Florida Probate Litigation Lawyer Blog

Estate Planning with Artwork

Thu, 16 Feb 2012 12:57:17 -0500

Miami-Dade, Broward and West Palm Beach counties are home to some of the finest art in the country. Alongside the many fine art galleries located in South Florida there are private art collectors and individuals who own valuable and sometimes extensive collections. These collections make up part of their estate and careful consideration should be given as to the distribution of these pieces. An experienced estate planner can help you decide when and to whom the art should be gifted.

Often art collectors wish to gift art to their children or members of their family. Art collectors should consider several factors when deciding to do this. The first consideration is that a 28% income tax rate is locked in for the children who receive the art and there are significant expenses for appraisals and the risk of a gift tax audit. Also the giver should consider if the art is something that the children are even interested in receiving. Children’s tastes may be different than the parents, and the children might not appreciate the gift as much as the parents hope. Also, if grandchildren live in the house, there may be a risk of damage to the art!

Sometimes the best and simplest plans when dealing with fine art in an estate is to consider giving the art to public charity. Generally speaking, the art owner gets an income tax deduction for the full value of the art, without ever having to recognize the gain. There are 4 major issues:

A Cruise Ship Accident and Death at Sea

Thu, 26 Jan 2012 17:39:39 -0500

Florida Statute 731.103(3) creates a presumption of death if a person is missing for five years. Once this happens, the person’s estate can be probated and their assets can be distributed. However one does not always have to wait for five years to pass. With enough circumstantial evidence, a person can be presumed dead before the five years is up. In an interesting Florida case involving a West Palm Beach family, the West Palm Beach Court of Appeals dealt directly with this issue.

In the mid 1990’s a wife attempted to have the court declare her husband deceased before he was missing for five years. The lower courts said that the courts could not do so until five years had passed. On appeal the court found that the wife had presented enough circumstantial evidence to allow the court to declare the husband deceased and allow for probate of his assets.

Her husband had been a crew-member of the cruise ship, Club Royale. As Hurricane Erin approached on August 2, 1995, the captain of the ship took it out of port and tried to ride the hurricane out in the open sea off the coast of Cape Canaveral. In the hurricane, the ship capsized and sank. The United States Coast Guard conducted an extensive search by aircraft and surface vessels to search for survivors for four days. It combed over 41,000 nautical miles of open-ocean and found eight crewmen alive on two separate life rafts. It recovered the body of a ninth crew-member on a third raft. Eventually the Coast Guard located 27 of the 30 life rafts from the ship. It found no trace of the husband or the Captain of the ship.

Estate Planning for Same Sex Couples

Mon, 09 Jan 2012 16:02:32 -0500

For same sex couples, having effective estate planning documents and correctly titled property is very important. Without documents expressing the wishes of the couple, there may be undesirable results in the event of a death or serious illness of a partner. If the couple’s wills are not executed properly, upon one partner’s death, property may pass intestate to a relative rather than to the surviving partner. Without a health care surrogate document, if one partner is sick in a hospital the other partner may not have rights to make important decisions for them. The current laws of Florida do not recognize same sex marriages so same sex couples living in South Florida have little protection outside of legal documents that their property and assets will pass to the surviving partner in the event of a death. There are many same sex couples living in Miami Beach, Ft. Lauderdale, Wilton Manors and other South Florida communities who can benefit from a comprehensive estate plan. It is important that same sex couples seek out the assistance of an experienced attorney to make sure their deeds, wills, trusts and powers of attorney are airtight and will carry out each person’s wishes in the event of death or serious illness. In this evolving area of law, same sex couples should have peace of mind that their post death wishes are secure.

An important step for same sex couples to take is to make sure their property is titled properly. Couples can hold property as joint tenants with rights of survivorship. This allows the property to pass to the surviving partner without the property having to go through the probate process. A same sex couple might believe their properties are titled correctly, but unfortunately sometimes deeds are titled incorrectly by mistake. If a deed is incorrect the property may be held only as tenants in common, meaning the property would not pass automatically upon death, but it would be subject to probate.

Happy Holidays from Chepenik Trushin

Fri, 23 Dec 2011 10:43:57 -0500

To all of our colleagues, business associates, and previous, current and perhaps future clients, we extend our warmest holidays wishes to you and your family and we hope that you will enjoy special time with family and friends this holiday season.

First are foremost, we would like to thank all of you a productive and prosperous year at Chepenik Trushin. As our first full year in existence came to a close, we could not be more pleased with the progress this firm has made. The year 2011 brought about great changes for Chepenik Trushin, including an expansion into a penthouse suite at the Wells Fargo Tower on 12550 Biscayne Boulevard, and the addition of two new attorneys to our team, Aaron D. Millman and Joshua Levine.

Be sure to explore our recently updated website. And again, we hope that you will enjoy this special time with family and friends, reflecting on the year gone and looking forward to what comes in 2012.

Happy Holidays from all of us at Chepenik Trushin.

Lost or Destroyed Wills

Fri, 23 Dec 2011 10:40:22 -0500

The situation may arise where a person who had a will prepared dies and then the will cannot be found. If a family member dies and you cannot find their will to admit to probate, the court will presume that your relative intend 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.

Anybody interested in the estate may establish the terms of a lost will and offer it to probate. An interested person generally means someone who may have been named in the decedent’s will or who would stand to inherit if no will is found or proved. This may include a brother of the decedent living in Miami-Dade County, a niece living in Broward County or even an old neighbor living in New York.

What Control Does a Personal Representative Have Over Assets Held in a Professional Association?

Mon, 19 Dec 2011 10:04:38 -0500

Many questions may arise when a person passes away and the person’s professional association holds some assets. The professional association may be a corporation, which is a separate legal entity from the person. In this case the personal representative will not have automatic entitlement to the business assets. This remains true even if the deceased person owns 100% of the corporation. For example if a person owns a successful corporation that operates throughout several South Florida counties and the owner passes away, his probate administration may be conducted in Broward County. The personal representative of the estate may wish to reach the corporation’s assets to satisfy the deceased person’s estate obligations. However, Florida courts have decided against letting a personal representative receive automatic control of the business or its assets.

Fees For Guardianship Services

Thu, 08 Dec 2011 14:05:06 -0500

Some residents of Miami-Dade or Broward County may currently serve as guardian for a ward or may become an appointed guardian in the future. A ward means a person for whom a guardian has been appointed. A person may need a guardian because they become incapacitated or because they are a minor. The responsibilities of a guardian will vary depending on the ward’s needs. A guardian is defined in the Florida Statutes Section 744.102 defines a guardian as a person who has been appointed by the court to act on behalf of a ward’s person or property, or both. A guardian for a ward can live close by or in a different location. For example, if a Miami-Dade County resident becomes incapacitated, their guardian may reside in the same county, in another county in Florida such as Palm Beach County, or even in another state.

Often after someone is appointed guardian they will have questions about their responsibilities and compensation. Florida Statute Section 744.108 specifically addresses the issue of fees for guardians. The statute allows for a reasonable fee for services rendered and reimbursement for costs incurred on behalf of the ward. The court will take into account different factors including the time and labor required, the difficulty of the questions involved, the fee customarily charged in the area for similar services, the amount of income earned by the estate, and the responsibilities and potential liabilities assumed by the guardian. The court will also consider the nature and length of the relationship with the incapacitated person, the experience, reputation, diligence, and the abilities of the person performing the service. Therefore it is highly important for a guardian to keep accurate records of costs associated with the guardianship responsibilities.

Trustee Duties

Tue, 15 Nov 2011 12:11:00 -0500

A trustee has many important duties. They have obligations to beneficiaries and to the trust. Their duties may be altered by the trust, by the creator of the trust or even by the beneficiaries. A trustee should be chosen carefully to ensure they can fulfill the purposes of the trust. According to the Florida Statutes section 736.0801, the trustee has the duty to administer the trust in good faith, in accordance with its terms and purposes and the interests of the beneficiaries, and in accordance with the laws of Florida. A settlor (trust creator) may choose anyone they wish to serve as trustee. It could be a family member trustee located locally in Miami, Ft. Lauderdale, or West Palm Beach. A trustee could also be a corporate trustee located within Miami-Dade County, Broward County or somewhere else.

The trustee also has a duty of loyalty, required by the Florida Statutes section 736.0802. The trustee has to administer the trust solely in the interests of the beneficiaries. A conflict between the trustee’s fiduciary obligation to the beneficiary and the trustee’s own personal interests may make a transaction voidable by a beneficiary affected by a transaction. Some transactions which presume a conflict between a beneficiary and trustee involves situations when the transaction is entered into by the trustee with the trustee’s spouse, the trustee’s children, siblings, or parents.

For example, if a trustee sells $500,000 worth of trust assets to her husband at a lower price of $400,000 there is a potential for a conflict between the obligations the trustee owes to the beneficiary and the trustee’s own personal interests. The beneficiary has remedies available. However, if the transaction may have been authorized by the terms of the trust; approved by the court; or if the beneficiary does not commence a judicial proceeding in time, the beneficiary may loose the relief available to her. It is important that a beneficiary of a trust contact an attorney in this situation to see what relief is available to them. Even a transaction not concerning trust property may involve a conflict between personal and fiduciary interests if the transaction concerns an opportunity that properly belonging to the trust.

Who Needs a Durable Power of Attorney?

Thu, 10 Nov 2011 11:14:01 -0500

What if an accident or illness made it impossible to manage your financial affairs? Would your loved ones have to go to the Dade County or Broward County courthouse to get the authority to handle your affairs? No one likes to consider such grim possibilities, but the truth is that almost every family will eventually face this kind of difficulty. Durable powers of attorney can certainly make life easier for you and your family if times get tough.

Florida Statute Section 709 provides that a durable power of attorney is a written document that remains valid even if you should later become unable to make your own decisions. It is often chosen as a way to plan for those times when you are incapacitated. With a durable power of attorney, you are able to appoint a person or an agent to manage your financial affairs, make health care decisions, or conduct other business for you during your incapacitation. You can give your agent the power to do every act which may legally be done by you, or you can give them limited power, for example, to only sell property, pay bills or make investments.

Living Wills in Florida

Mon, 24 Oct 2011 13:05:42 -0500

The living will is an important estate planning tool. Because this form of “will” is used while an individual is still alive (but no longer able to make decisions) it is dubbed the “living will.” The purpose of a living will is to allow you to make decisions about life support and directs others to implement your desires in that regard. Doctors in all parts of Florida, including Miami-Dade County and Broward County are familiar with these documents. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. A living will can be very specific or very general. More specific living wills may include information regarding an individual's desire for such services such as pain relief, antibiotics, hydration, feeding, and the use of ventilators or cardiopulmonary resuscitation. Living wills may need regular updating to ensure that the correct course of action can be chosen.

Living wills are needed because advances in medicine allow doctors to prolong and sustain life although the person will not recover from a persistent vegetative state. Some people would not desire to remain in that state while others would. The living will allows you to make the decision of whether life-prolonging medical or surgical procedures are to be continued, or withheld or withdrawn, as well as when artificial feeding and fluids are to be used or withheld. It allows you to express your wishes prior to being incapacitated. Your physicians or health care providers are directed by the living will to follow your instructions. You may change the living will prior to becoming incapacitated.

What is the proper venue for probate proceedings?

Wed, 24 Aug 2011 13:52:35 -0500

Various types of lawsuits have different requirements for venues. A venue deals with the locality of the lawsuit or where the lawsuit will be filed or commenced. Typically, the venue is a county or district and is chosen based on the subject matter of the case or the where the defendant resides. For instance, if there is a cause of action for a slip and fall occurring in Fort Lauderdale, Broward County, Florida will be the venue of the lawsuit.

In matters of probate administration, Florida Statute 733.101 lays out the possibilities for venues. It states that the venue shall be (a) in the county in this state where the decedent was domiciled. “Domicile” is defined in Florida Statute 731.201(13) as “a person’s usual place of dwelling and [domicile] shall be synonymous with residence.” Florida Statute 733.101 also gives two options if the decedent was not domiciled in Florida: a probate administration may commence in any county where the decedent’s property is located or if they have no property in Florida then in the county where any debtor of the decedent resides.

A short example can help explain these three paragraphs. James, John, and Chris were driving in a car on I-95 and get in a wreck. All three of them unfortunately pass away. James was a resident of Miami-Dade County and his domicile was there. John permanently lived in Georgia but had an apartment he rented out in Broward County as an investment. Chris lived in Michigan but bought and financed his Porsche through a dealership whose business operates through headquarters in Palm Beach County. James’ last will and testament will be admitted in Miami-Dade County since his domicile was in that county. John’s last will and testament will be admitted in Broward County if need be. Chris’ last will and testament will be admitted in Palm Beach County if need be.

Venue is important to understand because, according to Florida Statute 733.103(1), a will shall be ineffective until the will is admitted to probate in this state or in the state where the decedent was domiciled. The best way to ensure that the probate administration process is handled correctly is to consult an experienced probate attorney.

If you or someone you know lives in the West Palm, Fort Lauderdale, or Miami-Dade area and need help opening an estate or creating or amending an estate plan, the experienced attorneys at Chepenik & Trushin will help with these estate planning needs. Please feel free to contact us for an initial consultation.

Non-judicial Settlement Agreements for Trust Disputes in Florida

Wed, 13 Jul 2011 11:25:03 -0500

No matter how good a person’s intention may have been in creating a trust, as with any matter involving money and property, disputes often occur. Beneficiaries in Fort Lauderdale may contest the actions of the Trustee located in Miami. As with other legal disputes, it is often desirable to resolve a dispute over a trust without dealing with the time, expense, and burdens of the court system. This is why Florida Statute section 736.0111 permits people to enter into non-judicial settlement agreements. A non-judicial settlement agreement allows people to resolve a dispute themselves, without the court, and then enter into a contract that lays out whatever agreement was reached. Then, if a future dispute arises about the trust, a court can step in and enforce the terms of the non-judicial settlement agreement.

Non-judicial settlement agreements can be used to resolve a wide variety of issues that often cause problems when dealing with a trust. For example, non-judicial settlement agreements can be used to resolve disputes over (1) how the wording of a trust should be interpreted, (2) a trustee’s report or accounting of the money or property in the trust, (3) whether to direct a trustee to take or not to take a certain action, (4) granting power to a trustee to take certain actions, (5) appointing or removing a trustee, and (6) determining a trustee’s compensation.

There are some things people should be aware of before entering into a non-judicial settlement agreement. Settlement agreements can only be valid if the terms of the agreement could have been approved by a court if the dispute had actually been filed in court. Also, a non-judicial settlement agreement will not be valid if it causes a result that is prohibited by the Florida Trust Code. For example, an agreement cannot modify or terminate a trust in a way or manner prohibited by the Trust Code. Because the Florida Trust Code is complex and because there is often a lot of money and/or valuable property at stake in a dispute over a trust, it is important that someone with experience helps negotiate and write a non-judicial settlement agreement or there is a risk that a settlement agreement will not be valid. If a settlement agreement is not valid, it will have absolutely no effect on a trust and the individuals affected by the trust. In other words, an invalid non-judicial settlement agreement is not worth the paper it is printed on.

If you or someone you know is involved in a dispute over a trust and lives in the West Palm, Fort Lauderdale, or Miami-Dade area, the experienced legal team at Chepenik Trushin is ready, willing, and able to assist in all aspects of the dispute, including non-judicial settlement agreements. Please do not hesitate to contact us for an initial first consultation.

Charitable Trusts in Florida

Fri, 08 Jul 2011 08:13:08 -0500

In addition to utilizing a trust to provide for your family, you can also create a trust to benefit a charitable organization. To qualify as a charitable trust, the benefiting party must be a charity pursuant to section 501(c)(3) of the Internal Revenue Code. Naturally, such entity must operate solely for religious, educational, and other charitable purposes whereby zero net earnings of the entity benefit any private shareholder or individual. Because donations to charitable organizations are tax deductible, a charitable trust serves as an easy way to provide for a charitable cause and achieve tax benefits.

Florida law, as emulated in section 736.1210 of the Florida Probate Code, encourages the use of charitable trusts and works to preserve the intent of any individual that seeks to provide for a charitable beneficiary through a trust. This intent of the Florida legislature is carried out further by section 736.0405 of the Florida Probate Code, which states that if the trust itself does not name a specific charity as a beneficiary, a court may select a charitable purpose or beneficiary. Of course, the court must consider the settlor’s intent wherever applicable when determining which charity will benefit under the trust.

Instead of creating a trust solely for the benefit of a charitable organization, many individuals name charities as beneficiaries to the remainder of the trust’s assets after the interests of other beneficiaries have terminated. For example, a trust may provide for one’s children, during their lifetimes, with the residuary of the trust going to a charity upon the passing of the children. This form of a trust is considered a split interest trust, in that it serves a purpose in addition to providing for a charitable purpose. Trusts can also be created to benefit one or more private foundations as well.

The trustee of a private foundation trust or a split interest trust owes fiduciary duties to both the settlor and the charitable beneficiaries. Under section 736.1204 of the Florida Probate Code, a trustee may not deprive the trust of any “tax exemption, deduction, or credit for tax purposes.” This section of the Code details the extent to which the trustee of a charitable trust must ensure that the trust is not subjected to unnecessary taxes under the Internal Revenue Code. Section 736.1206 of the Florida Probate Code also provides that the trustee of a trust created solely for charitable purposes may amend the trust instrument, with the consent of the charitable organization(s), so that it complies with section 736.1204(2) of the Code (“trustee of a private foundation trust shall make distributions at such time and in such manner as not to subject the trust to tax under s. 4942 of the Internal Revenue Code”). In other situations, the trustee may amend the trust to comply for tax purposes with the consent of the state attorney.

If you or someone you know wishes to create a trust for the benefit of a charitable organization and live in the West Palm, Fort Lauderdale, or Miami-Dade area, feel free to contact the experienced attorneys at Chepenik Trushin who can help you with your estate planning or probate litigation needs. Please feel free to contact us for an initial first consultation.

Rules of Construction for Trusts and Impact of Florida Law

Thu, 23 Jun 2011 13:51:14 -0500

In Florida, the intent of a settlor (the person who creates a trust) proves extremely important with respect to the handling of the trust’s assets. Florida Probate Code section 736.1101 states that “[t]he intent of the settlor as expressed in the terms of the trust controls the legal effect of the dispositions made in the trust.” Thus, according to Florida law, it is the intent “as expressed in the terms of the trust” that is the benchmark to follow. This can become an issue should any disputes arise regarding the rights of trust beneficiaries after the settlor has passed. Because the distribution of trust assets will follow the express terms of the trust itself, it is very important that the settlor clearly convey his or her intentions to the attorney who drafts the instrument. After all, once the settlor passes away, he or she can no longer amend the terms of the trust to more readily convey his or her intentions.

While the terms of a trust typically prevail over any requirement stated in the Florida Probate Code, there are a few exceptions whereby Florida law controls the construction of a trust. For instance, Florida Probate Code section 736.0105 requires that all trustees act “in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.” Thus, any power that purports to allow a trustee to act in any manner, regardless of whether it is in good faith or not, will be disregarded. Moreover, section 736.0105 also states that a trust cannot have a purpose that is unlawful or contrary to public policy. The requirement for a trust to be in accordance with public policy supports section 736.1104 of the Code, which states that a beneficiary who intentionally kills the settlor of the trust is not entitled to any trust interest if said beneficiary is convicted of murder under a court of law.

The Florida Probate Code will also govern a trust’s provisions in lieu of the settlor’s intent in the event of the settlor’s divorce. Section 736.1104 of the Code states that, unless the trust provides otherwise, any provision of a revocable trust that affects the settlor’s spouse becomes void should the spouses divorce. Clearly, this section of the Code demonstrates another way in which Florida law will step in and modify the terms of the Trust. As a matter of public policy, these situations are reasonable and likely have the effect of carrying out the settlor’s intent once he or she has passed.

If you, or someone you know, live in the West Palm, Fort Lauderdale, or Miami-Dade area and wish to create a trust in order to provide for the distribution of your estate, the team at Chepenik & Trushin will help you with any such estate planning needs. Please feel free to contact us for an initial first consultation.

Duties of a Personal Representative in Florida

Fri, 17 Jun 2011 10:08:32 -0500

The appointed personal representative of a Florida resident’s estate, i.e. the individual placed in charge of distributing the assets of the estate, must abide by certain fiduciary duties that he or she owes to the beneficiaries (the individuals named to receive assets) of the estate. Suppose you are named a beneficiary of your recently deceased grandfather’s estate whose domiciliary was in Miami Beach. Under Florida law, the personal representative must abide by certain duties to ensure that you receive the assets that the estate leaves in your name. Florida Probate Code section 733.602 states that a personal representative has a duty “to settle and distribute the estate of the decedent in accordance with the terms of the decedent’s will…as expeditiously and efficiently as is consistent with the best interests of the estate.”

A personal representative necessarily enjoys broad powers to administer an estate of a decedent. Pursuant to Florida Probate Code section 733.608, the personal representative holds all of the “real and personal property of the decedent, except the protected homestead” and “the rents, income, issues, and profits” from any such property. The personal representative then uses these assets to pay specific devises (set amounts of gifts or money), the family allowance, any elective share, estate taxes, and other expenses incurred during the administration of the estate. Additionally, the personal representative distributes any assets to named beneficiaries of the will in accordance with the will’s terms.

Thus, a personal representative must take actions necessary, but in accordance with the law, to effectively administer a decedent’s estate. However, if you are a beneficiary of an estate and feel that the personal representative is not acting in the estate’s best interests, you may have some recourse. Under Florida Probate Code section 733.504, a personal representative may be removed for various reasons. The reasons provided for under the Code include, but are not limited to, the following: (1) a court determination that the personal representative is incapacitated, (2) physical or mental incapacity that renders the person unable to carry out his or her duties, (3) wasting or maladministration of the estate, (4) conviction of a felony, and (5) having conflicting or adverse interests against the estate that will interfere with its administration. Therefore, it is important for you, as an entitled beneficiary, to make sure that the personal representative is not in breach of any of his or her duties owed to you or any other beneficiary under the will.

If you or someone you know lives in the West Palm, Fort Lauderdale, or the Miami-Dade area and is a beneficiary of an estate who believes that the personal representative is not properly handling the administration of the estate, the probate litigation team at Chepenik Trushin will help you obtain the proper legal relief. Please feel free to contact us for an initial first consultation.