Florida Probate Litigation Lawyer Blog

Planning for Incapacity: Planning for When You Can No Longer Plan

December 9, 2015 | by Chepenik Trushin LLP

Let’s face it—no one wants to contemplate the possibility of a time when she or he is unable to take care of herself or himself. However, the truth of the matter is that it could happen to anyone at any time. In general, a person becomes incapacitated when that person no longer has the ability to make or enter into certain types of medical or legal decisions and agreements. Florida law specifically defines incapacity as “the inability of an individual to take those actions necessary to obtain, administer, and dispose of real and personal property, intangible property, business property, benefits, and income.” Wouldn’t you rather plan ahead for this “inability” so that you still have significant input into what will happen if or when you are unable to manage your own financial and medical affairs?

Various documents exist for a person to plan for incapacity. The type of document to execute depends on the type of care being considered. If dealing with property, a person might elect to execute a Power of Attorney. If dealing with the care of a person, various options include a Durable Power of Attorney, a Living Will, and a Health Care Surrogate.

The Role of the Personal Representative in an Estate

November 10, 2015 | by Chepenik Trushin LLP

Who will handle your matters after you have passed away? Here in Florida, a personal representative is in charge of handling the matters of your estate, regardless of whether you died with a will. If a person dies intestate (i.e., without a will, and therefore likely without a named personal representative), then a personal representative will be appointed by the court. Choosing a personal representative whom you trust should be an important consideration when drafting your will.

That may lead you to wonder, who can serve as a personal representative? And who does the state feel is preferable to serve as a personal representative? Florida Statutes have addressed these questions and have explained who is qualified to serve as a personal representative. Generally speaking, any person who is sui juris (meaning, “of one’s own right”) and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to serve as a personal representative.

Valuable Estate Planning Lessons Can Be Learned from Lamar Odom’s Health Scare

October 28, 2015 | by Chepenik Trushin LLP

By now you have probably heard about former NBA star, Lamar Odom’s, health scare. Odom was found unconscious in a Nevada brothel on Tuesday, October 15, 2015. Fortunately, Odom’s condition has improved, and he appears to be on the road to recovery. What you might have not heard about in the news, however, are the estate implications and complications that came as a result of lax estate planning on behalf of Odom.

Although Odom was a highly-skilled NBA player, his increased fame can be attributed largely to his starring role on E!’s hit TV-series “Khloe & Lamar.” Because of the popularity of the series, Khloe Kardashian and Odom’s “divorce” got a lot of attention and publicity from the media, but apparently not from the California courts. As it turns out, the couple signed and filed divorce papers in July of 2015, but due to a severe backlog in the California courts, their divorce has not been finalized. As a result of the delay, Lamar Odom and Khloe Kardashian are still legally married. These circumstances created an interesting situation when Odom was found unconscious at the brothel because, as his legal spouse, Khloe Kardashian is responsible for making medical decisions on Odom’s behalf.

Ensuring the Validity of Your Last Will and Testament

October 22, 2015 | by Chepenik Trushin LLP

There are a number of reasons why people choose to execute a Last Will and Testament. Some individuals create a will to ensure that their loved ones are provided for upon their passing. On the other hand, other people create a will to ensure that certain family members are specifically excluded from the distribution of their estate. Often times, however, life circumstances and/or the desires of the testator change between the execution of a will and the testator’s passing. In such instances, a modification or revocation of the previously executed will is necessary to reflect the changed testamentary intent.

Many people assume that they can modify or revoke their will simply by drawing a line through existing provisions, handwriting in new provisions, and initialing next to the changes. While this may be considered a valid modification in other states, this type of alteration is not valid under Florida law. Florida law requires strict adherence to what are known as “will formalities” in both the execution and the modification of a will. Any deviation from these strict formalities may result in a will being deemed invalid by a court, further resulting in the will not being admitted to probate and thereby frustrating the testamentary intent of the testator.

New Digital Estate Planning Application Demonstrates the Importance of Estate Planning

October 8, 2015 | by Chepenik Trushin LLP

Planning for one’s death is never easy, but that does not mean it has to be difficult. In an effort to encourage individuals to establish plans for their eventual passing, Everplans Professional recently launched a digital estate planning application to begin the process.The consumer application, geared primarily toward estate lawyers, financial advisors, and insurance agents, allows consumers to gather their estate plans, health care proxies, and financial account information and hold all of these documents in a single location. The application contains customized to-do lists, setting the framework for what needs to be done when an individual passes away. The plans are then shared with “deputies,” who will be able to have access to some or all of the stored information and documents.

Companies who sign up for Everplans Professional can co-brand the tool and offer it to their clients for the price of $2,500 a year. The application comes with a personalized dashboard that helps track a client’s progress, as well as an advisor who can reach out to the client and help the client finalize their plans. As with all technology, one legitimate concern is security. To tackle this problem, Everplans uses a two-step verification process during login and all personal information is encrypted and protected using banking-level security.

Tom Benson’s Family Feud Highlights Avoidable Estate Planning Issues

September 20, 2015 | by Chepenik Trushin LLP

New Orleans Saints and New Orleans Pelicans owner, Tom Benson, is currently involved in a family dispute and a series of judicial proceedings emerging from changes in his estate planning documents. After becoming displeased with the way his daughter—Renee Benson—and her two kids, Rita and Ryan, began acting upon his remarriage, Mr. Benson decided to strip his descendants of ownership shares of the Saints and Pelicans. These ownership shares were provided for in trusts that Benson had created to benefit Renee, Rita, and Ryan.

However, under the terms of the trusts, removal of the shares requires that Mr. Benson replace them with other assets of equal value. Benson has tried to fulfill this obligation, but his attempts have proven futile as the trustees have refused to accept promissory notes Benson has attempted to deliver in exchange for the ownership interest in the sports teams. The trustees believe that Benson has not offered assets equal to the value of the ownership interests, as questions still exist as to the dollar value of the assets.

Under Florida law, if the terms of the trust dictate that a third party has the authority to control the actions of a trustee, that third-party authority may be owed deference over the trustee’s discretionary power. See In re Celotex Corp., 487 F.3d 1320 (11th Cir. 2007). If this case was being litigated in Florida and Benson had reserved the authority to control the actions of the funds’ trustees, litigation may have been avoided. Needless to say, a well-written and comprehensive estate plan can make all the difference when flexibility is necessary to handle previously unforeseen circumstances.

How Can I Challenge a Will in Florida?

September 10, 2015 | by Chepenik Trushin LLP

A will is supposed to represent your loved one’s final decree for the distribution of his or her estate, but what can you do if you believe that there is a possibility that the will does not accurately represent the decedent’s last wishes? Especially with high-net-worth decedents, there are sometimes valid concerns of fraud or other grounds for contesting a will.

In Florida, an individual can challenge a will before the conclusion of the probate of the decedent’s estate. Probate is the process of submitting a will and any related documents to a specialized court, which assigns authority to a personal representative for the purpose of settling and distributing the estate using letters of administration. The probate court also determines the validity of the will.

Estate Planning Is for Young Adults too

August 17, 2015 | by Chepenik Trushin LLP

“By failing to prepare, you are preparing to fail.” Benjamin Franklin may not have been referencing estate planning when he made that statement, but aptly applies to creating estate planning documents. There are many individuals who have incorrectly assumed that estate planning is only for elderly individuals with a lot of assets; however, it is never too early to start planning. In fact, the sooner you create an estate plan, the better. Estate planning is a key part of living a responsible life and should not be misunderstood to apply only when death is imminent or when you have amassed great wealth. Life is full of surprises and the more prepared you are to deal with those surprises, the easier it will be for you and your family when any unforeseen circumstance arises.
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Six Estate Planning Mistakes Made by High-Net-Worth Individuals

August 4, 2015 | by Chepenik Trushin LLP

A well thought out and thorough estate plan is one of the best things you can leave behind for your loved ones. Like all others, high net worth individuals should take the process seriously to ensure that their wishes are honored, and their assets are dealt with properly after their passing. However, in practice, many people neglect to create a proper plan for the distribution of their respective estates. Here are some of the most common estate planning mistakes we come across in running our legal practice:

1. Not accounting for taxes: Especially with high net worth individuals, the taxes that could be due on your estate can be very substantial. A sophisticated estate plan, utilizing various estate planning options such as testamentary trusts, exemptions, and insurance (to name a few examples) can ensure that more of your assets will go to the people you love rather than being paid out in taxes. However, even accounting for taxes, serious problems can arise if the language within your estate planning documents is not precise and the terms are not clearly defined.

Create a GRAT Before Interest Rates Rise

July 22, 2015 | by Chepenik Trushin LLP

Interest rates are currently at an all-time low, making it an imperative time to consider all the potential estate planning options that you may have. Low interest rates provide an advantageous opportunity to utilize grantor-retained annuity trusts, also known as GRATs. GRATs are an instrument used to transfer appreciating assets, or assets that become more valuable over time, such as securities, real estate, or private equity investments. Generally, GRATS should be utilized when interest rates are low because they operate by freezing the value of the property transferred to the trust. As a result, future appreciation of the asset will transfer free of estate tax for the named beneficiaries of the grantor. This type of trust allows you to save a lot of money if the trust is set up properly and is set up at the correct time.