Florida Estate Planning and Probate Law Blog focused on recent case law and planning ideas.

FLORIDA PROBATE LAW - WHO OWNS A DECEDENT'S ASHES?


The parents of a deceased child were the sole heirs of the child’s estate. The child’s remains were cremated, and the parents could not agree on the final disposition of his assets. The father petitioned the probate court to divide the ashes equally among the mother and father as the heirs of the child.
The Florida’s probate code defines “property” as “both real and personal property or any interest in it and anything that may be the subject of ownership.” The probate court found that the ashes were not “property” subject to division in accordance with the division of other property of the decedent, and the appellate court agreed. The appellate court noted that while there is a legitimate claim of entitlement by the next of kin to possession of the remains of a decedent for burial or other lawful disposition, this does not give rise to a property right and does not convert those remains to “property” for disposition purposes.

CHANGES TO FLORIDA LAW IMPACTING YOU



FLORIDA'S HEALTH CARE SURROGATE STATUTES: Effective October 1st, an individual may assign the power to a surrogate to make health care decisions for that person even if the person is not incapacitated. If there is ever a conflict between the surrogate and the principal, the principal's decision is controlling as long as the principal has capacity. A principal may also amend or revoke the durable health care surrogate as long as the principal is not incapacitated. A principal can do this through a variety of different ways including written amendments or written revocation. Physicians still must discuss treatment and other important information with a person who is not incapacitated regardless of whether or not there is a surrogate. Parents now have an option to name a health care surrogate for minors under 765.2035(6). This will be useful if a parent is unavailable to provide consent for treatment for their child. This could come up in a variety of situations, such as when the parents are traveling without their minor children.

FLORIDA UNIFORM TRANSFERS TO MINORS ACTEffective July 1, 2015, Florida allows custodianships to last until the age of 25. Florida statute 710.123 now allows for an age of 25 to be set as the termination date when the UTMA account is created. A Florida custodianship can be created if the custodian, minor, or transferor lives in Florida or if the property protected by the custodian is in Florida.  Florida Statute 710.123(2) was added, which grants minor beneficiaries of UTMAs with a termination age of 25 the ability to withdraw the funds at 21. However, there is also the ability to limit the right to withdraw to a certain duration so that if the beneficiary does not use their right within the specified time, then the assets cannot be withdrawn until the age of 25 when the UTMA terminates. This time period is generally 30 days.


FLORIDA GUARDIANSHIP LAW: Under prior law, durable powers of attorney were suspended when anyone initiated judicial proceedings to determine incapacity of an individual or to have a guardian advocate appointed. This suspension lasted until the petition was dismissed or withdrawn. The new law provides that certain family members (child, parent, spouse, or grandchild) will no longer be automatically removed from being agents upon the incapacity of the principal, and the powers provided in the document will continue. The new statute also has a process to suspend a power of attorney that is held by a family member in case that family member is abusing their power.

WHERE CAN WE FIND THOSE AGE 65 AND OLDER



As the Baby Boomers reach retirement and older generations continue to live longer, more counties across America are turning gray (their hair). A new analysis finds that 97% of counties saw an increase in their 65-and-older population since 2010. On average, a U.S. county’s 65-and-older population grew by 12.4% from 2010 to 2014. Some counties are “aging” much more rapidly than others.  

The State of Florida, the destination for most snowbirds and retirees, is one of the nation’s grayest states. Overall, 19.1% of the Sunshine State’s population is 65 and older (the highest percentage in the nation). Sumter County (west of Orlando) is the only U.S. county where more than half (52.9%) of residents are 65 and older. Sumter County also has the highest median age in America at 65.9. Not far behind, with 37.7% of its residents age 65 and older is Charlotte County, Fla. and then Citrus County with 35.2%. In Florida, 53 of 67 counties have an above-average share of people 65 and older when compared with the percentage of Americans in that demographic.

ESTATE PLANNING NEEDS FOR FOREIGN CLIENTS



It is no surprise that foreign residents do not have the same estate or gift tax exemptions as a U.S. resident.  In 2015, a U.S. resident may gift, during his or her lifetime, or bequeath upon death as much as $5.43 million. In contrast, a foreign national has an estate tax exemption of only $60,000. As a result, a foreign national who owns a $2 million house in the U.S. can expect their heirs to pay some $740,000 in estate taxes upon their death. 

On the gift tax front, foreign nationals should take advantage of their annual gift tax exemptions of $14,000. However, unlike U.S. residents, they are limited to $147,000 in gifts to their spouses before triggering estate and gift taxes. To avoid these tax issues, many counsel their clients to establish off-shore entities to own the U.S. assets.

It is important to note that Canadian citizens benefit from a treaty with the U.S. that allows them the same exemptions as U.S. citizens. 

HOW CAN I AVOID STEP-CHILDREN FEUDING OVER AN INHERITANCE


Statistics show that two in every five marriages is a remarriage and the number of individuals who have been married more than once has nearly doubled. The end result is more step-parents, half-siblings, and step-nieces than ever before.  
While many of these families get along while both parents are alive, fierce fighting can occur when one parent dies with a sizeableestate. The battles occur over what assets each parent and their children claim they accumulated prior to and during the marriage. The best way to solve many of these issues is with a pre-marital agreement.  However, in the absence of one, to avoid these battles, the classic advice is for families to talk it out before a spouse’s death. If everyone knows how much money is at stake and how it will be divided at death, they will be less likely to be surprised or offended when the estate plan is implemented.  Unfortunately, nothing can stop or dissuade a greedy child from challenging or interfering with the implementation of an estate plan. 

I AM A RESIDENT OF WHAT STATE?

The criteria for determining whether a deceased individual's estate is subject to probate or estate taxes in a state is based upon their state of domicile at death. Reaching that determination can be complex.

For income tax purposes, the residency requirement is based on the number of days you reside in a particular state in a given year. If an individual does not spend more than 183 days in any one state during the year, more than one state may claim that individual as a resident, causing them to potentially owe tax in two or more states. However, for purposes of determining whether an individual is subject to probate or to estate or inheritance tax in a state the individual’s domicile will be scrutinized at the time of their  death. A domicile is where one intends to make his or her home for a permanent or indefinite period. A taxpayer can have only one domicile. Once domicile is established, it continues until it is established elsewhere.


Many factors can be utilized to determine an individual's domicile: the location of your principal residence; mailing address; where you applied for a homestead or veterans property tax exemption or other comparable benefit; whether you can be claimed as a dependent on another person’s federal income tax return and where that person is domiciled; where your spouse or close family members reside; where you are registered to vote; the state which issued your driver’s license; vehicle registration; professional licenses; location of active bank accounts; unemployment insurance; resident tax returns; the state where you earn your wages; address recorded for insurance policies, deeds, mortgages or other legal documents; state in which you hold fraternal, social or athletic memberships; location of house of worship; etc...

Add to this equation the fact that states are looking for tax revenues and may attempt to claim you as a resident based upon past behavior. This can result in multiple states claiming a decedent as a resident. In addition, even if an individual is domiciled in one state, his or her heirs may still need to pay estate or inheritance taxes or probate a will in another state if they owned real property in a state that is not his or her state of domicile. Proper planning may avoid the need for a separate probate in those other jurisdictions.

UPDATE YOUR FLORIDA POWER OF ATTORNEY AND HEALTH CARE DESIGNATIONS REGULARLY


Most individuals have their estate planning documents prepared and then put them away on a shelf. During that time period the laws pertaining to them can change many times. As a result, it is very important to review your Florida Health Care Surrogate and Powers of Attorney at least every three (3) years. 
Your Health Care Surrogate appoints a trusted person to make medical decisions on your behalf in the event an illness or injury renders you unconscious or otherwise incapacitated. Your Power of Attorney appoints an individual to make financial decisions or execute transactions on your behalf. It is important to review these documents to make sure that the individual you previously entrusted to handle affairs on your behalf can still be trusted, they are still around and involved in your life, or they may be deceased. 

Even if nothing has changed since you signed your Florida Health Care Surrogate and Powers of Attorney, it’s a good idea to sign new documents every few years. Because of liability concerns, some financial institutions and health care providers may be reluctant to honor powers of attorney that are more than a few years old.

SARASOTA GUARDIANSHIP JUDGE APPOINTS COURT MONITOR

♠ Posted by Marc Soss
SARASOTA – A circuit judge appointed an independent court monitor on Friday to investigate the case of a Siesta Key resident and former art gallery owner who has spent the last two and a half years under the control of a professional guardianship, after attorneys for her daughter argued that the hasty procedure making her a ward of the court was a violation of due process.
In January 2013, the 12th Judicial Circuit Court named the nonprofit agency ...... as the guardian of Marise London, at the request of the Department of Children and Families’ Adult Protective Services division. The agency was paid from London’s assets to make decisions about her finances and health, at the rate of $85 an hour — while her daughter, Julie Ferguson, maintained she could provide better care for free, and had a right to do so under a Power of Attorney document her mother signed before suffering from cognitive impairment.
This week’s hearing hinged on an esoteric point of law. But after an hour of debate, Chief Judge Charles E. Williams caught Ferguson’s attorneys off-guard by asking them what outcome they really wanted for London. “Let’s not lose sight of the big picture,” Williams said. “I don’t want people to think the court gets caught up in the minutiae of the law and doesn’t care about the best interests of the ward.” If London does not need a guardian, or if her daughter would be a more suitable guardian than her current one, Williams added, “we can address those issues.”
In December, the Herald-Tribune published a series of articles — “The Kindness of Strangers: Inside Elder Guardianship in Florida” — examining the experiences of people who believe they were denied due process when elders were found to be lacking capacity to make important decisions, stripped of their civil rights and placed under a court-appointed guardianship. The series highlighted the potential for conflicts of interest among professionals who work closely together within the system. Because wards’ cases are confidential, there is often little opportunity for oversight.
Ferguson, whose story was part of the series, said she first called the state for help more than four years ago, on the advice of an attorney. She had become alarmed that her mother’s progressive dementia was leading her to give away assets she could not afford to lose. But when authorities finally asked the court for an emergency temporary guardianship for London, the petition listed Ferguson’s address as “unknown” — “despite knowing her address,” Ferguson’s attorneys claimed in court filings. This led to insufficient notice about her mother’s initial hearing, they argued, and left her no time to obtain an attorney.
“The record would reflect that she was never served with a copy of that petition,” a .... attorney Ferguson hired to reopen her mother’s case, noted at a hearing in Williams’ courtroom Thursday. “She tried to get a lawyer, and couldn’t get a lawyer.”
Ferguson has become an advocate for guardianship reform, testifying on behalf of bills in Tallahassee this year and using social media to connect with others in the cause. Dozens of her supporters attended the hearing Thursday, crowding into one side of the courtroom like guests at a wedding. The attorney for ......., asked Williams to dismiss Ferguson’s motion to vacate the guardianship. Because of complex legal rules, ..... said, the only way a judge can nullify a guardianship based on a denial of due process is if the case had been declared adversarial from the outset. “The guardianship rules and statute are set up to be non-adversarial.” “The enduring arguments as to whether or not due process was violated, whether or not there was fraud, are irrelevant.”
On Friday, Williams agreed with ....  point, and granted his request to strike the motion. Ferguson’s case could have ended there, but the judge chose to take the extra step of appointing an attorney to investigate further. As the circuit’s new chief judge, Williams asked the Sarasota County Commission in June to fund an extra court monitor position for the sole purpose of handling complaints about guardianships.
“The Court needs to have a better understanding of the dynamics of this case,” Williams said in his order, “and be certain of the motives of the various parties to make certain that the needs of the ward are being met and the current situation is in the best interests of the ward.” Absorbing this new development on Friday, Ferguson said she would consult with her attorneys — including the director of litigation for Disability Rights Florida, who recently joined her team — and take a wait-and-see approach. But her mother’s guardianship experience has made her wary. “Having all these strangers involved in making these decisions has been so terrible,” Ferguson said. “How would anyone feel about that kind of power being wielded by one person over a loved one?”

NEW STATUTE PROTECTS AGAINST ELDER ABUSE BY CAREGIVERS

The newspapers, especially in Florida, are filled with stories about family members and guardians taking advantage of the elderly. While that may receive all of the press, financial elder abuse by caregivers remains a major problem. To combat this problem, several states (most recently, Illinois) have enacted statutes appropriately making it more difficult for unscrupulous caregivers to extract gifts. These statutes create a presumption of fraud or undue influence for such gifts. They also create the  possibility of liability and professional discipline for attorneys effectuating gifts that run afoul of these statutes.

CHEAP WILLS CAUSE MAJOR HEADACHES

Ever wonder why you can purchase a computer program, for under $40, and be able to create an entire estate plan? The answers is that most individuals are looking for bargains. However, being cheap when it comes to your estate planning may cause huge problems when you die.  Modern family structures (second and third marriages, children with multiple spouses, etc..) have also added complexity to the drafting of estate plans.   A person should seek out the advice of a competent Florida Estate Planning attorney when having their estate plan drafted.