PROBATE is, in brief, a legal process or procedure that takes place in state court after a person’s death. In general, the purpose in most cases includes validating and authenticating the Last Will & Testament (written Will), if any, making sure debts are paid and distributing the remaining assets to the deceased person’s heirs (following state law) or beneficiaries (following the instructions in a written Will).  If a person dies without a will, the probate court will rely on the state’s intestate law to ascertain how to distribute the deceased’s assets. In essence, it is the legal transfer of title or ownership of assets of a decedent to surviving heirs (next of kin) or beneficiaries named in the Will.

The primary participants or parties in a probate include the following:

• The executor or personal representative. This person or entity administers the estate. They are involved or in charge of the distribution of assets according to the Will’s instructions (or passing assets to heirs if there is no Will) while paying any valid creditors. Executors or Personal Representatives may receive “letters testamentary or in Florida-Letters of Administration,” which are documents giving them the authority to deal with financial institutions and other agencies on behalf of the estate. You should alert the person you will designate in such capacity, so they are aware, and you ensure they are willing to act accordingly.
• The beneficiaries or heirs. These are the persons or entities who will inherit the assets. Relatives who are not named in the Will (if there is one) but have some potential claim to the assets may make an appearance as well. Generally speaking, heirs who inherit the property are children, descendants or other close relatives of the decedent. On the other hand, beneficiaries are those designated by a Will or other written documents, as the intended recipients of a decedent’s assets.
• The creditors. They may be notified of the probate proceedings and are able to collect debts owed to them by the decedent’s estate.
• The judge. This individual or official presides over the probate court and supervises the administration of the decedent’s estate.

Additional parties who may be involved during probate proceedings include an attorney for the executor or personal representative and representatives or guardians of any young children who stand to inherit assets, among others.

Under Florida law, there are three principal types of probate, i.e., Formal Administration, Summary Administration and Disposition Without Administration.

Formal Administration – Formal administration is also simply referred to as “formal probate.” As the name suggests, this type of proceeding is the standard form of probate and, by far, the most common. Formal probate administration takes place in the local Circuit Court of the County in which the decedent resided at the time of their death. The process starts once an individual dies and the personal representative of the Will (or other interested party) asks to be appointed as personal representative of the decedent’s estate. The beneficiaries named in the estate are then provided notice and given a chance to raise any formal objections.

Summary Administration – This form of probate is available when the total value of property or assets going through probate court is valued at $75,000 or less. Summary Administration may also be used when it involves a death that occurred over two years prior to the filing of the probate in court. The process of this type of administration is initiated by filing a Petition for Summary Administration that must be signed by a surviving spouse and/or beneficiaries. In short, this is a somewhat expedited and abbreviated version of probate.

Disposition Without Administration – As the words “without administration” may indicate, this process actually involves eliminating the probate hearing entirely due to a specific set of circumstances. It is important to note, this is only available when the deceased individual did not leave any real property, and the request is for release of assets of the deceased to the person who paid funeral and/or final medical expenses. If the transfer is being requested to a person who has not paid such final expenses, consents allowing such a transfer must be completed to enable the subject transfer. Further, the only assets available for probate are valued at less than the amount of final expenses. In sum, disposition without administration occurs when a probate hearing is not feasible from a monetary perspective.  Because there is no formal court hearing for administration in order to recover assets, a form or pleading called the “Disposition of Personal Property Without Administration” is filed with the court.

Formal and Summary Administrations account for the greater number of probate cases filed in Florida.  In these cases, legal representation or retaining the services of a Florida attorney is required by law.

Another form of probate is called Ancillary Administration, which is used to handle estates, primarily for local real estate assets, for non-resident decedents.

Prior to facing court supervised probate, a properly executed estate plan is in everyone’s best interest.  Consequently, in preparing a legally enforceable Last Will and Testament, Florida residents can avoid undesirable outcomes and ensure that their last wishes are properly implemented.

A person who wants to permit another to perform certain legal acts on his or her behalf needs
a power of attorney. A power of attorney form can allow another person to handle financial
matters, make healthcare decisions, and/or take care of your children. A power of attorney is a
legal document that allows an individual to appoint or designate another person or entity to act on their
behalf to handle their affairs. The person who forms the power of attorney is known as the principal
and the person granted the authority over the affairs is the agent or attorney-in-fact. A power of attorney
is in effect only as long as the principal is alive, and it can only be created by a principal who is
mentally competent. A Durable power of attorney is created as a general power of attorney and sets
no date for which it will expire, and it will last until you die and will continue even after you
become incapacitated or mentally incompetent.

The agent or attorney-in-fact only steps in if you are no longer mentally capable of running your own
personal, legal, and financial affairs. The primary purposes of a power of attorney include, but are not
limited to, making medical decisions, handling financial and legal matters on behalf of the principal
and to make decisions on behalf of a person who has lost their mental capacity or competency.
Medical decisions for the principal can also be handled when the principal has become unable to make
those decisions for themselves due to incapacity or incompetency. Such an instrument or document can
be called an advanced directive, which can include a Designation of Healthcare Surrogate(a medical
power of attorney), a Living Will, a Physician Order for Life-Sustaining Treatment, a Do Not
Resuscitate order(DNR) as well as an Organ and Tissue donation card. It grants authority to the
attorney-in-fact or agent to make medical decisions for the principal. It does not grant any other
authority or powers to the agent other than handling the healthcare needs of the principal. The other
forms set out instructions prior to illness, which determine an individual’s healthcare
wishes. They guide the treatment choices for doctors and caregivers if you are terminally ill,
seriously injured, in a coma or near the end of life.

An attorney-in-fact or agent not only can be designated or nominated to handle the affairs of someone
who has become incompetent or even if they are disabled or elderly and require assistance to get things
done but can also be appointed to act on the behalf of someone to handle a specific transaction, which
may be a limited power of attorney.

As a person ages, mental abilities may gradually decline and eventually be lost as well as physical
abilities. You won’t necessarily need a power of attorney if you are physically disabled and confined to
a wheelchair or even bed-ridden so long as you are mentally competent. A power of attorney should be
prepared before your mind gives way to senility or dementia. A valid power of attorney executed prior
to incompetency ensures that your personal affairs are properly managed when you are no longer able
to do them on your own.

As COVID cases continue to surge across the United States, electric scooters are becoming a
popular alternative form of transportation because they give riders an open-air option for their
commute. In Florida, local governments are enabling commuters to rent electric scooters, rolling
back bans they had enacted on the vehicles.

In 2019, cities across the state banned electric scooter use or considered such because of reckless
driving and littering by the drivers. For example, in the summer of 2019, the City of Clearwater
enacted a ban to enable officials to draft regulations and plan for local use. Although
metropolitan areas like Tampa and Miami had allowed scooter use throughout 2019, several
cities across the state banned scooters where they had been legal to prevent the spread of COVID
in 2020. Recently, cities have begun lifting bans to promote safe commuting.

The City of Coral Gables was the first municipality in Miami Dade to bring back scooters in
September of this year after the scooters had been prohibited by a Miami-Dade County
Emergency Order to avoid spreading the virus. Several other cities have followed suit.

Before you decide to zoom to your next destination using a Bird or a Lime, however, make sure
you’re aware of the law concerning electric scooters.

Under Florida law, motorized scooters (or electric scooters) are considered motor vehicles.
Therefore, the standard rules of the road apply. As such, scooters are not allowed on sidewalks or
bike paths unless you are pushing the scooter without using its motor. Additionally, riders must
be licensed drivers.

While a state law regarding scooters has yet to be enacted, many city governments in Florida are
taking their own measures to restrict or promote the use of the vehicles.

Accordingly, cities across the state differ in whether they allow electric scooter companies to
rent scooters in their jurisdictions. Regulations concerning how scooter renters may use scooters
within cities also vary based on local ordinance. The lack of uniformity can frequently lead to
confusion about what is and is not legal in Florida.

While electric scooters promote social distancing and enable a safer commute, be sure to review
your local ordinances before hitting the road.

The Miami immigration courthouse will reopen Monday more than six months after shutting its doors and as COVID cases continue to rise in the state.

In an announcement Thursday, the Executive Office for Immigration Review, a sub-agency of the United States Department of Justice whose chief function is to conduct deportation proceedings in immigration courts, said the government will resume in-person hearings. Face masks will be required in all waiting rooms, corridors and courtrooms, the statement said. Children under 2 and people with certain medical conditions that prevent them from wearing a mask are exempt.

The sudden reopening of the Miami immigration courthouse — located at 333 S. Miami Ave. — comes as COVID-19 cases rose to the most Florida has tallied in a single day since Sept. 19, according to the Florida Department of Health. The single-day case count on Thursday — 3,356— is the most Florida has reported since mid-September, bringing the state’s known case total to 744,988 and resident death toll to 15,736.

Announcements of court closings were made via midnight tweets without any explanation — even to court staff — on how the government was selecting which courts to keep open. The court was ultimately partially closed; it remained open for administrative filings and very limited hearings for people held in Immigration and Customs Enforcement detention centers.

The partial shutdown of the national immigration court system in the wake of COVID-19 has impacted hundreds of thousands of immigrants awaiting their day in court. As the country’s case backlog surpassed 1.2 million due to canceled or postponed hearings, immigrants will face delays of months or years, according to federal data released in late August.

Monthly case completions before the March shutdown in January and February 2020 were running at roughly 40,000. However, during the period from April 2020 to July 2020 they fell precipitously to less than 6,000 a month — a historic low, according to researchers who analyze immigration data at Syracuse University. In July 2020, only 5,960 cases were completed, federal data shows.

Despite the backlogs and closures, Miami led the list with 216 case completions in July 2020. Only one other court location — Baltimore, Maryland, completed at least 200 cases.

While the shutdown nationwide caused immigration judges’ productivity to plummet, data shows that as of May, ICE filed more than 100,000 new immigration cases nationwide during just the first two and a half months of the shutdown, contributing heavily to the backlog.

At the beginning of the year, the Florida legislature passed a bill amending Florida Statutes § 689.01 which eliminated the requirement of having two witnesses for the execution of a lease on real property.

On June 27, 2020, Florida Governor Ron DeSantis signed House Bill 469 into effect, and it became law on July 1, 2020. The Bill amends Florida Statute §689.01 by removing the requirement that two witnesses must be present for a commercial or residential property lease to be valid. Prior to the amendment of the Statute, each of the parties were required to have two witnesses present when signing a lease for a term of more than one year. The House Bill provides that subscribing witnesses are no longer required to validate instruments conveying or pertaining to a lease of real property.

Under the new amended law, which is now in effect, no subscribing witnesses will be required for leases of real property in Florida.

While this change in the law is small, it is widely welcomed. The removal of the witness requirement improves the speed and efficiency of transactions by making electronic lease signatures much more easily obtainable. This not only has the potential to save time in the execution of leases by allowing a lease to be signed by just the two parties, it also removes one potential pitfall to invalidating a lease.

Caserta & Spiriti Law Firm Summer Internship 2020

The Caserta & Spiriti Summer Internship program welcomed its new interns for the Summer term of 2020. It is a 12-week program that allows students to earn experience in the workforce, as well as valuable training. The program focuses internships in business/legal, accounting, and social media. Attorney Joseph Spiriti, who is one of the main directors of the program says, “The internship program is something I am very proud of. The interns are a legacy of skill, knowledge, and experience, that gets past down from intern to intern.” Spiriti believes in the importance of gaining real world experience and how the overachieving culture that has developed between the interns has thus far been amazing.

Alongside Spiriti, attorney David Caserta also encourages gaining experience in the work field. Caserta says, “For 20 years, through my Young Professional Career Network, I have had the opportunity to share with college students across the Country the value of acquiring as many virtues of great character, as a foundation for a successful life both personal and in a career of choice.”  The team decided to create the internship program that would cater to students from respected colleges and universities across South Florida.

This year the internship program focuses on a group of distinguished students with different educational backgrounds who all share an interest for the field of law.

Ruby Pendas is a junior at the Nova Southeastern University majoring in Paralegal Studies minoring in Writing. Pendas has learned how to deal with clients and how to understand the steps taken regarding potential clients. She believes that this internship will put her a step ahead when looking for a job after law school.

Ashley Marrero is a rising junior high school student, who attends the Hialeah Gardens High School. Some of the tasks she does on a daily basis include clerical work, as well as filing, and reaching out to clients. Marrero says that one of her favorite things about the program is that the hands-on activities she does now, will help later in the real world. She aspires to become a criminal defense lawyer once she graduates from college.

Yunyun Tang is a student obtaining her masters degree in Finance, at the University of Miami. She decided to participate in the Internship Program in order to get some exposure in the field of Accounting. As an Accounting Interns some of the tasks she focuses on are processing payments, collecting payments-account receivable, account payable, and reconciliation.

Claudia Baez-Sola is a rising senior at the University of Miami majoring in Public Relations and Media Management. As a Social Media Intern, she works on ensuring reliability of published data on companies, communicates with firm associates about marketing goals, and maintaining the firm’s social media presence. Baez-Sola decided to participate in the Internship Program because it aligns perfectly with both of her passions for the field of communications and law.

The Caserta & Spiriti Law Firm Internship Program is looking forward to continuing working with new students who are interested in gaining real world experience. For information about the application processes we invite you to visit our website for additional details.