Articles Posted in Intestacy

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.

Probating the Estate of a Missing Person

Even more excruciating than the death of a beloved person is arguably the uncertainty when the beloved person goes missing and his or her body is never recovered. Florida laws contain rules that allow the surviving family members to complete the mourning process, declare the missing person dead, and move on with their lives. One of the issues that the surviving members must deal with is the distribution of the estate of the deceased. Can you probate a missing person’s estate?

The answer is yes. However, as the first step, the missing person must be declared fictitiously dead. Under Florida Statute §731.103(3), a person who is absent from the place of his or her last-known domicile for a continuous period of five years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The thoroughness of the search for the missing person is considered on a case by case basis; therefore, what may be enough in one case might be insufficient in another one. What is clear though is that at least some search must be done every time.

Florida Anti-Lapse Statute

When preparing a Will, it is assumed that the beneficiaries that you name will outlive you. If you expect someone to die before you, it would not make sense to leave any of your wealth and assets behind for them. However, unexpected things happen. Unfortunately, testator’s live beyond the life of their beneficiaries all the time. Sometimes, people do not update or even think about their Will for decades and those named years ago as beneficiaries have passed away. What happens to the gift(s) left for someone who is now deceased?

This concept is known as “lapse.” The original, common law understanding of lapse, was that if a beneficiary predeceases the testator, the specific gift will fall back into the residuary estate of the testator, not the estate of the deceased beneficiaries. For example, if the will states “Car to X, everything else to Y,” and X dies before the testator, the car will fall back to the residuary estate and go to Y. If both X and Y die, the testator’s estate will pass through intestacy.

FLORIDA SUPREME COURT ADOPTS “ATTORNEY-FIDUCIARY PRIVILEGE” RULE

The attorney-client privilege is one of the oldest legal concepts and the backbone of providing effective legal services.  It keeps the communication between an attorney and her client secret and protects it from disclosure, with some exceptions, even when other rules compel disclosure. It is the attorney’s duty and the client’s right―an assurance that she may communicate with her attorney frankly and openly.

The privilege covers communication relating to legal representation between the lawyer and her client that the client intends not to disclose to third persons. Fla. Stat. § 90.502. This privilege is not, however, absolute and many jurisdictions have recognized an exception in fiduciary relationships. This exception allows beneficiaries of a trust to obtain privileged communication between the trustee who administers the trust for their benefit and the attorney who advised the trustee on her fiduciary duties.

ESTATE PLANNING: CRYPTO CURRENCIES AND DIGITAL ASSETS

Although we all unquestionably live in a digital age at least for the past two decades and the legislatures are adopting new laws every day to reflect this reality, digital estate planning remains one of the areas where relying on state-made laws might not be enough. Laws in this area are scarce and only of a general nature. What happens with our digital assets after we die is usually controlled by private companies that store the data. For that reason, and because of the specific nature of digital assets, it is advisable to take these matters in your own hands.

What is a digital estate planning? It is a estate planning that covers any of your digital assets, including cryptocurrencies, websites, email accounts, social network accounts, cloud accounts, and all content stored or communicated trough these tools. What sets these assets apart from the more traditional ones is the fact that there might not be any person other than you who is aware of those assets or who could access them. In other words, no official register, no tax records, no bills, no paper contracts. Yet these assets may have a great value, both personal and monetary.

Legal Capacity and Estate Planning – How to Safeguard a Will from Future Litigation or Contests

When a loved one grows older, ages and declines, their caretakers’ ever growing to-do list can become overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will.  By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed.  Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002).  A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.

Elder abuse: the farmer population as the next potential target

Florida is a state well-known for its agriculture. In fact, within the United States, it is safe to presume that most people think that the best oranges come from Florida (we certainly think they do). Agriculture is the second most important economic activity in Florida, preceded only by tourism. Agriculture contributes $104 billion in revenue to the state and employs two million people.

According to a 2016 study by Oregon State University and Portland State University, the average age of farmers is 60 years old. Additionally, it is believed that in the next twenty years, 10 million acres of farmland are going to change ownership. Like all other people, we can expect health issues to arise as our farmers age. Studies suggest that 38% of people who are over 85 years old have dementia or some impairment in their mental faculties.

Undue Influence

For a Will to be valid, certain conditions must be met. The testator must have legal capacity, be at least eighteen years old, 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 are 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.”[1]

The Fourth District Court of Appeal, in Blinn v. Carlman,[2] stated that, “[w]hen a will is challenged on the grounds of undue influence, the influence must amount to over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.” When a will is a product of undue influence, it, by definition, is not the intent of the testator, and therefore courts should not give effect to it.

Guardianship:  When No Less Restrictive Alternative is Available

What is guardianship?

The simple answer: court intervention to safeguard the property and care of an individual unable to make such decisions themselves.

Priority of Medical Decision-Makers when Incapacitated

Throughout life, many unexpected things can happen. Have you ever wondered who will get to make difficult medical decisions for you if you are incapacitated or otherwise unable to? The Florida Legislature has, in § 765.401 Fla. Stat. (1992), made a list in order of priority of such proxies.

The first person on the list is a court-appointed guardian if one has previously been appointed and has been authorized to consent to medical treatment for the patient. Likewise, a guardian advocate previously appointed by the court will be first in line to make decisions for one who has a developmental disability. It is important to note that guardian appointments are not required before a medical decision can be made.

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