Power of Attorney

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.

Back to school or college. Check your estate planning documents.

August 29, 2022 | by Chepenik Trushin LLP

When Packing for Back to College, Don’t Forget Your Estate Plan!

With Back to College season in full swing, students are getting their last-minute packing in—shower shoes, mattress toppers, textbooks. . . the list goes on. But is there something missing from this packing list? According to estate planning attorneys and professionals, yes! Estate planning might seem like only a necessary precaution for older individuals, but this is far from the truth. Everyone can benefit from a well-crafted estate plan. This is especially true during major life events, such as graduating high school and beginning secondary education.

Will. To begin, you might want to consider a will—depending on your circumstances. In the extremely unfortunate event that you were to die, a will would protect your interests in passing your assets to whose whom you want to have them. While there are default rules of succession when you die without a will, it is best practice to avoid dying intestate (i.e., without a will) because these default rules may not accurately reflect your true wishes. Accordingly, a will is suggested—even as young as 18 years old—to provide peace of mind that your wishes will be honored and your loved ones will not have additional worries if you were to pass away at a young age.

Avoid Intestacy and Probate

June 15, 2022 | by Chepenik Trushin LLP

Estate planning 101 from the late Tony Hsieh, CEO of Zappos

Tony Hsieh was the CEO of Zappos for over twenty years before retiring and taking up a series of different business ventures. Zappos is an online retailer that deals specifically with shoes and clothing on an international sale. Hsieh was an early investor, and then CEO, for this online clothing empire. On November 27, 2020, Tony Hsieh succumbed to his injuries resulting from a house fire at his residence, leaving behind assets worth over $700,000,000. Quite a large sum.

Like many celebrities who have passed away with large estates, including Aretha Franklin and Prince, Hsieh did not leave an estate plan in the unfortunate eventuality of his death. Having no plan in place governing his wishes, Mr. Hsieh’s family is now left in the unenviable position of having to deal with the administration of Mr. Hsieh’s estate and the claims of many individuals seeking a potion of same. At least ten individuals have submitted claims for a portion of Mr. Hsieh’s estate, seeking more than $130,000,000. Many of these claims concern different specific devises listed on thousands of yellow Post-It notes. Some Post-It notes are about particular items such as artwork and furniture, while others concern ownership interests in Mr. Hsieh’s business ventures.

Your legal responsibilities as a named personal representative in estate planning documents

April 7, 2022 | by Chepenik Trushin LLP

Est. of Pounds v. Miller & Jacobs, P.A., No. 4D21-1362, 2022 WL 39211 (Fla. 4th DCA 2022).

If a will does not specify who should serve as personal representative of an estate, parties can fight over this position through litigation. But what happens if one person obtains a settlement on behalf of an estate, and then another person is appointed as personal representative? The court answered this question in Estate of Pounds v. Miller & Jacobs, P.A., No. 4D21-1362, 2022 WL 39211 (Fla. 4th DCA 2022), giving us insight into why these situations are problematic and why good estate plans need to be carefully drafted.

The decedent died in a motorcycle accident, leaving behind his minor child as the sole heir of the estate. The child’s mother and the decedent’s mother both showed interest in serving as personal representative of the estate, which comes with certain perks, such as earning a personal representative fee, and responsibilities, including distributing estate property. The child’s mother was not married to the decedent.

Estate planning, trusts and genealogical services, what you need to know.

February 28, 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.

Are you a “Dutiful Child”, who is a caregiver for your loved one? The Florida laws explained.

February 9, 2022 | by Chepenik Trushin LLP

Florida’s ‘Dutiful Child’ Exception

Throughout life, relationships and priorities often change, necessitating amendment to one’s Last Will and Testament to reflect these changes. However, sometimes these testamentary changes raise questions as to the testator’s motivations for the revisions, leading to a will contest. “Undue influence” upon the testator is one basis for challenging the validity of a will, trust, or other testamentary document. While litigating the issue of undue influence can be complex, the basic concept is straightforward: an individual is accused of improperly persuading a (often vulnerable and elderly) testator to draft or amend their will for that person’s individual benefit.

Florida courts consider several factors when assessing claims of undue influence over a testator, including the beneficiary’s arranging for the testator to prepare a will, knowledge of the contents of the will, and presence during the execution of estate planning documents. On paper, these factors seem like red flags pointing towards a finding of undue influence. Yet in reality, these are common actions of adult children simply caring for their elderly parents. So, how can an adult child helping their parent with estate planning justify these actions when faced with an allegation of undue influence?

Guardianship proceedings – learn the facts and the Florida laws

January 13, 2022 | by Chepenik Trushin LLP

In November 2021, after Britney Spears’ father, Jamie Spears, was suspended as conservator of his daughter’s conservatorship, a judge finally ruled to end the conservatorship. This decision signaled the end for the restrictive supervision that had been in place since 2008. Back in June 2021, Britney Spears made headlines as she gave an emotional testimony pleading for her conservatorship to be lifted, echoing the online social media movement #FreeBritney. After nearly fourteen years, Ms. Spears is finally poised to assume complete autonomy of her life and regain many of her most fundamental individual rights.

What is a conservatorship?

Under California law, where Ms. Spears resides, “[a] conservatorship is a court case where a judge appoints a responsible person or organization (called the “conservator”) to care for another adult (called the “conservatee”) who cannot care for himself or herself or manage his or her own finances.” The state declares one to be a conservatee if he or she is intellectually incapacitated and unable to make independent decisions, usually involving ailments such as dementia, serious mental illness, or other metal disabilities. Once the court establishes the conservatorship, the conservatee loses the right to make certain decisions, such as deciding medical treatment, controlling financial assets, marrying, and signing contracts, to name a few.

Trust Decanting in Florida

December 23, 2021 | by Chepenik Trushin LLP

Can an Irrevocable Trust be Changed? Trust Decanting under Florida Law

You do not have to be a Sommelier to be familiar with the concept of decanting wine. “Decanting”, the pouring of wine from its original bottle into a different vessel – is a technique utilized for two contemporaneous purposes: to separate the wine from any sediment that has formed it its original container, and to aerate the wine to enrich its flavors. It may be surprising, however, to learn that a similar legal concept exists for Trusts, and is valuable for similar circumstances.

As its name suggests, “Trust Decanting” is when a trustee creates a new trust, moving all the assets from the initial trust into the second trust, to either correct a mistake or unintended result—the hypothetical “sediment” that the initial trust may have incurred, or to strengthen the original purpose of the trust.

Do It Yourself Wills in Florida – be very cautious

October 8, 2021 | by Chepenik Trushin LLP

DIY Estate Planning: Can I Make a Will Myself?

While a steady drive towards technology has been growing for decades, the onset of the COVID-19 pandemic tremendously increased our reliance on technology, effectively changing the the way we do nearly everything, including estate planning. Do-It-Yourself (DIY) online services offering legal templates and forms have gained popularity in the wake of the stay-home orders, popular for their convenience and low cost. DIY estate planning forms, such as like a last will and testament, codicils and health care or financial powers of attorney, created without the guidance of an attorney can create several issues.

Take, for instance, the case of Aldrich v. Basile, which the Supreme Court of Florida called “a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance.”[1] In Aldrich, a women used a DIY will template that willed several assets to her brother. After creating this will, she inherited some property and large sum of money. Her will, however, did not contain a residuary clause, which accounts for all property not specially bequeathed in the will. Upon her death, her brother and nieces began suit to determine the rightful owner to the inherited money and property, each claiming it was theirs. The Florida Supreme Court held that because the will did not contain a residuary clause, the money and property would pass through intestacy (the law that happens when someone dies without a valid will), meaning it would be split according to the default Florida laws. This case demonstrates the detrimental impact of an online will template can have when it does not adequately address your estate’s specific, changing needs.

Decanting the Trust – What you need to know

September 17, 2021 | by Chepenik Trushin LLP

Can an Irrevocable Trust be Changed? Trust Decanting under Florida Law

You do not have to be a Sommelier to be familiar with the concept of decanting wine. “Decanting”- the pouring of wine from its original bottle into a different vessel- is a technique utilized for two contemporaneous purposes; two separate the wine from any sediment that has formed it its original container, and to aerate the wine to enrich its flavors. It may be surprising, however, to learn that a similar legal concept exists for trusts, and is valuable for similar circumstances. As its name suggests, “trust decanting” is when a trustee creates a new trust, moving all the assets from the initial trust into the second trust, to either correct a mistake or unintended result- the hypothetical “sediment” that the initial trust may have incurred, or to strengthen the original purpose of the trust.

Under Florida law, the power to decant a trust is granted to any trustee other than the settlor or beneficiary who has the power to invade the trust principal; called an “authorized trustee.”[1] Following a 2018 revision to Florida’s trust decanting statute, there are now three distinct ways in which a trustee may decant;[2]