Unwitnessed wills are not valid in Florida, even if the will is valid out of state.

Posted on November 18, 2013 by admin

As I’ve noted in the past, Florida prohibits “Holographic” wills; wills that are handwritten by the testator but fail to meet Florida requirements for execution, usually for failure to have two witnesses.

A recent case, here:
Lee v. Estate of Payne discusses this rule; in this case, a Colorado resident executed a Colorado will; it was unwitnessed but met the requirements for admission to probate in Colorado. However, the will also attempted to dispose of Florida real property.
Essentially, the will was sought to be admitted in Florida on the basis of “Full faith and credit”, i.e. that Florida should respect Colorado’s determination that it was a valid will.
Unfortunately for the beneficiary, the Florida court rejected that argument; Florida does not recognize unwitnessed wills, even if the will is valid in the state it was executed.
From a practical viewpoint, if you own property in Florida, whether you are a Florida resident or a resident of another state, and wish to leave property via a will, it is essential that your will at least be reviewed by a Florida attorney, particularly if your will was not drawn up by an attorney in the state in which you live. If you have questions about the validity of your will and live in or own property in The Villages, Florida, please feel free to contact my office to review your will.

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Why a Landlord might be better off without a written lease

Posted on October 24, 2013 by admin

Normally, I encourage people to use written contracts for legal matters; some transactions, in fact, are unenforceable without written contracts; such as agreements for sale of property, and sales of goods for more than $500. In most circumstances, written contracts are good; they set out the terms, by having the parties sign the contracts they show that they understand and agree to the terms.
However, when it comes to leases, particularly for residential premises, written contracts, written leases, can lead to problems; particularly where the tenant becomes undesireable. Maybe they’re paying the rent, but late; maybe they’re disturbing other tenants, maybe they’re not keeping the property up. In order to terminate a written lease, you need to show that problem they are causing is either something that is so egregious that they should not be given an ‘opportunity to cure’, which is a fairly high standard, or that you’ve given them prior notice of the exact same problem and they’ve either failed to cure it within 7 days or they’ve cured and let the problem recur.
This is the thing; landlords want two things; they want the rent paid, in full, on time, and they don’t want to deal with complaints, either from the tenant or other tenants or the city or the county. They don’t want to be constantly nagging tenants to pay the rent on time, to clean up the yard, to turn down the music at night, to stop flushing diapers down the septic system, or what have you.
The problem is, if there is a written lease, the tenant has certain rights under that lease and it becomes very difficult to terminate the lease early.
Likewise, sometimes landlords decide to sell property during a lease; under most circumstances, the new owner of the property is going to take subject to the existing written lease; and they may not be satisfied with the rental payments or the tenant. Essentially, though, that’s tough luck; a written lease is going to bind the tenant and the landlord and any successors to the landlord.
So, what’s the alternative?
An oral lease or a “month to month” tenancy; the renter pays the rent each month and they get to stay there for the next month. If they don’t pay, then eviction proceedings are brought. And if the tenant becomes a problem, or if the property is sold, then the landlord can terminate the lease; and can usually terminate the lease with as little as 15 days notice up to a maximum of about 45 days notice; depending on where in the month you are (Florida requires 15 days written notice, but it must be delivered not less than 15 days before the rent is due; so if the rent is due on the 1st and today is the 20th, you don’t have 15 days to give them notice; you would have to give them notice for the FOLLOWING month, i.e, the beginning of not next month but the month after that).
What’s the disadvantage to not having a written lease? You could get into trouble if you try to collect either more than one months rent (first and last months rent) and you could get into trouble if you try to collect a security deposit. Florida has specific laws on security deposits; the Florida statute requires that the landlord disclose certain things in writing to the tenant if the landlord holds a security deposit, and frankly, most Florida landlords don’t comply with the statute.
Additionally, if the tenant decides to ‘break’ the lease it becomes difficult to claim very many damages for a month to month lease.
Whether you use a written lease for residential tenancies requires some thought; additionally, if you do use a residential lease it is important to use a proper one; a lot of them floating around on the internet and on legal software and at office supply stores aren’t very good. If you are going to use a written lease than I would strongly suggest you get one drafted by a Florida attorney; there are certain items that should be in it.
If you have residential property for lease in or around The Villages, Florida, please contact me prior to renting the property; we can discuss whether a written lease is best for you and if so, I can provide one tailored to your situation.

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How to disinherit someone.

Posted on October 22, 2013 by admin

I’ve discussed this before; but I think the point needs repeating. With the exception of a spouse, and minor children, Florida doesn’t place any limitations on who you can disinherit. The exception for spouses falls into two categories; under most circumstances you can’t disinherit the spouse from receiving your homestead, and while Florida law allows you to disinherit a spouse from all other assets, Florida allows the spouse an “Elective Share” of 30% of the gross estate, subject to some setoffs for property they receive outside of probate. And if you have minor children, you usually can’t disinherit them from receiving the homestead. Other than that, though, normally you are not obligated to leave anyone anything, you can freely disinherit children, step children, siblings, parents, whoever.
You are not obligated to leave most people anything, including “A dollar”. And, in fact, if you want to disinherit someone, you are better off leaving them nothing, and not “A Dollar”. The reason for this is that if you do leave them a dollar in the will, they become an ‘interested party’ under Florida law; they are entitled to notice of the probate and they may be in a position to at least slow things down, by refusing to sign consents, receipts and waivers.
If you want to cut someone out of a will, the better practice is to mention them by name, and then explicitly state that you are not leaving them anything. Typically I use language to the effect of “I leave X nothing under this will but leave him my love and affection”.
The reason for this is if you simply fail to mention the person, there is a chance that they could use this to challenge the will; the basic premise would be that the parent was so senile, or so far gone mentally, that he forgot that he had a particular child or relative; I’m not suggesting that this would necessarily be a strong case, but it could slow things down, take time and money to resolve. By specifically naming them, and then explicitly stating that you leave them nothing, it shows that you knew what you were doing.
And, you shouldn’t discuss the reasons for why you are cutting them out in the will, such as “My son stole from me and I leave him nothing”. This could lead to two problems; first, there is a type of lawsuit called “testamentary libel”, where someone who is slandered in a will can sue the estate; obviously, lawsuits are going to slow down the probate and cost money to defend, even if the person cut out of the will doesn’t win the suit. And, you run the risk of opening the door to probate litigation; to use the example above, that “my son stole from me”, the son may be tempted to try to overturn the will on the basis that he hadn’t stolen from you; that you were either under some sort of delusion, mistake of fact, or that someone else poisoned your mind against him by telling lies. Once again, this could take time and money to fight.
If you insist on leaving a nominal amount, I would suggest that you leave enough to encourage them to sign off on paperwork; maybe $1000 or so; while that is not a fortune, it is enough that most people are going to be willing to sign paperwork and follow through on cashing a check. Nobody is going to cooperate to receive $1; most people will cooperate, even if grudgingly, to receive $1000.

If you want to disinherit someone, I strongly suggest you talk to an attorney; If you are in The Villages, Florida and need estate planning, please feel free to call my office and schedule an appointment.

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What can happen when you die without a will

Posted on September 9, 2013 by admin

Here’s a link to an article discussing a recently deceased New York real estate developer, Roman Blum, who (apparently) died without a will and without any relatives to inherit his estate:


Holocaust Survivor left an estate worth almost $40 Million but no heirs

Bear in mind, that’s a $40 million estate.
Now, this is actually rather unusual; most people have relatives; even if they don’t have close family, they have cousins, typically descendants of common grandparents, who stand to inherit on an intestate basis. And in Florida, IF someone dies without any ‘collateral descendants’ then the law looks to see if they were married, and if they were, if their spouse predeceased them; if their spouse predeceased them then in Florida the estate could go to ‘collateral descendants’ of the deceased spouse. So, normally, this does not happen very often; in the case of this particular gentleman, he was a Holocaust survivor and essentially all of his family was wiped out, and he had no children.

A somewhat later development; a disbarred lawyer has come forward claiming he has a valid will:

A will for Staten Island developer

I will try to keep up on this story as it develops.
The point, though, is this; if you die without a will, the state will set out who gets your property. And it might not be who you wanted to get it. If you are in or near The Villages, Florida, or Belleview, Lady Lake, or Wildwood, Florida, please feel free to contact my office to discuss your estate plan.

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What is Undue Influence?

Posted on September 5, 2013 by admin

Frequently, you will have a case where one particular child looks after a parent during the parents’ lifetime, and the parent winds up favoring that child in a will, or in some cases, outside of a will, such as leaving them bank accounts or life insurance policies.
And, sometimes, the other children will cry “foul”, and accuse the child who looked after the parent of “undue influence”, or influencing the parent to leave that child a disproportionate share of the estate.
This can be a tough call; I discuss undue influence here:


How to Contest a Will in Florida

And as you can see, some things that you would expect to see where a child is looking after a parent; transporting the parent to the lawyer or the bank, maybe making initial contact with the lawyer, maybe simply being aware of the existence of the estate plan, could be seen as giving rise to undue influence.
A recent case out of one of the Florida appellate courts discusses this scenario:

Kester v. Rocco

The court focused on the fact that “Undue influence must amount to ‘over persuasion, duress, force, coercion, or artful or fraudulent contrivances to such an extent that there is a destruction of free agency and willpower of the testator.’”

It’s not the fact that there is a relationship between the parent and the child, you need more than that; that “Evidence merely that a parent and an adult child had a close relationship and that the younger person often assisted the parent with tasks is not enough to show undue influence” but that you need to show something further; essentially that the parent had no will of their own but was acting at the direction of the child.

In the case above, the court looked at whether the mother was competent, whether she seemed overwhelmed by her daughter, whether she distributed other assets before her death to other children.

The point I’m getting at is, just because a parent favors a child who looked after them in a will or outside a will does not mean that the child exerted undue influence.
If you have questions about will contests or undue influence in Florida, please feel free to contact my office, conveniently located just North of The Villages, Florida.

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Estate and inheritance taxes and revocable trusts in Florida

Posted on August 1, 2013 by admin

I’ve discussed elsewhere why I don’t think revocable trusts are a good vehicle for avoiding probate in Florida.

Why Revocable Living Trusts usually won’t avoid Probate in Florida
And, as I’ve noted, Florida does not have estate or inheritance taxes, at least none beyond the Federal estate tax.

Estate, Inheritance, and Income Taxes in Florida
Nonetheless; I do get people asking about living trusts, or revocable trusts and how they avoid estate taxes. I want to take just a bit of time to explain why revocable trusts have a reputation for saving money on estate taxes and why the tax advantages are largely irrelevant in today’s world.

Historically, the federal estate tax threshold was set fairly low; for most of the last part of the twentieth century the estate tax kicked in at a fairly modest level. From 1942 to 1976 the exemption was $60,000; in 1976 it went to $120,000 and slowly crept up to $600,000 by the year 2000. In 1976 sixty thousand dollars was a significant amount of money; in 2000 six hundred thousand dollars was a significant amount of money, but at no point could the federal estate tax exemption be considered a ‘fortune’ and there were a number of middle class households that might be subject to the estate tax.

Federal law on the estate tax has an unlimited exemption for any money left to a spouse; even if the amount left to a spouse far exceeds the estate tax exemption, no estate tax is due. So, historically, one strategy for avoiding the estate tax has been to leave everything, or at least everything that is valued more than the federal estate tax exemption amount, to the surviving spouse. In the short term, that makes sense. The problem is, sooner or later, everyone dies; including the surviving spouse. At that point the suriviving spouses estate becomes subject to the federal estate tax; and the only exemption available is whatever the federal exemption is for that year; in other words, the entire estate is taxable; whatever the surviving spouse owned on their own plus whatever they inherited from their deceased spouse.

This is the reason, or one of the reasons, lawyers developed the revocable living trust, specifically what is called an “A-B” marital trust. There are a number of variations on this, but in a nutshell, what an A-B trust does is effectively double the estate tax exemption. Instead of leaving everything outright to the surviving spouse, any amount up to the federal estate tax exemption goes into a trust for the surviving spouse; the surviving spouse has access to the money, but technically doesn’t own the money or the property; upon death of the surviving spouse the remaining funds in the trust pass to whoever the first spouse wants. And, of course, the surviving spouse retains full use of their own estate tax exemption. As I said, this allows the use of both spouses exemptions, which effectively doubles the the amount that can be sheltered from the federal government. At the time, it was a very good idea, and applicable to many middle class estates.

However starting in 2002, the federal estate tax exemption has been increased, quite rapidly; it went to one million dollars, and has been at $5 Million since 2011. In addition, since 2011, the federal estate tax exemption has become “portable”, meaning that under most circumstances, if the entire exemption amount is not used when the first spouse dies, the remaining exemption ‘carrys over’ to the surviving spouse and gets added to their exemption. This effectively doubles the exemption in most cases without the use of a trust.

Between the relatively large estate tax exemption of $5 Million and the portability of the estate tax exemption, few estates are subject to the federal estate tax. For most people, this is simply not an issue. If your estate may be subject to the Federal Estate Tax, you need to take some action and talk to a knowledgeable attorney about this, but few middle class families have an estate exceeding $5 million. And use of an A-B revocable living trust is pointless unless you are at risk of owing an estate tax.

Now, some states have estate taxes with much lower exemption amounts, but Florida does not have an estate tax or an inheritance tax. There may be reasons to have a revocable living trust in Florida, but for most people, avoiding the estate tax is simply not one of those reasons.

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What happens if the medical provider doesn’t honor the familys wishes?

Posted on July 23, 2013 by admin

The Orlando Sentinel has an article about a lawsuit where a hospital and nursing home ignored a do not resuscitate order:


Lawsuit raises issues about end-of-life wishes

I haven’t seen the lawsuit and I don’t know how likely it is that she is going to win; but it does illustrate the point that sometimes, either innocently or deliberately, that a hospital, a nursing home, a physician, or other medical provider will ignore wishes in a living will, a DNR order, or a health care surrogacy. Sometimes, if the medical provider does not have a copy of the paperwork, they clearly are not about to not to try to save someone; sometimes they do have a copy of the paperwork, but for whatever reason, they refuse to accept it or refuse to follow the instructions.

Every case is going to be different; but if this happens to you call a lawyer immediately; depending on the circumstances, a phone call by the lawyer to the medical provider may be enough to get them to recognize the paperwork, or a lawsuit and court order might be required.

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Doma and taxes

Posted on June 26, 2013 by admin

Here’s a link to blog by a tax lawyer; discussing the implications of DOMA and state taxes;


Prop 8, DOMA, Taxes, and You
Florida does not have a state income tax; nonetheless we do have a number of people with out of state residences. If you are an out of state resident with interests in Florida, and have a same sex marriage, you might want to consider the tax implications.

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DOMA and what it means for Florida Residents

Posted on June 26, 2013 by admin

First, the Supreme Court has handed down a decision today dealing with the Federal Defense of Marriage Act, here:


United States v. Windsor
In plain language, it says that IF a state has recognized Same Sex Marriage, between two men or two women, THEN the Federal Government may not treat a Same Sex Couple who have been married in that state any differently under federal law than they would treat a couple involving a man and a woman. This applies to a lot of government benefits; tax filing status, pension rights, life insurance benefits, there are over a thousand types of federal benefits and rights that may be affected.

However, in terms of what it means for Florida residents; the answer is probably not much.

First, Florida does not recognize same sex marriage, and the opinion clearly does not require any state to recognize same sex marriage; so a same sex couple can’t get married in Florida.

Second, the other way this might impact a Florida couple is if a same sex couple were to get married in a state that recognizes same sex marriage and move to Florida. For instance, if a same sex couple were to get married in New York State and move to Florida.

Under that opinion released today, Florida would NOT be required recognize the marriage; the couple would not automatically have marital rights under Florida law, under intestacy and homestead rights.

And, I do not know for certain, but under the opinion as it is written, I think it is likely that any rights that the same sex couple had under Federal law might be lost if they moved to Florida. In the example I am using here; if a same sex couple were married in New York the Federal government would have to recognize that marriage for the purposes of Federal law so long as they lived in a state that recognized same sex marriage; so long as they lived in New York or moved to a state that recognized same sex marriage. But, if they moved to a state that did not recognize same sex marriage, such as Florida, then it is not clear that the Federal government is required, or even allowed, to continue to recognize the marriage.

I am not trying to throw water on anyone’s parade here, but it’s apparent that there is already a lot of “bad information” about this decision in the media, and even amongst some lawyers I’ve interacted with today. It is one thing to feel good about this decision, it’s another thing entirely to make some legal decisions based on what may be wishful thinking; I would strongly caution anyone from outside Florida who is in a same sex marriage and from a state that recognizes same sex marriages from moving to Florida and thinking either that Florida will recognize the marriage (I can categorically state that, at least for right now, Florida absolutely will not recognize same sex marriages from other states and this opinion in no way requires Florida to do so) or thinking that just because the Federal government is now required to recognize the marriage that if you move to Florida the Federal Government will be required to recognize the marriage (the short answer is, frankly, I don’t know; that was not decided by today’s opinion and the way it is written tends to make me think it is limited to a very specific set of facts; someone living in a state that recognizes same sex marriages). The point is, don’t assume; if you or a loved one are newly entitled to Federal benefits under DOMA, and are thinking of moving to Florida or another state where the marriage is not recognized, you need to slow down and at least contact a lawyer. This is almost certainly going to be the subject of litigation; but litigation is quite expensive, can take several years and sometimes people lose; you do not want to be the person who brings a test case on this.

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The importance of updating your estate plan after a divorce.

Posted on June 3, 2013 by admin

Frequently, couples will name each other as beneficiaries of life insurance, annuities, bank accounts, CD’s, and retirement plans. Sometimes, though, when they get divorced the ex spouse forgets to remove the other ex spouse from the insurance, the bank account, the annuity or the retirement plan.

I’ve noted in the past, Florida has a provision that, under some circumstances, will allow a court to remove an ex spouse from some types of accounts if someone has died; but as I note it does not apply to all types of accounts.

New Florida Law on Pay On Death Accounts After Divorce

The United States Supreme Court handed down a decision recently, here:

Hillman v. Maretta

Dealing with a similar statute in Virginia; one that specifically applies to so-called FEGLIA plans, or life insurance that is offered to Federal employees and retirees. Essentially, Virginia provides for the revocation of certain beneficiary designations upon divorce, similar to Florida’s law; it also provides that if the beneficiary designation cannot be revoked because it is a Federal benefit, that the person receiving the benefit can be sued to recover the benefit.

Long story short here is, the Supreme Court said they can’t do that; that Federal law ‘pre-empts’ the Virginia statute, and it is up to Congress to change the law.

The bigger lesson here, though, is not about the ‘law’ but about the fact that a lot of people forget to update their estate plan after they divorce. This is very common and can lead to very unintended results; and the shame of it is, frankly, that under most circumstances, it is quite avoidable.

If you’ve had any big “life changes”, not only divorce, but including the death of a spouse, a new marriage, the death of a child, retirement, moving to another state, or illness, you really should review your estate plan, preferably with an attorney; not just your ‘will’ but looking at whatever other assets you may own; insurance, investment accounts, bank accounts, retirement accounts. People assume that these things will change automatically; that doesn’t necessarily happen. You may not, in fact, need any changes; but a few minutes review with a lawyer may save a lot of grief on the part of your children or new spouse somewhere down the line.

If you have questions about your estate planning situation in or around The Villages, Florida, including Lady Lake, Oxford, Wildwood, Belleview and Fruitland Park, or if you have a parent who has died or is undergoing some life changes, and have questions about probate, please feel free to contact my office to set an appointment.

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