Charitable giving is an American tradition, and Americans give to charitable organizations at high levels. Gifts in the form of donations of cash remain the favorite vehicle for positively impacting charities of personal significance. Increasingly, however, individuals are seeking tax advantageous methods of utilizing asset-rich portfolios in order to achieve philanthropic financial goals. Now more than ever, charitable giving involves the donation of assets other than cash as effective and tax efficient methods for effectuating charitable gifts.
SEC football is known for its national championships, sensational athletes, and jaw-dropping hits. With this in mind, it is no surprise that the children of Jim Carlen, former coach of the South Carolina Gamecocks, are fighting back after being blindsided by the probate of a will that left them nothing. In a petition filed in probate court, his three children have alleged that Carlen’s second wife, Meredith, exercised undue influence over Carlen in the final years of his life and, as a result, his will is invalid.
The execution of one’s final will and testament is something to be taken very seriously. The permanent and inevitable nature of death means that attention to detail is paramount to ensuring your final wishes are fully set forth, and that your loved ones have a clear roadmap to carrying out those wishes. Sadly, the consequences of a flawed execution can undermine your will altogether, as Florida courts require strict compliance with the applicable state statutes in order for a will to be valid and effective in Florida. Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002). One issue that occurs with sufficient frequency to be a staple of law school textbooks and the subject of numerous expensive legal battles is a situation involving a “signature swap” during the execution of a will.
For many years, litigating parties have engaged in alternative dispute resolution for the purpose of attempting to resolve their disputes without judicial intervention. Mediation, one of the more common forms of alternative dispute resolution, is a process where a neutral mediator “acts to encourage and facilitate the resolution of a dispute between two or more parties . . . [by] assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.” Fla. Stat. 44.1011. Mediating a dispute prior to litigating has numerous potential benefits, including efficiency, cost savings, confidentiality, and probably most importantly, the ability of the parties to reach a resolution among themselves. This last benefit is of particular importance because, unlike a trial where litigants are forced to put their fate in the hands of either a judge or a jury, participants in a mediation are not only afforded the ability to have a say in the resolution of their dispute, but they are able to be actively involved in the process of creating that resolution.
For many, the purpose of estate planning is to dispose of one's property upon death in a manner that ensures that one's loved ones will be taken care of. While some accomplish this by devising their property in a will to their intended beneficiaries, others take advantage of what are often called "will substitutes." For example, life insurance policies are one type of will substitute. Unlike wills, life insurance policies do not go to policy beneficiaries via probate, which makes insurance policies potentially useful estate planning mechanisms for tax avoidance purposes. Despite this obvious plus, children of the baby boomers—deemed "generation X" in Jeff Reeves' article, "Survey: Gen X seriously short on life insurance"—have on the whole not been taking advantage of life insurance as an investment and estate planning vehicle. According to the article, a recent survey by New York Life revealed that on average Americans born between 1965 and 1976 require life insurance in an amount nearly $449,000.00 greater than that which they have opted for. Furthermore, almost 20% of "Generation X" does not have any life insurance coverage, a figure that is up from the 5% reported in 2008.
A will is an important document for many reasons, the primary one being that it disposes of a person’s property without that person being present to ensure that his or her wishes are being fulfilled. This in part explains why creating a will entails a great deal of formal requirements, designed to (a) impart upon the person creating the will the importance of the document and (b) ensure that the document, which exists well after the testator’s death, represents the most accurate representation of the testator’s wishes.
As the result of modern advances in technology, more and more children are being born through in vitro fertilization. Another reason for this trend is that a greater number of career oriented professional women are choosing to focus on their careers at ages when, historically speaking, most women were focused on having children. Because many such career oriented women still wish to have families later on in life, they commonly will opt to save their eggs when at their most fertile, so they will not be disadvantaged down the road when they do wish to become pregnant, but might be at an age where traditional biological conception is no longer possible. Additionally, in vitro fertilization can provide infertile couples the ability to have children through donated embryos. While in vitro fertilization can be a great benefit to many families, it also can be the cause of many problems. Some of these problems arise within the legal context of inheritance, which in recent years has been complicated by the modern trend of in vitro fertilization.
Aside from the well-known concerns with do-it-yourself wills, there are a number of common mistakes people who seek only ancillary professional advice may fall victim to when devising their wills. Of the most frequent mistakes, four in particular are perhaps the least likely for a layman to anticipate. Each of these four mistakes may potentially lead to an outcome that is contrary to the wishes of the testator with regard to distribution of the assets of their estate, and may result in the testator’s loved ones receiving little or no inheritance.
The intersection of law and technology has received heightened attention in recent years due to the increasing importance of social media in our daily lives and the resulting implications for our personal privacy and confidential information. This modern interrelation between law and technology is becoming increasingly important in the field of estate planning, particularly in light of the recent increase in the use of assisted reproductive technologies (“ART”), such as the utilization of in vitro fertilization technology to produce children.
A recent Florida case, In re Estate of Aldrich, demonstrated the potential consequences of using so-called “Do-It-Yourself” legal forms as a substitute for professional legal advice. The case was centered on the will of Ann Dunn Aldrich, which had been written by Mrs. Aldrich with the assistance of an “E-Z Legal form” template. In her will, Mrs. Aldrich itemized the assets of her estate and devised them to her sister. Should her sister predecease her, Mrs. Aldrich stipulated that the assets of her estate go to her husband, Mr. Aldrich. However, Mrs. Aldrich failed to include a residuary clause, which would have detailed her intentions regarding assets not specifically mentioned.
Oftentimes when individuals hear the term “homestead,” they fail to truly understand the protections that a Homesteaded property brings with it. While any homeowner with a Homestead property surely appreciates the $50,000.00 Homestead Exemption when tax season rolls around, this Exemption is only the tip of the iceberg as far as the expansive, inviolable protections that the Florida Constitution affords the homestead. Under Article X of the Florida Constitution, “a homestead of 160 acres of rural land or one-half acre of urban land and one thousand dollars worth of personal property is to be exempt from execution and forced sale.” While it may not be evident from the plain language of the Florida Constitution, the protections derived from Article X extend far beyond just the tax exemptions and protections from creditors. Understanding these implications—those that benefit as well as those that impede an estate plan—is a necessity in order to create a comprehensive estate plan.
A common argument raised by those challenging the validity of a will is that a beneficiary of the will exercised undue influence over the testator. If this is proven in probate proceedings, anything that is received by that beneficiary as a result of his or her undue influence will be considered void and returned back into the testator’s estate. Asserting a claim of undue influence can have many affects, including the delay of a will’s execution, the disruption of a will’s intentions, and increased costs related to the probate proceedings.