Estate Planning empowers Florida residents to make their own decisions and choices about their future and the future of their loved ones. The following are a few of the most common reasons people decide to create an estate plan. 

Avoiding probate is easily one of the most common reasons people seek out the guidance of an experienced Estate Planning Attorney. Any individual who has ever had to deal with the stress, strain and cost of probate knows that they want to avoid it at all costs. Probate is perceived as the painful process which takes place after someone’s death. It usually involves proving to the court that a deceased person’s Last Will & Testament is valid, or worse still-without a Last Will, identifying heirs or beneficiaries or family members, itemizing and cataloging the deceased individual’s property, appraising that property, assigning, and paying debts and taxes and distributing the remaining property. As can be seen, it can be an involved and expensive process with a number of variables and opportunities for issues, conflicts, and family infighting. Typically, this process involves lawyers and court fees that are paid for by the subject estate, which wastes money and resources that could otherwise go to the individual’s heirs, beneficiaries or loved ones. While many of the problems with this process may seem obvious, many others can be found in the countless stories regarding the probate process. That is why the best practice is always consulting an experienced attorney that can assist in avoiding these issues before they ever become a factor. 

One tool that many estate planning lawyers use to avoid probate is a Trust. Unlike a Last Will, a Trust allows a person to transfer property to their heirs without having to go through probate and can provide tax benefits. 

The very real prospect of losing a sizable portion of a deceased’s hard-earned estate to state and federal taxes is always a great incentive for seeking estate planning advice. Using their attorney, married couples can reduce or even eliminate many estate taxes altogether by using tools like AB trusts or ABC trusts, among others. An individual can also reduce the burden of inheritance tax on their children or grandchildren quite significantly if they seek proper legal advice in advance. 

In Florida, one can also avoid probate by placing designated beneficiaries on applicable accounts and using a Lady Bird deed on real property.

Many residents have heard stories of the unpleasant family infighting that can occur in the aftermath of a loved one’s death. Aside from wasting time and money, failure to make a comprehensive estate plan can create chaos for one’s family and can often lead to major rifts and damaged relationships. Making fundamental decisions such as who will be in charge(an authorized Agent under a Power of Atty to act on their behalf) if a person becomes mentally or physically incapacitated while alive, and/or who gets what, when they will get it and how they will get it(before or after death) can be crucial in avoiding family disputes and costly probate court proceedings. 

Estate planning is much more than just deciding who to leave one’s assets, it is also about looking after one’s loved ones when the parent or spouse, etc. are no longer alive. There are generally two main reasons a person may want to protect their beneficiaries. First, the applicable beneficiary may be a minor, in which case state law (and recommended practice) requires a guardian be appointed to oversee the minor’s needs and finances until they become of legal age. However, as can be suspected, adult beneficiaries may need protection as well, which brings up the second major reason people may want to consult an estate planning attorney. In some instances, a Florida resident may want to protect their adult beneficiary from bad decisions, outside influences, creditors, or even their spouse. One can insolate their beneficiary’s inheritance from an overbearing spouse or a partner who might squander their inheritance or possibly take it in a divorce. 

In recent years, asset protection has become one of the most popular and important bases people consult an estate planning attorney. Once they become aware or suspect that a lawsuit or divorce is on the horizon, it may be too late to put a plan in place which can provide protection. With the appropriate estate plan, one can create a sound financial plan which can protect assets during one’s lifetime and thereafter.

While situations and wishes are different or vary, it is critical to consult an experienced estate planning attorney who will listen to one’s needs and can create a customized plan that puts them, and their loved ones in the best position possible for the future. 

The foregoing is a very brief and general overview of the benefits of having an estate plan done 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.

Even though pre-paid legal services have been around nearly 50 years, legal insurance and/or legal services plans are growing as well as their consumer or member base and provide access to attorneys for legal assistance, including drafting and reviewing documents and consultation or representation in court for many common legal matters. It is also called group legal or pre-paid legal. This type of plan or insurance is most often included as part of a workplace benefits package. Employees can choose to opt for a legal services plan or legal insurance for which they will pay a set monthly premium or yearly fee and have access to experienced attorneys.

Employment of lawyers is projected to grow about 9-10 percent from today to 2031, about as fast as the average for all occupations. There is still a high demand for lawyers in the United States. Demand for legal work is expected to continue as individuals, businesses, and all levels of government require legal services in many areas according to the U.S. Bureau of Labor Statistics.

Reasonable access to adequate and affordable legal services like health care has become a necessity of life.

Still, the majority of Americans do not have access to affordable legal services. When the World Justice Project measured the accessibility and affordability of civil justice in 113 countries around the world in 2017, the United States tied for 94^th place with Cameroon, Uganda, and Zambia. This rating measured whether “ordinary people” could resolve their grievances affordably in the U.S. justice system. This measure showed how widespread the problem is regarding affordable legal services. Contrary to popular belief, it is not just low-income people who cannot afford or have access to legal services but rather includes an estimated 60 percent of the legal needs of middle-income people that are not being met.

Legal insurance and legal service plans are a solution that many employers are using to provide their employees access to legal services for a reasonable price.

These legal insurance or services plans connect people with attorneys who can offer a wide range of legal services, from telephone advice to court representation. These plans use a network of attorneys who have agreed to provide services as part of their contract with the organization selling the plan or insurance to its members. There is always a free initial consultation and later, when retaining the attorney, there are typically no bills or there is a set discounted fee provided the plan member or prospective client who uses a network or panel attorney. 

Legal insurance often covers a wide variety of legal issues, covering nearly everything except workplace matters or business matters. A legal plan or legal insurance will likely come in handy during most situations where legal issues arise.

Historically, Americans have come to think of the legal system as a highly undesirable and expensive final option, and something to be used only when all other viable solutions have been exhausted. One American Bar Foundation study found that only 24 percent of people with civil justice problems used an attorney. According to the Social Science Research Network-these were people dealing with “troubles that emerge at the intersection of civil law and everyday adversity, involving work, finances, insurance, pensions, wages, benefits, shelter, and the care of young children and dependent adults, among other core matters.”  In other words, they were dealing with everyday legal matters that could almost always benefit from an attorney’s guidance, yet attorneys were not hired nor even consulted. Another study found that manypeople are going online and trying to manage these issues alone instead of working with a professional. This is a major concern for several reasons, including that it means people are not getting the best legal outcomes, and when people represent themselves, it slows down the process of the already struggling courts and justice system.

Cost is another significant factor that prevents consumers from working with attorneys. Many working-class Americans believe they cannot afford or may lose money even if they win by retaining an attorney.

Legal insurance and legal services plans remove many of the barriers between attorneys and potential clients. Since the legal plans are aware that consumers are looking online for legal information, they provide online resources that educate legal plan members on the importance of working with an attorney. They guide them through the process of connecting with an attorney so that they become more comfortable using attorneys for a wide variety of legal issues. The foregoing promotes the use of attorney services without increasing the burden on attorneys to be more accessible to clients.

Finally, the most important aspect is that legal plans help overcome financial barriers by standardizing the cost for individuals. For a monthly or yearly premium, the members get access to network or plan attorneys when they require legal assistance.

Attorneys also benefit from more people having legal insurance or legal services plans since the consuming public are more likely to use an attorney’s services instead of trying to resolve an issue on their own.

With employees getting the legal support that they require; employers have found they are more productive and less stressed. In turn, this situation improves the employer’s bottom line and helps them recruit and retain the type of high-caliber workforce they desire.

The impact of affordable legal services extends beyond the corporate world, it affects all areas of a community.

The satisfaction of legal services and legal insurance plan members with employers who offer said benefit and attorneys who participate in the network is outstanding. However, the reason the use of these plans is NOT widespread is since many are not aware of what legal insurance or legal services plans are or that they even exist.

If more residents of Florida or even of the U.S. become aware that legal insurance and/or legal services plans are an option for them, and more attorneys realize the benefits and join legal plan networks, perhaps in the future the nation will see its ratings for access to affordable civil justice rise from the bottom of the list to the top, near countries like Germany, Denmark and the Netherlands, which are countries that offer, support and promote access to legal services.

Even if an individual or family do not anticipate any legal problems or the need for an attorney, ensuring that one has some legal protection should the need arise is invaluable. Further, it is worth noting that not every legal issue involves a conflict, often it proves beneficial to have a lawyer on one’s side to guide them through complex documents or agreements.

If an employer offers legal insurance or legal services plan as part of their employee benefits package, it could end up saving a substantial amount of money and anxiety.

The foregoing is a very brief and general overview of the benefits of having a legal services or legal insurance 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.

Establishing a business entity for any type of business endeavor can be a positive move in that it provides liability protection, allows for the expensing of debts and better accounting for the same. For business owners, it is often beneficial to form an entity for some or all of the following reasons: Liability Protection, Tax Savings/tax deductions, Credibility, Formality, Perpetual Duration, Control Over the Transfer of Ownership, which also allows the raising of capital by the selling shares of the subject company, and/or Confidentiality.

Florida and Delaware are two of the best options where one can incorporate their business. These states have business, tax, and privacy laws that are beneficial for business.

As for liability protection, the law allows entrepreneurs to form corporations, LLCs as well as other legal entities as a shield against personal liability. Individual owners and officers or members are considered separate from their corporations or LLCs. When a corporate or business debt is owed, creditors can pursue the company but not the individuals operating the said company. Unless the corporate form is abused, misused or monies are comingled, owners and operators of said entity are personally protected. However, when business formalities are not followed then creditors can pierce the corporate veil and go after the subject individuals under the alter ego doctrine. Examples of the foregoing include, but are not limited to, commingling corporate and personal funds, disposing of corporate formalities, diverting corporate assets for personal use, etc., can open up a business entity to potential alter ego claims and thereby hold the owners and operators to personal liability.

Further, different entities cannot be held jointly and severally liable for a breach of contract case merely because the two have the same officers, members, owners or the same physical address or email or telephone.

For the most part, unless an individual is an actual party to a contract that individual may not sue or be sued for breach of said contract, particularly when that non-party has at most received only an incidental benefit from the subject contract. For instance, a parent company which is not a party to the said contract can be held liable for its subsidiary’s breach of the contract only when it can be shown or proven to be an alter ego of the parent and was in place merely to mislead the parent’s creditors. Business impropriety should not be presumed by the mere fact that the two entities share a physical address or office or an officer, director, or member.

The foregoing is a very brief and general overview of the benefits of forming a business entity 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.

Most Florida residents do not know that Medicaid for the elderly is merely a type of loan to pay for their long-term care needs and is not a gift or grant. The basic point is that if a Florida resident is on Medicaid, any remaining assets the decedent owned upon their death is subject to a lien by the state of Florida. This is commonly known as the Medicaid pay-back or reimbursement provisions, and many residents are unaware of this provision in the law.

Florida Medicaid does have a pay-back provision, similar to other states. During one’s lifetime, if they receive Medicaid benefits, and pass away after the age of 55, the State of Florida is a creditor in their estate. The state has a claim in the amount of funds expended to the deceased party’s benefit during their lifetime, which can definitely be a great deal of money if the subject individual spends time in long-term care. HOWEVER, this situation may not generally be much of an issue in most situations.

First, if the Medicaid applicant was single, he or she was only allowed to have less than $2,000 in countable assets in order to be on Medicaid. This scenario means that the applicant likely has nothing for Medicaid to make a claim against upon the applicant’s death. A single applicant, who is already impoverished, generally has nothing for the state of Florida to take.

Further, even if the decedent owned a homestead real property or primary residence, this property is not subject to creditor’s claims (including the state of Florida) in most circumstances.    There are exceptions to this rule though, such as:

• The decedent’s property lost its homestead status before death (possibly by renting the home, as an example);
• Not all homestead properties are equal. If the property is a co-operative share, such as in a mobile home park, this does not get statutory protection for Florida homestead purposes; and/or
• The decedent’s Last Will & Testament called for the sale of the decedent’s home.

Consequently, the Medicaid lien is not an issue in most circumstances. Therefore, where would a Medicaid lien take place?  There are a few circumstances where the lien could/would be applicable:

• The decedent sold their home and went off of Medicaid before death (i.e., the applicant went on private pay);
• The decedent received an inheritance, either before they died or after, which could then be subject to the lien;
• The decedent did not disclose or discover all known assets as part of the application process and the assets had to be probated upon death; and/or
• The decedent’s spouse died first and left money to the Medicaid applicant, who then passes away.

One major point to be made is that proper estate planning can avoid any potential Medicaid lien. That result is one reason to see an experienced estate planning attorney in order to ensure the family creates a good estate plan with the necessary documents to help avoid probate as well as creditor problems upon the family member’s death.

Accordingly, the Medicaid lien is not a worry for most Medicaid applicants if they either have nothing or very little at death or have created a good estate plan. This situation also merits good asset protection planning which can protect assets during one’s lifetime and at their death.

The foregoing is just a general and brief overview of the subject of Florida Medicaid’s lien & its pay-back or reimbursement 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.

Beneficiary Designations as well as a Lady Brid Deed takes precedence or priority over a Last Will & Testament as well as a Trust, which means that if one gets divorced and remarries, but does not update their beneficiaries on accounts, a former spouse may be the legal heir to those accounts if you named them the beneficiary while married. Trusts control the trust estate, the assets that are placed within their ownership and titled in the trust name. They do not overlap and therefore cannot supersedeother designations.

A Last Will or living trust do NOT override the beneficiary designations for life insurance policies, retirement accounts and other types of investment or bank accounts. This includes accounts, such as life insurance policies, annuities, IRAs, other tax-favored retirement accounts and employer-sponsored benefit plans. The person(s) named on the most-recent beneficiary form will get the money automatically if one dies, regardless of what the Last Will or living trust document might state.

Deeds such as a Lady Bird with its Remaindermen (i.e., like designated beneficiaries but for real property) or ownership by the Entirety as a married couple and/or joint tenants with right of survivorship, the surviving spouse will automatically get sole ownership of the property when the other spouse dies and/or the property automatically goes to the surviving joint tenant or Remainderman.  The major advantage of these types of ownership is that they avoid probate.

Most beneficiary designations will require one to provide a person’s full legal name and their relationship (i.e., spouse, child, mother, etc.). Some beneficiary designations also include information like mailing address, email, phone number, date of birth and Social Security number.

An estate plan in Florida can include several documents, many of which may require beneficiaries, like any trusts, a person may have set up or intended to set up, non-probate assets like 401(k), IRA accounts, life insurance policies, and pensions. Assets from these accounts will go to the beneficiaries upon the owner’s death. It is important, therefore, to make sure one chooses their beneficiaries carefully. 

A beneficiary designation involves naming the person who will directly receive an asset in the event of the death of its owner. Again, assets which allow for beneficiary designations include insurance policies, retirement accounts such as 401(k) plans, annuities, and other financial accounts. Trusts also need beneficiary designations. An individual can also choose beneficiaries in their Last Will and Testament. 

It must be noted that beneficiaries are different from heirs. Beneficiaries are chosen while heirs are those who inherit the property of a person who dies intestate, or without a Last Will, usually next of kin as governed by state law.

The designation process ensures the named beneficiary directly receives the asset, rather than it passing to the owner’s estate and going through probate, which may involve significant time and expense.

Beneficiary designations are unique to each asset and may be managed by the entity that holds the subject asset.  An example would be a life insurance policy whereby the company that holds the policy will likely provide a beneficiary designation form during the enrollment process. In the said form, the applicant would specify which individuals (i.e., beneficiaries) should benefit from the subject policy in the case of death.

When a person dies, the instructions in their Last Will & Testament only distributes assets included their “probate estate” or in their name alone.  Assets with beneficiary designations get excluded from the probate estate.  To avoid a conflict, it is crucial to ensure that the language in one’s Last Will correlates with and/or considers their beneficiary designations.  It merits to perform a regular review and update of the Last Will as well as beneficiary forms as needed since, typically, a beneficiary designation overrides a Last Will.

Common categories of beneficiaries in Florida include eligible designated beneficiaries, designated beneficiaries, non-living beneficiaries, and contingent beneficiaries. Different eligibility rules may apply to various categories of beneficiaries. 

Eligible designated beneficiaries include:

• Spouses;
• Children under 18 years of age;
• Individuals with a disability;
• Chronically ill individuals; or
• Individuals within 10 years of age of the deceased.

Eligible designated beneficiaries have additional rights to designated beneficiaries. 

A designated beneficiary is any living person who does not fall into the above categories. This may include a friend or extended family members, such as elderly parents or a sibling. 

Another type of beneficiary is a non-living beneficiary, such as a charity, trust, or estate. 

A contingent beneficiary is a “backup” beneficiary to whom receives the asset in the event the primary beneficiary is unable. 

When choosing a beneficiary, the following are key factors to keep in mind.

A beneficiary typically must be over 18 years of age. If an individual wants to gift an asset to a minor upon death, one may need to set up a minor’s trust and name the trust as the beneficiary, if appropriate; otherwise, a legal guardianship will be needed. 

Financial dependents are a good starting point when considering who to designate as a beneficiary. These may include a spouse, children, or other extended family members.

A beneficiary generally must have an insurable interest in the insured person. The foregoing means there must be a legitimate financial interest between the two, such as in the case of dependent children or a spouse. 

Some life insurance policies or pension funds set rules for naming a beneficiary. Make sure to be aware of these before making decisions and seek legal and financial advice about the options. 

Depending on the document and the terms of the contract, some beneficiaries may be irrevocable. The preceding means one cannot revoke said beneficiary’s rights unless they agree to it. At first glance, one may wonder why they even would want to designate beneficiaries as irrevocable, but there are benefits. An estate planning attorney can explain the reasons and situations where irrevocable beneficiary designations may be most appropriate as well as the reverse.

In Florida, the best way to avoid most potential issues when it comes to a beneficiary designation is to speak with a lawyer to ensure the selected designation is valid. 

Some common challenges that may arise when designating a beneficiary are as follows.

When choosing a beneficiary, it is possible to set either a fixed dollar amount or percentage the subject beneficiary will receive. However, a fixed dollar amount can cause issues if the value of the asset is insufficient (or if it increases in value, leaving a portion of the asset to probate). To avoid this, assign a percentage value instead. 

Failing to name a contingent or alternate beneficiary may result in an asset needlessly going through probate. To avoid this, identify a contingent beneficiary who will receive the asset in the event the primary beneficiary cannot accept it, such as when the primary has predeceased. 

The identity of a named beneficiary may not be clear, such as when several people in the family share the same or similar name. Names may also change as a result of marriage or divorce. Always confirm the correct legal name of the intended designated beneficiary and ensure that the applicable document is updated to reflect any name changes. 

Designating “all my children” can create challenges. For example, if a child beneficiary dies before their parent, it may be unclear as to how their portion should be distributed. It may be distributed among the surviving children, or instead, pass to their offspring or descendants. To avoid this issue, one should be specific when naming a beneficiary.

The foregoing is just a general and brief overview of the subject of beneficiary designations and the like versus other estate planning instruments 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.

There are merely a few states in this nation which can levy taxes on inherited property. These taxes are sometimes affectionately called death taxes. For beneficiaries or heirs inheriting property in the state of Florida, they will be happy to know that Florida does not have a separate income tax for inherited property. Inherited money is also untaxed at the state level since Florida does not have an income tax system. However, all property is not treated the same when it is inherited.

The following are several tax situations that inheritors of Florida assets should be aware.

While Florida does not levy an income tax on inherited property, the Federal government does. However, the federal inheritance tax only applies to estates over $12.92 million in 2023, and it is double for married couples. The tax is levied against the estate, so heirs will not be on the hook for these death taxes. HOWEVER, in 2025 the amount will be reduced to $5.49 million (adjusted for inflation), unless the law is changed. The gross estate includes Trust assets, assets held in the decedent’s name, jointly held property, accounts designating a beneficiary, life insurance, annuities, among others.

If one inherits a retirement account from a loved one, they would not have taxes levied on the transfer of the account, but taxes may be charged when one tries to withdraw funds from the account. What taxes are imposed will depend on the type of retirement account. An attorney can help ensure understanding of the tax ramifications associated with said inherited property.

If one inherits property that generates revenue, like a piece of rental property for instance, they could owe taxes on the income gained or generated from owning the transferred property. Consequently, if one inherited a multi-family building with tenants and they paid rent during the probate period, one could owe taxes on funds which were collected during the said interim period.

In Florida, there are no separated property taxes, but beneficiaries will owe federal taxes if the inherited property is sold after transfer. The heir should only owe taxes on the gains (capital gains) of the property, or if it increased in value from the point of transfer (date of death) until the point of sale.  The foregoing is called stepped-up basis. Stepped-up basis refers to a tax policy which looks at the market value of assets at the time when the person inherits the asset or real property (i.e., the deceased’s date of death) instead of the value when the prior deceased owner purchased the said assets or real property. If the asset is later sold, the higher new cost basis would be subtracted from the sale price to calculate capital gains tax liability, if any.

The foregoing is just a general overview of the subject of whether Florida Beneficiaries or Heirs may or may not pay taxes on inheritances.

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 Florida, as in most other states, if an individual is injured as a result of someone else’s negligence, they can usually file a personal injury claim to receive compensation. However, when a governmental agency is involved such as a city bus or government/public hospital, then such claims must be filed against the government agency, not the employee themselves unless said employees intentionally inflicted the harm and consequently may be held liable.

Plaintiffs injured by the carelessness of government agency or one of its employees in Florida will have to deal with certain rules, regulations or standards. In this article, the term “government” will refer to a governmental entity for a city, county, or the State of Florida. Claims against the Federal Government will be dealt with in another article.

Claims Against a government entity or agency in the State of Florida are limited by law.  This limitation is known as sovereign immunity, and it is based on the English notion that the government cannot be held responsible because “the king can do no wrong.”  The limitation of sovereign immunity extends to all properties and to whomever serves the government. If a garbage truck or police car crashes into a person or a teacher abuses a student, the government decides if the victim is allowed to sue and then limits the recovery up to $200K per person or $300K per tort claim.

In 1975, the passage of Florida Statutes section 768.28 (i.e., Florida’s Waiver of Sovereign Immunity Act, Florida Statutes §768.28) opened the door to claims but also made the entire process difficult to navigate. When the subject strict guidelines are met, a state entity can be held liable for negligence under the same circumstances as an individual but considering the caps permitted under the law. In addition to the caps from 768.28, Florida has also presented a series of barriers in the form of conditions. Failure to comply with all notices, disclosures, and obligations can result in rejecting the claim.

Further, the government is not responsible for policy-making decisions, only those acts that are considered “operational” in nature.  One way of looking at it is this that the decision on whether to put up a stop sign at an intersection is immune from lawsuit.  However, once the decision to install it is made, if it is placed or installed in a wrong manner, not maintained or itself causes a harm, there can be a claim.

Florida imposes certain limitations on the types of claims that plaintiffs or victims can bring, which include but are not limited to:

• Government employees cannot be held personally liable for damage unless they have caused it on purpose;
• Claims against the state of Florida are limited to a total of $200K per person or $300K per incident;
• The state may appeal any resolution of a case; and
• Actions against State Universities must be brought in the county where the University’s campus is located.

From a practical standpoint, due to the cap on damages, the most the government will have to pay to a plaintiff is the capped amount, so an actual interest in settling pre-suit is very rare, forcing the claimant to sue.

Quite often lawyers do not take cases of damages against the county, city, or state of Florida because the injuries suffered and the medical bills are usually higher than what these cases can recover. What many lawyer try to investigate and seek out are other private parties that could be sued and held liable.

Florida’s sovereign immunity restrictions apply to almost all cases of negligence filed against the state or any of its Cities or Counties, including:

• Car accidents caused by county employees;
• Public hospital malpractice cases; and
• Defective city property that causes injuries.

No matter how many people were harmed, how severe the injuries, or how many negligent parties, the government will, unfortunately, only pay the cap per incident. The maximum settlement will always be $200K per person and $300K per incident, which, as mentioned, usually is not enough to cover the actual damages. This limitation applies when dealing with injuries caused in Florida accidents involving the following, among others:

• Public transportation vehicles;
• Police car accidents;
• Unposted street signs; and
• Anything related to the municipality’s negligence.

In addition to the government agencies themselves, the Florida Legislature has passed laws giving private entities “sovereign immunity” privileges as if they were governmental bodies.  These include private charter schools, the South Florida Fair, and some hospitals and doctors.  

Additional limitations apply to cases filed against law enforcement officers or agencies. public health agencies, and the Florida Space Agency.  Claims coming from inmates of the Florida Department of Corrections are also subject to special time limits.        

Punitive damages are not allowed against Florida public entities as well as prejudgment interest, and Florida law limits attorney fees to 25% in cases against the government as a disincentive to pursue these cases.

There is a way around or beyond the $200,000 cap on cases against the State or government. It is not an easy process, but the state allows for a process called a Claims Bill. 

To get a claims bill, a victim will need legislators to draft such a bill seeking compensation beyond the sovereign immunity limit.  It is usually done after a trial and judgment has been entered, and after all appeals have been exhausted.  

If the judgment is larger than the cap, one can seek a claims bill.  But after a bill is filed, it will be sent to a special master who will re-examine the facts and circumstances, there will be hearings, and most claims bills die in committee. 

If bill does not die in committee, most special master or referee recommendations are at a reduced amount of what the award was. The legislature (House or Senate or both) may take a recommended amount and reduce it.  Both the House and Senate must pass the exact same bill and then the Governor must sign it.  There are very few claims bills that are passed and signed each year.

Bear in mind that Cities, Counties and the State generally have their own legal departments, so they will most likely litigate the case through the court system knowing that, even if they lose, they will not have to pay more than $200,000.  Accordingly, the applicable governmental entity is in a position where it will rarely voluntarily pay the full liability amount pre-suit.

Personal injury claims in Florida made against public entities can be complicated and complex, but that does not mean that a Plaintiff or victim lacks recourse when a governmental employee or agency harms them in an accident.

The foregoing is just a general overview of the subject of Personal Injury claims against government entities 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.

When should estate planning begin? It is never too early to start planning for the future. Also, if the person is still competent, it is not too late to create an estate plan. Anyone can, and should, create an estate plan to make sure that their assets are managed properly and that any minor children are placed into the care of the person they designate and not someone determined by the courts.

Many financial advisors recommend starting an Estate Plan the moment a person becomes a legal adult and updating it every three to five years thereafter.

As soon as one owns property and has started accumulating greater financial assets and even have children, they should take estate planning much more seriously. For many people, this will happen in their thirties or forties.

Why is an Estate Plan Is Important:to ensure one’s assets go to the right beneficiaries, plan for one’s healthcare at the end of their life, plan for the future of one’s financial investments and accounts, arrange trusts, if applicable or necessary, designate an executor or Personal Representative, arrange guardianship for minor children, if applicable as well as prepare for the future of their business and protect assets, among others.

Five key factors to consider in an estate plan includeBeneficiary Designations. The first and easiest step to planning an estate is establishing beneficiaries of private funds, accounts, or policies, like life insurance policies, 401k plans, IRAs, and pensions; Wills, Transfer of Power, possible Trusts, and Securing Documents.

Seven steps to basic estate planning are:  inventory one’s assets; account for their family’s needs; establish appropriate directives; review designated beneficiaries; note one’s state’s estate as well as Federal tax laws; weigh the value of professional assistance, and plan to periodically reassess.

After someone dies, someone (called the deceased person’s “executor” or “administrator” or “Personal Representative”) must deal with their money and property (the deceased person’s estate). They need to pay the deceased person’s taxes and debts and distribute the deceased party’s money and property to the people entitled to it.

The biggest reason an estate plan is NOT done is-people just have not gotten around to it, according to 40% of survey respondents in numerous publications. Meanwhile, 33% said they do not have enough assets to pass on to their loved ones, while 13% said the estate-planning process is too costly and 12% said they do not know how to get a Last Will & Testament.

Estate Planning is not just the transfer of wealth or distribution of assets after death. Estate Planning also includes planning for oneself in the event of incapacity. Incapacity, whether physical or mental, is increasingly a concern as humans are living longer.

Estate planning has two general objectives: to ensure that the assets are transferred according to the owner’s wishes and to minimize state and Federal taxes.

Some of the Common Estate Planning Mistakes include, but are not limited to, failing to plan, not discussing with family and friends, naming just one Beneficiary, forgetting about Power of Attorney or Healthcare Representatives/Agents, forgetting about final arrangements, forgetting about your digital assets, and forgetting about charities that are important to you, among some others.

As a rule, a person’s debts do not vanish or expire when they die. Those debts are owed by and paid from the deceased person’s estate. By law, family members do not usually have to pay the debts of a deceased relative from their own money. If there is not enough money in the estate to cover the debt, it usually goes unpaid.

While a Last Will & Testament is a legal document, an estate plan is a collection of legal documents. More specifically, they often include a Last Will, trusts, an advance directive (i.e., Living Will) and distinct types of powers of attorney-both medical and financial. An estate plan can manage other estate planning matters that cannot be covered in a Last Will as well.

Estate planning ensures that all of a person’s assets, physical, financial, and online, are inherited by or distributed to the people to whom they wish after their death. The state law might not consider one’s personal relationships or preferences while distributing assets if the said person dies intestate (i.e., without a Last Will) or other viable estate plan mechanism. 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.

It is important to make sure one’s parents have a Last Will & Testament and other estate planning documents that will limit emotional stress after they pass away. The following are a few tips to consider if a person is contemplating discussing estate planning matters with their elderly parents.

Having a frank discussion with one’s parents is something that should be planned. It is suggested that that Florida residents make a list of the various topics and questions they want to cover in the discussion. A date and time for the conversation should be scheduled that is convenient and at a location where everyone feels comfortable attending.

Several conversations might be necessary since it may be too much to get through in just one meeting.

There are a number of important people in the parents’ lives that one will need to contact for estate planning purposes. Family members should ascertain the names and contact information of the following individuals: physicians, attorneys, financial planners, accountants, stockbrokers, insurance brokers, religious clergy, and close friends, among others.

A goal of this discussion should be to determine if one’s parents have existing estate planning documents and whether they are up to date. If they were created more than five years previously, then the children or family members should ask if their parents are willing to review and possibly update the said documents to reflect their current wishes and take into account any changed circumstances. One should also be made aware the location of such documents and, if possible, the identity of the Agents and/or Personal Representatives. They must discuss that each type of document or instruments has a different purpose for a different time. Last Wills take effect after death and is for the distribution of assets and to pay debts of the parent’s estate and the Personal Representative is the one who named to be in charge of said estate.

Financial and healthcare powers of attorney, each appoints someone (an Agent) to manage either their financial affairs or makes medical decisions if said parent becomes incapacitated during their lifetime.

For end-of-life wishes or decisions, a proper discussion should include getting the following directives such as Durable Power of Attorney for Financial matters and Property Management, Healthcare Surrogate for medical decisions and obtaining medical records or HIPAA protected/private/confidential information, Living Wills with general or specific instructions regarding the withdrawal or termination of life support under specific conditions or the type of care they would like and whether life support should be used to keep them alive or not. There are also Physician Orders for Life Sustaining Treatment (POLST) as well Do Not Resuscitate Orders (DNR’s). These documents are explicit directives regarding the type of treatment parents, who are the makers or Principals, would or would not desire.

Children or family members should inquire about and make an itemized list of assets, bank accounts, brokerage accounts, life insurance policies, health insurance policies, long term care, disability, home insurance, government benefits, pensions, liabilities, and debts, among others.

The foregoing is a brief general overview of the subject.

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.

When a loved one passes away, disputes can arise among family members over who will get what assets and how property will be distributed. Issues may also arise regarding what will happen to the deceased’s remains. Prior to 2016, Florida law was not well settled nor specific to deal with such disputes.

A crematorium authority is legally required to hand over the ashes to the person who delivered the body for cremation. That entitled individual has 120 days from the date of cremation to claim the ashes. There are no Florida state laws that restrict where you may keep or scatter ashes.

Pursuant to Florida Statutes Section 497.005(43)(a-i), the right and responsibility goes to the following people, in order-you, if you leave written directions before your death; your surviving spouse, unless your spouse is criminally responsible for your death; your adult child, or a majority of your children if you have more than one; your parents, your adult siblings, an adult grandchild, a grandparent, or any person in the next degree of kinship.

“In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased’s human remains by others in the same class of the person making the representation or of any person in a higher priority class.” According to the previously mentioned statute.

Another way to name the person who will carry out one’s final arrangements is to complete a Designation of Healthcare Surrogate. In the subject document, the maker of Principal can give their surrogate or Agent explicit power to carry out their final arrangements after their death. The said authority must be made clear in the healthcare document; otherwise, the Agent’s or surrogate’s decision-making power ends upon the Principal’s death. This method avoid additional documents and combines healthcare decisions and final wishes.

The disposition of a body is not a property right pursuant to Florida Statutes §732.6005(2), but a personal right of the decedent or deceased party; therefore, the decedent’s intent (as opposed to the survivor’s intent) controls the disposition of his own remains. See Cohen v. Cohen, 896 So. 2d 950 (Fla. 4th DCA 2005). Consequently, the remains of a decedent are not property under Florida Statutes §731.201(32), and therefore, are not subject to ownership by the decedent’s or deceased party’s beneficiaries.

In 2014, a case which received attention was when a father attempted to split the cremated remains of his deceased son in equal shares with his ex-wife (the mother), arguing that the ashes or cremains were part of his son’s probate estate. With little guidance outside of the common law, the court decided the remains were not property subject to probate division. The court relied heavily on case law which supported the proposition that generally, next of kin do not have a property right in their deceased family member’s remains. So, what was the solution? Ultimately, it was up to a trial court judge to decide what would happen to the remains. For many, such a solution may be unsettling, especially because a judge’s decision may not be consistent with what the decedent would have wanted.

On July 1, 2016, the Florida legislature addressed the matter and enacted a statute which codified the common law rule that remains are not estate property. The relevant statute plainly states that cremated remains are not property which are subject to division. So, who has the final say over what happens to someone’s remains? The statute makes the answer clear by providing a list of persons who may be authorized to make decisions regarding what will happen to someone’s remains. The list is in descending order of priority beginning with the decedent’s written instructions. Leaving behind instructions will provide your family with clarity regarding your own wishes—what you want to happen to your remains, who you want to keep your remains, and who will be responsible for making sure your instructions are carried out. If no instructions are left behind, the list provides who else may be legally authorized to make decisions regarding the remains. Whoever is authorized to make final decisions over the remains, may consent to the distribution of the remains. However, if the conflict continues once cremated remains are divided, the dispute will be resolved by the court.

Can written instructions of the decedent regarding the place and manner of the disposition of his remains be overridden? If so, what is the evidentiary standard for overriding a decedent’s written instructions?

Florida Statutes §732.804, reads in pertinent part: “Before issuance of letters, any person may carry out written instructions of the decedent relating to the decedent’s body and funeral and burial arrangements.” However, a written testamentary disposition of a deceased’s burial instructions is not conclusive of the decedent’s intent if it can be shown by clear and convincing evidence that he intended another disposition for his body. See Cohen, supra.

If the deceased party has not expressed their intent regarding the place and manner of the disposition of their remains, who has the right to control the place and manner of the disposition of a decedent’s remains if the matter is subject to a dispute?

This question was answered in Giat v. SCI Funeral Servs. of Fla., LLC, 2020 Fla. App. LEXIS 17520; 2020 WL 7239589 (Fla. 4^th DCA 12/9/20). In Giat, the decedent died without a Last Will or any written instruction regarding the disposition of his remains and his widow arranged for his funeral and cremation with Menorah Gardens. The decedent’s son filed suit to enjoin Menorah Gardens from cremating the decedent’s remains. The son stated in his verified petition that his father was born and raised Jewish and that his father had shared his wish with him to be buried in accordance with Orthodox Jewish law and custom and not to be cremated. The court held that “[b]ecause both parties dispute the decedent’s wishes, each party should be allowed to present evidence to determine the decedent’s wishes. Where a question of fact subject to proof is unanswered, an evidentiary hearing on the issue is required.”

The court reasoned that common law and not Chapter 497, Florida Statutes, controls the dispute between family members over the disposition of the decedent’s remains.

The focus of Chapter 497, Florida Statutes, is the relationship between funeral homes and the persons who seek their services. The definition of “legally authorized person[s]” specifies the persons with whom a funeral home may contract to arrange services. Section 497.005(43) does not purport to designate the right to control the manner of disposition of a corpse where there is a dispute among family members; that section does not provide what acts the listed persons can perform or what rights they have under Chapter 497. No section in Chapter 497 containing the term “legally authorized person[s]” designates the person with the right to control the manner of the disposition of the dead body if the matter is subject to dispute.

To the contrary, section 497.383(2), Florida Statutes (2022), provides that “[a]ny ambiguity or dispute concerning the right of any legally authorized person to provide authorization under this chapter or the validity of any documentation purporting to grant that authorization shall be resolved by a court of competent jurisdiction.” This statute recognizes that, when there is a dispute over the disposition of a decedent’s remains, the issue is a matter of common law.

The preferred and recommended option to avoid disagreements over disputed remains is to plan ahead. With proper Florida Estate Planning, one can name the appropriate person to make these decisions in order to avoid disputes later on. 

In summary, if the deceased party expressed an intention on the disposition of their remains through a Last Will & Testament or other written directions, then the court will defer to the said Last Will or written directions unless an opponent can prove by clear and convincing evidence that the deceased party changed their mind. If the deceased never expressed an intention regarding the disposition of their remains in their Last Will, etc., then the court will defer to the next of kin. The next of kin are the heirs at law under the laws of intestacy. The law is still somewhat unclear as to who has priority when the next of kin disagree. The disposition of one’s remains is a sensitive issue and a decision which is best made by the decedent exclusively through their Last Will & Testament or other written directions.

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.