Estate Planning and Documents

Imagine having earned $59 million, being age 38 and having NO control over your money or assets

September 14, 2020 | by Chepenik Trushin LLP

Over the past few weeks, the internet has rediscovered that Brittney Spears has not had legal control over her extensive assets for 12 years. Given Brittney Spears’ celebrity status, this news made considerable waves throughout popular culture, and the hashtag #FreeBritney started to trend. People began investigating social media posts from Ms. Spears where she allegedly has hidden cryptic messages about her desire to get out of this arrangement. So, how did it get to this point, and what legal mechanism locks Britney Spears out of controlling her own assets?

What Happened?

First, Ms. Spears has had an extremely public battle with mental health. In 2007, Ms. Spears suffered a breakdown in which she shaved her head and attacked a photographer’s car with an umbrella. She had several stays in rehab and was committed to a psychiatric hospital twice. After her stays at psychiatric hospitals, her father, Jamie Spears, petitioned the court for an emergency “temporary conservatorship,” which granted him and an attorney control over Spears’ financial and personal decisions. The temporary agreement was later made permanent.

Real property and wills – Educate yourself on the implications of Probate proceedings

August 27, 2020 | by Chepenik Trushin LLP

Does My Will Control My Joint Property?

There are several different ways to hold real property with another individual in Florida. The three main ones are: 1) tenancy in common, 2) joint tenancy with a right of survivorship, and 3) tenancy by the entirety. The way co-ownership of real property is classified may have significant impacts on the disposition of an estate after one of the owners dies.

In Florida, the default classification of real estate ownership is known as tenancy in common. If a property title lists only the names of owners without specifying another classification, there is a presumption that the property is a tenancy in common (unless the individuals are married). Additionally, unless specifically stated otherwise, tenants in common own equal shares of the property. When a tenant in common dies, the real property passes according to that person’s estate plan. This type of ownership will ensure that the property will flow through the owner’s estate. However, unless this property is held by a mechanism that can avoid probate proceedings (e.g. a Revocable Trust), it must go through the time consuming, expensive and public probate process to transfer title to the heirs.

Your beloved pet “Sploot” is alive and well, so how do we keep that state of calm and relaxation?

July 31, 2020 | by Chepenik Trushin LLP

What Happens to My Pets When I Die? Florida Pet Trusts

Many people consider their pets to be an integral and indispensable part of their families. For that reason, many people want to ensure their beloved dog, cat, horse, or other animal will be provided for in the event of their death. Pets are considered tangible personal property in Florida, and can be devised, so in the absence of a specific bequest, your pets will go to whomever you have designated to receive your tangible personal property.

For many people, such an arrangement is fine, but some people may want to ensure that their pets are taken care of after they are gone, and for those people, a pet trust may be appropriate. A pet trust is a legal mechanism that specifies and arranges for how your pet would be taken care of and financially provided for should you become incapacitated or die. In Florida, Fla. Stat. § 736.0408 enables the creation of a pet trust.

In Florida, if you are going through a Divorce or Family Collaborative law process, ensure to include your Estate planning and Beneficiaries

July 9, 2020 | by Chepenik Trushin LLP

What Happens to My Estate Plan When I Divorce?

People often designate their spouse as a primary beneficiary in their will, trust, or beneficiary designation, but what happens in the case of divorce? Oftentimes, a person may neglect to update their testamentary plan following a divorce and leave their ex-spouse as a beneficiary. Thankfully, in Florida, several laws help automatically update a person’s estate plan upon divorce to avoid unintentionally bequeathing a gift to an ex-spouse.

Florida law provides that any provision of a will in favor of a divorced spouse treats that former spouse as if that spouse had already died. The controlling statute, Fla. Stat. § 732.507(2) states the following:

What to know under Florida law during COVID-19 – Naming your kids as beneficiaries of life insurance policies

June 19, 2020 | by Chepenik Trushin LLP

COVID-19 – Buying Life Insurance to protect your children, but what happens when you name them as the beneficiaries?

During these uncertain times, people are attempting to prepare for the worst. This is especially true for those who have minor children. The fear of getting infected with the virus, developing a serious illness that could potentially lead to death, and leaving their children unprotected is very real. Thus, individuals are opting to buy life insurance to make sure their children are taken care of in the event of their death.

But what happens when you die and your minor children are the beneficiaries under your life insurance policy? Since minors cannot legally manage property, the court will appoint a guardian to handle the money for the benefit of your children until they reach the age of majority—a guardianship proceeding. Alternatively, life insurance companies will sometimes ask you to name a custodian, which will create a custodianship account under the Florida Uniform Transfers to Minors Act (“UTMA”), also until the age of majority.

Can a Beneficiary act as a Witness during a pandemic?

June 1, 2020 | by Chepenik Trushin LLP

Social Distancing and Signing Documents: Can a Beneficiary Act as a Witness?

During COVID-19, we have had to adapt the way we sign estate planning documents while maintaining safe social distancing. Although businesses are slowly reopening and things appear to be getting back to a sense of normal, it is still important to be cautious and keep our exposures to a minimum. One of the strategies Chepenik Trushin LLP has adjusted is to make the estate planning process entirely remote, with phone and video conferences, email communications, and sending estate planning documents through regular or electronic mail with detailed instructions for clients to sign on their own. For some clients, this has worked well, but for others, it has been a challenge to find two witnesses and a notary, which are required for many estate planning documents. A frequent question that has arisen is whether a relative or a beneficiary may serve as the witness to a will or other estate planning documents, such as a trust.

For a number of years, Florida law disfavored beneficiaries under a will from also being witnesses to the will. Under current Florida law, a will or codicil is not invalid simply because the will or codicil is signed by an interested witness. Fla. Stat. § 732.504(2). Based on the Florida statute, a beneficiary can serve as a witness to a will.

COVID 19 – Quarantined, who makes medical decisions?

May 7, 2020 | by Chepenik Trushin LLP

COVID 19 Pandemic: If I can’t make medical decisions for myself, who can?

On January 19, 2020, a man in his mid-thirties reported to an urgent care clinic in Snohomish County, Washington, with a persistent cough and fever. The next day, testing by the Center for Disease Control confirmed that the man had COVID 19 marking the first positive test in the United States. Since then, positive cases in the United States have ballooned to over 1,000,000 even as social distancing and quarantine measures have become the new normal.

These unprecedented circumstances raise critical questions about medical care. If you become too sick to make your own medical decisions, who gets to make them? And, to what extent can you control those decisions? In Florida, there are two basic ways you can direct medical decision-making before you become physically or mentally unable to make those decisions for yourself: (1) through the designation of a Healthcare surrogate and (2) by recording your treatment preferences in a living will.

Quarantined during COVID 19 – How do I get my estate planning documents notarized?

April 23, 2020 | by Chepenik Trushin LLP

How to Safely get Documents Notarized During a Pandemic

For the indefinite time being, social distancing and staying home are necessary safety measures. However, that does not mean the world stops. People still have needs and documents that must be notarized. There are ways to do that without leaving the house and risking exposure.

Florida Statute sections 117.201-117.305 went into effect on January 1, 2020 and allows notarization to occur remotely once a notary completes an application and training course. Usually, when getting a document notarized, the notary either confirms that they know you personally or verifies your identity by looking at government-issued identification. Now, according to Florida Statute § 117.265, via audio-video communication, a notary can do the same thing with an additional step. If the notary does not know you personally, you can remotely show your government-issued identification and then answer a few questions to confirm your identity. See Fla. Stat. § 117.265; See also Fla. Stat § 117.295. Once that is complete, the notary can watch you electronically sign the document and notarize it from his/her computer. When looking for a notary to provide this online service, look for someone that is a Remote Online Notary, also known as a “RON.” Not all notaries are qualified to perform this service remotely. The lawyers and staff at Chepenik Trushin LLP can help you through this process, keeping you and your loved one’s safe.

Quarantined – take the time to review your estate planning documents, joint tenancy agreements and beneficiaries

April 22, 2020 | by Chepenik Trushin LLP

COVID 19 – Is Your Estate In Order? Non-Probate Transfers and Pitfalls of Beneficiary Designations

In the wake of the recent Corona virus pandemic, many people are understandably concerned about their estate plan. A common misconception is that if you have executed a will or even a trust, then you are all set. In fact, it may not be that simple. In fact, a will is not the only instrument capable of passing down an estate to the decedent’s heirs, and some assets may not be controlled by your will and/or trust at all.

For example, in a joint tenancy with rights of survivorship, the property automatically passes to the surviving owner. So, if A and B own a piece of land in joint tenancy and A dies, B immediately gains full ownership of the land, without a probate administration. A’s right to the land extinguishes and thus, A has nothing to leave to his heirs through a will, or otherwise. Another way to avoid probate is through accounts with Transfer-on-Death (TOD) clauses. An account with a TOD beneficiary will transfer the ownership of the account will be transferred to the beneficiary at the decedent’s death, without a will or trust.

Part 2: The Secure Act – Look at your trust, your beneficiaries, and get it reviewed

March 20, 2020 | by Chepenik Trushin LLP

Do I Need to Amend My Trust Because of the Secure Act?

Last month, in our last blog, we addressed the basics of the Setting Every Community Up for Retirement Enhancement Act of 2019 (the “SECURE Act’) and how retirement plan beneficiary designations will be impacted for individuals who die in or after 2020. But what if you already set up an estate plan with a trust as beneficiary of your retirement account? Do you need to amend your trust or your beneficiary designation form as a result of the passage of the SECURE Act?

The answer is that it depends on whether the trust is an “accumulation” trust or a “conduit” trust and how you want such retirement accounts to be treated. Generally, in an accumulation trust, assets payable to the trust are to be distributed in the trustee’s discretion. A conduit trust, on the other hand, generally requires that assets must be distributed to the beneficiary – in other words, the trust simply acts as a conduit to deliver the assets to the beneficiary, and the assets cannot stay (that is, cannot accumulate) in the trust. It is possible to draft the trust as an accumulation trust with respect to all assets except retirement accounts, just as it is possible to draft a conduit trust that requires only outright distributions of retirement accounts (leaving the remainder of the funds at the trustee’s discretion).