An Estate Plan should reflect your circumstances in life. Consequently, it may need to be revised from time to time. Estate Planning is the process of predicting and organizing, during a person’s life, for the management and disposal of that person’s estate during their lifetime, in the event of incapacity and after death. As for the latter aspect, it is also the process of creating or establishing a legally binding plan for what will happen to your estate, i.e., the payment of taxes and expenses as well as distributing assets such as real property, money, personal belongings, etc., after your death. An Estate Plan is customized to everyone’s particular or individual needs, circumstances, or situations. Planning can be done using wills, trusts, insurance policies and other instruments. It will change alongside changed circumstances or after significant life events.

You may need to change or update your current or prior Estate Plan after one or more of the following significant life events.

After getting married or remarried and you have someone new in your life, you will want to include or at least consider them in your Estate Plan. If you have a new spouse or a long-term partner who you want to be included in your Estate Plan, you will need to add them yourself. Make sure to do this modification sooner rather than later.

After divorcing, it may seem obvious that you would no longer want all or any of your assets to be distributed to your ex-spouse. Certain matters may be reworked by law or statute, but if you want your ex-spouse properly removed from your Estate Plan, you should actually do it and revise your plan accordingly to avoid unintentional outcomes or surviving family members having to deal with uncomfortable consequences later.

After having a child through birth, adoption, or marriage, adding a new child to your family is always a significant event. After you have added a new child, make sure to add them to your Estate Plan as well. This is especially important for blended families when adding stepchildren, if applicable.

After relocating to another state or country, one must consider that Estate Planning rules may vary from state to state and certainly in foreign countries. If you have recently moved to or from Florida, you want to work with an Estate Planning attorney experienced in that state or country to update your prior Estate Planning to be valid in your new state or country. 

After a substantial financial change, whether you win the lottery or file bankruptcy or any other significant change, it is important to change your Estate Plan after the size of your estate has been substantially altered. If you have recently had a positive financial change, then more Estate Planning opportunities may be available to you. If your finances have taken a dive, make sure to change your Estate Plan to protect your future.

If you need assistance in Florida when redoing, revising, orupdating your Estate Plan, please contact one of the attorneys of CASERTA & SPIRITI at your earliest convenience. We have many years of experience with Florida Estate Planning and can assist you in making the appropriate changes which are best suited for your current circumstances.

As far as Estate Planning and the Probate context, if you have been named to manage money or property for someone else, as an Agent under some type of Power of Attorney or as a Personal Representative or Executor under a Will or as a Trustee of a Trust, you are a fiduciary. The law requires you to manage the money and property of your principal, deceased testator, or trustor for their or the beneficiaries’ benefit, not yours.  Specifically, a fiduciary duty is a duty to act in the interest of another individual with respect to certain transactions, even above one’s own interest. A fiduciary is obligated to act in good faith and to act with care and loyalty toward those to whom they owe fiduciary duties. Fiduciaries are those who volunteer to perform certain duties or tasks for another.  It is voluntary since no one can be forced to serve others or be a fiduciary.  Even if named, listed, or nominated under a Will, power of attorney, etc., one does NOT have to serve.  If you don’t want to serve as such, then you can decline.  Fiduciaries are entitled to reasonable compensation and reimbursement of costs expended unless the document states otherwise.

A breach of fiduciary duty occurs when an agent, etc., fails to act responsibly in the best interests of a principal or beneficiary.

Usually, a breach of a fiduciary duty is classified as an intentional tort. As such, only civil claims can be brought under this cause of action. Depending on the grievances or violations committed, such a fiduciary may also be subject to criminal charges because of their breach.

It does not matter if you are managing a significant sum of money or a small amount.  It does not matter if you are a family member or not.  The role of a fiduciary carries legal responsibilities.  When you act as a fiduciary, there are at least four basic duties that you must keep in mind:

            1. Act only in your principal’s or beneficiary’s best interests;

            2. Manage money, assets, and property carefully;

            3. Keep the subject money, assets and property separate from yours; and

            4. Keep good records.

However, even if there is a loss, if the fiduciary acted prudently, he or she may not have breached their duty.

As a fiduciary, you must be trustworthy, honest, and act in good faith. If you do not meet these standards, you could be removed as a fiduciary, sued, or must repay money. It is even possible that law enforcement could investigate you, and you might face criminal sanctions.

COSEQUENTLY, if you are to become a fiduciary as stated above or are in fact one, it is paramount to realize and acknowledge that it’s not your money, property, or assets, and you must act in the best interests of others!  If you have any questions regarding a fiduciary’s duties, please call the law office of CASERTA & SPIRITI to discuss your situation and concerns about ensuring that the fiduciary understands and has the tools to fulfill or comply with the obligations as such.

Accidents that occur either while residing, traveling or vacationing in Florida can lead to serious injuries. In addition to auto crashes, bicycle or motorcycle or scooter accidents and boating incidents, tourists’ and/or residents’ injuries can result from negligence arising from premises related as well as other causes:

• Swimming pool accidents.
• Amusement Park accidents.
• Hotel/motel/Airbnb injuries.
• Parasailing/parakiting/bungee jumping/hang gliding/skydiving injuries.
• Festival and concert injuries.
• Trade show and convention injuries.
• Sexual assaults and other violent or criminal attacks as well as Negligent Security.

There are a few things that can and should be done, if able, immediately after an incident to preserve evidence and improve the possibility of recovering full financial compensation for losses sustained. These include, but are not limited to:

• Seeking immediate medical attention(i.e., ambulance/rescue, hospital/urgent care, doctor).
• Reporting the incident to local police and/or premises owner/operator/manager.
• Documenting the scene with photos/videos and/or obtaining surveillance videos.
• Collecting/gathering witness information (names, phone or cell numbers and addresses of people who saw the incident).
• Contacting an Attorney and seeking legal representation.

Before visiting or traveling through Florida, 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!!

Divorce has a strong impact on an estate plan in Florida. Under Fla. Statute Section 732.507(2), a provision of a Last Will and Testament affecting a spouse will become void upon divorce. Section 736.1105, which is part of the Florida Trust Code, DOES THE SAME FOR TRUST PROVISONS.  Consequently, for example, a man listed his spouse as the sole beneficiary of a valid Last Will and Testament. Upon divorce and the husband’s subsequent death, the surviving ex-spouse will no longer qualify as a beneficiary under his Last Will and Testament. In fact, under these circumstances, a probate court would treat the distribution of the ex-husband’s assets as though they should pass if the ex-spouse had predeceased. Basically, a divorce generally has the effect of not allowing an ex-spouse to inherit from his or her ex. However, it is always strongly recommended that everyone update their estate plan after significant life events such as a divorce. Therefore, if an individual has gone through a divorce, it would be beneficial as well as recommended to meet with an estate planning attorney to ensure his or her assets pass to whomever they wish upon their death.

As for other assets –Section 732.703, entitled “Effect of divorce, dissolution, or invalidity of marriage on disposition of certain assets at death,” provides that former spouse’s interest in the following types of accounts will be nullified on divorce automatically:

• life insurance
• qualified annuity, or other similar tax-deferred contract held within an employee benefit plan
• employee benefit plan.
• individual retirement account described in s. 408 or s. 408A of the Internal Revenue Code of 1986
• payable-on-death account.
• security or other account registered in a transfer-on-death form.
• life insurance policy, annuity, or other similar contract that is not held within an employee benefit plan or a tax-qualified retirement account.

The foregoing rules do not apply if the divorce decree/final judgment in dissolution of marriage or marital settlement agreement provides otherwise.  In addition, if the account is governed by ERISA (Employee Retirement Income Security Act), which is a Federal employee benefit statute, Florida law does not apply.  Florida law has attempted to make the effect of divorce on an estate plan what the majority of ex-spouses would want to have happen, i.e., to cancel the right to inherit of the former spouse.

Please call an Attorney at CASERTA & SPIRITI to discuss your situation, concerns and needs.

Rental Reimbursement coverage is relatively inexpensive and convenient when you need it. Quite often, after an accident caused by another driver, there may be a delay of days or sometimes weeks before their insurance company can be ascertained, and then, that carrier must be given an opportunity to investigate the incident to determine liability and whether they accept responsibility for the crash.  Frequently, the other driver fails to report the crash, or said driver does not have an insurance card at the scene of the accident or are driving someone else’s motor vehicle and does not know the owner’s insurance company. On various occasions, the responsible driver has no insurance, or it was cancelled prior to the accident. These and other situations may delay having the driver’s insurance company provide you, the innocent party, a rental car, or not provide one at all.

In an accident, if you do not exchange sufficient information with the other driver or vehicle, awaiting a police report for said information may take weeks or even a month.

Further, if you have an accident with a driver of a rental vehicle, the Rental company must investigate first if the driver had separate coverage or purchased coverage from the Rental company and must investigate the accident to determine liability as well.  All this takes time!

Having rental coverage allows you to get a car without paying out of pocket and it avoids a major annoyance as well as difficulty for you. The coverage has a minimal cost, probably less than $15-$20 every six months and is definitely worth the expense.

For any additional QUESTIONS regarding the various automobile insurance coverages, contact your insurance agent or call an Attorney at CASERTA & SPIRITI before an accident occurs!!

Florida law gives competent adults the right to make decisions regarding their own healthcare. They can choose which treatments they want and even refuse medical care completely if they so desire. However, when they are unable to make these decisions on their own due to incapacity, an advanced directive called a Living Will can ensure that their future healthcare wishes are followed.

What is a Living Will?

Unlike a Last Will & Testament, which directs the distribution of assets in an estate or legal transfer of ownership of the same after death, a Living Will protects an individual (and their loved ones) during their lifetime.

The unfortunate reality is that critical healthcare decisions are often made at a time when a patient is mentally incapacitated, unconscious, or otherwise unable to direct their own medical providers, and failure to provide advance instructions can create difficulties for the individual and/or their loved ones.

With a Living Will, one is able to:

• Specify their wishes or desires about any life-prolonging treatment.
• Appoint a healthcare surrogate to make medical decisions for them.
• Name an alternate healthcare surrogate if the original choice is unwilling or unable to act when the time comes.

By taking time to plan now, individuals can spare their loved ones any unnecessary stress, avoid decisions that are contrary to their wishes, and make sure that their care is overseen by someone they choose.

How Do You Obtain a Living Will?

In Florida, Living Wills must be signed in the presence of two witnesses, at least one of whom is not the signer’s or maker’s spouse or a blood relative. If the maker is physically unable to sign the Living Will, one of the witnesses can sign in the presence of and at the direction of the maker. Even though an individual is not legally required to prepare the documents with an attorney’s assistance, there are several advantages to doing so, namely the fact that an experienced estate planning attorney will ensure that all possible scenarios are covered and any critical questions are answered. Once a Living Will has been drawn up and executed, it should be accessible to those who may need it in the future, such as the primary and/or alternate healthcare surrogates, a primary care physician, and possibly the attorney, who can ensure that the right parties get it if necessary. One should also keep a copy in a safe place and carry a card indicating that he or she has a living will and where it can be found.