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.

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 Law Office of David M. Goldman 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 Law Office of David M. Goldman 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.

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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.

April 30, 2012

Can Paternity Be established in a Florida probate?

There are very limited opportunities to establish paternity after the death of a parent but it is possible to do so as long as the mother was not married at the time the child was born and no paternity has been previously established.

According the Florida Department of Heath, if a birth record contains an error it may be possible to correct the record depending on the type of correct and the age of resistant, documentary evidence may be required to support the correction.

Once the father has died it is still possible to establish paternity by one of the following

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out-of-wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.

(c) The paternity of the father is acknowledged in writing by the father.


Acknowledgment in writing may be in the form of a birth certificate, affidavit, or other writing such as a beneficiary designation under a life insurance policy. There are no formalities that are required and one court refused to require such evidence. In re: Estate of Jerrido, 339 So.2d 237 (Fla. 4th DCA 1976) the court refused to require authenticated evidence.

April 27, 2012

Florida Nursing Home Penalty Divisor Update 2012 by DCF

It has been many years since the regional divisor has been updated. For the last several years the penalty period was calculated using an outdated nursing home cost of $5000. As of now, the divisor has been raised from $5000 to $6880 in Florida (Florida Administrative Code)

What does this mean? If one does property planning, they can give away $6880 and only have a 1 month penalty. This becomes important when doing planning for individuals who have nursing home exposure.

This will significantly increase the amount of money most people could save by doing elder law planning in Florida. As you age it is important to consider both Florida Estate Planning and elder law when structuring your plan.

April 19, 2012

Law Review Article on Digital Assets & Estate Planning

John B. Conner has written a Law Review article in the Estate Planning and Community Property Law Journal titled "DIGITAL LIFE AFTER DEATH: THE ISSUE OF PLANNING FOR A PERSON'S DIGITAL ASSETS AFTER DEATH"

The article starts off discussing issues of digital assets and estate planning by defining digital assets and then discussing issues in estate planning created by digital assets.

It goes on to talk about how websites are dealing with digital assets and privacy acts as the relate to deceased users with social networking, web-based email, blogs and other online content.

Mr. Conner then give some suggestions for dealing with digital assets properly through planning, and some of the problems with using standard wills or other documents.

He then discusses post mortem identity theft and content theft from the deceased blogs and concludes that as the Internet continues to grow the need for estate planners who are able to deal with digital assets will continue to expand. Some state are attempting to implement legislation to help deal with these issues but those may only help if you die in one of those states.

I have recognized the need for planning for your digital death for several years and have been dealing with clients to design systems that will help provide for their digital death. If your current estate plan has not contemplated your digital death, perhaps you should talk with someone who understands how to deal with this unique class of assets.

While we have been saying this for years and it is the reason we created the original Gun Trust it is nice to see others in the legal community begin to recognize the difference and purpose in firearms trusts. Our trust are now designed for all firearms and not just NFA firearms.

April 12, 2012

Are Trust Protectors Good or Bad?

A trust protector is a person or group of people (not the settlor, beneficiary, or trustee) who are appointed to exercise one or more powers affecting a trust and the interest of the beneficiaries. The concept of a trust protector is to protect beneficiaries from a rogue trustee. They can often make changes to a trust involving who the trustees are, investment decisions, change how distributions are made and in some cases modify or terminate a trust.

They can provide help when circumstances change and the settlor's intentions are not being dealt with properly. While a trustee has fiduciary duties, in most cases a trust protector acts as an agent of the settlor and may not have the same duties as other trustees.

Others argue that you should impose fiduciary duties on the trust protectors and make them accountable to the beneficiaries. As such, it is important to have detailed discussions with clients about the roles and responsibilities of trust protectors. Their powers and limitations should be clearly defined to limit the scope of their actions.

Some recommend that while imposing a fiduciary duty on a trust protector, the claims can be limited by removing liability for simple negligence but not gross negligence or when their conduct amounts to a willful breach of their fiduciary duty.

If you have trust protectors in your trust, it is important to review the powers and limitations and to what standard they will be held if they damage the beneficiaries.

If you would like to add trust protectors to a trust to protect from improper actions of a named trustee or in the event of changed circumstances which may frustrate the settlor's intentions, you should contact a Florida Estate Planning Lawyer to discuss your circumstances and desires.

April 11, 2012

Slayer Statute and Asset Protection in Probate

The Florida Slayer Statute bars a murderer from profiting off the victim's assets. The victim's assets which are subject to a Florida Probate pass as if the murderer had predeceased the victim and other jointly held assets are severed so that the victim and murder each owned 50%.

One problem with the slayer statute is that the effect of the statute does not take place until there is either a criminal or civil conviction. It is possible to make changes to the ownership of the assets prior to a court determination that the slayer statute applies. While there are some safeguards in place to prevent those with knowledge from profiting from these types of transfers, there appears to be certain situations where one could protect the assets prior to such a determination. I have not seen any case-law where this has been challenged and do not know what the outcome would be but like with many asset protection techniques, it can put someone in a better position to negotiate if there are any funds or asset left.

One recent case in South Florida involved a beneficiary of a trust. This individual adopted his girlfriend so that she would be a legal beneficiary of the trust. While it does not appear that these asset would have been subject to a slayer statute claim, it is the type of planning that we are referring to and can create the desired results through creative planning.

If you are involved with a potential probate in which a relative was believed to be responsible for the murder of the decedent, contact a Jacksonville Probate Lawyer to discuss how to structure the assets or what steps can be taken to protect your rights.