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.
While many of Tony Soprano’s most iconic quotes are of the NSFW variety, one of his “work friendly” quotes comes to mind in light of the criticism directed towards James Gandolfini’s estate plan: “A wrong decision is better than indecision.” While the benefit of hindsight makes it easy to point out the perceived tax flaws of the last will and testament that Roger S. Haber drafted for Mr. Gandolfini, at least Gandolfini and his attorney made a decision! By seeking legal counsel to draft a testamentary instrument devising his possessions, Gandolfini avoided a fate that has befallen luminaries such as Abraham Lincoln, Pablo Picasso, Stieg Larsson, Howard Hughes, and Bob Marley—dying without a will. Regardless of whether Mr. Gandolfini would have chosen for Uncle Sam to receive such a hefty portion of the fruits of his lifetime of labor, Gandolfini can rest in peace knowing that he was able to convey his feelings with one final act of affection.
Will a final judgment in the State of Florida be recognized and given the same effect the judgment would have in a territorial probate court of the United States? Any final judgment rendered in a Florida probate court regarding the validity of a decedent’s last will and testament, for example, will be treated in the same manner as a judgment from any territory of the United States (Puerto Rico, the U.S. Virgin Islands, etc.), so long as the Florida court had adjudicatory authority over the subject matter and persons governed by the judgment. Furthermore, the Florida judgment will “have the same effect and shall be subject to the same procedures, defenses and proceedings for reopening, vacating, or staying” as a final order of the respective territorial court. 5 V.I.C. § 553.
Florida is one of the many separate property states that give a decedent’s surviving spouse an “elective share” of the decedent’s property. This share of the estate is but one of several supportive mechanisms for surviving spouses in Florida. Others include homestead, social security, and employee pension plans. The term “elective share” implies the choice, or “election,” that state statutes typically grant the surviving spouse after the decedent’s will has been admitted to probate. The surviving spouse can either take under the specific provisions of the decedent’s will, or the spouse can renounce the will and take a statutory, fractional share of the decedent’s estate. In the usual case, the decedent has already bequeathed to the surviving spouse a majority (or at least a significant amount) of his or her estate property, leaving the concept of the “elective share” out of the picture. In more unusual cases, however, the decedent completely disinherits the surviving spouse under his or her will, or simply designates a very small portion of his or her assets to the surviving spouse. The latter is most commonly where elective share statutes come into play, especially when the decedent passed away leaving a substantial amount of wealth behind.
Vehicles often comprise part of a person’s estate after they pass. It is sometimes possible to distribute vehicles very soon after a person’s death, sometimes even without an order from the probate court.
If the beneficiary of the vehicle is either the surviving spouse, or, if there is no surviving spouse, the children of the decedent and the decedent was domiciled in Florida at the time of death, the beneficiary may have a right to have the vehicle designated “exempt property.” Fla. Stat. §732.402(1). Exempt property is protected from all claims against the estate, except secured interests on the property itself, and can be distributed directly to the surviving spouse or children after the court authorizes the designation of the property as exempt. Fla. Stat. §732.402(3). A vehicle can be designated as exempt property by filing a Petition for Determination of Exempt Property with the probate court. Fla. Prob. R. 5.406. Up to two vehicles can be designated as exempt property if individually they (1) weigh less than 15,000 pounds, (2) are held in the decedent’s name, and (3) were regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. Fla. Stat. §732.402(2)(b). If a surviving spouse or children of the decedent do not file a petition for determination of exempt property on or before the later of the date that is four months after the date of service of the notice of administration or the date that is forty days after the date of termination of any proceeding involving the construction, admission to probate, or the validity of the will or involving any other matter affecting any part of the estate, they will be deemed to have waived their right to the exempt property status. Fla. Stat. §732.402(6). After a court authorization, the exempt property may be distributed directly to the surviving spouse or children.
An interesting case recently surfaced involving the $200 million estate of a North Carolina real estate developer Henry Faison. Mr. Faison created a will devising his estate in 2000, but decided to make changes last year. Unexpectedly, Mr. Faison passed away in his office just before signing the second will. As should be expected, multiple parties have an interest in Mr. Faison’s large estate, and a lawsuit claiming unjust enrichment on the part of the 2000 will’s primary beneficiary was filed in the courts to determine which of the two wills should control distributions of the estate’s assets. This begs the questions of what the probable result of this lawsuit would be were it decided in Florida, and what can one do to avoid a similar situation?