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West Palm Beach Probate & Estate Administration Law Blog

Why does Florida allow limited guardianship?

On behalf of Law Office of Warren B. Brams, P.A. posted in Guardianships & Conservatorships on Thursday, December 3, 2015.

When laws are written, debated and passed in the United States, there is a reason or purpose behind each one; that is, the law is intended to solve some problem or accomplish some goal of the legislature. At times, due to the legislative system and the somewhat esoteric language used in many legal situations, the purpose behind certain laws can be opaque at best. For this reason, as well as to give those interpreting laws some guidance, many state legislatures, like Florida, include a statement of 'legislative intent' in their legal codes.

These statements generally set out what the legislature was attempting to do with the law, and how it should be construed when applied to the facts of individual cases. These statements are not law themselves, and definitely do not substitute for the plain language included in the statute. Even with legislative intent declarations, poorly written laws cause many problems for the legal system as well as average citizens. However, in certain circumstances, such statements of intent clarify why certain laws act the way they do.

Do all estates have to be administered in Florida?

On behalf of Law Office of Warren B. Brams, P.A. posted in Estate Administration on Friday, November 27, 2015.

About a month ago, this space discussed the concept of exempt property in the context of Florida estate administration. To refresh, certain property will be considered exempt from creditors when there is a surviving spouse or children of the testator. While this is an important concept during the probate and administration process, it also can make a difference in certain situations where administration of the estate may not be necessary.

Florida Statute Section 735.301 governs these types of situations where the estate is too small to require even summary administration. Basically, any estate that contains only personal property that is exempt from creditors under statute or under the Florida Constitution will not need any type of formal administration. This is also true if the estate contains non-exempt property that is not worth more in value than the cost of funeral expenses and the reasonable medical costs of the decedent's last 60 days of life.

Florida probate litigation can be complicated

On behalf of Law Office of Warren B. Brams, P.A. posted in Probate Litigation on Friday, November 20, 2015.

About a month ago, this blog touched briefly on the fact that a recent case in one of Florida's appellate districts had pointed out the fact that settlement agreements during probate cases should be specific in what representations the parties relied on in coming to the agreement. As you may recall, the reason for this is that oral representations made during the settlement process are not admissible later if they are determined to be incorrect, as probate settlement negotiations are privileged in Florida.

The above is just one of many aspects of probate litigation that may seem overly complex to some people. Because of the tangle of state and federal law that governs how estates are probated, when they must be probated and what property is subject to probate, the process can seem, at times, incomprehensible. For example, in this blog we have discussed elective shares for spouses and children, improper devising of homestead properties, how out-of-state property must be handled and who has the burden in proving undue influence in a will contest.

What happens in Florida to an improperly devised homestead?

On behalf of Law Office of Warren B. Brams, P.A. posted in Estate Planning on Thursday, November 12, 2015.

As many Florida residents may know, the state has some unique laws when it comes to what is known in law as homestead property. While these laws are complicated and somewhat arcane, the basic idea is that a person's primary residence, if owned, is immune to certain actions and taxes that would otherwise apply to real estate. For the purposes of estate planning, this takes the form of a state constitutional requirement that homestead property is not devisable when there is a surviving spouse or minor children.

So, what does this mean? Well, basically there are restrictions on how one can deal with homestead property in one's will or a trust. While a comprehensive discussion of all the possible permutations is beyond the scope of this blog, attempting to leave a homestead property to a person or entity other than a surviving spouse or minor child may result in that devise being considered invalid. In such a case, the property will not go to the person or entity named as the devisee. So what happens to it?

What is a land trust in Florida?

On behalf of Law Office of Warren B. Brams, P.A. posted in Trust Administration on Thursday, November 5, 2015.

We have previously touched on various types of trusts in this space, and what some potential advantages of their use may be in the service of a comprehensive Florida Estate plan. This week, we are going to briefly discuss a type of trust instrument that is almost exclusive to Florida. Only two states in the U.S. have created a statutory form of trust called a land trust.

The Florida Land Trust Act, also known as FL Statute 689.071, governs the creation and properties of land trusts. As the name might imply, land trusts are a form of structure created specifically to hold real property as the trust's assets. Under the statute, the owner of the real estate can convey the property to the land trust, which will hold the property and make the named trustee the legal owner of the land in the eyes of the law. Like all trusts, there will also be beneficiaries who hold an interest in the property governed by the trust. In a Florida land trust, it is possible to give these beneficiaries the power to direct the trustee with regard to executing various actions on the property held in trust, including mortgaging, conveying and distributing the proceeds of any sale.

Professional guardians often appointed due to family disputes

On behalf of Law Office of Warren B. Brams, P.A. posted in Guardianships & Conservatorships on Wednesday, October 28, 2015.

In our recent discussions of the adult guardianship system in Florida, we have covered a lot of ground regarding some of the legal reasoning used by courts in deciding whether a family member can challenge the potential appointment of a person who has been designated previously by an incapacitated adult to be his or her guardian. Before that, we spent time on how the professional guardianship system in Florida had come under scrutiny and some legislative efforts to change some of the ways the system works. These discussions point up one of the main reasons older adults end up with people other than family appointed as their guardians: the family can't agree. Two recently reported cases illustrate this.

In the first, a man who hoped to be able to care for his father, who was a victim of dementia and Alzheimer's disease, had a disagreement with his sister as to who should become his guardian. As a result, a court appointed the county's non-profit guardianship program to care for the man's father. While his father was under the guardianship of the program, the man claims that his existing healthcare services were cancelled, and the program attempted to put him in a facility that the son did not think suitable. The son also alleges that the program was delivering only a fraction of his father's benefits checks to pay for his living expenses, without accounting for the missing money. After a local news organization intervened, the guardianship program explained that their policy was to ensure that their wards had savings in case of future emergency, and sent a full accounting to the son. He has since won legal guardianship of his father back.

What is 'exempt property' in Florida estate administration?

On behalf of Law Office of Warren B. Brams, P.A. posted in Estate Administration on Wednesday, October 21, 2015.

This blog has discussed previously the concept of 'elective shares' and how they can be waived during an estate administration in Florida. To refresh, the 'elective share' is that portion of the estate that a spouse (and sometimes child) may take instead of what was left to him or her in the decedent's last will and testament. A related concept that we touched on but did not expound upon is that of 'exempt property.'

According to Florida Statute 732.402, a surviving spouse (or children, if there is no surviving spouse) of a deceased person whose legal domicile was in Florida at the time of death, has a right to certain 'exempt property.' This property includes motor vehicles, up to two in number, that do not weigh more than 15,000 pounds and were titled to the decedent and commonly used by the immediate family as personal vehicles. Also exempt is any furniture or appliances in the household where the decedent lived, up to a net value of $20,000 as of the day the decedent died. Finally, certain qualified tuition program deposits or agreements such as those in the Florida Prepaid College Trust Fund, will be considered exempt. There is also an exemption for rare cases where death benefits are paid out by the state to teachers or administrators killed during the course of their duties.

Settlement agreements in probate litigation should be specific

On behalf of Law Office of Warren B. Brams, P.A. posted in Probate Litigation on Friday, October 16, 2015.

There are two basic types of legal standards that are used when litigating legal issues: statutory law and case law. Statutory law consists of the laws passed by legislatures, be they federal or state, and signed by the executive; i.e. the president or governor. Case law, on the other hand, is comprised of the accumulated interpretations of courts, especially appellate courts, of the statutes on which the law is based as applied to certain real-life situations.

Because no statute can take every possibility into account and remain simple enough to be useful, judges must, at times, determine the outcome of disputes using reasoning based upon statutory law and legal precedent from previous cases. One such case that was decided last month by the Florida 3rd District Court of Appeal affects the way settlement agreements in probate litigation cased are handled.

What is a 'buy-sell agreement' and why is it needed in Florida?

On behalf of Law Office of Warren B. Brams, P.A. posted in Estate Planning on Wednesday, October 7, 2015.

Previous posts here have discussed many forms of estate planning and how Florida residents may help direct the way their property is disposed of in case of incapacity or death. In many of these cases, we have looked at a testator's personal or real property, and how that will be distributed. But, what if the person in question owns a business? What happens to the business or decedent's share thereof when the person becomes incapacitated or dies? Especially if the ownership of the business is held in conjunction with other people, such as with shareholders in a corporation, or a partnership, owners may wish to consider a 'buy-sell' or 'buyout' agreement.

These agreements are sometimes called 'prenuptial agreements for businesses.' As with that family law contract, the purpose of the buy-sell agreement is to stipulate how the ownership interest in the business should be transferred if one of the owners will no longer be taking part in the business, whether by choice or circumstance. This type of agreement can be used in several different ways in an estate planning context. The agreement will often have a valuation formula that is to be used to determine the price of the business interest. It can also restrict the people or entities to which the ownership interest can be sold. Thus, a business owner who wishes his family members to benefit from the business can give some certainty to the sale price they will get from the buyout of the ownership interest, or even ensure that heirs get first crack at buying the into the business.

The use of revocable or "living" trusts in Florida

On behalf of Law Office of Warren B. Brams, P.A. posted in Trust Administration on Wednesday, September 30, 2015.

A previous post here discussed the use of trusts as part of a comprehensive estate plan in Florida. We have also touched on some of the different types of trusts, and a few of the basic differences between the two major trusts types: revocable and irrevocable. When people think of trusts they likely are often picturing irrevocable trusts, whether they know the terminology or not. But, it can be just as important to know about revocable trusts and some of the caveats regarding their use as an estate planning tool.

Some of our readers may know that revocable trusts are those in which the grantor, or the person setting up the trust, retains control over the assets throughout his or her lifetime. In fact, in many cases, the grantor is the trustee as well, so that the grantor may make the decisions about how to use the assets contained in the trust until death, and that duty is then taken over by a successor trustee. This obviously has some advantages, especially if the assets within the trust are being used as a means of support for the grantor. However, as a Florida Bar publication points out, revocable or "living" trusts also have some characteristics that may not be as desirable as those of an irrevocable trust.