Slip, trip, and fall accidents are very common and occur in stores, restaurants, and other businesses, parking lots, homes, land as well as on city sidewalks. In many cases, these accidents are not the fault of the victim.  If so, then Florida law requires buildings, businesses, walkways, and parking lots, among others, be maintained for safety.

These types of cases are known as premises liability cases.  Consequently, if you have been injured in a slip, trip, and/or fall down accident due to someone else’s negligence of their property could mean you are entitled to make a claim or sue for compensation to recover lost wages, medical bills incurred, and pain and suffering resulting from the subject accident.

In order to properly document the accident and to get proper medical care, you should first and foremost, get the medical care you require following the accident. In addition, your treating physician can fully document your injuries. Your medical records will be crucial evidence in your case should you seek compensation and pursue the claim.

Reporting the Accident – When an accident takes place in a store, restaurant, business, sidewalk, parking lot, hotel, or home, etc., you should report it immediately to the manager, owner, or landlord. The manager, owner, or landlord should document the accident in a written incident report and provide you with a copy, and you should request a copy.

You should collect and document vital information, so if others witnessed your accident, get their names and contact information as potential witnesses should you pursue a legal claim. Take pictures of the scene of the accident, making sure to document the conditions which contributed to your accident. Write out your recollection of the accident including what you were doing, how you fell, time, date, and any other pertinent information. Keep the shoes and clothes you were wearing at the time of the accident stored in a safe place and take photos of those as well.

You should try to remain calm and not place blame or accept any fault. Limit your comments to the business manager or owner.  You should also refrain from posting details of your accident on social media. You should speak to an attorney prior to giving a statement to the involved insurance company for the premises where the incident occurred.

After an Accident, you should promptly contact an experienced Personal Injury lawyer, such as the attorneys at the law firm of CASERTA & SPIRITI to review your case, and if retained, to assist you in pursuing your bodily injury claim.

The death of a loved one is a difficult time both emotionally and practically to deal with grief at the loss and the complexity of dealing with settling the estate.  Ultimately, if there is no designation of beneficiaries involved, then one must consider a Probate, which is both the legal transfer of ownership of property and assets as well as their distribution. This brief outline will assist in the organization of the steps one needs to do.  It must be noted that every estate is different and there may be additional issues that are not addressed in this outline.

Before contacting the necessary parties to administer the estate, you will need to gather the following important information:

1. Order certified copies (sometimes called originals) of the death certificate.
2. Full name of the deceased party.
3. Social Security Number of the deceased party.
4. Locate any pre-paid funeral arrangements.
5. Locate all statements and check books for any accounts jointly owned by the deceased and a third person.
6. Locate any burial instructions or writings related to the deceased’s funeral and memorial service preferences.
7. Biographical information of the deceased part for drafting the obituary.
8. Locate the deceased’s Estate Planning documents, such as the Last Will and Testament and/or Trust.

You should promptly contact Social Security of the death to avoid having to refund any improper direct deposits.  If you are the surviving spouse contact the local office of Social Security to determine if you ae entitled to additional benefits because of the death. Next, contact the Funeral Home and persons conducting the memorial service to plan arrangements.  Also, contact relatives and close friends to inform them of the death.  Call the deceased’s Attorney, if any, or contact one on your own, for assistance regarding estate matters. Further, contact any Life Insurance Companies.  Determine the beneficiary (some insurance companies will not give any information to anyone unless they are the beneficiary or they have been appointed as Personal Representative by the Probate Court), request the forms necessary to apply to receive the death benefits.  If there is no living beneficiary or the beneficiary listed is the deceased’s estate, distribution of the death benefit will likely require a probate proceeding.  Furthermore, contact the deceased’s Employer or former employer for possible group insurance, pension, or other benefits.  Finally, if applicable, contact the Veterans Administration or Civil Service Office of Personnel Management if decedent was a veteran or an active or retired employee of the Civil Service.  If the deceased was retired military, also contact the Defense Finance and Accounting Service Casualty Assistance Line to report the death and check for survivor’s annuity.  The surviving spouse will need to provide a copy of the marriage certificate.

Organizing estate assets and liabilities is usually undertaken by a Personal Representative (in some states known as an Executor) of the deceased’s estate or the successor trustee of the deceased’s trust, although a substantial portion of this information may be obtained prior to said appointment by obtaining the contents of a safe deposit box.  If the box is titled in joint names, the survivor has an immediate right of access. If only the deceased owned the safe deposit box in their name alone, an interested party may have to petition the Probate Court to gain access and get a Will, any Life insurance policies as well as undertaking a written Inventory of the contents therein after examination with a bank officer. You should also obtain or locate statements and records of bank accounts, of brokerage accounts, deeds, property tax bills and mortgages and the most recent loan statement or coupon book, Any stock or bond certificates, Insurance Policies, automobile title certificates or the vehicle registration, a list of personal property and any insurance policies on valuable items such as jewelry or art, Income Tax Returns for the past few years prior to death, and  any Gift Tax Returns, if applicable, The most recent credit card statement for each credit card, Any promissory notes or other evidence of loans or debts, medical bills, health insurance, funeral, burial or cremation bill and evidence of pre-payment, if any.

Make a list of all the deceased’s assets and determine their date of death value. You should also determine the ownership interest of each of the assets:  Individual, joint tenancy with right of survivorship or tenancy by the entireties if owned with a spouse, assets owned by the deceased’s trust, and assets with designated beneficiaries (life insurance policies, accounts with transfer on death, pay on death, in trust for, etc.).

You can then retain the services of a probate attorney and file a petition for probate administration of some type or level for any property owned solely by the deceased in their individual name and without any documented alternative method of transferring title (such as a beneficiary designation).  The type of petition you file will depend on the circumstances of the estate including the value of the assets in the probate estate, whether the Last Will & Testament directs Formal Administration, or a Personal Representative may be necessary, and whether there are outstanding debts of the deceased at the time of their death.

If the deceased has a trust, the Successor Trustee as named in the trust, must be appointed, and obtain authority to manage and administer the assets contained in or titled to the trust.  The Successor Trustee should seek the advice of legal counsel as to how to proceed pursuant to the terms of the subject trust as well as state law.

The Personal Representative or Successor Trustee must be proactive to preserve the value of the assets of the probate or trust estate, including, but not limited to  taking possession of personal property, stock and bond certificates and real property for safekeeping, managing the investment of securities, accounts and money to preserve their value,  maintaining or obtaining insurance on the estate’s properties, paying mortgage payments, property taxes and assessments as they come due, canceling the deceased’s credit cards and lines of credit, filing claims for insurance of which the probate estate or trust is a beneficiary, obtaining a federal tax identification number for the probate estate or trust, and/or opening a checking account for the estate (probate or trust).

The Personal Representative or Trustee is responsible for determining what debts the deceased had at the time of their death, verifying the validity of those debts and paying the debts.  This process can create liability for the administrator and should be done only with advice from counsel.

After the debts are paid, the Personal Representative or Trustee must then determine the identities of the beneficiaries and distribute the applicable share to each.  Real estate and securities may have to be liquidated to develop a proper or fair distribution.

For property owned jointly with the deceased with a right of survivorship, usually only evidence of death of the deceased and proof of identity of the surviving joint tenant are required to title the property in the surviving joint tenant’s name.  For real estate, a certified copy of the death certificate without cause of death showing should be recorded in the public records of the county where the property is located to provide evidence of death.  If applicable, an Affidavit of No Florida Estate Tax Due should also be recorded to clear the title from any potential estate tax lien as well as an Affidavit of Continuous Marriage when necessary.

The Personal Representative or Trustee is responsible for filing all applicable tax returns and paying any applicable tax liability.  This may include filing the federal estate tax return (IRS Form 706), if its value is above a certain limit, and filing income tax returns for the estate while it remains open (IRS Form 1041).

It is important to note that the foregoing is not an exhaustive list of things to do in this regard but does encompass the basics.  Not all estates will require every step listed above and some may require more.  This outline is provided only as general information for educational purposes and is not intended to provide specific legal advice.  You should seek LEGAL ADVICE from a Florida attorney such as those with the law firm of CASERTA & SPIRITI.

In Florida estate planning, a “beneficiary” is someone who has the legal right to receive the benefits of a Will, Trust, financial account or Life Insurance policy as well as a Ladybird or Enhanced Life Estate Deed.  A beneficiary under a Last Will & Testament(will) has the right to receive distributions of estate assets through the said will.  Trust beneficiary is someone who receives distributions of trust assets or income.  A Life Insurance policy’s beneficiary holds the right to receive the policy’s payout when the insured dies, A designated beneficiary of a retirement account, brokerage account or bank account automatically receives the account or its proceeds upon the owner’s death.

It should be noted that the right to receive payments or assets is not the only right enjoyed by beneficiaries.  Under Florida law, beneficiaries are afforded numerous other privileges and protections, depending upon the instrument or document involved.  A designated beneficiary under a will, trust, insurance policy or other instrument, should understand all of their legal and contractual rights in order to take advantage of the beneficiary position.

In a general and brief overview, although the terms of beneficiaries and heirs are often used interchangeably, there is a distinction between an heir and a beneficiary in Probate.  A beneficiary is someone named in a Last Will & Testament and has a right to receive assets conveyed or distributed by a will.  An heir, instead, stands to inherit assets from a deceased party or decedent who did not have a will under the state’s intestate succession laws.  Heirs are usually relatives of the decedent, but beneficiaries don’t necessarily have to be family members.

The trust beneficiaries are named in a trust document and have rights primarily derived from the terms of the subject trust and duties of the trust’s trustee.  Trustees must administer their trusts in good faith and in accordance with the best interests of beneficiaries and the purpose of the said trust.

Other types of Beneficiaries such as  P/O/D, T/O/D, I/T/F, Retirement Accounts, and Life Insurance stand for payable on death, transfer on death, in trust for and are similar designations allowing an asset’s title or ownership to automatically pass to a named beneficiary upon the owner’s death.  In Florida, POD and ITF designations are commonly used for bank and money-market accounts and CD’s.  TOD designations are usually associated with stocks, bonds, and brokerage accounts.  The benefit of either designation is that, after the owner dies, the asset vests in the listed beneficiary or beneficiaries’ name or names with no need for probate court proceedings.

A POD or TOD designee has the right to receive the subject asset in the future, i.e., at the time of the owner’s death, but doesn’t acquire a present interest when the designation is made, similarly to a life interest in real estate.  Consequently, where a remainderman of a life estate or enhanced life estate automatically receives title of the said real estate after the death of the property owner, TOD, ITF, or POD beneficiary has same automatic receipt upon the death of the account’s owner.

Retirement accounts, such as 401k’s and IRA’s in Florida, allow the account owner to designate a beneficiary to automatically receive the account upon the owner’s death.  As with a POD beneficiary, a retirement account beneficiary does not need to go through probate administration.

When the account transfers, the beneficiary has three basic options for accepting it (or four if the beneficiary is a spouse), i.e., withdraw the money and pay the income taxes now; leave the account in place and accept required minimum distributions over the beneficiary’s life expectancy; or roll over the account into an “inherited IRA,” which allows for continued tax deferral but no additional contributions.  A spouse who is a beneficiary can do any of the above or roll over the account into an IRA in the name of the surviving spouse, which is then treated as if it had always belonged to the surviving spouse. However, a review of the CARES Act may be necessary to see what time frames may have been changed or altered.

Life insurance beneficiaries have the right to receive a policy’s payout upon the death of the insured.  With most policies, the beneficiary has numerous settlement options to choose from, ranging from a single, lump-sum payment to an annuitized “life income” payout that provides regular guaranteed distributions or disbursements for the rest of the beneficiary’s life.  Under Florida’s exemption laws, life insurance proceeds are normally protected from attachment by the beneficiary’s creditors in most cases. Beneficiaries can usually claim life insurance proceeds as an exempt asset in bankruptcy as well.

Even though title or ownership passes automatically from a legal standpoint, as a practical matter, beneficiaries need to take action to ensure they receive their full benefits accordingly.

If a designated beneficiary has questions or needs representation relating to rights they hold as a beneficiary as well as how to make claims therefor in Florida, attorneys at the law firm of CASERTA & SPIRITI can assist them to better understand and protect their rights.

Young drivers and families on a budget try to extend the life of various expensive items to maximize their finances.  However, old, or bald tires may not be worth the effort.

Simply put, bald tires are not safe. A car with bald tires may not break down after driving hundreds of  miles on the highway; however, bald tires can cause a lack of control, hydroplaning, blow-outs, and understeering.  Bald tires in wet weather also increase stopping distances.

When the treads on a tire are getting worn down, an automobile or other motor vehicle can become dangerous. The vehicle will not be able to brake as easily while driving in rain, snow, and hydroplaning can happen rapidly when treads are low.  In Florida, cars can be inspected and will not pass the inspection with bad tires. The tires will need to be replaced before the car can be tagged and get a pass on inspection.

An additional consideration in Florida is that summertime type heat(year-round) can multiply your risk, primarily due to rubber wearing off more quickly when the weather is hot. Consequently, when a tire is bald in the summer or warm-hot weather, it can create dangerous situations such as unexpected blow-outs, leading to the possibility of a roll-over accidents, which are some of the most dangerous collisions on the road.  Florida drivers can avoid blow-out tires by maintaining their tires and not driving on tires that are bald.  In many cases, bald tires are the result of faulty alignment, which causes the tire not to wear evenly. The outer and inner edges of the tire can wear out before the rest of the tire leading to the tire becoming worn out prematurely. Weather cracking can also cause issues as can the tire’s air pressure.

Furthermore, worn tires can run over debris on the roadway and get punctured, causing a tire failure, which may otherwise not happen on tires with more tread.

According to a National Highway Traffic Safety Administration’s Crash Causation Survey, tire related problems are responsible for nine (9%) percent of all accidents. These incidents could include tread separations, blow-outs, bald tires, and under-inflation.

Under Florida law, the minimum tread depth in the state is 1/16 or 2/32 of an inch.  To informally measure-if you insert a penny into tread grooves across the tire and most of the Lincoln’s head is out, it needs replacing. The official method of measuring is a gauge, which can read the remaining tread depth.

There appears to be no specific Federal laws dealing with tread depth, but forty-two(42) states and Canada, do have regulations.  They consider 2/32 of an inch to be the minimum legal tread depth.  Two(2) other states, including California, consider one-thirty second to be the minimum. Six(6) states have no standards.  HOWEVER, since 1968, Federal law has required a raised bar(i.e., wear bar) be molded across all tires.  When tires are worn enough, then this bar becomes visible and indicates there’s just 2/32 of an inch of tread remaining.  In fact, all tires sold and manufactured in North America are required to have this tread depth indicator called wear bars. Again, they run underneath the rubber and become visible when tires have worn down to the legal limit.  This bar makes it easier to know when tires have worn out-then, it is time for a new tire or tires. At such time, the same should be replaced immediately!

Further, tires are considered legally worn out in most states when the tread depth is less than 2/32 of an inch.  Driving on tires with tread worn down this far is dangerous and could even get a Florida driver a ticket, and again, one can informally measure with a penny to see if any part of Lincoln’s head is covered, the tread depth is still adequate.

Drivers can drive on bald tires for as long as they feel comfortable while probably risking their lives. Technically, a driver could conceivably drive on bald tires until they burst on the freeway, but NO responsible person would endorse it.

Worn out tires can also develop bulges and blisters that create weak spots on their surfaces. These can increase the chances of a sudden blowout, and can also lead to skidding, hydroplaning, or losing control of your car by reducing the tire’s ability to grip the road.

Simply put, balding tires are tires that have minimal or no tread left. A tire’s tread wears down with each mile driven, and there are various factors that can affect how quickly it wears out. Knowledgeable drivers should be proactive in tire care and can prevent the risk of driving on bald tires.

Bald tires will cause a steering wheel to vibrate and a car to shake. Furthermore, if a Floridian continues driving on bald tires, those tires are likely to blow-out, and having a tire blow-out at highway speeds is extremely dangerous, especially if it is a front tire.

Florida Statute Section 316.610 covers the safety of a vehicle, including tires.

Tires are the only part of a motor vehicle that touch the roadway and should be carefully maintained. Having proper tread on vehicle tires is what allows drivers to safely travel, especially in wet weather,

From a practical standpoint, it may be very difficult for a law enforcement officer to see if your tires are bald while traveling, but if a motor vehicle is stopped, a police officer can make the observation and issue a citation or ticket based on his or her own professional judgement.

The aforesaid Florida Statute is as follows:

“316.610 Safety of vehicle; inspection.—It is a violation of this chapter for any person to drive or move, or for the owner or his or her duly authorized representative to cause or knowingly permit to be driven or moved, on any highway any vehicle or combination of vehicles which is in such unsafe condition as to endanger any person or property, or which does not contain those parts or is not at all times equipped with such lamps and other equipment in proper condition and adjustment as required in this chapter, or which is equipped in any manner in violation of this chapter, or for any person to do any act forbidden or fail to perform any act required under this chapter.

(1) Any police officer may at any time, upon reasonable cause to believe that a vehicle is unsafe or not equipped as required by law, or that its equipment is not in proper adjustment or repair, require the driver of the vehicle to stop and submit the vehicle to an inspection and such test with reference thereto as may be appropriate.

(2) In the event the vehicle is found to be in unsafe condition or any required part or equipment is not present or is not in proper repair and adjustment, and the continued operation would probably present an unduly hazardous operating condition, the officer may require the vehicle to be immediately repaired or removed from use. However, if continuous operation would not present unduly hazardous operating conditions, that is, in the case of equipment defects such as tailpipes, mufflers, windshield wipers, marginally worn tires, the officer shall give written notice to require proper repair and adjustment of same within 48 hours, excluding Sunday.” [emphasis added].

 

The Florida Department of Highway Safety and Motor Vehicles recommends the following: “Tires are your vehicle’s first line of defense on the road. With proper care and maintenance, they will keep you safely motoring along Florida’s highways and help you and your loved ones ‘ARRIVE ALIVE’.”

Florida and many other states have rules, regulations or laws concerning tires.  Police in this state can stop and pull a diver over for driving a motor vehicle with old and/or worn-out tires. It is concerning that many Florida motorists are somehow unaware of the laws pertaining to as well as the risks involved with driving on unsafe tires and –YES-even be ticketed for it!

Estate planning establishes a framework to manage your assets upon death, disability or incapacity. It involves creating documents that outline and authorize others to implement your wishes when you cannot. Even though estate planning may not be something you wish to think about, it is critical that you properly prepare prior to the actual need.

Here are several(but not all) important documents necessary to cover the various aspects of an estate plan concerning incapacity or disability prior to death.

• A Durable Power of Attorney for Financial Matters & Property Management gives another person legal authority to manage your assets without court interference. A “regular” power of attorney ends at incapacity, while a “durable” power of attorney remains valid or enforceable through incapacity but terminates upon death.

 

• A Healthcare Surrogate or Medical Durable Power of Attorney gives another person legal authority to make health care decisions (including life and death decisions) if you are unable to make them for yourself.

 

• A Living Will (also known as an Advance Directive to Physicians) sets out your predetermined wishes regarding end-of-life care or issues should you become terminally ill, permanently unconscious or have some other irreversible condition. Ultimately, it takes the decision to withhold life, water, food and/or extraordinary measures out of the hands of your medical providers and loved ones so that they are not burdened by it, and you can be assured your wishes are followed.

 

• HIPPA Authorizationsgive your doctors, medical facilities and other providers permission to discuss your medical circumstances with others, including family members and other loved ones as well as release your private medical information to them.

 

It is also important that the designated persons or authorized agents know where to locate financial records, medical records and passwords when and if needed. Accordingly, you should make a list of accounts and passwords (including your computer’s password) and print the list and put it in a safe place. A hard copy is important in case your computer crashes or is lost or stolen. If you use an online back-up system, make sure to include it.  You should also include online accounts and social media.    Finally, you should update your documents as your life and circumstances change.

Drafting an estate plan for incapacity or disability is essential for every responsible adult.  If you do not have a plan, you need to prepare one sooner than later.  Creating such a plan will provide you the opportunity to consider what is important to you and how you can better protect both yourself as well as those closest to you.

U.S. Immigration / Travel Update

 

As the COVID-19 pandemic and related restrictions continue, we continue to advise caution regarding international travel. Everyone considering international travel is urged to carefully consider the risks and be fully aware of how ongoing conditions may impact travel. Due to limited availability of visa appointments and the possibility of additional COVID-19–related travel restrictions, individuals should consider not traveling abroad, or else should be prepared to spend additional time outside the United States if needed.

 

CDC Update Requiring Negative COVID-19 Test

The Centers for Disease Control and Prevention (CDC) issued an Order, effective January 26, 2021, requiring all international air passengers destined for the United States to be tested no more than three days before their U.S.-bound flight departs and present the negative viral test result. As an alternative to a negative COVID-19 test result, international travelers may present documentation of recovery from COVID-19, including a positive viral test result and letter from a health care provider or public health official clearing them for travel. All passengers must present the negative test result or proof of recovery from COVID-19 before boarding the flight. This new Order supersedes the December 25, 2020 Order requiring negative COVID-19 proof pre-departure for all passengers arriving from the United Kingdom.

 

The CDC Order applies to all air passengers traveling to the United States, two years of age or older, including U.S. Citizens and legal permanent residents. Further, the CDC guidelines and orders do not replace the Presidential proclamations. Please see details on the current Presidential proclamation travel bans below.

 

Current Travel Bans

COVID-19–Related Country Bans

Between January and May 2020, President Trump issued a series of travel bans to curtail the spread of the coronavirus (COVID-19) pandemic, which remain in place. Exempting U.S. citizens and lawful permanent residents, President Trump suspended indefinitely the entry of foreign nationals who have been physically present in certain countries during the 14 days prior to entering the U.S. This ban will remain in place until it is terminated by President Biden. The suspension of entry for foreign nationals currently applies to physical presence in the following countries: China (excluding Hong Kong and Macau), Iran, Brazil, the United Kingdom, Ireland, and the Schengen area of Europe comprising Austria, Belgium, Czech Republic, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Iceland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Slovakia, Slovenia, Spain, Sweden, and Switzerland.

 

Any physical presence in these countries triggers the application of the ban, including flight connections and layovers, so it is important to arrange any travel accordingly.

 

Due to the increase in COVID-19 cases, it is always possible that additional countries may be added to these travel bans in the future; and that the addition of new countries will be done with little notice.

 

Economic-Related Ban on Certain Individuals Seeking Entry in the H, L, and J Visa Categories

Effective June 24, 2020, President Trump issued a proclamation that suspended the entry of certain nonimmigrants into the United States. Individuals in certain visa classifications who were outside of the United States without valid visa stamps in their passports on the effective date of the proclamation are prohibited from entering the United States until after March 31, 2021 following an extension of the original December 31, 2020 termination date. The affected visa classifications are H-1B workers and their dependent family members; H-2B workers and their dependent family members; L-1 workers and their dependent family members; and J exchange visitors who are participating in one of the following exchange categories — intern, trainee, teacher, camp counselor, au pair, or summer work/travel program — and their dependent family members.

 

Individuals, whether inside or outside of the U.S. at the time of the proclamation, who have valid nonimmigrant visas in these categories and are attempting to enter the U.S. using the previously issued visa are not impacted, notwithstanding any other travel restriction. Canadians, who do not require visa stamps in these categories, are exempt from the nonimmigrant entry ban.

 

Many U.S. Consular posts have suspended routine visa appointments in the above-listed categories, and even if an individual can obtain a visa appointment, impacted individuals will not be able to enter the U.S. until after March 31, 2021, unless they qualify for a waiver as described below.

 

Exemptions and Waivers for Individuals Subject to Travel Bans:

For those wishing to travel and subject to the travel bans, there may be options available. Both the COVID-19–related travel bans and economic-related bans do have waivers available in specific limited circumstances.

 

Options for COVID-19–Related Country Bans

Individuals seeking to return to the U.S. from one of the “COVID-banned” countries generally have two options:

Securing a “National Interest Exception” (or “NIE”) waiver from the U.S. consulate or embassy in their home country.

For individuals traveling from the UK, Ireland, or a Schengen country, waivers may be granted for travel related to humanitarian travel, public health response, and national security. These requests must be submitted to the U.S. consulate or embassy in the individual’s home country. Most consular posts will not entertain a request for an NIE waiver unless the individual is outside of the U.S., so permission to return to the U.S. cannot generally be secured in advance of departure. Further, consular officers have wide discretion with regard to granting these waivers, and limited consular operations frequently result in long waits. As a result, traveling with the expectation of being granted a waiver continues to be risky. Procedures vary widely, but are generally outlined on the consulate’s website. Note that this NIE waiver option is limited to travelers coming from the UK, Ireland, and the Schengen countries.

 

Students seeking to travel to the U.S. on valid F-1 or M-1 visas from the UK, Ireland, and the Schengen region do not need to contact the consulate or embassy. They are automatically granted the NIE waiver.

 

Individuals seeking to return to the U.S. from a COVID-banned country who are unable to secure an NIE waiver — because the request is denied, delayed, or not available — may choose to return to the U.S. only after a 14-day “quarantine” stay in a non-banned country. The COVID-19–related ban only applies to anyone who has been physically present in one of the banned countries during the 14 days prior to admission. Spending the 14 days prior to admission in another country removes the ban on entry into the U.S.

 

When considering international travel and the available waivers, it is important to remember that the COVID-19–related travel bans exempt the following individuals:

Spouses of U.S. citizens and lawful permanent residents;

A foreign national who is the parent or legal guardian of an unmarried U.S. citizen or lawful permanent resident under the age of 21; and

A foreign national who is the sibling of a U.S. citizen or lawful permanent resident, provided they are both under 21.

Individuals in these categories may continue to travel to the U.S. without securing a waiver, and should carry original documentation that evidences the exemption.

Options for Economic-Related Ban on Certain Individuals Seeking Entry in the H, L, and J Visa Categories

Individuals seeking to return to the U.S. in H, L, or J status, who do not have a valid visa issued prior to June 24, 2020, may be subject to the ban on new admissions in these categories, currently in place through March 31, 2021.

Individuals who were in the United States in H, L, or J status on the June 24, 2020 effective date should be exempt from the ban. However, if you do not have a valid visa for return to the U.S., either because your status was changed in the U.S. or your prior visa has expired, obtaining a new visa may prove challenging. Some consular posts are simply not scheduling visa appointments in these categories, and others are allowing appointments to be scheduled — sometimes months in the future — only to cancel them. From a practical standpoint, unless one is likely to qualify for a national interest waiver, there is a good chance that a new visa will not be issued. For individuals eligible to have the in-person visa appointment waived, submitting application documents to the embassy through drop box or courier services stands the best chance of securing visas in these categories. Each consular post determines the criteria for a waiver of the interview requirement. At a minimum, typically, the consular post requires that the individual has already been granted a visa in the same classification.

 

Visa Processing and Impact on Travel Options

The U.S. Department of State (“DOS”) initially suspended routine visa processing in March 2020 due to COVID-19 and began phased re-openings across consulates starting in July 2020. The consulates have resumed routine visa services on a post-by-post basis, but most consulates are still operating at reduced capacity and offering only very limited services. Some consulates resumed routine visa services only to reduce their capacity in October due to the increase of COVID-19 cases in a number of countries. The DOS is unable to provide dates on when each consulate will resume specific visa services or when all posts will return to pre–COVID-19 processing times. Most consulates do have emergency and “mission-critical” services available on a case-by-case basis. Please be sure to check the U.S. consulate website in advance to confirm current rules on visa issuance.

 

If an individual is able to secure a nonimmigrant visa appointment, most appointments will follow routine processing, and the applicant will be notified of an approval following the interview. If approved, the visa stamp is normally placed in the passport within several business days following the appointment. In certain instances, if the Consular Officer conducting the interview cannot establish visa eligibility at the time of the interview, the application will be placed in administrative processing and will undergo further review. If the application is selected for administrative processing, the applicant cannot return to the U.S. until the visa is issued and, while most cases are resolved within 2–3 weeks, on occasion, administrative processing may extend to several months, or even longer.

 

Entry into the U.S.

In addition to adhering to the requirements in the COVID-19 test order issued by the CDC when entering the U.S. following international travel, foreign nationals should be prepared to answer questions from a Customs and Border Protection Officer regarding the nature of proposed entry and qualifications for a designated waiver or exemption. All foreign nationals should carry documentation evidencing status as well as any documentation supporting the individual’s specific exemption from the travel ban or waiver requests..

 

Following entry into the U.S., it is critical for individuals to check the I-94 admission record to ensure that it properly reflects their status and authorized stay in the U.S. We recommend verifying the accuracy of Form I-94 details within 48 hours of entry to the U.S. in order to correct any errors in a timely manner.

 

The answer is -YES!   Most young adults do not think about their future with respect to estate planning.  Why should they since they believe they are invincible or even immortal.  Unfortunately, that is not a true assessment in terms of reality.  In the real world, you cannot predict what may happen in your life.  There could be a serious illness, disability or death.  Estate planning for young adults tends to make sense and should be done sooner than later.

It is sad but true that unforeseeable events, accidents and/or tragedies do happen to young adults and are becoming more common today.   When a young person is under 18, it is routinely their parents who make all their medical and financial decisions.  This situation changes once an individual reaches 18 years of age. A parent’s right to make these decisions is no longer available. In addition, many major events will take place during this time-period, such as going to college, studying abroad, interning, opening a bank account, traveling, getting a job, purchasing a house, getting married, getting a pet, starting a business and having their own children, etc.

There are certain privacy laws that are in place to protect the public.  These laws pose a major disadvantage to anyone who is unprepared and does not have an estate plan in place.  Specifically, if you were to become incapacitated and over 18, it would be difficult for your parents to make decisions regarding your medical care and financial matters, unless, you have the proper legal documents in place.  At times, hospitals, medical providers or other facilities will not speak with your family members if they do not have the legal documents authorizing them to act on your behalf or are permitted the release of this private information.  For instance, if a young adult becomes incapacitated and ends up needing medical care, their parents may not legally be allowed to make decisions or even find out information about their adult child’s condition.  The only person who could do that is a spouse or a designated agent holding a healthcare power of attorney. The person in this role is authorized to make important treatment decisions for you and access necessary information and records when you, the young adult, cannot do it for yourself

To prevent your family from going through difficult times during your already stressful period, you should consult with an Estate Planning attorney shortly after becoming a legal adult and prior to the foregoing circumstances occurring.  A few of the necessary forms or documents to consider, include, but are not limited to:  Durable Power of Attorney for financial matters and property management, Healthcare Surrogate(a durable medical power of attorney), Living Will(an Advance directive), HIPAA medical authorization and Last Will & Testament.  Without these documents, parents or family members or important significant others who may not be official or legal family members will probably have to go to court and ask for permission to obtain information about the young adult’s medical condition, be able to make decisions about treatment and have access to their financial records and accounts to make important decisions concerning those matters as well.

The appropriate legal documents, prepared by an Estate Planning attorney, allow you, the young adult, to name another person to make medical and financial decisions for you if you are unable to make them for yourself. The individual(s) you select should be someone you know and trust, and a frank discussion should take place, so they know and understand your wishes. These documents are not expensive and private and avoid expensive public court intervention. Accordingly, all young people over the age of 18 should have them.  Parents should discuss these matters with their children as well, both for themselves and for their children nearing adulthood and consider speaking with an Estate Planning attorney.

The answer is YES!  In Florida as well as 44 other states, obstructing traffic in the left lane is against the law. Most states follow the Uniform Vehicle Code and require drivers to keep right if they are going slower than the usual, customary, normal or established speed of traffic, regardless of the speed limit.  Florida legislators amended the law, i.e., Florida Statute Section 316.081, in 2014 to make the left lane for passing, not cruising, unless there was congestion or an obstruction in the right lanes. Breaking said statute by “proceeding at less than the normal speed of traffic” in the left lane or staying there when “the driver knows or reasonably should know that he or she is being overtaken in that lane from the rear by a motor vehicle traveling at a higher rate of speed” is a moving violation punishable by a fine and points on your license.

Further, pursuant to Section 316.081(3)-the left lane is for passing and not for driving slowly.

In addition, you may be violating Section 316.183(5), if you are driving too slowly in the left lane and not moving over for a car trying to pass.  Driving too slowly can increase the risks of causing car crashes, blocking vehicles from safely passing and creating a general safety risk on the roadway.  The purpose of this law is safety because it should aid in reducing traffic congestion and dangers caused by angry drivers stuck behind a slow driver who does not move over, thus preventing such issues as road rage, tailgating, rear-end collisions, and weaving in and out of lanes.

As expected, in Florida, you can get a traffic ticket for driving too fast as well as too slowly. On Florida highways like the Turnpike and I-95, the maximum speed is 70-mph unless otherwise posted.  If you are on a highway such as the Turnpike, you can be given a traffic ticket for driving too slowly.  If you drive slower than 50-mph on a Florida interstate (posted at 70-mph), you may be issued a traffic citation. Traveling on an interstate below 50-mph will slow down traffic and make it unsafe for other cars around you traveling at higher rates of speed. If traveling in a 65-mph zone, the minimum speed limit should be 40-mph.

HOWEVER, there are circumstances under which a driver can avoid being ticketed for going too slowly depending on the roadway and other specific conditions.

Some of these circumstances can legally justify a motorist driving slowly or impeding traffic. A few of the more common situations, which can provide a driver with a valid defense to a ticket for impeding traffic or driving slower than the minimum posted speed are poor weather conditions, road hazards and/or dense traffic/traffic jam. The foregoing is based on safety considerations.  Legally speaking, a person should not drive a motor vehicle on a highway at a speed greater than is reasonably necessary and prudent under the circumstances, conditions and actual and potential hazards then existing. Consequently, a person should control the speed of their vehicle as is necessary to avoid colliding with any object, person, vehicle or other conveyance on, entering or adjacent to the highway in compliance with legal requirements, and therefore, it is the duty of all persons to exercise reasonable care for the protection of others.

In Florida, you can be issued a ticket for not driving fast enough since it can cause accidents. Drivers and vehicles should travel within the posted speed limit and the flow of traffic around them to avoid blocking other vehicles traveling at normal, safe speeds.

No contest or in terrorem clauses have been used in Wills for decades. These clauses usually state that if a beneficiary contests the validity of the said Will and loses, that beneficiary receives nothing. Alternatively, if the beneficiary wins, the subject Will is invalid and, therefore, the clause as well. These clauses were routinely upheld since, under the common law (non-statutory law created by custom and courts), there was no legal right to inherit. A bequest was a gift made by the deceased person, who had complete discretion as to how and when to leave that gift.  Accordingly, any action taken by a beneficiary that was detrimental to the probate of a Will violated the no contest clause and the losing beneficiary’s bequest was forfeited.

However, changes occurred over time, and U.S. courts, including those in Florida, began to construe those clauses very strictly.  Kolb v. Levy(in 1959), one beneficiary filed a contractual claim against her mother’s estate a claim, which was so substantial that if she succeeded in a lawsuit, it would have consumed most of her mother’s estate.  The Florida appellate court ruled that said action did not violate the no contest clause, because it did not directly challenge the validity of the Will.

Florida law evolved further in the 1990s, when concepts regarding an individual’s right to have access to the courts to redress grievances changed. The Florida state legislature declared that no contest clauses violated public policy and passed two statutes prohibiting the enforcement of no contest clauses in both Wills and Trusts.  Florida is one of the few states that does not recognize no contest clauses in will contests and trust challenges.  Ultimately, in 2013, Dinkins v. Dinkins, the Fifth District Court of Appeals cited well-established law in its decision taking notice that no contest clauses are invalid.   In fact, only Florida and Indiana make these no contest clauses completely unenforceable in will and trust proceedings.

For will contests, Section 732.517 of the Florida Statutes provides as follows:

“Penalty clause for contest.—A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.”

For trust challenges, Section 736.1108 of the Florida Statutes provides as follows:

“Penalty clause for contest.—(1) A provision in a trust instrument purporting to penalize any interested person for contesting the trust instrument or instituting other proceedings relating to a trust estate or trust assets is unenforceable.   (2) This section applies to trusts created on or after October 1, 1993.”

The Uniform Probate Code, which was adopted in approximately 22 states, provides that no contest clauses are enforceable, unless the contest is based on probable cause.

Approximately 14 states enforce no contest clauses without regard to probable cause or good faith, including New York, Ohio, Rhode Island and Virginia.  Arkansas and Illinois enforce no contest clauses unless the contest is based on good faith. Connecticut, Iowa, Nevada, North Carolina, Oklahoma, Tennessee, and West Virginia enforce these clauses unless the contest is based on both good faith and probable cause. Texas enforces these clauses unless the contest is based on both just cause and good faith.  One must check the particular state outside of Florida for its position on this provision.

Florida has some of the most developed case law and legislation regarding will and trust contests in the U.S., probably due to the sizeable older population residing in the state.

Florida is currently the only state that absolutely prohibits the enforcement of no contest clauses in Wills and Trusts. A few other states still enforce them most of the time, but the majority of states consider the above-mentioned factors.  If a will or trust was drafted in another state and includes a no contest clause, said provision will not be enforced in a Florida probate court, even though the remainder of the said Last Will & Testament may enforceable.

HOWEVER, it does appear that, even though it is known that they are unenforceable, a number of Florida attorneys still put no contest clauses in Wills and Trusts.  This may be done in an attempt  to prevent or discourage frivolous litigation. Further, many clients want these clauses in their documents, even though they understand that a Florida court won’t enforce such provisions, since it is their great desire to show to their beneficiaries and potentially a probate judge, their sincere intent regarding the disposition or distribution of their assets. Such a ruse may occasionally work but does not really deter a truly litigious person.

Some Floridians use a Trust as their primary estate planning tool, which avoids the risk of a Will contest since a Pour Over Will essentially does very little except transfer title of a few, usually forgotten, assets from the name of the decedent to that of an existing trust. In the alternative, trust litigation may occur.  The contest may relate to the validity of the trust, but, quite often, trust litigation or challenge involves disputes between the trustee and a beneficiary concerning interpretation of the terms and/or distributions of the assets of the trust.

Depending on specific circumstances, there may be alternatives to using unenforceable no contest clauses in order to prevent or minimize potential litigation risks when a trust is involved. Creating and funding separate trusts for potentially problematic beneficiaries, adding Trust Protector provisions or adding a mediation provision may prevent a disgruntled beneficiary from depleting trust assets in a protracted expensive litigation.

Consequently, Florida statutory and decisional or case law clearly prohibit the enforcement of no contest clauses in either wills or trusts.  Regardless, properly prepared estate planning documents can ensure your loved ones and assets are protected.