Black’s Law Dictionary defines a nuncupative will as a “will made by the verbal declaration of the testator, and usually dependent merely on oral testament for proof.”
A Third District Appeals court in Florida recently ruled that oral wills, or nuncupative wills, that are not signed by the testator or its witnesses cannot be admitted to probate in Florida even if they written, dictated or approved by a notary.
We often receive calls regarding challenging a will or trust document. In Florida, before you can file a will or trust challenge, the contestant must renounce any benefit he or she receives under the document they are attempting to challenge.
Reunification is an equitable doctrine in Florida. In 2013 the 2nd DCA heard the case Fintak v. Fintak, 120 So.3d 177. Generally, under English law as interpreted by American courts and individual is estopped from contesting the validity of a document that they received and retained a gift from. The Florida Supreme Court gave 3 reasons for this rule in Barnett Nat’l Bank of Jacksonville v. Murrey, 49 So.2d 535 (Fla. 1950):
There was a recent appeal by a creditor who claimed they were known or an ascertainable creditor and did not actual notice to creditors (40 Fla. L. Weekly S517a). The estate filed a notice in the paper giving creditors 3 months to file a claim. The known creditor missed the 3 month deadline, but filed their claim within the 2 year window provide for in the Florida Statute 733.710.
The question before the court was when a creditor is known or an ascertainable creditor and does not receive written notice, is their claim barred under 733.702(1) of the Florida Statutes which provides for a 90 day deadline or do they get the full two years as provided in section 733.710. There were several different interpretations of this issue in different courts around Florida so the question we sent to the District Court of Appeal to get an answer.
Here are the facts of the case and how the DCA determined that the 90 day window for filing claims was not effective when the creditor is known or ascertainable. Continue reading
Each probate case is different. Minuscule but crucial variables in a case can easily be overseen and the wrong type of administration for the decedent’s estate can be chosen. To avoid this, I suggest that you discuss the facts of your case with a probate and estate planning attorney before choosing the administration of a decedent’s estate. An attorney can assist you in determining which type of administration is more appropriate according to the facts of your case.
If you decide to select the administration of a decedent’s estate without consulting an attorney, it will be your responsibility to select the appropriate proceeding for your situation. The staff of the Probate Court may not and will not make this determination for you. Furthermore, neither the court nor the county can accept responsibility for incorrect decisions made by the court’s staff. Your best choice to assure and informed decision regarding the administration of a decedent’s estate is to seek assistance of a probate and estate planning attorney. Continue reading
In Florida, a court appointed guardian is held accountable by the court system in multiple ways, thus safe guards have been put in place to protect a ward’s assets and health. Each year the guardian must file an annual accounting with the court, which is first reviewed by the clerk and then sent to the judge for approval. The purpose behind this system is to make sure the guardian is using the ward’s assets solely for the benefit of the ward and for things that are only necessary or reasonable for the ward. An attorney must also represent each guardian. If the clerk or judge finds something is amiss in the annual accounting, then the court will take action. The guardian can then be removed and/or criminally charged. The annual accounting is governed by Florida Statute 744.367 and is required to be filed with the court each year on or before April 1; however, the court can authorize it to be filed by the fiscal year. Continue reading
Guardianship of an Adult
Obtaining the guardianship of an adult is not a long drawn out process as one might think. If everything goes smoothly and it is not contested by anyone, a guardian is generally appointed in roughly 30 days. Once you have obtained an attorney and a Petition to Determine Incapacity and Petition for Appointment of Guardian have been filed with the court, three things are done by the court:
Many women in today’s world stay single by choice, and for those women who are married, we know divorce rates are very high. Studies also show that women are far more likely to survive their husbands. Therefore, we advise all women to create estate plans as if they are a single person.
The first step to making an estate plan is to identify a means to pay for future long term care. A 70 year old woman is likely to live another 15-20 years, which means that estate plans must now last longer than before. We encourage all of our clients to consider long term care policies and other hybrid policies, which have retained benefit features in case a policy is dropped.
The next step a single person should take is to select an executor of a will and a power of attorney agent. A failure to name these persons means a judge will one day be in charge of selecting who will serve these pivotal roles in managing the estate. It is best to name these people ahead of time so a person can ensure his or her health and estate are managed by competent people. These roles do not have to be filled by friend or relatives, so we recommend starting a “recruiting process” to find someone qualified to fill these roles. While more expensive, there are many professionals and or financial institutions that can handle these matters.
Avoiding probate is one of the main goals of estate planning because it saves money and time, so the beneficiaries can enjoy their inheritances sooner. However, avoiding probate has no effect on the taxes to be paid or the debts owed to creditors.
One common misconception is that a person’s debt will pass to their spouses, family, or friends after he or she dies. This is untrue, as while heirs can inherit the decedent’s assets they cannot inherit the debt. However, there is an exception if someone was jointly liable on the debt.
Where does the debt go? The obligation to pay the debt stays with the estate of the decedent. When someone dies, their estate is born and is the sum of all of that person’s assets. The estate will have an executor that is designated by the will or the court to handle the estate’s affairs. This means transferring assets to the beneficiaries, paying the gift and estate taxes, and settling debts owed to creditors. Continue reading
A special needs trust is a great tool to support a loved one with special needs, because if someone leaves money directly to the person it may keep the person with special needs from qualifying for government benefits.
A Special Needs Trust is important because otherwise a beneficiary would most likely burn through his or her inheritance to pay for medical help. A beneficiary who receives a large inheritance will no longer receive government benefits like Medicaid because they will technically have too much money to qualify. A Special Needs Trust allows this money not be wasted because it is created with the specific intent of supplementing government assistance to help support someone with special needs. The money is thus used in a way that does not disqualify the beneficiary from receiving government assistance.
Long-term care is extraordinarily expensive, and the reality is that the majority of America’s senior care providers are in-home family members who provide those services out of the goodness of their hearts. These are usually family members that also have their own lives to live with careers and families of their own, so the additional daily schedule can be a big challenge
However, a life without fun is not worth living, and we recommend that every person spend time to get away and rejuvenate from the daily grind of everyday life. So our message to anyone currently caring for a senior is to take time for vacations. “But how?” you might ask; here are a few tips on how to take a vacation with an elder.
