Florida Estate Planning Lawyer Blog

June 16, 2015

Have my estate planning documents become out of date?

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.

HIPAA

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

June 11, 2015

How to protect your assets from your teenage drivers

by David M. Goldman

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.

June 10, 2015

Can a Bank Reject a Power of Attorney in Florida?

by David M. Goldman

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.

June 9, 2015

How to modify an irrevocable trust in Florida

by David M. Goldman

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:

June 8, 2015

Common law marriage in Florida

by David M. Goldman

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?

June 5, 2015

Jury rules against Wells Fargo and awards beneficiary $77 million

by David M. Goldman

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

June 3, 2015

What documents do young adults need?

by David M. Goldman

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.

June 2, 2015

How to remove a personal representative in Florida

by David M. Goldman

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.

June 1, 2015

BB King Heirs to Challenge his Will

by David M. Goldman

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

May 29, 2015

Florida’s Probate and Trust Codes, 2015 Amendments Regarding Attorney’s Fees

by David M. Goldman

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.