Florida Estate Planning Lawyer Blog

August 28, 2012

Filing a Will Caveat

Will 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.

August 27, 2012

The Benefits of being a “Reasonably Ascertainable” Creditor

by David M. Goldman

Serving 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.

August 24, 2012

The Importance of Proving Damages in a Tortious Interference Case

by David M. Goldman

At 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:

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

August 20, 2012

What is a Florida Will and what can will do in Florida?

by David M. Goldman

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.

August 18, 2012

Can you control your heirs from beyond the grave?

by David M. Goldman

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.

August 17, 2012

Florida Disinterment – Digging up the Dead?

by Patricia Davis

As a Jacksonville Estate Planning and Elder Law Lawyer, not much comes as a surprise anymore, not even the few requests for un-burying the deceased. It may sound like a B rated movie, but the reasoning behind the requests I have received are heartfelt and compelling.

One family wanted to remove their beloved father from a nondescript cemetery to a Veterans cemetery. One family wants to bring their grandfather (who was married to their grandmother for 50 years) home to the family plot, where their beloved grandmother lies in wait for him. The reasons are varied, but most meaningful to the families making the requests.

Florida disinterment is governed by Florida Statutes Chapter 497, Funeral, Cemetery and Consumer Services. The statute prescribes the authorization, notification, and other procedures that must be followed to enable one to disinter a family member. The process of Florida Disinterment is further governed by the Florida Department of Financial Services, Board of Funeral and Cemetery Services, found in the Florida Administrative Code, Chapter 69K.

August 16, 2012

$100 Million Estate Plan and 2010 Estate Laws

by David M. Goldman

If you have more than 1 million dollars or 2 million dollars of January 2013, you may find that part of your estate will be subject to an estate tax of 55% and in some states subject to additional estate taxes and or inheritance taxes. (Florida does not have either state tax).

Many estate plans have been written with formulas that remove a portion of the assets when the first spouse dies. Those formulas are often based on the current federal estate tax exemption. They either pass the amount of the exemption to the spouse, and remove the excess or remove the amount of the exemption and give the rest to the spouse.

In 2010, these formulas were often broken because there was no estate tax. One family who had sold their stores to Best Buy a few years before was affected by this issue.

August 15, 2012

Free Will Forms can have bad results

by David M. Goldman

On a regular basis we handle probate cases for families where the decedent tried to make their own will or tried to modify it themselves. Below is an example of a will that was created from a form or copied from someone else. While the will was validly signed as required in Florida and created a valid will, the person forgot to dispose of all of their property. It appears that of the provisions made, the person wanted to take care of their spouse first, then distribute $100 to one child and everything else to the other child.

Unfortunately the biggest asset in the estate, the decedent’s home was not devised in the will and thus would pass under the state’s intestate statutes. This will give the child that was to be disinherited 1/2 of the homestead.

Click to see a copy of theBad Florida Will

August 14, 2012

Important Issues to Consider Before You Sign a Power of Attorney

by David M. Goldman

Thumbnail image for signhere.jpg The following are a list of some critical issues to consider before you make the big decision to sign a power of attorney:

Asset Protection – Nursing home costs in Florida can be outrageously expensive. Make sure that you really feel comfortable authorizing your agent to protect your assets from those costs. If you do, the agent may need to transfer ownership of certain assets to your spouse or children. Such authority must be clearly laid out in the power of attorney, and standard forms typically do not include this provision. Special powers need to be included to make these types of transactions.
Health Care Issues – A health care power of attorney can allow your agent to make all kinds of health and personal care decisions for you whenever you are incapacitated. You can include instructions not only regarding end-of-life care, but also other situations that may arise. With a power of attorney your agent will be able to act for you even if you are not terminally ill or permanently unconscious. It is a good idea to give your agents some indication as to what your preferences are for daily activities. Without such instructions, you may not be doing what you want to do or participating in activities that you would prefer not to.
Your agent should be someone who understands your values and who will be willing to advocate for your wishes in whatever situation may arise. Your agent can review the circumstances, consult with the health care providers, consider the prognosis, and then apply your wishes as set forth in the document when making decisions.