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Articles Posted in Opening an Estate

What Happens to My Pets When I Die? Florida Pet Trusts

Many people consider their pets to be an integral and indispensable part of their families. For that reason, many people want to ensure their beloved dog, cat, horse, or other animal will be provided for in the event of their death. Pets are considered tangible personal property in Florida, and can be devised, so in the absence of a specific bequest, your pets will go to whomever you have designated to receive your tangible personal property.

For many people, such an arrangement is fine, but some people may want to ensure that their pets are taken care of after they are gone, and for those people, a pet trust may be appropriate. A pet trust is a legal mechanism that specifies and arranges for how your pet would be taken care of and financially provided for should you become incapacitated or die. In Florida, Fla. Stat. § 736.0408 enables the creation of a pet trust.

COVID-19 – Buying Life Insurance to protect your children, but what happens when you name them as the beneficiaries?

During these uncertain times, people are attempting to prepare for the worst. This is especially true for those who have minor children. The fear of getting infected with the virus, developing a serious illness that could potentially lead to death, and leaving their children unprotected is very real. Thus, individuals are opting to buy life insurance to make sure their children are taken care of in the event of their death.

But what happens when you die and your minor children are the beneficiaries under your life insurance policy? Since minors cannot legally manage property, the court will appoint a guardian to handle the money for the benefit of your children until they reach the age of majority—a guardianship proceeding. Alternatively, life insurance companies will sometimes ask you to name a custodian, which will create a custodianship account under the Florida Uniform Transfers to Minors Act (“UTMA”), also until the age of majority.

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.

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.

Do I Need to Amend My Trust Because of the Secure Act?

Last month, in our last blog, we addressed the basics of the Setting Every Community Up for Retirement Enhancement Act of 2019 (the “SECURE Act’) and how retirement plan beneficiary designations will be impacted for individuals who die in or after 2020. But what if you already set up an estate plan with a trust as beneficiary of your retirement account? Do you need to amend your trust or your beneficiary designation form as a result of the passage of the SECURE Act?

The answer is that it depends on whether the trust is an “accumulation” trust or a “conduit” trust and how you want such retirement accounts to be treated. Generally, in an accumulation trust, assets payable to the trust are to be distributed in the trustee’s discretion. A conduit trust, on the other hand, generally requires that assets must be distributed to the beneficiary – in other words, the trust simply acts as a conduit to deliver the assets to the beneficiary, and the assets cannot stay (that is, cannot accumulate) in the trust. It is possible to draft the trust as an accumulation trust with respect to all assets except retirement accounts, just as it is possible to draft a conduit trust that requires only outright distributions of retirement accounts (leaving the remainder of the funds at the trustee’s discretion).

The Secure Act: Retirement Accounts and Your Estate Plan

Beginning on December 20, 2019, the Secure Act substantially changed the rules for designated beneficiaries of retirement plans, with wide raging implications for estate planning.

The old rule used to be that upon the death of a retirement account owner, the beneficiary of the plan would be able to take required minimum distributions based on that beneficiary’s life expectancy. This was beneficial especially for younger beneficiaries with long life expectancies who could “stretch” the payments over many years, allowing the assets to stay invested in the plan longer. It was also possible for beneficiaries to receive these stretch payments if a trust for their benefit was named as the beneficiary, as long as the trust qualified as a “see-through” trust. If no beneficiary was named, or if a non-see-through trust was named as beneficiary, the entire plan had to be distributed within 5 years of the date of death of the participant. Because many clients wish to leave their assets in trust for their children, much of the focus of estate planners up until this point had been drafting trusts so that they qualified as see-through trusts in order to avoid the 5-year rule.

What if Your Beneficiaries Predecease You?

When preparing a will, people assume that the beneficiaries that they name will outlive them. Unfortunately, testator’s live beyond the life of their beneficiaries all the time. What happens to the gift left for someone who is now deceased?

The original common law understanding was that if a beneficiary predeceases the testator, the specific gift to that beneficiary would “lapse,” and therefore fall back into the residuary estate of the testator. However, in some instances, Florida “Anti-Lapse statutes” may change this result. In Florida, barring any contrary intent appearing in the will, if the devise is to the testator’s grandparent or any descendant of a grandparent, and the devisee predeceases the testator, the devise passes onto the devisee’s surviving descendants. Thus, a lapse is avoided when the specific gift is to the testator’s grandparents or descendant of grandparents. However, a devise to anyone who is not a grandparent or descendant of a grandparent would still lapse if that devisee predeceased the testator, unless a contrary intent appeared in the will.

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:

I Already Have a Will; When Should I Update My Estate Planning Documents?

When someone executes a valid will, some people assume that if their wishes do not change, they should never have to revisit their estate plan. However, there are certain common events in life that should cause you to review or update your estate planning documents.

Marriage/Divorce: A surviving spouse is entitled to a percentage of a decedent’s estate, regardless of whether the decedent included the spouse in the decedent’s will. Interestingly, the amount that a surviving spouse is entitled to may vary depending on whether the will was executed before or after the marriage. If you execute a will and subsequently marry, the spouse will receive a share equal to what he or she would have had, had the testator died intestate. This typically amounts to either one-half of the estate (if there are children of the decedent who are not children of the surviving spouse), or the entire estate (if there are no surviving children, or if the surviving spouse and the decedent are the parents of the only surviving children). Fla. Stat, Sec. 732.301 and Sec. 732.102. In either case, this is more than the amount that a surviving spouse is entitled to under the “elective share” which is thirty percent (30%) of the decedent’s estate.

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