If you’ve listened to me long enough, you’ve heard Cramer’s theory of what happens in contested probate proceedings: “The bully always wins.” Well, now that might change. Recent amendments to both the Florida Probate Code and Trust Code, which apply to all proceedings filed on or after July 1, 2015, provide ammunition for family members to fight back against the bully.
Senator Bernie Sanders, a presidential candidate, recently proposed a bill in Congress that he titled “The Responsible Estate Tax Act.” The Act proposes to raise the estate tax and broaden its coverage. The proposal immediately was endorsed by well-known economists such as Robert Reich and Thomas Piketty. Surprisingly, for an unabashed progressive like Senator Sanders, the Act proposes only a modest increase in the estate tax. Here is what the bill would do:
Most complications that arise in estate administration are the result of unanticipated events. Divorce is one of the least planned for events in any estate plan; it can also cause some of the most devastating complications. The recent case of Carroll v. Israelson illustrates this point.
In order for a will to be probated after someone’s death, a Personal Representative must be appointed by the court. In order for a trust to be administered, a Trustee must be appointed pursuant to the terms of the trust. The PR or Trustee then distributes the estate among the intended beneficiaries through a process known as estate administration. Typically, the PR or Trustee will hire a lawyer to assist with the estate administration. During the estate administration, this “estate” lawyer will need to be in contact with the beneficiaries. It is not uncommon for the beneficiaries to believe that the estate lawyer represents them and their interest in receiving their share of the estate.
2014’s You’re Not You stars Hilary Swank as a 35-year-old classical pianist who is stricken with ALS (Amyotrophic Lateral Sclerosis, aka Lou Gehrig’s disease). This multiple-hanky-needed drama is naturally sad, although fairly realistic and extremely well-acted. ALS is a disease that travels in only one direction: downhill. There is no cure, not even much palliative care that can be offered. So, yes, in one respect, the movie is about watching Hilary Swank’s character die.
Revocable Living Trusts are planned with the intention of keeping the family out of court. If this intent fails, courts have alarming powers to interfere with your plan. The recent case of Rene v. Sykes-Kennedy illustrates this point.
Recently, there has been a lot of buzz around the need to fix the rules governing “professional guardians” (i.e., persons who have been appointed guardian over three or more legally incapacitated individuals) in order to protect Florida’s elderly from predatory practices. (See here, here, here, and here.) While the Florida legislature is taking steps to address the issue, you can mitigate your risk of becoming a victim by implementing anticipatory provisions in your estate planning documents.
Adding to the unusual cases profiled in our Adoption Series (see here, here, here, and here), a Florida court recently decided whether an adopted daughter’s attempt to invalidate her own adoption, so that she could inherit her biological father’s estate as his lineal heir, had any legal merit.