Articles Posted in Probate

A Durable Power of Attorney is an important document, but sometimes having one can cause problems.

A recent Florida court ruling scored a major win in the fight against elder abuse. The case established that a health care proxy does not have the authority to waive the right to jury trial and bind a person to a contract.

The case is Hugh Moen v. Bradenton Council on Aging LLC, where the defendants, the nursing home, filed motions to dismiss and to compel binding arbitration.  The plaintiff, Moen, was the personal representative of the estate of Norma Silverthrone, appealed the order granting the motions to dismiss.  The appeals court sided with the personal representative.

Background on The Case

Norma Silverthorne was admitted to a nursing home in 2013.  Her daughter, Susan Moen, accepted a health care proxy designation on her mother’s behalf. Norma never executed a durable power of attorney in her daughter’s favor.  Susan signed the nursing home’s admission agreement, which contained a “Voluntary Arbitration Agreement.”
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While the following article deals with divorce, our readers may consider it terms of accessing emails or online information of a deceased spouse or family member and the potential criminal liability that may be associated with accessing digital assets.

Federal wiretapping laws usually do not mix with state divorce proceedings.  However, these laws became a central issue during the divorce of Paula Epstein from her husband Barry Epstein in Illinois.  The issue is, did Ms. Epstein violate federal wiretapping laws when she put an auto-forward on her husband’s email account so she could read his emails.

Barry Epstein sued his wife under federal law while the couple was in the process of divorcing.  Paula accused her husband of serial infidelity.  In response, Barry’s attorney asked Paula for any documents and evidence she had that was related to the accusation.  Paula complied and produced copies of the incriminating emails between Barry and several other women.  This discovery response caused Barry to sue her under federal law.

Barry argued that Paula violated the Wiretap Act by secretly placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to Paula.  Barry also claimed Paula’s lawyer violated the Act by disclosing the intercepted emails.  The courts dismissed this claim because the attorney could not be liable for disclosing Barry’s emails in response to his discovery request.

Background Information

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Correcting a Death Certificate in Florida for a Change in Marital Status

We often receive calls about how to correct a Florida Death Certificate in relation to filing a Probate case in Florida. Correcting a Florida Death Certificate is done through Florida Vital Statistics which can be reached at:

DEPARTMENT OF HEALTH
Bureau of Vital Statistics
PO Box 210
Jacksonville, FL 32231

(904) 359-6900, EXTENSION 9005

SURVIVING SPOUSE: With the exception to a misspelling or an omission, the department may not alter the surviving spouse item except on order of a court of competent jurisdiction.

To make this change you will need to hire a lawyer to file a petition and obtain a court order to make the changes.  Below is some information on other types of changes that can be made to a Florida Death Certificate and how they can be made.

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As Jacksonville estate planning attorneys, we often come across unusual scenarios that require a deep look into the law.  A recent questions posed to the Jacksonville probate attorneys at the firm was: “Is a roommate’s estate liable for the unpaid rent after he or she passes away”?

The short answer is no the estate is not responsible to the landlord, but the roommate may have a claim against the estate.  When a person and his or her roommate sign a lease with a landlord, by default both roommates agree to jointly and independently pay the full rent each month.  A landlord usually does not know how rent is divided each month as long as the checks arrive on time.

This means the landlord can sue either or both tenants named on the lease if the rent goes unpaid.  This is true even if the roommate is a boyfriend, girlfriend, brother or sister.  This is why the estate planning attorneys at The Law Office of David M. Goldman PLLC recommend that a surviving tenant continue to pay the rent after the death of a roommate.

Can the Default Rule Be Changed?

Usually, when multiple roommates live in an apartment or house, they split the rent.  Maybe each roommate pays equal rent, or one roommate pays a proportion of use of the property.  One solution is for the roommates to form a legally binding contract called a “roommate agreement.” This agreement addresses how the parties to the contract will pay the rent and other household bills.
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Florida medicaid Liens. Florida residents that suffer from injuries caused by another person are lucky because they can often pay costly medical bills through Medicaid if they qualify for coverage.  Medicaid is a government assistance program that provides long-term health coverage to those with low income and few assets.  It is sometimes necessary for the person injured to seek further relief by suing the person that caused the injury.

However, what many people do not realize is Medicaid can place a lien on any judgment or monetary settlement a plaintiff receives for wrongful injury or death.  The issue then becomes should Medicaid receive a reimbursement for all services given to the recipient or just the medical expenses.
This issue came up in the case of Ark. HHS v. Ahlborn, 547 U.S. 268 (4th DCA July 20, 2016).  In this case, the recipient Heidi Ahlborn was severely and permanently injured by in an auto accident with another driver.  The other driver was at fault for the accident.  Ahlborn owned little assets, which made her able to qualify for Medicaid coverage in her state.

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Today I received a copy of a recent Florida’s 4th District Court of Appeal dealing with a remainder beneficiary and a the ability to demand an accounting from a revocable trust before the death of a grantor.  John J. Pankauski Sent me a well-written summary of the Case from October 26, 2016 which I have adapted for the purpose of this blog.  The Case ruling stated that a remainder beneficiary of a Florida trust has no right to a trust accounting, when requested post-death, for the time period of the grantor’s life, absent breach of trust allegations.   This was a revocable trust which became irrevocable upon the death of the grantor/settlor.

In  Hilgendorf v. Estate of Coleman, the grantor  or the person who created the trust was alive, competent,  and was acting as her own trustee of her revocable trust. During grantor’s life, she was did not remain the trustee and a successor trustee took over the management of the trust.  It appears that the grantor still continued to direct the actions of the successor trustee and to “run” things.   The grantor never requested an accounting from the successor trustee during her lifetime.  After the grantor passed away, the PR or executor of the decedents estate, who was also a beneficiary, requested an accounting for the time period when the grantor was alive and the when the trust was revocable.

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One question the most frequent questions our Jacksonville estate planning lawyers receive is how long does a probate case in Florida take? Often the best answer to how long a Florida Probate Case takes is “it depends.”  The answer usually depends on how vast and complex the decedent’s estate is if there are a lot of beneficiaries or if there is any litigation involved the estate.

A Probate Case in Florida Can End Quickly or Take Years to Complete

A probate case in Florida can be quick if the estate is small and there are not any complicated procedural issues.  Simple estates can be fully probated in as little as a few weeks or as long as few months. Something the county where the probate case is located can affect how long a Florida Probate case takes
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This year the Florida Probate Rules Committee has a added a few new rules to the Probate Code. Many of these rules are minor amendments to the old rules or clarifications of previously vague language. The biggest change to the code was the addition of a separate rule for Guardian Accounting under 5.696. This means there are now different rules for guardian accountings from the other types of probate accountings.

Below is a summary of the 2016 amendments to the Florida Probate Rules

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One question the top Jacksonville elder law and estate planning attorneys often receive is who can make burial arrangements in Florida. Does it have to be the next of kin, or can any family member or interested party make funeral arrangements? Another similar question we often receive is what happens if a family member refuses to sign for burial rights? This article should answer these issues by explaining the current Florida law.

Luckily, Florida law has tried to clear up any burial issues by codifying an extensive set of rules for burial rights. A person can find the relevant law under Florida Statute 497.005 (43). The first part of this statute defines some important terms under the law. For instance, the law defines “human remains” as the body of a deceased human person that requires a death certificate or fetal death certificate, and the body is in a stage of decomposition.

The primary section needed to solve these questions is found under number 43, which is the definition of “legally authorized person.” This definition is a priority list for what individual can make funeral arrangements. According to the statute, the decedent, or the dead person, has priority to make the choice. This means during the decedent lifetime he or she authorized a particular burial plan through an estate planning document. This type of authorization is likely found in a Living Will or another form of an advanced directive. For example, a common type of burial authorization will be a listed preference for burial or cremation.

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