Florida Probate Litigation Lawyer Blog

For same sex couples, having effective estate planning documents and correctly titled property is very important. Without documents expressing the wishes of the couple, there may be undesirable results in the event of a death or serious illness of a partner. If the couple’s wills are not executed properly, upon one partner’s death, property may pass intestate to a relative rather than to the surviving partner. Without a health care surrogate document, if one partner is sick in a hospital the other partner may not have rights to make important decisions for them. The current laws of Florida do not recognize same sex marriages so same sex couples living in South Florida have little protection outside of legal documents that their property and assets will pass to the surviving partner in the event of a death. There are many same sex couples living in Miami Beach, Ft. Lauderdale, Wilton Manors and other South Florida communities who can benefit from a comprehensive estate plan. It is important that same sex couples seek out the assistance of an experienced attorney to make sure their deeds, wills, trusts and powers of attorney are airtight and will carry out each person’s wishes in the event of death or serious illness. In this evolving area of law, same sex couples should have peace of mind that their post death wishes are secure.

An important step for same sex couples to take is to make sure their property is titled properly. Couples can hold property as joint tenants with rights of survivorship. This allows the property to pass to the surviving partner without the property having to go through the probate process. A same sex couple might believe their properties are titled correctly, but unfortunately sometimes deeds are titled incorrectly by mistake. If a deed is incorrect the property may be held only as tenants in common, meaning the property would not pass automatically upon death, but it would be subject to probate.

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What if an accident or illness made it impossible to manage your financial affairs? Would your loved ones have to go to the Dade County or Broward County courthouse to get the authority to handle your affairs? No one likes to consider such grim possibilities, but the truth is that almost every family will eventually face this kind of difficulty. Durable powers of attorney can certainly make life easier for you and your family if times get tough.

Florida Statute Section 709 provides that a durable power of attorney is a written document that remains valid even if you should later become unable to make your own decisions. It is often chosen as a way to plan for those times when you are incapacitated. With a durable power of attorney, you are able to appoint a person or an agent to manage your financial affairs, make health care decisions, or conduct other business for you during your incapacitation. You can give your agent the power to do every act which may legally be done by you, or you can give them limited power, for example, to only sell property, pay bills or make investments.

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The living will is an important estate planning tool. Because this form of “will” is used while an individual is still alive (but no longer able to make decisions) it is dubbed the “living will.” The purpose of a living will is to allow you to make decisions about life support and directs others to implement your desires in that regard. Doctors in all parts of Florida, including Miami-Dade County and Broward County are familiar with these documents. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. A living will can be very specific or very general. More specific living wills may include information regarding an individual's desire for such services such as pain relief, antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation. Living wills may need regular updating to ensure that the correct course of action can be chosen.

Living wills are needed because advances in medicine allow doctors to prolong and sustain life although the person will not recover from a persistent vegetative state. Some people would not desire to remain in that state while others would. The living will allows you to make the decision of whether life-prolonging medical or surgical procedures are to be continued, or withheld or withdrawn, as well as when artificial feeding and fluids are to be used or withheld. It allows you to express your wishes prior to being incapacitated. Your physicians or health care providers are directed by the living will to follow your instructions. You may change the living will prior to becoming incapacitated.

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In addition to utilizing a trust to provide for your family, you can also create a trust to benefit a charitable organization. To qualify as a charitable trust, the benefiting party must be a charity pursuant to section 501(c)(3) of the Internal Revenue Code. Naturally, such entity must operate solely for religious, educational, and other charitable purposes whereby zero net earnings of the entity benefit any private shareholder or individual. Because donations to charitable organizations are tax deductible, a charitable trust serves as an easy way to provide for a charitable cause and achieve tax benefits.

Florida law, as emulated in section 736.1210 of the Florida Probate Code, encourages the use of charitable trusts and works to preserve the intent of any individual that seeks to provide for a charitable beneficiary through a trust. This intent of the Florida legislature is carried out further by section 736.0405 of the Florida Probate Code, which states that if the trust itself does not name a specific charity as a beneficiary, a court may select a charitable purpose or beneficiary. Of course, the court must consider the settlor’s intent wherever applicable when determining which charity will benefit under the trust.

Instead of creating a trust solely for the benefit of a charitable organization, many individuals name charities as beneficiaries to the remainder of the trust’s assets after the interests of other beneficiaries have terminated. For example, a trust may provide for one’s children, during their lifetimes, with the residuary of the trust going to a charity upon the passing of the children. This form of a trust is considered a split interest trust, in that it serves a purpose in addition to providing for a charitable purpose. Trusts can also be created to benefit one or more private foundations as well.

The trustee of a private foundation trust or a split interest trust owes fiduciary duties to both the settlor and the charitable beneficiaries. Under section 736.1204 of the Florida Probate Code, a trustee may not deprive the trust of any “tax exemption, deduction, or credit for tax purposes.” This section of the Code details the extent to which the trustee of a charitable trust must ensure that the trust is not subjected to unnecessary taxes under the Internal Revenue Code. Section 736.1206 of the Florida Probate Code also provides that the trustee of a trust created solely for charitable purposes may amend the trust instrument, with the consent of the charitable organization(s), so that it complies with section 736.1204(2) of the Code (“trustee of a private foundation trust shall make distributions at such time and in such manner as not to subject the trust to tax under s. 4942 of the Internal Revenue Code”). In other situations, the trustee may amend the trust to comply for tax purposes with the consent of the state attorney.

If you or someone you know wishes to create a trust for the benefit of a charitable organization and live in the West Palm, Fort Lauderdale, or Miami-Dade area, feel free to contact the experienced attorneys at Chepenik Trushin who can help you with your estate planning or probate litigation needs. Please feel free to contact us for an initial first consultation.

In Florida, the intent of a settlor (the person who creates a trust) proves extremely important with respect to the handling of the trust’s assets. Florida Probate Code section 736.1101 states that “[t]he intent of the settlor as expressed in the terms of the trust controls the legal effect of the dispositions made in the trust.” Thus, according to Florida law, it is the intent “as expressed in the terms of the trust” that is the benchmark to follow. This can become an issue should any disputes arise regarding the rights of trust beneficiaries after the settlor has passed. Because the distribution of trust assets will follow the express terms of the trust itself, it is very important that the settlor clearly convey his or her intentions to the attorney who drafts the instrument. After all, once the settlor passes away, he or she can no longer amend the terms of the trust to more readily convey his or her intentions.

While the terms of a trust typically prevail over any requirement stated in the Florida Probate Code, there are a few exceptions whereby Florida law controls the construction of a trust. For instance, Florida Probate Code section 736.0105 requires that all trustees act “in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.” Thus, any power that purports to allow a trustee to act in any manner, regardless of whether it is in good faith or not, will be disregarded. Moreover, section 736.0105 also states that a trust cannot have a purpose that is unlawful or contrary to public policy. The requirement for a trust to be in accordance with public policy supports section 736.1104 of the Code, which states that a beneficiary who intentionally kills the settlor of the trust is not entitled to any trust interest if said beneficiary is convicted of murder under a court of law.

The Florida Probate Code will also govern a trust’s provisions in lieu of the settlor’s intent in the event of the settlor’s divorce. Section 736.1104 of the Code states that, unless the trust provides otherwise, any provision of a revocable trust that affects the settlor’s spouse becomes void should the spouses divorce. Clearly, this section of the Code demonstrates another way in which Florida law will step in and modify the terms of the Trust. As a matter of public policy, these situations are reasonable and likely have the effect of carrying out the settlor’s intent once he or she has passed.

If you, or someone you know, live in the West Palm, Fort Lauderdale, or Miami-Dade area and wish to create a trust in order to provide for the distribution of your estate, the team at Chepenik & Trushin will help you with any such estate planning needs. Please feel free to contact us for an initial first consultation.

In Florida, “lineal descendant” or “descendant” is defined to mean “a person in any generational level down the applicable individual’s descending line.” Essentially, a descendant is a blood-relative of the deceased. Under Florida law, adopted children are also considered descendants for the purposes of Probate.

So what does this really mean? Suppose John, a resident of Fort Lauderdale, Florida, makes a will that simply states, “I leave everything I own to my lineal descendants.” Now, suppose John has two children from his previous marriage (related by blood), and his second wife, Jane, has two children from her previous marriage, neither of which John has adopted. This means, if John dies without modifying his will, John’s step-children receive nothing.

John’s step children will receive nothing because, under Florida law, a technical term, such as “descendant,” used in a Will, is accorded its legal definition unless obviously used by the deceased in a different sense. Additionally, in construing a will, the courts look to the intent of the deceased and try to give effect to the deceased’s wishes. In determining the intent of the deceased, the courts look to the wording of the will. If the will says the word “descendant,” and the word is not defined, the court will assume that the deceased intended “descendant” to have its ordinary legal meaning.

If John chooses to modify his will to include his step-children, he can still include the term “descendant,” but he must evidence his intent to expand the definition of descendant to include step-children. Also, under Florida law, the intent to expand the definition to include step-children must be obvious on the face of the will. However, if John does not want to modify his will, he could instead take the appropriate steps to adopt Jane’s two children. If John adopted Jane’s two children, Jane’s two children could inherit from John under the Florida definition of “descendant.”

How should someone make their intent to expand the definition of descendant obvious? For example, John could include a clause in his will, that stated, “For purposes of this Will, the term “descendants” shall include, in addition to my natural and adopted children, the children of my wife, Jane.” This statement shows that John considers his children as well as his step-children to be his descendants.

If you or someone you know lives in the West Palm, Broward or Miami-Dade area and are either planning to create a will, revising a will or has a dispute about a will, the probate team at Chepenik Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.

Pauline, a lifelong resident of Broward County, Florida, has finally decided to consult with an attorney about drafting a will. Included among the property she wishes to devise is her house, stocks, bonds, her car, savings accounts, and personal property contained inside her home.

An avid collector of antique vases for almost 30 years, Pauline has accumulated a large assortment that brings her much joy, although most of the pieces themselves are not valuable. Upon her death, she wishes to distribute specific vases among her many grandchildren.

As a general rule, it is difficult to successfully update or modify gifts in a will without executing a new will or create an amendment to a will, known as a codicil. Although it makes sense to update a will when one wishes to make significant modifications in regard to high-valued property or the people receiving under a will, it is often a far too complicated process when only tangible personal property, such as the antique vase collection, is concerned. Pauline is constantly adding new items to her collection, and as the proud mother of several children, welcomes a new grandchild into her life almost every year.

Florida Statute 732.515 provides a convenient exception to the rigid general rule described above. It allows a testator (the person creating a will) to maintain a list or statement that is referenced in a will instructing how to distribute tangible personal property. Thus, this provision of the Probate Code gives Pauline the ability to keep a running list of her personal property, such as her vase collection, and update it as often as she pleases without going through the formalities of updating her will.

Note, however, that only tangible personal property may be referenced in a separate writing under Florida Statute 732.515. Property such as Pauline’s house, stocks, bonds, car, savings accounts, etc. cannot be devised in this manner. Additionally, such tangible personal property may not have been used in trade or business, or be property that is otherwise disposed by the will itself.

To be valid, this separate writing must be signed by the testator and adequately describe the items of personal property and the people they are to go to with reasonable certainty. It is important to note that if more than one separate writing disposing of personal property in this manner exists, the most recent writing will control.

Most property of value, however, does not qualify for the limited exception granted by Florida Statute 732.515. Often times, making additions or modifications in a will requires the help of trained professionals to ensure they will be executed as intended. If you or someone you know lives in the West Palm Beach, Fort Lauderdale or Miami-Dade area, the probate team at Chepenik & Trushin will help create a separate writing for the disposition of tangible personal property, or otherwise help you establish or modify a will. Please feel free to contact us for an initial consultation.

Under Florida Statute 732.901, any document purporting to be a last will must be filed with the clerk of court within 10 days after receiving notice that the testator (creator of the will) is dead. Even if you believe that the will is invalid or procured by undue influence, Florida law still requires that the custodian of the will deposit the will with the court. Whether filed in Miami, Fort Lauderdale, or Palm Beach, it is up to the probate judge to decide if the will is valid for probate.

Florida Statute 732.502 sets forth the requirements for a will to be valid. Any document attempting to devise the property of a deceased person after his or her death must be executed or signed by the testator in the presence of two attesting witnesses. You must properly prove this execution so that the probate judge is satisfied. This often involves additional court proceedings and having the witness actually take oaths in front of the presiding judge.

The simplest way to prove proper execution of a will in Florida is by utilizing a self-proving affidavit. Florida Statute 733.201 states that self-proved wills may be admitted to probate without further proof. The self-proving affidavit, defined by Florida Statute 732.503, must be attached to the will. It states that the will was signed by the two witnesses in the presence of the testator, who also signed the affidavit. This affidavit must be notarized by a notary public who takes this sworn statement from the witnesses and from the testator. The self-proving affidavit must specifically contain the aforementioned items or the will won’t be admitted to probate. Without a self-proving affidavit, a witness to the will execution must take an oath before the circuit judge at the testator’s death that the will was properly executed, or if that is not feasible, then the personal representative must take the oath. Either way, it is a burdensome process.

If you live in the West Palm, Broward, or Miami-Dade area and believe that a friend or relative’s will was improperly admitted into probate, the probate litigation team at Chepenik & Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.