When lawyers draft estate-planning documents they are made with current laws in mind. However, estate-planning laws have changed in some key ways over the last few decades. Here are 4 key dates that have changed estate-planning. If your documents created before these dates it may be time to update them.


The first date to look out for is April 14, 2003, which is when the privacy rules under the Health Insurance Portability and Accountability Act first took effect. Although HIPAA was enacted in 1996, its privacy regulations were not enacted until several years later on April 14, 2003.

This act brought about much stricter guidelines regarding the disclosure of a person’s health information to third parties without explicit permission. Now, only a few people are allowed to receive this information, which becomes a much bigger issue if the person becomes incapacitated, such as in Terri Schiavo’s case. Now, a durable power of attorney is needed to make important health care decisions for loved ones. If your will, revocable trust, durable power of attorney or health care power of attorney was executed before this date, your executor, trustee, or agent may not be able to effectively work with your medical care providers or insurers.

State estate taxes Continue reading

Getting your first driver’s license can be one of the biggest milestones in a young person’s life. However, what was once a cherished rite of passage has now turned into a potential liability for parents. Under Florida law, a parent can be held legally responsible for the negligent actions of a child driving the parent’s car. Florida law also requires a parent or guardian to sign the driver’s license for a driver under 18, and this person who signs will also be held liable for the driver’s negligent driving.

A parent’s liability may not even end once the child turns 18. This state also recognizes the “dangerous instrumentality doctrine,” which states the owner of a vehicle is liable for its negligent operation. This means the owner can be liable even if the driver is an adult and unrelated to the owner.

Further, parents are at risk from creditors when a child is involved in a car wreck even if the car is tilted in one spouse’s name. In Florida when two people are married, creditors cannot normally reach the other spouse’s assets unless both spouses jointly own the property. However, both spouses can be liable to creditors if, for example, one spouse owns the car and the other spouse signed the child’s driver’s license. This can create a nightmare scenario where creditors go after assets a parent once thought was protected from creditors.

So how can parents limit their liability? One answer is to simply not let the teenager drive until they are 18, however that is quite unreasonable. At the Law Office of David Goldman PLLC, we recommend limiting liability through the use of one or more vehicle trusts.

A Florida vehicle trust protects a parent’s assets by transferring the title of a vehicle to a specifically designed irrevocable trust. Once the transfer is made, as parents you no longer own the car – the trust does. In the trust, the drivers are then named as trustees to the vehicle trust. This allows the parents and their children to still drive and use the vehicle as they always have. In a legal sense the parents become “managers” of the trust, which owns the property, and can use the car as they see fit.

The child is also named to this trust, which will then allow the teenager to drive the car without incurring liability on the parents. (This does not remove the liability that may attach to the parent who took the child to get their license) The trust is irrevocable, which essentially means the settlors, or parents, no longer own the vehicle, and the vehicle is now owned by a trust and managed by trustees.

The trust itself will state the settlor, or the person who creates the trust and transfers assets, will have no liability for the acts of any trustee or beneficiary of the trust. Further, the settlor may not have any liability resulting from the use, abuse, or misuses of the tangible assets of the trust. This means that the settlors, or parents, may not be liable for the negligent actions of a child due to their ownership of the vehicle.

Often a vehicle trust is used with other forms of ownership or asset protection to insulate a family’s at risk assets from future unknown creditors. A vehicle trust can own almost any type of vehicle including boats, motorcycles, or personal watercraft. For more information on the benefits of a Florida Vehicle Trust contact our office today.


In 2011, Florida passed the Power of Attorney Act that has had a significant impact on the then existing law in an attempt to achieve greater consistency and uniformity throughout Florida. One big change the act brought about was the codification of laws regarding a third party’s ability to reject a durable power of attorney.


Now the law states that once a power of attorney is presented to a third party, the third party is required to accept or reject the power of attorney within four business days and to provide a written explanation for rejection unless the third person is not otherwise required to engage in a transaction with the principal.


Third parties in these cases are usually banks and other businesses. The issue arises when a third party questions the power of attorney or the authority of the agent, and then refuse to honor a power of attorney. First, it is important to note that banks are offered a number of protections that encourage a bank to accept the validity of a durable power of authority. Florida law provides that if a business accepts a power of attorney that appears to be valid on its face, the bank will not be liable for accepting the power of attorney. The bank will only be liable if it knows the power of attorney has been revoked and still accepts the power of attorney.


The legislatures in Florida wish to encourage third parties to accept a power of attorney because it allows a principal to plan ahead and allow an agent to act on his or her behalf. The power of attorney is a powerful estate-planning tool that can save a family time and grief. Florida law also likes a power of attorney because it saves the court time and does not require the court to appoint a guardian when the principal becomes incompetent. Therefore, Florida law does not favor a third party that unreasonably rejects a power of authority.


Florida statute 709.2120 states that a bank, or business, cannot unreasonably reject a power of attorney. An agent seeking to enforce a power of attorney against a bank, that has unreasonably rejected the power of attorney, can be awarded costs and attorney’s fees. A bank that rejects a power of attorney does so at its own peril.


In Florida, a court will award fees and costs to a plaintiff when a third party unreasonably rejects a power of attorney.


In Albelo v. Southern Oak Insurance Co., the Court granted the plaintiff’s motion for costs and attorney’s fees under section 57.105(1). Albelo brought a claim for the damages caused by a burglary in the home. Southern Oak paid $1690.00 on the claim, but a few months later Albelo filed a sworn proof of loss, supported by a public adjuster’s estimate for $57,760.66. Southern Oak believed the sworn claim was fraudulent and instigated by Albelo’s son.


Albelo responds that before the burglary occurred, when she was 78 years old, she duly executed a Durable Power of Attorney in favor of her son. Southern Oak did not contest the formalities of the power of attorney’s execution and did not question Albelo’s state of mind when the power of attorney was executed. Instead, Southern Oak persisted that Albelo was required to seek a guardian and be legally deemed incompetent by a court.


A power of attorney was sufficient to manage her affairs, and an incapacity petition and guardianship hearing would be frivolous and a waste of the Court’s time. Therefore, the Court awarded costs and fees to Albelo for not accepting the valid power of attorney.


So when can a bank reject a power of attorney? Florida Statute 709.2120(4) allows a third party to reject a power of attorney within a reasonable time when:

  1. The third person is not otherwise required to engage in a transaction with the principal in the same circumstances
  2. The third person has knowledge of the termination or suspension of the agent’s authority or the power of attorney before exercising the power
  3. A timely request by the third person for an affidavit, English translation, or opinion of counsel is refused by the agent
  4. The third person believes in good faith that the power is not valid or that the agent does not have authority to perform the act requested; or,
  5. The third person makes, or has knowledge that another person has made, a report to the local adult protective services office stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person action for with the agent.

If a bank or another third party will not accept the validity of a power of authority, contact the Law Office of David Goldman PLLC today.

In Florida, courts are now permitted to judicially modify an irrevocable trust even when a trust is unambiguous.

Historically, courts held the belief that the intent of the settlor, the person who creates a trust, should only be determined from the actual language of the trust document. This belief led courts to only modify a trust when the trust’s purpose, or provisions within the trust, were found to be ambiguous. If no ambiguity was found the court was unable to consider any other evidence of the settlor’s intent, and the beneficiaries were stuck with whatever the trust says on its face. In Florida, this changed when Florida adopted the Florida Trust code in 2007.

Florida’s Trust code is modeled on the Uniform Trust Code (UTC). The UTC deals with modifications in a number of sections that Florida has mostly adopted. For instance, UTC § 412 allows a court to modify or terminate a trust when the following circumstances occur:

  1. The trust’s purpose no longer exists, unanticipated circumstances have occurred.
  2. A modification or termination will further the purpose of the trust
  3. The trust’s existing terms would be impracticable, wasteful, or would impair the trust’s administration.

In Florida, the Florida Trust Code is still the controlling law when it comes to a Florida court’s ability to modify a trust. The Florida Trust code has many statutes that correlate directly to similar UTC provisions.   Here are a few of the more commonly used Florida modification statutes.

Fla. Stat. § 736.04113

This statute allows a court to modify an irrevocable trust when modification is not inconsistent with the trust’s purpose.   A trustee or qualified beneficiary may petition a court to modify a trust when circumstances have occurred that were not anticipated by the settlor. Under this law, a court may modify the trust or even change the terms of the trust distribution. Courts are also allowed to consider extrinsic evidence at its discretion. This means a party can present evidence of the settlor’s intent with other documents besides the trust.

A good example of when this statute might be used occurs is when a trust is created to support a family member who is not expected to survive. Another example might be a trust created for a child who has special needs and later recovers or a trust created for someone who is expected to be disabled, but is later denied for disability so they do not need the trust provisions. If the circumstances change, it may be possible to change the terms of the trust to deal with the new situation.

Fla. Stat. § 736.04114

This statute allows a court to modify an irrevocable trust with federal tax provisions by defining who the beneficiaries are and the amount of their respective shares. This Florida code also works directly with 736.0416, which allows a court to modify the terms of a trust that was created to achieve the settlor’s tax purposes. Therefore, when estate taxes change or other circumstances occur, a court is allowed to modify or terminate a trust created for tax purposes. This Florida law relates directly to UTC § 416.

Many estate-planning attorneys feel these types of modifications will become more common as the estate and gift tax exemptions continue to grow larger. Only a few years ago, the tax exemptions were much lower and trusts were often created to limit the tax burden on the estate. Now these trusts may actually save more money if they are modified under the existing tax laws. These statutes allow a court in Florida to modify the trusts that were created with this tax limiting purpose in mind.

Fla. Stat. § 736.04115

This statute allows a court to modify a trust when compliance with trust terms is not in the best interest of the beneficiaries. This statute also allows the court to weight extrinsic evidence relevant to the proposed modification. The extent a court will modify a trust for the beneficiaries in a manner that conforms as close as possible to the settlor’s intent. This statute will be used when a beneficiary wishes to modify or terminate a trust, even if that modification would directly conflict with the settlor’s intent.

A good example of when this statute has been used occurred in a case where the beneficiaries were in agreement to allow a corporate trustee to resign without liability. The trust contained a mandatory corporate-trustee clause, which would not allow the corporate trustee to resign without breaching his fiduciary duties to the trust. Looking at the facts of the case, the court felt the corporate trustee had substantially administered the trust and it would be in the best interest of the beneficiaries to modify this clause.

An irrevocable trust is a powerful tool in the estate-planning world, however unforeseen circumstances may require the trust to be modified or terminated in order to still be lucrative to the beneficiaries. Modifications have been known to save estates a fortune, and the Florida Trust codes have made it easier than ever to receive a judicial modification. For more information on how a modification can serve your estate planning needs, contact the Law Office of David Goldman PLLC.


In Florida, estate planning is used to ensure that a person’s estate is left to his or her loved ones in the way they intended through a will or trust. However, if a person dies without a will, his or her estate will be passed according to intestate succession, which means the estate will be passed out in certain percentages to the spouse and children and other ascertainable beneficiaries according to the rules of the court.


An issue can arise when a spouse is married through common-law marriage.   If there is no will or trust a spouse can be left out of the will if he or she was not legally married to the deceased.


How to prove common-law marriage?


First, it is important to note that common-law marriages can no longer be created in Florida. Florida Statute section 741.211 states “no common-law marriage entered into after January 1, 1968, shall be valid, except… and marriage, which… was entered into by the party asserting such marriage in good faith and in substantial compliance with this chapter. This means that a common law marriage cannot exist unless it was created before 1968.  However, Florida will recognize a common law marriage that was valid in another state


If the common-law marriage occurred before this year, the couple must then prove some additional elements. Florida and most other states require the couple to prove three requirements:


  1. The couple had the intent to become married
  2. The coupled lived together, and
  3. The couple held themselves out as a married couple.




In Carretta v. Carratta, the Florida court held there must be an agreement to become husband and wife immediately from the time when the mutual consent is given. What this means is that a couple doesn’t become common law married just by living together for a long period of time.


The couple must have actually intended to become married. If a couple was living together and boyfriend and girlfriend, it would not be enough that the couple simply stuck together and lived their lives as married couples would. They would have to actually agree to live life as if they were married. A common law marriage requires more than an implied agreement, the marriage must be discussed and consented to by both parties. A great way to prove intent of a marriage is if a ceremony actually occurred.



In most states, cohabitation is the most important element of proving a common law marriage. The element requires the couple to live in the same home together. Courts want the couple to live like most married couples do, in order to give them the benefit of the doubt as being a married couple. If the couple separated, or moved away from each other, the court may deem the couple to no longer be common law married. It is best if the couple can show they have continuously lived together as a couple since their agreement to be married.


Holding out


Finally a couple needs to hold themselves out to their local community as a married couple. Courts may often allow evidence of neighbor’s testimony, such as the neighbor heard the two spouses refer to each other as husband and wife. Further, courts wish to see that the couple has performed other actions to signify the marriage. This may include filing a joint tax return, sharing the same last name, or the wearing of wedding rings.


Florida does recognize common-law marriages from other states, even if the marriage occurred after 1968. A valid common-law marriage, which is recognized by Florida, will allow a couple to file their estate-planning documents as a married couple. Contact the Law Office of David Goldman PLLC If you and your spouse are married under common-law and wish to create a will, trust, or other estate-planning document.


In St. Louis County, a jury awarded Barbara Morriss $77 million for mismanaging her family’s trust. The court agreed the bank breached its fiduciary duty, the duty to act in the beneficiary’s best interest, by failing to fully disclose significant financial transactions that allowed the trusts to lose millions of dollars

Barbara Morriss first learned of her trust’s lost assets when her credit card was declined at a local department store in 2011. Her son is a venture capitalist named B. Douglas Morriss, and was recently sentenced to five years in prison for tax evasion in 2013. Through his companies and others, B. Douglas Morriss and partners raised millions before the companies filed for bankruptcy with more than $35 million in debt. Continue reading

What documents do young adults need?

It’s hard to believe that when your child turns 18 years old, he or she is legally an adult. When a child reaches this milestone, the mother and father’s parental rights have terminated. This means that if the child experiences a medical emergency, the parent may not be able to help or even receive information on the child’s well being without the property authority.

A parent loses parental rights over their children due to a number of privacy laws. One important law is FERPA, the Family Educational Rights and Privacy Act, which restricts the information a school can release about an adult student. The other is HIPAA, the Health Insurance Portability and Accountability Act, which limit those to whom health care providers can release data.

The privacy laws do have a valid purpose, which is to allow young adults to visit doctors and make independent health care decisions about their bodies. However, most parents want to be able to support their children in the case of an emergency without having to petition a court to allow it. Once a child learns how the law operates, and learns of the potential ramifications of not having a power of attorney, her or she is likely to want the parent to assist them in the event of an emergency.

Without a power of attorney a parent may be unable to even discuss a child’s condition with a doctor. It is not uncommon to hear of parents frantically calling an emergency room to get an update on an unconscious child’s condition, only to be told they are not allowed to talk with the doctor. If a child is not able to give consent, and there is no power of attorney, the doctors will most likely not speak to a parent about the child’s health care. No family wants to go through a Terri Schaivo situation, where the family spent years fighting for the control of Schiavo’s health care.

So what estate-planning documents do a young adult to prevent these nightmare scenarios from happening?

The first document the child needs is a health care power of attorney, which gives the child the authority to name a person, most likely the parent; to make medical decisions for him or her is he is not capable of giving consent. The child may also need a property or durable power of attorney. This type of document will allow someone else to manage the child’s financial life if he or she is not able to do so. Most young adults do not possess many assets, however, there are some times when this power of attorney could be useful. One example is when a child is traveling abroad and needs money transferred to him out of his account. Another good example is when the child needs the parent to hire an attorney for him or her.

Some 18 year olds may resist the idea of naming someone in a power of attorney, as this can seem like an intrusion on their adulthood and privacy. It might be a good idea to let the child meet with an estate-planning attorney here in Florida to explain how valuable the documents could be for his or her well being. It is not necessary that a parent be named in the documents, and a child can always amend these documents later in life. As you are planning for your child to enter or return to college, it may be time to prepare in case the unexpected happens. For more information on how to obtain a power of attorney, contact the Law Office of David M. Goldman today.

In Florida, a personal representative is required to administer the estate of the deceased.   Usually, this person is named in the estate owner’s will, and is someone the estate owner trusts to transfer his or her assets to friends and loved ones. If the person does not have a will, or does not appoint a representative, the court will appoint one. The question then becomes what if the person is not fit to serve as the personal representative? The Florida Probate Code provides some guidelines on how to remove a personal representative.

First, it’s important to understand the rules of how a court appoints a personal representative. If the deceased died without a will, or died with a valid will but did not name a personal representative or grant anyone the power to appoint a personal representative, then the personal representative is appointed by an order of preference as set forth in Florida Statute § 733.301.

Usually for a person without a will, the court will appoint the spouse to serve as the personal representative. If the spouse is not available, the court will appoint the person selected by a majority in interest of the heirs, or the heirs nearest in degree. If more than one of these rules apply, the court may select the person best qualified to administer.

These are the usual rules for how a personal representative is selected in Florida, however, for various reasons, a beneficiary of the estate may wish to remove the person initially named as the personal representative of the estate.

In Florida, a personal representative may be removed for the following:

  1. The personal representative is incapacitated.
  2. A physical or mental incapacity rendering the personal representative incapable of the discharge of his or her duties.
  3. The personal representative has failed to comply with a court order.
  4. Failure to keep proper records of the sale of property or a failure to produce assets of the estate when required.
  5. Wasting or poor administration of the estate.
  6. A failure to give security or a bond for any person
  7. The personal representative has been convicted of a felony.
  8. Insolvency of a corporate representative.
  9. The possession or acquisition of conflicting or adverse interests against the estate that will or may interfere with the administration of the estate as a whole. (This cause of removal does not apply to the surviving spouse because of the exercise of the right to the elective share, family allowance, or other exceptions as provided in the Florida probate codes.
  10. Revocation of the decedent’s will that authorized the appointment of the personal representative or designated the appointment.
  11. The personal representative has been removed of his domicile in Florida, if domicile was a requirement of initial appointment.
  12. The personal representative would not now be entitled to appointment.

Florida Statute 733.504 states that if any of the foregoing causes are present, a person may seek removal of the personal representative.

To start the process of removing a personal representative, the person seeking removal must file a petition for removal in a court that has jurisdiction of the estate’s administration. If you are the beneficiary of an estate and wish to have a personal representative removed, contact the Law Office of David Goldman PLLC to represent your interests in ensuring the estate is properly administered.

BB King’s heirs have alleged the blues legend’s business manager has misappropriated millions of dollars and unduly influenced his estate. A lawyer representing BB King’s heirs told the press the heirs would seek to challenge the will and the actions of the manager as undue influence.

The law allows the heirs of an estate to challenge wills in cases of undue influence, fraud, or mental incapacity. The heirs of BB King’s estate have long suspected King’s manager La Verne Toney had misappropriated millions of dollars and had undue influence over his estate planning decisions. The law requires the testator to pass away before his estate or will can be challenged. Therefore, the heirs of BB King’s estate were unable to challenge the alleged undue influence until now.

Undue influence is where a beneficiary, or other party with standing, alleges a third person has so influenced the testator’s mind by persuasion that the testator did not act voluntarily when executing his will.

In Florida, the person challenging a will under a theory of “undue influence” has the burden to establish the presumption of undue influence. This means that the person being accused is given the benefit of the doubt that he or she acted appropriately unless some evidence shows otherwise. The elements of showing undue influence are: Continue reading

In Florida, the Florida Probate Code and the Florida Trust code govern the administration of estates and trusts.   These codes establish the rules and procedures for all probate matters such as the administration of a will. The Florida Legislature has recently amended the Florida Probate Codes.

Attorneys Fees and Costs

Both the probate and trust codes provide that an attorney who has provided services to an estate or trust may be awarded reasonable compensation. The latest update to the codes has been in response to inconsistent application of these laws which used to require there be a finding of “bad faith, wrongdoing, or frivolousness” in order to award a party attorney’s fees and costs. The codes have now eliminated this vague language and have enumerated a list of factors that a court should use when deciding to award attorneys’ fees in a case.   These considerations allow a court to even direct, in its discretion, from which part of the estate or trust attorney’s fees and costs may be paid.

Courts will now award attorney’s fees and costs whenever the court finds it just and proper, and will consider:

  • What impact an assessment will have on the value of each beneficiary’s portion of the estate.
  • The total amount of costs and fees taken from someone’s part of the estate.
  • The extent to which a beneficiary whose part of the estate is to be assessed actively participated in the proceeding.
  • The potential harm to a person’s estate
  • The merits of the claims, defenses, or objections that were asserted by someone who’s part of the estate is to be assessed
  • Whether the person assessed was the prevailing party
  • Whether the person to be assessed unjustly caused an increase in the costs and attorney fees that were incurred by the attorney.
  • Any other relevant facts or circumstances.

New laws for Attorneys acting as Fiduciaries

An attorney serving as a personal representative who provides legal services, administering an estate is permitted to receive compensation for both the personal representative services and for his or her legal services. An attorney can only receive compensation for serving as a fiduciary if the attorney discloses the fee in writing before the will or trust is signed. Failure to obtain written consent will not affect the validity of the will, but it will prohibit the fiduciary from obtaining compensation.

Personal Representatives liable for attorney’s fees if not qualified

A personal representative is a person or entity assigned by a court to administer an estate. In Florida, a personal representative is required to be 18 years old, a resident of Florida, and has full mental capacity. The latest amendment will require personal representatives who are not qualified at the time of appointment to resign. Further, the personal representative may be personally liable for attorney’s fees and costs incurred in the removal proceedings. This will depend on if the representative should have known of facts that would have required him or her to file and serve notice of disqualification.

For more information on the latest changes to Florida’s Probate and Trust codes, see the latest Senate analysis from 2015

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