Author: CSG Firm

MOTHER’S DAY-A Little Law & A Little History

Posted by CSG Firm on

There are over 1,500 national holidays. On May 8, 1914, the United States Congress passed a law designating the second Sunday in May as Mother’s Day. Specifically, President Woodrow Wilson signed a bill designating the second Sunday in May as a legal holiday to be called “Mother’s Day” …dedicated “to the best mother in the world, your mother.” It is the second largest consumer spending holiday in the United States according to the National Retail Federation. 

The creation of a national Mother’s Day is attributed to three women, i.e., Ann Reeves Jarvis, Julia Ward Howe, and Ann’s daughter, Anna M. Jarvis.

Eventually, Anna Jarvis from Philadelphia wished to memorialize her mother’s life and started campaigning for a national day to honor all mothers.

Her efforts came to fruition, when in May of 1907, Anna Jarvis memorialized her mother’s lifelong activism with a memorial service held at the Methodist Church in Grafton, West Virginia, where Anna’s mother had taught. The following year, on May 10th, a Mother’s Day service was held at that same church to acknowledge all mothers. Consequently, the idea that the second Sunday in May be set aside to honor every mother, whether living or deceased, was born.

Ms. Jarvis’s efforts came to the attention of the mayor of Philadelphia, who proclaimed a local Mother’s Day. While West Virginia was the first state to officially adopt the holiday, others followed suit.

From the local and state levels, Ms. Jarvis later traveled to Washington, D.C. where federal politicians lent verbal support.

Proclamation of the day by the various states spurred Representative J. Thomas Heflin of Alabama and Senator Morris Sheppard of Texas to present a joint resolution to Congress that Mother’s Day be observed nationwide. The resolution was passed by both houses.

Historically, the tradition dates to pagan celebrations in ancient Greece in honor of Rhea, the mother of the gods. In Rome, as well, Cybele, a mother of goddesses, was worshipped as early as 250 B.C. In the 17th Century, England celebrated a day called “Mothering Sunday” on the fourth Sunday of Lent.

One can include their mother-in-law on this date as well. However, National Mother-in-Law Day, which is modeled after Mother’s Day, is officially celebrated on the fourth Sunday in October. That occasion honors the other mother in many people’s lives. Gene Howe, the editor of an Amarillo, Texas newspaper, started the holiday in honor of mothers-in-law. It was first celebrated on March 5, 1934, in Amarillo, Texas. 

Through the years, celebrants observed the occasion on various days. In later years, the Mother-in-Law Day Committee developed and selected honorees each year. Then in the 1970s, the American Society of Florists proclaimed the last Sunday in October to be National Mother-In-Law-Day. Since that time, the date has been observed accordingly.

The foregoing is merely a summary of the holiday. If you should have any legal concerns or issues, please call the attorneys at the law firm of CASERTA & SPIRITI.

MEMORANDUM AS TO DISPOSITION OF TANGIBLE PERSONAL PROPERTY ATTACHED TO A FLORIDA WILL

Posted by CSG Firm on

A Memorandum as To Disposition of Tangible Personal Property is a document made part of a Last Will & Testament and makes specific gifts of the deceased’s or testator’s tangible personal property to take effect at death and can be handwritten by said person without the need of an attorney’s assistance. As stated therein, the Memorandum shall have no significance apart from its effect on the disposition of the subject individual’s property by the aforementioned Will and shall be attached to and kept for safekeeping with such Will. The person creating the Will expressly reserves the right to revoke or alter the Memorandum at any time prior to death and does not intend by this Memorandum to create any rights, whether by anticipation or otherwise, in any of the persons mentioned herein as testamentary donees or beneficiaries of the subject individual’s property. In other words, it is a supplemental document that must be referenced in the Will or living trust and allows one to specify the items of personal property they wish to leave to loved ones. A properly prepared personal property memorandum will be specifically referenced in one’s trust or Last Will and will be prepared in the testator’s own (preferably legible) handwriting and signed. It could be typed as well. No witness or notary signatures are required. The memorandum can be revised, amended, or replaced as often as the testator desires.

The role of this document in Florida Estate Planning is to reduce the risk of family conflict by preparing a personal property memorandum as a supplement to one’s Will. A personal property memorandum, which is merely a signed list identifying specific items and intended recipients, provides a means of clearly describing who gets what. In doing so, the memorandums become an important safeguard against estate or family conflict.

When it comes to preparing a personal property memorandum in Florida estate planning, one cannot just write out a list of whom a person wants to receive particular items and expect it to be enforced by a Florida probate court. A personal property memorandum needs to satisfy certain requirements set forth by statute, Fla. Stat. §732.515.  One first needs a valid Florida Last Will & Testament (or trust instrument), which mentions one’s intention to create and incorporate a separate list of tangible personal property. The said memorandum or list can be the last page of the Will or trust or a separate document.

In order to be effective, a personal property memorandum must be signed by the testator (i.e., the individual whose Will is being supplemented). Florida’s personal property memorandum statute does not technically require the list to be dated, but dating is a better idea, as it tends to avoid confusion if the list is amended or revised later. More importantly, a personal property memorandum must also identify with reasonable certainty the items to be distributed and the individuals who will receive them. One needs to ensure each individual item and beneficiary can be readily identified without any further explanation.

One of the biggest advantages of using a MEMORANDUM AS TO DISPOSITION OF TANGIBLE PERSONAL PROPERTYis that it can be amended without going through all the formalities for creation of a Will or codicil. Consequently, if a person acquires new personal property or transfers existing property (or just changes their mind about the disposition), they can alter or revise the memorandum later on. In the alternative, they can just write up a new memorandum to supersede an earlier version, which is one of the reasons it is important to date the document.

However, if the actual Last Will and Memorandum both happen to include the same item, the Florida Probate Code says that the subject Will takes precedence even though the Memorandum was created later.

In Florida (as well as most other states that allow them), these memorandums can only be used to distribute “tangible personal property.”  Therefore, their use excludes real estate since real estate is not personal property. â€œTangible” means things that you can hold or touch, i.e., trinkets, antiques, clothing, jewelry, furniture, musical instruments, possibly firearms, and possibly pets.

HOWEVER, one may not be able to simply give a beneficiary a firearm as stated in a Will. There are situations in which their taking possession of the firearm or gun would be illegal, such as if they are a convicted felon. The same can be said for the personal representative’s or executor’s possession of the firearm. The personal representative is not exempt from the law, because they are acting on behalf of an estate. If one is not entitled to possess a gun, then speak with a specialized attorney with experience in firearms immediately about ensuring the firearms are stored in a lawful place during the probate process. As a personal representative, carefully review the decedent’s estate planning documents, including whether they have a gun trust, and speak with an experienced probate attorney before doing anything with the decedent’s firearms. Numerous federal and state laws regulate the sale or transfer of firearms, making the gifting process complicated. One cannot convey a gun improperly or to an unlawful recipient, which may violate the law. Further, if the decedent did not plan for how their guns were to be handled, the personal representative will need to know how to dispose of them properly and legally. The foregoing requires a more in-depth discussion, which may be dealt with at a later time.

On the other hand, â€œintangible” property cannot be distributed using a personal property memorandum. Accordingly, items such as bank or investment accounts, securities, insurance policies, and intellectual property are excluded. Also, cash does not qualify as “tangible” personal property. Promissory notes or other evidence of indebtedness do not qualify as well.

Another exception built into Florida law applies to property “used in business or trade,” which is not eligible for inclusion in a personal property memorandum. Said regulation means that certain items might be includable in one context but not in another. Tools you keep in the garage for household projects can probably be included in said memorandum, but those same tools might be ineligible if you use them in a business endeavor.

One of the most valuable personal property items that most people own, i.e., motor vehicles, should not be listed in the subject memorandum. The reason being those motor vehicles have certificates of title, and a vehicle’s title is what determines who owns it. Again, since a vehicle or boat has a certificate of title, it would be preferred to include said items in the Last Will or a Florida revocable trust.  When the time comes, the personal representative or trustee signs over the title to the beneficiary. One can arrange to transfer an asset outside Florida probate through some type of joint ownership with a right of survivorship.  When an asset is jointly owned with a right of survivorship, full title or ownership automatically vests with a surviving co-owner upon the other owner’s death.

Even if there is no title, one can better dispose of particularly valuable personal property through a Will rather than the aforesaid memorandum even though the subject item qualifies as “tangible personal property.”  An attested Will provides more certainty and is less susceptible to ambiguity or tampering than a Memorandum, which can be informally revised. Therefore, if a person’s estate includes heirloom jewelry, for example, which might be considered expensive, it might be preferable to address it within the actual Will. If one is unsure whether an item is appropriate for a personal property memorandum, one should discuss it with an experienced Florida estate planning attorney.

A Florida personal property memorandum does not need to be a sophisticated legal document. A memorandum should have a brief description clearly identifying the document’s purpose, the date and the testator’s signature, and a list of items and beneficiaries. Each item needs to be described with certainty and beneficiaries should be sufficiently identified including the full legal names of recipients to eliminate any confusion. 

One of the primary purposes of any estate plan is to avoid family conflict.  Most estate plans adequately address large assets, but the smaller personal items may cause conflict. In Florida, incorporating a memorandum of personal property into the Last Will & Testament, which distributes tangible items with sentimental or some economic value, and which may not be included in the Will itself, is an effective way to avoid future battles among family members.

If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

POWERS OF ATTORNEY & THE GOVERNMENT

Posted by CSG Firm on

Powers of Attorney (POA) are prepared under state law and are not necessarily binding on federal agencies.

The Social Security Administration does not honor durable powers of attorney. A representative payee manages benefit payments for beneficiaries who are incapable of managing their Social Security payments. One must contact their local Social Security office to apply to be a payee.

If one does become representative payee for their parents, their Social Security payments should not go into the children’s account. One should open a separate account to receive the said benefits that should have their parent’s Social Security number.

One can request the Social Security Administration (SSA), the government agency that disburses Social Security, to name, for example, an adult child as the representative payee for that elderly person.

As a representative payee, one is granted the power and the responsibility to manage that money for the parent, friend or loved one. The SSA requires all beneficiaries who are incapable of managing their own payments to have a representative payee.

While this authorization is necessary for many caregivers, it is worth noting that it involves a great deal of accountability. This position requires meticulous recordkeeping of all a beneficiary’s benefits and how they are used. In instances where there is not a family member or friend available to serve as a representative payee, the SSA will appoint a qualified organization to manage the recipient’s benefits  One can visit ssa.gov/payee to learn more about the Social Security Administration Representative Payee Program.

The Social Security Administration (SSA) requires representatives to be authorized to participate in a beneficiary’s affairs but does not recognize the POA designation. If you are trying to help a loved one with Social Security applications, claims or appeals, you will need to apply to be their authorized representative by completing the SSA-1696 Appointment of Representative Form. A representative can be a relative, friend, attorney, caseworker, or other qualified person, and the SSA will thoroughly vet this person before accepting their appointment. One can gather more information regarding an SSA Authorized Representative by visiting ssa.gov/representation.

When it comes to managing a loved one’s veterans’ benefits, there is yet another process that caregivers must go through. According to the U.S. Department of Veterans Affairs (VA), a Power of Attorney for finances is not a sufficient authorization for managing a veteran’s monetary benefits. If a physician or a court of law has determined a veteran (or surviving spouse of a veteran) to be incapable of managing their finances, the VA will call for the appointment of a fiduciary.

If possible, the beneficiary typically appoints the person they wish to serve in this capacity or role, and the VA conducts a thorough investigation of the individual’s qualifications. In cases where there are no suitable family members or friends available to serve as a fiduciary, the VA will appoint a qualified professional fiduciary or organization to fill this role. As with the SSA representative payee program, appointed VA fiduciaries must carefully record transactions, keep receipts, and provide accountings to the Veterans Benefits Administration. For more information on becoming a VA fiduciary for someone, visit benefits.va.gov/fiduciary,

Medicare cannot provide personal health information to a caregiver unless the beneficiary has submitted written authorization to the Centers for Medicare & Medicaid Services (CMS) or provided verbal permission over the phone, Medicare beneficiaries may be able to answer basic questions verbally thereby granting their caregivers authorization to discuss coverage details.

However, having a standing authorization on file with Medicare is a better practice. As with all legal authorizations, it is best to take care of the paperwork well in advance. The “1-800-MEDICARE Authorization” Form can be completed over the phone with the assistance of a customer service representative or by completing and mailing in a hard copy. Mailing in the paper form may involve several weeks’ delay before one is authorized to act on another’s behalf. If one is looking to assist a Medicare beneficiary file an appeal or complaint or request a coverage determination, they will need to be officially appointed as their representative.

The Medicare Appointment of Representative form (CMS-1696) is very similar to the SSA application.

Private insurance companies often have their own versions of these forms as well, so it is best to inquire with insurers about their specific authorization requirements.

The Office of Personnel Management and the Railroad Retirement Agency also appoint representative payees and the responsibilities are virtually the same.

As a representative payee, one only has the power to manage Social Security or other applicable agency benefits for the parent, friend or loved one (the beneficiary) and not any other money or property for that person unless some other documents, such as Powers of Attorney, or the subject government agency appoints them to do so.

Family caregivers should consider investing in a copier or printer. They will constantly need more copies of POAs and other documents to prove they are legally authorized to access sensitive or confidential information, speak with important entities and/or medical providers and make decisions about a loved one’s finances and/or care.

When advocating for a loved one, many situations can be resolved practically and amicably by a combination of goodwill, clear explanations and reasonable questions posed to the proper people. One can request to speak with a supervisor. If one is not available, or if rational discussion proves ineffective, one may invoke their right to contact an attorney, a political representative, or a bureaucrat at the state or federal level who oversees or regulates that person, organization, or industry.

Taking responsibility for someone else’s well-being is an important and often complex task. One should learn and know their rights, the rights of the care recipient and the responsibilities involved. Consequently, the sooner a caregiver and their loved one get all the proper documents in place, the more likely they will avoid problems in the future. If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

Examinations Under Oath (EUO) in Florida

Posted by CSG Firm on

After a motor vehicle accident involving injuries, an Examination Under Oath (EUO) provides an opportunity for a representative of an auto insurance carrier to question their insured under oath in the presence of a court reporter.

The EUO is a formal process used by insurance companies to gather more information about a claim, prevent fraud, or allow the insured party to prove their losses if there is missing or destroyed evidence.

Most insurance policies require an insured to submit to an Examination Under Oath as part of the insurer’s investigation prior to deciding coverage. The said policies allow carriers to examine their insureds and omnibus insureds, i.e., individuals not named but covered under the subject policy. Any failure by the insureds to cooperate with this policy condition or term may result in a denial of coverage.

An EUO is a process by which the insured is asked a number of questions by the insurer’s lawyer, under oath, about the subject claim. The Florida Rules of Civil Procedure do not apply to Examinations Under Oath. Since an EUO may be conducted by an attorney for the insurer and involves sworn testimony regarding the insured’s claim, it is recommended that all insureds have an attorney present. The insured’s attorney will be able to keep an eye on the propriety and scope of the insurer’s conduct and questions to protect the insured’s interest in the claim.

Since an EUO is a sworn statement which can be used by the insurer in evaluating the claim, and in a future court proceeding, it is vital that an insured answer all questions truthfully. An insured should refrain from speculation or exaggeration in any way. If one does not recall or know the answer to a question it is acceptable to simply say “I don’t recall” or “I don’t know.”

An insured should only speak if there is a question pending and only address that question. One should not volunteer additional information. Even though it may seem like one is being cooperative, this conduct often provides the insurer with more information on which to ask further questions and delve deeper into the subject claim. One must consider that the insurer’s goal is to not have to pay the claim. The more information one volunteers the greater basis for a potential defense against paying the claim.

An Examination Under Oath can last as little as one (1) hour and as long as eight (8) hours. The duration of the EUO is often unknown at the outset and depends on a number of factors. Some factors may include who the insurer has as their attorney, how complicated the claim may be, how many insurance benefits are being claimed, the age of the claim, as well as how many prior claims the insured may have, among others.

While most EUOs do not last the entire day, the insured should be prepared to be available for a full day as the insurer has the right to use the entire workday to conduct its EUO. Failure to attend an EUO for a reasonable period of time may provide the insurer with grounds to deny the claim. Consequently, an insured should plan to be available for a full day.

A policyholder or insured should prepare for an EUO. It is recommended that a policyholder or insured create a timeline for the claim. While an insured need not know the precise dates or amounts claimed for specific damages, an insured should be familiar with the events of the claim, the parties involved, what actions have been taken since the loss and essentially have a reasonable working knowledge of their claim.

The insurer will often require the insured to produce documents prior to an EUO. The insurer will often send a schedule or exhibit requesting specific documents or documents that relate to a specific area of inquiry on the subject claim. An insured should perform due diligence in trying to find and produce as many documents as possible that are responsive to the insurer’s requests.

Copies of all responsive documents should be sent to the insured’s attorney well in advance of the EUO so that the insured’s attorney has sufficient time to review the documents prior to producing any documents to the insurer.

An insured is not required to search for documents. An insured is only required to produce responsive documents that are in their immediate possession.

There are often issues as to which questions an insured must answer and which questions, or type of questions, an insured can refuse to answer. The general rule is that an insured must answer all questions relating to the subject claim and an insured should try to answer all reasonable inquiries posed by the insurer. One can ask the examiner to rephrase a poorly worded or unclear question or ask them to repeat the question if they missed it.

The pervasive thread running throughout Florida case law or court decisions is that the policyholder or insured may not refuse to answer questions on the actual loss itself or circumstances surrounding that loss. If the question is material to the investigation, i.e., pertaining directly to the loss or surrounding circumstances, then the policyholder or insured must answer the question or risk violating their insurance policy provisions.

If there are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs!!

A QUICK OVERVIEW OF A FLORIDA ACCIDENT CASE

Posted by CSG Firm on

The following steps are important if you are involved in an accident which causes injury in the state of Florida.

 

An injured party should first seek medical treatment even prior to contacting a lawyer.

Even if a person does not believe, at first, that they are seriously injured, one should visit the ER Dept. of a hospital, Urgent Care, or a clinic to make sure they are well. Seeking medical attention has another advantage. When injuries are timely recorded, then said documentation can be used in and to substantiate a personal injury claim or lawsuit.

One should gather sufficient information to make a claim or sue the correct driver or negligent party or at fault party in a motor vehicle or other type of accident. Needed information includes but is not limited to name and contact information of the other responsible party (driver, owner, etc.) as well as the car’s make and model, license plate number, etc., check the intersection or nearby businesses with security cameras. One should find out if there are any Witnesses and get their names and contact data.

Thereafter, file a Police Report. Even if an involved party does not have all the necessary information, the police can often use their expertise to track down the driver, owner, etc.

 

Keep Records of any expenses resulting from the accident, such as property damages, rental bills, medical services rendered and reports of any injuries or a medical diagnosis, and insurance.

 

Finally, contact a trusted or recommended and experienced Florida Personal Injury Attorney. Get at least a consultation with a local Personal Injury Attorney regarding the details of one’s case. The Attorney and legal staff will evaluate the case and help determine whether there is negligence on the part of the other party involved; the extent, severity, and cost of injuries sustained based on medical reports or records; and consider legal options in seeking compensation for the injuries and damages incurred from the subject accident

.

A party to an accident should ask their lawyer any questions about their case both initially and throughout its progression.

If one has suffered injury or illness related to their personal injury claim, they should keep all medical appointments and follow-ups. If an injured party cancels or misses appointments, the responsible party’s adjuster or lawyer can use it against them, claiming the injuries are not as severe as claimed or one is not doing all they able to properly recover. One should tell their physician about any symptoms and follow all medical advice related to their personal injury claim.

As far as things not to do, they include but are not limited to limiting discussions regarding their case to their own Lawyer, who is their advocate and guide. Discussions with insurance adjusters, defense attorneys, and other outside parties may compromise the personal injury case.

 

Avoid posting online information regarding the subject case on social media, particularly when the case is still pending, since any information posted to social media such as Instagram, Facebook, Twitter, and elsewhere can be used out of context by the liable party’s defense counsel and insurance adjusters to minimize the legal claim or even damage the case.

 

Following an accident, one will customarily be questioned or interviewed by an insurance representative or investigator regarding the incident. In many cases, those interviews, statements, or conversations will be recorded, making it important that the injured party only provide the basics, i.e., name, address, date and time of accident and injury and share the rest of the details with their attorney.

If an individual is an accident victim who was injured in Florida, or has questions on their personal injury case, please contact one of the experienced attorneys at the law firm of CASERTA & SPIRITI.

PERSONAL INJURY SETTLEMENTS & SUBROGATION RIGHTS IN FLORIDA

Posted by CSG Firm on

In a settlement, the injured person agrees to a payment amount from the insurance company or other driver or at fault party, and in exchange gives up the right to pursue any further legal action in connection with the accident or incident.

The amount one recovers reflects the full settlement sum minus attorney fees, court costs, liens, and other expenses. Receiving the settlement check usually marks the end of the personal injury case.

In most cases, injured parties have incurred medical bills which may have been paid by insurance, Medicare, Medicaid, Worker’s Compensation or may remain unpaid. What concerns most clients is not the total recovery or settlement amount but the net proceeds they will receive after bills, liens, expenses, and fees are paid. Attorneys should negotiate with not only the at fault party or their liability insurance but also lienholders as well as medical providers (physicians, clinics, MRI facilities, hospitals, etc.) who provided care for the subject case.

Most medical treatment provided and paid by an insurance will have a right of subrogation or reimbursement when the case settles, except for Personal Injury Protection (PIP Insurance) in a motor vehicle accident. The foregoing includes traditional health insurance carriers, Worker’s Compensation and others like Medicare, Medicaid, or the VA. Temporary disability insurance as well as Med-Pay auto insurance coverage may also have a right of reimbursement.

The reasons a case progresses slowly can be based on several general points. Acase may be delayed by legal or factual issues. The case may involve significant damages and substantial compensation. The client/patient has not reached maximum medical improvement or has not completed treatment from the injuries sustained in the accident 

It can take anywhere from a few months to years for an accident case to settle. There may be much for each side to investigate, and if an innocent party suffered extensive injuries and property damage, this scenario could also explain why the settlement process is lengthy. Further, negotiating liens and medicals bills can sometimes take the same or longer time than the underlying case, particularly when the policy limits are low, and damages are large.

The reimbursement right of each entity can differ significantly considering how lien rights are calculated and/or protected by state or Federal law or statute and by the circumstances of each individual case. For example, Federal law provides protections to certain insurance companies governed by ERISA law, which provides them the right to insist on their full lien recovery from the settlement. Certain public hospitals have greater protections under state law as well.

A Settlement Closing Statement itemizing the Fees, expenses & liens should be given to the client prior to the signing of a Release of Claims so that they are fully informed as to what the final total amount recovered would be as well as their net recovery.This document is prepared by the client’s personal injury attorney and must be reviewed and approved by the client before any money can be disbursed. The closing statement will set forth the funds that will be going to the client’s personal injury attorney for his or her fees, the costs involved in the litigation or case, the money that is being paid to providers, and the amount of money that will be disbursed to the client. Often this document is signed as well as the release when the settlement funds are received or prior thereto.

Once the Release of Claims and Settlement Closing Statement are signed and the insurance draft or check is received and then deposited in the law firm’s Trust Account, the case against the responsible party is concluded, if pre-suit or a dismissal is filed with the Court in the lawsuit unless the case went to verdict and/or a judgment was obtained. Thereafter, once the settlement check clears the bank, all liens must be resolved and paid as well as the attorney’s fees and expenses, and then, the net proceeds are paid to the client. At that point, the subject case should be concluded.

If you have been injured in an accident or have any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI.

LADY BIRD DEEDS IN FLORIDA (A QUICK REVIEW)

Posted by CSG Firm on

Lady Bird or Ladybird deeds are recognized in a number of statesincluding Florida. Each state has its own requirements for validity, so it is important to use a lady bird deed form specifically designed for use in the state where the property is located. The lady bird deed in Florida allows one to avoid probate court, reserve powers to the current owner, maintain Medicaid eligibility, and qualify for the Florida Homestead exemption.

A lady bird deed is a way to transfer property to someone else outside of probate while retaining a life estate in the property. This type of deed got its nickname when former President Lyndon Johnson used it to convey real property to his wife, Lady Bird Johnson.

Specifically, a lady bird deed is a transfer of property to another with a reservation of a life estate, which means a person can transfer property and retain ownership in the subject property until death, at which point it will then transfer to the other.  With the Florida lady bird deed, a current owner or owners canconvey tothemselves and/or retain a life estate interest (enhanced life estate) in their property. A life estate is a right to live in the property until death. When they die, the real property passes to their beneficiaries designated in the lady bird deed, called the remaindermen.

It is also known as an enhanced life estate deed, which allows the estate holder to convey or mortgage the property without the approval of the remainderman. This gives the property owner of the life estate flexibility during the owner’s lifetime.

The single biggest advantage to securing a Lady Bird Deed in Florida is that, after death, the owner’s estate can avoid probate, and for now, the remaindermen or beneficiaries get the property at a stepped-up basis regarding capital gains.  When figuring capital gains taxes, property transferred in a lady bird deed gets taxed on the value of the property on the date of the owner’s death, instead of the owner’s tax basis when purchased. This usually results in a much lower tax. During the current owner’s lifetime, it does not affect Medicaid eligibility, and the current owner remains eligible for the Homestead Exemption. While a lady bird deed may cost a little more than another type of deed due to its potential complexity, it is still less expensive to obtain than a trust or going through probate.  Also, to record a deed, documentary stamp taxes are ordinarily paid. With a Florida lady bird deed, there is no need to pay the taxes immediately. The reason for this is that there is no immediate transfer of ownership. The taxes may be due, however, when the person holding the estate passes away.

If you should have any additional questions or would like to discuss your situation, concerns and needs, please call an Attorney at CASERTA & SPIRITI.

GAP INSURANCE & A TOTAL LOSS VEHICLE FROM A FLORIDA AUTO ACCIDENT-WITHOUT IT, YOU COULD OWE MONEY

Posted by CSG Firm on

Many Florida residents are surprised to find they still owe money on their car loan after insurance pays for their total loss vehicle. How does that happen? The answer is the insured or claimant still owes more money than the motor vehicle or automobile was worth at the time of the accident. Insurance pays for a total loss vehicle (i.e., when value is less than the cost to repair) the Insurance company pays its fair market value, not the amount owed on the loan or what it will cost to get another similar or replacement vehicle.

As understood by most, a motor vehicle loses a significant amount of its value when merely driven off the sales lot. How can one be protected? GAP (Guaranteed Auto Protection) insurance is a type of insurance coverage which pays the difference in these situations between what one owes the bank or lender on their auto loan and what the car was worth at the time of the subject accident.

Generally, GAP is not prohibitively expensive and can be a major protection if involved in a motor vehicle accident and one has a financed car. When insurance pays the value of a depreciated vehicle, which was financed, GAP insurance pays that difference on the remaining balance of the loan. No Florida resident wants to pay for a vehicle they cannot use.

Specifically, Gap insurance in Florida works the same way as GAP insurance in the rest of the U.S. It pays the balance remaining on a car loan or lease contract after a liability, comprehensive, or collision policy coverage pays out the actual cash value of a totaled vehicle. The state of Florida does not require any driver/owner to carry GAP insurance. However, certain lenders in Florida may require customers to carry it if they get an auto loan or lease.

Various companies, including banks and dealerships, offer GAP insurance in Florida. While an individual should take their time deciding which one is right for them, one can also have confidence that it can provide a major protection under their particular circumstances at the time of an unfortunate accident.

It is worth noting that GAP coverage is usually cheaper to purchase from an insurance company than a dealership.

GAP insurance takes about 5-45 days to pay the policyholder after an accident insurance claim is filed. For drivers to receive a GAP insurance payout, the subject vehicle first needs to be declared a total loss, and the insurance company needs to accept the claim.

Again, if a person financed a vehicle, Florida GAP insurance covers the outstanding balance that remains in the event that their motor vehicle is totaled, and they owe more on the auto loan than the actual cash value of the vehicle. GAP insurance in Florida can be purchased from an insurance provider, the dealership, or even stand-alone companies. However, the cheapest Florida GAP insurance rates come from insurance providers at an average of $5.00 per month or $60.00 annually, subject to inflation.

Finally, one can drop GAP insurance from their Florida auto insurance policy after a sufficient payoff of the applicable loan, so the specific vehicle is worth more than the remaining loan balance, or at the very least, when the said loan is paid off.

If you should have additional questions, please contact your insurance agent, insurance carrier, dealer, lender or one of the attorneys at CASERTA & SPIRITI before an auto accident occurs.

TIMESHARES IN FLORIDA

Posted by CSG Firm on

Florida is the home to over 350 timeshare resorts, each offering an atmosphere of luxury and comfort for vacationing. Florida has over 8 thousand miles of coastline, making it the perfect destination for a beach getaway.

A timeshare is a vacation property arrangement that lets a person share the property cost with others to guarantee time at the property. However, what is not mentioned are the ever-increasing maintenance fees and other incidental costs each year that can make owning one intolerable.

Legally, a timeshare is a form of fractional ownership in a property, typically in a resort or vacation destination. For example, if a person purchased one week at a timeshare condominium each year, they own a 1/52 part of that unit. Timeshares may be evidenced by a deed (a purchase of an ownership interest in the property) or just a contract (a leasing of the right to use the property).

Usually if one purchases a deeded timeshare, there is no expiration date. This means one is paying the maintenance fee indefinitely, even if the property is not used annually.

There are two basic types of timeshares: (1) the owner of the unit owns a piece of the real estate and (2) the owner of the unit has a lease or right to use the unit for the specified time. If a person owns a unit of a condominium for a week, then they own real estate.

When a timeshare property is owned by deed (deeded ownership), it is considered real property. As such, many real estate laws (though not all) apply to timeshare owners in the same way they are to homeowners. For instance, owners of deeded timeshares must pay property taxes on their vacation real estate. A timeshare estate is a parcel of real property under the laws of the state of Florida.

RTU timeshares are non-deeded and gives an individual the right to use a unit for a set amount of time. This means that, unlike a deeded timeshare contract, one does not actually own the property. The number of years each timeshare contract lasts depends on the resort and brand.

Having a deeded ownership means the subject timeshare is one’s property and have continuing obligations. One can enjoy it with family or friends, rent it out to other vacationers, and/or pass it down to relatives when done using it or after death.

When the owner dies, the timeshare becomes part of their estate. The inheritors of the timeshare become the new owners, and they are compelled to take over the timeshare fees.

Timeshares can pass by Will, Trust or Deed including a Ladybird deed.

In brief, one can refuse to inherit a timeshare. While the laws for rejecting an inherited timeshare can vary from state to state, the actual process will be the same and is widely known as Renunciation of Property.

However, in the case of the owner’s death, a timeshare becomes part of the estate, and therefore, the obligations attached to it are passed onto the next-of-kin or the beneficiary of the estate. Further, depending on the fees and any existing payments, the timeshare can either be a welcomed gift or a financial nightmare.

On average, it costs between 5 to 6 thousand dollars and takes about 12 to 18 months to get out of a timeshare contract using a timeshare exit company or attorney. However, the cost and the timeframe can vary depending on a number of factors including, how many contracts are attached to a timeshare.

Again, there are two distinct types of timeshare contracts one can purchase: a deeded ownership and a Right to Use timeshare. With a deeded timeshare, you own an actual fraction of the property through a deed. Right to use (RTU) gives a person the right to vacation at the property.

Once the owner of a timeshare dies, the timeshare is now subject to probate. Having a Last Will & Testament does not avoid probate, but rather, it instructs legally how the assets (such as the timeshare) should be distributed.

What does Fee Simple mean? Fee Simple is just another way of saying that a timeshare property is “deeded.” A deed is a legal document which provides the title to a timeshare property and grants official ownership rights. Fee Simple is regarded as the preferred type of vacation ownership.

Timeshare agreements usually contain a “perpetuity clause,” saying that the timeshare isvalid for the lifespan of the original owner. When the owner dies, the timeshare becomes part of their estate. The inheritors of the timeshare become the new owners, and they are obligated to take over the timeshare fees.

With approximately 10 million timeshare owners in the U.S. and annual revenues topping 10 billion dollars, vacation ownership is clearly an enormous business. Florida is one of the leading states in terms of the number of timeshares and the fact that several of the largest timeshare companies have their headquarters in the state.

For many timeshare owners, however, ineffective estate planning – or no estate planning at all – leaves their heirs with an expensive and aggravating mess figuring out what to do with the decedent’s timeshare when they pass. This is because owners often think of their timeshare as personal property, like a car or boat, instead of what it really is – deeded real estate.

For most timeshare developers, part of the sales pitch is that the owner can pass their ownership onto their children when they die, which is true. However, because it is legally considered real estate or real property, the only way ownership can transfer from one person to another is via a deed or court order (i.e., probate).

Consequently, what happens when a timeshare owner dies without addressing their ownership in their estate planning? Like many timeshares, it ends up in probate. The probate process is not only expensive and time-consuming, but it also means creditors see it as an asset and can pursue it to settle any debts against the estate.

Furthermore, in Florida, any probate administration involving a Florida-based timeshare must take place in Florida, regardless of where the owner or the heirs live. That can add even more complexity, more aggravation, and more expense to the process. And while there are ways to legally refuse or disclaim an inherited timeshare, that procedure is also a complicated, paperwork laden process, which will require the assistance of an estate planning attorney.

Instead, a more effective course of action is to avoid probate entirely and include one’s timeshare interest in their estate planning, treating it like the deeded real estate that it is. This can be carried out in one of several ways:

  1. Distribution through a trust. With a living or inter vivos trust, one can transfer assets into the trust and continue to have access to them. The assets are then distributed directly to one’s beneficiaries after death, bypassing probate entirely. By placing one’s deeded timeshare into a trust, ownership will go to their heirs without having to hire an attorney and go through a probate court proceeding.
  • Adding heirs through a deed transfer. By having the names of one’s heirs added to the timeshare deed, they become co-owners by right of survivorship or as a type of designated beneficiary known as remaindermen. That means, when one dies, full ownership automatically transfers to the survivors. One may even want to transfer the deed entirely to their heirs prior to death. However, that will make them legally responsible for the maintenance payments and property taxes sooner than later.

Either of these options will effectively eliminate a great deal of frustration and legal expense for the heirs. Unfortunately, most timeshare owners are not aware of this issue and the property ends up going through probate. When that happens, the timeshare often does not seem worthy of the time and expense involved with the probate administration. Conversely, including it in one’s estate planning will allow the heirs to continue enjoying the travel benefits as part of deceased’s legacy.

If you have questions about how to keep a timeshare out of probate or would simply like to discuss related issues with a qualified estate planning and/or real estate attorney or how to protect your family and assets, contact the office of CASERTA & SPIRITI for a consultation.

PREMISES LIABILITY – NEGLIGENT SECURITY IN FLORIDA

Posted by CSG Firm on

Although slip, trip, and fall-down accidents are the most common types of premises liability cases, there are others, including shootings, stabbings, assaults, battery, and negligent security. 

Commercial premises liability occurs when property owners or occupiers are held accountable when someone is injured while on their property due to the negligence by the business or vendor owning, occupying, or controlling the subject property and can mean that a customer may be entitled to sue for compensation to cover injuries, pain and suffering, lost wages, and medical bills.

In Florida, victims in premises liability cases are classified in one of three (3) ways:

  • The highest duty of care is given to customers and invitees who are on the subject property with permission by the property owner, i.e., a person who is invited to land by the possessor of the land as a member of the public or one who enters the land of another for the purpose of business dealings with the possessor of the land and whose presence is mutually beneficial. 
  • A lower duty of care is provided for those who are on another’s property for their own purposes known as a licensee and are there for their own convenience or to advance their own interests. 
  • The third classification includes trespassers who receive little duty of care, i.e., a visitor who has entered or remained on the property without the property owner’s permission.

If one is injured from a shooting, assault, stabbing, or otherwise harmed while on someone else’s property, the key question is whether the property owner owes that person duty of care and what level. The property owner usually owes a person a duty of care if they were a customer, invited guest, or tenant. One is also owed a similar duty of care by the owner if said individual was making a delivery or a similar errand. 

Once duty of care to the victim by the property owner is established, negligence on behalf of the property owner must then be proved. It is proving the property owner was negligent or reckless and thereby caused a breach of their duty of care. 

In Florida, property owners are not necessarily responsible for every crime which occurs on their property. In fact, they are not responsible for protecting guests, visitors, or tenants from actions by third parties, unless the crime is foreseeable and could have been prevented with appropriate security measures. In other words, the property owner could be liable if the crime – shooting, stabbing, assault, and/or battery, among others – could have been anticipated or foreseen and they failed to take proper reasonable security measures or precautions. Even so, in many such incidents, responsibility may be difficult to prove in a court of law, particularly, if the subject incident is the first occurrence on the property.

Property owners can be held liable if they fail to provide adequate security measures to prevent this type of violence, as well as their response in reducing the number of victims in the event of an incident of violence. Other factors can also come into play in determining whether acts of violence could have been foreseen including area crime rates, such as, but not limited to:

  • The history of crime on the property;
  • The history of violence at similar properties;
  • A known shooter at the property;
  • Suspicions of security personnel; and
  • Existing security measures (security guards, metal detectors, properly marked exits). 

When it is evident that the property owner owed the victim a duty of care and was negligent, the next step is proving a cause-and-effect relationship between the property owner’s negligence and the act of violence which occurred on the subject property. 

Shootings, stabbings, assaults, and battery can and do occur everywhere from school campuses to shopping malls, and everywhere in between. The perpetrator is always responsible for the attack, but property owners may also be liable if they failed to provide the necessary security measures for patrons, guests, and tenants. Consequently, lawsuits against property owners, event organizers, or security companies may be filed based on Florida’s laws regarding duty of care.

If an individual or their family member becomes a victim of a shooting, stabbing, or assault and/or battery, they may have a claim against the owner of the property if the same was negligent in protecting guests, customers, or tenants. Property owners must maintain their property free from hazards and conditions which might result in or encourage violent crimes, but even so, their duty of care is limited to reasonable protection for foreseeable risks. 

In many cases, these lawsuits go forward successfully due to negligent security, since property owners owe a duty of care to residents, customers, guests, and visitors. This duty is to ensure the property is safe and secure. The following are several lack or failure of security measures that can be the basis of a claim for negligent security in a premises liability case:  

  • Inadequate security lighting;
  • Overgrown landscaping;
  • Faulty locks;
  • Lack of security cameras;
  • Lack of security personnel or proper fencing; and/or
  • No monitoring of secluded areas.

If you are injured while on someone else’s land or premises, promptly call the attorneys at CASERTA & SPIRITI for a free consultation regarding your potential case.