Author: CSG Firm

A Durable Power of Attorney is an Important Part of Incapacity Estate Planning, But NOT the Only Document

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A Durable Power of Attorney is an important part of incapacity Estate Planning, but NOT the only document. Every adult should have such a document in place since anyone at any age can suffer a life-altering accident that leaves them incapacitated. If this event occurs and a person does not have a durable power of attorney in place, that individual will force their family and/or loved ones to enter into an expensive and time-consuming legal process for Guardianship. After an accident, an injured or incapacitated party not only needs someone to advocate on their behalf, but also ensure they have the legal means or authorization to do so. 

Once a person understands the significance of these documents, they should have one prepared. Furthermore, it is preferred not to download a “Do It Yourself” power of attorney document. Having an attorney is the preferred means of knowing that such document is done correctly. Without an experienced attorney, one will not have the confidence and peace of mind that comes with proper estate planning. If a person has a power of attorney, and it does not grant the Agent the authority to make a particular and required decision on the principal’s behalf if the principal becomes incapacitated, that becomes a major problem and then may require a Guardianship be established unnecessarily.

It is not hyperbole to state that a durable power of attorney is one of the most essential documents in an estate plan. It authorizes a designated person (another or Agent) to make financial and medical decisions for the principal (the person who creates the said document). Further, one must note that it is effective immediately upon execution, i.e., signing it before two (2) Witnesses and a Notary. Prior to 2011, Florida residents could have a springing power of attorney. It was named that because it “sprung” into effect upon incapacity as opposed to it being signed. If a Florida resident created an estate plan prior to 2011, they will need to update it since these documents are no longer valid and/or may not be accepted. 

Even though a durable power of attorney is a significant document, it is not an all-encompassing estate planning tool. For example, an Agent can act on behalf of their living elderly parent by way of a durable power of attorney. With Powers of Attorney for financial matters as well as for medical decisions (Healthcare) such documents enable the adult child or Agent to manage the parent’s finances, pay bills, and purchase needed items using the parent’s money. If the parent becomes incapacitated, the adult child or Agent under the power of attorney can speak to the parent’s physicians and advocate on the parent’s behalf in order to receive the type of treatment in accordance with the subject parent’s wishes or dictates.

A durable power of attorney grants the Agent the ability to care for their parent, the principal. It does terminate at the parent’s death! All the power granted during life is no longer available after death. People who assume a durable power of attorney is an end-all may not have prepared a Last Will or a Trust, which leaves the previous attorney-in-fact or Agent powerless.

Each document in an estate plan serves a different purpose and function and becomes effective at different stages and are all relevant.

A substantial portion of estate planning centers on a designated someone, an Agent, or Personal Representative, to be legally authorized and/or have the ability to act on the behalf of and take care of a person, the principal or testator, if such principal or testator (one who creates a Last Will & Testament) is incapacitated or passes away. Regardless of the amount of assets one may or may not have, creating a proper estate plan will organize, assist, and enable authorized competent trustworthy family members or loved ones or the surviving family or loved ones act on an incapacitated principal’s behalf or distribute assets of the deceased party’s estate.

Knowing what documents to prepare is vitally important and should be timely discussed with an experienced Estate Planning Attorney before an unfortunate event occurs.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

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Protecting An Inheritance Of A Child From Their Spouse

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Protecting An Inheritance Of A Child From Their Spouse

For whatever reason, a major concern among parents doing estate planning is how to protect an adult child’s inheritance from their spouse. It may stem from an animosity or concern over a child’s problematic partner. A number of them are concerned about a divorce attacking and attaching the assets distributed to their surviving children. There are a few others who believe that heirlooms, property and/or inheritances should be kept within the family.

A basic choice one has is to leave the inheritance to just one spouse, i.e., their own child. Even if one’s child resides in a community property state, an inheritance would be considered individual property. Florida statutes define non-marital or separate assets as the property received by either spouse separately by bequest, descent, non-interspousal gift, or devise. Therefore, an inheritance is considered a non-marital asset. A spouse should not be entitled to any part of another spouse’s inheritance.

However, once that property becomes comingled or mixed with other marital assets then it may become community or marital property. The subject child will need to place the inheritance in an account in their name alone, and they will not be able to place any new funds in the said account. The child will need to be careful to keep their inheritance separate and should likely consult with an attorney to ensure they do not inadvertently comingle their property.

Likewise, sometimes the income produced by one spouse’s property can be considered community or marital property. Consequently, comingling the income from the inheritance with the inheritance itself could destroy its separate nature or status.

As an alternate strategy, a parent can leave their child’s inheritance in a Trust, naming them as Trustee. Creditors, divorcing spouses, and others will not have access to the child’s inheritance to the extent that assets are left in the Trust. Again, depending on the withdrawal rights and other terms and conditions set up in the Trust, the surviving child could withdraw funds and still comingle the withdrawn funds/assets or otherwise use them to benefit their spouse.

If there is a greater concern, the Trust can be set up with an independent third-party Trustee. Such an arrangement can limit the child’s access to their inheritance. Assets could only be disbursed or distributed at the discretion of the said Trustee; therefore, the Trust creator would need to be clear about establishing those withdrawal or distribution rights when drafting the Trust.

Another inheritance protection strategy can be taken by the adult child- they can sign a prenuptial agreement before getting married or ask their spouse to sign a postnuptial agreement if the inheritance is received during the marriage.

By careful thought or consideration and planning one can attempt to bypass a child’s partner in their estate plans. Consideration and provisions should be made in the event the child predeceases their parent and/or their spouse. Ultimately, consulting an experienced estate planning attorney can greatly assist the individual doing an estate plan in considering potential what-ifs and plan accordingly.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.

LABOR DAY-A Little Law & A Little History

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Many people in the United States observe Labor Day as a time off from work, an opportunity to enjoy a backyard barbecue with friends and family and a final festive occasion of Summer prior to a busy Fall, i.e., getting back to school and work as well as holiday season.

The public should remember the work of those in the labor movement who fought for workers’ rights and also celebrate the essential role workers play in America’s growth and development.

Historically, the Labor Day holiday began with a heated campaign by workers in the late 19th Century to win support and recognition for their contributions.

Labor Day traditionally is celebrated on the first Monday in September.

There are two versions as to the origins of the holiday. One version is set in September 1882 where the Knights of Labor, the largest and one of the most important American labor organizations at the time, held a public parade in New York City on September 5th, featuring various labor organizations with the aid of the fledgling Central Labor Union (CLU) of New York. Subsequently, CLU, Matthew Maguire, proposed that a national Labor Day holiday be held on the first Monday of each September to mark the previously mentioned successful public demonstration.

In another version, Labor Day set in September was proposed by Peter J. McGuire, a vice president of the American Federation of Labor. In spring 1882, McGuire reportedly proposed a “general holiday for the laboring classes” to the CLU, which would begin with a street parade of organized labor and end with a picnic fundraiser for local unions. McGuire suggested the first Monday in September as an ideal date for Labor Day since the weather is good because of the time of year, and it would fall between the July 4th celebration/holiday and Thanksgiving Day. The state of Oregon became the first U.S. state to make it an official public holiday. Twenty-nine (29) other states had joined by the time the federal government declared it a federal holiday in 1894.

Ultimately in July 1894, President Grover Cleveland signed into law legislation creating a national Labor Day holiday in early September. This signing was done while federal troops in Chicago crushed a strike by railroad and Pullman sleeping car company workers, leaving some thirty people dead.

The federal law, however, only made it a holiday for federal workers. As late as the 1930s, unions encouraged workers to strike to make sure they got the day off. All U.S. states, the District of Columbia, and the United States territories have subsequently made Labor Day a statutory holiday.

Worldwide, Communist and Socialist factions chose May 1st as the date to mark the Haymarket affair. A 1904 conference issued a plea that trade unions stage rallies on the first day of May and demanding to make the eight-hour workday a standard. They organized the action in the name of “universal peace.”  The 1st of May is a national, public holiday in many countries across the world, generally known as “Labour Day,” “International Workers’ Day,” or a similar name, although a number of countries celebrate a Labor Day on other dates significant to them, such as Canada, which celebrates Labor Day, like the U.S., on the first Monday of September. The Haymarket affair occurred on May 4, 1886, during a period of time when most American laborers worked eighteen (18) to twenty (20) hours per day. Tens of thousands of workers protested in cities across the U.S. to demand an eight-hour (8) workday. Police in Chicago attacked protesters, beat, and shot at the group and killed six. When outraged Chicagoans attended an initially peaceful protest the next evening in Haymarket Square, police advanced on the crowd again. An unidentified person detonated a bomb which killed a police officer, leading the police to open fire on the protesters and provoke violence that led to the deaths of about a dozen workers and police.

Consequently, the Labor Day holiday was and is meant to be a day that the citizens of the United States recognize and celebrate the contribution, achievements, and dedication of the working class. It is a way of thanking, acknowledging, and paying tribute to all the contributions American workers have made to the growth and develop of the nation since the Industrial Revolution of the 1800s.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.

The Value of a Pet When Injured or Killed in Florida and Other States (An Overview)

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Courts in various states follow different legal standards to decide how much a loss of a pet is worth, and whether pet owners are entitled to compensation for their emotional distress.

In the state of Florida, pets are generally considered personal property. Pets belong to a human individual and are the responsibility of that owner. Although one may feel as if their pet deserves the same treatment as a person, that does not mean that they are granted the same legal status as human beings under Florida law.

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When someone is liable for an injury to one’s pet, that owner may become emotionally  devastated and angry. Most owners want to be and believe they should be compensated for their loss. If it is only a matter of a veterinarian’s bill to treat the injury, the amount of that loss should be relatively easy to calculate. HOWEVER, what would be fair compensation if one’s pet died, or the owner or family member had to watch it suffer? While most Americans treat their companion animals like members of the family, the law generally treats them like personal property. The rules or laws vary from state to state when people sue over a pet’s injury or death. Courts in most states limit the compensation to the owner’s economic losses. In cases involving deliberate or malicious wrongdoing, some states allow courts to award compensation for the owner’s emotional suffering or extra money as a form of punishment.

When a dog or cat or other pet has been hurt, the first expense is usually for veterinary/medical care. The person responsible for the injury will probably be liable for those bills. Courts usually allow compensation only for “reasonable” treatment. The question of what is reasonable depends on several factors, including the extent of the injuries and the animal’s age and general condition.

If the veterinary bills were particularly high for an older pet, some judges may find that the owner is entitled to no more than the amount of the animal’s fair market value. On the contrary, many courts have rejected that approach. For example, a Kansas court found that owners of a 13 year old dog were entitled to reimbursement for reasonable veterinary treatment needed to get their pet back to health. Another Illinois court explained that the owners of a 7 year old dachshund had shown how much their pet was of value to them by paying nearly $5,000 in medical bills after a neighbor’s Siberian husky mauled it. Accordingly, they were entitled to compensation for the full amount of the bills rather than only the dachshund’s $200 market value.

Whenever a pet has been injured, keep records of all bills for treatment, medication, and hospitalization to use during negotiations or at trial. An owner probably will not be paid back for the time they took off from work to care for the dog or take it to the veterinarian, but it cannot hurt to keep a record of that time if it has been extensive.

There are three different ways that courts generally measure an animal’s economic value: fair market value, replacement value, or the special value to the owner.

  • Like any other property, the fair market value of a pet is the amount that it would bring if it were sold on the open market. A few of the factors that go into calculating the market value of an animal include its purchase price, age, health, breed, and pedigree.
  • Some courts award pet owners what it would cost to replace the animals. The replacement value is probably higher than the market value because it can include things like training and accomplishments (such as winning awards at shows).
  • Periodically, an animal’s market or replacement value cannot be determined or does not reflect its true economic value based on its special services or usefulness to the owner. For example, in a case involving a prize-winning pedigreed dog, the court found that the animal’s value to its owner was $5,000, largely because the owner had spent a great deal of time and effort to give the dog specialized and rigorous training. The owner simply would not be able to find another dog like it on the open market. The court also considered the owner’s lost earnings from stud fees.

Because dogs or other animals kept for breeding are essentially business assets, their monetary value may include the lost potential revenue. However, judges may still stick to the replacement-value standard, reasoning that the owner can get another animal that will generate the same income.

Special value to the owner can be particularly relevant in cases involving assistance animals, which require extensive specialized training and become more useful to their owners the longer they work with them. Laws in a number of states specifically entitle the owner to collect extra penalties from the person responsible for killing or hurting a service animal, as well as reimbursement for the replacement cost and other expenses needed while doing without the animal’s assistance.

For most pet owners, whose pets do not win prizes or collect stud fees, the real value of their companion animals cannot be measured by what someone else would pay or what it would cost to buy a replacement. Lawmakers in several states have begun to recognize this fact. In Tennessee, pet owners may recover non-economic damages (up to $5,000 in 2017) as compensation for the loss of “companionship, love and affection” in certain cases when their pets have been killed intentionally (and illegally) or through negligence. Further, a few courts have found that sentimental value could be one element in an animal’s actual value to the owner if it does not have a meaningful market value. However, when judges recognize the sentimental value of pets, it is usually in the context of compensating the owner for out-of-pocket treatment costs that exceeded the pet’s market value.

To date, courts in most states, including Florida, follow the traditional view that owners are not entitled to recover non-economic losses for sentimental value or lost companionship when their pets are killed through negligence.

Some owners try to circumvent the limitations on compensation for the value of a pet by suing those responsible parties for their pet’s loss for the mental suffering the owners experienced. Whether they can be successful depends in part in which state they reside and the nature of the actions that led to pet’s injury or death.

Courts in most states do not allow claims for emotional distress when those responsible were simply negligent .  A damaged pet owner may have more success when the responsible party acted maliciously or meant to make the owner suffer, i.e., what is known as “intentional infliction of emotional distress”. In a particularly egregious case, a Washington appellate court found that a cat’s owner was entitled to $5,000 for the sleeplessness, depression, and other emotional distress that was experienced after three boys maliciously set the cat on fire.

Generally, pet owners can sue for two types of mental distress: first, the shock and distress caused by seeing an accident or mistreatment, and second, the grief and long-term effect the loss has on their lives. The more outrageous the conduct of the person being sued, the more likely the court is to award compensation for emotional distress, and the larger the award is likely to be. Proving mental suffering is not easy. Pet owners, however, can testify about how they felt when their pets were killed and how the loss disrupted their lives. If they sought medical treatment or psychological counseling, then it may strengthen the claims.

When a court orders someone who injured or killed a pet to pay the owner, that money is intended to compensate for the economic and, at times, emotional loss. In some states, courts may also award “punitive damages” intended to punish the wrongdoers for outrageous or deliberate actions. For example, California law specifically allows these types of awards, which are known in that state as “exemplary” damages”, for injuries to animals “committed willfully or by gross negligence” pursuant that state’s statute.

Punitive damages may be especially appropriate in animal cases, where compensation is likely to be low. A Minnesota court explained in a particular case that if compensatory damages do not make it worthwhile to sue, the wrongdoing will go unpunished unless there are punitive damages assessed. 

If asked, most owners would likely say their pet’s value is “priceless.”  In fact, a study by Kelton Research found that 81% of those surveyed consider their dogs, and other types of pets, to be true family members, on a par with their children. The death of a pet can be devastating to the human companion/owner, especially if the death is the result of a negligent or intentional act. In the legal world, however, a pet’s worth has been, for the most part, limited. 

Historically, the recovery for the death of a companion animal has been limited to a loss of property claim with damages calculated by the fair market value of the animal. For those of us with mixed breeds or older pets, which would mean they are literally worth nothing. 

This area of law is changing, however. A few courts have allowed juries to base a pet’s economic worth on other factors, such as special training, original purchase price, and cost to replace. These damages are known as “actual” or “intrinsic” damages.

In one case., the plaintiffs/owners sued their veterinarian and animal hospital, alleging the defendants (responsible parties) negligently administered anesthesia during a diagnostic treatment which resulted in the death of their pet German Shepard. The plaintiffs complained that because of the defendants’ negligence, they were deprived of the companionship, loyalty, security, and friendship of their dog. The trial court dismissed the case, ruling the law did not allow a pet owner to recover for loss of companionship. On appeal, the court agreed with that ruling, stating that pets are an item of personal property. However, the court also recognized that some items of personal property have no market value, such as pets, heirlooms, photographs, and trophies. The court held that where an object which has no value is destroyed, the measure of damages to be applied is the value to the owner. 

Other state courts have recognized the sentimental value of pets to their owners. In LaPorte v. Associated Independents, Inc., 163 So. 2d 267 (Fla. 1964), the Florida Supreme Court upheld a $1000 punitive damage award to the owner of Heidi, a miniature dachshund who was killed when a garbage collector, maliciously, and with extreme and utter indifference threw a garbage can at her. The court held that the affection of an owner for their dog is a very real thing, and that the malicious destruction of a pet should allow for recovery of damages beyond the value of the animal.

However, a Florida appeals court has refused to expand the law to allow emotional distress damages in a veterinary malpractice case where there was “no impact.” The impact rule requires some form of physical impact prior to recovery of emotional distress damages. In Kennedy v. Byas, 867 So. 2d 1195 (Fla. 1st DCA 2004), the owner of a basset hound sought emotional damages for veterinary malpractice in the treatment of his dog. The appeals court refused to allow the damages, stating that it would not abandon the impact rule and allow emotional damages in veterinary malpractice cases. It cited some earlier contrary decisions but ruled otherwise, i.e., Johnson v. Wander, 592 So. 2d 1225 (Fla. 3d DCA 1992), which was a veterinary malpractice case where, as in the foregoing case, the trial court entered a partial summary judgment on the claims for damages for emotional distress and subsequently granted a motion to change the case from circuit court to county court due to the lower jurisdictional amount sought in the claims remaining. In that case, the Third District held that a jury question was presented on the issues of gross negligence and mental pain and suffering as claimed by the dog’s owner and the trial court improperly transferred the case to county court as being a claim for less than the circuit court jurisdictional amount. In Knowles Animal Hosp., Inc. v. Wills, 360 So. 2d 37 (Fla. 3d DCA 1978), the Third District specifically held that a dog owner was entitled to collect for emotional damages in a veterinary malpractice case. 

Many state courts have been reluctant to allow non-economic damages.

The courts have instead deferred to their respective legislatures to step in and enact laws on damages in pet cases. Tennessee as the first such state to enact legislation. Known as the T-Bo Act, the Tennessee legislation allows for non-economic damages for the negligent, intentional, or unlawful act of another or animal of another. It limits recovery to cases involving cats or dogs and the cap on damages is $5000. 

An Illinois’s statute limits claims for cases in which the defendant subjected the animal to aggravated cruelty or torture or engaged in bad faith which led to the animal’s death or injury. The law applies to any animal to which the plaintiff has a right to ownership, not just cats and dogs. Therefore, a horse owner would have an avenue of recovery. However, damages are limited to $25,000 for each act of cruelty. Attorney’s fees and costs can be recovered under the statute.

Connecticut then followed suit with its own statute, but it is much more limited as to recovery. It only allows recovery in situations where the act was intentional and is limited to cats and dogs. The statute does not allow for emotional damages for owners, but instead names types of economic damages that may be recovered and allows for punitive damages. Attorney’s fees are allowed for a prevailing human companion. 

Other states have followed with their own legislation. California and Montana have enacted statutes which allow for exemplary damages in cases of willful or gross negligence. Maryland allows for compensatory damages in cases where the defendant tortuously causes death or injury to a pet. The damages are limited to $7,500.

A court decision exists in Florida, in a divorce context, where a court addressed the issue of pets in divorce. In the case of Bennett v. Bennett, 655 So. 2d 109 (Fla. 1st DCA 1995), the First District Court of Appeal defined the family pet as personal property and rejected a trial court’s order that provided post-divorce visitation for the parties’ dog, including a weekend visitation schedule and every other Christmas holiday. Consequently, the court recognized that post-divorce custody and visitation issues would lead to continuing enforcement issues. Although the court recognized that some other states have provided pets with special status in divorce proceedings, the Florida court declined to extend such protections to Florida pets. In refusing to provide any special considerations or status to pets in divorce, the court also recognized the substantial burdens placed on the Florida court system associated with post-divorce enforcement of child support and visitation matters in regular human custody cases. Accordingly, the subject pet’s fate was dictated by an application of equitable distribution principles that defined its existence as personal property, affording no special consideration of the pet’s interests. While the trial court was trying to reach a fair solution under difficult circumstances, the appellate court made clear that pets are animals not subject to a best interest analysis and that their fate must be resolved by following the dictates of Florida’s equitable distribution formula. The personal property calculation taken in conjunction with the court’s rejection of a pet’s “special status” in a divorce would appear to limit the trial court’s authority to take noneconomic valuation testimony about potential harm or abuse to the said pet. The lack of other reported court decisions in Florida makes it difficult to discern the court’s intent in Bennett beyond the prohibition of pet visitation awards.

Bills have been introduced in many other states over the years but have had little success. Legislators appear to be reluctant to change the status of pets as property and potentially open the flood gates for more litigation in both the national and state court systems.

If you or your pet have been injured because of the negligence or malice of others or have any questions regarding the foregoing or want to discuss any other legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Capacity to Make a Will or a Power of Attorney in Florida-Part 2

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 A Power of Attorney is a powerful legal document or instrument which delegates in writing authority from one individual to another. The creator of the power of attorney, also known as the “Principal,” grants the right to act on their behalf to an “Agent.”  A Power of Attorney can be specifically prepared to expand or restrict delegated enumerated powers based on the wishes of the subject Principal. The benefit of having a Power of Attorney is that it can be used to avoid the need for a court supervised Guardianship should the Principal become incapacitated and no longer have the ability to manage their own financial affairs and property management as well as medical decisions.
   
One of the most common questions encountered is, “when does the Power of Attorney actually takes effect”?  In the past, Florida allowed for the execution of what was referred to as a “springing” Power of Attorney. The term springing refers to the fact that an Agent is only permitted to act upon the satisfaction of a condition. For example, a springing Power of Attorney could be conditioned to only become effective upon written confirmation that the Principal was incapacitated. This type had a notable feature in that it allowed individuals to give a Power of Attorney to a relative without having to worry about them accessing a bank account or transferring property while the Principal still maintained full capacity. Unfortunately, changes in Florida law resulted in the abolition of springing Powers of Attorney. Currently, when a person executes a Power of Attorney the Agent is immediately granted the power to act regardless of whether or not incapacity exists.

Consequently, since Agents have immediate authority to act, the Principal grant the power to only a person they trust completely! Further, discussions should be had with the prospective Agent so they understand the Principal’s wishes as to how their affairs should be handled or managed. Any additional questions should be directed to an experienced estate planning attorney.

Preparing a Durable Power of Attorney for financial matters and a Healthcare for medical decisions are part of a responsible estate plan.

Now, what is the level of capacity that is needed to create a Last Will & Testament?  The person making the Last Will & Testament (Last Will) must has sufficient capacity to comprehend:

  • the nature and extent of his or her property (i.e., what are the assets and their relative size);
  • his or her relationship to the persons who were, or should, be the natural objects of his or her estate; and
  • a general understanding of the effects/process of the Last Will.

Florida courts have said that the person making the Last Will must have sufficient active memory to collect in their mind, without prompting, the particulars or elements of the business to be transacted, and to hold details in their mind for a sufficient length of time to perceive at least their obvious relationships to each other, and be able to form some rational judgment regarding them. A testator/testatrix (maker of the Last Will) who has sufficient mental power to do the foregoing is, within the meaning and intent of the Statute of Wills, a person of sound mind and memory, and is competent to dispose of their estate by a Last Will.

The foregoing can also extend to a Revocable Living Trust. With the above test, a person must know what their assets are and the people to whom they would most likely want to leave those assets. And, just as important, the individual should understand the effects of their Last Will or Trust. Practically speaking, creating a Revocable Living Trust may be more complicated than creating a Last Will, so it may be argued that the capacity to create a Trust is a higher standard than that of creating a Last Will. 

Again, there are other legal standards of capacity. After testamentary capacity, there are generally three (3) other areas of capacity in the Estate Planning and Elder Law area:

Some Florida families become extremely concerned when their loved one is having health issues and may be at the end of their life. However, if a loved one dies without a Last Will, their assets will  go to their family under Florida state laws of Intestacy or next of kin.

If it is uncertain whether a person has capacity to create a Last Will, an experienced attorney may be needed to assist in documenting the individual’s capacity to make a Last Will. At times, a physician is used to write a letter or report as to capacity, if the attorney is still unsure.

Finally,  under section 732.501, Florida Statutes, “Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.” Further, a Power of Attorney can be signed in Florida any time someone has the required capacity, i.e., so long as the individual signing the Power of Attorney is over 18 years of age, understands the powers they are delegating, knows to whom they are entrusting the said powers and how delegating that power can affect the property or person subject to the Power of Attorney, they then have the capacity needed to sign the subject Power of Attorney.

Even when there are times when the same individual may not have the capacity as described herein,

there are times when a person can make their own decisions. These are referred to as “lucid moments.” During a lucid moment, as long as the person comprehends the powers they are delegating, to whom they are delegating them, and how delegating those powers can affect their property or person, they may be able to sign a Power of Attorney or a Last Will if they are capable of understanding the significance and effect of executing a Last Will and the extent of their property and to whom they are distributing their assets after death.

Pursuant to Florida case law, whether or not a maker or creator of a Last Will, Trust, Durable Power of Attorney or Healthcare was of sound mind or had the capacity is determined at the time the subject document or instrument was executed.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.

DEATH & FIREARMS IN FLORIDA (A General Overview)

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Florida has a growing number of lawful gun owners. These firearms may include antiques, rifles for hunting, and handguns for personal protection. While these owners may be careful to ensure they have the correct registration, license and storage during their lifetime, their firearms raise questions when they die. When acting as the Personal Representative (PR) for that person’s estate during probate administration, then it is up to the said PR to ensure these items are handled carefully and within the law.

The following is a general overview of the subject. Specific cases should be discussed with an Estate Planning Attorney experienced with the state & federal laws regarding firearms.

A Personal Representative (in some states-Executor) in charge of a decedent’s estate may not be able to simply give a beneficiary a firearm as stated in the deceased’s Last Will & Testament. There are situations in which the heir’s or beneficiary’s possession of the gun may be illegal, e.g., if they are a convicted felon. The same can be said for the Personal Representative’s (PR) possession of the firearms. The PR is not exempt from the law because they are acting on behalf of an estate. If the PR is not entitled to possess a gun, they should promptly contact an attorney 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 a probate attorney experienced with Firearms law 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. If the PR transfers a gun improperly or to an unlawful owner, the said PR could violate the law. Also, if the decedent did not plan for how their guns were to be handled, the PR will need to know how to dispose of them.

If the weapon or an accessory is covered by the National firearms Act (NFA), then the PR must follow all federal rules regarding its transfer and ensure the proper taxes are paid on the transfer, if applicable. These are also known as Title II weapons and include machine guns, sawed-off shotguns, and other destructive devices like grenades. Common accessories like silencers are also regulated by the NFA.

All owners must properly register NFA weapons with the federal government. When an owner wishes to transfer a weapon to someone else, the transfer of registration must be approved. This scenario is true for a sale during the owner’s life or distributing it after death. As the PR, one will need to obtain the correct Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) form to ensure all rules are followed in applying for the transfer. One would also have to check the current status of the law to see if a chief law enforcement officer needs to sign off on an application to transfer registration.

This complicated procedure is why individuals often create Gun Trusts, which owns the firearms and enables multiple people to possess and use them. Additionally, firearms or guns held in trust can continue to be owned by the trust and possession can simply move to the beneficiary after the original possessor’s death. One would not have to go through the formal transfer procedure required by law or pay taxes on the transfer. If the decedent had a Gun Trust, contact an attorney experienced in this area about ensuring its proper administration and that the law is obeyed.

If the decedent owned a firearm not regulated by the NFA, then the transfer to a beneficiary will be easier. A PR should ensure that the beneficiary is at least 18 years old, has obtained any necessary license, and is not prohibited from owning firearms under the law. A PR should also ensure that the transfer is properly recorded. Florida does not require owners to register their firearms or obtain a license for certain handguns, rifles, or shotguns, therefore one may be able to transfer these to a beneficiary more easily.

The laws surrounding firearms are vast and complex.

A Florida Gun Trust is a revocable trust that owns certain firearms subject to federal regulation. The Gun Trust is an alternative to individual ownership of the firearm. All qualified Trustees may share the use and possession of the firearm. Privacy is achieved since the trust may add or remove Trustees who can use the firearm without public disclosure.

When using a Gun Trust, the firearm is owned by the trust itself, not an individual person. With a revocable gun trust, the names of the Trustees and beneficiaries can be changed during the grantor’s lifetime. A Gun Trust can also be called an NFA Trust, Class 3 Trust, Firearms Trust, or Title II Trust.

Generally, a Gun Trust allows multiple qualified users to share use of a Title II firearm. Gun trusts make it easier to avoid criminal liability in owning, sharing, and using a Title II gun; and upon the death or incapacity of the Trust grantor, a Florida Gun Trust allows private inheritance of the gun without probate or potential criminal liability.

The National Firearms Act (NFA) regulates the possession and use of firearms. Title I of the Act pertains to ordinary pistols, rifles, and revolvers. Most firearms in the U.S. are Title I firearms.

Florida law allows ownership of Title I firearms. The NFA does not require reporting the ownership or transfer of Title I firearms to the federal government.

Title II firearms include more advanced weapons, such as machine guns, silencers, suppressors, short barrel shotguns, and other destructive devices (Molotov cocktails, bazookas, etc.). Federal and state laws impose significant regulation of Title II firearms, and transferring these weapons requires filing documents with the government.

The federal government changed the rules for transferring Title II firearms in 2016. An individual transferring a Title II firearm must file an ATF Form 4 with the government and pay a $200 transfer fee. Form 4 includes a photograph of the applicant and FBI fingerprint cards. Notice of the application must be given to the chief law enforcement official (CLEO) in the county where the applicant resides.

Again, Title II firearms may not be owned by “prohibited persons.” A prohibited person includes any individual who has been convicted of a crime punishable by one year or longer, individuals diagnosed with a mental defect, an undocumented immigrant, a person convicted of domestic violence, or a person who uses marijuana (despite the legality of marijuana in a number of states). This rule applies to individuals and to Trustees of a Trust.

Federal law makes it illegal for anyone other than a registered owner who is not a prohibited person to have access to or possess a Title II firearm. Violation of the law does not require unauthorized use or possession, and mere dominion and control over the firearm by an unauthorized person is a felony. Violation of this rule is punishable by up to a 10-year prison term and $250,000 in fines.

Consequently, without a Gun Trust, an individual Title II gun owner who shares their firearm with a friend or family member who is not a registered owner of the firearm or who themselves are a prohibited person risks criminal prosecution.

It is important to note that it may not matter for criminal liability purposes if an unauthorized person did not intend to possess or use a Title II firearm.

A Florida Gun Trust may legally purchase and own a Title II firearm. An individual party to a Trust who has the authority to manage the Trust’s firearms is referred to under federal law as the “responsible person.” Typically, the Settlor or Grantor (creator of said Trust) and Trustees are the responsible persons. A Gun Trust provides quite a few benefits over individual ownership of Title II firearms as follows:

  • Sharing the Use of Firearms. Multiple individuals may not co-own or share a Title II weapon. Multiple Trustees of a Gun Trust, however, may share the same weapon if the Trustees are not prohibited persons. Title II firearms may be used by any qualified Trustee of a trust. A Grantor may add or remove Trustees over time. All Trustees must not be prohibited persons, and Trustees cannot transfer firearm possession out of the trust without complying with applicable state and federal regulations.
  • Avoiding Criminal Liability. In the case of individual firearm ownership, the mere access to the firearm by a friend or family member may be a felony. Including the same friends or family members in the trust avoids criminal liability traps.
  • Privacy. A Florida Gun Trust is a private document. The trusts are not registered with the state, and the general public cannot access the trust agreement online. Upon the death of the Trust Grantor, the Gun Trust will not be filed or recorded.
  • Control After Death or Incapacity. In the case of individual firearm ownership, the death of the registered owner may cause the firearm to be an asset in a public probate proceeding. Probate administration may result in the transfer of the Class II firearm to a minor, a prohibited person, or other unauthorized owner. Such transfer could result in government confiscation or a criminal violation of the NFA. On the other hand, if the Grantor of a Gun Trust is incapacitated or dies, the firearm remains a trust asset so that no transfer of title is required. Trust firearms are not involved in the decedent’s probate proceedings. The NFA does not consider the inheritance of a firearm by a trust beneficiary to be a regulated transfer. The successor beneficiaries of the trust do not have to file an ATF form, pay a transfer fee, or report to the local CLEO. The remaining Trustees, or beneficiaries added as Trustees after the Grantor’s death, may still legally use, and control the firearm.

While a Florida Gun Trust is also a revocable living trust, the Gun Trust has special provisions to comply with the NFA regulations. A properly drafted Gun Trust should include at least the following provisions:

  1. A Gun Trust should not leave firearms to just any individual. The Trust should leave weapons only to adult beneficiaries who may legally own the weapon in the beneficiary’s state of residence and who are not prohibited persons according to the NFA.
  2. The Trust document should define “prohibited persons” and ensure that successor or additional Trustees are not prohibited persons.
  3. The original Grantor and Trustee of the trust should consider that successors Trustees may not be knowledgeable about NFA rules. The Trust document should explain to a successor Trustee the guidelines for their exercise of discretion in the handling and conveyance of Title II Trust firearms.
  4. Arrangements should be made for termination of the Trust and the distribution to responsible and lawfully qualified successor beneficiaries.
  5. The power to amend or revoke the Trust must be restricted so that proposed amendments will not result in a violation of state or federal firearm laws.
  6. The Trust should explain the duties of the Trustee to repair and maintain firearms and give Trustees powers to store and use firearms.
  7. The Trust must include typical living trust provisions regarding property other than firearms, including cash, that the Settlor may contribute to the Trust or obtain from the sale of Trust firearms.
  8. Consider appointment of a Trust protector to, among other things, replace Trustees when appropriate, modify the Trust to comply with changing firearm laws, move the Trust to another jurisdiction, or resolve disputes among beneficiaries and Trustees without having to engage in formal mediation or litigation.

People cannot buy a firearm and then transfer the firearm to a Gun Trust without filing an ATF Form 4. The best practice is for the gun owner (the Trust Grantor/Settlor) to first create the Gun Trust Agreement. Next, the initial Trustee should open a Trust bank account, and the Grantor should contribute enough money to the Trust to purchase the firearm. Thereafter, the Trustee can purchase the firearm in the name of the said Trust.

The responsible person should then file an ATF Form 4 application. Each responsible person in the Trust Agreement (usually the Grantor and all Trustees) needs to complete his own ATF Form 23 as an individual.

A few internet websites sell allegedly standard Gun Trust forms cheaply. The customer merely fills in some blanks to generate forms to be submitted to the government. Saving money may not be the best choice when an innocent error or misunderstanding of website instructions could result in criminal liability and confiscation of the firearm.

As an example, a Gun Trust must comply with Florida Trust statutes. An online trust that does not meet all requirements of Florida Trust Law may be invalid. Some online trust forms do not limit possession of the trust’s firearms meaning that control and access may be inadvertently given to a prohibited person resulting in criminal liability. Also, the person using a standardized online form may pay for the firearm with his own personal funds rather than first opening a Trust checking account. This direct purchase would be improper and illegal.

Finally, the Florida Supreme Court has held that it is the unauthorized practice of law for a non-lawyer to draft a living trust. A Gun Trust is a specialized type of living trust. An internet site that drafts a Gun Trust for a Florida resident may be engaged in the unauthorized practice of law in Florida. If a Florida attorney sponsors it, then it may be a different story.

Florida law does not require Gun Trusts. However, without a Gun Trust, the use and access to Title II firearms are strictly regulated and restricted to the individual owner.

Finally, the National Firearms Act allows a Title II weapon to be owned by either an individual or another legal entity, including a Trust.

A Gun Trust may own any type of firearm, whether or not subject to NFA Title II rules. It may be recommended to have a separate Trust for Title II firearms so that a technical NFA violation causing a forfeiture would not affect Title I firearms, which may be owned individually or in a separate Trust.

 If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.

Out of State Powers of Attorney Are Valid in Florida, But Can Still Be Problematic

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A Power of Attorney which was validly created in another state is valid in the state of Florida. However, many out of state Powers of Attorney do not comply with Florida law. Individuals using these documents in Florida on a regular basis should have them updated by creating Florida compliant instruments. This article will explore why someone who moves to Florida should update an out of state Power of Attorney and provide some options if a third party or financial institution denies the out of state Power of Attorney as well.

The Power of Attorney is an extremely important and valuable document which allows a selected third party (or multiple third parties) to manage one’s property and financial affairs as well as make healthcare decisions. This third-party Agent can manage bank accounts, sell or buy property on the Principal’s behalf (i.e., the one who created the power of attorney and who authorized the Agent to act on his/her behalf), move around investments, decide how assets should be used for the Principal’s benefit, and make a number of important decisions about one’s finances or medical care.

Since the Power of Attorney is such an important document, it is highly scrutinized by financial institutions and other third parties. Financial institutions in Florida often deny out of state Powers of Attorney because they do not contain “super-powers,” or the Power of Attorneys are a few pages long and just grant extremely broad powers to the Agent listed in Power of Attorney.

The Florida Power of Attorney laws changed significantly in 2011. The most important change was that the new Florida Power of Attorney laws created what is known as the super-powers. These super-powers are powers that the state legislature considered so important that each super-power must be clearly expressed in the Power of Attorney and the Power of Attorney creator or Principal must place their initials next to the super-power provision or paragraph.

Even if a super-power is expressly stated in a Power of Attorney, but it is not initialed, then the Agent of the said Power of Attorney will not be able to perform that super-power on behalf of the subject Principal. This situation becomes extremely important when an individual no longer has capacity to update their Power of Attorney, then a Legal Guardianship (an expensive and time-consuming legal proceeding) must be started so that the Agent of the said Power of Attorney can perform that super-power.

The following is a brief list of some super-powers designated by the Florida Statutes that a person must sign or initial next to the applicable provision or paragraph for the Agent of the said Power of Attorney to exercise these powers:

  • Create an intervivos trust (also known as a living trust or a revocable trust).
  • Amend, modify, revoke, or terminate a trust.
  • Make a gift.
  • Create or change rights of survivorship.
  • Create or change a beneficiary designation.
  • Waive the Principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor annuity, including a survivor benefit under a retirement plan.
  • Disclaim property and powers of appointment.

Consequently, what does all this mean and how does it affect a person’s life in Florida? It is rarely seen that an out of state Power of Attorney document which had these powers listed requires the creator or Principal to initial or sign next to each power. This would mean that if an Agent of the Power of Attorney had to create a trust on the Principal’s behalf here in Florida, the Agent under the said Power of Attorney would not be able to do so because the subject out of state Power of Attorney document does not have the Principal’s initial or signature next to the applicable provision authorizing the said trust power provision.

The following is an example of how an out of state Power of Attorney might complicate a person now residing in Florida: An individual’s parent is incapacitated and needs to be placed into a nursing home in Florida. The nursing home cost about $9,000 to $10,000 per month. The Agent hires an attorney to do Medicaid planning for the parent so that they can try to preserve all the parent’s remaining assets or life savings and not spend it down after a year in the nursing home.

The first thing to be requested is a copy of the parent’s Power of Attorney. Said parent most likely has a typical 4-5 page out of state Power of Attorney which was prepared

several years prior to the parent’s incapacity and move to Florida. Said parent is slightly over the income limit for Medicaid, and what is required to be created is a Qualified Income Trust so that the parent can qualify for Florida Medicaid.

Due to the out of state Power of Attorney not having the subject parent’s initials or signature next to the provision, paragraph, or power to create a trust, the attorney and family have to establish a legal Guardianship, which cost can average between $8,000 to $10,000 just to establish in order that the Agent can just set up the aforesaid trust and salvage the parent’s assets from the nursing home.

FURTHER, a third party can reject an out of state Power of Attorney in Florida within a “reasonable time.” This term customarily means four (4) business days for financial institutions or banks. The third party must provide a written statement explaining their basis or reasons for denying the Power of Attorney. A third party can also request an Affidavit from the Agent of the subject Power of Attorney stating that the Power of Attorney is still in effect.

If a third party or financial institution denies an out of state Power of Attorney in Florida, then the Agent of the Power of Attorney can sue the third party to force the third party to comply with, follow and/or accept the Power of Attorney. The third party can be liable for damages, including court costs and attorney’s fees, if the Agent for the subject Power of Attorney prevails in the lawsuit.

However, lawsuits cost a substantial sum of money and take considerable time. If an Agent under a Power of Attorney needs to act quickly (e.g., sell property or do Medicaid planning), then a lawsuit is not very practical. The best alternative is usually to have the creator or Principal of the Power of Attorney sign and execute a new Florida Durable Power of Attorney so that the Agent can act immediately. This option will only work if the creator or Principal of the Power of Attorney still has the legal capacity to sign and execute a new Florida Durable Power of Attorney.

If the creator or Principal of the Power of Attorney is no longer competent, then an experienced Florida Estate Planning or Elder Law attorney may have some success with the third party’s legal department or management team to try to convince them to accept the out of state Power of Attorney. This process can be more effective if the out of state Power of Attorney complies with Florida state law.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.

Each Spouse should have their own Last Will & Testament

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The basis for any good Estate Plan is a strong Last Will & Testament.Estate Planning is the process of creating a legally binding plan for what will happen to a person’s assets (i.e., personal & real property) usually known as one’s estate after a person passes away. While Estate Planning can take many forms, a Last Will & Testament or Last Will allows one to dictate how and to whom their estate and/or assets will be distributed after paying appropriate expenses in an organized and streamlined fashion.

In a marriage, many things are done together, i.e., bank accounts get combined or are joint, vacations and other activities are done together, etc. It is technically possible to do one’s Estate Planning together as well. In Florida, a married couple can create a “Mutual Will or Agreement” mirroring the exact same wishes to their own individual Last Wills. HOWEVER, this is not the best idea or way to do things.

Specifically, Florida does not recognize Joint Wills. As a result, a married couple must create two separate Last Wills. This situation limits a married couple’s ability to ensure that their spouse would not change or revoke their Last Will upon their death. Many married individuals fear that their spouse will alter their Last Will and Testament following the death of their spouse. In most Last Wills, married couples agree to transfer all their assets and property to the surviving spouse when they pass away. However, when one spouse dies, the other spouse can freely change the beneficiaries in their own Last Will or otherwise deviate from the agreed upon plan. Joint Wills are used to prevent the surviving spouse from altering their Last Will upon the death of the first spouse. Consequently, since Joint Wills are not valid in Florida, married couples can create a Mutual Will Agreement.

A Mutual Will Agreement (MWA) is different from a Joint Will. Unlike Joint Wills, an MWA is a valid and enforceable contract in Florida under Fla. Stat. § 732.701. Essentially, an MWA is a contract between two spouses that outlines the contents of their Last Wills. This agreement can also be used to prevent spouses from changing their own Last Wills upon the death of the spouse who dies first.

To be valid, a Mutual Will Agreement must be signed by both spouses in the presence of two witnesses. Married couples can benefit from entering into this agreement to eliminate the risk that the surviving spouse might change their Will upon the other spouse’s death.

In the absence of a Mutual Will Agreement preventing them from changing or revoking the Last Will, the Testator, who is the person who created the Last Will and Testament, has a right to amend or revoke their Last Will any time before their death.

As previously mentioned, an Estate Plan is something very personal to an individual. It is made to explain a person’s wishes for the future, so it should reflect the specific intent of that individual. While many things are shared in a marriage, a Last Will, especially as it relates to a person’s assets, their extended family, and personal belongings, should be tailored exclusively to said individual.

There are also logistical concerns to consider. If one spouse passes away before the other, which tends to be the case, the Last Will could becomelocked. The living spouse might be unable to make any changes to it for the rest of their lifetime. What is more, the distribution of assets would beginwhile one spouse was still alive, which can be awkward or emotionally difficult. This is one of the main reasons why every adult should have their own individual Last Will & Testament.

If a person has any children from an earlier relationship, that would be even a greater reason to create their own Last Will. Blended families should be protected with individualized and customized Estate Plans since they may not be recognized in probate court without one.

The parties may even go as far as to include a “non-mutual” clause in their own individual Last Will & Testament. If used, then the “non-mutual” clause should expressly state that the surviving spouse can change or revoke their own Last Will despite any interest received. This additional expression of intent will show that one’s specific wishes are their own and should not be copied onto or from their spouse’s. Married individuals can include the foregoing language in their respective Last Wills.

If you have additional questions or would like to discuss your legal issues, including Estate Planning, please contact an attorney with CASERTA & SPIRITI at your earliest convenience. As the old saying goes-there is no better time to start than the present! 

Assets which can Avoid Probate

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When an estate is subject to probate, the entire process can get more difficult than expected. Heirs and beneficiaries can have disputes, and the process can become public, so people can minimize what assets are actually probated, if any.

Trusts can avoid probate but can also be problematic since they must be administered.

Certain steps can be taken to avoid probate through designation of beneficiaries or some type of joint ownership, which transfers ownership from a deceased party to the living through other means.

Bank accounts usually have two ways to avoid probate: joint ownership (by the entireties-Husband & Wife or with right of survivorship) or designated beneficiaries (or In Trust For, Transfer on Death, Payable on death, etc.). If a person owns a bank account jointly with another person when they pass away, the other person will assume ownership of the account. The same applies if a person owns account but has a beneficiary designation through their financial institution. The foregoing can often be referred to as “payable or transfer on death.” However, if an individual customer designates a beneficiary who is no longer able to assume ownership of the account due to either death or incapacity then the said account may be subject to probate or a legal guardianship.

The same rules of bank accounts apply to insurance policy benefits. Any applicable benefits of medical or life insurance policies will transfer without being subject to probate so long as beneficiaries have been properly designated.

Like bank accounts and insurance policies, an individual’s financial investment accounts can have a beneficiary designation as well.

Further, an important aspect of estate planning those individuals or clients need to understand is that accounts which have a beneficiary designation will generally supersede any language written in a Last Will & Testament. If a person has a beneficiary designation for an IRA through the account/institution itself, any bequest or distribution in one’s Will for the same account will be considered invalid.

The right to survivorship prevents a home (homestead or primary residence) and other properties from being subject to probate if there is a surviving spouse at the time the estate is executed. The previously mentioned means one’s home will remain in one’s spouse’s name without having to go through probate.

If property or assets do not specify the proper ownership language, then it is possible that the deceased party’s portion of the property may be subject to probate. In that case, a co-owner or spouse keeps their part or interest of the property, but the deceased’s portion may need to be probated and end up in the hands of another party.

If one’s spouse predeceases them and the survivor never remarries, then the entire property may be subject to probate unless it is transferred or distributed through a trust or other vehicle or designation.

As for real property, if a married couple wants to transfer the said real estate without need of probate to, for example, their children, the Remaindermen, a Lady bird deed may be the appropriate vehicle to convey the property after the death of the last spouse. A lady bird deed in Florida is a legal form that transfers property upon death inexpensively and without probate. A lady bird deed allows the current property owner to use and control the property during the owner’s lifetime, while the property automatically transfers upon death to designated beneficiaries/Remaindermen. The document or instrument is somewhat like a designation of beneficiary on real property.

It would merit speaking with an experienced estate planning attorney to review applicable documents to ensure a person takes advantage of these alternate methods of avoiding probate.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.

General Steps to Establish Florida as Your Permanent State of Domicile or Residency-An Overview

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A residence is a location where one may live part-time or full-time. A domicile is a person’s legal address, and it is located in the state where an individual pays taxes. In this sense, domicile is where a person plans to have their permanent home. It is the place they eventually intend to return to if they reside in another place for a brief time. A residence, on the other hand, is the place one temporarily lives.

Florida Statute §222.17 states that a person can show intent to maintain a Florida residence as a permanent home by filing a sworn Declaration of Domicile with the Clerk of the Courts. They can submit the form with all the requirements by mail or in person at their local County Courthouse or applicable government office.

Domicile generally refers to where one lives, i.e., their residence that they intend to keep for the foreseeable future. The stated domicile has legal consequences for tax, probate, asset protection, and numerous other purposes.

Domicile is the state where a person has his or her true and permanent home. For military members, it is the place to which the member intends to return at the conclusion of his or her military service. It is the place that they consider their permanent home. Depending on their service, and local policies, an active-duty military member can change their legal residence by visiting their local base legal office and/or base finance office and completing a DD Form 2058, State of Legal Residence Certificate.

In order to establish Florida residency, one needs to formally establish permanent residency or domicile in Florida. Just having a Florida address is often insufficient, especially if a person still owns real estate in another state. Fortunately, becoming a bona fide Floridian only requires a few straightforward steps as follows: Apply for a Florida Driver’s License; Register Vehicles in Florida; File a Declaration of Domicile; Register to Vote in Florida; File a Homestead Declaration; Obtain Florida Employment; Enroll children in Florida Schools; Get Involved in the Local Community; Move and/or Start a Florida Business and possibly Update one’s Estate Planning Documents.

Further, if an individual owns homes in more than one state and wants to make Florida primary, using one’s Florida address for bank accounts and insurance policies, among others, helps establish Florida domicile. Transferring one’s banking to Florida-based financial institutions can also serve as evidence, as well as updating newspaper or magazine subscriptions to a Florida address.

Finally, remember to update an estate plan to Florida specific documents. For those who have a trust, this may involve having a Florida amended and restated trust prepared.  For others, having a Florida Last Will & Testament prepared, as well as a Florida Durable Power of Attorney(for financial matters) and Florida Healthcare documents(for medical purposes and decisions) may suffice.

An Important Note:  There are differences in how a legal state of residency is determined for various purposes. For example, Florida courts often determine legal residency for asset protection purposes based upon Florida Statute Sec 222.17.  However, the rules for bankruptcy are quite different, and if this is a person’s situation or concern, consultation with a bankruptcy attorney will be critical.

For tax purposes, generally, one would need to establish that they are living in Florida for a total aggregate period of at least 6 months of the year. For people migrating to Florida, it is always recommended consulting with a tax professional in their former home state to assure a smooth and effective transition. For all other purposes, there is no waiting period for becoming a Florida resident.

Choosing a legal state of domicile can be an especially crucial decision for individuals who spend most of their time traveling the country by Recreational Vehicle. Expectedly, Florida is one of the most popular selections due to the low taxes, competitive insurance rates, and relative ease of maintaining driver’s licenses and vehicle registrations.

Along with the subjects encountered by new and part-year residents discussed above, “RVers” also need to establish a genuine Florida address where they can receive mail. A Post Office (P.O.) box will not suffice for residency purposes, but there are commercial mail-service companies that allow you to maintain a physical address in Florida. Receiving important mail at that address lets one demonstrate sufficient residency to register vehicles and obtain a driver’s license. Interestingly, though, if you are a full-time RVer, the license plate number on your Florida-registered RV (not the mail-service address) will serve as the “address” on your driver’s license. That means updating the vehicle’s registration needs to come first.

Again, there are very real advantages to becoming a legal resident of Florida. As already mentioned, Florida is well-known for its low-tax, business-friendly legal and regulatory environment. And, if estate planning is on one’s mind, they will be hard pressed to find a state with stronger asset-protection laws. In fact, Florida homestead and other home ownership laws provide asset protection, securing a primary residence from creditors’ attachment and steep property tax increases. Consequently, applying for a homestead exemption is another effective way to show one’s intent to make Florida their permanent legal home.

If an individual or family owns a Florida home that serves as their primary residence, they can claim a homestead exemption by filing an application with the county Property Appraiser of the county where the home is located. The exemption lets one exempt up to $50,000 of the home’s value from property tax calculations. Even if the property’s value increases dramatically, a person will not get impacted by big tax increases since Florida’s Save Our Homes Amendment limits yearly increases in assessed value to either three percent or the CPI-measured rate of inflation (whichever is lower).

Therefore, if an individual spends time at homes in two different states, considering Florida “primary” allows an individual to save on income and property taxes and protect their home’s value. Accordingly, the act of applying for a Florida homestead exemption serves as further evidence of one’s intent to treat Florida as their permanent state of domicile. All the foregoing allows an individual to ultimately take advantage of the many benefits of establishing Florida permanent residency or domicile.

If there are any additional QUESTIONS regarding the foregoing matters, or you would like to discuss your legal concerns or issues, please contact, or call the Attorneys at CASERTA & SPIRITI in Miami Lakes, Florida at Tel. # (305) 463-8808.