Florida Probate Litigation Lawyer Blog

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.

What is your plan for the “What if” in life?

August 15, 2016 | by Chepenik Trushin LLP

Estate Planning for Young Professionals: Don’t Wait to Start Planning

Discussing one’s death can be an awkward and uncomfortable experience at any age. It is a topic that most individuals avoid at all costs, especially young adults, as if the mere discussion of one’s future demise will somehow bring it about. While it may not be pleasant dinner conversation, discussions of what will and should happen in the event of death should take place sooner rather than later.

Most young professionals do not feel a sense of urgency when it comes to estate planning, and believe that they have all of the time in the world. Many young professionals also do not have much of an estate to speak of, maybe some bank accounts, some property if they are lucky, and likely a lot of student debt. Many individuals with few assets do not see the need for any type of estate plan. However, such an outlook is shortsighted and fails to take into account assets that will be acquired in the future. Early estate planning can protect the estate an individual does have, maximize the value and income of both their current and future assets, and also ensure seamless transfer of assets to loved ones in the event of death.

FIRPTA – Be Aware!

August 1, 2016 | by Chepenik Trushin LLP

FIRPTA: Increased Withholding and Other Changes

Most professionals have familiarity with the Foreign Investment in Real Property Tax Act (“FIRPTA”), especially those that have foreign clients investing in U.S. real estate. On December 18, 2015, the President signed into law the Protecting Americans from Tax Hikes Act of 2015 (“PATH Act”). The PATH Act significantly alters FIRPTA withholding for foreign persons disposing of investments in U.S. real estate. Realtors, accountants, closing agents and title companies need to familiarize themselves with the changes.

The PATH Act increases the FIRPTA withholding rate from 10 percent to 15 percent on certain dispositions and distributions of United States Real Property Interests (“USRPIs”).^[1] Similarly, the withholding rate for the transfer of a partnership interest or the beneficial interest in a trust or estate has been increased from 10 percent to 15 percent.^[2] The new withholding rate applies to all such dispositions that take place after February 16, 2016.^[3] However, the new FIRPTA rules allow for a 10 percent withholding rate where the amount realized on the disposition of property being used as a residence is between $300,000.00^[4] and $1 million.^[5] In other words, if a foreign person sells his or her personal residence for $999,000.00 the amount to be withheld shall be $99,900.00. However, if the foreign person sells his or her personal residence for $1,000,100.00, the amount to be withheld on the sale shall be $150,015.00. The amount withheld is offset by the gain on the disposition of the USRPI and is refundable to the extent the amount withheld exceeds the underlying tax liability.^[6] The increased FIRPTA withholding rate is not an actual increase in tax, but a means of ensuring compliance with U.S. tax law. An exemption found in the old rule remains in place, providing that a foreign person is not subject to FIRPTA withholding where the property sold is used as a residence and the amount realized does not exceed $300,000.00.^[7]

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.

Settlor’s, Trustee’s and Beneficiary’s – Meet your “Jedi Knight”, Trust Protector

June 30, 2016 | by Chepenik Trushin LLP

Trust Protectors: An Extra Layer of Protection

Traditionally, a trust has three main participants, a settlor, a trustee, and one or more beneficiaries. A settlor creates and/or contributes property to the trust. A trustee manages and holds the property in the trust for the benefit of other people who are said to have a “beneficial interest” in the trust. Beneficiaries are the people who have those beneficial interests. For example, a father, acting as a settlor, might create a trust, naming his wife as the trustee, to distribute money for the benefit of their children, who are the beneficiaries of the trust. However, a fourth participant has increasingly been used in trusts: the trust protector.

Historically, trust protectors were mainly used in offshore trusts and rarely in domestic trusts. A trust protector acts as an extra layer of protection for the settlor. A trust protector is customarily appointed to supervise the trust and ensure that the settlor’s intent is effectuated. A trust protector may have the power to modify terms of a trust to ensure that the settlor’s intent is carried out.

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.

When Wills mean Business

June 14, 2016 | by Chepenik Trushin LLP

When Wills Mean Business: Planning for Your Business’s Future

Planning for the future is not only necessary in your personal life, but also in your professional life, especially if you either own a business or invest in a business. Putting an estate plan in place early on, and keeping it updated to reflect changes in the business, can protect your business in the event of your death. Two South Florida examples illustrate the necessity of planning ahead for your business.

In November 2015, Pebb Enterprises LLC, based in Boca Raton, suffered the loss of two of its managing principals and five employees in an airplane crash. The plans put in place by the principals kept the company in business after the devastating event. In contrast, after the death of its president, Naples based Vantage Lighting was undervalued and dissolved, because the president died without a will.