Florida Probate Litigation Lawyer Blog

Qualifying as a Personal Representative in Florida

May 27, 2016 | by Chepenik Trushin LLP

When thinking about creating a will, there are many considerations that have to be factored in before putting anything in writing. An important consideration is deciding who to appoint as the personal representative for the estate.

A personal representative is an individual who is appointed to administer the decedent’s estate through probate. Under Florida Statute § 731.201, a personal representative is an umbrella term that could refer to an executor of a valid will or an administrator appointed by the probate court for an intestacy estate in cases where there is no will or there is an invalid will. Under Florida Statute § 733.302, in order to be a personal representative, an individual must be a resident of Florida and sui juris, considered to be competent under the statute. The Probate Code gives preference in the appointment of a personal representative in the event of either testate or intestate estates. For an estate with a valid will, preference is given to the personal representative named in the will, or a person selected by a majority of interested persons, or a devisee of the decedent. Under Florida Statute § 733.301, for estates without a will or with an invalid will, preference is given to the surviving spouse, then to a person selected by a majority of the interested parties, and then to the heir nearest in degree to the decedent. Continue Reading

Adult Adoptions as an Estate Planning Tool

May 20, 2016 | by Chepenik Trushin LLP

Many people utilize a will, a trust, or some other standard form of estate planning to ensure that their loved ones are provided for upon their death. However, in Florida, individuals have an additional estate planning tool: adult adoptions. Under Florida Statute § 63.042, a husband and wife, an unmarried adult, or a married person without the other spouse joining as a petitioner may adopt an adult. The statute does provide certain limitations, for example, if a married person wants to adopt without the other spouse joining as a petitioner, then the non-joining spouse must consent to the adoption. However, a court can excuse this requirement. Generally, Florida’s adoption statute is less restrictive than similar statutes in other states because it does not impose the common age difference requirement. Under this requirement, there must be a certain age difference between the party being adopted and the party wishing to adopt in order for the adoption to be legal. This means that in Florida an adult is able to adopt another adult regardless of age.

The Truth about Living Trusts

May 13, 2016 | by Chepenik Trushin LLP

Many people, especially the large elderly population in South Florida, are targeted by various entities offering assistance and guidance in estate and financial planning. The sale of living trusts is a profitable business, and salespeople will target elderly individuals in need of financial planning. These salespeople will hold seminars, provide free food, and lecture attendees on the benefits of living trusts. However, there is an abundance of important information about living trusts that these salespeople will not tell you. It is important to be aware of your options, because living trusts are not the right financial or estate planning tool for everyone.

A living trust, like a will, is a legal document that allows you to direct what happens to your property after your death. Living trusts are revocable. This means the creator of the trust can change or cancel provisions of the trust. There are three key players with regard to living trusts: (1) the creator of the trust (the grantor); (2) the person or entity that manages the assets in the trust (the trustee); and (3) the person or persons who receive the distributions or property from the trust (the beneficiary). Often, a person will create a living trust and make himself or herself the trustee and the beneficiary for as long as he or she is alive. Living trusts are especially beneficial to people who designate beneficiaries with special needs, people who own property in more than one state, and people who are worried that they may become disabled and subject to undue influence. People will also utilize living trusts because they are not subject to probate, or the court proceeding which administers the assets of the deceased person, which can be extensive and costly to the estate.

Supplemental Needs Trusts: Providing for Your Special Needs Beneficiary While Preserving His or Her Public Benefits

May 5, 2016 | by Chepenik Trushin LLP

Planning for the future care of a special needs beneficiary, especially if that beneficiary is your child, can be difficult and overwhelming. There are many facets to consider, chief among them: upon what assets will the special needs individual rely after you have passed if you have been his or her main source of support (and especially if the special needs individual suffers from a disability that prevents him or her from working)?

Consider this: leaving your assets to a special needs beneficiary outright can cause his or her means-tested government benefits to be terminated or decreased. For instance, in Florida, disabled individuals receiving Supplemental Security Income cannot have more than $2,000.00 in assets. Thus, although you intend to provide for your special needs beneficiary, you may cause unintentional harm by devising your assets to him or her outright, thereby severing means-tested benefits, such as Medicaid and Supplemental Security Income. Continue Reading

Unintended Consequences: How Not Having an Estate Plan Will Affect Prince’s Legacy

April 27, 2016 | by Chepenik Trushin LLP

Music legend Prince’s mysterious death continues to cause speculation as all of the details regarding his estate plan, or lack thereof, have yet to emerge. Prince reportedly amassed a fortune worth at least $300 million and his estate is expected to have an equally impressive future income stream. The estate stands to profit from the posthumous records sales that have soared since the star’s death, as well as “a trove of unreleased recordings” rumored to be in what Prince called, “the vault.” However, the future of Prince’s estate and legacy will depend on whether he created an estate plan.

Proper estate planning guarantees that your wishes are honored after death and the failure to do so may lead to unintended consequences. In Prince’s case it means that his sister, Tyka Nelson, is likely to inherit a large portion of his estate. Reportedly, Prince had a strained relationship with his sister, who at one point was allegedly addicted to crack cocaine and resorted to prostitution to support her children. It is unlikely that Prince intended for a substantial portion of his estate to pass on to her without a mechanism to distribute assets over time. Nevertheless, without the proper estate planning documents in place, this is the likely outcome as Tyka has indicated that the rock star died without a will. Continue Reading

Florida Passes the “Florida Fiduciary Access to Digital Assets Act”

March 21, 2016 | by Chepenik Trushin LLP

For hundreds of years, most information existed in tangible form, usually in paper documents. However the advent of digital technology, has transformed the way people acquire and store information and transact business. As people continue to embrace digital technology, many tangible documents have been replaced by digital files. This shift towards digital media has created challenges for fiduciaries tasked with corralling digital assets for individuals who have either lost capacity or died.

In Florida, when an individual dies or is declared incapacitated, a fiduciary is required to use their legal authority to inventory the person’s assets, pay the persons creditors and expenses, and preserve the assets while they are incapacitated or transfer the assets to the proper beneficiaries. Traditionally, an individual’s personal information could be located by searching their paper records, where one could find information regarding bank accounts and bills to be paid. However, the digitalization of personal information has made locating these records more complicated. Fiduciaries must identify and locate these digital assets, determine who has control over access to the assets, and figure out how to access those assets. Continue Reading

Challenging Estate Plans: Modification of Sumner Redstone’s Estate Plan Prompts Allegation of Mental Incapacity

March 7, 2016 | by Chepenik Trushin LLP

Sumner Redstone, the controlling shareholder of Viacom Inc. and CBS Corp., is going to trial over claims that he is mentally incompetent. Redstone stepped down as executive chairman of both companies in early February.

The claims of incompetency come from Manuela Herzer, Redstone’s alleged ex-girlfriend, who was recently removed as Redstone’s health-care representative. In her suit, Herzer argues that Redstone lacked the mental capacity to remove her as his health-care representative and evict her from his mansion last October. Additionally, Herzer claims that Redstone has been “the victim of undue influence, fraud, manipulation, and chicanery” by those around him.

Florida Looks to Become the Preferred Destination for Family Trust Companies

February 29, 2016 | by Chepenik Trushin LLP

In 2014, the Florida Legislature passed the Florida Family Trust Company Act, which established a structure for the formation, operation, and regulation of Family Trust Companies (“FTCs”). An FTC is a corporation or limited liability company, exclusively owned by one or more family members, that provides trust services to a related group of people. FTCs can serve as trustees and provide other fiduciary duties, such as investment advisory, wealth management, and administrative services. There are many advantages of forming a FTC, including:

Increased flexibility and control over asset management
Greater protection of family privacy
Increased liability protection for fiduciaries
Continuity of the trustee upon death, resignation, or removal of a decision maker
The ability to integrate the younger generation into the family wealth management

A Life Estate Explained

February 22, 2016 | by Chepenik Trushin LLP

Most people are familiar with the term life estate, but may not understand the exact details of how a life estate operates. First, “life estate” refers to a real property arrangement. A life estate is essentially just a method of splitting ownership of real property between two classes of people. In every valid life estate, there is at least one “life tenant” and at least one “remainderman.”

The life tenants and the remaindermen hold different property interests. The life tenants are the owners of the property during life. Each life tenant has the right to live in the property (rent-free) until his or her death. Following the death of the last life tenant, the property automatically transfers to the remaindermen. Following the transfer, the remaindermen become the full owners of the property, not subject to any life estate. One of the fundamental benefits of using a life estate to transfer property is that the transfer happens outside the probate process. A non-probate transfer allows the remaindermen to become full owners of the property without the cost, delay, and inconvenience associated with the probate process. Continue Reading

Are You Widowed? You Need To Plan Your Estate Too!

February 15, 2016 | by Chepenik Trushin LLP

Losing a spouse can involve some of the most painful experiences, difficult hardships, and distressing emotions. Often times, the remaining spouse feels bombarded with overwhelming and newfound decisions, ranging from heartfelt personal dilemmas all the way to crucial financial planning matters. Despite the emotional difficulty in handling personal finances after the passing of a loved one, engaging in estate planning is not only important, but rather a necessity.

Preferably, before death, spouses should seek professional assistance from an attorney to help draft wills that clearly express how the estate would be expected to pass. In order to protect the survivor, spouses must be extremely clear with their wishes long before illness or death. For example, spouses should ensure that all wills and life insurance policies are up-to-date with the names of the proper beneficiaries. This will prevent unnecessary, yet costly court costs or perhaps even money passing to an individual that was never intended. Continue Reading