Young Professionals

The Florida Digital Assets Act

March 5, 2019 | by Chepenik Trushin LLP

Understanding Fiduciary Access to Digital Assets Under Florida Fiduciary Access to Digital Assets Act

Social networking, e-mail, and digital platforms are here to stay; unfortunately, we are not. Internet users must plan for the management and disposition of their assets in similar ways that they make plans for tangible property.

Florida statutes define a digital asset as “an electronic record in which an individual has a right or interest.” When a user with digital assets passes away or becomes incapacitated, a representative may want access to these digital assets to collect financial records of the decedent, to prevent identity theft, or even for sentimental reasons. There are various state and federal privacy laws, however, that may prevent one from acquiring this information. Amongst these laws is the Florida Fiduciary Access to Digital Assets Act. The Act applies to a fiduciary acting under a will, trust, or power of attorney executed before, on, or after July 1, 2016 Fla. Stat. § 740.08. Chapter 740 generally prevents access to electronic information and assets without specific authorization from a user, even if a general grant of authority has been given to a fiduciary. As such, if the user desires that the agent have access to electronically stored information digital information or digital assets, they must curate the operating document to include a special authorization to that effect.

Missing person. Now, what’s next, probate court and the impact of intestacy.

February 12, 2019 | by Chepenik Trushin LLP

Probating the Estate of a Missing Person

Even more excruciating than the death of a beloved person is arguably the uncertainty when the beloved person goes missing and his or her body is never recovered. Florida laws contain rules that allow the surviving family members to complete the mourning process, declare the missing person dead, and move on with their lives. One of the issues that the surviving members must deal with is the distribution of the estate of the deceased. Can you probate a missing person’s estate?

The answer is yes. However, as the first step, the missing person must be declared fictitiously dead. Under Florida Statute §731.103(3), a person who is absent from the place of his or her last-known domicile for a continuous period of five years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed to be dead. The thoroughness of the search for the missing person is considered on a case by case basis; therefore, what may be enough in one case might be insufficient in another one. What is clear though is that at least some search must be done every time.

Contest a Will.

December 20, 2018 | by Chepenik Trushin LLP

What is my Deadline to Contest a Will in Florida?

Surprisingly, as astounding 55% of adults in the United States do not have a Will or any other sort of estate plan in place. While planning one’s estate certainly makes matters easier for loved ones after death, problems can arise even when one does make a will. There are dozens of reasons one may want to contest a will. Some of these include including lack of testamentary capacity, undue influence, fraud, lack of the required number of witnesses or discovery of a later will. But when one realizes there is an issue with a will, what does one do and how much time does one have to challenge it? Legal actions typically have a statute of limitations. As defined by Black’s Law Dictionary, a statute of limitations is the “time frame set by legislation where affected parties need to take action to enforce rights or seeks redress after injury or damage.”

In Florida, the time limitation to challenge a will is statutory. While Florida allows years to pass on claims before barring actions with a statute of limitations, the Florida Legislature only gives three (3) months for someone to contest a will. Florida Statute §733.212 (the “Statute”) outlines the process and deadlines for the filing of objections. It states in relevant part:

Charitable trusts help to reduce estate taxes, learn more

October 11, 2018 | by Chepenik Trushin LLP

FLORIDA CHARITABLE TRUSTS: ALTERNATIVE BENEFICIARIES AND CY PRES DOCTRINE

Due to applicable tax exemptions and tax deductions, charitable trusts are a great tool for preserving the value of your property intended for charitable purposes and for reducing taxes payable by your remaining estate (intended for purposes other than charitable ones). Naturally, the main goal when setting up a charitable trust will be the fulfillment of the philanthropic objective of your choice. While the law comes to aid with mechanisms to fill in the blank spaces in the will or trust agreement, well-meant but poorly executed provisions in the documents may defend these mechanisms and obstruct the desired purpose.

Charitable purposes may include relief of poverty; advancement of arts, sciences, education, or religion; promotion of health, governmental, or municipal purposes. Fla. Stat. 736.0405(1). This list is, of course, non-exhaustive. A specific charitable purpose and beneficiary organization will usually be designated in the document. Even if it is not, the court will select one or more charitable purposes or beneficiaries that will be consistent with the settlor’s original intent, at least to the extent it can be ascertained. Fla. Stat. 736.0405(2). But what if the agreement names a purpose and a beneficiary, but the beneficiary does not exist? Or exists at the time the agreement is made, but ceases to exist before it is supposed to take the bequest? Or what if the stated purpose is impossible to fulfill? In those situations the cy pres doctrine applies to help execute the bequest in accordance with the general spirit of the will or trust agreement.

Bitcoin, crypto, blockchain, tokenpots, coin plus, ether pay and Estate planning in 2018

August 29, 2018 | by Chepenik Trushin LLP

ESTATE PLANNING: CRYPTO CURRENCIES AND DIGITAL ASSETS

Although we all unquestionably live in a digital age at least for the past two decades and the legislatures are adopting new laws every day to reflect this reality, digital estate planning remains one of the areas where relying on state-made laws might not be enough. Laws in this area are scarce and only of a general nature. What happens with our digital assets after we die is usually controlled by private companies that store the data. For that reason, and because of the specific nature of digital assets, it is advisable to take these matters in your own hands.

What is a digital estate planning? It is a estate planning that covers any of your digital assets, including cryptocurrencies, websites, email accounts, social network accounts, cloud accounts, and all content stored or communicated trough these tools. What sets these assets apart from the more traditional ones is the fact that there might not be any person other than you who is aware of those assets or who could access them. In other words, no official register, no tax records, no bills, no paper contracts. Yet these assets may have a great value, both personal and monetary.

Family law implications under the 2018 Tax Bill

March 8, 2018 | by Chepenik Trushin LLP

HOW THE NEW TAX BILL MAY AFFECT DIVORCES

In one of our previous posts we informed about the new Tax Cuts and Jobs Act (“TCJA”) and the major changes it brings, including the various adjustments in tax deductions. This article focuses on deductions applicable to alimony, as the new system may significantly affect and expedite divorce settlements in the months to come.

Alimony is a form of spousal support awarded by agreement or by court decision to the lower-income spouse after divorce, typically referred to as the “dependent” spouse. The courts have wide discretion in establishing the amount of alimony and the time period during which the higher-income spouse is obligated to pay. The purpose of alimony is to help the dependent spouse overcome the divorce and to at least partially maintain the standard of living the spouses shared during their marriage. To ease the burden of splitting one household into two, the alimonies were tax deductible – at least until now.

Guardianship, FL law explanation

February 7, 2018 | by Chepenik Trushin LLP

Guardianship: When No Less Restrictive Alternative is Available

What is guardianship?

The simple answer: court intervention to safeguard the property and care of an individual unable to make such decisions themselves.

Home health care owners and operators, be smart

October 30, 2017 | by Chepenik Trushin LLP

Do you own a home health care agency or nurse registry? Safeguard your referral sources through a non-compete agreement and enforce it!

The home health care industry generally includes businesses that provide skilled nursing, physical therapy, and other health-related services to homebound patients. If you run a home care company, you know that referrals are crucial. This is because patients typically seek out home care services after a referral from a “middle man,” such as a physician, hospital, or skilled nursing facility. As a result, home care companies hire marketing representatives to promote the companies and cultivate relationships with the middle men in hope of securing future patient referrals for their business.

Imagine that you hire such a marketing representative, train her, and give her access to your company’s internal referral source database, preferences, and strategies. Naturally, you want to protect your sources, so the representative signs a confidentiality and non-compete agreement as part of her employment contract. After some time, the representative quits, and all of a sudden you start receiving significantly less referrals from the sources that the representative worked on while employed by you. Coincidence? It turns out that the representative started working for your direct competitor and used her relationship with your precious referral sources to your competitor’s benefit, in direct violation of the non-compete agreement. Surely the law is on your side, right?

May 2017 District Court of Appeals decision impacts Alimony creditors – a blend of family law and estate planning law

August 21, 2017 | by Chepenik Trushin LLP

4^th DCA Recognizes Homestead Exception for Alimony Creditors

The Florida Constitution provides powerful homestead protection against creditors. Generally, only three types of super-creditors can breach this protection – (1) government entities with a tax lien or assessment on the property; (2) banks or other lenders with a mortgage originating from the purchase of the property; and (3) creditors with liens originating from work or repair performed on the property.

However, a recent decision by the District Court of Appeal for the 4^th District confirmed a “long recognized” fourth category of super-creditors – alimony creditors. The facts of this case are as follows: Robert Spector (“Husband”) and Renee Spector (“Former Wife”) divorced in 1996, and agreed in a post-nuptial agreement that Husband would (1) pay Former Wife $5,000 per month in alimony until his or her death, or until she remarried; (2) transfer to Former Wife the title and interest in their marital home; and (3) maintain a $750,000.00 life insurance policy for Former Wife’s benefit. Subsequently, Husband was held in civil contempt for “willful and deliberate failure to comply with the alimony provisions” of the post-nuptial agreement and was also denied a bankruptcy petition as alimony arrearages were not subject to bankruptcy discharge.

Capacity and Wills: How to avoid litigation from family members, beneficiaries and creditors

May 22, 2017 | by Chepenik Trushin LLP

Legal Capacity and Estate Planning- How to Help Safeguard a Will from Future Litigation

When a loved one grows older, their caretakers’ ever growing to-do list can become overwhelming. After dealing with the basic, everyday needs of an aging family member, it may sometimes be easy to overlook the fact that your loved one does not have a valid will. By not addressing this issue, the task of handling final affairs and estate distribution after their death becomes increasingly more difficult. If you are responsible for someone who is at risk for developing Alzheimer’s, dementia, or any other disease that can affect their mental capacity, it is important that you consult with an estate planning lawyer who can ensure that a proper will is drafted in accordance with the laws of the state of Florida.

Florida courts have held that a will can be properly admitted to probate if the testator was competent at the time the will was executed. Jervis v. Tucker, 82 So.3d 126 (FL 4th DCA 2002). A testator will be found to have been competent if they possessed the ability to “mentally understand in a general way the nature and extent of the property to be disposed of, and the testator’s relation to those who would naturally claim a substantial benefit from the will, as well as a general understanding of the practical effect of the will as executed.” American Red Cross v. Estate of Haynsworth, 708 So.2d 602, 605 (FL 3rd DCA 1998). Florida courts will apply these standards and also evaluate the facts specific to a particular case in order to determine if a testator was of “sound mind” when they created the will. Estate planning lawyers play an important role in this process and have the responsibility of ensuring that the testator is legally competent at the time the will is created.