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As people progress through different stages of their lives, their beliefs and objectives sometimes fluctuate and change. One situation in which an individual may change his or her mind is when writing a will. People often change their minds about whom to devise or bequest their property. But, what causes people to change their minds? What if someone revokes their will based on a mistaken assumption of law or fact? Is the new will effective? Does the old will get revived if the new will is ineffective?

Over the years, courts have wrestled with such questions and, resultantly, have come up with the doctrine of dependent relative revocation (“DRR”). Essentially, the courts have decided that if a testator claims to revoke his will, and he or she does so based on a mistaken assumption of law or fact, the revocation is invalid if the testator would not have revoked the initial will had he known the truth. Once it is clear to the court that the revocation of the prior will was based upon the validity of the new will, the court will apply DRR. The doctrine creates a “rebuttable presumption that the testator would have preferred to revive his earlier . . . bequests rather than let the property go by intestacy.” In re Estate of Pratt, 88 So. 2d 499, 501 (Fla. 1956).
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What legal issues will you face if you are married to a noncitizen or planning on leaving part of your estate to a noncitizen? The answer to this question is not as easy as one might think. Noncitizens do not necessarily escape the United States’ estate tax, nor do they always qualify for some of the deductions given to US citizens.

The imposition of the estate tax on noncitizens is largely dependent on where the noncitizen is domiciled. There is an estate tax levied on the worldwide net estate of domiciled noncitizens. In contrast, the estate tax is only levied on the US property of non-domiciled noncitizens. Therefore, a crucial issue is determining whether or not a noncitizen is considered domiciled. Domicile is generally determined by whether a person is living in the United States and whether that person has the intent to remain in the country. Intent is a subjective judgment based on weighing the individual facts of a situation. Residency does not necessarily mean domicile, nor is it a requirement of domicile for estate tax purposes. This means a US vacation home left to a non-domiciled noncitizen would be includable in their gross estate. Property is not limited to real property in this scenario, but can also include things such as stock in a US corporation and even certain assets.
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Approximately fifty-five percent of Americans die without a will-that is, they die intestate. This is not a major concern if the person who died did not have taxable assets or only had one child from one marriage. However, the complexities of life carry on into probate. There can be many interested parties when it comes to probating an estate, and it is highly likely those parties will make competing claims to the deceased’s assets. There can be no survivors, children from multiple relationships, minor children, ex-spouses, other family members, and assets that have no right of survivorship. A person can hold assets in many ways. They can hold assets in their entirety, they can hold assets jointly (in joint tenancy), or they can hold a specific interest in an asset (such as a life estate).

So what happens when someone dies and there are assets and no will? In Florida, there is intestate succession. This is a portion of the Florida Probate Code that prescribes how assets pass when they are not included in a will. Sections 732.101 to 732.111 of the Florida Probate Code dictate how assets are transferred if someone dies intestate. There are provisions about surviving spouses, debts of the estate, children, minor children and more.

There are many reasons a person may not have a will, or, at least, not have a valid will. Two of the most common reasons are the cost of having a will prepared and a person creating their own will that, unbeknownst to them, is not valid under Florida law. Today, with the myriad of self-help legal forms on the internet and do it yourself books, inevitably, there are numerous people creating what they mistakenly believe to be a valid “will.”
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As of July 1, 2012, Florida enacted Florida Statutes Section 732.703. This statute automatically nullifies the designation of a spouse as a beneficiary on certain non-probate assets upon divorce. The general purpose of the law is to expand the already automatic revocation of a spouse designation on a will or revocable trust after a divorce. Florida Statutes Section 732.703 generally applies to life insurance policies, qualified annuities, IRAs and pay-on-death accounts. It passes the asset as if the former spouse predeceased the decedent. The law lays out specific means for determining the proper beneficiary in situations where the law applies.

Take heed, however, because Florida Statutes Section 732.703 does not apply to all non-probate assets. The automatic nullification is not all encompassing, and there are many non-probate assets that will not get this special treatment. Finally, the law removes banks and insurances companies from liability if a former spouse improperly cashes a payout check. Now, you must directly sue the former spouse and cannot sue the bank or the insurance company for issuing or cashing the check.
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A recent Florida Case…

Florida statutes allow for the modification of trust documents when the beneficiaries and trustees enter into a settlement agreement. The proposed changes have to further the grantor’s intent, meet the best interests of the beneficiaries or stem from another appropriate reason. But what if the trust specifically prohibits the proposed changes? Then, only in unique circumstances the will the court modify the trust as allowed by Fla. Stat. s. 736.0414 if the trust instrument forbids such changes.

For example, in a very recent Miami-Dade County District Court of Appeals decision, the Court decided it would not approve a settlement agreement entered into between the co-trustees (the two adult daughters of the settlors) and the corporate trustee. The settlement agreement would have allowed the corporate trustee of the trust to resign, release it from liability, and replace it with a corporate custodian to hold the trust’s securities and cash. A fourth co-trustee appealed the trial court decision which allowed the modification. The fourth co-trustee relied on language from the trust which provided: “If the corporate Trustee fails or ceases to serve, the remaining individual Trustees or Trustee shall choose a successor corporate Trustee, so that there shall always be a corporate Trustee after the Settlor ceases to serve.”

Furthermore, a later paragraph of the same trust provided: “[T]o the extent permitted by law, I prohibit a court from modifying the terms of this Trust Agreement under Florida Statutes s. 737.4031(2) or any statute of similar import.” Section 737.4031 of the Florida Statutes (2002), which is currently found in section 736.04113 of the Florida Statutes, allowed for the judicial modification of a trust under certain circumstances.
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The law provides remedies for the potential beneficiaries of a decedent who has his or her last wishes interfered with prior to death. However, proving a case, even where liability is clear, can be troublesome for a lawyer unfamiliar with probate law. Under Florida law, a prima facie case for both conversion and tortious interference with expected inheritance requires the plaintiff(s) to prove damages in order for there to be a recovery.

In a recent Florida Third District Court of Appeal case, Saewitz v. Saewitz, 79 So. 3d 831 (Fla. 3d DCA 2012), two daughters brought suit against their stepmother for the manipulative acts she committed during their father’s dying days. At the trial level, the daughters called several witnesses to prove damages, including their father’s accountant. During the accountant’s testimony, he stated that the value of the assets that the stepmother interfered with was “over a million dollars” and “in the millions.” Two other witnesses, including the stepmother, indicated that value of the assets was over a million dollars. Despite multiple witnesses giving testimony about the value of the assets in question, none were able to give a better estimate than “over a million dollars.”

The daughters argued that they were unable to ascertain a more specific value of the assets because they never received, even though they had requested, documents related to the value of the decedent’s assets. The Third DCA stated that this was the fault of the counsel of the daughters for acquiescing to the non-production of documents. The appellate court noted that there are legal avenues, such as a motion to compel, that are in place to force production of these documents. Judge Shepherd, author the Third DCA opinion, also noted that the daughters never subpoenaed the decedent’s accountant for records that would show the value of the assets. Finally, the court noted that the daughters were aware of each asset, and thus, could have retained experts to calculate the value of each asset. The court went on to state that the daughters’ counsel was not the “but for” cause of the daughters’ failure to present a prima facie case to the jury, even if the lawyers violated some legal or ethical obligation to their clients.
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Financial institutions in Miami-Dade, West Palm Beach and Broward County all follow certain rules pertaining to a decedent’s (or a person who has passed away) safe-deposit box. The first important issue to be aware of is that if two or more people leased the safety deposit box the co-lessee may still have access to the contents of the safe-deposit box even if the bank knows the other co-lessee has passed. If this is the case, it may be difficult to know what exactly was in the safe-deposit box at the time a person passed.

One way to secure the assets of the safe deposit box is to make an inventory as soon as possible. An inventory will list and describe all of the assets in the safe deposit box. For the inventory to comply with Florida Statutes §655.937, the inventory must be made in the presence of and signed by at least two people including an employee of the institution where the box is located and the personal representative or the personal representative’s attorney.

There are several people who may gain access to a safe-deposit box after the person who leased it has passed away. If the institution that leases the box has a satisfactory proof of death, then that institution must permit the spouse, parent, adult descendant, or named personal representative in a will to open and examine the safe deposit box. For everyone’s protection, this inspection must be done in front of an officer of the institution. Some Florida institutions may have stricter requirements than others for the identification of people authorized to open a safe-deposit box. It is important to read the safe-deposit box’s lease agreement. If the court has named an authorized person, that person is able to examine the contents of the safe deposit box.

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Sometimes a situation might arise where a person who has a will dies and then the will cannot be found. What would happen? What steps should you take to avoid this unfortunate situation? The first important step a person can take to prevent this problem is finding an experienced attorney to help make sure the will is properly executed and properly preserved in a safe location. If you find yourself in this situation, for example, maybe your grandmother in Boca Raton, Florida passes and her will cannot be found, you will also want the assistance of an attorney. If you live in Miami-Dade, Broward or West Palm Beach County there are many options.

If a family member dies and you cannot find their will to admit to probate, the court will presume that your relative intended to destroy the will and that your family member wished for their estate to pass according to intestate laws. If you want to prove that there was indeed a will, you have to will have the burden to produce evidence that a will existed. In some situations this burden may be easier, for example if there is evidence that your grandmother was bed-ridden and incapacitated in Boca Raton Regional Hospital for the last month of her life, and unable to access the will at the time it went missing.
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When a person dies and was a recipient of Medicaid assistance, Medicaid may have a claim against the estate for any amounts spent on behalf of the recipient. This claim is called a Medicaid Estate Recovery. Medicaid can recover against an estate if it has a valid claim. The deceased person could have died either with or without a will. It is important for any Miami-Dade County, Broward County or West Palm Beach County resident to have a good attorney when handling the deceased person’s estate. Medicaid serves approximately 3.19 million people in Florida, with more than 1 million of recipients being aged 21 years or older. An attorney can take steps to ensure that the Medicaid claim has been paid, before distributing assets to beneficiaries.

Medicaid’s claim against and estate will include all payments made by Medicaid for services or goods when the recipient was age 55 years or over. Payment of benefits for a person under the age of 55 years does not create a debt. Florida Statutes requires that the attorney or personal representative of any estate in which the decedent at the time of death was 55 years of age or older, promptly send a notice and a copy of the death certificate to the Agency for Health Care Administration. Once received, ACS (Affiliated Computer Services) will determine whether Medicaid provided any medical assistance and, if so, file a claim with the probate court. The claim will state the amount owed. The Clerk of Court then forwards a copy of the claim to the estate attorney or personal representative.
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Fifty-four million Americans suffer a disability. In Florida, 6.2% of children five to fifteen years old have a disability and 4.3% of Miami- Dade County children age five to fifteen have a disability. For parents of those children a stand-alone special needs trust can be a useful tool to ensure their child receives the care they need. The trust provides the family peace of mind their child will have the resources he or she needs even after the parents have passed. Special needs trusts are frequently used to receive an inheritance or personal injury settlement proceeds on behalf of a disabled person or is founded from the proceeds of compensation for criminal injuries, litigation or insurance settlements.

There are a number of reasons that a parent of a child who has a disability might consider using a separate stand-alone special needs trust. The tax consequences of establishing such a trust depend on whether it is revocable or irrevocable. If your family lives in Miami-Dade County, Broward County or West Palm Beach County the stand-alone special needs trust will be governed by Florida Statutes Chapter 376. You should seek the assistance of an experience attorney to be sure the trust complies with Florida laws.

A separate trust should make the process of obtaining approval of the agencies administering the Medicaid and Social Security Income programs easier and quicker. Because a stand-alone special needs trust is designed to benefit only the child who has a disability, the trust provisions should deal only with that child. This makes it less likely that the trust will contain language that causes the trust assets to be countable resources to the beneficiary for Medicaid eligibility purposes than would be the case if the trust also contained assets of the parent, or included the parent’s other children as beneficiaries.

Secondly, a stand-alone special needs trust affords parents a way to keep their estate plan private from governmental agencies. If the parents’ living trust contains information about the value of their estate and is used to hold funds for the child who has a disability, that document must be presented to the reviewing government agencies. Using a stand-alone special trust means the parents only need to disclose what assets are in that trust to the government agencies.
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