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.

asset-protection-cash.jpgIn Florida many parents create Life Estate Deeds with their children in an attempt to avoid Probate on their homes. A Florida Life Estate Deed is a document which changes the ownership of a home or other piece of real estate. Essentially it creates a present interest and a future interest. A traditional life estate would say something like this, ” I give my self and my spouse the right to live in the home as long as either of us shall live and the remainder to my child or children.”

This example would create a future interest that vests now in the child or children and a present interest or right to use the home for the parents or grantor. While there are many potential problems like loss of tax basis, penalties and interest for failure to do gift tax returns, loss of eligibility for nursing home coverage because of the gift, the issue we are concerned about here is the risk that the home could be lost to the creditor of the child or one of the children.

Here is how it works. If the child or children do no live in the parents home, it is not their homestead, even if they do live in the home, it cannot be their homestead because they do not have a present interest in the home. Remember the child or children only have a future interest in the home. A creditor can levy against that asset just like any other. There are tables that determine the value of a future interest based on the age of the parents, their life expectancy, and the current interest rates.

digital_assets.jpgLast week there were several articles which brought light to many that our online identities are just licenses which will expire upon out death. While this concept is new to some, most lawyers understand this. Unfortunately there appear to be some who do not understand that we are dealing with licenses which expire upon death, because they are recommending that their clients deal with these assets using a traditional will. While they understand that a will only deals with assets that exist after death, they probably do not understand that your iTunes , Amazon , Gmail, Facebook, and Twitter accounts are licenses, which if owned individually, will not survive the death of the creator.

A Trust or Business entity can survive death! They are fictitious entities which are created by state statutes which do not have to dissolve upon death. A trust generally has provisions for beneficiaries unlike a business entity.

Last weekend the Wall Street Journal and several other publications ran articles on Who inherits your iTunes account?

florida-case-law.jpgFlorida is a rather unique state in rights associated with homestead exemptions from forced sale. In a nutshell, it is nearly impossible for creditors to force the sale of a homestead (a situation famously highlighted by OJ Simpson, who purchased a large estate in Florida in part to avoid creditors).

Florida’s homestead exemption also protects spouses and children of decedents: a spouse cannot transfer the property by will if survived by a spouse or minor child. While this rule often plays a positive role for families of decedents, certain cases show potential perils. Those cases primarily involve “blended families”; i.e., situations where a person late in life remarries. Florida’s homestead exemption seems to presume that the surviving spouse will also be a biological parent of the surviving children, but that is not always the case. Blended families can be a lightening rod of litigation, as highlighted by the case of Aronson-v-Aronson.pdf.

This case is the third time the parties have been in the appellate court. These parties have been fighting for over a decade. Here’s the story: a Mr. Aronson died after creating a revocable trust. Under the terms of the trust, his wife Doreen would take a life estate in the Key Biscayne condo the two of them shared. After that, the condo would go to Mr. Aronson’s sons. However, in the time between creating the trust and dying, Mr. Aronson deeded the same condo directly to Doreen.

florida-case-law.jpgWill caveats: one more reason why hiring an attorney is a good idea for estate planning. Will caveats are, basically, objections to a will. For example, let’s say Father dies, leaving his entire estate to his niece. That is awfully nice of him, but it probably won’t make his two children happy. Taking it a step further, let’s say Father had dementia when he died. Niece had moved in with him claiming she was going to take care of him, but the circumstances suggest she was just trying to dig for a little bit of gold from his estate. Now that Father has died, it looks like Niece’s plan has worked. What are Father’s children’s options?

They can bring a will caveat action, effectively putting the will’s probate on hold until the issues are resolved. Essentially, a caveat allows the interested party the ability to present evidence that something about the will makes it legally inoperable, and once a caveat is filed, the interested party must be allowed to present the evidence.

This was highlighted in a recent case, Rocca v. Boyansky, in which the court held that a party who made several late filings in court was nevertheless entitled to an evidentiary hearing before the will went to probate.

florida-case-law.jpgServing as a personal representative to an estate comes with many rights and obligations (see Chapter 733 of the Florida Statutes). One of those duties, for example, involves contacting creditors of the deceased person and letting those creditors know of the death. Those creditors then have a period of time to file a claim to be paid. Whether or not they are ever paid depends upon a variety of factors, largely dependent upon the estate actually having money to pay them.

The personal representative’s job can be somewhat difficult in notifying the creditors. Credit card loans and mortgage debts, for example, are pretty obvious: the bills probably come directly to the deceased person’s home. The personal representative generally would not have a difficult time in figuring out whom to contact to let the lender know of the death.

Some lenders, however, are not so easy to find. This is an important distinction. If a lender is relatively easy to find, it is considered a “reasonably ascertainable” creditor and has two years after the estate’s “notice of creditors” is published in order to file its claim. But, if the creditor is not “reasonably ascertainable,” it has only three months to file its claim. In other words, if you’re a creditor, you have some interest in being dubbed not “reasonably ascertainable,” as it gives you more time to file your claim.

florida-case-law.jpgAt face value, “tortious interference” occurs when someone interferes with some sort of expectation to a level that prompts judicial involvement. It often occurs in a business context, referred to as “tortious interference of business expectations,” and typically involves a defendant who has interfered with another party’s contract expectations.

A relatively new form of tortious interference has emerged in the realm of family law, dubbed “tortious interference with an expected inheritance,” and its name gives away the focus of the claim. Of course, like many tort claims, tortious interference with an expected inheritance involves five elements, each of which must be proven before a plaintiff can recover anything. The five elements are:

  1. The existence of an expectance on the plaintiff’s part involving the inheritance,

In Florida a Will does more than you may at first realize. Florida Wills are not just for leaving specific items to specific people. The main function of a Florida will is to provide for the distribution of property owned by you at the time of your death in whatever manner you choose.

Wills take on various degrees of complexity and can be used to achieve a wide range of financial and family objectives. If a will provides for the outright distribution of assets, it is sometimes characterized as a simple will. Wills can also establish one or more trusts to help manage the assets after you are gone. A will in Florida may also leave assets to a trust that was created while you were alive (known as an inter vivos trust), in which case it is called a Florida pour over will. In either case, the purpose of the trust arrangement is often to ensure continued property management and creditor protection for the surviving family members, to provide for charities, and to minimize taxes.

Aside from providing for the intended disposition of your property., there are a number of other important objectives that may be accomplished in a Florida will.

The Wall Street Journal ran an interesting article this weekend examining the extent to which gift givers can exert control over their heirs once they are dead and gone. The article reveals several things that might surprise you given the scope of control that can be included in the language of Florida trusts and Florida wills.

The Journal explained that the issue is of special importance given the unusually favorable estate and gift tax rules that are set to soon expire. Currently, the exemption is $5.12 million per person, and twice that for a couple. The top tax rate applied to amounts beyond that number comes in at 35%. Not for long, the article warns, as the current exemption is scheduled to drop to $1 million and the top tax rate will jump to 55% come January 1, 2012. Given the state of affairs, expert recommend acting now, especially when it comes to giving gifts, as such moves made now can be grandfathered in if the law later becomes less favorable in the future.

There are limits to what a person can do when laying out their estate plan and one example includes provisions that are contrary to public policy. This includes requirements that promote divorce or demand criminal conduct and has been expanded to include racial discrimination. Provisions that discourage marriage have also historically be deemed unacceptable as well as any that are ambiguous, illegal or essentially impossible to implement. Religious restrictions are usually OK, like those leaving money to pay for a religious education, though they can, at times, be viewed with more suspicion.

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