Estate Planning and Documents

Getting hitched in Florida has it’s advantages inside probate

January 27, 2017 | by Chepenik Trushin LLP

Florida: A Safe Haven for Surviving Spouses in Probate

Marriage is one of the most sacred and respected institutions in our society. Both state and federal governments provide benefits to encourage marriage with beneficial incentives. Florida provides several benefits for surviving spouses as illustrated in Florida’s Constitution and Probate Code. This article reviews some of those benefits but is not an exhaustive list.

First, surviving spouses receive protection under Florida’s Homestead Exemption. The Florida Constitution prohibits a decedent from freely devising his or her homestead, when the decedent is survived by a spouse or minor child. Art. X, § 4 (c), Fla. Const. However, the decedent can devise a homestead to his surviving spouse if there is no minor child. § 732.4015 (1), Fla. Stat. (2010). If a decedent tries to devise a homestead to someone other than a surviving spouse or minor child under a will, then the homestead property will be transferred to the decedent’s surviving spouse and the decedent’s descendants, with the surviving spouse receiving a life estate in the homestead and the descendants receiving a remainder, per stirpes at the decedent’s death.§ 732.401 (1), Fla. Stat. (2012). Alternatively, “the surviving spouse may elect to take an undivided one-half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.” § 732.401 (2), Fla. Stat. (2012). To receive the homestead exemption, “an individual must have an ownership interest in a residence that gives the individual the right to use and occupy it as his or her place of abode.” In re Alexander, 346 B.R. 546, 551 (Bankr. M.D. Fla. 2006).

How Pre-Nups and Probate Court engage

January 11, 2017 | by Chepenik Trushin LLP

Effect of Marital Agreement on Entitlement to Probate Estate

When it comes to estate planning, multiple factors can influence the distribution of the estate, besides a trust document or a will. One such device is a martial agreement made between spouses prior to their marriage. The marital agreement can change the distribution of the estate if the agreement addresses the surviving spouse’s rights to the estate in the event of a death. The Second District recently decided a case involving a marital agreement and a subsequent claim against the estate for additional money allegedly pursuant to the agreement.

In Northern Trust v. Shaw, the surviving spouse, Natalia Shaw, sued the estate of her deceased husband for money allegedly due to her under their marital agreement (also known as a prenuptial agreement). Mrs. Shaw and her husband Andrew were married in February 2009. Before they were married, Mr. and Mrs. Shaw executed a marital agreement that provided for the disposition of their assets in the event of their deaths. Under the agreement, Mrs. Shaw waived her rights to Mr. Shaw’s estate except for a few items: (1) $500,000 from Mr. Shaw’s estate, (2) any testamentary gifts made by Mr. Shaw during the marriage, (3) any retirement and pension benefits in which Mrs. Shaw was named the beneficiary, and (4) a life estate interest in any principle residence owned by Mr. Shaw.

Is Time really on your side when serving as a Trustee?

December 29, 2016 | by Chepenik Trushin LLP

Time Limitations for Proceedings Against Trustees: Discussing Failure to Account

An individual serving as a trustee owes certain duties to the beneficiaries of that trust. One such duty is the duty to account to the beneficiaries. Failure to provide an accounting as required in § 736.0813, Fla. Stat. is a breach of trust by a trustee. Fla. Stat. § 736.1001(1). A beneficiary can institute an action for an accounting and/or against a trustee for breach of trust, but the factual circumstances of the case may determine the time limitations for bringing such actions. These limitations are found in the Florida Trust Code under § 736.1008, Fla. Stat. Under § 95.11, Fla. Stat., the statute of limitations for a legal action alleging breach of trust or fiduciary duty is four years.

The Trust Code, specifically § 736.1008, Fla. Stat., provides further clarification as to how Chapter 95 applies in trust matters. Under § 736.1008(1), if the trustee issued a trust disclosure document that adequately discloses information, the four year statute of limitations applies, beginning on the date that the beneficiary receives the disclosure. For all matters not adequately disclosed in a trust disclosure document if the trustee has issued a final trust accounting, the trustee has given final notice to the beneficiary that the trust records are available, and has given written notice of the applicable limitations period, the limitation period begins on the date that the beneficiary receives the final trust accounting and notice. However, under § 736.1008(3), when the trustee does not provide a final trust accounting, or give notice to the beneficiary that the trust records are available, the applicable limitations period for a matter not adequately disclosed begins on the date the beneficiary has actual knowledge of the facts underlying the claim. Florida Statute § 736.1008(2) provides a way for a trustee to shorten the amount of time the beneficiary has to file a claim from four years to six months. In order for the six month time limitation to apply, the trust disclosure document must adequately disclose the information, and the trustee must inform the beneficiary of the shortened limitations period. The shortened limitations period starts on the date the beneficiary receives both the disclosure document and the limitations notice. .

Bang Bang – Pop goes the gun!

December 15, 2016 | by Chepenik Trushin LLP

Gun Trusts: Background Check Loophole Eliminated

A gun trust is a legal device that makes it easier to handle firearms after the gun owner’s death. These trusts are used for guns that are regulated by federal laws: the National Firearms Act of 1934 (NFA) and a revision of the NFA, Title II of the Gun Control Act of 1968. Gun trusts must take into account both federal and state weapons laws. Some of the weapons regulated by the NFA include silencers, machine guns, grenades, short-barreled shotguns, and short-barreled rifles. These weapons already have some regulations in place, including requiring its serial number to be registered with the Federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF).

Although there are restrictions in place, the NFA allowed the making or transferring of a firearm without a background check through a gun trust. The Attorney General, on January 4, 2016, signed a regulatory rule to close up this dangerous loophole: Machineguns, Destructive Devices and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a Firearm. This rule, also known as ATF Final Rule 41F (the “Rule”), will have a huge impact on the use of trusts in the sharing and in the acquisition of weapons regulated by the NFA. It seeks to ensure that proper identification and background checks apply equally to legal entities, trusts, and individuals. The rule became effective on July 13, 2016, 180 days after its signing. However, the Rule is not retroactive, and as such, pending applications will not be affected.

Probate Court and Family Court collide

November 28, 2016 | by Chepenik Trushin LLP

Florida Appeals Court Comes Down Against Probate Creditor Claims From Child For Child Support Arrearages

On May 11, 2016, the Fourth District Court of Appeal issued its decision in Davis v. Hengen regarding creditor claims for child support arrearages against a decedent’s estate, when the decedent dies with unpaid child support obligations.

Upon the dissolution of their marriage, Clifford Davis and his then wife entered into a marital and property settlement agreement. According to the agreement, Clifford was obligated to pay monthly child support to his ex-wife to support their daughter, Deborah. When the father died, he died intestate. At the time of his death, the father had outstanding child support payments due. Deborah and Clifford’s current wife, Acaia, were appointed co-personal representatives of Clifford’s estate.

Major Life Changes? Get your estate plan dusted off, reviewed and updated

November 7, 2016 | by Chepenik Trushin LLP

What Effect Does Divorce or Remarriage Have On Your Estate Plan

Anytime there is a major life change, whether it is the birth of a child, marriage, or divorce, your estate plan should evolve as your life evolves. But do any of these events result in automatic changes to your estate plan, or do you have to update your estate plan after each event?

In most states, including Florida, a divorce may automatically affect the validity of the terms of your will. Fla. Stat. § 732.507(2) provides that any provision of a will that affects a former spouse will be treated as if the former spouse died at the time of the divorce, unless the will or divorce judgment expressly provides otherwise. This means that when your divorce is official, any portion of your will devising any of your assets to your ex-spouse will be deemed void. However, if you want to provide for your ex-spouse in some fashion after the divorce, it is important that your will clearly reflect that intent.

International Wills and Estate Planning

October 17, 2016 | by Chepenik Trushin LLP

Florida Honors Foreign Wills

Florida is a prominent destination for immigrants. Immigrants come from all over the world to live in Florida and hopefully become U.S. citizens. Sunshine and beaches are not the only things that attract them to Florida, but also the hopes of providing a better life for their families. Providing a better life for their family includes supporting them during life and after death. A valid will ensures that immigrants have the ability to provide for their families after death by controlling the disposition of their property.

Accordingly, Florida Statute sections 732.502 and 734.104 have a significant impact on immigrants. Section 732.502 states that, “any will, other than a holographic or nuncupative will, executed by a nonresident of Florida . . . is valid as a will in this state if valid under the laws of the state or country where the will was executed.” A holographic will is a testator’s handwritten will. A nuncupative will is an oral will whereby the testator states his wishes to someone and those wishes are never memorialized in writing. Holographic and nuncupative wills are not valid in Florida even if valid in the person’s home jurisdiction. Thus, Florida will respect foreign wills as long as the foreign wills are valid in the country in which they are executed and are not holographic or nuncupative wills. People with foreign wills should be diligent to ensure that their foreign wills are not classified as holographic or nuncupative wills and that their wills were validly executed in their home jurisdiction.

All life’s journeys and stories eventually end, even iconic novels

October 4, 2016 | by Chepenik Trushin LLP

The Hunt for Tom Clancy’s Estate Comes to an End

Popular author Tom Clancy wrote many iconic novels, and the story of his estate battle sounds like it comes straight out of a book. The author, who died at the age of 66 of heart failure, left an estate valued at $82 million. This $82 million estate includes an ownership interest in the Baltimore Orioles baseball team worth $65 million, a working World War II tank, a mansion on Chesapeake Bay and over $10 million in business interests from his novels and movie adaptations.

According to the original will, Clancy left his Chesapeake Bay home and other properties, along with any of his joint bank or investment accounts to his wife Alexandra. Clancy also left a portion of the residue of the estate to the Hopkin’s Wilmer Eye Institute, which he had previously given a $2 million donation in 2005. The rest of his estate was to be divided between a series of trusts. The 2007 will originally provided for three trusts and divided the rest of the estate as follows: one-third for Alexandra, one third for Alexandra to use while she was alive and then passing to their daughter, and one-third to be divided among his four children from his previous marriage.

Guardianship Law in Florida – What’s Current? Very Important Updates

August 29, 2016 | by Chepenik Trushin LLP

The Shifting Landscape of Guardianship Law: Three Consecutive Years of Changes

(Published in The Florida Bar Journal, September 2016)

Members of The Florida Bar Real Property, Probate and Trust Law Section’s (RPPTL) Guardianship, Power of Attorney and Advance Directives Committee are keenly aware that there have been major changes to Florida’s guardianship laws in the last several years. The political climate of the past few years has been decidedly against guardianships and, in particular, professional guardians, due to perceived abuses by them. The current political climate is due in part to hearings held before the Florida Legislature during the 2014 session in which organized members of the public testified about the horrors of guardianships. While some of the horror stories came from disgruntled family members unhappy with the results of their particular guardianship litigation, others made legitimate points regarding the need to improve the system.

What is your plan for the “What if” in life?

August 15, 2016 | by Chepenik Trushin LLP

Estate Planning for Young Professionals: Don’t Wait to Start Planning

Discussing one’s death can be an awkward and uncomfortable experience at any age. It is a topic that most individuals avoid at all costs, especially young adults, as if the mere discussion of one’s future demise will somehow bring it about. While it may not be pleasant dinner conversation, discussions of what will and should happen in the event of death should take place sooner rather than later.

Most young professionals do not feel a sense of urgency when it comes to estate planning, and believe that they have all of the time in the world. Many young professionals also do not have much of an estate to speak of, maybe some bank accounts, some property if they are lucky, and likely a lot of student debt. Many individuals with few assets do not see the need for any type of estate plan. However, such an outlook is shortsighted and fails to take into account assets that will be acquired in the future. Early estate planning can protect the estate an individual does have, maximize the value and income of both their current and future assets, and also ensure seamless transfer of assets to loved ones in the event of death.