CORONAVIRUS UPDATE: What We Are Doing to Protect Our Clients

Articles Posted in Alleged Incapacitated Person

Social Distancing and Signing Documents: Can a Beneficiary Act as a Witness?

During COVID-19, we have had to adapt the way we sign estate planning documents while maintaining safe social distancing. Although businesses are slowly reopening and things appear to be getting back to a sense of normal, it is still important to be cautious and keep our exposures to a minimum. One of the strategies Chepenik Trushin LLP has adjusted is to make the estate planning process entirely remote, with phone and video conferences, email communications, and sending estate planning documents through regular or electronic mail with detailed instructions for clients to sign on their own. For some clients, this has worked well, but for others, it has been a challenge to find two witnesses and a notary, which are required for many estate planning documents. A frequent question that has arisen is whether a relative or a beneficiary may serve as the witness to a will or other estate planning documents, such as a trust.

For a number of years, Florida law disfavored beneficiaries under a will from also being witnesses to the will. Under current Florida law, a will or codicil is not invalid simply because the will or codicil is signed by an interested witness. Fla. Stat. § 732.504(2). Based on the Florida statute, a beneficiary can serve as a witness to a will.

COVID 19 Pandemic: If I can’t make medical decisions for myself, who can?

On January 19, 2020, a man in his mid-thirties reported to an urgent care clinic in Snohomish County, Washington, with a persistent cough and fever. The next day, testing by the Center for Disease Control confirmed that the man had COVID 19 marking the first positive test in the United States. Since then, positive cases in the United States have ballooned to over 1,000,000 even as social distancing and quarantine measures have become the new normal.

These unprecedented circumstances raise critical questions about medical care. If you become too sick to make your own medical decisions, who gets to make them? And, to what extent can you control those decisions? In Florida, there are two basic ways you can direct medical decision-making before you become physically or mentally unable to make those decisions for yourself: (1) through the designation of a Healthcare surrogate and (2) by recording your treatment preferences in a living will.

How to Safely get Documents Notarized During a Pandemic

For the indefinite time being, social distancing and staying home are necessary safety measures. However, that does not mean the world stops. People still have needs and documents that must be notarized. There are ways to do that without leaving the house and risking exposure.

Florida Statute sections 117.201-117.305 went into effect on January 1, 2020 and allows notarization to occur remotely once a notary completes an application and training course. Usually, when getting a document notarized, the notary either confirms that they know you personally or verifies your identity by looking at government-issued identification. Now, according to Florida Statute § 117.265, via audio-video communication, a notary can do the same thing with an additional step. If the notary does not know you personally, you can remotely show your government-issued identification and then answer a few questions to confirm your identity. See Fla. Stat. § 117.265; See also Fla. Stat § 117.295. Once that is complete, the notary can watch you electronically sign the document and notarize it from his/her computer. When looking for a notary to provide this online service, look for someone that is a Remote Online Notary, also known as a “RON.” Not all notaries are qualified to perform this service remotely. The lawyers and staff at Chepenik Trushin LLP can help you through this process, keeping you and your loved one’s safe.

COVID 19 – Is Your Estate In Order? Non-Probate Transfers and Pitfalls of Beneficiary Designations

In the wake of the recent Corona virus pandemic, many people are understandably concerned about their estate plan. A common misconception is that if you have executed a will or even a trust, then you are all set. In fact, it may not be that simple. In fact, a will is not the only instrument capable of passing down an estate to the decedent’s heirs, and some assets may not be controlled by your will and/or trust at all.

For example, in a joint tenancy with rights of survivorship, the property automatically passes to the surviving owner. So, if A and B own a piece of land in joint tenancy and A dies, B immediately gains full ownership of the land, without a probate administration. A’s right to the land extinguishes and thus, A has nothing to leave to his heirs through a will, or otherwise. Another way to avoid probate is through accounts with Transfer-on-Death (TOD) clauses. An account with a TOD beneficiary will transfer the ownership of the account will be transferred to the beneficiary at the decedent’s death, without a will or trust.

How Can you Prove Undue Influence?

For a Will to be valid, certain conditions must be met. The testator must have legal capacity, at least eighteen years old, must have testamentary intent, and the will must not be a product of undue influence or duress. The first two requirements are usually relatively easy issues to resolve, but undue influence and duress is not always clear. As the Supreme Court of Florida explained, “[u]ndue influence is not usually exercised openly in the presence of others, so that it may be directly proved, hence it may be proved by indirect evidence of facts and circumstances from which it may be inferred.”

In In re Estate of Carpenter, the Supreme Court of Florida listed a set of seven, non-exhaustive factors to consider when deciding cases of Undue Influence:

Avoiding Undue Influence, as an Adult Child, Assisting Parent’s Estate Planning

Writing a will is a process most people view as a terrible chore, but it is one that is necessary. The process may get further complicated when one spouse has already passed away and the adult children of the surviving elderly parent assist in managing and dividing finances. This has become more of a reality as more and more middle-aged children are caring for elderly parents. Perhaps, not surprisingly, this phenomenon is more pronounced in Florida, which according to the U.S. Census Bureau, leads the nation in terms of greatest share of its population aged 65 and older in 2010.

This scenario can lead to issues in estate planning especially if the parent is experiencing diminished mental capacity where too much of an adult child’s influence over estate planning decisions of the parent may bring legal problems such as legal charges of “undue influence.” Every state has its own undue influence laws to address these types of issues not only in the context of children’s undue influence on parents but others outside the family, such as a girlfriend or caretaker. In Florida, in order to raise a presumption of undue influence, a petitioner must show “(1) the existence of a confidential or fiduciary relationship between the decedent and the procurer of a will; (2) the active participation of the procurer in the planning and drafting of the will; and (3) the realization by the procurer of a substantial benefit under the provisions of the will.” These elements in Florida are found in common law as opposed to codified statutes so the court’s decision will be based on how convincing the evidence is in a case.

What happens to Your Pets When you Pass Away?

In addition to the human members of one’s families, many individuals also have animal members of their family. Because pets are so important to many families, it is often appropriate to make provision in one’s will or trust for one’s pets. While pets cannot take under a testamentary will, a pet owner may still be able to set money aside and account for her pet’s care. An owner may create a pet trust under state law or may grant a person with the authority to care for their pet as a guardian.

You may have heard of celebrities in the news giving large devises to their pets, which may have been upsetting to other beneficiaries (or people who thought they should have been beneficiaries). For example, Leona Helmsley left $12 million to her dog, opting to leave her grandchildren out of her will. When a devise to the pet is considerably large, however, a court may step in. Leona Helmsley’s dog wound up only inheriting $2 million after a court determined $12 million was too high.

What is my Deadline to Contest a Will in Florida?

Surprisingly, as astounding 55% of adults in the United States do not have a Will or any other sort of estate plan in place. While planning one’s estate certainly makes matters easier for loved ones after death, problems can arise even when one does make a will. There are dozens of reasons one may want to contest a will. Some of these include including lack of testamentary capacity, undue influence, fraud, lack of the required number of witnesses or discovery of a later will. But when one realizes there is an issue with a will, what does one do and how much time does one have to challenge it? Legal actions typically have a statute of limitations. As defined by Black’s Law Dictionary, a statute of limitations is the “time frame set by legislation where affected parties need to take action to enforce rights or seeks redress after injury or damage.”

In Florida, the time limitation to challenge a will is statutory. While Florida allows years to pass on claims before barring actions with a statute of limitations, the Florida Legislature only gives three (3) months for someone to contest a will. Florida Statute §733.212 (the “Statute”) outlines the process and deadlines for the filing of objections. It states in relevant part:

Guardianship – What is it?

Answer: A court intervention to safeguard the property and personal care of an individual unable to make such decisions themselves.

A person under guardianship becomes a ward of the court.  State law establishes the process for determining an adult’s need for guardianship, which involves a finding of incapacity.

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