A Last Will & Testament is a document the allows an orderly disposition or distribution of assets after one’s death. To create an effective Will in Florida, the Testator or creator of the Will needs to comply with certain requirements.

Many states, if not all, require a person to be at least 18 years old and of sound mind to create a valid Will. The Testator must be aware of what they are doing and what document they are signing, and they must be mentally competent and cannot be adjudicated incompetent in a prior legal proceeding (i.e., a Court). Also, an emancipated minor can create a Last Will & Testament in Florida.

According to Florida Statute Section 732.502, every valid Will must be in writing (typed or handwritten) and signed by the testator in front of at least two attesting witnesses. Oral, videotaped or audio taped, and holographic (written entirely in the testator’s handwriting but not witnessed) Wills are not legally valid in the state of Florida. The Testator’s signature must be at the end of the document, and two attesting witnesses must also sign it in the presence of the testator as well as each other. Witnesses must be competent and at least 14 years old but preferably an adult. In Florida, notarizing a Will is not necessary to make it valid. However, a notary is required to make a Will self-proving, which means it can be admitted to probate without needing said witnesses’ testimony, which can speed up the process.

A Testator can include almost any type of asset in their Will, including any asset in which they hold an individual, separate, or divisible interest. Assets can include real or personal property, bank accounts, investments, and cash. A Testator can then designate how and to whom they want their property distributed. For example, they can identify a single Beneficiary (those who will inherit under the Will) to receive a specific asset or assign a percentage of their assets to each Beneficiary.

Florida law explicitly provides that a married Testator can disinherit the surviving spouse as a Beneficiary to their estate by including a provision in the will explaining their intent to do so. However, any marital property owned by both spouses, such as the marital home, cannot be the subject of such disinheritance, unless the surviving spouse elects to waive their right to inherit such property usually by way of a prior prenuptial or postnuptial agreement. In addition, without the martial agreement, a surviving spouse has spousal rights to a deceased spouse’s property whether or not the decedent provided for such in their will. These rights include exempt property, a family allowance, an intestate share, a pretermitted spousal share, an elective share, and homestead property rights. Said spouse is entitled to either the property left them in the subject Will or their “elective share,” based on Florida Statute Section 732.201. The elective share is 30 % of the decedent’s estate, including probate assets and most non-probate assets. A spouse can seek whichever is greater, meaning they can seek the election so that a Court performs the calculation. If the elective share is more than what was left to them in the Will, then the surviving spouse receives the elective share. If a person leaves their spouse more than the elective share, they may still receive the property designated in the Will. If a Testator tries to disinherit their spouse or leave them as little as possible, then the surviving spouse may request to receive their elective share of the subject estate.

Florida law recognizes valid Wills executed in other states or from a different country, so long as the subject Will is valid in that jurisdiction.

Creating a Will is a straightforward way to plan for what will happen to an individual’s estate after death. However, it is crucial that a person follow the exact requirements under Florida law to ensure that this document is legally valid and that one’s assets transfer according to their wishes. In Florida, a person can type or handwrite their Will, but it must be signed at the end in the presence of two witnesses. Said witnesses must be competent and over 14 years old, and they must also sign the Will in the Testator’s presence and in the presence of each other. If a Court considers the document invalid for any reason, it will distribute a person’s property according to Florida’s intestacy laws (i.e., next of kin as described by the applicable statutes).

If you have any further questions or need assistance in Florida when creating, redoing, revising, orupdating your Last Will & Testament, please contact one of the attorneys of CASERTA & SPIRITI at your earliest convenience.

It is reported that Florida has one of the highest rates of deadly automobile accidents in the United States according to one of the latest reports on motor vehicle accidents. It is important to note that these conclusions are drawn from data from various sources with different methods for counting car accidents. For instance, the state of Florida has a higher proportion of the total amount of all car accidents compared to the state’s proportion of the total country’s population.

Florida’s overall automobile crashes make up about 6.2% of the total United States automobile accident crash volume. However, Florida’s proportion of automobile accident injuries is a remarkable 13.4% and accounts for more than 9.1% of roadway deaths resulting from an automobile accident.  Consequently, the studies appear to show that Floridians crash as often as expected but have a higher likelihood of causing accident-related injuries or deaths.

To date, Florida has not required Bodily Injury Liability coverage for its drivers to operate a car legally.  Only after a driver causes an accident that results in bodily injuries to another person, are they required to have either Bodily Injury Liability coverage or post a bond for the required amount of coverage.

It often arises that people get into an auto accident in Florida where the responsible or at fault driver has no Bodily Injury Liability insurance (BI). In these situations, it would be wise to be proactive and purchase an automobile insurance policy that comes with Uninsured Motorist (UM) coverage. Accordingly, if a Florida resident gets into a motor vehicle accident and the liable driver does not have BI insurance coverage, an individual will still be able to file their personal injury claim under the UM coverage they have with their own automobile insurance company. Their insurance carrier will then process the claim following the same process or procedure as it would for an opposing insurer. The only difference is that the claim will be against one’s own UM coverage and not against another driver or vehicle owner. Likewise, if involved in a hit-and-run accident where the responsible driver has fled the scene before information can be obtained, one can again seek compensation from their own UM coverage with their automobile insurance company.

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

• Last Will & Testament-This document covers the disposition of an individual’s property and/or assets after death.

• Durable Power of Attorney-This document grants or authorizes someone else (agent) the legal authority to act in a person’s (the principal’s) place, specifically it names an agent to handle financial matters on their behalf.
• Healthcare Power of Attorney also called a Designation of Health Care Surrogate in Florida is a type of Healthcare Advance Directive-This document names the person (agent) who has the power to make medical decisions for an individual if they become incapacitated.
• Living Will, also known as a Healthcare Advance Directive-This document outlines one’s wishes for medical care if they cannot make decisions for themselves. It includes instructions for removal of life support, lifesaving measures (such as resuscitation), or whether the patient would want hydration or nutrition. There are other documents, which are written medical orders from a physician, nurse practitioner or physician assistant called Physician Orders for Life Sustaining Treatment (POLST) form or Do Not Resuscitate (DNR) form.

• Declaration of Preneed Guardian -This document designates, nominates or appointments of an individual(s) as guardian(s) for oneself or for minor children that they are currently serving as guardian for or are the parents. This form is not effective immediately. If a preneed guardian is appointed for a competent adult individual, then the guardianship will not take effect unless the individual is incapacitated and otherwise unable to manage their own affairs. If a preneed guardian is appointed for minor children, then the guardianship is not effective until the current guardian is either incapacitated or dead.  If the other parent of the subject minor children is still living, then guardianship would remain with that surviving parent unless their rights have been terminated by a Court. In a situation where one is a single parent, or if both children’s parents die simultaneously, some document appointing guardianship would be recommended to ensure the minor children are placed under the care of the individual or individuals of the declarant’s choice.

Of course, an individual or couple may need more than the foregoing documents. If one has multiple properties, high net worth, or wants to avoid probate proceedings, an individual contemplating doing an estate plan in Florida may need a trust or other instruments or documents to protect certain assets or meet the individual’s particular needs or circumstances.

Consequently, it would be suggested that said individual or couple should contact and discuss their situation with an experienced estate planning attorney, such as the attorneys at CASERTA & SPIRITI, to fully customize their particular estate plan to meet their specific needs. 

Motor vehicle car accidents are the leading cause of death for children; however, drowning follows closely behind as the second leading cause of death among children under the age of 15. Drowning is also one of the leading causes of death among adults and the elderly as well. 

Herein we will point out the primary risk factors, types of drowning accidents, causes and injuries, common drowning locations as well as who may be held liable in these types of cases. 

There about six risk factors in many drowning deaths. Many people are potentially at risk for drowning but knowing the risk factors can lower that overall risk. The following factors increase the risk for accidental drowning and other unintentional injuries while in or near the water.

Males are at a higher risk of drowning, having twice the mortality rate of females, as well as a greater chance of being hospitalized in non-fatal drownings and other injuries in the water.

Around the world, children aged one to four have the highest drowning rates, followed by children five to nine years of age. Lack of adult supervision, along with the fact that children often misjudge their own swimming ability and also fail to realize the dangers of water play.

Given that the use of alcohol and drugs impede reaction time, judgment, and physical abilities, swimming or boating under the influence places an individual at a higher risk for drowning.

Individuals who live close to the water and have greater access are at a higher risk simply because they spend more time in, around and/or on the water.

Certain medical conditions make it riskier to be in the water alone.

As flooding disasters become more frequent, more accidental drownings can result.

In Florida, some of the cases of drowning include swimming pools, which are prevalent, at private residences, at resorts, or in amusement parks. Water activities are also popular given the number of lakes, rivers, and top-rated beaches. However, many drowning accidents occur in swimming pools, leaving families distraught. Typically, these are negligence cases caused by the subject pool owner and/or the manufacturer of the product in question. 

While there are guidelines, regulations, and laws in place to prevent drowning accidents, such accidents still occur. The Residential Swimming Pool Safety Act (RSPSA)- 2021 Florida Statutes, Chapter 515,  starts by acknowledging that avoiding death by drowning is most effectively achieved with the supervision of a responsible adult. Given that many swimming pool accidents occur with no adult present, RSPSA requires swimming pools in Florida to have a minimum of one of the following safety measures installed:

• Pool must have isolated access from the home according to pool barrier requirements,
• Pool barrier must be a minimum of four feet in height and not easily climbed,
• Pool must be equipped with an approved safety cover,
• All doors and entrances to the pool area must have self-closing and self-latching devices at 54 inches or higher,
• Any doors or windows with direct access to the pool must have exit alarms, and
• Pool must be equipped with a pool alarm that sounds when water is entered.

Property owners, who fail to comply, can face criminal charges. If a property owner or an injured party are unsure about RSPSA guidelines, please contact a Personal Injury Attorney at CASERTA & SPIRITI who can explain the applicable legal process. 

Common causes of drowning accidents may include:

• Slip and fall incidents on the pools surrounding surfaces,
• Broken pool ladders or pumps,
• Diving accidents,
• Inappropriate water levels,
• Negligent lifeguards,
• Poor equipment maintenance,
• Out of place emergency safety and floatation devices, and
• Poor overall construction, among others. 

Without appropriate supervision and safety equipment, water activities can become dangerous. 

Drowning accidents bring devastating emotional trauma, pain, suffering, as well as tremendous expense. If a loved one is lost because of a drowning accident, and it is believed another party was responsible for the loss, by law, injured party themselves or a family member may be entitled to compensation.

It only takes one inch of water to cause an accidental drowning incident. The most common locations for accidental drownings are:

• Lakes,
• Rivers,
• Oceans,
• Swimming pools,
• Bathtubs, and
• Buckets.

The elderly and infants have a greater risk of drowning in the bathtubs, though individuals aged five to 64 also drown in bathtubs. A child under the age of six should never be left unsupervised in a tub since they may slip and fall and be unable to pick themselves up or call for help.

Though adults do drown in tubs (a result of falling, sleeping, or passing out), they more often drown in swimming pools, natural bodies of water, and hot tubs. Alcohol or drugs, which impair judgment, balance, and coordination, are often a contributing factor to adult accidental drowning. Pre-existing medical or physical conditions, like seizure disorders, can also increase the risk of drowning.

If it is believe another party is liable for a loss, that injured party will need a knowledgeable drowning accident lawyer who understands the law and can analyze the subject case to determine liability. It is also important to note that if one is considering a personal injury or wrongful death claim against those believed to be liable in the said accident, they will need to do so within the statute of limitations or deadline of the state of Florida or be barred from any type of recovery. If injured in a swimming pool accident, in Florida, the statute of limitations is four years from the date of incident to make a claim. On the other hand, if there is a death of a loved one in a drowning accident, there is only two years to file a wrongful death lawsuit in Florida. It is best to act as soon as possible after an accident and contact an experienced Attorney.

Those potentially liable in a drowning accident is dependent on several factors, including where the accident happened and if a product involved in the accident was defective. Regarding the location of the accident, the following parties can be found at-fault:

• The property owner or tenant of the property,
• Neighborhood Associations,
• Recreational Centers,
• Day Camps, and
• Hotel or Resort, among others.

These parties are required by law to ensure safe conditions to protect guests who visit their property, premises, or establishment, and when they fail to do so, they can be held liable. 

In the same way, a designer, manufacturer, wholesaler, or retailer may be liable if a defective product resulted in a drowning accident. For instance, if a life jacket or other safety device failed, causing an individual to drown.

In a swimming pool or drowning accident, the key to recovering compensation is determining liability and proving negligence, which requires investigating the claim, gathering the needed evidence, and legal representation. 

If an individual has suffered a personal injury or lost a loved one in a swimming pool accident, an expert is needed who cares and understands liability and negligence.

If someone needs guidance following the loss of a loved one in a drowning accident, or suffers injury themselves in Florida, contact the lawyers as well as the professional legal team at the law firm of CASERTA & SPIRITI.  Injured parties and families should consider retaining experienced legal counsel to guide them through the process while protecting legal rights and ensuring a fair recovery for the compensation deserved from a tragic loss, which may include medical costs, pain and suffering, rehabilitation, lost wages, disability, among others. 

Quite often many laws that are passed by the Florida. legislature and not vetoed but signed by the Governor become effective on July 1, the increase in the minimum wage is in September, however, there are a few that become effective January 1, 2022.

A pair of bills signed this year by Governor Ron DeSantis, involving vehicle rentals and notaries public, become law on January 1, 2022.

In addition, starting at that time, Florida employers will see an average 4.9 % decrease in rates for workers’ compensation insurance. The vehicle-rental measure (SB 566) sets insurance and other requirements for people who take part in peer-to-peer car-sharing programs. In part, the bill requires that, during car-sharing periods, the vehicle owners and rental drivers are insured to at least minimum requirements in state law. It also requires car-sharing programs to oversee the collection and remittance of taxes.

The Senate bill sponsor Keith Perry stated: “We are mirroring what is required by Enterprise or Alamo and the other ones.”

On the other hand, state Senator Gary Farmer, who was among 12 senators and 15 House members who voted against the proposal, questioned whether the measure would provide “appropriate safeguards.”  He stated to the media- “I’m not a rental car company. I’m not going to know, to check the validity of a driver’s license.”  He further stated that “[m]aybe you’ve got a whole history of DUIs out there and I don’t know about it. And now I’m entrusting you with my car. Cars are deemed dangerous instrumentalities under the law of the state of Florida. So, we do a lot of things to protect our residents in general. That’s why we have the rule that a car owner is generally responsible for anybody they let use their car.”

Florida lawmakers passed the bills dealing with vehicle rentals and notaries (HB 121) during the legislative session that ended in April 2021. Most bills passed during the session took effect July 1, which also was the start of the state’s fiscal year.

The notaries bill expands on a 2019 law that authorized remote online notarizations in the state. State Representative Sam Garrison, who sponsored the measure, said during a March Judiciary Committee meeting that the changes are designed to address issues that arose as the coronavirus pandemic increased use of remote notary platforms.

Among the foregoing changes, the law requires platforms to store video of notary sessions, directs the Department of State to include on its website a list of platform providers and allows court reporters to remotely swear in witnesses and newly admitted attorneys via audio-video technology. The law also prohibits platform users’ personal information to be sold.

A third bill (HB 54) that legislators sent to DeSantis with a January 1, 2022, implementation date would have eliminated the state’s no-fault insurance system, and its requirement that motorists carry personal injury protection, or PIP coverage. Ultimately, that bill was among five, which Florida Governor DeSantis vetoed from the 2021 session.

In vetoing the measure, DeSantis explained the no-fault system has flaws and state law involving bad faith litigation, an issue which could lead to costly lawsuits over how insurers handle claims and therefore is “deficient.” Further, DeSantis said the proposal did not “adequately address the current issues facing Florida drivers and may have unintended consequences that would negatively impact both the market and consumers.”

On December 2, 2021, Florida Senate President Wilton Simpson suggested that the no-fault repeal issue could return in the 2022 session, which begins January 11, 2022.

While it was not a result of the legislative session, employers will continue to see decreasing workers’ compensation insurance rates in 2022. Florida Insurance Commissioner DavidAltmaier issued an order in November that set an average 4.9 % decrease, with an effective date of January 1, 2022. This came after an average 6.6 percent decrease that took effect in 2021. Commissioner Altmaier presented a prepared statement in November 2021, to the residents of the state suggesting that “[s]afer workplaces, innovative techniques, and improved risk management practices have resulted in the continued decline in workers’ compensation claims, ultimately benefiting Florida businesses,”

The foregoing is merely a summary of changes regarding relevant Florida laws for the new year. Please call the attorneys at the law firm of CASERTA & SPIRITI if you have any questions about any of these topics.

In Florida, who has the right of way?  The answer is no one!  Florida has no law explicitly granting the right of way.  The law only says who must yield (give up) the right-of-way.  Every driver, motorcyclist, moped rider, bicyclist, and pedestrian must do everything possible to avoid a crash.  The goal is to always encourage defensive driving.

For example, Florida Statute 316.121 states in pertinent part that “the driver of a vehicle approaching an intersection shall yield the right-of-way to a vehicle which has entered the intersection from a different highway.”  Also, “when two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”   There are other examples.  Again, note how the law only indicates the person who must yield.

Pursuant to Florida Statute 316.122, “The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right-of-way to any vehicle approaching from the opposite direction, or vehicles lawfully passing on the left of the turning vehicle, which is within the intersection or so close thereto as to constitute an immediate hazard.” 

Another example is Florida Statute 316.123, which relates to vehicles entering stop or yield intersections. “After having stopped, the driver shall yield the right-of-way to any vehicle which has entered the intersection from another highway, or which is approaching so closely on said highway as to constitute an immediate hazard…”  Also, “at a four-way stop intersection, the driver of the first vehicle to stop at the intersection shall be the first to proceed.  If two or more vehicles reach the four-way stop intersection at the same time, the driver of the vehicle on the left shall yield the right-of-way to the vehicle on the right.”  Further,” the driver of a vehicle approaching a yield sign shall, in obedience to such sign, slow down to a speed reasonable for the existing conditions.”  Again, there are other examples.  Please read the full statute and the Official Florida Driver License Handbook.

According to Florida Statute 316.125, “The driver of a vehicle about to enter or cross a highway from an alley, building, private road or driveway shall yield the right-of-way to all vehicles approaching on the highway to be entered which are so close thereto as to constitute an immediate hazard.”  And, “The driver of a vehicle emerging from an alley, building, private road or driveway within a business or residence district shall stop the vehicle immediately prior to driving onto a sidewalk or onto the sidewalk area extending across the alley, building entrance, road or driveway, or in the event there is no sidewalk area, shall stop at the point nearest the street to be entered where the driver has a view of approaching traffic thereon and shall yield to all vehicles and pedestrians which are so close thereto as to constitute an immediate hazard.”

In line with Florida Statute 316.126, if an emergency vehicle (police car, ambulance, fire truck, etc.) is approaching with sirens or lights on, you must get out of the way.  Motor vehicles, bicycles, and pedestrians all must yield the right of way to emergency vehicles.  One should pull their vehicle over to the nearest curb and wait there until the emergency vehicle has passed. If someone is passing a stopped emergency vehicle, they must move over so that there is an empty lane between their motor vehicle and the emergency vehicles or reduce their speed to 20 mph below the speed limit. Furthermore, emergency vehicle drivers are subject to traffic infractions as everyone else and must drive safely.

Consequently, remember, the operative word is “yield” when you are in a situation where you are unclear about right of way.  Patience and defensive driving are always the correct answer.