Florida Probate Litigation Lawyer Blog

Ensuring the Validity of Your Last Will and Testament

October 22, 2015 | by Chepenik Trushin LLP

There are a number of reasons why people choose to execute a Last Will and Testament. Some individuals create a will to ensure that their loved ones are provided for upon their passing. On the other hand, other people create a will to ensure that certain family members are specifically excluded from the distribution of their estate. Often times, however, life circumstances and/or the desires of the testator change between the execution of a will and the testator’s passing. In such instances, a modification or revocation of the previously executed will is necessary to reflect the changed testamentary intent.

Many people assume that they can modify or revoke their will simply by drawing a line through existing provisions, handwriting in new provisions, and initialing next to the changes. While this may be considered a valid modification in other states, this type of alteration is not valid under Florida law. Florida law requires strict adherence to what are known as “will formalities” in both the execution and the modification of a will. Any deviation from these strict formalities may result in a will being deemed invalid by a court, further resulting in the will not being admitted to probate and thereby frustrating the testamentary intent of the testator.

New Digital Estate Planning Application Demonstrates the Importance of Estate Planning

October 8, 2015 | by Chepenik Trushin LLP

Planning for one’s death is never easy, but that does not mean it has to be difficult. In an effort to encourage individuals to establish plans for their eventual passing, Everplans Professional recently launched a digital estate planning application to begin the process.The consumer application, geared primarily toward estate lawyers, financial advisors, and insurance agents, allows consumers to gather their estate plans, health care proxies, and financial account information and hold all of these documents in a single location. The application contains customized to-do lists, setting the framework for what needs to be done when an individual passes away. The plans are then shared with “deputies,” who will be able to have access to some or all of the stored information and documents.

Companies who sign up for Everplans Professional can co-brand the tool and offer it to their clients for the price of $2,500 a year. The application comes with a personalized dashboard that helps track a client’s progress, as well as an advisor who can reach out to the client and help the client finalize their plans. As with all technology, one legitimate concern is security. To tackle this problem, Everplans uses a two-step verification process during login and all personal information is encrypted and protected using banking-level security.

Tom Benson’s Family Feud Highlights Avoidable Estate Planning Issues

September 20, 2015 | by Chepenik Trushin LLP

New Orleans Saints and New Orleans Pelicans owner, Tom Benson, is currently involved in a family dispute and a series of judicial proceedings emerging from changes in his estate planning documents. After becoming displeased with the way his daughter—Renee Benson—and her two kids, Rita and Ryan, began acting upon his remarriage, Mr. Benson decided to strip his descendants of ownership shares of the Saints and Pelicans. These ownership shares were provided for in trusts that Benson had created to benefit Renee, Rita, and Ryan.

However, under the terms of the trusts, removal of the shares requires that Mr. Benson replace them with other assets of equal value. Benson has tried to fulfill this obligation, but his attempts have proven futile as the trustees have refused to accept promissory notes Benson has attempted to deliver in exchange for the ownership interest in the sports teams. The trustees believe that Benson has not offered assets equal to the value of the ownership interests, as questions still exist as to the dollar value of the assets.

Under Florida law, if the terms of the trust dictate that a third party has the authority to control the actions of a trustee, that third-party authority may be owed deference over the trustee’s discretionary power. See In re Celotex Corp., 487 F.3d 1320 (11th Cir. 2007). If this case was being litigated in Florida and Benson had reserved the authority to control the actions of the funds’ trustees, litigation may have been avoided. Needless to say, a well-written and comprehensive estate plan can make all the difference when flexibility is necessary to handle previously unforeseen circumstances.

How Can I Challenge a Will in Florida?

September 10, 2015 | by Chepenik Trushin LLP

A will is supposed to represent your loved one’s final decree for the distribution of his or her estate, but what can you do if you believe that there is a possibility that the will does not accurately represent the decedent’s last wishes? Especially with high-net-worth decedents, there are sometimes valid concerns of fraud or other grounds for contesting a will.

In Florida, an individual can challenge a will before the conclusion of the probate of the decedent’s estate. Probate is the process of submitting a will and any related documents to a specialized court, which assigns authority to a personal representative for the purpose of settling and distributing the estate using letters of administration. The probate court also determines the validity of the will.

Estate Planning Is for Young Adults too

August 17, 2015 | by Chepenik Trushin LLP

“By failing to prepare, you are preparing to fail.” Benjamin Franklin may not have been referencing estate planning when he made that statement, but aptly applies to creating estate planning documents. There are many individuals who have incorrectly assumed that estate planning is only for elderly individuals with a lot of assets; however, it is never too early to start planning. In fact, the sooner you create an estate plan, the better. Estate planning is a key part of living a responsible life and should not be misunderstood to apply only when death is imminent or when you have amassed great wealth. Life is full of surprises and the more prepared you are to deal with those surprises, the easier it will be for you and your family when any unforeseen circumstance arises.
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Six Estate Planning Mistakes Made by High-Net-Worth Individuals

August 4, 2015 | by Chepenik Trushin LLP

A well thought out and thorough estate plan is one of the best things you can leave behind for your loved ones. Like all others, high net worth individuals should take the process seriously to ensure that their wishes are honored, and their assets are dealt with properly after their passing. However, in practice, many people neglect to create a proper plan for the distribution of their respective estates. Here are some of the most common estate planning mistakes we come across in running our legal practice:

1. Not accounting for taxes: Especially with high net worth individuals, the taxes that could be due on your estate can be very substantial. A sophisticated estate plan, utilizing various estate planning options such as testamentary trusts, exemptions, and insurance (to name a few examples) can ensure that more of your assets will go to the people you love rather than being paid out in taxes. However, even accounting for taxes, serious problems can arise if the language within your estate planning documents is not precise and the terms are not clearly defined.

Create a GRAT Before Interest Rates Rise

July 22, 2015 | by Chepenik Trushin LLP

Interest rates are currently at an all-time low, making it an imperative time to consider all the potential estate planning options that you may have. Low interest rates provide an advantageous opportunity to utilize grantor-retained annuity trusts, also known as GRATs. GRATs are an instrument used to transfer appreciating assets, or assets that become more valuable over time, such as securities, real estate, or private equity investments. Generally, GRATS should be utilized when interest rates are low because they operate by freezing the value of the property transferred to the trust. As a result, future appreciation of the asset will transfer free of estate tax for the named beneficiaries of the grantor. This type of trust allows you to save a lot of money if the trust is set up properly and is set up at the correct time.

Estate Planning Tips for Same-Sex Couples in the Wake of Obergefell

July 10, 2015 | by Chepenik Trushin LLP

As was recently decided by the United States Supreme Court, same-sex couples can legally wed in every state in the country. Not only will same-sex couples be able to marry in any state of their choosing, but they are also now afforded the same rights and benefits that have traditionally accompanied the sanctity of marriage between man and woman. In Obergefell v. Hodges, the Supreme Court in a 5-4 ruling, legalized same-sex marriage. Supreme Court Justice Kennedy, who wrote the majority opinion, stated that same-sex couples may exercise the fundamental right to marry. Justice Kennedy’s majority opinion further holds that same-sex couples will no longer be denied the various benefits that states have linked to marriage.

Justice Kennedy explained that no union is more profound than that of marriage. However, along with this profound union, comes additional and important decisions that must be made by the marrying couple, including decisions related to taxes and estate planning. For tax planning, newly wed same-sex couples should consider the previous year’s federal and state income tax returns in order to discover if there is a positive tax arbitrage worth the time and expense of amending the prior year’s tax returns. In addition, the current year’s federal income tax and state income tax (if applicable) opportunities should be examined.

May I disinherit my spouse?

July 1, 2015 | by Chepenik Trushin LLP

“For better or for worse.” These are the traditional words that our society associates with wedding vows, indicating that the two individuals marrying each other are making a commitment to each other in good times and in bad times. This commitment is meant to extend to all aspects of the married couple’s lives, and estate administration is no exception. When a married individual dies, the decedent’s spouse is entitled to a portion of the decedent’s estate. This is true in Florida even if the decedent attempted to disinherit his or her spouse. As long as the couple has not divorced, the spouse is entitled to inherit at least something (even if the couple separated).
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What Same-Sex Couples Should Know About Estate Planning in Florida

June 21, 2015 | by Chepenik Trushin LLP

Earlier this year, Florida became the 36^th state to legalize same-sex marriage, which was undoubtedly a monumental event for many South Florida residents. Up until then, gay and lesbian couples who wanted the benefit of marriage, but were legally unable to tie the knot, had very few options when considering things like estate planning, healthcare decisions, and taxes. After legalization, same-sex couples now have the opportunity to achieve greater economic and health benefits under the law.

Notably, as a legally recognized married couple, Floridian same-sex couples can now qualify for both homestead and tenancy by the entirety protection for property. In Florida, homestead refers to the constitutional protection of an individual’s home from creditors. The Florida Supreme Court in Orange Brevard Plumbing & Heating Co. v. La Croix stated that its “design and purpose is to benefit the debtor by securing to him his homestead beyond all liability from forced sale under process of any court. The case law of this state dictates that homestead exemption laws should be liberally applied to the end that the family shall have shelter and shall not be reduced to absolute destitution.” 137 So. 2d 201, 204 (Fla. 1962).

Tenancy by the entirety is a form of ownership only applicable to married couples, where each spouse holds the whole (or the entirety of the) property, and not a share or divisible part. This means that when one spouse dies, the surviving spouse automatically owns the entire asset. In addition to property rights, married same-sex couples can also begin to file joint tax returns and make medical decisions for the other spouse. These are everyday decisions for many of us, and now all married residents of Florida can benefit from these protections.