Fort Lauderdale probate litigation - Ansara Law Personal Injury Attorneys

Fort Lauderdale Probate Litigation Lawyer Explains New Florida E-Will Law

Ansara Law Personal Injury Attorneys — Sat, 29 Jun 2019 15:14:48 GMT

After several attempts to upload electronic wills in Florida, a measure approving them has passed and will go into effect Jan. 1, 2020.

HB 409 amended numerous sections of the state probate code pertaining to wills. Florida’s e-will law:

Redefines the term “will” to conform to the changes made in the act;
Exempts e-wills from provisions that govern revocation of wills and codicils;
Lays out the manner by which e-wills and codicils can be revoked;
Defining e-wills and establishing how it has to be executed;
Outlining the requirements and duties necessary to serving as a qualified custodian of an electronic will.

Undoubtedly, there will be concerns about vulnerable adults, and it will be imperative for Floridians to contact an experienced probate litigation attorney regarding their rights and responsibilities where electronic wills are concerned.more

Why E-Wills Will be the Future Nationally

Nevada was the very first state to pass an electronic will law back in 2001, requiring some kind of authentication characteristic, such as a fingerprint or retinal scan. Since then, aside from most recently Florida, Arizona and Indiana are the only other states to do so. Still, it’s something that was practically an inevitability, considering that (according to Pew Research Center):

More than 8 in 10 Americans own a smartphone;
Three-fourths own a computer of some kind;
Half pay their bills online;
Almost everyone uses the internet to shop.

Probate litigation attorneys know the field of law tends to lag behind the trends and times, but always catches up eventually.

As noted by the Harvard Law Review, courts and lawmakers have a number of options for fairly dealing with the facilitation of e-wills. When Congress passed the Electronic Signatures in Global and National Commerce (also known as the E-Sign Act) in 2000, it legalized electronic signatures in the use of interstate and international commerce. There was also the Uniform Electronic Transactions Act the year before to establish uniform practices. State-level legal reform, though, has been slower, and as probate is a state-level function, only a smattering of states will accept electronically-signed records.

Two years ago, the the Uniform Law Commission formed a committee charged with drafting a model law for states to follow in establishing the formation, validity and recognition of electronic wills. Florida lawmakers have tried for the last several years to get such legislation of the ground – including a bill last year that passed legislature, but was vetoed by then-Gov. Rick Scott.

Part of the concern was over the potential for coercion and undue influence for elder and vulnerable adults. Members of the Florida Bar’s Elder Law Section say they believe the issues have been addressed.

Concerns Regarding Electronic Wills

The process of drafting, executing and challenging wills has always been laden with legal formalities, which is to ensure integrity throughout the entire process.

The main reason e-wills have been the subject of such controversy is there is concern over protection of the testator’s intent and protect against fraud and undue influence – particularly of elder and vulnerable adults. This group may be especially at a unique disadvantage because they are more likely to be among those whose use or even exposure to electronics will have been more limited. It’s imperative that the law ensure their rights are protected.

Many of us use electronic signatures to make transactions, but the process of passing wealth from one generation to the next is undoubtedly a more weighty matter than buying a new set of dish towels next day from an online retailer.

E-will ease-of-use may have one important advantage: more people drafting wills. The AARP reports only about 40 percent of Americans have done any kind of estate planning. One of the main reasons people cite is lack of time and resources. With e-wills touted for convenience, it could mean more people make their end-of-life desires known. It is, however, imperative to ensure they do so with the assistance of an experienced Fort Lauderdale probate litigation attorney.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

CHAPTER 2019-71, Committee Substitute for, Committee Substitute for House Bill No. 409, June 7, 2019

What Happens if Someone Dies Without a Will in Florida? You May Be Surprised

Ansara Law Personal Injury Attorneys — Mon, 15 Apr 2019 19:05:16 GMT

What happens if someone dies in Florida without a will?

A recent survey by the AARP revealed 60 percent of American adults do not have a will and are not planning for the end of their lives. Some of this is dictated by age. For instance, among those between ages 53 and 71, roughly 58 percent do have estate-planning documents. Among those older than 72, more than 80 percent have a will. Although most Americans live past the age of 40, there is never a guarantee.

That’s why our Fort Lauderdale probate attorneys want to stress the importance of a will for everyone over the age of 18 – even if you don’t think it’s not necessary because you’re married and assume all of it will go automatically to either your spouse or children.

The process of probate itself can consume a portion of those assets, and disputes that arise between potential heirs certainly will too.

How Florida Decedent’s Property Passes After Death With No Will

In the state of Florida, property that is inherited when you die with no will (called “intestate”) will depend on the kind of property you own at the time of your death.

Not all property has to go through the process of supervised probate. For example, one might inherit a life insurance policy if he or she is the beneficiary. They could be named as a remainderman on a real estate deed or an asset can be retitled in the name of a trust. Each one of these requires some degree of planning, though not necessarily a will. A will becomes most relevant if an estate (the assets and debts one leaves behind) must go through probate. If there is no will, Florida will impose its own statutory rules. So who gets the property? In short, the law will prioritize your surviving spouse and descendants, who can be considered any generational level down from you. There are several different scenarios. Among them:

Surviving spouse with no descendants: Everything goes to the spouse.
Surviving spouse and shared descendants: Everything goes to the spouse.
Surviving spouse and descendants of decedent but NOT the spouse: Half will go to the spouse and half to the descendants.
Surviving spouse and descendants, but where spouse also has their own children: Half will go to the spouse, half to decedent’s children, but none will be allotted for surviving spouse’s children.
Descendants but no surviving spouse: Descendants will inherit equal amounts or shares.
No descendants or surviving spouse: The estate in this case would be inherited first by the decedent’s parents. If neither parent is alive, it will go to one’s siblings. If no siblings, then nieces, nephews, etc.

It’s only in rare cases that the state will take your assets. In the event there is no spouse, children, parents or siblings, there is the possibility that even a remote relative could stake a claim to your estate.

There could also be special rules with regard to your home, if it’s homesteaded, as well as certain exempt personal property. A probate litigation attorney in Fort Lauderdale can explain more.

Surprises in Intestacy Estates

Something that occurs unexpectedly (or in some cases not in accordance with what decedent would have intended) is that even estranged spouses, adult children and other relatives can still collect on the inheritance – unless they’re expressly excluded in the will.

If you marry a person who already has children and those children are adults when your spouse dies, you will have to split your spouse’s estate 50-50 with those adult children – unless your spouse has a will that expressly says otherwise.

Another important scenario to note is that in probate law, common law marriage is not a thing. So if you live with someone – even if you held yourselves out to be husband-and-wife – but never formally married, you will get nothing of your beloved’s estate if he or dies. (This is true at least per intestate laws, though again, there could be exceptions for jointly held property.)

Finally, many people today take on the responsibility of raising the child of a loved one, someone who is a grandchild, a cousin, friend or even stepchild. You may be closer to that child and that child may need the money more. However, unless they are written into your will, they will not inherit from your estate over your blood relatives.

Our Fort Lauderdale probate litigation lawyers can help if you need a will prepared or if a loved one recently died with no will in Florida.

Call Fort Lauderdale Probate Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Consumer Pamphlet: Probate In Florida, The Florida Bar

More Blog Entries:

Florida Probate Litigation Statute of Limitations May Not Be Settled, March 13, 2019, Fort Lauderdale Probate Litigation Lawyer Blog

Broward Estate Planning Attorney Explains Why to Avoid a DIY Approach

Ansara Law Personal Injury Attorneys — Sun, 15 Apr 2018 14:10:25 GMT

There are copious amounts of information available online about do-it-yourself estate planning. But just because you can doesn’t mean you should, the same way it’s always a bad idea to represent yourself in court – even if you’re an attorney. This is not a leaky shower repair you may be able to amble your way through – this is your financial future, and the best means you have of keeping yourself and your loved ones out of probate litigation.

Although reason it’s better to have something than nothing at all (64 percent of Americans don’t have a will – 55 percent of those being parents), the fact is if you are not experienced in handling these types of complex legal matters and anticipating certain contingencies, you may end up creating even more of a mess. Far too many people underestimate the complexity of their estate. It goes beyond simply divvying up the contents of a bank account. Everything – from identifying an executor or trustee to updating your beneficiary lists to gifting money to minors – all of these things require careful consideration.

Drafting your estate plan should come only after a well-thought-out estate and financial plan. If all you do is “fill-in-the-blanks,” that is not reflective of such a process. Further, one size does not fit all, and you also need to be sure that the document you have completed meets all the requirements for what is valid in your state. For instance, F.S. 732.502 requires two witnesses to properly execute a will in Florida, while Pennsylvania requires three. Further, these witnesses must sign in the presence of the testator and each other, which generally requires a self-proving affidavit. Usually, it’s the drafting attorney who signs these affidavits in your presence, but if you do-it-yourself on the internet, you won’t have this option.more

As our probate litigation attorneys in Fort Lauderdale can explain, search engines may help you dig up the necessary documents, but they aren’t going to provide you any meaningful advice that will take into account the specific elements of your personal and financial life. Some of the snags some people hit when they go for do-it-yourself estate planning:

The law has changed. Laws can be fluid like everything else. That’s why even if you have all your planning in order, it’s a good idea to revisit it after major life changes or every few years.
You create an unnecessary tax for yourself in cases where state and federal tax laws substantially diverge.
Your will is no longer valid. Case-in-point: Your spouse was named as the primary beneficiary on your will, but then your spouse preceded you in death and you did not update your will. The will is no longer valid. This will mean the laws of intestate succession will kick in, which means the state decides where your assets will go. Often, it’s your next-of-kin, which may technically be individuals with whom you are not close.
You granted assets or money to minors with no restrictions. This can lead to problems on many fronts. One way to avoid this is to establish a living revocable trust, wherein a trustee can help that minor use the money responsibly until they reach a certain age (usually around 25).

There is good logic in the phrase, “If you want to save money, hire a professional.” Although it’s not cheaper in the short-term, helping you avoid mishandled legal affairs that can bleed you of money and assets and cause strife among loved ones.

Call Fort Lauderdale Probate Litigation Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.

Additional Resources:

Do It Yourself Estate Planning–A Uniquely Bad Idea! May 17, 2011, By Rob Clarfeld, Forbes.com

More Blog Entries:

Does Florida Probate Court Require Families to Pay Decedent’s Debts?, March 28, 2018, Broward Probate Litigation Lawyer Blog