The South Florida Sun-Sentinel has a story today about the coming battle over local radio personality Neil Rogers's estate. According to the story, there are two competing wills filed in the probate case, and there are questions whether or not Rogers had testamentary capacity when he signed the second one.
This case is just beginning, so it will be interesting to see how it turns out.
This morning, the ABA Journal has a story entitled, "How People Find Lawyers: Referrals Are Popular, Blogs Not So Much, Poll Finds."
According to the story, "When potential clients do turn to online resources, they are less likely to consult social media and blogs than innovative websites. The survey question was, 'if you needed a lawyer for a personal legal matter, how likely would you be to use the following resources to find one?' Fewer than 20 percent were very or somewhat likely to consult Facebook, compared to 15 percent who would consult blogs, and 9 percent who would look at Twitter."
Despite what so many social media snake-oil salesmen would tell you, most attorneys, especially those of us who blog (and are on Twitter) know this.
My issue with the ABA Journal's story, and the officially titled, "Perspectives on Finding Personal Legal Services, The Results of a Public Opinion Poll, American Bar Association, Standing Committee on the Delivery of Legal Services, February 2011" link to report here, are the questions they asked, which of course led to the not so surprising results.
The survey of more than 1,000 adults was conducted through land line telephones. The first question was, "If you needed a lawyer for a personal legal matter, what would be the primary way you would find one?"
Forty-six percent said that they would ask a friend, family member of colleague and 34% said that they would contact a lawyer that they know or have used before. Only 7% would search online. Because the question only asked for the "primary" way, it's not surprising that people, when looking for someone to handle their divorce, or to plan their estate, or to keep them out of jail, would ask for a recommendation from a trusted friend or family member before consulting what George W. Bush called "The Google."
Next, the survey asked, "If you needed a lawyer for a personal legal matter, how likely would you be to use the following resources to find one?:
Here, people were not asked to identify as "primary" way with only one choice, but for each were asked how likely they were to use that particular source. None of the online sources fared very well, with fifteen percent of respondents very likely or somewhat likely to use blogs to find a lawyer.
You ask a stupid question, and you get a stupid answer. What does it mean to ask people if they would use a blog as a resource to find a lawyer? Are there blogs out there about finding lawyers? Are there blogs that provide various information about specific lawyers and how one would go about finding one? I wouldn't be surprised if there were, but I'm sure they are all nonsense.
The question and answer completely miss the entire point of what attorney blogging is about. The main reason that I blog is that I enjoy writing. If you don't enjoy writing, you shouldn't have a blog.
But do I blog to market my practice? Of course I do. I don't write some of the lame articles that end with "If you need an attorney call me," but I do want people to see that I know what I'm talking about, that I'm smart and hard working, and hopefully, based upon my writing, they'd either consider hiring me, or refer me to someone else. My blog is my website, and I'll sometimes answer people's legal questions too. I think that's a lot different than asking people if they would use "blogs" as a "resource to find a lawyer for a personal matter."
Finally, the whole poll is flawed and skewed because the sample selection. They asked 1,000 adults with landline telephones what they thought of the big scary internet. Of course they are going to find serious skepticism and fear. I haven't had a landline telephone in years, and many people I know don't have one either. I'm sure if they conducted an online poll, the overall results would be quite different.
Anyway, I'm going to keep on blogging because, again, I enjoy writing. And if I get a client or two out of it, so much the better.
Professor Gerry Beyer, who writes the Wills, Trusts, and Estates Prof Blog (which is truly the best estate planning blog), published a new article with law student Kerri Griffin entitled "Estate Planning for Digital Assets." A link to the Professor's blog post on the article, with the article's abstract is here. The full article is available on SSRN here. I believe you have to sign up for an account with SSRN, but I think it's free.
The article does a good job at setting forth (1) what exactly is a digital asset, (2) how to plan for them, (3) the current policies of various online sites (Facebook, Gmail, etc.) for what happens when a user dies, and (4) the use of "Online Afterlife companies."
The article quotes my blog post from two years ago, "Estate Planning for Your Digital Life, or Why Legacy Locker is a Big Fat Lawsuit Waiting to Happen." Beyer's and Griffin's article states, "Some of these companies purport to distribute digital assets to beneficiaries. Explain to your clients that these companies cannot do this legally, and that they need a will to transfer assets, no matter what kind. Using these companies to store information to make the probate process easier is fine, but they cannot be used to avoid probate altogether."
I have not reviewed the terms of service of Legacy Locker or the dozen or so competitors that have sprung up since I wrote the blog post two years ago, so I do not know whether or not the companies have changed their policies to assuage my concerns. The point remains that while it is a great idea to assist the estate in gathering,and maintaining the digital assets, it is problematic if the accounts are passed on to a different person designated in the decedent's estate planning documents.
I'd like to hear from anyone who has used one of these companies in which the client has passed away, and how the process worked. If you are, or know of such a person, and would be willing to have me interview and write about your experiences, please contact me.
It is a well-worn cliche among Florida estate planning lawyers that the concept of "Homestead" is a "legal chameleon," in which there are three different meanings for the term. The first is the tax exemption that homeowners are entitled to. The second is the "devise and descent" rules – in which there is a prohibition on how a home may pass at death if the owner is survived by a spouse or a minor child.
The third way in which the term "homestead" is used is the protection of your homestead from creditors. I've written about this before. Once again, I'd like to re-quote the relevant portion of the Florida Constitution.
Article X, Section 4, of the Florida Constitution provides:
a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner's consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner's family; (b) These exemptions shall inure to the surviving spouse or heirs of the owner.
To simplify, if you owe someone money not related to your home, they can't take your home. It's a bit more complicated than that, but that's the basic rule.
Of course, there are always wrinkles.
In the recent Third District opinion filed in Beltran and Beltran v. Kalb (see link for full text),the facts are as follows
Evaristo and Carmen were married, jointly owned a home, and had a daughter, Grisel. In 1990, Evaristo and Carmen got divorced. As part of the divorce agreement Carmen retained "sole and exclusive" occupancy of the home, and Evaristo was supposed to deed his interest in the home to Carmen.
Evarsito never executed the deed, so, technically, retained a tenancy-in-common interest in the home, where Carmen and Grisel continued to live. During the time, Evaristo racked up some debts, and had a recorded judgement against him.
Carmen died in 2007. At the time of Carmen's death, she was unmarried, and Grisel was an adult. This is not a case about devise and descent, but as I said earlier, protection from forced sale of the homestead to satisfy creditors.
Here is what happened next:
Evaristo and Grisel filed a motion to set aside the sale, which the lower court denied, because it found that Grisel had "failed to carry her burden of proof by offering testimony to demonstrate the decedent (Carmen Beltran) was the head of household for homestead purposes."
In effect, the lower court said that in order for the homestead to be protected from Evaristo's creditors, then Grisel had to prove that Carmen was a "head of household."
There's only one problem with this. That's not the law. It used to be (sort of), but not since 1984.
For some reason, the trial court was concerned with determining who supported Carmen while she lived in the home, and whether Carmen and Grisel lived there together, as a “family unit.” As the 3rd DCA instructs, prior to 1985, the homestead protection from forced sale benefitted owners who were the "head of a family."
The current and correct standard was that Carmen lived in the home and made it her residence, even after Evaristo left, and therefore, it was her homestead.
If it was Carmen's homestead at the time of her death, then than status inures to Grisel, Carmen's daughter. I'm not so sure why it matters though, as the real issue is Evaristo's creditors.
The appellate court found that Evaristo's interest was also protected from creditors. As the Florida Constitution says, the protection from force sale (creditors) "shall be limited to the residence of the owner or the owner's family." Grisel, Evaristo's daughter continued to live in the property continuously, and was supported by her father financially. Even though he did not live there, the property maintained its status as protected Homestead because his family (his daughter) still did.
I'd like to point out that this case did not come from the probate division. The probate judges work with Homestead issues like this every day and are well versed in the intricacies. Even though Carmen died, this was not a probate case, in that it was a motion to set aside the sale of property.
Do the probate judges occassionally get the issues wrong? Of course. A recent court case stated that "It has been said by those who labor in the area, that 'the leading cause of cerebral herniation among probate lawyers, real estate lawyers, circuit court judges sitting in probate, and appellate judges reviewing their work is the study of the legal chameleon also known as homestead." Cutler v. Cutler, 2007 WL 601866.
But would a probate judge have gotten this case wrong in this manner? I don't think so.
I was talking to someone the other day who wanted to change their Will, which was not originally drafted by me, and asked me if I would do a a codicil for them.
I told them no.
While I would be happy to draft a new will from scratch, I don't do codicils to wills that were drafted by other attorneys, and I generally don't even like doing them to Wills that were drafted by me.
Quite simply, a codicil is an amendment to a Last Will and Testament. Instead of drafting an entire new will, a codicil merely amends certain sections of the Will. It could be 4 pages, 3 paragraphs, 2 sentences, or even one word.
Back in the days before computers, or even typewriters, long documents like Wills were drafted by hand. While attorneys often did the creating of the documents, the actual copying and physical writing of the documents were done by scriveners (Ah, Bartleby! Ah Humanity!). As a Will could be, and often was, a document of significant length, it did not make any sense to write out a 20 page document in long hand, just for some minor changes. Enter the codicil.
Eventually, the assembling of legal documents moved from being written out longhand, to being typed on manual (and then electric) typewriters. These typewriters had no memory, So once again, without the ability to do a short codicil, a small change to a Will would require a secretary to retype the entire document, instead of a few pages.
But there are problems with codicils.
First, the law is in a constant change of flux. Congress and the state legislatures are always changing the tax laws and the laws regarding probate and real property. Lawyers have to constantly update the "boilerplate" of their Wills and other documents to conform to the changes in the law. If you do a codicil to a Will in which, for example, the testator excludes one of their children, or adds a grandchild, it's possible that the changes in the law since the last Will will not be incorporated.
While in the past it might have been more efficient to do a codicil that reflects all of the changes, it's certainly not efficient now. Depending on when the Will was drafted, there may be multiple changes in multiple places, or few changes. If it was a document that I drafted, I would at least know where those changes are. But if someone else drafted it, it would take considerable time to pour through the Will and checking the law -- much less time than it would take for me to create a new one that has all of the updated language to conform with the law.
Another issue is the signing of the Will. As I've written about before, How you sign a Will Can Be Just as Important as What It Says . If I did not preside over the execution ceremony, I have no idea whether or not the original Will was validly executed in the presence of two witnesses who were in the presence of each other and the testator. If the original Will is invalid, then the Codicil may also be invalid. It's possible it could be valid by incorporating the prior Will, but again, drafting a new Will is safer.
Finally, in the age of computers, word processors (the computer program, not the human kind), and document assembly programs, there is no reason, for me at least, to do codicils, instead of new Wills. It no longer takes a scrivener or a secretary hours to recreate the document from scratch. Instead, I can use their previous Will to make the changes according to their wishes, and I'll know where to make changes to the law. The rest of it can just be re-printed, and does not have to be recreated.
So why do attorneys still do codicils? Some do it out of force of habit, in that's the way it's always been done. Some are still dictating Wills for secretaries using forms and do not have document assembly programs. And some think that clients prefer a short codicil than a new Will.
But for me, I'd rather be safer and do a new Will, and leave the codicils to Bartleby.
There's a good story in USA Today today on estate planning and the estate tax entitled, How to leave stocks, bonds, real estate, or small businesses to your heirs. Like most USA Today articles, it takes complicated concepts and puts them into simple terms, including adequate, albeit brief, explantations of the annual exclusion, carry over basis, the estate tax exemption, charitable planning, and business succession planning.
There's nothing "new" in it, but it's always good to get the word out that everyone needs some sort of plan, and to create awareness among the public as to what types of issues they may encounter if they do not plan.
Link: How to leave stocks, bonds, real estate, or small businesses to your heirs.
Sometimes, posts on law blaws can get a little bit esoteric. Every now and then I think it's useful to go back to the beginning, and set forth the documents that comprise a basic estate plan. Every single adult should have these in place, regardless of age, marital status, wealth, and whether or not they have children. These documents are:
Some estate planning professionals will state that every single person should have a revocable trust. As I've written in the past, while they are good for some people, not everyone needs them.
Recently, the Department of Justice under President Obama has stated that they will no longer defend the constitutionality of the Defense of Marriage Act in court. What many people may not know is that the current case that prompted that decision is about the estate tax.
Edith Windsor and Thea Spyer were married in Canada in 2007 after being a couple for more than 40 years, and Spyer died in 2009, and left her entire estate to Windsor (this is actually simplified as the real dispositions involved transfers to trusts).
At the time of Spyer's death in 2009, the estate tax exemption, that is the amount an estate can be valued before being subject to tax was $3.5 million. Anything over that amount was taxed at a 45% rate. If Edith was married to Archie instead of Thea, then the tax owed would be zero. That is because of what is known as the marital deduction. Any property that you leave to your spouse is not subject to tax (it will eventually be taxed upon the second death).
Normally the federal government will treat a couple as married for estate tax purposes, if the state in which the decedent lived sees their marriage as valid. Incredibly, their marriage was recognized by New York State, and not subject to the state's estate tax. But because of the Defense of Marriage Act, the IRS was prohibited from allowing Thea's estate to take the marital deduction.
Edith is suing the government for a refund of the $360,000 estate tax that she (or the estate) had to pay due to the government's use of DOMA deny the refund.
What will happen next? Stay tuned.
Here is a copy of the ACLU's complaint filed on Edith's behalf. http://www.aclu.org/files/assets/2010-11-9-WindsorvUS-Complaint.pdf
Now that I've been nominated by LexisNexis to be one of the top 25 Estate Planning Blogs, I'd like to introduce myself to new readers, and possibly re-introduce myself to old ones. I am an attorney in Fort Lauderdale, Florida, with a practice focused on estate planning, asset protection, probate, guardianship, and tax planning. I grew up in a suburb of Fort Lauderdale, known as Plantation, in Broward County.
After graduating South Plantation High School in 1991, I attended Brandeis University, in Waltham, MA for my undergraduate degree, and then I went to George Washington University, in Washington, DC, for law school. Going into law school, I never imagined that I would end up a tax lawyer some day. In fact, it was furthest from my mind. But during the summer between my first and second year of law school, I landed an internship with the Tax Division of the Department of Justice, in a Civil Section. That means that they didn't prosecute criminals who evaded taxes, but instead sued to collect taxes owed. While I didn't necessarily like the litigation side of it, the technical tax side, with its talmudic like detail, fascinated me.
Starting with my second year of law school, I began to take as many tax classes as I could. My basic Federal Income Tax class was taught by Judge James Halpern of the US Tax Court. Having a sitting Judge teach the class is one of those experiences that you can only get in DC, and the real world knowledge that he brought to the class made for a great experience.
After law school I was hired by the Internal Revenue Service Office of Chief Counsel, in the Passthroughs and Special Industries division. There, I specialized in the income taxation of partnerships, subchapter S corporations, and trusts. At the IRS I wrote Private Letter Rulings, Revenue Procedures, Notices, and Regulations. I also worked on the IRS's war against abusive tax shelters, including being the primary docket attorney on Notice 2000-44, the "Son of BOSS" Notice. Although I was in the division that was focused on the income tax of those entities, I worked closely with the division that specialized in the estate and gift tax, and that area always appealed to me.
I stayed at the IRS for seven years. After a while, I got tired of the snow and being cold, and I missed my family and the South Florida community. In 2005, I moved back to South Florida, where I received my Masters in Law (LLM) in Estate Planning at the University of Miami Law School. To me, Estate Planning allowed me the opportunity to be a tax attorney, but also to work with "every day" people. After I finished the LLM program, I then was an associate with a large South Florida law firm for almost three years, at which point I decided to leave and start my own practice.
Which brings us to the present.
I love being a solo practitioner, because it allows me to run my practice the way I want to, and can devote the individual attention to my clients that they deserve.
Thanks for reading, and there is plenty more to come.
I'm pleased, and honored to announce that my blog has been nominated for the LexisNexis Top 25 Estate, Probate, and Elder Law Blogs of 2011.
If you'd like to vote for me, please comment on the announcement post at the LexisNexis Estate Planning and Elder Law Community. Each comment is counted as a vote. To submit a comment, visitors need to log on to their free Communities account. If you haven’t previously registered, you can do so on the LexisNexis Estate Practice & Elder Law Community for free. The comment box is at the very bottom of the page. The comment period for nominations ends on March 31, 2011.
I'm actually a bit embarrassed as I haven't been blogging as much as I should lately. I'll try to use this honor to kick things back into gear.
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