not been met, the Fourth District affirmed the trial court's ruling that Meikle lacked the requisite testamentary capacity to execute the second amendment to her trust.

It is important to understand and comply with the terms of the trust when making changes. You not only have to comply with the trust but with state laws that may override the terms of the trust. In this case, the Ward did not have their ability to deal with property restored by the court nor did they have two doctors state that she was not incapacitated. Even with two doctors the court order determining incapacity would have seemed to have not restored the power to deal with property including her trust.

September 7, 2012

Refusal to follow preference for appointment of Personal Representative was an abuse of discretion

florida-case-law.jpgIn the case of Bowdoin v. Rinnier, 81 So. 3d 582 (Fla. 2d DCA 2012) The Decedent died intestate, leaving her husband, and a minor child as her sole heirs. Decedent's mother, filed a petition for administration seeking her appointment as personal representative. The surviving spouse filed a counter-petition for administration seeking his appointment as personal representative. After hearing, the trial court granted Appellee's petition notwithstanding husband's preference in appointment under § 733.301, Fla. Stat., because the trial court determined it was in the best interest of all parties to appoint the Decedent's mother as personal representative. On appeal, the Second District found the trial court's decision was an abuse of discretion. The Second District reinforced the proposition that statutorily preferred individuals should be appointed unless the record shows the preferred person is unfit to serve. In this case, the Mother produced no witnesses or evidence at the hearing to show the husband was unqualified to serve. The Second District Court therefore reversed the trial court's appointment of the mother and remanded the matter back to the trial court to conduct an evidentiary hearing to determine whether the decedent's husband was fit to serve as personal representative.
September 7, 2012

Last Will and Embezzlement

New movie about financial exploitation of the elderly.