Florida Probate Litigation Lawyer Blog

Living Wills in Florida

October 24, 2011 | by Bart Chepenik

The living will is an important estate planning tool. Because this form of “will” is used while an individual is still alive (but no longer able to make decisions) it is dubbed the “living will.” The purpose of a living will is to allow you to make decisions about life support and directs others to implement your desires in that regard. Doctors in all parts of Florida, including Miami-Dade County and Broward County are familiar with these documents. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. A living will can be very specific or very general. More specific living wills may include information regarding an individual’s desire for such services such as pain relief, antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation. Living wills may need regular updating to ensure that the correct course of action can be chosen.

Living wills are needed because advances in medicine allow doctors to prolong and sustain life although the person will not recover from a persistent vegetative state. Some people would not desire to remain in that state while others would. The living will allows you to make the decision of whether life-prolonging medical or surgical procedures are to be continued, or withheld or withdrawn, as well as when artificial feeding and fluids are to be used or withheld. It allows you to express your wishes prior to being incapacitated. Your physicians or health care providers are directed by the living will to follow your instructions. You may change the living will prior to becoming incapacitated.
Continue Reading

What is the proper venue for probate proceedings?

August 24, 2011 | by ktlaw4

Various types of lawsuits have different requirements for venues. A venue deals with the locality of the lawsuit or where the lawsuit will be filed or commenced. Typically, the venue is a county or district and is chosen based on the subject matter of the case or the where the defendant resides. For instance, if there is a cause of action for a slip and fall occurring in Fort Lauderdale, Broward County, Florida will be the venue of the lawsuit.

In matters of probate administration, Florida Statute 733.101 lays out the possibilities for venues. It states that the venue shall be (a) in the county in this state where the decedent was domiciled. “Domicile” is defined in Florida Statute 731.201(13) as “a person’s usual place of dwelling and [domicile] shall be synonymous with residence.” Florida Statute 733.101 also gives two options if the decedent was not domiciled in Florida: a probate administration may commence in any county where the decedent’s property is located or if they have no property in Florida then in the county where any debtor of the decedent resides.

A short example can help explain these three paragraphs. James, John, and Chris were driving in a car on I-95 and get in a wreck. All three of them unfortunately pass away. James was a resident of Miami-Dade County and his domicile was there. John permanently lived in Georgia but had an apartment he rented out in Broward County as an investment. Chris lived in Michigan but bought and financed his Porsche through a dealership whose business operates through headquarters in Palm Beach County. James’ last will and testament will be admitted in Miami-Dade County since his domicile was in that county. John’s last will and testament will be admitted in Broward County if need be. Chris’ last will and testament will be admitted in Palm Beach County if need be.

Non-judicial Settlement Agreements for Trust Disputes in Florida

July 13, 2011 | by Bradley H. Trushin

No matter how good a person’s intention may have been in creating a trust, as with any matter involving money and property, disputes often occur. Beneficiaries in Fort Lauderdale may contest the actions of the Trustee located in Miami. As with other legal disputes, it is often desirable to resolve a dispute over a trust without dealing with the time, expense, and burdens of the court system. This is why Florida Statute section 736.0111 permits people to enter into non-judicial settlement agreements. A non-judicial settlement agreement allows people to resolve a dispute themselves, without the court, and then enter into a contract that lays out whatever agreement was reached. Then, if a future dispute arises about the trust, a court can step in and enforce the terms of the non-judicial settlement agreement.

Non-judicial settlement agreements can be used to resolve a wide variety of issues that often cause problems when dealing with a trust. For example, non-judicial settlement agreements can be used to resolve disputes over (1) how the wording of a trust should be interpreted, (2) a trustee’s report or accounting of the money or property in the trust, (3) whether to direct a trustee to take or not to take a certain action, (4) granting power to a trustee to take certain actions, (5) appointing or removing a trustee, and (6) determining a trustee’s compensation.

There are some things people should be aware of before entering into a non-judicial settlement agreement. Settlement agreements can only be valid if the terms of the agreement could have been approved by a court if the dispute had actually been filed in court. Also, a non-judicial settlement agreement will not be valid if it causes a result that is prohibited by the Florida Trust Code. For example, an agreement cannot modify or terminate a trust in a way or manner prohibited by the Trust Code. Because the Florida Trust Code is complex and because there is often a lot of money and/or valuable property at stake in a dispute over a trust, it is important that someone with experience helps negotiate and write a non-judicial settlement agreement or there is a risk that a settlement agreement will not be valid. If a settlement agreement is not valid, it will have absolutely no effect on a trust and the individuals affected by the trust. In other words, an invalid non-judicial settlement agreement is not worth the paper it is printed on.

Charitable Trusts in Florida

July 8, 2011 | by ktlaw4

In addition to utilizing a trust to provide for your family, you can also create a trust to benefit a charitable organization. To qualify as a charitable trust, the benefiting party must be a charity pursuant to section 501(c)(3) of the Internal Revenue Code. Naturally, such entity must operate solely for religious, educational, and other charitable purposes whereby zero net earnings of the entity benefit any private shareholder or individual. Because donations to charitable organizations are tax deductible, a charitable trust serves as an easy way to provide for a charitable cause and achieve tax benefits.

Florida law, as emulated in section 736.1210 of the Florida Probate Code, encourages the use of charitable trusts and works to preserve the intent of any individual that seeks to provide for a charitable beneficiary through a trust. This intent of the Florida legislature is carried out further by section 736.0405 of the Florida Probate Code, which states that if the trust itself does not name a specific charity as a beneficiary, a court may select a charitable purpose or beneficiary. Of course, the court must consider the settlor’s intent wherever applicable when determining which charity will benefit under the trust.

Instead of creating a trust solely for the benefit of a charitable organization, many individuals name charities as beneficiaries to the remainder of the trust’s assets after the interests of other beneficiaries have terminated. For example, a trust may provide for one’s children, during their lifetimes, with the residuary of the trust going to a charity upon the passing of the children. This form of a trust is considered a split interest trust, in that it serves a purpose in addition to providing for a charitable purpose. Trusts can also be created to benefit one or more private foundations as well.

Rules of Construction for Trusts and Impact of Florida Law

June 23, 2011 | by Bradley H. Trushin

In Florida, the intent of a settlor (the person who creates a trust) proves extremely important with respect to the handling of the trust’s assets. Florida Probate Code section 736.1101 states that “[t]he intent of the settlor as expressed in the terms of the trust controls the legal effect of the dispositions made in the trust.” Thus, according to Florida law, it is the intent “as expressed in the terms of the trust” that is the benchmark to follow. This can become an issue should any disputes arise regarding the rights of trust beneficiaries after the settlor has passed. Because the distribution of trust assets will follow the express terms of the trust itself, it is very important that the settlor clearly convey his or her intentions to the attorney who drafts the instrument. After all, once the settlor passes away, he or she can no longer amend the terms of the trust to more readily convey his or her intentions.

While the terms of a trust typically prevail over any requirement stated in the Florida Probate Code, there are a few exceptions whereby Florida law controls the construction of a trust. For instance, Florida Probate Code section 736.0105 requires that all trustees act “in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.” Thus, any power that purports to allow a trustee to act in any manner, regardless of whether it is in good faith or not, will be disregarded. Moreover, section 736.0105 also states that a trust cannot have a purpose that is unlawful or contrary to public policy. The requirement for a trust to be in accordance with public policy supports section 736.1104 of the Code, which states that a beneficiary who intentionally kills the settlor of the trust is not entitled to any trust interest if said beneficiary is convicted of murder under a court of law.

The Florida Probate Code will also govern a trust’s provisions in lieu of the settlor’s intent in the event of the settlor’s divorce. Section 736.1104 of the Code states that, unless the trust provides otherwise, any provision of a revocable trust that affects the settlor’s spouse becomes void should the spouses divorce. Clearly, this section of the Code demonstrates another way in which Florida law will step in and modify the terms of the Trust. As a matter of public policy, these situations are reasonable and likely have the effect of carrying out the settlor’s intent once he or she has passed.

Duties of a Personal Representative in Florida

June 17, 2011 | by Bradley H. Trushin

The appointed personal representative of a Florida resident’s estate, i.e. the individual placed in charge of distributing the assets of the estate, must abide by certain fiduciary duties that he or she owes to the beneficiaries (the individuals named to receive assets) of the estate. Suppose you are named a beneficiary of your recently deceased grandfather’s estate whose domiciliary was in Miami Beach. Under Florida law, the personal representative must abide by certain duties to ensure that you receive the assets that the estate leaves in your name. Florida Probate Code section 733.602 states that a personal representative has a duty “to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will…as expeditiously and efficiently as is consistent with the best interests of the estate.”

A personal representative necessarily enjoys broad powers to administer an estate of a decedent. Pursuant to Florida Probate Code section 733.608, the personal representative holds all of the “real and personal property of the decedent, except the protected homestead” and “the rents, income, issues, and profits” from any such property. The personal representative then uses these assets to pay specific devises (set amounts of gifts or money), the family allowance, any elective share, estate taxes, and other expenses incurred during the administration of the estate. Additionally, the personal representative distributes any assets to named beneficiaries of the will in accordance with the will’s terms.

Thus, a personal representative must take actions necessary, but in accordance with the law, to effectively administer a decedent’s estate. However, if you are a beneficiary of an estate and feel that the personal representative is not acting in the estate’s best interests, you may have some recourse. Under Florida Probate Code section 733.504, a personal representative may be removed for various reasons. The reasons provided for under the Code include, but are not limited to, the following: (1) a court determination that the personal representative is incapacitated, (2) physical or mental incapacity that renders the person unable to carry out his or her duties, (3) wasting or maladministration of the estate, (4) conviction of a felony, and (5) having conflicting or adverse interests against the estate that will interfere with its administration. Therefore, it is important for you, as an entitled beneficiary, to make sure that the personal representative is not in breach of any of his or her duties owed to you or any other beneficiary under the will.

Can a spouse be unintentionally disinherited in a will in Florida? – Pretermitted Spousal Rights

June 9, 2011 | by Bradley H. Trushin

What happens when you marry someone after they have already made a will and sometime after the marriage your spouse dies without revising that will or making a new will? For example, Joe, a successful businessman from North Miami, creates a will leaving all of his property to his two sons. Several weeks later, Joe meets Sally, a doctor from Palm Beach, and they get married. Unfortunately, on their honeymoon Joe gets into an accident and dies without revising his will to include Sally. It may seem that because Sally is not provided for in the will before marriage that she will not be able to inherit from Joe’s estate.

However, Florida Statute 732.301 addresses this very scenario and provides that the surviving spouse will receive a share in the estate of their deceased spouse equal to what they would have received had their spouse died without a will (intestate). The spouse will then receive a share of the estate

When this occurs, the spouse is considered pretermitted.

Procedures to Determine Incapacity in Florida

May 31, 2011 | by ktlaw4

It is an unfortunate but inevitable fact of life that, as we grow older, there is a tendency for our mental abilities to begin to fade. When a person’s mental abilities fade to the point where they can no longer look after their own interests and are unable to understand the implications of certain decisions, in legal terms they are said to be “incapacitated.” Sometimes it becomes necessary for family members to step in and take control of some aspects of the incapacitated person’s life and their finances. This can be a very difficult and emotional process, since many times the incapacitated person is extremely resistant to giving up control, especially when that person has always taken great pride in being independent. Although there may be slight differences in the procedures to determine incapacity between Miami-Dade, Broward and Palm Beach counties, the Florida Statutes set forth general guidelines for the determination of incapacity.

The first step of the process occurs when a person files sworn papers with a court stating that they believe an individual is incapacitated. The court will then prepare a notice for hearing that set a time and place for an initial hearing to determine if the person actually is incapacitated. These documents, by law, must be shown to the person claimed to be incapacitated as well as his or her attorney and immediate family members, because they all have a right to be at the hearing. Those documents will also appoint an attorney for the person claimed to be incapacitated, although he or she is welcome to select his or her own attorney if they are able. Sometimes the court will appoint a person to act as the emergency temporary guardian of an incapacitated person. The emergency temporary guardian’s purpose is to make sure the incapacitated person’s rights and needs are accounted for.

Next, the court will appoint a committee of three people to decide if the person is incapacitated. One member of the committee must be a doctor. The other two members can also be doctors or they can be psychologists, nurses, or anyone the court believes has enough experience and education. Even though the personal doctor of the person cannot be on the committee, the committee members are required to consult with him or her. If the person claimed as incapacitated does not speak English, an interpreter will be provided so that he or she can communicate with the committee. This is because a person has a right to speak up against being declared incapacitated because taking away a person’s liberty, even if it is for their own good, is involves the removal of fundamental rights. Such rights are afforded serious and substantial protections under the law.

Is a step-child considered a lineal descendant in Florida?

May 24, 2011 | by Bradley H. Trushin

In Florida, “lineal descendant” or “descendant” is defined to mean “a person in any generational level down the applicable individual’s descending line.” Essentially, a descendant is a blood-relative of the deceased. Under Florida law, adopted children are also considered descendants for the purposes of Probate.

So what does this really mean? Suppose John, a resident of Fort Lauderdale, Florida, makes a will that simply states, “I leave everything I own to my lineal descendants.” Now, suppose John has two children from his previous marriage (related by blood), and his second wife, Jane, has two children from her previous marriage, neither of which John has adopted. This means, if John dies without modifying his will, John’s step-children receive nothing.

John’s step children will receive nothing because, under Florida law, a technical term, such as “descendant,” used in a Will, is accorded its legal definition unless obviously used by the deceased in a different sense. Additionally, in construing a will, the courts look to the intent of the deceased and try to give effect to the deceased’s wishes. In determining the intent of the deceased, the courts look to the wording of the will. If the will says the word “descendant,” and the word is not defined, the court will assume that the deceased intended “descendant” to have its ordinary legal meaning.

Amendments to the Florida Probate Code

March 14, 2011 | by Bradley H. Trushin

The Supreme Court of Florida has adopted amendments to the Florida Probate Code effective on January 1, 2011, at 12:01 a.m. Significant changes were made to Section 732.401, Florida Statutes and will effect the way homestead property is inherited by surviving spouses. For instance, prior to the changes, if a resident of Fort Lauderdale, Florida died and was survived by a spouse and one or more children, the surviving spouse took a life estate in the homestead, and the blood relatives of the deceased would receive the homestead upon the death of the surviving spouse. A life estate means that the surviving spouse has the right to use the homestead property for the duration of his/her life, but upon the death of the spouse, the homestead belongs to deceased’s blood relatives. Additionally, the surviving spouse who has a life estate is responsible for the costs of maintaining the property.

Upon taking a life estate in the homestead property, a spouse may be confronted with new economic duties, such as property taxes, insurance, ordinary maintenance, and mortgage interest. These may be expenses that the surviving spouse cannot afford. In response to these new found financial responsibilities, some practitioners attempted to use disclaimers, a process by which the surviving spouse essentially declines to accept the homestead property, to avoid inheriting a life estate. However, the courts reached inconsistent results.

The adopted amendments to the Florida Probate Rules now provide that, instead of a life estate, a surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common. A “tenant” is the legal term for co-owner of property. If the surviving spouse chose to take a tenancy in common, instead of a life estate, the spouse would possess the property with someone else, in this case, the blood relatives of the deceased. A tenancy in common essentially means that two or more people (the surviving spouse AND the blood relatives of the deceased) would co-own the homestead property.