Virtual Estate Planning & Legal Plans in Florida

With the passage of time, increasingly more aspects of daily life move online. The emergence of the recent pandemic has only accelerated that trend. One can work from home, go on virtual tours to various destinations, or even take classes from the comfort of one’s home or dorm room. To extrapolate, it is unsurprising that there is an emerging trend for virtual estate planning in Florida as well as most other states across the nation.

Estate planning that operates from a website or using web based tools primarily, also known as  online estate planning or Do It Yourself estate planning,  offers an alternative or complement to traditional estate planning with a lawyer.  There are now various online legal tech companies, which offer products that allow an individual to prepare a Last Will & Testament as well as other legal documents on their own, without necessarily hiring an attorney.

As an estate planning tool, the way online planning works is that, for a specified fee, a person receives digital access to templates for common estate planning documents, such as Last Wills, Living Trusts, and Healthcare Directives, among others. The templates are claimed to be state specific, designed to comply with or follow the laws of each state. Consequently, a virtual planning platform might offer one document template for Florida, another for New York, California, Pennsylvania, etc. However, not every service makes all their forms available for use in every state.

As part of the process, the planning software asks for one’s basic identifying information and estate planning goals, along with information more specific to the form one is creating. When preparing a Last Will, a person will describe their estate planning assets in Florida and elsewhere as well as their designated beneficiaries and identify persons to serve as the Florida Personal Representative (or Executor) and alternate, if any.  Once the customer information has been inputted, the software populates editable fields within the template. If everything works as intended, an individual will supposedly end up with a legally valid document that becomes effective after it has been printed out, signed, and properly witnessed, and notarized in accordance with Florida law (or the laws of whichever state is applicable).

Importantly, virtual estate planning is usually limited to document preparation. The software cannot provide legal advice or represent a person in a probate proceeding in Florida or elsewhere.  Therefore, for the concept to work correctly, a person needs to already have a fairly good grasp of what they are trying to accomplish and the basic approach they want to take.

Web based preparation of legal documents is by no means restricted to estate planning. Online legal tech companies also offer numerous business related forms such as articles of incorporation, partnership agreements, and operating agreements for LLCs in Florida and elsewhere.  HOWEVER, the personal nature of estate planning, and the widespread popular need for estate planning documents have led to rapid growth in the number of people planning their estates online. In turn, the proliferation has fueled concern among some legal professionals.

 

The primary selling points of online estate planning are that the process is convenient and cheaper than hiring a locally licensed lawyer. Online legal tech companies boast that they can help the public prepare a Last Will for less than a private attorney. An individual may have a challenging time finding a lawyer who can draw up a Will for them that cheaply. HOWEVER, a Legal Services/Legal Insurance Plan can provide a member the personal or individualized touch of a local lawyer with the competitive rates as the online services. In fact, some Legal Insurance or Legal Services Plans even pay for a basic estate plan involving no tax planning as well as business documents and other specified legal services. Therefore, one has the best of both worlds.

Specifically, there are basically four (4) major types of legal plans offered: document provider, as discussed above, where people create their own paperwork; discount legal plans where people receive discounted hourly rates for legal services through screened attorneys;  Employee Assistance Programs (EAP) where members have an initial free consultation and additional legal services can be provided at a discounted rate, and Legal Insurance Plans where members pay a set premium and receive services from a Plan attorney, and many, if not most, services are paid by the Plan (whether it is with an in house attorney or participating outside third party attorney).   Many of these Plans can be a benefit one gets from their employer, or they can purchase a plan individually whether as an independent member or as a retiree.

Considering that many consumers or potential clients simply cannot afford to hire a lawyer, the importance of price should not be ignored. When the choice is between using templates provided by a credible online platform or having no help at all, virtual planning is a choice for many people. A better option, however, may be to join a Legal Services/Legal Insurance Plan that directs a member to participating attorneys and the member gets legal services for a discounted rate or the Plan may pay for the services in their entirety. These Plan Attorneys can also provide services remotely with the use of telephone, email, and other internet services.

Efficiency and convenience are also noteworthy advantages of online estate planning or the use of Legal Services/Legal Insurance Plan attorneys. By using a service that one can access from home or work on their own time, one can avoid the need to take time off from work or otherwise disrupt their schedule to meet with a lawyer. Therefore, after the necessary information is supplied, the appropriate documents are created, so the overall process takes less time and may be more convenient.

As stated, the convenience of pre-built online templates comes with a loss of personalization. Most online templates cannot be customized beyond the user-populated fields. If the form is perfectly suited to one’s circumstances, that may not be a problem. However, every person’s situation is different. If a person has an unconventional family structure, large or complex estate, or any other situation not contemplated by the template, the said individual might not be able, on their own, to tailor the documents to do what they really require or need.

When a person collaborates directly with a capable attorney, they can discuss their individual circumstances, needs, concerns, and goals. Experienced attorneys can draft provisions customized to one’s particular situation and are also more familiar with the idiosyncrasies of state law that can cause potential estate planning headaches. Web based software is much less likely to identify and address these state specific statutes that might affect only a minority of their users. Therefore, the use of a Legal Services/Legal Insurance Plan Attorney comes in to promote convenience without sacrificing the personal attention, skill, and experience of a local attorney.

 If you should have any additional questions or would like to discuss your situation, concerns, and needs, please contact an attorney at Caserta & Spiriti. The firm participates with about fifteen (15) different Legal Services/Legal Insurance Plans.

Florida’s Simultaneous Death Law

A version of the Uniform Simultaneous Death Act is Florida’s Simultaneous Death Law, which is found in Florida Statute § 732.601.  The Simultaneous Death Law is triggered when two or more people die and there is insufficient evidence concerning when certain individuals have died other than simultaneously. This situation is common in fatal accidents where it is not readily known which individual died first. This law can be important when it comes to figuring out the ownership of joint accounts, which passes to the survivor. HOWEVER, who may be considered the survivor? Therefore, determining the correct beneficiary of a life insurance policy, or who takes under a Last Will and Testament may be difficult unless a legal formula is used.

This law only takes effect when the couple’s Last Wills are silent as to which spouse is presumed to have survived the other, or when the spouses die without an estate plan or Will. Under Florida Statute 732.601(1), “[w]hen title to property or its devolution depends on the priority of death and there is insufficient evidence that the persons have died other than simultaneously, the property of each person shall be disposed of as if that person survived.” 

The foregoing statute also contemplates when two or more beneficiaries are designated to take successively by reason of survivorship, disposition of property held by joint tenants or tenants by the entirety, and insurance policies where the insured and beneficiary both die and there is insufficient evidence that they died otherwise than simultaneously. Consequently, the practical effect of Florida Statute 732.601 is that when two people die and their order of death cannot be readily determined, each person’s property will be treated as if they outlived the other. In other words, if a mother has her son as the primary beneficiary of a life insurance policy and her sister as the contingent beneficiary, and both mother and son perish in a plane crash with no evidence as to order of death, then the policy would be payable to the sister as a contingent beneficiary.

In a probate proceeding, this distinction is particularly important, as contingent beneficiaries may have rights of which they are unaware due to the Simultaneous Death Law. The language contained in a Last Will and Testament, or Trust or policy of insurance can provide differently by their respective terms, but in case of a Simultaneous Death, it may be to one’s advantage to speak to a Florida probate attorney regarding the facts.

Now, what happens to the estates of two spouses who die in close in time to one another? For that matter, what happens if a married couple is killed simultaneously–such as in a car or plane accident–and it is impossible to determine who died first? The answer to these questions depends on Florida law and the terms of each spouse’s individual estate plan documents.

Absent a specific provision in a person’s estate plan or other “governing instrument,” Florida law directs that when “there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.” What that means is that if a person and their spouse die at the same time, then each is presumed to have survived the other for purposes of their respective estate plans.

The foregoing may sound like a contradiction, but it makes sense if one seriously thinks about it in practical terms. For instance, an individual and their spouse each have a Last Will which leaves their entire estate to the other spouse. Under Florida’s simultaneous death rule, each of their respective estates assumes the other spouse died first, therefore, the estates would then go to the alternate beneficiaries, such as children. Absent this rule, each spouse’s estate would go to other spouse’s estate–effectively creating a legal paradox.

The simultaneous death rule also applies to life insurance policies, which means if a person takes out a policy on their own life and their spouse is the named beneficiary, in case of a simultaneous death the spouse is presumed to have died before the subject person. The policy benefits would then go to the alternate or contingent beneficiary named. If no alternate beneficiary is named, then the proceeds go to the estate of the insured.

There are also situations where one may want to impose a “survivorship” requirement on a beneficiary to your estate, including the spouse or another family member. As an example, the Last Will might include language which says no beneficiary may receive a bequest unless they survive you by 30, 60 or 90 days. Again, the reason for this language is to avoid potential issues with multiple estates administering the same property.

Some states impose automatic survivorship periods, typically 120 hours (or 5 days) on all heirs and beneficiaries. Florida does not have such a rule. However, one is still free to require a survivorship period in the Last Will or Trust if they desire, although it should typically not last more than 60 days.

When preparing an estate plan, one can work around the Uniform Simultaneous Death Act if they do not care for the result following its provisions. Consequently, the Last Wills can stipulate that, in case of a simultaneous death, only one of the of the spouses is considered or deemed to have survived the other.

It is important to collaborate with an attorney who understands all aspects of Florida law. Consequently, the form of joint ownership and terms in estate planning documents used will be critical to determining who will benefit in the case of a simultaneous death.

If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

Medicaid & Its Look-Back Period in Florida

(A Quick Review)

Florida has a 60-month Medicaid Look-Back Period that immediately precedes one’s Medicaid application date. During this timeframe, Medicaid checks to ensure no assets were gifted or sold under fair market value.

To qualify for long-term Medicaid in Florida, such as nursing home or assisted living care, the applicant must not have given away assets within 5 years of applying for Medicaid benefits. Any gifts or transfers of assets made greater than 5 years of the date of application are not subject to penalties.

Medicaid services in Florida are administered by the Agency for Health Care Administration. Medicaid eligibility in Florida is determined either by the Department of Children and Families (DCF) or the Social Security Administration (for SSI recipients).

In Florida, Medicaid can be used to pay for an elderly relative’s nursing home, assisted living facility, or in-home nursing care. Medicaid pays a fixed daily rate to cover costs such as a patient’s room, meals, staff care, and medical supplies, for the remainder of their life.

In Florida, most Medicaid recipients are enrolled in the Statewide Medicaid Managed Care program. The program has three parts: Managed Medical Assistance, Long-Term Care, and Dental.

The most popular question that arises is -can Florida Medicaid (or AHCA) take one’s house? The basic answer is “no.” If one dies and their home goes to their heirs-at-law (i.e., family members) then the state of Florida cannot take their homestead real property. HOWEVER, Florida Medicaid does have a pay-back provision, just like all states. During one’s lifetime, if they received Medicaid benefits and if they die after age 55, the State of Florida is a creditor in their probate estate.

One of the other biggest concerns is often, “Will the nursing home take my house?” The short answer is no. A nursing home does not take houses. However, there are circumstances where selling the house may be the only way to get the funds to pay for the care that is needed.

Since Medicaid is a needs-based program, this 5-year rule is designed to ensure that applicants need government assistance and did not just position themselves to receive Medicaid benefits just before applying.

To qualify, a single individual over the age of 65 (or disabled), who needs home-health aide, assisted living facility or skilled nursing home Medicaid benefits, he or she can have no more than $2,000.00 in what are considered countable assets for Medicaid.

Exempted assets include personal belongings, household furnishings, an automobile, irrevocable burial trusts, IRAs in payout status, and one’s primary home or residence. For home exemption, the Medicaid applicant must live in it or have the intent to return, and in 2022, have a home equity interest no greater than $636,000.

Effective January 1, 2022, the applicant’s gross monthly income may not exceed $2,523.00 (up from $2,382.00). The applicant may keep $130 per month for personal expenses. However, even having excess income is not necessarily a deal-breaker in terms of Medicaid eligibility.

The most common example of a non-exempt transfer is a gift of an asset to a friend or family member within the prior 60 months of applying for Medicaid benefits.

If an applicant is found to have made a non-exempt transfer during the previously mentioned look-back period, the State of Florida will impose a penalty of ineligibility based on the amount of money that was transferred away.

The length of the penalty of ineligibility is calculated by dividing the amount of money that was given away by the average monthly private-pay nursing home facility cost.

Therefore, to protect a prospective applicant’s assets legally and ethically before the look-back period, an individual must ensure their estate plan is in order and create an Irrevocable Trust for Medicaid purposes, which if done properly, allows protection for both principal and income while allowing the applicant to still qualify for Medicaid long-term care. Several ways to protect money from Medicaid include, but are not limited to, an Asset protection trust, in that Asset protection trusts are set up to protect wealth, Income trusts, Promissory notes and private annuities, Caregiver Agreements or Personal Service Contracts and Spousal transfers, among others.

Assets are not protected from Medicaid in a Revocable Trust because a person retains control of them. The primary benefit of a Revocable Trust is that one can name a beneficiary who will receive payouts from the trust after death without the need of a probate proceeding.

If one is healthy and not looking to receive long-term care in the immediate future, there are several steps that can be taken to better prepare for future needs. Once again, ensure that an estate plan is in order and that a Will and/or Trust is up to date. Further, other needed documents include a valid Durable Power of Attorney (for financial matters), Healthcare Surrogate (medical power of attorney) and Living Will/Advance Directive. An individual can also create an Irrevocable Trust for Medicaid purposes, which if done properly, allows for the protection of both principal and income while allowing the applicant to still qualify for Medicaid long-term care. An individual can obtain long-term care insurance coverage as well. Some private insurance carriers provide options for this type of insurance, but the applicant typically must be healthy at the time of purchase for them to be covered. Financial advisers recommend the optimal age to inquire about a long-term care policy, assuming one is still in good health and eligible for coverage, is between 60 and 65. Couples might consider looking into it 5 years earlier.

The foregoing is just a brief overview or review of the subject described.

If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

CRUISE SHIP ACCIDENTS IN FLORIDA (An Overview)

Accidents can occur anywhere. While on vacation, a significant injury might be sustained on a cruise. It is estimated that more than nine million passengers travel on pleasure cruises departing North American ports each year. It has also been reported that, since 2016, there has been an upward trend of accident or negligence cases against cruise lines and that personal injury cases against the three biggest cruise lines, i.e., Carnival, Royal Caribbean Cruises Ltd., and Norwegian Cruise Line Holdings accounted for 78 to 87 % of all federal litigation they faced over the past five years.

Common causes of cruise ship injuries, include ship collisions, technical problems, passengers falling overboard, assaults by crew members, food poisoning as well as slip and fall incidents. These acts of negligence can lead to serious injuries such as broken bones, concussions, and internal organ damage. In the event of injury or wrongful death, one can bring a claim or lawsuit against Carnival, Royal Caribbean, Norwegian, or Celebrity Cruise Lines.

First, it is important to clarify that when a person purchases a ticket and boards a cruise ship, they automatically accept the cruise line’s contract. One can typically find this contract in the fine print on the bottom of their ticket. By making the purchase and boarding the ship, an individual legally consents to the terms of the cruise line. This liability waiver can bar injured parties from pursuing certain claims against the various cruise lines. It can also list important claim information, such as deadlines for filing. The contract may state something like, “the cruise line is not liable for any personal injury, illness, or death unless negligent.”

It is also important to know that the contract does not protect the cruise line from every personal injury claim. It is only those that the carrier or cruise line employees had not caused or to which they had not contributed. If one believes the cruise line or one of its employees is guilty of negligence or intent to harm, their case will circumvent the stipulations of the ticket purchase. Otherwise, the subject cruise line on which a person traveled would be free to cause harm or conduct business negligently without fear of legal repercussions. An example would be if the injury was entirely the passenger’s fault or due to their own carelessness, then they will not have a case. Various resulting injuries for which a passenger cannot sue include, but are not limited to, if you drank too much alcohol and tripped down the stairs; if you were fooling around in an area blocked off to guests with proper signage; or did not follow proper instructions and fell, etc.

On the other hand, the type of cruise injuries one can make a claim or sue for are torn carpeting which caused a fall; loose handrail caused a tumble down the stairs; and proper signage was not used to alert guests to avoid an area or use caution. In the foregoing, one might have a premises liability lawsuit against the carrier for failing to properly maintain the cruise ship.

A cruise line lawsuit may also have a foundation in the legal theory of negligence. For instance, this might be the case if the ship’s cook failed to properly refrigerate fish, leading to an outbreak of food poisoning.

A cruise ship owes its passengers a duty of safe transportation. Passengers who are injured aboard a ship may file lawsuit against: the owner of the cruise ship; the company that chartered the cruise ship; the company that operated the cruise ship, and/or the Company that sold the ticket as an agent of the cruise ship owner, charterer, or operator. Each of these claims may be subject to cruise ship laws which affect where and when the passenger may file suit.

The initial hurdle is that personal injury claims against a cruise line company usually require passengers to file them in the same state of the company’s headquarters. In the alternative, there other forum selection clauses. These provisions, also contained in the ticket package, dictate where a lawsuit may be filed against the cruise line. It does not matter where the passenger is from, or where the cruise departed. Currently, cruise lines have limited the location where claims may be brought to a handful of cities where larger ports are located, such as Miami, Seattle, and Los Angeles. This can be an issue for people that live elsewhere, and with many major cruise lines based in Florida such as Royal Caribbean, Celebrity, Carnival, and Norwegian Cruise Lines, or the location designated to bring a lawsuit may be Miami, then a Florida based attorney may be in the best position to represent the injured party and litigate these claims.

Further, most cruise lines also have a notice requirement. That means, if you want to sue them, you must give them formal written notice of your claim within a specific period, usually just a couple of months after the injury or illness is sustained. For injuries occurring due to negligence associated with a cruise line, the contractual provisions typically call for a limited timeframe. More specifically for injuries or deaths stemming from negligence associated with a cruise ship, the contract, which is usually contained in the ticket package, typically provides that a passenger must provide notice of a claim to the cruise line within six months and commence a lawsuit within one year.

Therefore, an added hurdle is that cruise ship accident lawsuits carry a one-year statute of limitations. This limited timeframe combined with the need to file in the same state of the company’s headquarters can create an incredibly tight, inconvenient, and often expensive litigation process for out-of-state passengers injured in a cruise ship accident.

Bringing a lawsuit against a cruise line for onboard injuries requires a different process from personal injury claims on land. Cruise ship injuries involve elements of maritime law, a distinct body of law which governs offenses and activities on water vessels. There are also different filing deadlines and liability concerns one must consider.

Regarding non-physical injury claims, cruise lines impose a shorter limitation period. Most cruise lines require that written claims be filed within days as opposed to months after the accident. Courts may decide not to enforce these limitations if they were unreasonable under the circumstances or contrary to a state statute of limitations.

Maritime laws require plaintiffs to prove fault. A common carrier owes the highest degree of care to its passengers. However, unlike typical strict liability cases, passengers must prove negligence or intent to harm to bring a claim against said cruise line. This involves having evidence of the cruise line’s failure to exercise due care thereby resulting in injury.

As a common carrier, or a vessel that carries passengers for money, cruise ships must obey certain common carrier laws. These laws and rules include providing: adequate fire protection; competent crewmembers; safe and sanitary food services; firefighting and lifesaving equipment; stable watercraft; safe navigation; vessel control; environmental protection; protection from physical harm; safe arrival at the destination; protection from crewmember assaults and/or reasonable search and rescue for missing passengers, among others.

Passengers who sustain injuries due to negligence or intent to harm may be able to recover compensation for their medical bills, pain and suffering, lost time at work, and other damages.

At the time of an accident and shortly thereafter, gather as much information as possible about what happened, such as statements from people who witnessed the incident, names of cruise ship staff members on the scene, photographs of anything relevant to your claim and any other relevant details that may be helpful in the potential case.

If one must go to the onboard hospital for treatment of injuries sustained, then have a friend or family member gather medical as well as other relevant information. As expected, it is vital to record details of the subject incident while they are still fresh in one’s memory.

You must file your lawsuit at the cruise line’s headquarters or as designated on the ticket. Despite being highly inconvenient for passengers who live out of state or even in a different country, cruise ship liability waivers state that injured passengers must file claims in the state of the company’s headquarters or as otherwise designated. In addition, Cruise ship lawsuits are often subject to a one-year statute of limitations. This means that a cause of action must commence within one year or the passenger loses their right to pursue compensation.

Probably, the key factor in a case against a cruise line is the ability to prove negligence. This factor hinges on the court ruling that a “reasonably careful ship operator” would have done something different in the same situation, such as knowing about a faulty staircase railing and taking steps to repair the issue. Although it is impossible for a cruise line company to foresee all dangerous conditions, they have a duty to reasonably prevent harm to passengers.

Finally, report the accident and injuries to the cruise line as soon as possible, not only to receive a possible refund but also to have documented proof that the incident occurred and that it was reported to authorities in a timely manner. Keep a record of the employees or representatives with whom one speaks, what he/she said, and how the cruise line responded to the subject incident and injuries.

If there are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs and after to discuss the details of your case!!

MOTHER’S DAY-A Little Law & A Little History

There are over 1,500 national holidays. On May 8, 1914, the United States Congress passed a law designating the second Sunday in May as Mother’s Day. Specifically, President Woodrow Wilson signed a bill designating the second Sunday in May as a legal holiday to be called “Mother’s Day” …dedicated “to the best mother in the world, your mother.” It is the second largest consumer spending holiday in the United States according to the National Retail Federation. 

The creation of a national Mother’s Day is attributed to three women, i.e., Ann Reeves Jarvis, Julia Ward Howe, and Ann’s daughter, Anna M. Jarvis.

Eventually, Anna Jarvis from Philadelphia wished to memorialize her mother’s life and started campaigning for a national day to honor all mothers.

Her efforts came to fruition, when in May of 1907, Anna Jarvis memorialized her mother’s lifelong activism with a memorial service held at the Methodist Church in Grafton, West Virginia, where Anna’s mother had taught. The following year, on May 10th, a Mother’s Day service was held at that same church to acknowledge all mothers. Consequently, the idea that the second Sunday in May be set aside to honor every mother, whether living or deceased, was born.

Ms. Jarvis’s efforts came to the attention of the mayor of Philadelphia, who proclaimed a local Mother’s Day. While West Virginia was the first state to officially adopt the holiday, others followed suit.

From the local and state levels, Ms. Jarvis later traveled to Washington, D.C. where federal politicians lent verbal support.

Proclamation of the day by the various states spurred Representative J. Thomas Heflin of Alabama and Senator Morris Sheppard of Texas to present a joint resolution to Congress that Mother’s Day be observed nationwide. The resolution was passed by both houses.

Historically, the tradition dates to pagan celebrations in ancient Greece in honor of Rhea, the mother of the gods. In Rome, as well, Cybele, a mother of goddesses, was worshipped as early as 250 B.C. In the 17th Century, England celebrated a day called “Mothering Sunday” on the fourth Sunday of Lent.

One can include their mother-in-law on this date as well. However, National Mother-in-Law Day, which is modeled after Mother’s Day, is officially celebrated on the fourth Sunday in October. That occasion honors the other mother in many people’s lives. Gene Howe, the editor of an Amarillo, Texas newspaper, started the holiday in honor of mothers-in-law. It was first celebrated on March 5, 1934, in Amarillo, Texas. 

Through the years, celebrants observed the occasion on various days. In later years, the Mother-in-Law Day Committee developed and selected honorees each year. Then in the 1970s, the American Society of Florists proclaimed the last Sunday in October to be National Mother-In-Law-Day. Since that time, the date has been observed accordingly.

The foregoing is merely a summary of the holiday. If you should have any legal concerns or issues, please call the attorneys at the law firm of CASERTA & SPIRITI.

MEMORANDUM AS TO DISPOSITION OF TANGIBLE PERSONAL PROPERTY ATTACHED TO A FLORIDA WILL

A Memorandum as To Disposition of Tangible Personal Property is a document made part of a Last Will & Testament and makes specific gifts of the deceased’s or testator’s tangible personal property to take effect at death and can be handwritten by said person without the need of an attorney’s assistance. As stated therein, the Memorandum shall have no significance apart from its effect on the disposition of the subject individual’s property by the aforementioned Will and shall be attached to and kept for safekeeping with such Will. The person creating the Will expressly reserves the right to revoke or alter the Memorandum at any time prior to death and does not intend by this Memorandum to create any rights, whether by anticipation or otherwise, in any of the persons mentioned herein as testamentary donees or beneficiaries of the subject individual’s property. In other words, it is a supplemental document that must be referenced in the Will or living trust and allows one to specify the items of personal property they wish to leave to loved ones. A properly prepared personal property memorandum will be specifically referenced in one’s trust or Last Will and will be prepared in the testator’s own (preferably legible) handwriting and signed. It could be typed as well. No witness or notary signatures are required. The memorandum can be revised, amended, or replaced as often as the testator desires.

The role of this document in Florida Estate Planning is to reduce the risk of family conflict by preparing a personal property memorandum as a supplement to one’s Will. A personal property memorandum, which is merely a signed list identifying specific items and intended recipients, provides a means of clearly describing who gets what. In doing so, the memorandums become an important safeguard against estate or family conflict.

When it comes to preparing a personal property memorandum in Florida estate planning, one cannot just write out a list of whom a person wants to receive particular items and expect it to be enforced by a Florida probate court. A personal property memorandum needs to satisfy certain requirements set forth by statute, Fla. Stat. §732.515.  One first needs a valid Florida Last Will & Testament (or trust instrument), which mentions one’s intention to create and incorporate a separate list of tangible personal property. The said memorandum or list can be the last page of the Will or trust or a separate document.

In order to be effective, a personal property memorandum must be signed by the testator (i.e., the individual whose Will is being supplemented). Florida’s personal property memorandum statute does not technically require the list to be dated, but dating is a better idea, as it tends to avoid confusion if the list is amended or revised later. More importantly, a personal property memorandum must also identify with reasonable certainty the items to be distributed and the individuals who will receive them. One needs to ensure each individual item and beneficiary can be readily identified without any further explanation.

One of the biggest advantages of using a MEMORANDUM AS TO DISPOSITION OF TANGIBLE PERSONAL PROPERTYis that it can be amended without going through all the formalities for creation of a Will or codicil. Consequently, if a person acquires new personal property or transfers existing property (or just changes their mind about the disposition), they can alter or revise the memorandum later on. In the alternative, they can just write up a new memorandum to supersede an earlier version, which is one of the reasons it is important to date the document.

However, if the actual Last Will and Memorandum both happen to include the same item, the Florida Probate Code says that the subject Will takes precedence even though the Memorandum was created later.

In Florida (as well as most other states that allow them), these memorandums can only be used to distribute “tangible personal property.”  Therefore, their use excludes real estate since real estate is not personal property. â€œTangible” means things that you can hold or touch, i.e., trinkets, antiques, clothing, jewelry, furniture, musical instruments, possibly firearms, and possibly pets.

HOWEVER, one may not be able to simply give a beneficiary a firearm as stated in a Will. There are situations in which their taking possession of the firearm or gun would be illegal, such as if they are a convicted felon. The same can be said for the personal representative’s or executor’s possession of the firearm. The personal representative is not exempt from the law, because they are acting on behalf of an estate. If one is not entitled to possess a gun, then speak with a specialized attorney with experience in firearms immediately about ensuring the firearms are stored in a lawful place during the probate process. As a personal representative, carefully review the decedent’s estate planning documents, including whether they have a gun trust, and speak with an experienced probate attorney before doing anything with the decedent’s firearms. Numerous federal and state laws regulate the sale or transfer of firearms, making the gifting process complicated. One cannot convey a gun improperly or to an unlawful recipient, which may violate the law. Further, if the decedent did not plan for how their guns were to be handled, the personal representative will need to know how to dispose of them properly and legally. The foregoing requires a more in-depth discussion, which may be dealt with at a later time.

On the other hand, â€œintangible” property cannot be distributed using a personal property memorandum. Accordingly, items such as bank or investment accounts, securities, insurance policies, and intellectual property are excluded. Also, cash does not qualify as “tangible” personal property. Promissory notes or other evidence of indebtedness do not qualify as well.

Another exception built into Florida law applies to property “used in business or trade,” which is not eligible for inclusion in a personal property memorandum. Said regulation means that certain items might be includable in one context but not in another. Tools you keep in the garage for household projects can probably be included in said memorandum, but those same tools might be ineligible if you use them in a business endeavor.

One of the most valuable personal property items that most people own, i.e., motor vehicles, should not be listed in the subject memorandum. The reason being those motor vehicles have certificates of title, and a vehicle’s title is what determines who owns it. Again, since a vehicle or boat has a certificate of title, it would be preferred to include said items in the Last Will or a Florida revocable trust.  When the time comes, the personal representative or trustee signs over the title to the beneficiary. One can arrange to transfer an asset outside Florida probate through some type of joint ownership with a right of survivorship.  When an asset is jointly owned with a right of survivorship, full title or ownership automatically vests with a surviving co-owner upon the other owner’s death.

Even if there is no title, one can better dispose of particularly valuable personal property through a Will rather than the aforesaid memorandum even though the subject item qualifies as “tangible personal property.”  An attested Will provides more certainty and is less susceptible to ambiguity or tampering than a Memorandum, which can be informally revised. Therefore, if a person’s estate includes heirloom jewelry, for example, which might be considered expensive, it might be preferable to address it within the actual Will. If one is unsure whether an item is appropriate for a personal property memorandum, one should discuss it with an experienced Florida estate planning attorney.

A Florida personal property memorandum does not need to be a sophisticated legal document. A memorandum should have a brief description clearly identifying the document’s purpose, the date and the testator’s signature, and a list of items and beneficiaries. Each item needs to be described with certainty and beneficiaries should be sufficiently identified including the full legal names of recipients to eliminate any confusion. 

One of the primary purposes of any estate plan is to avoid family conflict.  Most estate plans adequately address large assets, but the smaller personal items may cause conflict. In Florida, incorporating a memorandum of personal property into the Last Will & Testament, which distributes tangible items with sentimental or some economic value, and which may not be included in the Will itself, is an effective way to avoid future battles among family members.

If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

POWERS OF ATTORNEY & THE GOVERNMENT

Powers of Attorney (POA) are prepared under state law and are not necessarily binding on federal agencies.

The Social Security Administration does not honor durable powers of attorney. A representative payee manages benefit payments for beneficiaries who are incapable of managing their Social Security payments. One must contact their local Social Security office to apply to be a payee.

If one does become representative payee for their parents, their Social Security payments should not go into the children’s account. One should open a separate account to receive the said benefits that should have their parent’s Social Security number.

One can request the Social Security Administration (SSA), the government agency that disburses Social Security, to name, for example, an adult child as the representative payee for that elderly person.

As a representative payee, one is granted the power and the responsibility to manage that money for the parent, friend or loved one. The SSA requires all beneficiaries who are incapable of managing their own payments to have a representative payee.

While this authorization is necessary for many caregivers, it is worth noting that it involves a great deal of accountability. This position requires meticulous recordkeeping of all a beneficiary’s benefits and how they are used. In instances where there is not a family member or friend available to serve as a representative payee, the SSA will appoint a qualified organization to manage the recipient’s benefits  One can visit ssa.gov/payee to learn more about the Social Security Administration Representative Payee Program.

The Social Security Administration (SSA) requires representatives to be authorized to participate in a beneficiary’s affairs but does not recognize the POA designation. If you are trying to help a loved one with Social Security applications, claims or appeals, you will need to apply to be their authorized representative by completing the SSA-1696 Appointment of Representative Form. A representative can be a relative, friend, attorney, caseworker, or other qualified person, and the SSA will thoroughly vet this person before accepting their appointment. One can gather more information regarding an SSA Authorized Representative by visiting ssa.gov/representation.

When it comes to managing a loved one’s veterans’ benefits, there is yet another process that caregivers must go through. According to the U.S. Department of Veterans Affairs (VA), a Power of Attorney for finances is not a sufficient authorization for managing a veteran’s monetary benefits. If a physician or a court of law has determined a veteran (or surviving spouse of a veteran) to be incapable of managing their finances, the VA will call for the appointment of a fiduciary.

If possible, the beneficiary typically appoints the person they wish to serve in this capacity or role, and the VA conducts a thorough investigation of the individual’s qualifications. In cases where there are no suitable family members or friends available to serve as a fiduciary, the VA will appoint a qualified professional fiduciary or organization to fill this role. As with the SSA representative payee program, appointed VA fiduciaries must carefully record transactions, keep receipts, and provide accountings to the Veterans Benefits Administration. For more information on becoming a VA fiduciary for someone, visit benefits.va.gov/fiduciary,

Medicare cannot provide personal health information to a caregiver unless the beneficiary has submitted written authorization to the Centers for Medicare & Medicaid Services (CMS) or provided verbal permission over the phone, Medicare beneficiaries may be able to answer basic questions verbally thereby granting their caregivers authorization to discuss coverage details.

However, having a standing authorization on file with Medicare is a better practice. As with all legal authorizations, it is best to take care of the paperwork well in advance. The “1-800-MEDICARE Authorization” Form can be completed over the phone with the assistance of a customer service representative or by completing and mailing in a hard copy. Mailing in the paper form may involve several weeks’ delay before one is authorized to act on another’s behalf. If one is looking to assist a Medicare beneficiary file an appeal or complaint or request a coverage determination, they will need to be officially appointed as their representative.

The Medicare Appointment of Representative form (CMS-1696) is very similar to the SSA application.

Private insurance companies often have their own versions of these forms as well, so it is best to inquire with insurers about their specific authorization requirements.

The Office of Personnel Management and the Railroad Retirement Agency also appoint representative payees and the responsibilities are virtually the same.

As a representative payee, one only has the power to manage Social Security or other applicable agency benefits for the parent, friend or loved one (the beneficiary) and not any other money or property for that person unless some other documents, such as Powers of Attorney, or the subject government agency appoints them to do so.

Family caregivers should consider investing in a copier or printer. They will constantly need more copies of POAs and other documents to prove they are legally authorized to access sensitive or confidential information, speak with important entities and/or medical providers and make decisions about a loved one’s finances and/or care.

When advocating for a loved one, many situations can be resolved practically and amicably by a combination of goodwill, clear explanations and reasonable questions posed to the proper people. One can request to speak with a supervisor. If one is not available, or if rational discussion proves ineffective, one may invoke their right to contact an attorney, a political representative, or a bureaucrat at the state or federal level who oversees or regulates that person, organization, or industry.

Taking responsibility for someone else’s well-being is an important and often complex task. One should learn and know their rights, the rights of the care recipient and the responsibilities involved. Consequently, the sooner a caregiver and their loved one get all the proper documents in place, the more likely they will avoid problems in the future. If you should have any additional questions or would like to discuss your situation, concerns, and needs, please call an Attorney at CASERTA & SPIRITI.

Examinations Under Oath (EUO) in Florida

After a motor vehicle accident involving injuries, an Examination Under Oath (EUO) provides an opportunity for a representative of an auto insurance carrier to question their insured under oath in the presence of a court reporter.

The EUO is a formal process used by insurance companies to gather more information about a claim, prevent fraud, or allow the insured party to prove their losses if there is missing or destroyed evidence.

Most insurance policies require an insured to submit to an Examination Under Oath as part of the insurer’s investigation prior to deciding coverage. The said policies allow carriers to examine their insureds and omnibus insureds, i.e., individuals not named but covered under the subject policy. Any failure by the insureds to cooperate with this policy condition or term may result in a denial of coverage.

An EUO is a process by which the insured is asked a number of questions by the insurer’s lawyer, under oath, about the subject claim. The Florida Rules of Civil Procedure do not apply to Examinations Under Oath. Since an EUO may be conducted by an attorney for the insurer and involves sworn testimony regarding the insured’s claim, it is recommended that all insureds have an attorney present. The insured’s attorney will be able to keep an eye on the propriety and scope of the insurer’s conduct and questions to protect the insured’s interest in the claim.

Since an EUO is a sworn statement which can be used by the insurer in evaluating the claim, and in a future court proceeding, it is vital that an insured answer all questions truthfully. An insured should refrain from speculation or exaggeration in any way. If one does not recall or know the answer to a question it is acceptable to simply say “I don’t recall” or “I don’t know.”

An insured should only speak if there is a question pending and only address that question. One should not volunteer additional information. Even though it may seem like one is being cooperative, this conduct often provides the insurer with more information on which to ask further questions and delve deeper into the subject claim. One must consider that the insurer’s goal is to not have to pay the claim. The more information one volunteers the greater basis for a potential defense against paying the claim.

An Examination Under Oath can last as little as one (1) hour and as long as eight (8) hours. The duration of the EUO is often unknown at the outset and depends on a number of factors. Some factors may include who the insurer has as their attorney, how complicated the claim may be, how many insurance benefits are being claimed, the age of the claim, as well as how many prior claims the insured may have, among others.

While most EUOs do not last the entire day, the insured should be prepared to be available for a full day as the insurer has the right to use the entire workday to conduct its EUO. Failure to attend an EUO for a reasonable period of time may provide the insurer with grounds to deny the claim. Consequently, an insured should plan to be available for a full day.

A policyholder or insured should prepare for an EUO. It is recommended that a policyholder or insured create a timeline for the claim. While an insured need not know the precise dates or amounts claimed for specific damages, an insured should be familiar with the events of the claim, the parties involved, what actions have been taken since the loss and essentially have a reasonable working knowledge of their claim.

The insurer will often require the insured to produce documents prior to an EUO. The insurer will often send a schedule or exhibit requesting specific documents or documents that relate to a specific area of inquiry on the subject claim. An insured should perform due diligence in trying to find and produce as many documents as possible that are responsive to the insurer’s requests.

Copies of all responsive documents should be sent to the insured’s attorney well in advance of the EUO so that the insured’s attorney has sufficient time to review the documents prior to producing any documents to the insurer.

An insured is not required to search for documents. An insured is only required to produce responsive documents that are in their immediate possession.

There are often issues as to which questions an insured must answer and which questions, or type of questions, an insured can refuse to answer. The general rule is that an insured must answer all questions relating to the subject claim and an insured should try to answer all reasonable inquiries posed by the insurer. One can ask the examiner to rephrase a poorly worded or unclear question or ask them to repeat the question if they missed it.

The pervasive thread running throughout Florida case law or court decisions is that the policyholder or insured may not refuse to answer questions on the actual loss itself or circumstances surrounding that loss. If the question is material to the investigation, i.e., pertaining directly to the loss or surrounding circumstances, then the policyholder or insured must answer the question or risk violating their insurance policy provisions.

If there are any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI before an unfortunate and unexpected accident occurs!!

A QUICK OVERVIEW OF A FLORIDA ACCIDENT CASE

The following steps are important if you are involved in an accident which causes injury in the state of Florida.

 

An injured party should first seek medical treatment even prior to contacting a lawyer.

Even if a person does not believe, at first, that they are seriously injured, one should visit the ER Dept. of a hospital, Urgent Care, or a clinic to make sure they are well. Seeking medical attention has another advantage. When injuries are timely recorded, then said documentation can be used in and to substantiate a personal injury claim or lawsuit.

One should gather sufficient information to make a claim or sue the correct driver or negligent party or at fault party in a motor vehicle or other type of accident. Needed information includes but is not limited to name and contact information of the other responsible party (driver, owner, etc.) as well as the car’s make and model, license plate number, etc., check the intersection or nearby businesses with security cameras. One should find out if there are any Witnesses and get their names and contact data.

Thereafter, file a Police Report. Even if an involved party does not have all the necessary information, the police can often use their expertise to track down the driver, owner, etc.

 

Keep Records of any expenses resulting from the accident, such as property damages, rental bills, medical services rendered and reports of any injuries or a medical diagnosis, and insurance.

 

Finally, contact a trusted or recommended and experienced Florida Personal Injury Attorney. Get at least a consultation with a local Personal Injury Attorney regarding the details of one’s case. The Attorney and legal staff will evaluate the case and help determine whether there is negligence on the part of the other party involved; the extent, severity, and cost of injuries sustained based on medical reports or records; and consider legal options in seeking compensation for the injuries and damages incurred from the subject accident

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A party to an accident should ask their lawyer any questions about their case both initially and throughout its progression.

If one has suffered injury or illness related to their personal injury claim, they should keep all medical appointments and follow-ups. If an injured party cancels or misses appointments, the responsible party’s adjuster or lawyer can use it against them, claiming the injuries are not as severe as claimed or one is not doing all they able to properly recover. One should tell their physician about any symptoms and follow all medical advice related to their personal injury claim.

As far as things not to do, they include but are not limited to limiting discussions regarding their case to their own Lawyer, who is their advocate and guide. Discussions with insurance adjusters, defense attorneys, and other outside parties may compromise the personal injury case.

 

Avoid posting online information regarding the subject case on social media, particularly when the case is still pending, since any information posted to social media such as Instagram, Facebook, Twitter, and elsewhere can be used out of context by the liable party’s defense counsel and insurance adjusters to minimize the legal claim or even damage the case.

 

Following an accident, one will customarily be questioned or interviewed by an insurance representative or investigator regarding the incident. In many cases, those interviews, statements, or conversations will be recorded, making it important that the injured party only provide the basics, i.e., name, address, date and time of accident and injury and share the rest of the details with their attorney.

If an individual is an accident victim who was injured in Florida, or has questions on their personal injury case, please contact one of the experienced attorneys at the law firm of CASERTA & SPIRITI.

PERSONAL INJURY SETTLEMENTS & SUBROGATION RIGHTS IN FLORIDA

In a settlement, the injured person agrees to a payment amount from the insurance company or other driver or at fault party, and in exchange gives up the right to pursue any further legal action in connection with the accident or incident.

The amount one recovers reflects the full settlement sum minus attorney fees, court costs, liens, and other expenses. Receiving the settlement check usually marks the end of the personal injury case.

In most cases, injured parties have incurred medical bills which may have been paid by insurance, Medicare, Medicaid, Worker’s Compensation or may remain unpaid. What concerns most clients is not the total recovery or settlement amount but the net proceeds they will receive after bills, liens, expenses, and fees are paid. Attorneys should negotiate with not only the at fault party or their liability insurance but also lienholders as well as medical providers (physicians, clinics, MRI facilities, hospitals, etc.) who provided care for the subject case.

Most medical treatment provided and paid by an insurance will have a right of subrogation or reimbursement when the case settles, except for Personal Injury Protection (PIP Insurance) in a motor vehicle accident. The foregoing includes traditional health insurance carriers, Worker’s Compensation and others like Medicare, Medicaid, or the VA. Temporary disability insurance as well as Med-Pay auto insurance coverage may also have a right of reimbursement.

The reasons a case progresses slowly can be based on several general points. Acase may be delayed by legal or factual issues. The case may involve significant damages and substantial compensation. The client/patient has not reached maximum medical improvement or has not completed treatment from the injuries sustained in the accident 

It can take anywhere from a few months to years for an accident case to settle. There may be much for each side to investigate, and if an innocent party suffered extensive injuries and property damage, this scenario could also explain why the settlement process is lengthy. Further, negotiating liens and medicals bills can sometimes take the same or longer time than the underlying case, particularly when the policy limits are low, and damages are large.

The reimbursement right of each entity can differ significantly considering how lien rights are calculated and/or protected by state or Federal law or statute and by the circumstances of each individual case. For example, Federal law provides protections to certain insurance companies governed by ERISA law, which provides them the right to insist on their full lien recovery from the settlement. Certain public hospitals have greater protections under state law as well.

A Settlement Closing Statement itemizing the Fees, expenses & liens should be given to the client prior to the signing of a Release of Claims so that they are fully informed as to what the final total amount recovered would be as well as their net recovery.This document is prepared by the client’s personal injury attorney and must be reviewed and approved by the client before any money can be disbursed. The closing statement will set forth the funds that will be going to the client’s personal injury attorney for his or her fees, the costs involved in the litigation or case, the money that is being paid to providers, and the amount of money that will be disbursed to the client. Often this document is signed as well as the release when the settlement funds are received or prior thereto.

Once the Release of Claims and Settlement Closing Statement are signed and the insurance draft or check is received and then deposited in the law firm’s Trust Account, the case against the responsible party is concluded, if pre-suit or a dismissal is filed with the Court in the lawsuit unless the case went to verdict and/or a judgment was obtained. Thereafter, once the settlement check clears the bank, all liens must be resolved and paid as well as the attorney’s fees and expenses, and then, the net proceeds are paid to the client. At that point, the subject case should be concluded.

If you have been injured in an accident or have any additional QUESTIONS regarding the foregoing matters, contact or call the Attorneys at CASERTA & SPIRITI.