Personal Representative

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.

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.

Probate, Creditors and Technology – Are you Aware?

September 15, 2016 | by Chepenik Trushin LLP

E-Filing in Probate Court – It’s Mandatory!

As a Creditor to an estate, you must be wary of your time limits to file a statement of claim against an estate. Section 733.702(1), Florida Statutes (2012) states that creditors must file any statements of claim against a decedent’s estate within three months of the first publication date of the notice to creditors or within the thirty days of being served with notice, whichever is later. If you do not file the claim within the time frame, the claim is time barred, unless the court grants an extension. § 733.702(3), Fla. Stat. (2012). The only available grounds for an extension are fraud, estoppel, or insufficient notice of the claims period. Id. Since April 1, 2013, electronic filing of court documents has been mandatory in civil, probate, small claims, and family divisions of Florida circuit courts. In re Amendments to Fla. Rules of Civil Procedure, 102 So.3d 541, 461 (Fla. 2012). While Rule 2.525(d) of the Florida Rules of Judicial Administration does provide exceptions to the electronic filing requirement, those exceptions are only available in specific circumstances. But, what happens if you mail a paper copy to the clerk, which is received within the applicable time period, but you do not electronically file a copy until after the time period has passed? According to the Fourth District Court of Appeal, you are out of luck and will be barred.

In United Bank v. Estate of Edward G. Frazee, Edward G. Frazee passed away on December 24, 2012. A petition for administration was filed and the decedent’s last will and testament was admitted to probate. A notice to creditors was published on February 14, 2013. On April 11, 2013, United Bank (the “Bank”) was served with a copy of the notice to creditors. Under § 733.702(1), the Bank’s deadline to file a statement of claim was May 15, 2013. Through an out of state attorney licensed to practice in Florida, the Bank mailed the claims on May 10, 2013, but the Clerk did not receive the paper claims until May 14, 2015. On May 23, 2013, the Clerk notified the Bank that the claim needed to be filed electronically, and the Bank submitted the claims through the e-portal on the same day.

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.

Trustee Acting Squirrely?

July 22, 2016 | by Chepenik Trushin LLP

When a Trustee Goes Bad: Removal of a Trustee

Trustees play a critical role in trust administration. Settlors, or creators of the trust, give trustees legal title and management authority over the settlor’s property for the benefit of the beneficiaries. An unruly trustee could improperly deplete the trust property and leave nothing for the beneficiaries. Florida recognizes the importance of the trustee’s role and has numerous statutes regulating trustees and protecting beneficiaries. The provisions include, but are not limited to:

The trustee shall administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the Florida Trust Code. 736.0801, Fla. Stat. (2006).

Does ingesting medical based pot make you incapable of creating a will or trust?

July 12, 2016 | by Chepenik Trushin LLP

Possibility of the Effect of Marijuana on Estate Planning

In the 2014 legislative session, the Florida Legislature passed the Compassionate Medical Cannabis Act of 2014, which authorizes certain physicians to prescribe low-THC cannabis for use by specified patients. Nearly two years later, due to legal challenges, Floridians still have not been able to receive this medical treatment. However, because the law may become effective in the near future, certain questions must be addressed, particularly questions regarding the intersection of marijuana use and testamentary capacity.

One of the legal prerequisites for making a will in Florida is that the maker (the testator) must have testamentary capacity, that is, a sound mind. Insofar as lack of testamentary capacity is one of the grounds frequently used to challenge the making and execution of a last will and testament, the testator’s testamentary capacity may be called into question if he or she had been prescribed medical marijuana and had, in fact, taken medical marijuana during any aspect of the preparation or execution of the subject will.

B.B. King, a music legend – Undue Influence and Capacity in real life

June 24, 2016 | by Chepenik Trushin LLP

B.B. King Estate Fight: One Year Later and No End in Sight

Legendary blues musician B.B. King passed away on May 14, 2015 due to congestive heart failure at the age of 89. In a will created in 2007, King named his longtime business manager, Laverne Toney, as the executor/personal representative of his will. The 2007 will, thus, puts Toney solely in charge of administering King’s assets, his property, and his trust. In June 2015, a Las Vegas judge confirmed Toney’s appointment as sole executor, and rejected efforts to contest the will made by four of Mr. King’s children.

Although B.B. King did not have children from either of his two marriages, he nevertheless claimed to have 15 children with 15 different women over the course of his lifetime. Confusing the situation still further, King’s doctors determined in the 1980’s that due to King’s low sperm count, he was not able to conceive children. However, King never disputed paternity, and claimed to be the father of all 15 children, 11 of whom are still alive and have been fighting Toney over the estate.

Personal representative designation in Last Will and Testament – Convicted Felons

June 20, 2016 | by Chepenik Trushin LLP

Florida Limitation on Convicted Felons Serving as Personal Representatives in Probate Administration

When contemplating preparing a last will and testament, there are many options that have to be considered before drafting can begin. One important consideration is deciding who to nominate as the personal representative of your estate.

A personal representative is a fiduciary who is appointed by the court to administer the decedent’s estate.. Depending on the jurisdiction, a personal representative may also be known or referred to as an executor, administrator, or other name. Florida Statute § 733.301 outlines who has preference in appointment as the personal representative in various scenarios. When the decedent dies testate, meaning with a last will and testament, preference is given to the personal representative nominated in the will. If the nominated personal representative is unwilling, unable or unfit to serve, any successor nominated in the will has preference. In the event all nominated personal representatives are unwilling, unable or unfit to serve, preference goes to the person selected by a majority in interest of the persons entitled to the estate. If there is no person selected by a majority, preference goes to a beneficiary under the will, and if more than one beneficiary applies, the court may select the person best qualified.

Qualifying as a Personal Representative in Florida

May 27, 2016 | by Chepenik Trushin LLP

When thinking about creating a will, there are many considerations that have to be factored in before putting anything in writing. An important consideration is deciding who to appoint as the personal representative for the estate.

A personal representative is an individual who is appointed to administer the decedent’s estate through probate. Under Florida Statute § 731.201, a personal representative is an umbrella term that could refer to an executor of a valid will or an administrator appointed by the probate court for an intestacy estate in cases where there is no will or there is an invalid will. Under Florida Statute § 733.302, in order to be a personal representative, an individual must be a resident of Florida and sui juris, considered to be competent under the statute. The Probate Code gives preference in the appointment of a personal representative in the event of either testate or intestate estates. For an estate with a valid will, preference is given to the personal representative named in the will, or a person selected by a majority of interested persons, or a devisee of the decedent. Under Florida Statute § 733.301, for estates without a will or with an invalid will, preference is given to the surviving spouse, then to a person selected by a majority of the interested parties, and then to the heir nearest in degree to the decedent. Continue Reading

The Role of the Personal Representative in an Estate

November 10, 2015 | by Chepenik Trushin LLP

Who will handle your matters after you have passed away? Here in Florida, a personal representative is in charge of handling the matters of your estate, regardless of whether you died with a will. If a person dies intestate (i.e., without a will, and therefore likely without a named personal representative), then a personal representative will be appointed by the court. Choosing a personal representative whom you trust should be an important consideration when drafting your will.

That may lead you to wonder, who can serve as a personal representative? And who does the state feel is preferable to serve as a personal representative? Florida Statutes have addressed these questions and have explained who is qualified to serve as a personal representative. Generally speaking, any person who is sui juris (meaning, “of one’s own right”) and is a resident of Florida at the time of the death of the person whose estate is to be administered is qualified to serve as a personal representative.