Florida Estate Planning Lawyer Blog

October 20, 2015

Who Bears the Cost of Guardianship in Florida?

Petitioning a Court to become the guardian of an adult is, unfortunately, not a cheap process. Many clients are very shocked to find out just how expensive becoming the guardian of a loved one can be. Not only are their court costs that have to be paid, but there are attorney and doctor fees as well.

First of all, you must file two separate petitions with the court. Each of these petitions has its own filing fee, which is not small. For example, in Duval County, Florida, each filing fee can be $400.00. And the fees do not stop there. A 3 person examining committee is appointed by the court as well as an attorney to present the potential ward. Each examining committee member has their own individual fee, which can range anywhere from $175.00 to $250.00 each. The court appointed attorney must also get paid for their time.

October 16, 2015

The law of charitable pledges

by David M. Goldman

One issue that occurs in estate planning is whether or not a charitable pledge can be enforced on a person’s estate after death. Wealthy individuals often make pledges to their favorite charitable organizations during their lifetime, only to die before fulfilling the pledge. Executors are then placed in the difficult situation of balancing its duty to ensure the estates assets for the decedents heirs and to pay the money owed by the estate to the charitable organization. If a court rules the pledge is enforceable, the pledge must be paid out of the estate before the rest of the estate’s assets are distributed to the beneficiaries.

Courts will often find a charitable pledge enforceable when these situations occur:

The pledge is an offer to contract that becomes binding when work obligated by the pledge has begun, or the charity relying on the pledge has otherwise incurred liability.

Donor’s pledge has induced other pledges

The charity’s acceptance of the pledge imparts a promise to apply the funds according to the donor’s wishes, and his pledge is supported by that promise.
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October 15, 2015

How to add a second member to a LLC in Florida

by David M. Goldman

Limiting the ability for creditors to charging lien to the owner of a Florida LLC is a big concern for many residents. At least two members are required to limit a creditor’s ability to a lien, and adding another member to an LLC can be a tricky process.

In Olmstead vs. Federal Trade Commission, the Supreme Court decided the issue of whether a court could order a judgment-debtor to surrender all “right, title, and interest in the debtor’s single-member limited liability company to satisfy a judgment. The Court ruled courts were allowed to do this and reasoned, “that there is no reasonable basis for inferring that the provision authorizing the use of charging orders under section 608.433(4) establishes the sole remedy for a judgment creditor against a judgment debtor’s interest in single member LLC. This case, and other recent bankruptcy cases, have made it clear that a single member LLC is not as safe from creditors as once believed. The best solution to this issue of potential liability is to form a multiple member LLC.

Generally, there are two ways to add another member to an LLC. The LLC owner can allow a third party to invest money in the LLC in exchange for a minority interest. There is no limitation regarding who can serve as the third party, which means a family member or even a spouse can be a third party. What is important is that the share of the LLC given in consideration for the investment reflects a fair value for what is given. The purchase price must be at or above fair market value.

October 11, 2015

THE INALIENABLE RIGHT TO STAND YOUR GROUND

by David M. Goldman

Joshua Prince and Allen Thompson have written a law review article which was just published on The Inalienable Right to Stand Your Ground that was published in the St Thomas Law Review journal.

Many of our clients seek to protect their firearms by suing Gun Trusts or NFA Trusts, This article seeks to explore what rights we have to firearms and when our rights to use them should be protected.

October 10, 2015

How is Someone Deemed Incapacitated in Florida?

by David M. Goldman

Florida Statute 744.331 outlines the legal process that must be followed in order to have an adult deemed incapacitated in Florida. Per the Florida Statute, the process begins when a concerned family member, friend, or other interested party files two separate petitions with a Florida Court. One petition is the Petition to Determine Incapacity and the second is the Petition for Appointment of Guardianship. Both of these petitions are then served upon the alleged incapacitated person as well as read to the alleged incapacitated person by a court appointed attorney appointed to look after the best interests of the alleged incapacitated person. The court appointed attorney must be part of the court’s attorney registry or belong to the office of criminal conflict and civil regional counsel. However, the alleged incapacitated person can always substitute their own personal attorney if they choose. The alleged incapacity person’s next of kin must also be notified of the Petition to Determine Incapacity and the Petition for Appointment of a Guardian.

After an attorney has been appointed to represent the alleged incapacitated person, a three (3) person examining committee is also appointed. The examining committee is comprised of 3 persons from multiple different backgrounds including but not limited to psychologists, physicians, nurse practitioners and social workers. Their role is to examine the alleged incapacitated person and prepare and file a report with the court that complies with Florida Statute 744.331(f). Per this statute, the report must include a mental health and physical examination as well as a functional assessment. More specifically, Florida Statute 744.331(f) requires each report to contain the following:

October 7, 2015

When is a Guardianship needed even with a Power of Attorney in Place?

by David M. Goldman

It is a very common practice as people age for them to visit an attorney for estate planning and execution of a Power of Attorney in order for safeguards to be put in place and to select a trusted family member to manage their assets, should they ever become unable to do so themselves. Having a Power of Attorney in place should prevent the necessity of a guardianship from being needed, but unfortunately a Power of Attorney does not always prevent the need for a guardianship and this is why:

When a Power of Attorney is in place and the incapacitated person is being cooperative with the assistance he or she is receiving from their designated Power of Attorney and other family members, and as long as the designated Power of Attorney is only acting in the best interest of the incapacitated person, a guardianship should not be needed. However, if the incapacitated person is not being cooperative and is wasting his or her property by either giving it away, making bad purchase decisions or what have you, then the Power of Attorney does not give the authority necessary to limit the incapacitated person’s access to their property. Therefore, a guardianship would be needed in order to remove the incapacitated person’s right to manage their property.

October 5, 2015

Notarial will are not valid in Florida unless signed by the Testator

by David M. Goldman

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.

October 1, 2015

Qualified Renunciation

by David M. Goldman

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):

to protect a fiduciary in the event the contested document is held invalid;
to demonstrate sincerity of the contestant; and
to have the property available for disposition at the conclusion of the contest.

October 1, 2015

Florida Probate and claims from known or ascertainable creditors

by David M. Goldman

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

September 22, 2015

Types of Estate Administration in Florida

by David M. Goldman

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