Disputes Over a Loved One’s Remains in Florida

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

THANKSGIVING DAY-A LITTLE HISTORY & A LITTLE LAW

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Thanksgiving began as an autumn harvest feast and has been celebrated for hundreds of years. The holiday gives the residents of the United States an opportunity to reunite with family and friends, enjoy a traditional meal, and express gratitude, although in recent years, it is also associated with parades, football, Black Friday shopping, and initiates the holiday season.

If one is curious about the time-honored Thanksgiving traditions or wants to navigate the holiday legally, the following are some of interesting history, laws and legislation surrounding the Thanksgiving holiday in the United States.

On October 6, 1941, the House passed a joint resolution declaring the last Thursday in November to be the legal Thanksgiving Day. The Senate, however, amended the resolution establishing the holiday as the fourth Thursday, which would take into account those years when November has five Thursdays.

Throughout U.S. history, Thanksgiving has been held on various days.

In October1621, the Plymouth colonists and the Wampanoag tribe shared an autumn harvest feast that is acknowledged today as one of the first Thanksgiving celebrations in the colonies. For more than two centuries, days of thanksgiving were celebrated by individual colonies and states. Colonists in New England and Canada regularly observed “thanksgivings,” days of prayer for such blessings as safe journeys, military victories, or abundant harvests. Americans model their holiday on the 1621 harvest feast shared between English colonists and the Wampanoag. This feast lasted three days and was attended by 90 Wampanoag Native American people and 53 Pilgrims (survivors of the Mayflower). On December 11, 1621, Governor Edward Winslow of the Plymouth Colony wrote a letter in hopes of attracting more colonists. In it, he described a three-day feast shared by the Plymouth settlers and the local Wampanoag people.

There are only two surviving documents that reference the original Thanksgiving harvest meal. Curiously, turkey was NOT on the menu for the first Thanksgiving! They describe a feast of freshly killed deer, assorted wildfowl, a bounty of cod and bass, and flint, a native variety of corn harvested by the Native Americans, which was eaten as corn bread and porridge.

Alexander Hamilton once proclaimed: “No citizen of the U.S. shall refrain from turkey on Thanksgiving Day.” Hamilton’s proclamation became reality, and according to the National Turkey Federation, about 45 million to 46 million turkeys are consumed each Thanksgiving, since it is a bird indigenous and native to North America and thereby set the American table apart, for example, from the British table.

Jefferson signed a proclamation for a day of “Thanksgiving and Prayer,” to be held on December 9, 1779. At that time, the Virginia General Assembly was responsible for formulating state government policies, not the governor. This proclamation did not establish a permanent annual observance.

In 1789, President George Washington issued a proclamation designating November 26 of that year as a national day of thanksgiving to recognize the role of providence in creating the new United States and the new federal Constitution.

Thomas Jefferson refused to endorse the tradition when he declined to make a proclamation in 1801. For Jefferson, supporting the holiday meant supporting state-sponsored religion since Thanksgiving is rooted in Puritan religious traditions.

Later, President James Madison proclaimed two Thanksgivings in 1815, one in the spring and one in the fall.

President Abraham Lincoln started the modern practice of a national Thanksgiving holiday. Amidst a raging Civil War, President Abraham Lincoln issued a “Proclamation of Thanksgiving” on October 3, 1863, 74 years to the day after President George Washington issued his first presidential Thanksgiving proclamation. The foregoing began in 1846, by the editor of Godey’s Lady’s Book, Ms. Sarah Josepha Buell Hale who launched a letter-writing campaign to support her cause for a designated day for the Thanksgiving holiday. Finally on September 28, 1863, she wrote directly to President Lincoln, asking him to use his powers to create the holiday. Her 36-year quest was finally fulfilled. Hale was also a New England-born poet, editor, activist, and philanthropist best known for authoring the poem “Mary’s Lamb,” or “Mary Had a Little Lamb,” as it is known today.

On June 28, 1870, President Ulysses S. Grant signed into law the Holidays Act that made Thanksgiving a yearly appointed federal holiday in Washington D.C. On January 6, 1885, an act by Congress made Thanksgiving, and other federal holidays, a paid holiday for all federal workers throughout the United States.

In both 1939 and 1940, President Franklin D. Roosevelt proclaimed Thanksgiving on the third Thursday in November, to lengthen the shopping season for Depression-era retailers to help businesses still suffering from the lingering effects of the Great Depression.

Roosevelt’s proclamation proved controversial, with some states continuing to celebrate on the fourth Thursday of the month. In 1941, Congress put an end to “Franksgiving” by passing a joint resolution that officially established the date of Thanksgiving.

At the end of 1941, Roosevelt signed a bill officially making Thanksgiving Day the fourth Thursday of November, regardless of whether it is the last or the second-to-last Thursday of the month.

It is now a well-established tradition that the President is gifted and later pardons a turkey every Thanksgiving. There are conflicting stories about the origins of the turkey pardon because the tradition of presenting the President with a turkey dates back many decades.

In 1865, President Abraham Lincoln spared a turkey that his son took a liking to, but it was not until 100 years later that President John F. Kennedy spared the first Thanksgiving turkey. The first president to issue a formal pardon to the turkey was George H.W. Bush during a ceremony in the White House Rose Garden in 1989.

To detail the turkey pardon history-while the presidential turkey pardon has become a yearly tradition, it is a relatively new tradition. The first turkey spared by a president has been traced to Abraham Lincoln. According to an 1865 dispatch by White House reporter Noah Brooks, Lincoln’s son Tad asked his father to spare the turkey’s life. Tad had adopted the turkey as a pet. Although Lincoln spared this turkey’s life, the turkey was planned for Christmas dinner not Thanksgiving dinner.

Reports of turkeys sent to the White House as gifts at Thanksgiving can be traced back to the 1870’s. Horace Vose, a Rhode Island poultry dealer, began sending turkeys to the White House in the 1870’s until 1913. Vose’s death in 1914 brought about the opportunity for others to send turkeys to the president for Thanksgiving. Official presentations of live turkeys to the president began in 1947 with the National Turkey Federation presenting a live turkey to President Truman. Because of this media notoriety, President Truman is often credited with the first turkey pardon, but he did not pardon the turkey.

In 1963, President Kennedy spared a turkey’s life at the presentation event when he stated, “Let’s keep him going“.  In 1973, during the Nixon presidency, the turkey was sent to Oxen Hill Children’s Farm. First Lady Rosalynn Carter (wife of President Jimmy Carter) sent the 1978 turkey to Evans Farm Inn to live in a mini zoo. It became the norm for the turkeys to be sent to farms during the Reagan administration.

The pardoning became formalized and official in 1989, when President George H. W. Bush pardoned that year’s Thanksgiving turkey. “He’s granted a presidential pardon as of right now — and allow him to live out his days on a children’s farm not far from here.” Since 1989, each year, the U.S. President officially pardons a turkey from the Thanksgiving table.

Currently, Thanksgiving has become somewhat controversial. The holiday may be about being thankful in principle, but it is considered by many as an acknowledgment of the role of colonialism in North America and the displacement and oppression of the Native Americans. Indigenous Peoples in America recognize Thanksgiving as a day of mourning. It is a time to remember ancestral history as well as a day to acknowledge and protest the alleged racism and oppression which they claim they continue to experience to date.

As for the two-day holiday-the Friday after Thanksgiving is a state holiday in California, Delaware, Florida, Illinois, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Nebraska, Nevada, New Hampshire, North Carolina, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, and West Virginia.

The foregoing is just a brief and general legal and historical overview of Thanksgiving.                                                                                                                                  

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI & in Miami Lakes, Florida.

MATERIAL MISREPRESENTATION-LYING OR FOREGETTING IMPORTANT INFORMATION WHEN APPLYING FOR INSURANCE IS A BAD IDEA

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A misrepresentation would be considered fraud if it is intentional and material. Fraud would be grounds for voiding the contract. If an insurance company receives an application with some information missing or inaccurate for whatever reason and issues the policy anyway, the insurer can later VOID OR RESCIND the said policy, contract and/or agreement.

Any person who willfully makes a false statement or misrepresentation of a material fact for the purpose of obtaining or denying any benefit or payment or assisting another to obtain or deny any benefit or payment can be charged with a felony.

A material misrepresentation may occur when an application contains false information, or it may include the withholding of information. With a liability or property and casualty policy, intent to deceive is not always necessary to void or deny a claim.

Representations are the statements made by the prospective insured on the insurance application. Many of these representations are responses to questions to determine whether the applicant is insurable and how much should be charged.

Under the terms of a homeowners’ insurance policy and applicable Florida law, any misrepresentation, even an innocent one, made by the prospective insured on the policy application may serve as a basis for voiding the policy. The subject insurer or insurance carrier need not prove that the insured made the misrepresentation with an intent to deceive.

Florida Statute § 627.409(1), provides, in pertinent part:

“[A] misrepresentation, omission, concealment of fact, or incorrect statement [made by or on behalf of an insured in an application for an insurance policy] may prevent recovery under the contract to a policy only if any of the following apply:

(a) The misrepresentation, omission, concealment, or statement is fraudulent or is material either to the acceptance of the risk or to the hazard assumed by insurer.

(b) If the true facts had been known to the insurer pursuant to a policy requirement or other requirement, the insurer in good faith would not have issued the policy or contract, would not have issued it at the same premium rate, would not have issued a policy or contract in as large an amount, or would not have provided coverage with respect to the hazard resulting in the loss.”

Under Florida law, the general rule is that a misrepresentation or omission in a policy application need not be intentional before recovery may be denied pursuant to Section 627.409, above. 

The issue with many cases is a material misrepresentation may be found where the applicant did not name all of their household members when taking out an insurance policy. Consequently, when a Florida resident does that, it may save them money on the front end, but it can hurt them on the back end when a claim is made, especially in the event that they are involved in an accident or an incident occurs and the insurance company does their investigation and they find out that there are household members living on the applicable property who live with the applicant/insured and said applicant or prospective insured did not name them probably for the purpose of saving money on the premium. Accordingly, the insured is spending money and ultimately getting nothing in return at a time of need.

It is always recommended an insurance applicant be completely honest, thorough, accurate and forthright with the insurance companies, because when an accident or allegedly covered incident arises, insurance coverage may not be present or available. The amount of money that the insurance company would potentially pay out on one’s claim far exceeds whatever a person would be saving on the front end concerning the premium.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

POWERS OF ATTORNEY & THE GOVERNMENT-Part 2 CHILD PASSPORTS

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As previously reported, Powers of Attorney (POA) are prepared under state law and are not necessarily binding on federal agencies. These agencies have their own forms, rules, and regulations.

Again, it is noted that the Social Security Administration does not honor durable powers of attorney.

When it comes to managing a loved one’s veterans’ benefits, there is yet another process that caregivers must go through regarding the U.S. Department of Veterans Affairs (VA).

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 as well as having a standing authorization on file with Medicare is a better practice.

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

Family caregivers as well as parents should have 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 and or act on another’s behalf.

As for obtaining or renewing a passport for a minor child when the other parent is unavailable certain government forms are needed as follows.

Passports for minors aged 15 or younger require the consent of both parents unless one parent has sole legal custody. If a parent has sole legal custody, then the other parent’s consent would not be necessary.

Minors ages 16 and 17 can apply without the presence of their parents. Parental consent may or may not be requested. Passports for applicants sixteen (16) and older are valid for ten (10) years.

The U.S. Department of State Passport Services requires both parents to appear to get a passport for a minor child aged fifteen (15) or less. Passports for children under age sixteen (16) are only valid for five (5) years.

In cases where only one parent appears, the applying parent must submit either a notarized consent from the non-applying parent or proof of sole legal custody.

If one parent/guardian cannot go with the child to apply for the passport, they can provide permission by completing Form DS-3053 “Statement of Consent.” The completed form must be submitted with the child’s passport application.

Special circumstances when one or both parents cannot be present, include Form DS-3053, whichmay be used for many instances when either or both parents can be with their child for their passport application, but others fall under Form DS-5525, Statement of Exigent/Special Family Circumstances. If one parent is in prison, subject to a restraining order again the other parent or child, or subject to custody order which leaves them unable to sign DS-3053, then Form DS-5525 may be used.

One parent may also have sole custody of their child; a court order to this affect must be provided with DS-3053. Basically, if any legal guardian of the child is unable to appear in person, then there must be legal documents included with the passport application form.

There are custody situations when it is not possible for both parents to appear in person during the submission of the passport application. Depending upon the basis, a parent may be required to provide additional documents that prove they have the authority to apply without the consent of the other parent.

  • If a parent has sole legal custody, they can submit certified copies of the following types of documents:
  • Full court order that grants a parent sole legal custody or that specifically states they have legal permission to apply for their child’s passport;
  • The child’s birth certificate or adoption decree on which there is only parent listed or named;
  • Certified copy of an adoption decree listing one person as the only parent;
  • A court order that the other parent is incompetent; and
  • A death certificate of the other parent.
  • If both parents have legal custody but one cannot appear, that parent can give permission for the other parent to apply by completing Form DS-3053, Statement of Consent:
  • Sign the form in front of a notary in the U.S. or at a U.S. consulate or embassy, and
  • Submit a copy of the front and back of the ID provided to the notary.
  • If one parent cannot locate the other parent you must submit form DS-5525, Statement of Exigent/Special Family Circumstances; and
  • Make Sure One’s Divorce Decree or Final Judgment of Dissolution of Marriage, etc., is Clear About Custody and Any Travel.

A parent may need a court to intervene if there is no prior court order or written parental contract that addresses international travel. A parent may want a court to establish specific travel protocols, such as authority to obtain a passport for a child, or to impose travel restrictions on a parent who is threatening to remove a child outside of the United States.

Depending on the circumstances, a court order may include:

  • an award of sole legal custody of a child;
  • protocols to obtain or renew a passport;
  • requirement that the non-traveling parent sign a notarized statement and other forms permitting the child to travel;
  • prohibition on a parent traveling abroad with the child without prior court approval;
  • supervised visitation with the child;
  • that a foreign embassy or consulate not issue any new passports to a foreign national parent and the child, if applicable;
  • requirement that the passports of a foreign national parent and the child be held by a third party or in the court registry;
  • requirement that a foreign national parent notify his/her country’s embassy consulate of the order prohibiting a new or replacement passport for the child.

If a parent refuses to follow the terms of a parenting plan or custody agreement, such as provisions related to traveling with children, the other parent can sue to enforce the contract. Similarly, if a parent fails to comply with an order, then the noncompliant parent can be found in contempt of court and subject to civil and criminal penalties. Under some circumstances a parent may be forced to seek an emergency order if his or her travel is imminent. It is always better if parents can cooperate.

The website Tavel.state.gov explains what is needed when a parent is unavailable or in the military, and there is a specific form the said parent needs to complete to get the passport for their minor child. 

Again, all children under age 16 must apply for a passport in person with two parents or guardians using Form DS-11. A child’s passport cannot be renewed using Form DS-82. Passports for children under age 16 are only valid for 5 years.

One must submit documentation that lists the parent(s) or legal guardian(s) of the child applying for a passport.

The following may be used to show parental relationship:

Some documents, like a U.S. birth certificate, show both U.S. citizenship and parental relationship. These documents must be originals or certified copies (not photocopies).

Both parents/guardians must authorize the issuance of the child’s passport. The best way to do this is for both parents/guardians to go with the child in person to apply for the passport.

When both parents/guardians who are civilians cannot appear in person, the procedure is described above.

However, if the non-applying parent is deployed by the military, he or she should be able to provide a notarized Form DS-3053 in most cases. In the rare case that the non-applying parent cannot be contacted, the applying parent must provide either military orders with a Form DS-5525 showing the non-applying parent cannot be contacted due to the fact that they are on a special assignment for more than 30 days outside of their duty station or a signed statement from the non-applying parent’s commanding officer that the military parent cannot be reached. 

A third party may apply for the child’s passport with a Form DS 3053 or a notarized statement from both parents/guardians giving that third party permission to apply for the child. The statement must include a photocopy of the parents/guardians’ identification. 

When the statement is from only one parent/guardian, the third party must present evidence of sole custody of the consenting parent/guardian giving that third party permission to apply for the child.

A written authorization from the parent that cannot appear in person must be less than three (3) months old.

Further, no child under age 16 is eligible to mail in a passport application. Additionally, a parent cannot apply online for the subject child’s passport.

In certain countries, a DS-3053 must be notarized at a U.S. embassy or consulate and cannot be notarized by a local notary public. Currently, these countries include:

AfghanistanIndonesiaPakistan
AlgeriaIranPanama
AngolaIraqPhilippines
Bangladesh JamaicaSaudi Arabia
BulgariaKenyaSenegal
CambodiaKuwaitSierra Leone
CameroonLaosSomalia
Central African RepublicLebanonSudan
Cote d’IvoireLiberiaSyria
Dominican RepublicLibyaTajikistan
EgyptMaliTrinidad and Tobago
Equatorial GuineaMauritaniaUganda
EthiopiaMauritiusUkraine
GabonMoldovaUnited Arab Emirates
GuatemalaNepalVenezuela
GuineaNicaraguaVietnam
HaitiNigeriaYemen
HondurasNorth Korea

In addition, parents may enroll their U.S. citizen children under the age of eighteen (18) in the Children’s Passport Issuance Alert Program (CPIAP), one of the Department of State’s most important tools for preventing international parental child abduction.  If a passport application is submitted for a child who is enrolled in CPIAP, the U.S. government tries to alert the parent or parents to verify whether they approve the passport issuance.

Consequently, parents must be prepared with the proper legal documents when applying for or renewing a passport for their minor child in order to avoid problems or delay with the process.

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

FLORIDA PROBATE-AN OVERVIEW

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PROBATE is the legal transfer of ownership of assets from a deceased party to the living, whether heirs or beneficiaries, or creditors, etc.

There are three (3) types of probate administration under Florida law: formal administration and summary administration as well as a non-court supervised administration proceeding called “Disposition of Personal Property Without Administration.”

A formal probate administration usually takes 6-12 months under most circumstances to process. This process includes appointing a personal representative (i.e., the “executor” known in other states), a 90-day creditor’s period that must run, payment of creditor’s claims and more.

In Florida, a person can avoid probate by using joint ownership with rights of survivorship, beneficiary accounts, lady bird deeds, and living trusts. Two people may own real estate or personal property as joint tenants with rights of survivorship (or JTWROS).

Formal administration is required for any estate with non-exempt assets valued at over $75,000 when a decedent or deceased party has been dead for less than two (2) years. A formal administration is also required any time that a personal representative is needed to settle the affairs or act on behalf of the decedent.

Probate assets include, but are not limited to, the following: a bank account or investment account in the sole name of a decedent or deceased party. A life insurance policy, annuity contract, or individual retirement account payable to the decedent’s estate.

If an Estate is valued above the Probate threshold, and the assets (everything the deceased party owned) were held in the deceased’s sole name, then Probate will be needed, regardless of whether they left a valid Will.

State laws may vary slightly, but the typical scheme of most states, including Florida (F.S. §732.101 to §732.111), is that intestate property (without a valid Last Will) passes in the following order (sometimes known as next of kin): spouse, lineal descendants (children or grandchildren), parents, siblings (and children of deceased siblings).

An inheritance tax, also called an estate tax, is a tax based on the wealth of a deceased person. Florida does not have an inheritance tax, consequently, the Florida’s inheritance tax rate is zero. A beneficiary of a deceased person in Florida does not owe any state taxes on inherited property.

As far as the need for a lawyer for Florida Probate, the answer should be-Yes. In nearly all cases, a person will need a Florida Probate Lawyer. Except for “disposition without administration” (very small estates) and those estates in which the personal representative) is the sole beneficiary, Florida law requires the assistance of an attorney.

To begin or initiate the probate process, a petition for probate must be filed with the clerk of the Florida circuit court in the county where the deceased testator (creator of the Last Will & Testament) resided and the Last Will must be admitted to probate.

The personal representative of the estate as designated in the Last Will is then appointed by the court. If a Last Will & Testament is not present or a personal representative of the estate is not named, a person may petition the court to be assigned as the personal representative of the estate. If the court appoints someone as the personal representative of the estate, said individual will be issued Letters of Administration by the court. These letters of administration give said person the authority to settle or act on behalf of the estate.

As the personal representative of the estate, one must then provide notice of the probate to all interested parties. This includes notifying beneficiaries and heirs of probate. The personal representative must also publish a Notice to Creditors which notifies creditors of the probate of the estate. If the deceased party died age 55 or older, a Notice to Creditors must also be sent to Florida Medicaid/AHCA (Agency for Health Care Administration), regardless of whether it is known if the decedent received any such benefits during their lifetime. This Notice to Creditors must specify the date by which creditors must give their claims.

The next step for the personal representative is to ensure that the final expenses of the deceased are paid for out of the estate, that any required taxes are paid, and that any outstanding debts are paid from the estate. There is a specific order in which outstanding debts and creditors must be paid with some claims taking precedence over others so that if there is not enough in the estate to cover all debts, those that take priority will be paid first.

Once debts, taxes, and final expenses have been taken paid or resolved, the personal representative of the estate must petition the court for permission to transfer the remaining assets of the estate to the beneficiaries as indicated in the Last Will. If there was no Will present, the assets must be distributed as dictated by Florida state law. The estate is then concluded.

The best way to make sure that the administration of an estate is done correctly is to consult a probate attorney. With a probate attorney assisting the personal representative, one can ensure that they do not miss important deadlines or skip necessary steps in the probate process that could hold up the probate process or cause complications.

Some of the most common mistakes that are made and steps that are forgotten when a probate attorney is not hired to assist with probate include:

  • Waiting too long to start the probate process.
  • Not maintaining an open line of communication with heirs and beneficiaries of an estate.
  • Not keeping an accurate inventory of estate assets.
  • Failing to educate oneself on the probate process so that one can know what to expect from the process;
  • Procrastinating on any part of the probate process;
  • Failing to file a 706 Federal Estate Tax Return when applicable;
  • Failure to secure assets of the estate;
  • Failing to identify property that is exempt from probate;
  • Failing to make the proper notifications to creditors;
  • Failure to keep proper accounting of expenses incurred during the probate process;
  • Failing to get the “approval or authorization” from the court to distribute assets among heirs and beneficiaries of an estate;
  • Waiting too long to market real estate;
  • Failing to conclude the estate;
  • Paying creditors and claims against the estate improperly or in the wrong order;
  • Filing a Last Will that is not the most recent version of the Last Will; and
  • Failing to claim or properly utilize the available family allowance.

The foregoing is a brief general overview of the probate process.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

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CLAIMING RETIREMENT BENEFITS AFTER DEATH

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There are valid reasons to make an adequate and accessible record of one’s retirement accounts. After death, an individual’s survivors will want to file claims for any outstanding benefits, and if said individual ever becomes incapacitated prior to death, the person in charge of their finances will have to manage those accounts for the subject individual.

To make these tasks easier for one’s loved ones or family members, a person should keep a list of basic information about their retirement accounts, pension plans, and Social Security benefits, etc. There are some essential guidelines on what may happen to retirement benefits after death.

Each of one’s retirement accounts and pension plans should specifically name a beneficiary, rather than using a Last Will & Testament to name beneficiaries for the retirement plans. Money remaining in the accounts at death, as well as any pension payments due to the deceased owner, will pass directly to the beneficiaries named or designated, without the complications, inconvenience, and expense of a Probate Administration in the court system.

For some plans, including 401(k)s and most pension plans, the law requires a person to name their spouse as beneficiary unless he or she signs a form giving up that right. For IRAs and employer profit-sharing retirement plans, one may name any beneficiary they choose. If they live in a community property state, such as California, however, one must be aware that a spouse has a legal right to half of the money that the other spouse earned during marriage. If a person is married and does not want to leave all retirement benefits to their spouse, one should seek the advice of an attorney to ensure they know the applicable laws, rules, or regulations.

If one has created a living Trust to avoid Probate, it is generally not wise to name the Trust as the beneficiary of the retirement accounts. Retirement funds are already exempt from Probate, and by naming a Trust as beneficiary, inheritors (individual heirs or beneficiaries) are likely to lose some of the benefits and flexibility they would otherwise have.

After death, a person’s family may be entitled to Social Security survivor benefits. Eligible family members will receive monthly payments, i.e., as much as the full retirement amount that would have been paid to the deceased party.

A spouse of a deceased party qualifies for benefits if he or she is:

  • at least 60 years old, or
  • at least 50 years old and disabled, or
  • any age, if he or she is caring for your child, and the child is under age 16 or is disabled and receiving Social Security benefits.

A deceased party’s unmarried children are entitled to survivor benefits if they are:

  • under the age of 18, or
  • between 18 and 19, but attending elementary or secondary school full time, or
  • age 18 or older and severely disabled, with a disability that started before age 22.

Other eligible survivors may include a deceased party’s dependent parents, divorced spouse, stepchildren, and grandchildren.

In addition to ongoing survivor benefits, a surviving spouse or minor children may also be eligible for a one-time payment of $255 upon an individual’s death. For additional information, review the Social Security website at www.ssa.gov .

It should not take long to make a record of one’s retirement plans and accounts. Taking a little time to do it now may save a person’s loved ones and/or family members a great deal of trouble later.

At minimum, one should make a list of every plan that they have, whether or not it pays benefits now, or expect benefits in the future. Remember to include:

  • employer-sponsored plans or pensions,
  • IRAs (traditional, Roth, SIMPLE, or SEP-IRAs), and
  • Keogh, profit-sharing plans, or self-employed 401(k)s for small business owners.

For each account, list the following information:

  • the name of the managing organization or financial institution,
  • the account or identification number,
  • contact information for the account manager or adviser (if any),
  • whether or not one is currently receiving benefits, and if so, how much, and
  • the location of the plan statements.

An individual should also list and describe their Social Security benefits, including those based on their earnings (or disability) that go to one’s family members as well as those they expect in the future.

It is crucial to review one’s list of accounts and benefits periodically. Update records if a person acquires or terminates a plan or changes the location where one files their plan statements.

Distinct items of a person’s retirement information may be sensitive, so an individual should want to file their list in a secure location, such a locked cabinet or fireproof safe at home or bank safe deposit box. However, it is critical to advise those persons closest to them where the information is located and how to access it. Most importantly, if one has named a Personal Representative or Executor in a Last Will & Testament or an Agent under a Durable Power of Attorney for financial matters and/or under a Healthcare/medical power of Attorney, be certain those designated individuals can locate, ascertain, or access this vital information when needed.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

Don’t Wait to Contact an Attorney After a Car Accident

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An injured victim shoud NOT wait to contact an Attorney after their auto accident.  Uncertainty may be one of the feelings a victim experiences after a car accident.

For instance, a car accident victim may be uncertain about whether they can file a claim for compensation. They may be uncertain about the severity of their injuries. They may think about contacting a lawyer, but they may be uncertain about how a lawyer can assist them. They may be uncertain about the cost of seeking such assistance.

The foregoing is some of the reasons auto accident as well as other accident victims often wait to seek legal assistance. We discuss the reasons in greater detail below and why accident victims should strongly consider contacting an experienced Personal Injury attorney as soon as possible.

Personal Injury attorneys can assist the victim in seeking full compensation for their injuries and damages. Normally, accident clients do not pay upfront fees and costs while the attorney is working on their claims.

If a person is injured in a car crash and needs to go to the hospital to get treatment, it is likely they have a valid claim. This is particularly true in Florida, which is a no-fault state. That means an accident victim can seek compensation from their own insurance policy for medical bills and some other expenses, regardless of fault for the crash.

A person may be uncertain if the other driver can be held liable for the crash. However, it is difficult to be certain without discussing the incident with an experienced attorney. One should not rely on their initial assumptions about the matter or what the at-fault driver or his or her insurance company may say.

If one needs significant compensation, their no-fault coverage may not be sufficient. Consequently, said individual may need to file a claim against the liability insurance carrier of the at-fault driver.

An injury might be much worse than one realizes. Even if the injury appears serious, a person may not realize just how costly the injury can be to treat. Damages are not just medical bills. An accident victim may be unable to work while recovering. Ultimately, said individual may never be able to return to work in the same type of job.

Many times, an injury has a psychological component. Some victims experienced post-traumatic stress disorder. If the injury creates physical limitations, these can cause emotional distress.

No matter what one may think or what insurance companies may express, they are not concerned with providing all the compensation the victim may need. If the injury turns out to be more serious than first realized, and one agrees to an early settlement with the insurance company, said individual may be left footing the bill for additional medical costs and other damages.

Experienced Personal Injury attorneys are prepared to evaluate accident claims and determine all the compensation one may be entitled to receive. Attorneys are prepared to aggressively pursue compensation and usually have the resources and experience to take the subject case to court if the insurance company denies or short-changes the claim.

Many injury victims do not know about all the services an attorney provide for them throughout the legal process. Essentially, an attorney can deal with the legal process on behalf of the accident victim. Accordingly, the lawyer can negotiate with the insurance company, investigate the crash, gather evidence, file legal documents, and take the case to court if necessary.

These services free up the accident victim to focus on medical treatment and healing. While some victims may not make a full recovery, the goal is to make the best medical recovery possible. An accident victim does not need the added burden of filing an insurance claim.

An initial consultation with a Personal Injury attorney to discuss their accident case is usually FREE. Attorneys can explain their fees in the consultation so the client will know what to expect.

Crash victims may make false assumptions about the cost of hiring an attorney. They may think hiring a lawyer for a car crash or accident claim is like hiring a lawyer for other types of matters.

However, Personal Injury attorneys work on contingency, i.e., a percentage of the recovery. What this means is that a client does not pay up front. The attorney does not get paid unless the victim or client receives compensation.

If one waits to contact a lawyer, such delay could hurt one’s chances of recovering full compensation. There are many reasons for the foregoing. An example, over time your memory of the incident can fade. A person could forget crucial details, which makes it harder to build a strong and compelling case. For a car accident in Florida, medical treatment for injuries sustained in the said accident must begin within fourteen (14) days of the subject accident or one’s own auto insurance carrier may deny PIP or other first party benefits (not paying medical bills or wage loss incurred) thereby reducing the recovery for the claim.

An individual may speak with the insurance company representative while waiting and may be tempted or even encouraged to accept a lowball settlement offer. An accident victim could say something to the insurance company that could be used against them. An innocent party may have admitted fault or downplayed their injuries.

An attorney can give a victim of an accident tips on protecting their claim. If one waits to contact a lawyer, they will not have the benefit of these tips. An unrepresented party may do things that hurts their case, such as skipping medical appointments or waiting to seek treatment.

Waiting could also make it harder on the attorney. There are deadlines for reporting, seeking medical treatment as well a Notice Requirements depending on the defendant or responsible third party and a statute of limitations for filing personal injury claims in a Florida court. That means if a lawsuit is not filed within the subject timeframe from the date of the accident, an innocent victim may be barred from doing so and from recovering rightful compensation.

An accident case may not make it to court, but it is important to be prepared for that. The possibility of a lawsuit often causes insurance companies to offer more compensation. The insurance company is only going to be concerned about a potential lawsuit if an experienced personal injury attorney is involved.

If you are injured in an accident, car or otherwise, promptly call the attorneys at CASERTA & SPIRITI for a free consultation of your potential case.

Why It’s Best to Have an Attorney Prepare an Estate Plan

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Doing a project, yourself may seem extremely rewarding in many aspects of life, but in more specialized areas such as Estate Planning, it may merit having an experienced attorney assist you.

A great deal of information exists on the internet pertaining to estate planning; however, there are significant shortfalls in attempting to create a plan without an attorney. There are several reasons one should avoid such a move and retain the services of an attorney.

Ultimately, the primary goal of an estate plan is to ensure one’s assets end up in the right hands after one passes away. Consequently, a person’s estate plan will be implemented at the time of one’s death (or at a later date that the subject individual designated in a trust). Therefore, what happens if there are mistakes?

The fact is that at such time it is too late to correct errors after one has died. One’s family and/or  loved ones will not, for the most part, be able to legally amend or correct the mistakes which could lead to one’s assets ending up in the wrong hands. For the most part, changes to an estate plan can only be made up to the point of death or incapacity, and then, after those timeframes, the estate plan becomes irrevocable. A person’s beneficiaries may also lose much of the privacy an estate plan aimed to provide them.

Another key issue here is that if assets cannot be divided or distributed as one really wished, then those loved ones or potential beneficiaries may have to litigate over what they want, or thought should have been the result. This situation can cause unnecessary rifts between loved ones who previously had no reason to put their relationships at risk.

The most recent estate planning trend is online websites, computer programs as well as traditional office supply stores that offer free or inexpensive templates or forms. These templates or forms claim to provide the consuming public with everything they require to get a legal, proper, and secure estate plan in place. Unfortunately, oftentimes, these templates and/or forms often fall short.

These templates or forms claim to be universal or nationally oriented which simply is not how estate planning works. There are too many laws, rules or regulations that differ from state to state and from circumstance to circumstance. For example, witness requirements, acknowledgements, and notarizations which are required and can differ in each state, may cause significant issues after the incapacity or death of the creator of the document or plan.

The safest and most logical way to achieve a proper estate plan is by seeking the assistance of and working with an experienced estate planning attorney. The foregoing is not a self-serving statement since attorneys offer this service but is presented to warn, or at least caution, the public in order to protect them and their surviving family members and/or loved ones from unfortunate results.

Knowing what documents and estate plan to prepare is vitally important and should be timely discussed with an experienced Estate Planning Attorney before an unfortunate event occurs.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

A Durable Power of Attorney is an Important Part of Incapacity Estate Planning, But NOT the Only Document

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A Durable Power of Attorney is an important part of incapacity Estate Planning, but NOT the only document. Every adult should have such a document in place since anyone at any age can suffer a life-altering accident that leaves them incapacitated. If this event occurs and a person does not have a durable power of attorney in place, that individual will force their family and/or loved ones to enter into an expensive and time-consuming legal process for Guardianship. After an accident, an injured or incapacitated party not only needs someone to advocate on their behalf, but also ensure they have the legal means or authorization to do so. 

Once a person understands the significance of these documents, they should have one prepared. Furthermore, it is preferred not to download a “Do It Yourself” power of attorney document. Having an attorney is the preferred means of knowing that such document is done correctly. Without an experienced attorney, one will not have the confidence and peace of mind that comes with proper estate planning. If a person has a power of attorney, and it does not grant the Agent the authority to make a particular and required decision on the principal’s behalf if the principal becomes incapacitated, that becomes a major problem and then may require a Guardianship be established unnecessarily.

It is not hyperbole to state that a durable power of attorney is one of the most essential documents in an estate plan. It authorizes a designated person (another or Agent) to make financial and medical decisions for the principal (the person who creates the said document). Further, one must note that it is effective immediately upon execution, i.e., signing it before two (2) Witnesses and a Notary. Prior to 2011, Florida residents could have a springing power of attorney. It was named that because it “sprung” into effect upon incapacity as opposed to it being signed. If a Florida resident created an estate plan prior to 2011, they will need to update it since these documents are no longer valid and/or may not be accepted. 

Even though a durable power of attorney is a significant document, it is not an all-encompassing estate planning tool. For example, an Agent can act on behalf of their living elderly parent by way of a durable power of attorney. With Powers of Attorney for financial matters as well as for medical decisions (Healthcare) such documents enable the adult child or Agent to manage the parent’s finances, pay bills, and purchase needed items using the parent’s money. If the parent becomes incapacitated, the adult child or Agent under the power of attorney can speak to the parent’s physicians and advocate on the parent’s behalf in order to receive the type of treatment in accordance with the subject parent’s wishes or dictates.

A durable power of attorney grants the Agent the ability to care for their parent, the principal. It does terminate at the parent’s death! All the power granted during life is no longer available after death. People who assume a durable power of attorney is an end-all may not have prepared a Last Will or a Trust, which leaves the previous attorney-in-fact or Agent powerless.

Each document in an estate plan serves a different purpose and function and becomes effective at different stages and are all relevant.

A substantial portion of estate planning centers on a designated someone, an Agent, or Personal Representative, to be legally authorized and/or have the ability to act on the behalf of and take care of a person, the principal or testator, if such principal or testator (one who creates a Last Will & Testament) is incapacitated or passes away. Regardless of the amount of assets one may or may not have, creating a proper estate plan will organize, assist, and enable authorized competent trustworthy family members or loved ones or the surviving family or loved ones act on an incapacitated principal’s behalf or distribute assets of the deceased party’s estate.

Knowing what documents to prepare is vitally important and should be timely discussed with an experienced Estate Planning Attorney before an unfortunate event occurs.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.

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Protecting An Inheritance Of A Child From Their Spouse

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Protecting An Inheritance Of A Child From Their Spouse

For whatever reason, a major concern among parents doing estate planning is how to protect an adult child’s inheritance from their spouse. It may stem from an animosity or concern over a child’s problematic partner. A number of them are concerned about a divorce attacking and attaching the assets distributed to their surviving children. There are a few others who believe that heirlooms, property and/or inheritances should be kept within the family.

A basic choice one has is to leave the inheritance to just one spouse, i.e., their own child. Even if one’s child resides in a community property state, an inheritance would be considered individual property. Florida statutes define non-marital or separate assets as the property received by either spouse separately by bequest, descent, non-interspousal gift, or devise. Therefore, an inheritance is considered a non-marital asset. A spouse should not be entitled to any part of another spouse’s inheritance.

However, once that property becomes comingled or mixed with other marital assets then it may become community or marital property. The subject child will need to place the inheritance in an account in their name alone, and they will not be able to place any new funds in the said account. The child will need to be careful to keep their inheritance separate and should likely consult with an attorney to ensure they do not inadvertently comingle their property.

Likewise, sometimes the income produced by one spouse’s property can be considered community or marital property. Consequently, comingling the income from the inheritance with the inheritance itself could destroy its separate nature or status.

As an alternate strategy, a parent can leave their child’s inheritance in a Trust, naming them as Trustee. Creditors, divorcing spouses, and others will not have access to the child’s inheritance to the extent that assets are left in the Trust. Again, depending on the withdrawal rights and other terms and conditions set up in the Trust, the surviving child could withdraw funds and still comingle the withdrawn funds/assets or otherwise use them to benefit their spouse.

If there is a greater concern, the Trust can be set up with an independent third-party Trustee. Such an arrangement can limit the child’s access to their inheritance. Assets could only be disbursed or distributed at the discretion of the said Trustee; therefore, the Trust creator would need to be clear about establishing those withdrawal or distribution rights when drafting the Trust.

Another inheritance protection strategy can be taken by the adult child- they can sign a prenuptial agreement before getting married or ask their spouse to sign a postnuptial agreement if the inheritance is received during the marriage.

By careful thought or consideration and planning one can attempt to bypass a child’s partner in their estate plans. Consideration and provisions should be made in the event the child predeceases their parent and/or their spouse. Ultimately, consulting an experienced estate planning attorney can greatly assist the individual doing an estate plan in considering potential what-ifs and plan accordingly.

If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI, in Miami Lakes, Florida.