Articles Posted in Estate Planning and Documents

A will is an important document for many reasons, the primary one being that it disposes of a person’s property without that person being present to ensure that his or her wishes are being fulfilled. This in part explains why creating a will entails a great deal of formal requirements, designed to (a) impart upon the person creating the will the importance of the document and (b) ensure that the document, which exists well after the testator’s death, represents the most accurate representation of the testator’s wishes.
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As the result of modern advances in technology, more and more children are being born through in vitro fertilization. Another reason for this trend is that a greater number of career oriented professional women are choosing to focus on their careers at ages when, historically speaking, most women were focused on having children. Because many such career oriented women still wish to have families later on in life, they commonly will opt to save their eggs when at their most fertile, so they will not be disadvantaged down the road when they do wish to become pregnant, but might be at an age where traditional biological conception is no longer possible. Additionally, in vitro fertilization can provide infertile couples the ability to have children through donated embryos. While in vitro fertilization can be a great benefit to many families, it also can be the cause of many problems. Some of these problems arise within the legal context of inheritance, which in recent years has been complicated by the modern trend of in vitro fertilization.
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The intersection of law and technology has received heightened attention in recent years due to the increasing importance of social media in our daily lives and the resulting implications for our personal privacy and confidential information. This modern interrelation between law and technology is becoming increasingly important in the field of estate planning, particularly in light of the recent increase in the use of assisted reproductive technologies (“ART”), such as the utilization of in vitro fertilization technology to produce children.
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Oftentimes when individuals hear the term “homestead,” they fail to truly understand the protections that a Homesteaded property brings with it. While any homeowner with a Homestead property surely appreciates the $50,000.00 Homestead Exemption when tax season rolls around, this Exemption is only the tip of the iceberg as far as the expansive, inviolable protections that the Florida Constitution affords the homestead. Under Article X of the Florida Constitution, “a homestead of 160 acres of rural land or one-half acre of urban land and one thousand dollars worth of personal property is to be exempt from execution and forced sale.” While it may not be evident from the plain language of the Florida Constitution, the protections derived from Article X extend far beyond just the tax exemptions and protections from creditors. Understanding these implications-those that benefit as well as those that impede an estate plan-is a necessity in order to create a comprehensive estate plan.
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While many of Tony Soprano’s most iconic quotes are of the NSFW variety, one of his “work friendly” quotes comes to mind in light of the criticism directed towards James Gandolfini’s estate plan: “A wrong decision is better than indecision.” While the benefit of hindsight makes it easy to point out the perceived tax flaws of the last will and testament that Roger S. Haber drafted for Mr. Gandolfini, at least Gandolfini and his attorney made a decision! By seeking legal counsel to draft a testamentary instrument devising his possessions, Gandolfini avoided a fate that has befallen luminaries such as Abraham Lincoln, Pablo Picasso, Stieg Larsson, Howard Hughes, and Bob Marley-dying without a will. Regardless of whether Mr. Gandolfini would have chosen for Uncle Sam to receive such a hefty portion of the fruits of his lifetime of labor, Gandolfini can rest in peace knowing that he was able to convey his feelings with one final act of affection.
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Vehicles often comprise part of a person’s estate after they pass. It is sometimes possible to distribute vehicles very soon after a person’s death, sometimes even without an order from the probate court.

If the beneficiary of the vehicle is either the surviving spouse, or, if there is no surviving spouse, the children of the decedent and the decedent was domiciled in Florida at the time of death, the beneficiary may have a right to have the vehicle designated “exempt property.” Fla. Stat. §732.402(1). Exempt property is protected from all claims against the estate, except secured interests on the property itself, and can be distributed directly to the surviving spouse or children after the court authorizes the designation of the property as exempt. Fla. Stat. §732.402(3). A vehicle can be designated as exempt property by filing a Petition for Determination of Exempt Property with the probate court. Fla. Prob. R. 5.406. Up to two vehicles can be designated as exempt property if individually they (1) weigh less than 15,000 pounds, (2) are held in the decedent’s name, and (3) were regularly used by the decedent or members of the decedent’s immediate family as their personal motor vehicles. Fla. Stat. §732.402(2)(b). If a surviving spouse or children of the decedent do not file a petition for determination of exempt property on or before the later of the date that is four months after the date of service of the notice of administration or the date that is forty days after the date of termination of any proceeding involving the construction, admission to probate, or the validity of the will or involving any other matter affecting any part of the estate, they will be deemed to have waived their right to the exempt property status. Fla. Stat. §732.402(6). After a court authorization, the exempt property may be distributed directly to the surviving spouse or children.
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An interesting case recently surfaced involving the $200 million estate of a North Carolina real estate developer Henry Faison. Mr. Faison created a will devising his estate in 2000, but decided to make changes last year. Unexpectedly, Mr. Faison passed away in his office just before signing the second will. As should be expected, multiple parties have an interest in Mr. Faison’s large estate, and a lawsuit claiming unjust enrichment on the part of the 2000 will’s primary beneficiary was filed in the courts to determine which of the two wills should control distributions of the estate’s assets. This begs the questions of what the probable result of this lawsuit would be were it decided in Florida, and what can one do to avoid a similar situation?
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The Florida legislature recently saw fit to amend the Florida Power of Attorney Act (the “Act”). The revised Act, reflected in Ch. 709 of the Florida Statutes, became effective on October 1, 2011, as lawmakers re-wrote the entire chapter in order to conform more closely to the Uniform Power of Attorney Act. While only 13 states and the Virgin Islands have enacted the Uniform Power of Attorney Act, two more states (Mississippi and Pennsylvania) introduced it this year alone. These changes to Florida law, some of which are described below, reflect a nationwide trend that is expected to pick up steam in the coming years.
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In United States v. Windsor, the Supreme Court took a historic step towards providing equality to all, regardless of sexual orientation. While a significant victory for same-sex couples across the nation, it must also be understood that this decision is somewhat limited in scope. As the Miami Herald noted, this Supreme Court “ruling leaves Florida same-sex couples in limbo,” due to the fact that same-sex marriages are still not permitted under the Florida Constitution. The Court’s decision affirmed the Second Circuit Court of Appeals’ ruling that Section Three of The Defense of Marriage Act (“DOMA”), which stated “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife,” was unconstitutional. While a positive step for same-sex couple seeking equal treatment, this decision still leaves same-sex couples at the mercy of their state’s legislature. In Florida, for example, Governor “Rick Scott made clear [] that he intends to enforce the same-sex marriage ban that voters approved in 2008.” . Additionally, the Supreme Court did not rule all of DOMA unconstitutional, meaning that, pursuant to Section Two of DOMA, states still do not have to respect same-sex marriages consummated in other states.
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