CORONAVIRUS UPDATE: What We Are Doing to Protect Our Clients

Articles Posted in Power of Attorney

In November 2021, after Britney Spears’ father, Jamie Spears, was suspended as conservator of his daughter’s conservatorship, a judge finally ruled to end the conservatorship. This decision signaled the end for the restrictive supervision that had been in place since 2008. Back in June 2021, Britney Spears made headlines as she gave an emotional testimony pleading for her conservatorship to be lifted, echoing the online social media movement #FreeBritney. After nearly fourteen years, Ms. Spears is finally poised to assume complete autonomy of her life and regain many of her most fundamental individual rights.

What is a conservatorship?

Under California law, where Ms. Spears resides, “[a] conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.” The state declares one to be a conservatee if he or she is intellectually incapacitated and unable to make independent decisions, usually involving ailments such as dementia, serious mental illness, or other metal disabilities. Once the court establishes the conservatorship, the conservatee loses the right to make certain decisions, such as deciding medical treatment, controlling financial assets, marrying, and signing contracts, to name a few.

Can an Irrevocable Trust be Changed? Trust Decanting under Florida Law

You do not have to be a Sommelier to be familiar with the concept of decanting wine. “Decanting”, the pouring of wine from its original bottle into a different vessel – is a technique utilized for two contemporaneous purposes: to separate the wine from any sediment that has formed it its original container, and to aerate the wine to enrich its flavors. It may be surprising, however, to learn that a similar legal concept exists for Trusts, and is valuable for similar circumstances.

As its name suggests, “Trust Decanting” is when a trustee creates a new trust, moving all the assets from the initial trust into the second trust, to either correct a mistake or unintended result—the hypothetical “sediment” that the initial trust may have incurred, or to strengthen the original purpose of the trust.

DIY Estate Planning: Can I Make a Will Myself?

While a steady drive towards technology has been growing for decades, the onset of the COVID-19 pandemic tremendously increased our reliance on technology, effectively changing the the way we do nearly everything, including estate planning. Do-It-Yourself (DIY) online services offering legal templates and forms have gained popularity in the wake of the stay-home orders, popular for their convenience and low cost. DIY estate planning forms, such as like a last will and testament, codicils and health care or financial powers of attorney, created without the guidance of an attorney can create several issues.

Take, for instance, the case of Aldrich v. Basile, which the Supreme Court of Florida called “a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.”[1] In Aldrich, a women used a DIY will template that willed several assets to her brother. After creating this will, she inherited some property and large sum of money. Her will, however, did not contain a residuary clause, which accounts for all property not specially bequeathed in the will. Upon her death, her brother and nieces began suit to determine the rightful owner to the inherited money and property, each claiming it was theirs. The Florida Supreme Court held that because the will did not contain a residuary clause, the money and property would pass through intestacy (the law that happens when someone dies without a valid will), meaning it would be split according to the default Florida laws. This case demonstrates the detrimental impact of an online will template can have when it does not adequately address your estate’s specific, changing needs.

Can an Irrevocable Trust be Changed? Trust Decanting under Florida Law

You do not have to be a Sommelier to be familiar with the concept of decanting wine. “Decanting”- the pouring of wine from its original bottle into a different vessel- is a technique utilized for two contemporaneous purposes; two separate the wine from any sediment that has formed it its original container, and to aerate the wine to enrich its flavors. It may be surprising, however, to learn that a similar legal concept exists for trusts, and is valuable for similar circumstances. As its name suggests, “trust decanting” is when a trustee creates a new trust, moving all the assets from the initial trust into the second trust, to either correct a mistake or unintended result- the hypothetical “sediment” that the initial trust may have incurred, or to strengthen the original purpose of the trust.

Under Florida law, the power to decant a trust is granted to any trustee other than the settlor or beneficiary who has the power to invade the trust principal; called an “authorized trustee.”[1] Following a 2018 revision to Florida’s trust decanting statute, there are now three distinct ways in which a trustee may decant;[2]

Florida’s Elective Share: Part II

Our previous blog post two weeks ago addressed Florida law regarding the protection to surviving spouses provided by the elective share from the perspective of estate planning (Elective Share – what is it and why you should know more about it). This post focusses on the options of a surviving spouse after declaring elective share. However, electing against the decedent’s estate may not always be the most beneficial option for a surviving spouse. Depending on the circumstances, a surviving spouse’s pretermitted share of decedent’s estate can be much larger than their elective share, and therefore, in some cases, it may not be beneficial to utilize the elective share.

Intestacy and Pretermitted Spouse

How does Florida’s Elective Share Affect my Estate Plan? Part One.

What is an “Elective Share”?

In situations where the decedent’s will has left their surviving spouse very little, or nothing, Florida law protects surviving spouse’s in two major ways: The Elective Share and Homestead. While both of these laws may affect your estate plan in significant ways, this blog and the next blog will focus on the elective share. A surviving spouse has the right to claim an elective share of the decedent’s estate, often termed “electing against the will.” By opting to claim their elective share, a surviving spouse can essentially supersede the terms of a will and bequests to other people in order to obtain a percentage of the decedent’s estate.

Guardianship: Don’t Believe Everything You Watch on Netflix

Netflix’s new sensationalist movie “I Care a Lot,” released this past February 19, 2021, might have you thinking that being a guardian may be the path to wealth and easy money. Although a scammer making a living by successfully requesting the courts to appoint her as the guardian of elderly people she falsely claims cannot take care of themselves makes for a captivating story, fortunately this is far from the reality of guardianship practice.

Guardians are appointed by the court to care for and manage the property of people who cannot do it for themselves, such as individuals with a chronic mental illness, dementia, traumatic brain injury, or orphaned children. But the first thing to keep in mind is that, before a guardian is appointed, the allegedly incapacitated person has to be declared incapacitated by a court of law. This process involves the evaluation by one or more mental health professionals and/or physicians. Thus, unlike the movie, simply alleging a person cannot care for him or herself will not be sufficient. Once the person is deemed incapacitated, some or all of his or her legal rights are removed, and the guardian is charged with the responsibility to exercise those rights on behalf of the incapacitated person, who is legally referred to as “the ward.”

Larry King’s Handwritten Will Ordeal

The recent passing of the broadcasting legend, Larry King, has resulted in his family not only mourning him but also fighting amongst themselves over his true last wishes. Larry, together with his wife, Shawn Southwick King, had executed estate planning documents in 2015, where he named her the personal representative of his estate. However, the couple faced some difficulties and Larry filed for divorce in August 2019. Just two months later, he executed a new handwritten will, leaving his entire estate valued at $2 million dollars to his five children. Two witnesses also signed their names to the hand-written will.

Larry’s eldest son, Larry King Jr., submitted the 2019 will to the court and has petitioned to be appointed the temporary administrator of Larry’s estate. However, Shawn has filed an objection to the 2019 will, claiming that the will is invalid and that Larry King Jr. exerted undue influence over his father towards the end of his life, and insisting that the 2015 will is the valid one.

I Made an Irrevocable Trust a Long Time Ago: Can I Change it Now?

People make irrevocable trusts for many reasons, one major reason being tax planning. In order to make a completed gift for tax reasons, a donor has to part with control over the gifted asset, and making a gift to a trust that is irrevocable is one of the ways this can be accomplished. But that if your circumstances change, or tax laws change, and you would like to modify or terminate an irrevocable trust? Can a trust still be modified if it is irrevocable?

The answer is yes, if certain conditions are met. Florida statutes specifically allow for modification of irrevocable trusts in certain circumstances. For instance, by court order (Fla. Stat. § 736.0410), to modify tax provisions (Fla. Stat. § 736.04114), or where the trustee and all beneficiaries unanimously agree (Fla. Stat. § 736.0412), just to name a few. But there are certain situations where none of the Florida statutes apply. For instance, a modification under Fla. Stat. § 736.0412 by agreement of trustees and beneficiaries can only be accomplished if the settlor has passed away and only with respect to a trust that was made irrevocable after January 1, 2001. That leaves some situations that are not covered by the Florida statute.

Needs Based Government Assistance and Special Needs Trusts

It is never too early to start Medicaid planning. The goal is to focus on paying for long-term medical care and protecting your assets. By planning for Medicaid to pay for an amount of long-term care, it allows seniors to pass on their wealth while still maintaining long term medical care. With careful planning and the assistance of an attorney, you may be able to receive needs-based government benefits without having to deplete your assets, and ensure that and your children will be able to receive such government assistance if needed.

There are selected categories of people in Florida who may be eligible for Medicaid benefits, such as the elderly (age 65 and above), pregnant women, and people with certain disabilities. There are also a few other requirements to be eligible for Florida Medicaid, such as being a resident of the State of Florida, a U.S. national, citizen, permanent resident, or legal alien; having a financial situation that is considered low income or very low income; and owning assets below a certain threshold. If you are one of the selected categories of people who qualify for Medicaid, there is planning that can be done to help you meet the other requirements. However, there is a 5 year look-back rule regarding any uncompensated transfers that you make, so it is best to plan early and anticipate your future need.

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