Florida Probate Litigation Lawyer Blog

Advance Directives: Documenting your Health Care Wishes in the Event you Cannot Express them Yourself

November 11, 2024 | by Chepenik Trushin LLP

The Florida Legislature has enacted a statute that recognizes every competent adult’s right to make decisions regarding their health, including the right to refuse medical treatment. Fla. Stat. § 765.102(1). Further, the statute specifically allows “a competent adult to make an advance directive instructing his or her physician to provide, withhold, or withdraw life-prolonging procedures or to designate another to make the health care decision for him or her in the event that such person should become incapacitated and unable to personally direct his or her health care.” Fla. Stat. § 765.102(4).

Florida law defines an “advance directive” as “a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care or health information.” Fla. Stat. § 765.101(1). In other words, an advance directive is a statement about how you want medical decisions to be made if you cannot make or express them yourself. People often execute advance directives when they are diagnosed with a life-threatening illness, but advance directives can be made at any point in time by a competent adult. For a number of reasons, it can be beneficial to put your wishes into writing before health concerns arise.

An advance directive “includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift.” Fla. Stat. § 765.101(1).

Class Gifts: Leaving Assets to a Dynamic Group of People

September 9, 2024 | by Chepenik Trushin LLP

A class gift is a sum of assets that is given to and divided among a group of beneficiaries. The beneficiaries of a class gift are a group that can be expected to expand or contract between the time of will execution and the testator’s death. A class gift allows a testator to identify a group of beneficiaries in relation to their status or membership in a defined class, rather than identifying individuals particularly.

The Restatement explains that a class gift is “a disposition to beneficiaries who take as members of a group. Taking as members of a group means that the identities and shares of the beneficiaries are subject to fluctuation.” Further, the Restatement says that a “disposition is presumed to create a class gift if the terms of the disposition identify the beneficiaries only by a term of relationship or other group label. The presumption is rebutted if the language or circumstances establish that the transferor intended the identities and shares of the beneficiaries to be fixed.” RST (3d) §13.1.

A testator may want to leave a class gift if they want to devise property to a dynamic group, meaning a group whose membership can or may change over time. For example, a will may leave an asset to a group identified by language such as “my siblings,” “my nieces and nephews,” or “my children,” rather than by explicitly identifying the intended beneficiaries by name. A class gift avoids the necessity of revising the will when a member of the class later is born or dies. For example, a gift given “to my grandchildren” will include a grandchild already living when the testator executed their will, as well as other grandchildren later born following execution of the will. The enables the testator to leave a gift to all of their grandchildren without having to redo their will each time a new grandchild is born. Further, while groups are usually considered closed when the testator dies, there may be exceptions. For example, a child conceived but not born before the testator’s death could be considered a member of a group of the testator’s children.

Power to Disclaim: What happens when someone inherits something they do not want?

July 25, 2024 | by Chepenik Trushin LLP

Florida law defines “Disclaimer” as “the refusal to accept an interest in or power over property.” Fla. Stat. § 739.102(5). Further, Florida law states “A person may disclaim, in whole or in part, conditionally or unconditionally, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim. A disclaimer shall be unconditional unless the disclaimant explicitly provides otherwise in the disclaimer.” Fla. Stat. § 739.104(1).

This statute grants people the power to refuse a devise under a will or inheritance under intestacy. Individuals can refuse assets, right of survivorship, powers of appointment, etc. There are a number of reasons one may wish to disclaim their interest in an estate, including tax avoidance, protecting assets against creditors, or for personal reasons. When an individual disclaims an interest, it is important to note that they do not have a power to direct who takes the disclaimed interested in their place, and rather that the operative instrument or default statutory provisions govern who is to receive a disclaimed interest.

In Gardner v. Richardson, Mr. Gardner’s trust granted a life estate in a home to Ms. Richardson and gave the remainder interest to his children. After Mr. Gardner’s death, Ms. Richardson cared for the property. She lived in the home, paid the taxes and utility bills, and took responsibility for paying a portion of the mortgage. She banned Mr. Gardner’s children access to the home and wrote to the trustee, Wayne Gardner, saying she planned to live in the house until she died. The trustee filed an action to determine whether Ms. Richardson or Mr. Gardner’s children were responsible for paying the mortgage principal and interest. After the court held that Ms. Richardson was responsible for paying the mortgage interest, she attempted to disclaim her life estate even after living in the home for about two years. The trial court held that the disclaimer was ineffective, and Ms. Richardson appealed. The appellate court affirmed the court below and held that the disclaimer was ineffective because Ms. Richardson continued to occupy Mr. Gardner’s property to the exclusion of others, knew of her liability for the property’s expenses, and belatedly attempted to disclaim her life estate interest. Gardner v. Richardson (In re Gardner), 283 P.3d 676, 676 (Ct. App. 2012).

Establishing a Lost or Destroyed Will

May 21, 2024 | by Chepenik Trushin LLP

As with any other physical object, wills may be subject to being inadvertently destroyed or lost. Either scenario may cause a variety of issues for the nominated personal representative and beneficiaries of the decedent. Even when taking steps to safeguard the original of a last will and testament, such as by keeping the document in a safe or in a safe deposit box, unexpected situations can and do arise, such as natural disasters, fires, or even third parties who intentionally destroy or steal the document. When this occurs (i.e., when you are no longer in possession of the original document), what steps can be taken to establish the validity of a last will or testament that has been lost or destroyed? The answer to this question will depend on a variety of factors.

In Florida, whenever an original will has been lost or destroyed, there is a presumption that the testator intended to revoke the will by destroying it, and the proponent of the will has the burden of proving the contrary. Under Florida Statute 733.207, “[a]ny interested person may establish the full and precise terms of a lost or destroyed will and offer the will for probate.” Additionally, “[t]he specific content of the will must be proved by the testimony of two disinterested witnesses, or, if a correct copy is provided, it shall be proved by one disinterested witness.”

In the case In re Estate of Parker, the original last will and testament of the decedent had been lost or destroyed. Nevertheless, the personal representative possessed an almost identical typewritten draft of the will. In this case, the Florida Supreme Court pondered on the issue of whether this typewritten draft would constitute a “correct copy” of the will pursuant to section 733.207 of the Florida Statutes. After considering the dictionary definition of the words “correct” and “copy,” the Court held that “the words ‘correct copy’ means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy.” In re Estate of Parker, 382 So. 2d 652, 653 (Fla. 1980).

Understanding Will Revocation in Florida: A Legal Overview

March 14, 2024 | by Chepenik Trushin LLP

In estate planning, the preparation of a will is a crucial step toward ensuring that your assets are distributed according to your wishes upon your death. However, circumstances, relationships, and intent may change over time, which may lead to the need to update, revise, or completely revoke previously drafted testamentary documents. There are different ways to achieve the revocation of an existing will. In Florida, this process is filled with specific requirements that must be met for the revocation to be valid. A testator may revoke a will in three ways: (1) by writing, (2) by physical act, and (3) by operation of law.

Revocation by writing is controlled by Florida Statutes section 732.505. Pursuant to the statute, a will or codicil, wholly or in part, is revoked in two ways: (1) by a subsequent inconsistent will or codicil, even if the subsequent will or codicil does not expressly revoke all previous will or codicils, to the extent that the subsequent will or codicil is inconsistent with the prior will, or (2) “by a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.”

Revocation by physical act is controlled by Florida Statutes section 732.506. Pursuant to the statute, a will or codicil, with the exception of electronic wills, “is revoked by the testator, or some other person in the testator’s presence and at the testator’s direction, by burning, tearing, canceling, defacing, obliterating, or destroying It with the intent, and for the purpose, of revocation.” For electronic wills or codicils, revocation by physical act is effectuated by “deleting, canceling, rendering unreadable, or obliterating the electronic will or codicil, with the intent, and for the purpose, of revocation, as proved by clear and convincing evidence.” Note that, unlike revocation by writing, a will or codicil cannot be partially revoked by physical act.

Homestead Protection

September 18, 2023 | by Chepenik Trushin LLP

The process of preparing and executing a will and proceeding to probate can be complicated, emotional and stressful. Regardless of whether a decedent has executed a will, trust or any other estate planning documents, probate proceedings can be unpredictable and can give rise to major anxiety for all parties involved. This feeling is often magnified when loved ones must also deal with a decedent’s creditors. Very often, beneficiaries and loved ones are not aware of each and every creditor who may file a claim for repayment against the decedent’s probate estate. While there are rules limiting the amount of time that creditors are allowed to bring any claims, it can nonetheless be unnerving not knowing how much, if anything, will be left in the estate after all creditor claims have been settled.

In Florida, one way the property of a decedent is protected from creditor claims is through the protections afforded to homestead real property. Under the Florida Constitution, one’s homestead property is exempt from forced sale during the owner’s lifetime. Further, this exemption inures to the surviving spouse or heirs of the property’s owner upon that person’s death. In order for a property to count as a homestead, the title holder must live on the property and it must be both their primary and permanent residence. That’s not to say, however, that the title holder is not allowed to leave the homestead for a period of time, own other properties, etc. The owner may, though, only claim one property as his or her homestead.

Once it has been determined by the probate court that the property in question should be considered homestead, the property will officially be exempt from creditor claims. However, there are still a few exceptions to be wary of. Creditors can still defeat the homestead exemption for: (1) taxes and assessments specified under Article X, §4(a) of the Florida Constitution, (2) encumbrances voluntarily entered into, (3) liens that attach before the homestead was created, and (4) liens for work performed on the property.

Effective Ways to Shift Future Appreciation from a Taxable Estate – GRATs and IDGTs

May 9, 2023 | by Chepenik Trushin LLP

Large estates may be subject to the federal estate tax, which in 2023 applies a 40% tax on all wealth exceeding $12.92 million for individuals, or $28.94 million for married couples. High-net worth individuals often seek ways of reducing their estate tax liability on their already-amassed wealth, which is frequently done by applying “discounts” to their assets through a complicated web of valuation laws. There are other ways, however, to shift future appreciation of a valuable asset out of an estate, thus avoiding further taxation on a substantial increase in the value of an existing asset, such as a business or piece of real estate.

The strategy, in general, involves transferring the asset out of one’s estate, either by gift or sale, for a certain amount of money, thereby “freezing” the asset’s value. Once the asset is out of the estate, it is free to appreciate as much as possible, without the transferring taxpayer owing any further tax liability on the extra value. Through this strategy, a taxpayer owning a business worth $50 million could potentially save millions of dollars in estate taxes if that business grows to be worth $150 million in the following years. This strategy is not aimed at reducing estate tax on wealth already accumulated; rather, it is for minimizing tax on future wealth that would otherwise accumulate, leading to higher estate tax. Two vehicles, the GRAT and the IDGT, are most commonly used in these scenarios.

GRAT

Gifting property during life vs. after death: which is better?

December 22, 2022 | by Chepenik Trushin LLP

The estate tax, commonly referred to as the “death tax,” affects only certain estates with a taxable value beyond a set figure. For 2023, any estate exceeding a taxable value of $12.92 million is taxed at a rate of 40.00%. While this does not give cause for concern to the vast majority of individuals, these figures can and do change. The estate tax is often a topic of discussion in political debate and frequently changes. As recently as 2017, the amount to trigger estate tax was just under $5.5 millon. In 2008, the amount was $2 million. Future years could see a reduction in the presently-set amount, which could encompass individuals currently exempt from estate tax liability.

This variability poses concern from an estate planning perspective. While a relatively modest estate may be exempt from estate tax one year, it may very well be subject to the tax in another year. Thus, the higher the value of an estate, the more at-risk it is over time of owing an estate tax. To account for this, estate planners have utilized numerous strategies to reduce an estate before death and minimize potential estate tax liability. One such strategy is gifting property away on an annual basis during the testator’s life.

Individuals may gift a set amount of money each year without triggering any tax consequences. The federal government sets an annual exclusion that allows for a certain amount to be gifted tax-free each year to individual recipients. For 2023, the annual exclusion is $17,000 per recipient. In other words, if a mother gives $17,000 to each of her seven children in 2023, then $119,000 is removed from her ultimate estate tax-free. If such gifts are made on an annual basis (subject to each year’s gift tax exclusion amount, which may vary from year-to-year as the estate tax might), the mother can reduce her taxable estate substantially during her life, saving potentially millions of dollars in estate tax upon her death.

Designation of Personal Representative

November 2, 2022 | by Chepenik Trushin LLP

Earlier this year, actor Anne Heche passed away as the result of a fiery car crash. While at first it appeared she might recover, her condition continued to decline, and she remained in a coma for roughly one week after the crash. Soon thereafter, she was declared legally dead and removed from life support. Her date of death was August 11, 2022.

While this tragic passing in and of itself was surely traumatic for her loved ones, headlines began to spin once more when news of a messy estate battle broke. Her passing has since been followed by a very public battle over her estate due to a lack of proper estate planning on Ms. Heche’s part.

Ms. Heche had her first son, Homer, in 2002 with her then-husband Coleman Laffoon. She later had another son, Atlas, in 2009 with her then-boyfriend James Tupper. Now, after Ms. Heche’s death, her first son Homer and her ex-boyfriend Mr. Tupper are the primary individuals fighting over her estate.

Estate planning and DNA implications

September 9, 2022 | by Chepenik Trushin LLP

What to do with 23 and me?

Recent years have seen the rise in ancestry services such as Ancestry.com and 23 and Me. After performing a simple DNA swab, these services provide the subscriber with hereditary and genealogical information that can unlock family history, medical information, and perhaps even long-lost relatives. While these services provide substantial value for our personal lives, they may be problematic in the world of estate planning.

To illustrate, consider the following hypothetical. A man donates to a fertility clinic when he is 20 years old. Many years later, the man is happily married with three adult children. The man then creates a will that reads in part as follows: “I hereby leave my personal savings account, valued at $1,000,000, to my biological children to be divided equally.” This language creates a class gift to a particular class of people, his children, as opposed to naming specific individuals to benefit. While the man’s three children are included in this class gift, as was intended, so too is a fourth biological child resulting from the man’s fertility clinic donation years prior, whom the man never knew existed. Genetic information services can have both intended and unintended consequences, as the three children will find out if the fourth child identifies his father through an ancestry service and later seeks a distribution from the man’s estate under the class gift in the will.