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.

For a multitude of reasons, Florida residents may want some or all their assets to pass directly to specific individuals upon their deaths, outside of the probate process. One way to carry this out is to list a designation of beneficiary or set up an “in trust for” (ITF) or “payable on death” (POD) account for money in a bank account, IRA. 401(k), etc., or a “transfer on death” (TOD) account if funds are in a brokerage account.

Probate is the process by which a Florida court determines how to distribute property or assets after an individual’s death. Some assets are distributed to heirs by the court (probate assets) and some assets bypass the court process and go directly to beneficiaries (non-probate assets). With ITF, POD, TOD and/or designated beneficiary on accounts, the account owner names a beneficiary (or beneficiaries) to whom the account assets are to pass or be distributed when the owner dies. Usually, all that is required to get the money or control of the account is for the beneficiary to show a bank officer or the brokerage firm an original death certificate of the owner as well as various requested forms of identification for the beneficiary and possibly a claim form. The funds pass outside of probate, meaning that the beneficiaries can receive the money quickly without the involvement of the county Florida Probate Court. The account assets also receive a “step-up” in basis when the original owner passes away, meaning that the beneficiary gets the value as of the owner’s date of death for capital gains tax purposes.  However, one should never hesitate to consult their accountant, CPA, or Tax advisor to confirm it.

During the account holder or owner’s lifetime only the account owner has access to the assets.  The named beneficiaries have no control over the subject account, and the owner can change beneficiaries at any time, if competent to do so. If the named beneficiary predeceases the account owner, then the assets are distributed to the remaining beneficiaries or to successor, contingent or alternate beneficiaries, depending on what the owner names or lists on the beneficiary designation form or online. If there is only one beneficiary and that beneficiary predeceases the said owner, and the owner makes no subsequent changes to the beneficiary designation, the assets go into the account owner’s probate estate and will be administered via the probate process in court.

Ultimately, receiving assets could become a problem for certain beneficiaries, such as a child with special needs who depends on Medicaid and/or receives other public or governmental benefits. If the account amount is sufficiently large that could jeopardize the beneficiary’s eligibility for needed governmental benefits, then, it would be advisable to do special needs planning, such as naming a Special Needs Trust as the beneficiary to avoid the subject assets interfering with the receipt of governmental benefits.

Further, another issue with passing assets through accounts like these is that individuals sometimes forget about the accounts, and their existence can confuse an individual’s estate plan. For example, the Last Will & Testament may show that everything should be distributed equally to the account owner’s four children, but the said account passes assets to only one child, creating unequal shares among the children. Therefore, planning the estate should take all these aspects into consideration so they accomplish the overall desired result. 

If avoiding probate is the goal, a Lady Bird deed can be used for Real property (especially the primary residence), or one may put assets into a revocable trust that clearly expresses by its terms who should get what.  However, these potential problems are much less of an issue if the estate is a basic or simple one, i.e., where there is one surviving parent with only one child as the beneficiary.

The foregoing is a brief and general overview of what the concept is regarding designation of beneficiaries in the state of 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 is a large umbrella encompassing many aspects of life and can be defined as any legal issue involving health and personal care planning for senior citizens and their caregivers.

This area of practice encompasses all aspects of planning for aging, illness, and incapacity, including advance directives; lifetime planning; family issues; fiduciary representation; capacity issues (i.e., Alzheimer’s and Dementia, Parkinson’s); guardianship and guardianship advocates (for minors, adults, and people with developmental disabilities); powers of attorney (medical and financial); financial planning; public benefits (Medicaid and Veteran’s Benefits) and health insurance (such as Medicare); resident rights in long-term care facilities; housing opportunities and financing; employment and retirement matters; income, estate, and gift tax matters; estate planning (Last Wills and Trusts); probate; nursing home claims; elder abuse; age or disability discrimination and grandparents’ rights, depending on the state.  Another part of elder law may include disability planning. This area includes the planning of monetary gifting to a disabled family member or loved one (particularly those diagnosed with developmental disabilities such as autism, down syndrome, cerebral palsy, etc.) while still protecting public benefits such as Medicaid and SSI, through the creation of a Special Needs Trust.

This area of law can also include the civil and criminal defense of individuals who are civilly sued or criminally charged with violations of their positions regarding their duties towards the elderly in their family or custody and/or care.

In Florida, elder law clients are primarily senior citizens and their caregivers (familial or professional), or the family of individuals diagnosed with developmental disabilities; the specialization requires a practitioner experienced in the legal issues affecting these clients.

Mistreatmentof the elderlyis a recognized concern and will undoubtedly increase over the next several decades. With the population aging and people living longer, elder abuse is increasingly prevalent.

​Elder abuse, or financial exploitation, is also known as financial abuse.  This abuse occurs when someone misuses or takes money from a vulnerable elderly person.

Financial abuse can include the misuse of powers of attorney and guardianship, illegal transfers of property, and outright fraud and theft. Financial exploitation can also occur after a person’s death, through the mishandling of a deceased party’s estate and distribution of property.

In order to detect the ongoing situation, one can look for certain signs, and if one observes an elderly person who appears to be affected by any of the following situations, then some proactive measures should be taken. Signs can include when the senior becomes isolated from friends and/or family; seems afraid to speak in front of caregiver/companion/family member; is receiving care well below the level they can afford; is unable to spend money the way they want; seems as if they are being forced to sell or give away property, sign over Power of Attorney, or change title of property to someone else; sudden changes in their financial situation or their bank account shows unusual activity; and/or sudden changes in their beneficiaries in their Last Will or Trust.

Financial abuse against seniors is particularly difficult to detect since they are often unreported by victims. In many cases, it is up to family and friends to discover the wrongdoing and file a complaint. Concerned friends, neighbors, and family members can help prevent financial abuse of the elderly by checking in with the person from time to time as many vulnerable victims are isolated from others. A few preventative measures might include occasionally arriving at the elderly person’s home without calling, asking questions when circumstances do not appear quite right, and listening and observing carefully for any potential problems.

If a Florida resident believes that an elderly person may be a victim of financial fraud, or any other type of abuse, then should act promptly. Time is of the essence and the proper course of action will depend on the urgency of the situation. If the situation involves physical danger, it is best to call 911, or get the local police involved. In Florida, one can also contact the local Adult Protective Services through the Dept. of Children & Families (DCF) who can investigate the situation.   

​If an individual suspects that a family member or loved one is no longer capable of making good financial decisions on their own, they can initiate guardianship or conservatorship proceedings.
  

To Report Elder Abuse, Neglect, and Exploitation, the same can be reported by phone – call Florida Abuse Hotline at 1-800-96-ABUSE (1-800-962-2873), then press two (2) to report suspected abuse, neglect, or exploitation of a vulnerable adult. This toll-free number is available around-the-clock.

Pursuant to Florida statute Chapter 415- Adult Protective Services terms are defined: (1) “Abuse” means any willful act or threatened act by a relative, caregiver, or household member which causes or is likely to cause significant impairment to a vulnerable adult’s physical, mental, or emotional health.

To demonstrate there was a breach by the fiduciary or someone else, one or more of the following must be proven:

1. Extensive withdrawal from monetary accounts.
2. Increased or changed spending habits.
3. Someone added to the senior’s financial accounts.
4. Unpaid health care costs or no health care.
5. Changes in the senior’s estate.
6. Changes in the senior’s personality.
7. Payments or gifts that seem excessive.

Financial abuse of the elderly includes an array of behaviors from the theft of property to “borrowing” property from an elderly individual with the intention of keeping it because of the individual’s poor memory or lack of will or ability to retrieve it. It also occurs if someone uses undue coercion or influence to convince an elderly person to change their Last Will or convey property. 

There are many people who can commit financial elder abuse, including friends, family members, and even service providers, such as nursing home employees, caretakers, attorneys, and accountants. Even strangers may befriend an elderly person to try and gain access to their property. 

In the state of Florida, anyone who is in a position of confidence or trust in an elderly person is expected to put the elderly person’s needs first and not to use or obtain the assets belonging to the elderly for their own or someone else’s purposes. The potential legal consequences of violating the elder exploitation laws in Florida are severe and may include attorney’s fees, triple damages, and punitive damages. 

The crime of Exploitation of an Elderly Person or Disabled Adult of $10,000 to $50,000 is a Second-Degree Felony in Florida and punishable by up to fifteen years in prison, fifteen years of probation, and a $10,000 fine.

The types of elder abuse include:  Neglect, Physical abuse, Sexual abuse, Abandonment, Emotional or psychological abuse, Financial abuse, and/or Self-neglect.

When a caregiver or other person uses enough force to cause unnecessary pain or injury, even if the reason is to assist the older person, the behavior can be considered abusive. Physical abuse also encompasses behaviors such as hitting, beating, pushing, shoving, kicking, pinching, burning, or biting.

Florida Statute section 415.1111 gives “vulnerable adults” a civil cause of action for damages, punitive damages and attorney fees and costs when they have been financially exploited. There are also criminal penalties that can be pursued by the State of Florida through their local States Attorney’s office.

The Department of Justice describes the term “exploitation” as referring to the act or process of taking advantage of an elderly person by another person or caregiver whether for monetary, personal, or other benefit, gain or profit. Undue influence is the misuse of one’s role and power to exploit the trust, dependence, and fear of another to deceptively gain control over that person’s decision in a particular matter. Along with capacity and consent, undue influence is a key concept in elder law.  Federal agencies such as the Departments of Justice (DOJ) and Health and Human Services (HHS) are also involved in protecting people from such abuse.

Under Florida Statute 775.15(10), the statute of limitations requires that the prosecution is commenced within five (5) years after an offense is committed in violation of the following:

• Section 825.102 prohibits the abuse or neglect of the elderly or disabled; or
• Section 825.103 prohibits the exploitation of the elderly.

On March 22, 2020, Attorney General Ashley Moody announced the creation of Florida’s Senior Protection Team. The intra-agency group of experts works in tandem to fight fraud committed against the elderly. Florida’s Senior Protection Team is comprised of members from: the Attorney General’s Office of Statewide Prosecution, Consumer Protection Division, Medicaid Fraud Control Unit and Office of Citizen Services.

The Florida Department of Law Enforcement also helps Florida’s Senior Protection Team with investigations into civil, criminal, and healthcare fraud committed against Floridians who are sixty (60) years of age and older.

Although Florida’s Senior Protection Team deals with elder exploitation issues, those issues are typically handled within the jurisdiction and expertise of local law enforcement or other state agencies, like the Florida Department of Children and Families, the Florida Department of Elder Affairs, and/or the Department of Financial Services.

Even physicians, nurses, and other health care providers can be accused of exploitation of a disabled adult or elderly person. The Florida Attorney General’s Medicaid Fraud Control Unit oversees many of these investigations. Related charges can include being engaged in a scheme to defraud.

The foregoing is a brief and general overview of what is considered Elder law and Elder abuse in the state of 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.

In general, Estate Planning involves making a written plan in advance for whom a person wishes to receive one’s assets after death and naming who they wish to make decisions for them if they become incapacitated.

1. It provides instructions for what to do with one’s assets and property after they have passed away.
2. It provides instructions for a person’s care and how to manage their finances if they become incapacitated.
3. It identifies a Guardian or Custodian and a Trustee to manage one’s minor children and/or their inherited assets.
4. It helps prevent disputes among beneficiaries and/or surviving family members.
5. It can provide for family members with special needs without disqualifying them from government benefits.
6. It can include life insurance to provide for one’s family at their death; disability income insurance to replace income if one cannot work due to illness or injury; and long-term care insurance to provide assistance in case of an extended illness or injury.
7. It enables the transfer of a party’s business from their retirement, disability, or death.
8. It takes care of loved ones who may be irresponsible with money or who may need to be protected from creditors or ex-spouses.
9. It can reduce taxes, court costs, and unnecessary legal fees.
10. It can be altered and updated as one’s family and financial circumstances, and relevant laws, evolve or change over their lifetime.

The foregoing is a very brief and general overview of the assorted reasons to consider when preparing an estate plan for Florida residents.

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 law does not provide unmarried couples with the inheritance protections and automatic decision-making authority it provides to married couples.  Unmarried couples have virtually no rights under Florida statute. Consequently, many of those rights can be created with proper estate planning documents.  Unmarried couples, in particular, must take practical steps to plan for the future.  Unmarried couples should make estate planning a priority.

Estate planning in Florida is essential to guarantee the estate distributes property and assets according to the deceased person’s wishes. If a person should pass away without executing a Last Will & Testament, or Trust, his or her property will be distributed in accordance with Florida’s Intestacy law. Essentially, a married couple is treated as a single entity under the law. Domestic partners and others in non-traditional relationships do not count as heirs under Florida probate law.  Therefore, unmarried partners do not have access to these same protections. Florida does not recognize common law marriage, so even long-time partners could be cut off from interests in their partners’ property after their deaths.  Unmarried couples can also consider holding certain assets, such as real estate or bank accounts, in joint ownership with rights of survivorship.

It is estimated that the number of cohabiting unmarried couples or partners has increased by 88% between 1990 and 2007, and the committed unmarried couple is the fastest growing segment of the relationship population in the United States. This trend is expected to continue, as modern society struggles to find continuing long-term value in marriage, which is the principal legal fiction used to extend a legal relationship, which began by blood only but was expanded to adoption, to people who were not otherwise related by blood or adoption, i.e., by legal marriage, for purposes of the laws of descent and distribution.

While working with unmarried partners on the personal or human side of estate planning is not too dissimilar from working with married partners on their estate planning, current law treats these two groups, i.e., married v. unmarried, entirely differently on the legal side of estate planning. Again, the two principal differences are the laws of descent and distribution, both testate and intestate (the default rule for people who die without a valid Last Will & Testament which transfers their entire estates) and the laws of marriage, which imbues a married surviving spouse with preferred rights in a whole panoply of areas, including property and estate administration rights and responsibilities, as well as in personal care and taxation.

On the one hand, the lack of current applicability of the legal default rules of legal relationship (unmarried and otherwise unrelated people are strangers in the law) and descent and distribution give estate planners a tabula rasa, but there is no default rule safety net. For this reason, many experts in the field call estate planning for unmarried couples “the wild, wild west of estate planning.”

Estate planning must now focus on the unique problems and issues that unmarried couples and their estate planners face.  There are now numerous factors to consider such as:

• The legal atmosphere for an unmarried couple is different than for married couples-in the world of married couples, the legal institution of marriage eventually came with its preferential rights for surviving spouses by way of the laws of descent and distribution, in which the surviving spouse enjoys in virtually every set of intestacy laws throughout the nation. The legal atmosphere of unmarried partners is without these very effective default rules.
• Why unmarried couples’ estate planning needs to be done in an expedited way, discussing the risks attendant to no protection against the HIPAA privacy protection.
• Legal Status-putative or common law spouses-what about agreements or negating post-death attempts to claim status as a common law or putative spouse, or palimony.
• Property Agreements-Attorneys, and their clients should discuss the structure of a property agreement between unmarried partners and creative use of entities.
• Differences in the income and transfer tax treatment between married and unmarried couples.
• Domicile and Governing Law-This can become particularly acute if the couple lives part-time with each other or separately and part-time together in different jurisdictions.
• Life and Health Insurance; Other Benefits-should be discussed as well as the challenges in this area, including County Domestic Partner forms-for Insurance purposes and employment benefits, etc. and Domestic Partnership Agreements.
• At the Outer Edge-Adult Adoption; visitation agreements, etc.

The foregoing is a brief and very general overview of the various initial steps to consider when preparing an estate plan for an unmarried but committed couple in Florida, whether part-time or full-time residents.

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.

Think of an estate plan as a security blanket for a Florida resident’s possessions as well as for family or loved ones. What happens when a person becomes seriously ill?   Upon death, how much of one’s estate is distributed among their family or loved ones? All questions can be answered in a carefully crafted estate plan.

All factors considered should focus on creating an effective plan. The most difficult challenge is setting up terms and knowing where to start. Fortunately, with professional guidance from an experienced attorney, the more beneficial an estate plan will be.

Planning for the future does not have to be a daunting task. The estate planning process can be broken down into steps, geared towards proper asset-planning in a simple manner. Once an individual decides to meet with an estate planning attorney, it will be that much easier in completing the plan and moving forward.

To get a head-start on planning, a person can follow these seven (7) practical and straight forward steps:

First, narrow down what belongs to the party. An estate is important and the more one owns, the more meticulous the plan should be.

Second, once everything one owns is identified and itemized, list who gets what. Beneficiaries can either be family members, loved ones, cherished organizations or close friends. A Last Will & Testament also states, lists, or names who will take custody or guardianship of one’s minor children, if applicable. A Declaration of Preneed Guardian for Minors can be used for this purpose as well.  Be sure to update the Last Will after significant life events, like marriage, divorce, birth or death of a child, or retirement and the like.

Third, avoiding the arduous process of probate, or trust administration, can be the goal of forming a trust, designating beneficiaries on accounts, or preparing a Lady Bird Deed for real property in Florida, particularly for a homestead primary residence. Upon an unexpected illness or death, the trust, designated beneficiaries, or Lady Bird Deed guarantees the estate will be handled correctly according to the stated terms.

Fourth, healthcare programs are meant for financing assisted living and nursing homes, depending on whenever one might require special housing or medical facility arrangements. Whenever the situation arises, a person will be glad they have a healthcare plan in place.

Fifth, especially if an individual and/or couple have young children and/or own a house, purchasing a life insurance policy financially benefits those left behind after death.

Sixth, with all the proper paperwork kept in one specific place helps the maker of the same to stay organized and easier for those who follow.

Seventh, an experienced estate plan attorney can guide the individual every step of the way. The attorney can educate clients and aid in fine-tuning the subject estate plan while maximizing its benefits for the creator of the said plan and their loved ones or beneficiaries.

The foregoing is a brief and general overview of the various steps to consider when preparing an estate plan 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.

Those Florida families with large support systems and close, loving relationships with friends and family already know they have a built-in system. They can raise their children in an environment where they can feel fully supported. However, even in situations where one believes their children will be safe and well cared for if they can no longer care for those minor children, should not leave it up to family or the court system to determine guardianship in their absence. It may lead to legal complications and disputes that could ultimately cause harm to said minor children. Learning about the impact planned guardianship can have will benefit an estate plan and potentially one’s minor children.

If and when a minor child’s parents pass away or are otherwise unable to care for them, the court will determine who will make decisions on behalf of the minor child, unless there is a named Guardian within the estate. The judge will do the best they can to make this determination in the best interest of the said minor child, but the reality is that they do not personally know the subject children nor their particular family dynamics.

In some cases, one may not have a good relationship with a family member, but after their passing, if the said relative petitions for guardianship of the deceased party’s child, it is possible that the judge will select them for as a legal guardian. They could have complete control over that individual’s child’s inheritance, well-being, and the values with which they will be raised. On the other hand, said party may be expecting someone close to them will be able to step in and become a Guardian. However, in that moment, that particular person may not be prepared or willing. 

Naming a Guardian in a Trust or a Last Will or Declaration of Preneed Guardian for Minor Children can eliminate any ambiguity about one’s desires or wishes. With a named Guardian, the minor children will be cared for by someone the deceased parent approves of, and it will be more difficult for anyone to dispute their guardianship rights if said parent becomes incapacitated or passes away. Incorporating these estate planning tools can protect one’s child’s inheritance or give the Guardian the financial means to raise the child.

Choosing someone to be a Guardian is not an easy task. If possible, it should be someone who is close to the parents and their children. They should understand and respect the personal values and beliefs of the said parent and be willing to impart them to the subject minor children. A potential Guardian should also be fiscally responsible. Anyone who is expected to raise a child should have the financial means to do so. If tasked with managing the child’s inheritance, they should be capable of using it for the best interest of the child and not for personal gain.

Although one’s children may not need to be directly involved with the estate planning process, generally, it may be important to consider their wishes when it comes to guardianship. It should be a collaborative process between the parents, their children, and their prospective Guardians. The most important characteristic of a Guardian is that they care about the subject minor children and are willing to care for their needs in the said parent’s stead. 

The process of selecting and incorporating a Guardian for one’s children within their estate plan may be a bit challenging, but the benefits are well worth it. The parent who may become incapacitated or pass away can have peace of mind knowing that their minor children will be safe and well cared for and that their inheritance will be protected.

On can name a Guardian in a Last Will & Testament and use a testamentary Minor’s Trust for receipt of assets, a Living Trust and/or Preneed Guardian Declaration or Designation.

The foregoing may not be an easy subject for parents to consider and contemplate, but it is a possibility. Without comprehensive estate planning, one could leave their minor children and dependents vulnerable. However, with the proper estate planning tools, a Florida resident can rest assured that their loved ones are appropriately cared for and their future secure.

The foregoing is a brief and general overview of advanced naming of a Guardian for Minor Children 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 is contemplating estate planning, they have heard or seen the term “probate” come up quite often. If one has never gone through probate, they should learn more about it. Probate is the legal process through which a deceased person’s assets are distributed to surviving heirs or beneficiaries. Many families work hard on their estate plans to limit the potential impact probate will have on their family.

During probate, the court will supervise the administration of the deceased individual’s estate. This process starts with validating the Last Will & Testament. A handwritten note may help influence the court’s decisions, but it is only valid if it has been signed by two (2) witnesses. In Florida, the Last Will does not necessarily have to be notarized. However, to avoid requiring the two (2) witnesses to testify that the Last Will is valid, said Last Will must be notarized after the maker and the two (2) witnesses sign it a second time to make it self-proving. Once the Last Will is deemed valid, it will serve as the legal document guiding the distribution of assets.

The court will appoint a Personal Representative or Executor who will be responsible for managing the estate during the probate process. They are required to identify and gather the decedent’s assets, notify creditors and heirs or beneficiaries, pay outstanding debts or taxes, then distribute the remaining assets as specified in the Last Will or by Florida law if no Last Will exists. A well-organized estate may be able to make quick work of these tasks, but the more complicated the estate, the more likely it will face difficulties during probate.

While probate is a necessary legal process in many cases, there are many reasons why so many people try to avoid it entirely. The main disadvantage of probate is that it can be a very time-consuming process. It can take months to years to complete. These delays can lead to financial hardships as the Personal Representative works to itemize all the assets and beneficiaries await their inheritance.

Probate can also be costly. All from the mounting fees from the courthouse proceedings to property appraisals can affect the value of the estate. For estates with additional property abroad, or in another jurisdiction, there could be an entirely different process compounding the fees and potentially the time it takes to get through probate. 

For many families, the idea of their loved one’s estate being public record is concerning. Probate is a public process, so the details about the estate, including its value and how it was distributed become a part of the public record. This lack of privacy can also lead to family disputes. The proceedings sometimes lead to beneficiaries having disagreements about how assets are distributed, which can strain family relationships. 

After working diligently one’s entire life, the last thing they want is for the government, through the County Probate Court, to oversee their estate distribution. To do this, every individual needs to plan well in advance to ensure that their assets are protected. It is important to remember that estate planning is for everyone, and there are many legal strategies that will preserve the legacy a Florida resident has created.

Working with an estate planning attorney is one’s first line of defense against the potential drawbacks of probate. An effective estate planning attorney will help organize and examine the specifics of an individual’s estate and make recommendations like establishing a trust, gifting strategies, and beneficiary designations as well as Lady Bird Deeds to accomplish this goal. Every estate is unique and estate planning attorneys can provide guidance.

The foregoing is a brief and general overview of the strategies to avoid probate 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.