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September 2015 Archives

The use of revocable or "living" trusts in Florida

A previous post here discussed the use of trusts as part of a comprehensive estate plan in Florida. We have also touched on some of the different types of trusts, and a few of the basic differences between the two major trusts types: revocable and irrevocable. When people think of trusts they likely are often picturing irrevocable trusts, whether they know the terminology or not. But, it can be just as important to know about revocable trusts and some of the caveats regarding their use as an estate planning tool.

Guardianship in Florida may be contentious, but it is important

Previous posts here detailed a 2014 circuit court of appeals case that involved the competency of people to appoint pre-need guardians and the standard courts must use to determine whether to honor people's designations of their own guardians. Previous posts here have also discussed the fact that the professional guardianship system which is often used by courts to appoint guardians for adults who have lost capacity has come under intense scrutiny over the last few years and has spurred legislative efforts at reform. But, why do we spend all this time talking about guardianship?

How do spouses waive their rights to an elective share?

A previous post here addressed the provision of a spouse's elective share in terms of the administration of estates in Florida. Spouses can choose to keep whatever they have been devised in the decedent's will or trust, or they can opt for the elective share, which in Florida is set at 30 percent of the estate. The public policy behind elective or spousal shares is to protect spouses and children from being completely disinherited by a will. While the law generally prevents disinheritance in this way, spouses can waive their rights to the elective share. But, how does a Florida resident go about doing this, and why would someone want to.

What might be a breach of fiduciary duty in a Florida estate?

Previously, this blog has discussed those who are named personal representatives or executors of someone else's estate and the fiduciary duties he or she owes to the estate's beneficiaries. Meaning, a personal representative must behave loyally and in the best interests of the estate's beneficiaries. But what kind of behavior might be cause to head to probate court due to breach of the fiduciary duty? First, let's review where the fiduciary duty comes from. Florida Statute 733.609 provides that the duty of a personal representative is the same as that of the trustee of an express trust under the law. Thus, the fiduciary duty of a personal representative is a statutory one.