Florida Probate Litigation Lawyer Blog

2014 LEGISLATIVE SESSION: Alignment of the Antilapse Provisions of the Floirda Trust and Probate Codes

September 26, 2014 | by Chepenik Trushin LLP

The 2014 State of Florida legislative session brought about several changes in the area of trusts and estates. Among those passing into law was the amendment to the antilapse provisions of the Florida Trust Code (Florida Statutes Chapter 736). As amended, the new provisions mirror the language and intent of similar provisions contained in the Florida Probate Code (Florida Statutes Chapter 732). It is assumed at law that in order for a named beneficiary to take under a devise, the beneficiary must survive the settlor or testator. Antilapse provisions contemplate the status of a devise to a beneficiary who predeceases the settlor or testator, a contingency presumably unanticipated by the settlor or testator. Such provisions address the consequences of the common law rule of lapse in attempting to reflect the presumed intent of the testator.
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LONG TERM CHARITABLE GIVING: The Charitable Lead Trust

September 2, 2014 | by Chepenik Trushin LLP

Charitable donors are frequently in pursuit of a means for establishing a lifetime philanthropic legacy and effective estate planning. The utilization of a charitable trust provides a strategic option. The donor may choose to set up a trust during his or her lifetime (termed an “inter vivos” trust) or a trust set up to take effect upon death under a will (termed a “testamentary trust”).
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The Reasons We Give

August 25, 2014 | by Chepenik Trushin LLP

Estate planners often focus on the tax benefits of making a gift, as smart planning can help reduce or eliminate a wide array of taxes on the estate and individual. But if you thought the primary motivation for donor gift-giving was related to taxation, you are mistaken. The reason behind the choice to make a gift to charity over a family member runs deep-it is about an emotional connection to the mission of the benefiting organization. Neuroscience has revealed that giving is hard-wired into our brains, perhaps giving validity to the aphorism that “it is better to give than to receive.” With the right estate planning, giving can actually lead to receiving, in the form of tax benefits.
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Do You Have a Claim for Tortious Interference With an Expected Inheritance?

August 19, 2014 | by Chepenik Trushin LLP

Tortious interference with an expected inheritance occurs when someone intentionally prevents, through fraud, duress, or other tortious means, another person from receiving an inheritance or gift that other person otherwise would have received. Many states today, including Florida, recognize the tort of tortious interference with an expected inheritance. Even the Supreme Court of the United States has acknowledged tortious interference with an expected inheritance to be a “widely recognized tort.”
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Do Not Forget Your Digital Assets in the Cloud

August 12, 2014 | by Chepenik Trushin LLP

When you think of your “assets,” what are the first things that come to mind? Likely, your tangible assets: your home, car, cash, furniture, documents, clothes, etc. Not surprisingly, people often forget or do not realize that pictures they uploaded onto websites and applications like Facebook and Instagram, information in user accounts on web-based platforms like My Verizon and myAT&T, documents uploaded to the “Cloud,” and emails stored in your email accounts are also “assets” that must be accounted for after a person passes or becomes incapacitated.
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Giving Art

July 25, 2014 | by Chepenik Trushin LLP

Hippocrates wrote, “vita brevis, ars longa.” Translated, this means “life is short, art is long.” It is a common reference to how time limits life and how art may prolong those limits. In an article that explores what motivates people to make charitable gifts, one gift planner explained that “[s]ome donors are motivated to make a gift that will last forever.” (Alexandra P. Brovey, My Client, a Donor? TRUSTS & ESTATES: THE WEALTH MANAGEMENT.COM JOURNAL FOR ESTATE-PLANNING PROFESSIONALS, October 2013, at 19, 20.)
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CONTESTING A WILL

July 7, 2014 | by Chepenik Trushin LLP

Often times, people are displeased by the terms of a family member’s will and would like to have a court set aside the will. This frequently occurs when relatives are left out of a will, and there is concern that the will does not reflect the actual wishes of the decedent. Based on the circumstances in which a will is created or the consistency of a will under applicable state law, some wills may be invalidated. According to Julie Garber’s recent article, “What Are the Grounds for Contesting a Will?” there are four legal grounds on which a party may contest the validity of a will: (1) non-compliance with signing formalities, (2) lack of testamentary capacity, (3) undue influence, and (4) fraud.
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Insuring Your Final Wishes Through Proper Estate Planning

June 29, 2014 | by Chepenik Trushin LLP

The consequences of will disputes range from the goals of the individual who created the will being greatly frustrated to failing completely, which is a shame because a will represents a person taking the time and energy to memorialize his or her last wishes in a testamentary instrument. However, poor estate planning combined with contentious litigation among family members can foil the best intentions of a testator.
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Planning for Old Age

June 23, 2014 | by Chepenik Trushin LLP

In a recent article titled, “Look Who’s Moving In With Your Aging Parent,” author and mediator Carolyn Rosenblatt addressed concerns relating to the care of aging parents’ finances. In the article, Rosenblatt told the story of a 78-year old man named Arthur who suffers from early stage dementia, a mental illness common among men and women aged 65 and older.
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CS/HB 635: The Florida Legislature Updates The Florida Guardianship Law

June 12, 2014 | by Chepenik Trushin LLP

A “guardian” is a person appointed by the court to act on behalf of the person and/or property of an individual whom the court has determined to be incapacitated, known as a “ward.” Guardians are appointed according to statutory criteria, outlined in § 744.309, Florida Statutes (2013). The guardian of an incapacitated person may exercise only those rights that have been removed from the ward and specifically delegated to the guardian. A guardian of a ward’s property has a fiduciary obligation to protect and preserve the assets of the ward, and is required to keep the court apprised of their actions through the filing of an initial guardianship inventory and annual accountings. A guardian of a ward’s person may, among other things, consent to medical treatment on behalf of the ward and, as with a guardian of property, must file an annual guardianship plan detailing the ward’s doctor visits and treatment plans for the coming year. Persons disqualified from becoming guardians include convicted felons, incapacitated persons, or persons who have been judicially determined to have committed abuse or neglect against a child or any of the other offenses prohibited under § 435.04, Florida Statutes (2013), such as acts of sexual misconduct, abuse or exploitation of an elderly person, and even indecent exposure. Additionally, prospective guardians must submit to a high level of background screening, including a credit history report and fingerprinting.
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