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Monthly Archives

August 2018

Sean M. Byrne, Esq. Published on the Front Page of The Docket

By Firm News

Attorney Sean Byrne was on the front page of the June edition of the Sarasota County Bar Association’s monthly publication The Docket, a resource of information, entertainment, and dialogue for the lawyers of Sarasota, Osprey, Nokomis, Venice, North Port, and Englewood.

Sean’s article, titled “Underutilized Tools for Non-Adversarial Proceedings,” elaborates on Florida Probate Rule 5.080, which provides a path for all guardianship and probate attorneys to “… take depositions, issue interrogatories, request documents and admissions, and even seek sanctions against a party (or third party) that does not comply with the discovery requests.” In fact, Sean writes, any interested person can make use of this tool in order to conduct discovery in the probate process. Sean’s full article can be found online on the Sarasota County Bar Association website, and the Florida Rules which he discusses can be downloaded at https://floridabar.org/rules/ctproc/.

August 31, 2018
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What is Florida’s “Prudent Investor Rule” regarding trust administration?

By Estate Planning

Florida has requirements on how a fiduciary is to manage and invest the assets of the Trust that the trustee administers.

Florida has adopted what is known as the “prudent investor rule,” which aims for a more balanced approach to the investment of assets in a Trust. Florida Statute §518.11 sets the terms as follows:

“The fiduciary has a duty to invest and manage investment assets as a prudent investor would considering the purposes, terms, distribution requirements, and other circumstances of the Trust. This standard requires the exercise of reasonable care and caution and is to be applied to investments not in isolation, but in the context of the investment portfolio as a whole and as a part of an overall investment strategy that should incorporate risk and return objectives reasonably suitable to the Trust, guardianship, or probate estate.”

The statute goes on to clarify that no specific investment can be designated as prudent or imprudent, and that the investments in the portfolio must be kept diverse by the fiduciary.

August 27, 2018
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“It’s All Greek to Me”: Lex Loci Rei Sitae

By Probate

In this series of blog posts, we define esoteric legal terms and explain how they are used in law.

“Lex loci rei sitae” is a Latin phrase literally meaning, “the law where the property is situated.” This term is applied by the Florida court system to the process of ancillary probate administration, which is necessitated by the death of a nonresident who has died leaving assets in Florida. Even though the state where the decedent lived at the time of his/her death might have different probate laws than us, it is the Florida Probate Code which governs the distribution of the assets, such as real estate, left in Florida.

Florida Statute §734.102 specifies what happens in an ancillary probate. “If a nonresident of this state dies leaving assets in this state, credits due from residents in this state, or liens on property in this state, a personal representative specifically designated in the decedent’s will to administer the Florida property shall be entitled to have ancillary letters issued, if qualified to act in Florida.” If the decedent died intestate (without leaving a will), standard rules for appointing a personal representative of the estate apply.

If you are the personal representative for an estate requiring ancillary probate administration, the lawyers at Bach, Jacobs & Byrne, P.A. are glad to help you. Call us now at (941) 906-1231 to schedule an appointment to discuss your options.

August 23, 2018
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Which common policy terms should I compare when purchasing long-term care insurance?

By Asset Protection Planning, Elder Law, Long-Term Care, Medicaid Planning

Long-term care insurance policies are not standardized from insurer to insurer, and thus the policies differ in many ways. There are, however, key provisions used across the board by Florida long-term care insurers. The American Health Care Association specifies that, in Florida:

-“Long term care policies… may cover at least 24 months of skilled, intermediate or custodial nursing home coverage supervised or recommended by a doctor.”

– “Long term care policies or certificates must provide at least one lower level of care, such as home health care or adult day care. The benefits for this lower level of care must have at least half the benefits of the nursing home care, in both the benefit period and the benefit amount.”

Beyond these, common policy points to be considered when comparing long-term care insurance policies include the following:

-Reimbursement levels

-Covered services

-Daily benefit amount

-Benefit period

-Payment options

-Inflation protection

Online, one can find many useful tools to help ensure that you are taking all relevant factors into consideration when purchasing long-term care insurance. Some of these tools include the free Long Term Care Partners, LLC “Benefits and Features Worksheet,” as well as the website for the National Association of Insurance Commissioners. An FAQs sheet from the state agency regarding Medicaid can be found here: https://ahca.myflorida.com/Medicaid/ltc_partnership_program/pdfs/Florida_LTCP_FAQs_7-26-11.pdf.

August 21, 2018
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Tallahassee Judge Rules Florida Misused Conservation Funds

By Firm News, Land Conservation Easements

In 2014, the Florida Water and Land Conservation Initiative (Amendment 1) was passed overwhelmingly with 74.96% of the vote. Upon passage by the voters, the Florida Constitution now regulates that 33% of net revenue from the existing excise tax on documents to be dedicated to the Land Acquisition Trust Fund. This Trust Fund was developed to acquire and improve conservation easements, wildlife management areas, wetlands, forests, and more.

However, a Tallahassee circuit judge has recently ruled that the state of Florida has not been properly appropriating the funds to the Trust, issuing a summary judgment in favor of the Trust. This summary judgment gives the Trust a victory in the case without needing to go to trial.

Attorney Sean Byrne of Bach, Jacobs & Byrne, P.A. is a real property attorney with extensive experience in land conservation law, including the creation and sale of conservation easements. If you are seeking counsel regarding a land conservation easement, call (941) 906-1231 to set up a consultation.

August 17, 2018
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Congratulations to Sean M. Byrne, Esq. for Being Named a “Rising Star” by Super Lawyers®

By Firm News

Congratulations are in order for our own attorney Sean Byrne, who has recently been named a Florida Super Lawyer by the Super Lawyers company. The process of selection is multi-faceted, with each nominee being evaluated based on 12 factors of peer recognition and professional achievement. These indicators include representative clients, honors/awards, pro bono/community service, scholarly writings, and more. Lawyers are not allowed to nominate themselves or campaign on their own behalf, and only the top 5% of lawyers from every state are selected. Thus, the recognition is highly prestigious.

Sean was named to the Super Lawyers “Rising Stars in 2018” list. Babette B. Bach, Esq. has been annually named a Florida Super Lawyer since 2009.

August 13, 2018
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What happens if a beneficiary is responsible for the death of the decedent?

By Probate

These are rare, but this scenario can occur: Florida has a “slayer statute” to address it.  Should a named beneficiary kill the testator, Florida law prohibits the killer from inheriting the gifts left to them in the Will.

Florida law treats the beneficiary responsible for the death of the testator as if he/she had predeceased the decedent – so, the assets left originally to them Will instead go to other beneficiaries.

The slayer statute in Florida, Florida Statute §732.802, specifies this law as it applies to joint tenants and life insurance policy beneficiaries, as well. It also clarifies what happens in the event of an absence of conviction of murder: it is left to the court to decide whether the greater weight of evidence suggests that the killing was intentional and unlawful.

August 9, 2018
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What is the gift tax?

By Tax Law

As defined by the Internal Revenue Service, the gift tax is one, “…on the transfer of property by one individual to another while receiving nothing, or less than full value, in return.” In general, it is said that all gifts are taxable – however, there are some exceptions to this rule. The following gifts are considered non-taxable:

-Any that are not more than the annual exclusion for the calendar year ($15,000 per gift, at the time of this writing)

-Tuition or medical expenses paid on behalf of someone else

-Gifts to one’s spouse

-Gifts to a political organization

-Gifts to charitable organizations

The recent Tax Cuts and Jobs Act of 2017 raised the annual exclusion from $14,000 to $15,000 per gift, which benefits high-net-worth individuals who wish to make gifts to their heirs.

Beware of this, however: on December 31, 2025, the exemptions will revert to lower values, absent any tax law updates in the meantime. Plan and give accordingly!

August 7, 2018
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How can I access a deceased loved one’s safety deposit box?

By Probate

Under Florida law, a court order is required to access and remove the contents of a safety deposit box of the deceased, unless the box is jointly owned. This can create a hurdle for the loved ones of the deceased sole owner of the box, especially if the box contains the Last Will and Testament of the deceased.

Florida Statute §655.935 addresses this situation. It provides that, after sufficient evidence of the box owner’s death has been presented, a spouse, parent, or adult descendant can, under the advisement of a bank officer, open the box and remove certain items from it. These items are as follows:

-The person’s Will

-The person’s burial plot deed or burial instructions

-The person’s life insurance policy

The court may name a personal representative of the estate of the deceased after the Will has been admitted to probate, and this representative is, in turn, given greater access to the contents of the box.

 

August 3, 2018
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