Florida Probate Litigation Lawyer Blog

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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“Support Trusts” Under Florida Law: What’s a Trustee to Do? (Part III)

June 4, 2014 | by Chepenik Trushin LLP

Based on Florida’s statutory scheme, it would seem that a Florida court, given the same underlying facts, would reach the same result as the Massachusetts court in Marsman. If a life beneficiary-on the verge of being destitute-requested a distribution from a trust with a clause that directed the trustee to make distributions that the trustee, in his or her discretion, deems necessary for the life beneficiary’s support, taking into account the life beneficiary’s income from all sources known to the trustee, a trustee under Florida law would presumably be duty-bound to make a distribution. Because the trustee would be required to “administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries,” it would seem that a failure to distribute funds would be an abuse of the trustee’s discretion. Clearly the trustee would be required to look at the financial situation of the life beneficiary to ascertain whether a disbursement was needed in order to “support” the life beneficiary. Upon discovering that the life beneficiary was destitute, a failure to invade the corpus and disburse funds would likely violate § 736.0803, Fla. Stat. Many settlors incorporate language into the applicable “support clause” that states something to the effect of “even to the exhaustion of the trust,” in order to ensure that the trustee has the discretion to completely disburse the trust’s assets if needed to support the life beneficiary.
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“Support Trusts” Under Florida Law: What’s a Trustee to Do? (Part II)

May 27, 2014 | by Chepenik Trushin LLP

What happens if the life beneficiary contacts the trustee and demands that the trustee invade the trust corpus and distribute funds for the life beneficiary’s maintenance and support, but the remainder beneficiaries object? Aside from being bound to “administer the trust in good faith” and “act impartially in administering the trust property,” the Florida legislature gives trustees little guidance as to what the best course of action is. The potential issues that the trustee faces include the following: (1) what level of maintenance and support is the surviving spouse entitled to; (2) must the trustee consider the standard of living that the surviving spouse had at the time the trust was created, at the death of the settlor, or at the time of the request; (3) how searching must the trustee’s review of the life beneficiary’s other assets be; (4) what situations must the trustee must distribute funds to the surviving spouse; and (5) are there certain situations where funds cannot be distributed to the surviving spouse?
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“Support Trusts” Under Florida Law: What’s a Trustee to Do? (Part I)

May 16, 2014 | by Chepenik Trushin LLP

When creating a trust as part of one’s estate plan, it is not uncommon for the settlor to include provisions designed to provide support for a spouse or other loved one for the remainder of his or her life, with the remaining trust assets going to the settlor’s children, or another designated beneficiary. These “support trusts,” as they are commonly referred to, will give the trustee the discretion to invade the trust corpus in order to provide for the “health, education, maintenance and support” of the “life beneficiary,” when in the trustee’s discretion it is appropriate. Then, upon the death of the surviving spouse, whatever is left of the trust corpus will go to whomever the settlor designates as their “remainder beneficiary.” Additionally, many of these support trusts specify that the trustee, in exercising his or her discretion, should look to the other assets that the life beneficiary has available to determine whether additional invasions of the trust corpus are needed to provide for their “health, education, maintenance, and support.”
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The New Revolution of Trust and Estate Planning – Social Networking

May 1, 2014 | by Chepenik Trushin LLP

The Internet has substantially altered the way people interact and express themselves, and social networking accounts, e-mail accounts, and other digital assets have become increasingly valuable in recent years. Because the value of digital assets has only been recognized in the last decade, people often do not take them into consideration when creating an estate plan. Additionally, there is hardly any little legal authority or rules addressing how digital assets should be valued and treated in a probate context. However, an even bigger problem relates to determining ownership of digital assets like social networking pages, which are created by an individual, but maintained and hosted on computer servers of large companies. As a result, digital assets have recently created problems for probate courts.
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Estate Planning: Don’t Do It Alone

April 24, 2014 | by Chepenik Trushin LLP

“Nothing can be said to be certain, except death and taxes.” – Benjamin Franklin
This quote by Benjamin Franklin is probably the most succinct and accurate statement as to why estate planning is best carried out with the help of a knowledgeable and experienced attorney. Over the past few years, a number of websites have begun to offer a quick and inexpensive method for individuals to put together seemingly “simple” estate planning documents, such as living trusts, advanced directives, and wills. While this method would surely save the estate planner some time and money in the short-term, it is clear that such shortcuts can surely backfire after the testator has passed away, leaving his or her beneficiaries to bear the costs and burdens of litigation to interpret a will that was created without the benefit of effective legal advice.
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CREATIVE CHARITABLE GIVING – BEYOND CASH DONATIONS

April 10, 2014 | by Chepenik Trushin LLP

Charitable giving is an American tradition, and Americans give to charitable organizations at high levels. Gifts in the form of donations of cash remain the favorite vehicle for positively impacting charities of personal significance. Increasingly, however, individuals are seeking tax advantageous methods of utilizing asset-rich portfolios in order to achieve philanthropic financial goals. Now more than ever, charitable giving involves the donation of assets other than cash as effective and tax efficient methods for effectuating charitable gifts.
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The Blind Side: Former South Carolina Gamecock Coach’s Children Claim Undue Influence in Probate

April 3, 2014 | by Chepenik Trushin LLP

SEC football is known for its national championships, sensational athletes, and jaw-dropping hits. With this in mind, it is no surprise that the children of Jim Carlen, former coach of the South Carolina Gamecocks, are fighting back after being blindsided by the probate of a will that left them nothing. In a petition filed in probate court, his three children have alleged that Carlen’s second wife, Meredith, exercised undue influence over Carlen in the final years of his life and, as a result, his will is invalid.
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Switched at Execution: Don’t Let It Happen to You

March 27, 2014 | by Chepenik Trushin LLP

The execution of one’s final will and testament is something to be taken very seriously. The permanent and inevitable nature of death means that attention to detail is paramount to ensuring your final wishes are fully set forth, and that your loved ones have a clear roadmap to carrying out those wishes. Sadly, the consequences of a flawed execution can undermine your will altogether, as Florida courts require strict compliance with the applicable state statutes in order for a will to be valid and effective in Florida. Allen v. Dalk, 826 So. 2d 245, 247 (Fla. 2002). One issue that occurs with sufficient frequency to be a staple of law school textbooks and the subject of numerous expensive legal battles is a situation involving a “signature swap” during the execution of a will.
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Mediating Contested Probate Matters

March 20, 2014 | by Chepenik Trushin LLP

For many years, litigating parties have engaged in alternative dispute resolution for the purpose of attempting to resolve their disputes without judicial intervention. Mediation, one of the more common forms of alternative dispute resolution, is a process where a neutral mediator “acts to encourage and facilitate the resolution of a dispute between two or more parties . . . [by] assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.” Fla. Stat. 44.1011. Mediating a dispute prior to litigating has numerous potential benefits, including efficiency, cost savings, confidentiality, and probably most importantly, the ability of the parties to reach a resolution among themselves. This last benefit is of particular importance because, unlike a trial where litigants are forced to put their fate in the hands of either a judge or a jury, participants in a mediation are not only afforded the ability to have a say in the resolution of their dispute, but they are able to be actively involved in the process of creating that resolution.
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