Florida Probate Litigation Lawyer Blog

What if a family member passes and we can’t find the will?

August 13, 2012 | by Bart Chepenik

Sometimes a situation might arise where a person who has a will dies and then the will cannot be found. What would happen? What steps should you take to avoid this unfortunate situation? The first important step a person can take to prevent this problem is finding an experienced attorney to help make sure the will is properly executed and properly preserved in a safe location. If you find yourself in this situation, for example, maybe your grandmother in Boca Raton, Florida passes and her will cannot be found, you will also want the assistance of an attorney. If you live in Miami-Dade, Broward or West Palm Beach County there are many options.

If a family member dies and you cannot find their will to admit to probate, the court will presume that your relative intended to destroy the will and that your family member wished for their estate to pass according to intestate laws. If you want to prove that there was indeed a will, you have to will have the burden to produce evidence that a will existed. In some situations this burden may be easier, for example if there is evidence that your grandmother was bed-ridden and incapacitated in Boca Raton Regional Hospital for the last month of her life, and unable to access the will at the time it went missing.
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Medicaid Estate Recovery

July 30, 2012 | by Bart Chepenik

When a person dies and was a recipient of Medicaid assistance, Medicaid may have a claim against the estate for any amounts spent on behalf of the recipient. This claim is called a Medicaid Estate Recovery. Medicaid can recover against an estate if it has a valid claim. The deceased person could have died either with or without a will. It is important for any Miami-Dade County, Broward County or West Palm Beach County resident to have a good attorney when handling the deceased person’s estate. Medicaid serves approximately 3.19 million people in Florida, with more than 1 million of recipients being aged 21 years or older. An attorney can take steps to ensure that the Medicaid claim has been paid, before distributing assets to beneficiaries.

Medicaid’s claim against and estate will include all payments made by Medicaid for services or goods when the recipient was age 55 years or over. Payment of benefits for a person under the age of 55 years does not create a debt. Florida Statutes requires that the attorney or personal representative of any estate in which the decedent at the time of death was 55 years of age or older, promptly send a notice and a copy of the death certificate to the Agency for Health Care Administration. Once received, ACS (Affiliated Computer Services) will determine whether Medicaid provided any medical assistance and, if so, file a claim with the probate court. The claim will state the amount owed. The Clerk of Court then forwards a copy of the claim to the estate attorney or personal representative.
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Stand-Alone Special Needs Trust for Children with Disabilities

July 16, 2012 | by Bart Chepenik

Fifty-four million Americans suffer a disability. In Florida, 6.2% of children five to fifteen years old have a disability and 4.3% of Miami- Dade County children age five to fifteen have a disability. For parents of those children a stand-alone special needs trust can be a useful tool to ensure their child receives the care they need. The trust provides the family peace of mind their child will have the resources he or she needs even after the parents have passed. Special needs trusts are frequently used to receive an inheritance or personal injury settlement proceeds on behalf of a disabled person or is founded from the proceeds of compensation for criminal injuries, litigation or insurance settlements.

There are a number of reasons that a parent of a child who has a disability might consider using a separate stand-alone special needs trust. The tax consequences of establishing such a trust depend on whether it is revocable or irrevocable. If your family lives in Miami-Dade County, Broward County or West Palm Beach County the stand-alone special needs trust will be governed by Florida Statutes Chapter 376. You should seek the assistance of an experience attorney to be sure the trust complies with Florida laws.

A separate trust should make the process of obtaining approval of the agencies administering the Medicaid and Social Security Income programs easier and quicker. Because a stand-alone special needs trust is designed to benefit only the child who has a disability, the trust provisions should deal only with that child. This makes it less likely that the trust will contain language that causes the trust assets to be countable resources to the beneficiary for Medicaid eligibility purposes than would be the case if the trust also contained assets of the parent, or included the parent’s other children as beneficiaries.

Secondly, a stand-alone special needs trust affords parents a way to keep their estate plan private from governmental agencies. If the parents’ living trust contains information about the value of their estate and is used to hold funds for the child who has a disability, that document must be presented to the reviewing government agencies. Using a stand-alone special trust means the parents only need to disclose what assets are in that trust to the government agencies.
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E-Z Legal Form Leads to More Legal Fees

July 2, 2012 | by Bart Chepenik

Sometime before her death, a Florida resident living in Ormond Beach made a will using an “E-Z legal form”. She relied on the form and carefully listed the assets she wanted her sister to receive including her house, her IRA account, her life insurance proceeds and all of her bank accounts. The testator, the lady making the will, included all of her current assets and even included a contingency clause that the listed assets would go to her brother if her sister were to pass first. The will seemed simple enough to create and given her small estate and she had in fact disposed of all of her current assets. The testator thought she took care of unexpected events by naming her brother in the event her sister was not around. The will seemed straightforward and many residents of Miami-Dade, Broward, and West Palm Beach County might feel comfortable creating a similar will. They should not! This will, which seemed straightforward, was not. Sadly, this “E-Z legal form” will created a situation where her family members were forced to spend a lot of time and money to litigate against each other. It created greater headaches and legal fees for her family members after she had passed in 2011. She would have been well-advised hire an attorney to create the will to prevent such an unfortunate situation.

The issue in this recent court case was that the sister named in the will had in fact died first. The deceased sister left cash and land in Putnam County to the living sister. The living sister put the cash in a new bank account. The living sister never revised her original will to reflect this inheritance. As a result, there was a significant question as to whether the brother originally mentioned in the will was supposed to receive the newly inherited land and money or if these new assets should pass by intestate succession to the testator’s nieces. The family members spent a lot of time litigating, the case even reached the First District Court of Appeals in Florida. This court ultimately decided that the inheritance acquired after the will did pass to the nieces and the brother received only the property specifically described in the will.

We will never know whom the testator really wanted the property to go to, an argument can be made that since the nieces were never mentioned in the will that she had in fact wanted her brother to take everything. However, since the will contained no mechanism to dispose of the inheritance or any other property not mentioned in the will, those assets passed according to intestate laws. A good attorney would have included a residuary clause in the original will creating such a mechanism.

Including Vacation Homes in Your Estate Plan

June 18, 2012 | by Bart Chepenik

Florida is an ideal location for a beachside vacation home or condominium. Many northerners or “snowbirds” like to make their way south every winter and enjoy all that south Florida has to offer. Excellent restaurants and weather make Florida a primary location for vacation homes. Miami, Ft. Lauderdale, West Palm Beach and Boca Raton are some of South Florida most desirable cities. These vacation homes make up part of a person or couple’s estate plan. There are no rules on how a person may give their vacation home under a will. This flexibility can sometimes unfortunately lead to unintended disputes among family members.
If you own a vacation home either here or in another state (or country) it is wise to take some time and consider the following questions in deciding how to leave the property in the will. First, if you want to leave the property to a child or family member, consider first asking them if they want it. Often children may have their own preferences as to what they look for in a vacation home. Maybe they want something closer to their home or a location with more activities for their children. Secondly, consider how the family member may wish to use the property. Maybe the family may prefer the property as a rental then for their own personal use. Thirdly, consideration should be given as to how maintenance costs and other costs will be paid. Will they take to property free and clear of the mortgage or will they have to pay the mortgage?
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Legal Name Changes

June 4, 2012 | by Bart Chepenik

All counties in Florida are governed by Florida Statute §68.07 regarding name changes. Before you begin the process you must consider why you want to change your name. There are different steps if you are changing your name pursuant to a marriage, divorce, or changing your name back to a prior name. If you seek a name change in Dade County, Broward County or West Palm Beach County, you must have fingerprints submitted to the court before you can have a hearing on a name change. There are slightly different rules regarding the hearing if a former name is being restored. These fingerprints will be used for a criminal history check. The court will consider the results of the criminal history when evaluating whether to grant the name change petition.

It is important to file your petition for a name change in the correct court. If John Smith has a house in Boca Raton and also a condominium in Miami Beach Florida, which court would be the appropriate court for a name change petition? The answer will depend on which home is his primary residence. For example, where does he receive his mail, which residence does he claim as his homestead property, and which address is listed on his driver’s license? Once you have determined the proper court you will need to contact that clerk to find the proper agency to take and submit your fingerprints.

You can visit the clerk of court in the county you reside in for information on the fingerprinting process. West Palm Beach Clerk of Court website is located at website address: http://www.mypalmbeachclerk.com/

The Broward County Clerk of Court website is located at: http://www.clerk-17th-flcourts.org/ClerkWebSite/Welcome2.aspx You can visit the Dade County Clerk of Court website at: http://www.miami-dadeclerk.com/
Regardless of which Florida County your name change petition is filed it has to include the following information:

That the petitioner, or the person who wants to change their name, is a resident of and lives in the county where the change of name is sought.
The date and place of birth of the petitioner, the petitioner’s father’s name, the petitioner’s mother’s maiden name, and where the petitioner has lived since birth.
The petitioner’s marriage status, the name of the petitioner’s spouse and if the petitioner has children, the names and ages of each and where they reside.
If the petitioner’s name has previously been changed and when and where and by what court.
The petitioner’s occupation and where the petitioner is employed and has been employed for 5 years next preceding the filing of the petition. If the petitioner owns and operates a business, the name and place of the business, how the petitioner is connected to the business and how long the petitioner has been identified with that business. If the petitioner is in a profession, the profession shall be stated, where the petitioner has practiced the profession, and if a graduate of a school or schools, the name or names thereof, date of graduation, and degrees received.
If the petitioner has been generally known or called by any other names and if so, by what names and where.
If the petitioner has ever been adjudicated bankrupt and if so, where and when.
Whether the petitioner has ever been arrested for or charged with, pled guilty or nolo contendere to, or been found to have committed a criminal offense, regardless of adjudication, and if so, when and where.
Whether any money judgment has ever been entered against the petitioner and if so, the name of the judgment creditor, the amount and date thereof, the court by which entered, and whether the judgment has been satisfied.
That the petition is filed for no ulterior or illegal purpose and granting it will not in any manner invade the property rights of others, whether partnership, patent, good will, privacy, trademark, or otherwise.
That the petitioner’s civil rights have never been suspended or, if the petitioner’s civil rights have been suspended, that full restoration of civil rights has occurred.

Do I need to create a trust if I already have a will?

May 28, 2012 | by Bart Chepenik

Some individuals have a will and also have a revocable living trust to distribute assets. Often they are the trustee of the revocable living trust and their children or family members may be the beneficiaries. Why would somebody do this? Won’t their assets pass under the will when they die? The answer is yes, but it may take a while. Using a revocable living trust alongside a will can avoid delay before administration of the estate can proceed as a result of probate proceedings. If assets pass under a will a personal representative has to gain access to the decedent’s assets. They do this by getting letter of administration from the court. This should happen quickly but sometimes the process can take longer. For example, in some counties, such as Palm Beach County, it can take less than a week to have a personal representative appointed and armed with letters of administration. Other counties, such as Miami-Dade, frequently take longer. Sometimes, however, regardless of the county, the delay can be lengthy and estate assets can become at risk.

The revocable living trust allows the successor trustee to take over immediately upon the death of the original trustee. Even if a beneficiary desires to contest the appointment of a successor trustee, more likely than not, the trustee can continue to administer the trust during the litigation process. The successor trustee, without court approval or court appointment, can make distribution of assets, pay claims of creditors, and otherwise proceed to administer the trust.

If you are creating a revocable living trust it is important to remember the assets in the trust are not out of your reach. Generally, the trust creator may withdraw any part or all of the trust assets by written direction to the trustee. Further, the trust permits the creator to revoke or amend the trust at any time. However the trust does not protect the assets from creditors of the trust creator. The beneficiaries of the settlor’s trust also do not have any protection against the creditors of the settlor. If creditors need to be paid after the death of the trustee, the assets in the trust may be used to satisfy the creditor’s claim. The attorneys at Chepenik Trushin can help with creating trusts, funding those trusts and any other estate planning needs. Please feel free to call (305) 981-8889 for an initial consultation.

Notice to Creditors

May 21, 2012 | by Bart Chepenik

A personal representative of an estate has a duty to make a reasonable search to determine the names and addresses of creditors. Creditors may include banks, electric companies, service providers, judgment creditors, or a past healthcare provider. A personal representative may wonder what type of “search” is required. Florida law requires that the search must be diligent to discover all “reasonably ascertainable creditors”. What does this mean in the real world? A personal representative should:

• Monitor the decedent’s mail and examine all bills that are received • Review the decedent’s checking account to find any regular check payments

• Ask friends and family members of any creditors the decedent might have • Obtain search judgments from a title company • Ask known health care providers about other health care providers • Review business records and inquire about accountants, lawyers, business partners or business employees who may know of creditors • Review old tax returns to see about sources of income and payments

Strictly Adhering to the Terms of an Estate Planning Document

May 7, 2012 | by Bart Chepenik

Once again a recent court case reminds us how important it is to have up-to-date and very clear estate planning documents. A case out of Broward County could have happened anywhere in Florida. The Broward County Court decided a case wherein a lady created a trust. Pursuant to the terms of the trust if the settlor wanted to change or revoke the trust after she had been adjudicated incapacitated she would either need to be restored by the court or provide letters from two “licensed physicians” indicating that she was competent. As chance would have it, the settlor was later adjudicated incompetent due to her deteriorating mental health state. However she then wanted to amend her trust to change the amount the beneficiaries would receive under the trust. She obtained a letter of capacity from a licensed physician who had met with her many times. She obtained a second letter from a nursing home administrator with expert experience and medical schooling-but without a physician’s license.

The court would not allow the amendment. The letter from the nursing home administrator was not good enough. The trust unambiguously stated what the requirements are for allowing her to amend after incapacity. It required two letters from “licensed physicians”. The court refused to change what was clearly required in the instrument. She did not meet her own requirements to restore capacity and therefore the court did not uphold the amendment. Her ability to amend her own trust would have been different if she had used different language. It is important when creating estate instruments to use language that will clearly express the goals you wish to achieve. If you need help creating or updating estate documents please feel free to contact the experienced attorneys at Chepenik Trushin to help. If you are living in the West Palm Beach, Broward, Miami-Dade area you can reach us at 305.981.8889 or 866.626.9898.

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Lottery Winners and the IRS

April 30, 2012 | by Bart Chepenik

As Florida lottery ticket sales increase so do the dreams of winning. Scratch-off ticket sales for the week ending March 4, 2012 in Florida, exceeded $60 million, the highest level of sales achieved since the Florida Lottery launched its first ticket in 1988. Some winners plan ahead by attempting to minimize the taxes they will have to pay if they make gifts to family members from lottery proceeds.

Lottery winners may form an entity owned by multiple family members, allowing those family members to share directly in the lottery winnings. Lottery proceeds can be paid directly to the entity. This is all fine if there was in fact a real and binding arrangement to share the proceeds. However, if there was not, the IRS considers this a gift and will impose a tax in the value of the proceeds that the family member receives as a result of the winnings.

Family members are obligated to pay gift taxes depending if the family agreements were in fact pre-existing arrangements or are only a product of post-lottery planning. Some have criticized these arrangements saying there is a “lottery winnings” exception to federal gift taxes that gives a free pass to the sharing of the winnings among family members.
A recent Tax Court case warns that there is no such lottery exception and that the IRS will scrutinize such lottery sharing arrangements and asserts gift taxes when appropriate.
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