There are potential issues and risks associated with unrecorded or “pocket” deeds in the context of real estate transactions and Estate Planning. 

Here is a brief summary of the key points:

1. Delivery Requirement: A deed is not effective until properly signed and delivered. If a deed is not recorded, questions may arise about whether it was delivered, creating a cloud on the title. Title companies may require legal action, such as a declaratory action to quiet title, before issuing a policy.

2. Creditor Liens: Unrecorded deeds may not put third-party creditors on notice of the property transfer, allowing creditors to place a lien on the property. This can lead to legal actions to address the lien.

3. Tax Issues: Holding onto property until death can provide tax benefits, such as a stepped-up basis. Unrecorded deeds may result in the need to file a federal gift tax return and forfeit potential tax savings.

4. Probate Concerns: Unrecorded deeds may not always avoid probate, especially if recording laws change or if issues arise with the deed. Probate may be required to address a botched conveyance.

5. Florida Quit Claim Deeds: In Florida, a quitclaim deed can generally be recorded after the death of the grantor. However, delays in filing may create problems, and there are new requirements for updating the property appraiser with changes in beneficial ownership.

6. Case Law: Florida case law emphasizes that the failure to record a properly delivered deed before the grantor’s death does not render the deed void. Recording statutes are primarily intended to protect bona fide purchasers and creditors.

7. Probate Process in Florida: Assets titled solely in a deceased person’s name must go through probate in Florida. Different methods, such as trusts, lady bird deeds, and joint ownership with right of survivorship, may avoid probate in specific situations.

8. Pocket Deeds Issues: This article highlights issues with “pocket deeds” or deeds executed during the grantor’s lifetime but not delivered and/or not recorded. Without proper delivery, nothing passes to the grantee, and the deed may be ineffective.

9. Alternatives to Pocket Deeds: The article suggests alternatives like life estate deeds, enhanced life estate deeds (Lady Bird deeds), and land or other types of trusts as safer and more effective options for estate planning, avoiding probate, and maintaining control over property.

10. Caution with Enhanced Life Estate Deeds: Some authorities advise caution when preparing enhanced life estate deeds and mention potential insurability issues. It is recommended that one seek the services of an experienced attorney to ensure that the proper language is used for creating an enhanced life estate.

11. Land Trusts: Land trusts are presented as an alternative that provides privacy and avoids probate. The successor beneficiary in a land trust automatically takes ownership after the initial beneficiary’s death.  Although, some authorities frown on this method in Florida.

12. Conclusion: Estate planning and real property attorneys should advise clients on potential issues related to real property conveyances. Conditions precedent should be carefully documented, and deeds should be provided to escrow agents and/or recorded with the county to ensure proper delivery.

Overall, the case law underscores the importance of proper planning, documentation, and legal advice to avoid complications in real estate transactions and Estate Planning in this regard.

The foregoing is a brief and general overview of the benefits of proper planning in Florida regarding the foregoing areas. 

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.

Florida residents should inquire about the legal documents they should have prepared.

The unfortunate fact is that all Florida residents are aging, and as they reach the point of retirement, they should prepare certain legal documents as soon as possible. Not only will these documents end up saving the individual a significant worry, time, and money when they become even older as a senior, these documents will also be useful if something happens to them suddenly and unexpectedly. Despite it being difficult to admit, everyone is aging, and having all these legal documents on hand will ensure they will be less stressed.

Additionally, having these important legal documents completed will ensure that one will be in full control of their life. From parental wishes to what will happen to one’s assets after they pass away, these documents will ensure that a person will be given autonomy and that all that a deceased party desires to happen is going to be done according to their expressed wishes.

The foregoing can both bring one a sense of relief and relaxation which they would not experience if they ended up falling ill and having to deal with the stress of the resulting situation, but it will also assist loved ones in case the worst happens.

In the end, having these legal documents prepared will be beneficial no matter if they are used or not, since life is unpredictable.

#1 Durable Power of Attorney (i.e., DPOA)

A DPOA, which is an abbreviation for “durable power of attorney,” is a document that will result in granting an appointed person (the Agent) the legal right to conduct certain actions in the name of another person (the Prinicpal). This means that a person can leave someone in charge of some affairs which they may not be able to conduct due to an illness or other issues. A DPOA will be appointed by the individual, and it can be anyone said individual may want, be it an attorney or someone from their family.

The DPOA will be able to take definitive decisions over a few areas of one’s life, including:

• Banking
• Government benefits
• Beneficiary transitions of an estate trust
• Estate trusts
• Real Estate
• Financial investments
• Family and personal maintenance issues

Keep in mind that the DPOA will end up being legally responsive and have all the power over this area once the document is signed. This means that the person or Agent the individual (Principal) appointed will have these rights granted until the said Principal passes away. While there is no need to have an active DPOA when one is in good health, it is beneficial to have one on hand if one knows they have an illness that could at one point prevent them from taking care of some of these matters.

In addition, one should ensure that if they prepare a DPOA and want to complete it eventually, it meets all the state law requirements for such a document.

#2 Advance Directives or Living Wills

These are some of the most crucial legal documents that any senior should prepare. Especially since they deal with many diverse types of documents which will ensure that one’s wishes are going to be respected, particularly when it comes to medical care or even end-of-life comfort.

They documents vary state by state, and some of them even include healthcare proxy directives, as they are a way in which one will be able to speak for him or herself even when they are no longer able to do so. These documents will also detail a person’s wishes in different situations, including organ and tissue donations, resuscitation, life support machines, and even tube feeding. It is difficult to think about these situations when a person is still healthy, but they should be taken into consideration.

Some other Advance Directives also discuss how one wishes to go in situations of comfort at the end of life and other situations.  It is in one’s best interest to consider having some of these documents drafted and signed to be sure one’s wishes will be respected in the worst-case scenarios.

Living Wills are part of the Advance Directives category, but they are sometimes seen as controversial.  Regardless, this written document is one that will detail the individual’s wishes and desires when it comes to their end of life. The controversial part comes in since not all hospitals recognize them as legal or as legally binding, especially when it would go against their advice.

A Living Will is a document that will inform any healthcare providers or physicians about the wishes of the senior, and frequently, these will be carried out by the Healthcare Surrogate or Agent we have discussed previously. In a way, if one has already appointed a Healthcare Surrogate, this document can also serve as an aid when they are dealing with testy situations regarding their Principal’s health.

#3 Healthcare Surrogate or Proxy

This document is also known as a “healthcare power of attorney,” in that it is one of the most important legal documents which ensure that a person’s health-related wishes will be honored even if they are not able to speak for themselves.

This legal document is important because, through it, a person will appoint someone to be their healthcare proxy in case of an emergency. This means that the person they appoint (the Agent) should thoroughly understand their Principal’s wishes and should be able to withstand pressure, as this position may be difficult to manage, especially if the situation calls for going against the family.

The Healthcare Power of Attorney, Agent or Proxy will be able to defend the senior’s (Principal’s) wishes, and they should also know whether one’s views on certain things have changed, so regular conversations or discussions will be needed. The Agent or proxy part of this document comes in when the physician, family, or hospital determines that the senior cannot make decisions for themselves or cannot communicate.

Before one places their trust in this document, make sure that the Agent or proxy chosen meets both the state and state department of elder affairs requirements.

#4 A Last Will and, if necessary, a Trust

One of the most important legal documents on a person’s to-do list should be this one. Last Wills are essential, and an individual can make one at any point in their life, no matter the age. In the end, it is better to have one made and then revise or update it as they wish if circumstances change than to end up not having one and leaving everything up in the air.

The Last Will can also serve as a backup for other real estate documents, like a living Trust. Since a person can cover the property assets they may own in the Last Will, if they have forgotten to transfer one to a Trust or it has been transferred incorrectly, or even if a Florida resident acquires more property after the Last Will has been made, the Last Will may have them covered.

Not to mention, this Last Will also covers any other assets one may have, and the earlier a person sets one up with an attorney, the easier it will be when said individual must update it down the road.  However, other arrangements can be made such as Designations of Beneficiary on bank and retirement Accounts, Life Insurance as well as a comparable document or designation for real property in the state of Florida known as a Lady Bird Deed or Enhanced Life Estate Deed, among others in order to avoid Probate.

The foregoing is a brief and general overview of the benefits of proper Estate Planning in Florida. 

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.

Estate planning may not be a major concern for a Florida resident, but it is a crucial step towards ensuring that one’s wishes are honored, loved ones are cared for, and a legacy is preserved. In the vibrant state of Florida, crafting a Last Will & Testament as well as other proper estate planning documents hold particular importance. Here are a few compelling reasons why estate planning is necessary:

1. Appoint a Guardian for Your Children

For parents, the well-being of their children is a top priority. Through estate planning, they can appoint a guardian for their minor children in a Last Will and/or by way of a Declaration of Preneed Guardian, ensuring they are cared for by someone trusted. Without a clear directive, the court may determine the guardianship of said minor children based on default rules, which may not align with one’s wishes.

2. Protect A Business

If an individual is a business owner in the Sunshine State, their entrepreneurial journey should be safeguarded. Estate planning allows a person to outline the succession plan for their business, ensuring a smooth transition of ownership. Without proper documentation, the fate of said business may be subject to legal complexities and uncertainties.

3. Decide Who Gets One’s Home and Possessions

A Florida resident’s home has a lifetime of memories, and their possessions carry a sentiment as well as possess a genuine value.  By crafting a Last Will & Testament, an individual has the power to decide who inherits these assets. Without such documentation, the court steps in, potentially leading to disputes among family members and distribution according to default state statutory provisions.

4. Provide for a Favorite Charity

Many individuals have philanthropic passions close to their hearts. Estate planning allows the individual to allocate assets or funds to support a favorite charity or cause. By specifying one’s intentions in their Last Will, they can contribute to the causes they care about, leaving a lasting impact beyond their lifetime.

5. Make a Difficult Time Less Difficult

Losing a loved one is undeniably challenging. Estate planning, however, provides a roadmap for loved ones during this emotional time. With a clear and comprehensive Last Will, one can alleviate the burden on one’s family and ensure that their specified wishes are carried out seamlessly, bringing a sense of comfort during an otherwise difficult period.

Although estate planning laws vary across states, one universal truth remains: without a Last Will & Testament, the state through the Probate court is responsible for distributing a deceased party’s assets.  In Florida, this means default rules and/or state laws determine the fate of a deceased party’s assets. By proactively engaging in estate planning, a person can take control of their legacy, ensuring that their specified intentions, whether for their children, business, possessions, or charitable pursuits, are honored.

Florida residents must not leave these critical decisions to chance.  They should seize the opportunity to create a meaningful and protective estate plan in the vibrant landscape of Florida. One’s peace of mind as well as the well-being of one’s loved ones are worth the effort.

The foregoing is a brief and general overview of the benefits of proper Estate Planning in Florida. 

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 journey as a Florida business owner is not just about building a successful venture; it is also about creating an enduring legacy. An individual may have worked hard to create a profitable business and ensuring that it extends beyond their lifetime requires a thorough estate plan.  Every business owner’s estate planning journey will be different, but there are some tools that can help anyone safeguard their interests. Learning about Powers of Attorney and Trusts can help a person safeguard their business and secure its financial future.

A Power of Attorney (POA) is a legal document that grants someone (the agent, or attorney-in-fact) the authority to act on one’s behalf in specific matters or situations. There are several variations of POAs that can be customized to fit particular circumstances. A Durable Power of Attorney is essential for business purposes. 

When a Power of Attorney is made durable it means that it stays in effect even if the principal is incapacitated. Like other POAs, the principal can appoint a trusted individual or group as agent(s) to make decisions or handle business affairs as outlined within the POA document. This is especially helpful if the said person is unable to manage day-to-day business due to illness, injury, or extended periods of absence.

As with all POA documents, a Durable POA is highly beneficial to people who want to make sure activities, businesses, etc., continue running smoothly without them. In the context of a business, one has the flexibility to define the exact scope of the agent’s authority, so the principal will not have to worry about major changes without their say. A principal will be able to maintain control over vital business decisions even when they are unable to be present.

A Trust is a legal arrangement in which a grantor enables a trustee to hold and manage assets on behalf of beneficiaries. Trusts are versatile estate planning tools that can be adapted to serve various purposes. They are commonly used to protect such assets as life insurance policies, real property, or manage charitable contributions. Many Florida families use them to simplify business succession.

A Revocable Living Trust is a common choice for business owners looking to secure the future of their business while keeping control during their lifetime. In this type of Trust, the business owner can serve as both the Grantor (creator of the Trust) and the initial Trustee (manager of the Trust assets). As the Grantor and initial Trustee, an individual will retain full control over the trust assets and can continue to manage the business as usual.

As with a POA, the Trust document should clearly outline the plan for business succession after the Grantor’s incapacity or death. The successor Trustee, who could be a family member or business partner, can then take over managing the business following the Grantor’s wishes.

One of the significant benefits of using Trust as part of a business succession plan is that it can be passed on to beneficiaries privately and without the need for the time-consuming and sometimes costly probate process.  Predetermining succession will allow a smooth transition of ownership, which will enable the business to continue operating effectively.  The Trust may also provide asset protection that may safeguard the business from potential debts and liabilities. 

Proper estate planning is not only about protecting personal assets, but also preserving the future of a business. 

The foregoing is a brief and general overview of the use of Powers of Attorneys and Trusts for a business asset in Florida. 

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.

Elder law encompasses numerous areas and answers many questions that concern senior citizens in Florida.  Elder law is essentially a legal practice which deals with issues affecting senior citizens. Elder law is a broad umbrella and may include advocating for elders in exploitation and undue influence cases, Medicaid planning, Asset Protection and Estate Planning, Advance Directives, Guardianship, Probate and Trust Administration matters, among others. Many of the most frequent questions are related to estate planning and come from seniors who are interested in Medicaid or other benefits planning regarding their estate.  Florida residents should not attempt this planning without the assistance of an experienced attorney.

To ensure that individuals do not jeopardize their own assets, these seniors are increasingly seeking Elder law attorneys for advice and assistance in planning their estates. The demand is increasing in this area of practice, and it is anticipated that a rise in the number of senior citizens within the general population who will need Elder law answers in the coming years, one is likely to see an increase in the number of estate planning and Elder law attorneys.  In fact, estate planning and Elder law could eventually become a stand-alone legal specialty in the future, as there will be so many challenges in this area.

Another set of questions that Elder law answers has to do with state benefits for seniors, particularly Medicaid.  Common questions in this area are usually about eligibility for Medicaid and the amount of benefits due. These questions can be effectively addressed by Elder law, with the aid of an Elder law attorney.

Still, another set of questions that Elder law answers has to do with nursing homes and assisted living facilities, such as questions about finding the right home for themselves or a loved one, questions about being financially exploited by a nursing home, questions about nursing home neglect, and so on. Nearly all of these are questions can be answered through Florida Elder law.

Furthermore, Elder law answers questions about employment and employment discrimination of senior citizens and questions about work-related benefits, such as pensions and other retirement benefits as well. While these are legal issues which are addressed by other branches of law such as Labor or Employment law, they can also become the subject of Elder law since they are almost exclusively affecting senior citizens.

Legal issues regarding elder care, Medicaid eligibility, and estate planning can be complex, confusing, and difficult to understand. 

Elder law in Florida is something that senior citizens and their families should learn about. While Elder law is at times nationally oriented, starting with Federal law pursuant to the Older Americans Act of 1965; many aspects that are covered under Elder law vary from state to state. Consequently, Florida Elder law may be different from that of another state.  Some of the primary issues related to Elder law include Powers of Attorney, Estate Planning, Guardianship, and matters which deal with Medicaid and other disability benefits planning or issues. Provisions for all these matters can and do vary by state.

When it comes to Elder law in Florida, one of the most important aspects one must know is how Florida Elder law approaches estate planning. For example, under Florida inheritance law, if a resident dies intestate, i.e., without a Last Will, their spouse will usually get priority in the distribution of their estate, even before their own children. This may be a problem in certain situations, such as when a couple separates but never gets a legal divorce.  The most effective way to avoid this issue is by making a Last Will & Testament.  If a person is a senior citizen, they may want to consider hiring an Elder law attorney, who will assist them in preparing a Last Will and other Estate planning documents, since estate planning for senior citizens has a number of unique aspects and can prove to be costly if mistakes are made.

In Florida, a significant issue for many seniors is that of Guardianship, particularly with so many seniors taking Guardianship over their grandchildren.  Florida’s qualifications for guardianship are not very different from those of other states, but there are some important requirements of which many people may not be aware. An Elder law attorney can help them revise their Last Will to include preferences for persons with whom the subject minor child should live with after their death.  There are also many times Guardianship of the elder needs to be pursued because of dementia, illness, or incapacity. Guardianship for an elderly person typically results from the said party not executing a Durable Power of Attorney before becoming incapacitated.

The foregoing is a brief and general overview of the Elder law in Florida. 

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.

If a Florida resident dies without a Last Will & Testament, their assets will be transferred to their closest relatives under state “intestate succession” laws. The following is a brief summary of how intestate succession works in Florida.

Only assets that go through probate are impacted by intestate succession laws. Many valuable assets are not subject to probate, and therefore they are not affected by intestate succession laws. Here are some examples: property one has transferred to a Living Trust; life insurance proceeds with a named beneficiary; funds in an IRA, 401(k), or other retirement account with a named beneficiary; securities held in a transfer-on-death account; real estate for which one has a transfer on death deed or Lady Bird Deed; vehicles for which you have a transfer on death registration; payable-on-death bank accounts, or property a person owns with someone else in joint tenancy with right of survivorship, or tenancy by the entirety (i.e., as spouses).

These assets will be transferred to the surviving co-owner or to the beneficiary one has named, whether or not a Last Will exists. However, if a person possesses or creates a Last Will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to Intestate succession.

Florida Statute Sections 732.101-.109 cover this process of Intestate succession. When someone passes away without a Last Will, or Trust, all assets go to the closest relatives or “next of kin.”

The heirs follow a specific order in Florida:

1. The first to inherit is the surviving spouse. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse gets everything and there is no waiver of rights pursuant to a signed Prenup or Postnup or comparable document.
2. Next in line are the children. If a child dies before the parent, then a grandchild may inherit a portion of the estate. Children must be legally adopted or biological children to fit in this category. Step-children are not included.
3. If the decedent dies without a spouse or children, then, the decedent’s parents are next in line to inherit the estate.
4. If none of the above are alive, then the deceased’s siblings would divide the estate.

Certainly, family units may be difficult and complicated in today’s world. For example, usually the surviving spouse receives or inherits everything. However, if the decedent has children from a previous marriage, the surviving spouse may get half the estate and the other half goes to the child or children from the prior marriage(s). Basically, each scenario may have difficulties and complications.

Proper estate planning can prevent intestate succession. A comprehensive and even a proper basic estate plan includes a Last Will and/or Trust, as well as a Powers of Attorney for financial and healthcare needs. These essential documents protect all Florida residents and their families and tend to conserve funds and assets.

How many people want State law to determine how their hard-earned life’s assets are distributed? How many individuals want to pay the State money after their death?

Properly written and executed estate plans reduce estate taxes, eliminate lengthy probate proceedings, avoid family disputes, set up care for minor children, and fulfill the deceased party’s wishes.  No one can anticipate the future, however, thoughtfully planning ahead provides a sense of peace of mind.

It is important to note that intestacy does not mean that the State of Florida owns or will acquire the property of the deceased.  This term simply means that the Probate court is required to invoke a specific process to determine who receives the deceased individual’s assets.

This process may differ depending on the state where the deceased party resided at the time of death.  Florida has a complex and detailed process in determining who receives these assets.  Usually, the surviving spouse is the first to inherit the subject property. There must be a valid marriage to be a surviving spouse. If there are no children, the spouse receives everything.

Since the process regarding intestate succession is very involved, it is vital to work with an attorney who is experienced with probate cases. To avoid confusion and disputes among potential beneficiaries or heirs and ensure that assets are properly distributed according to state law, one should employ an experienced attorney.

The foregoing is a brief and general overview of the outcome if no estate plan is established in Florida. 

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.

Under Florida law, an ownership interest in a business is considered personal property and can be transferred to a decedent’s heirs or beneficiaries as part of his or her estate.

If there is no Operating Agreement delineating the process by which a deceased member may be replaced, Florida law requires that the deceased member’s economic interests in the company will transfer to their estate and be inherited in accordance with the deceased member’s Last Will and Testament or by way of intestacy (i.e., no Will and governed by state law).

At a minimum, a business succession plan should address the systematic transfer of the management and ownership of a business. 

A Family Business Succession Plan needs to be designed to address three key components: ownership transfer, governance, and management succession. The majority of succession plans are designed based upon the needs of the individuals and end with ownership transfer and then asset management.

For family business owners, estate planning is crucial to the success of the business and continuation of the family’s income.  If a Florda resident has not already established an estate plan that includes the succession of their business interests, begin today.

The first step in succession planning is determining how a person wishes to leave their business.  Their options are to transfer the business to their heir or heirs, sell the business to their business partner or key employee, sell the business to an outside buyer, or to close or liquidate the company.  

If a business is a sole proprietorship, it ceases to operate upon the owner’s death. As for what happens to business debt and assets when the owner passes away: the same becomes part of the personal holdings. If a business is a corporation or an S corporation or LLC, the estate becomes the new owner of the business.

The lack of a proper succession plan results in family conflict, poor leadership decisions, and a lack of direction, which ultimately leads to the collapse of the business.  A proper succession plan encompasses naming the individual to take over once the current head steps down or passes away.

This article attempts to briefly discuss three (3) common options as follows.

First, one way to transfer a family business to one’s children is by selling them the appropriate interest in the business, outright.  This is a great option for those who require income from the business, such as retirees.  Generally, if an owner decides to sell their business, they must sell it at its fair market value.  If one does not do so, gift taxes may be incurred.

Second, Buy-sell agreements are ideal for those business owners who have chosen the person to whom they would like to transfer the business, but who are not quite ready to hand over the reins. In a buy-sell agreement, a business owner can specify that, after a triggering event, the designated successor will be required to purchase the interest in the business. Common triggering events include retirement, incapacity, and death. This appears to be the most effective manner to avoid problems by having a business partner with some equity in the business, along with a buy-sell agreement under which the deceased owner’s family can be cashed out under pre-set terms. Adding an insurance component so that cash is available to fund the buyout or purchase makes the plan even more effective.

Further, a properly arranged and funded agreement is a legally binding contract that stipulates exactly what is to happen if one of the business’s owners dies. It generally calls for the survivors to purchase the deceased owner’s share in the business from his or her heirs. Alternatively, family businesses are often passed down from generation to generation through a Last Will, a Business Succession Plan, or other estate planning strategies.

Third, the ownership of a business can also be transferred through a Living Trust. To do this, the business owner must first transfer the business to the trust, then assign the intended successor to the trust to said trust. The business owner, who is living, would serve as both a trustee and a beneficiary of the estate. This allows the owner to operate the business as usual for the duration of the owner’s choice.  It is crucial that the trust agreement contains carefully drafted provisions regarding the operations of the business and how ownership decisions are made if the owner becomes disabled or dies. Furthermore, if the business is taxed as an S corporation, more specific tax-oriented provisions are necessary.

A revocable living trust is also often advised. These types of trusts can hold ownership of assets and business interests, allowing them to skip probate and benefit from asset protection.

While the owner is alive, they will serve as their own trustee and beneficiary to maintain control of the business despite the trust holding ownership. The said owner can then name a successor trustee to take over when they die or become incapacitated.

Early planning for the transfer of a family business will allow one to gradually implement the plan, thus increasing its chances of success, and will ensure that one’s family’s primary source of income is secured.

If the deceased owner held the business in his or her own name, the Estate will likely be the new owner. In that case, the Executor or Personal Representative of the Estate would be in charge of the probate estate as well as the subject business. If Trusts are involved, then a Trustee may take the lead.

The benefits of Family Succession planning do the following:

• It assists in addressing family ownership and family business leadership issues.
• Family and Business remain integrated and synchronized.
• Family Wealth is maintained and managed effectively.
• Family and Business can create legacies.

As discussed, a small business owner in Florida can benefit from a variety of estate planning strategies, including but not limited to:

• Governing Documents- For many families, the business’s governing documents, such as a partnership agreement, operating agreement, or bylaws, may not have ever been put in writing. It is essential to create an agreement which controls what happens if one or more of the business partners retire, become incapacitated, or die. 
• Powers of Attorney- This document allows an owner to select the person who will take over and safeguard their interests in the business if they are incapacitated.
• Trusts- A well-drafted Trust will ensure that one’s business interest is transferred to their beneficiaries after death. Depending on the governing document, there may be transfer restrictions to other parties, such as a trust (be sure to review those governing documents first, if any).
• A Buy-Sell Agreement- An owner can create a buy-sell agreement, which allows their business partners to assume control of the business interest upon death, and also allows the deceased owner’s beneficiaries to retain the deceased’s share in the subject business.

However, any interest in the potential usefulness of an inheritance agreement contained in an LLC operating agreement must be tempered by the lack of Florida law precedent approving such agreements.  If other options are available to achieve the same goals, including but not limited to revocable and irrevocable trusts, it might be wise to use the other options to the extent possible.  Regardless, in certain situations, an inheritance agreement contained in an LLC operating agreement may be the most suitable option.

The foregoing is a brief and general overview of the various aspects to consider when preparing a business succession estate plan in Florida.  There may be other options or strategies not mentioned herein.

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.

In general, inheritance rights include very close relatives such as a surviving spouse and sometimes children or grandchildren who may have the right to claim an inheritance, and in some cases this situation can override what is stated in one’s Last Will & Testament. Inheritance rights can be designated in a Last Will, Trust, or other legal documents or by state law if no such documents exist.  The strongest rights to the intestate estate (no Last Will) in Florida belong to the surviving spouse. According to Florida inheritance laws, the surviving spouse will usually receive 100% of the estate if there are no surviving children or if the only surviving children belong to the surviving spouse and the deceased.

In Florida, if a loved one dies intestate, their property would be transferred to their spouses, children, grandchildren, the deceased’s parents, and finally the decedent’s siblings. If none of the heirs-at-law remain alive, then other descendants may have a claim to the estate.

In most circumstances, a surviving spouse and a minor child cannot be completely omitted or excluded from a Last Will or the deceased party’s estate.

In the community property states (i.e., Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin, and Alaska), such states have their own rules about what spouses own and can claim. Basically, each spouse automatically owns half of what either one earned during the marriage, unless they have a written agreement to the contrary (Prenup, Postnup, etc.). Each spouse can do whatever he or she desires with his or her own half-share of the community property and with his or her separate property.

In many other states, there is no rule or guarantee that property acquired during marriage is owned by both spouses. Consequently, to safeguard spouses from being disinherited, most of these states give a surviving spouse the right to claim 30% to one-half of the deceased spouse’s estate, no matter what the Last Will or other documents may state. In some states, the amount the surviving spouse can claim depends on the duration of the couple’s marriage.

If the survivor goes to court and/or proactively asserts that the share allowed by law is valid, these provisions come into effect.  If a surviving spouse does not object to receiving less, the Last Will & Testament is honored as written.

In most states, obtaining a divorce automatically revokes gifts made to a former spouse in a Last Will. However, to be on the safe side, if one gets divorced, then create a new Last Will which revokes the older one. Afterward, one can simply leave their ex or former spouse out of their new estate plan.

Generally, adult children have no right to inherit anything from their parents. In certain circumstances, minor children may be entitled to claim a share of a deceased parent’s property. The Florida Constitution prohibits the head of a family from leaving his or her primary residence or homestead to anyone other than a spouse or minor child if either is alive.

A number of other states do have laws to protect against accidental disinheritance. These laws usually kick in if a child is born after their parent made a Last Will that distributes property to siblings, and the parent never revises the said Last Will to include that child. The law presumes that the parent did not intend to omit the newest child, but just did not timely or adequately review and revise their Last Will. In such a circumstance, the overlooked child may have a right to a significant portion of the parent’s assets.

In some other states, these laws apply not only to children, but also to any grandchildren of a child who has passed away.

If one decides to disinherit a child, or the child of a deceased child, one’s Last Will or other legal documents should clearly state their intention to do so. Alternatively, if one has a new child after they have prepared their Last Will, then they should promptly create a new Last Will or estate plan.

The foregoing is a brief and very general overview of what is considered estate planning and inheritance rights in Florida, as well as other states.

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.

Last Wills & Testaments and Living Trusts as well as Designations of Beneficiary and Lady Bird deeds allow a Florida resident to decide what will happen to their property and assets after death. Unfortunately, there are individuals who take advantage of ill or elderly adults to manipulate their estate planning documents to benefit themselves. Under Florida law, this manipulation is called Undue Influence.  It is a common basis for a family member to contest such Last Will or Trust, etc. 

Undue influence is complicated to prove and requires more than a mere hunch or gut feeling. In Florida, one needs solid evidence showing not only that undue influence was present but that it also affected the distribution of assets. If one is concerned that a loved one’s Last Will or Trust was impacted by undue influence, they should reach out to an attorney experienced in the area of Undue Influence.

Undue influence occurs when one party takes advantage of another, more vulnerable party. Undue influence can be present in many situations, but it is commonly seen in the cases of Last Wills and Trusts. If an individual suffers from illnesses such as Alzheimer’s disease or dementia which result in limited mental faculties or is dependent upon another person for care, it can leave that individual open to control, influence and/or manipulation. More commonly, one sees people exert undue influence to financially benefit themselves by either adding themselves as a beneficiary in estate planning documents or by increasing the share they receive and potentially removing other beneficiaries.

Undue influence can show up in many different ways, but there are signs commonly seen which show that an individual was experiencing undue influence when creating their estate planning documents:

• Terms of the document – If the document has provisions or distributions that are unexpected or unreasonable, that is a telltale sign of undue influence. Examples of such terms include leaving a close family member out of the Last Will or Trust or leaving a surprisingly large amount to certain individuals or organizations with no explanation.
• The capacity of the individual – If, at the time the estate planning document was created, the individual creating such document suffered from circumstances that made them vulnerable, that may have been another sign undue influence may have occurred. Circumstances that make an individual vulnerable can include illness, injury, or medications the individual was taking.
• Dependency – If the individual creating the estate planning documents is dependent on another person for care, this unequal power dynamic can lead to undue influence. The subject individual may feel that they need to follow their caretaker’s instructions to ensure their own wellbeing.

There are certain relationships that make undue influence more likely, including:

• Family relationships – Most often, undue influence occurs between family members. Family members tend to have a closer, more confidential bond, which can be utilized for financial gain. The exploitation of elderly family members is very common, and undue influence is just one way it can manifest.
• Caretaking relationships – Whenever a person is dependent on another for care, they are more likely to be exploited. Often, a caretaker is also a family member, but it is not necessary. Paid caretakers can also exploit those they care for and can be the ones exerting undue influence.
• Legal relationships – By definition, legal relationships are confidential and often close. Individuals often confide in their legal representatives that they would not share with others.  This kind of relationship can make an individual more susceptible to undue influence.

Proving undue influence can be a challenge. Oftentimes, the person unduly influencing the individual has what looks like a close relationship with the said individual. It can be difficult to ascertain if that close relationship ever turned into exploitation. In order to assist individuals on demonstrating that undue influence occurred, the Florida courts have determined specific factors to use when evaluating a claim of undue influence. These factors are designed to help determine if a person actively procured a change in terms of a Last Will or Trust, including:

• Was the individual accused of excessive or undue influence when the document was drafted and executed?
• Was the individual accused of asserting undue influence present when the desire to create the document was expressed?
• Did the individual accused of undue influence recommend an attorney to prepare the documents?
• Was the individual accused of undue influence aware of the contents of the document prior to its execution?
• Did the individual accused of undue influence provide instructions to the attorney preparing the document?
• Did the individual accused of undue influence assist with securing witnesses for the document signing?
• Did the individual accused of undue influence keep the document after it was executed?

It is crucial to be aware that a claim for undue influence cannot be pursued until the grantor or testator has passed away. There can be a significant amount of time between the undue influence and the grantor or testator’s death, which makes undue influence even more difficult to prove. In many cases, events occurred so long ago that the person being accused of exerting undue influence is the only one left with firsthand knowledge of the circumstances surrounding the execution of the documents in question.

The courts in Florida recognize this difficulty, and to make it easier to prove undue influence, the court will alter or shift the burden of proof in certain cases. 

If the person bringing the claim for undue influence can show all the following, then the court will shift the burden of proof to the individual accused of undue influence:

• The person accused of undue influence receives a substantial benefit as the document is written.
• The person accused of undue influence had a confidential relationship with the grantor or testator.
• The person accused of undue influence was actively involved in the procurement of the Trust or Last Will.

Some of the above items are easier to prove than others. The terms of the Last Will or Trust are straightforward, and the relationship between the parties is also easier to determine as there are usually witnesses who can testify to the nature of the relationship.

Showing an individual was actively involved in the procurement of the document is more challenging. The seven factors outlined above are strong indicators of active procurement, but there is no one specific factor that definitively proves undue influence, and the court will examine additional factors that may be presented or provided.

On such occasions, it is particularly beneficial to have an experienced attorney on the challenger’s side. An attorney who is familiar with undue influence and estate litigation can assist in the identification of these nuanced factors and work with a family member to create the most effective case possible. An experienced attorney will also ensure that the family member understands all the issues surrounding the burden and proof and the impact the judge has on their claim moving forward.

Even though the court may decide that the above-listed elements have been met and the burden of proof shifts, this does not mean that undue influence is sufficiently proven, and the document will be invalidated. It only means that the individual accused of undue influence must demonstrate by a preponderance of the evidence that they did not exert undue influence.

Similarly, if the burden of proof does not shift, that does not mean that your case is automatically over. One will still be able to demonstrate that the individual exerted undue influence, but they will be the one who has an obligation to prove it.

To contest a Last Will or Trust due to undue influence, a party has to have legal standing. Legal standing means that the person challenging the document has an interest in the estate. The most obvious parties to have standing to challenge a Last Will or Trust are the beneficiaries and/or family members. However, the issue of standing is not always clear.

A party can argue that they have standing if they have an interest in the current Trust, a prior Trust, the Trustee, or the Grantor. This is a large group that may include numerous individuals.  If one is uncertain if they have the standing to challenge a document and bring a claim of undue influence, then they should contact an experienced estate litigator who can review the facts and advise them of their rights.

If a Florida resident is concerned that a loved one’s Last Will or Trust was the product of undue influence or if they themselves have been accused of exerting undue influence, they should not hesitate to act. Such a person needs a lawyer who is on their side and can guide them through this process. Effectively arguing the subject matter can be difficult, stressful, and complicated. A Florida estate litigation attorney experienced in handling undue influence claims will be able to fight to ensure that their loved one’s true wishes are fulfilled.

The foregoing is a brief and general overview of what may be considered Undue Influence in Florida.

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.

A parent should consider advising their teenage child who is now a new legal adult of their family about Estate Planning.

Better yet, a parent should take their son or daughter to their attorney’s office and have the estate planning lawyer prepare a number of basic documents such as a simple Trust or Last Will & Testament, a Durable Power of Attorney, a Healthcare Surrogate or  Power of Attorney, and a Living Will (Advance Directive).

Actually, it will be a benefit to both the said adult child as well as parent because once a child reaches legal age, their parent will no longer be able to make decisions for the  child’s health and finances (or even have access to their child’s healthcare or financial information) without the appropriate legal documents authorizing them to do so.

If one’s child becomes ill or injured and cannot handle their own financial affairs, a parent will not be able to step in and conduct business on their child’s behalf (e.g., sign checks, sell assets, access private school or medical information, etc.) unless their child has a trust or a durable power of attorney and has named their parent as successor trustee or agent. If not, the parents will have to go through the courts for a legal Guardianship, which will take time, cost significant money, and restrict them in ways they could never imagine. Some financial institutions and/or governmental agencies may not even accept a durable power of attorney or may also require their own forms; consequently, make sure the parent and the adult child check with each financial institution and/or governmental agency.

If one’s adult child cannot make his or her own healthcare decisions, it will be much easier for a parent to make them if the subject adult child has a healthcare power of attorney which names the parent as healthcare agent, surrogate, or proxy. Further, what if said child were to become seriously ill or injured in which he or she is placed on life support before the parent arrives at the hospital? Unless the child has made his or her wishes known through the proper legal document, the parent may not be able to have the equipment removed without court approval.

Finally, if one’s adult child were to die without a Last Will, the court will distribute the subject child’s assets according to the laws of the state (Intestacy or next of kin) in which the said child resided, regardless of what either of the child or their parents would have wanted or intended.

As time passes, make sure the new adult child understands that all these documents will need to be updated as the said child’s,  as well as their parent’s, life changes such as when the child accumulates more assets, and as the child and their own loved ones move, marry, have children, divorce, and pass away.

Assisting and advising one’s children to begin with this responsibility now they become legal adults is an important task one has as a parent.  It goes hand in hand with teaching them how to balance a checkbook, manage a credit card, and purchase insurance.

Chances are, it will be a long time before any of these documents will actually be needed. However, a Florida resident will be sending their adult child out of the family home and into the world with a full layer of protection, just in case.

The foregoing is a brief and general overview of what a Florida parent should recommend to their new adult child regarding Estate Planning.

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.