The Florida Supreme Court released an opinion on the Petition of the Florida Probate Rules Committee in Case No. SC20-21. The committee developed forms to implement the protections available in Florida Statutes Section 825.1035. The court adopted the rules as proposed.  The opinion can be found here: 

Florida Supreme Court Opinion in Case No. SC20-21

The opinion was effective immediately, It is hoped that the court-sanctioned forms will provide uniformity and efficiency for the process designed to protect some of Florida's most vulnerable citizens.  Even though there was a statutory form, there were reports of courts finding the form legally insufficient. 

The Florida Supreme Court Approves New Guardianship Forms

 In an effort to standardize and improve certain guardianship forms, the Florida Supreme Court approved new forms proposed by the Florida Probate Rules Committee.  The opinion can be found here: 

September 3, 2020 Florida Supreme Court Opinion - Guardianship Forms

The American Bar Foundation Condemns Racism

Here's a recent statement from the American Bar Foundation: 

An Update from the ABF: The ABF Condemns Systemic Racism

Dear ABF Community,

As you all know, the terrible and tragic events of the past few weeks have been incredibly disturbing and heartbreaking.  From the horrific killings of George Floyd, Breonna Taylor, and Ahmaud Arbery to the countless other episodes of explicit bigotry, bias, and brutality, our country is currently revealing the systemic racism that has been with us throughout our history.  There is no doubt that the legacy of our nation’s “original sin” continues to reverberate today.  It is times like these when we must not only take note of the horror and sadness, but also speak out and denounce the hatred and racism underlying recent events.  Let me be clear: We at the ABF condemn racism in all its forms.

Since our beginnings and throughout our history, the ABF has been at the forefront of using the power of ideas to confront injustice and inequality.  Many of our current and former colleagues have spent decades studying and documenting the relationship between law and structural racism and institutional inequality. Their voices and scholarship reflect the ABF’s core values, ideals, and commitments.  Our research matters now more than ever, and I am proud that we as a community continue to speak out on issues of race, racism, and inequality.  As an institution, we should also be proud of the ABF programming that continues to support the research interests of college students and emerging scholars from underserved and underrepresented backgrounds who can be the catalysts for greater diversity, equity, and inclusion in the legal and academic professions.

But as we all know, this alone is not enough. In times like these, we need to continue to reflect upon our ABF mission to expand knowledge and advance justice. As scholars and citizens, we have a responsibility to speak truth to power regarding all forms of racism and inequality. This is at the heart of who we are as an institution.  Through our research, writing, and policy recommendations, we can continue to move the legal system and our broader society toward greater racial equity and justice.

As a community, we will work through these challenging times together. The ABF has always been, and will always remain, a community for all.  It is up to all of us to maintain those ideals. Thank you.

Please be well and stay safe.

Regards,

Ajay K. Mehrotra

Executive Director, American Bar Foundation

The American College of Trust and Estate Counsel recently issued the following statement: 

ACTEC Statement Condemning Racism

ACTEC is a non-partisan, apolitical organization. However, the College considers the historical, continuing, and devastating impact of institutionalized racism against people of color in our society to be a humanitarian, rather than a political issue. Individually and collectively, we will never, and should never, forget the shocking video images of the brutal murder, now formally charged, of George Floyd. ACTEC will not be silent in the face of these events but will state here affirmatively: ACTEC condemns racism in all its forms. ACTEC will continue to strive to be, and publicly commits to be, anti-racist. ACTEC agrees that as we strive to be an anti-racist society, we cannot attain that goal without acknowledging that Black lives matter.

ACTEC acknowledges that, in a culture and society where white supremacy has been institutionalized, systemic racism exists; therefore, a failure to embrace strong anti-racist practices and policies will merely perpetuate racism. While we remain committed to maintaining a diverse and inclusive environment, we too must do more as a College. We pledge to take additional anti-racist actions, and we encourage all ACTEC Fellows to actively strive to eliminate all forms of racism in their personal and professional lives. ACTEC acknowledges and accepts that, in time, we all will be judged not only by our words, but also by our actions.

The American Bar Foundation - Improving the Law Through Research

I was recently invited to join and support the American Bar Foundation as a Fellow.  After reviewing the work of the organization, I felt compelled to offer my support. 

The mission statement of the American Bar Foundation gives a broad overview of its purpose: 

The American Bar Foundation (ABF) seeks to expand knowledge and advance justice through innovative, interdisciplinary, and rigorous empirical research on law, legal processes, and legal institutions.  To further this mission, the ABF will produce timely, cutting-edge research of the highest quality to inform and guide the legal profession, the academy, and society in the United States and internationally.

The areas of research include many topics that will improve the lives of Americans: 

• Analyzing the Influential Early Childhood Policies that are Proven to Promote Human Flourishing
• Access to Justice
• Tenant Screening and Fair Housing Law in the Information Age
• Conceptualizing Property Takings
• Contested Constructions of Discrimination
• Consent to Sex on Campus
• The Future of Latinos in the United States:  Law, Opportunity, and Mobility
• Employment Civil Rights
• Policing and Political Participation
• Adolescent and Adult Lives of Children of Parents Returning From Prison
• Criminal Defense in China
• Parental Incarceration
• Law and Globalization
• The Lessons for American Law & Public Policy from the Scandinavian Welfare State
• Legal Defenses Against Democratic Decline
• Globalization of Law and Markets
• World Justice Project
• Civil Rights: An American History
• African Americans and Chicago's Criminal Courts, 1896-1964
• The Sit-Ins: Protect and Legal Change in the Civil Rights Era
• Research Group on Legal Diversity

ACTEC Requests Guidance for Inherited Retirement Accounts under the SECURE Act

Here's a link to the request for guidance on the Secure Act:   ACTEC Request for Guidance  The request points out several areas of uncertainty with the option for a non-spouse beneficiary who inherits an interest in a retirement account. Thanks to the volunteers with ACTEC for the time spent on this project. 

2020 Legislative Changes Affecting Guardianship Cases

Florida has received a lot of attention for incidents involving guardians and incapacitated person.  While many guardians are honest, hard-working and dedicated, no one wants to see vulnerable adults or children harmed.  In response to recent events, the legislature took action. Laws of Florida 2020-35 includes changes affecting Guardianship proceedings. These changes are effective July 1, 2020.

·         Section 744.312 has been amended to require that the court consider any disqualifying factors under s. 744.309 and conflicts of interest under s. 744.446.

·         Section 744.334, which lists the requirements for a petition for appointment of a guardian, has been amended to require additional information, including reasons for the guardian’s appointment; whether the proposed guardian is a professional; the proposed guardian’s relation to the alleged incapacitated person or minor; any other types of guardianship proceedings or alternatives to guardianship for the alleged incapacitated person or minor; and includes a clearer definition of “alternatives to guardianship.”  A petitioner who is a professional guardian cannot petition for his or her own appointment unless he or she is related to the alleged incapacitated person or minor. A public guardian appointed under s. 744.2006 for a person of limited financial means is excluded from rule prohibiting the petitioner from seeking his or her own appointment.

·          Section 744.363 is amended to require that the initial guardianship plan list any preexisting orders not to resuscitate or other advance directives defined under s. 765.101.

·         The requirements for the annual guardianship under s. 744.367 (the annual report of a guardian of the person and the annual report of a guardian of the property) must include a “declaration of all remuneration receipted by the guardian from any source for services rendered to or on behalf of the ward.”

·         Section 744.3675 has been amended to require that the annual guardianship plan for an adult ward include a list of preexisting orders not to resuscitate and advance health care directives, whether any such directives have been suspended by the court, and the steps taken to locate the advance directives.

·         Section 736.0207 has been amended to require court approval before the guardian may sign a do not resuscitate order. Expedited procedures are provided for the court’s consideration and authorization of a do not resuscitate order.

·         Section 744.446, as amended, prohibits a guardian from offering or receiving any form of kickback or indirect compensation for service as guardian. The amendments also prohibit conflicts of interest relating to the proposed guardian’s business transactions or activities with the ward, the presiding judge, any member of the appointed examining committee, any court employee involved in the guardianship process, or the attorney for the ward. 

The text of the new legislation can be found at :http://laws.flrules.org/2020/35. The Probate Rules Committee is currently drafting rule updates and the forms committee of FLSSI is also drafting updates, but they will not be ready prior to the July 1, 2020 effective date.

 

2020 Legislative Changes Affecting Real Property, Probate and Trust Law Attorneys

Here’s a review of some of the changes signed by the Governor of the State of Florida recently.

Real Estate Conveyances

House Bill 469 was signed by the Governor yesterday.  (The Laws of Florida Chapter and Section Number have not been assigned yet.) It removes the requirement of two witnesses for a lease. Previously two witnesses were required for a lease with a term of more than one year.  Title insurance underwriters will likely announce underwriting guidelines on leasehold cooperatives. For estate planning purposes, I’ll probably continue to prepare an assignment of proprietary leasehold with two witnesses since spousal waivers under F.S. 732.702 and F.S. 732.7025 require two witnesses.

Chapter 2020-33 

Leasehold Cooperatives as an Interest in Real Property

The RPPTL homestead committee continues to debate the character of a proprietary leasehold for purposes of the constitutional homestead protections.  Some argue that the common law always treated a leasehold as personal property.  There are several leasehold cooperative cases that treat a leasehold as an interest in real property for purposes of the constitutional homestead protection against creditor claims, both during the owner’s lifetime and when devised to the owner’s heirs at death. Our committee prepared an amendment to Chapter 719, https://www.flsenate.gov/Session/Bill/2020/1154/BillText/c2/PDF which would have added a sentence to the definition of a cooperative unit:

     719. 103. Definitions.

(25) “Unit” means a part of the cooperative property which is subject to exclusive use and possession. A unit may be improvements, land, or land and improvements together, as specified in the cooperative documents.  An interest in a unit is an interest in real property.

The amendment was added to a larger bill for homeowner’s association legislation that was not passed this year.  Hopefully it will be back next year.

There is a pending case in the Florida Supreme Court where the conflict between the cases has been certified.  This will be the fourth time the same question has been certified to the Florida Supreme Court and in each of the prior three cases, the Florida Supreme Court dismissed jurisdiction without answering the question.  Rohan Kelley entered an appearance to file an amicus brief in the current case to argue that you can’t classify a leasehold cooperative as constitutionally protected homestead for some protections, but not others.  Prior cases have accepted the position that "homestead" as defined in Article X, section 4(a) and 4(b) is different that homestead for purposes of Article X, section 4(c). Current real estate practices require us to treat leasehold cooperatives as if they could be considered real property and worry about spousal joinder in deeds and spousal (or minor children’s) homestead rights after the death of the owner.

Partition of Heirs Property

The Uniform Partition of Heirs Property.  The purpose of the Act is to protect heirs who inherit (knowingly or unknowningly) real property that has never been probated.  The RPPTL Section published an article in the Florida Bar Journal which questioned whether the new legislation really added anything to existing partition proceedings. https://www.floridabar.org/the-florida-bar-journal/the-uniform-partition-of-heirs-property-act-a-solution-in-search-of-a-problem/  A prior article advocated for the Act.  https://www.floridabar.org/the-florida-bar-journal/the-disproportionate-impact-of-heirs-property-in-floridas-low-income-communities-of-color/  

 http://laws.flrules.org/2020/55

Errors in Legal Descriptions

The Governor also signed legislation that affects errors in legal descriptions.  It provides a notice that can be recorded if the error in a deed fits within certain criteria.  It is effect July 1, 2020

 http://laws.flrules.org/2020/33 

Estates

Laws of Florida Chapter 2020-67 includes changes affecting wills and estates.  Some changes become effective upon becoming law, others on July 1, 2020, and others on October 1, 2020.  The Probate Rules Committee is working on updates to affected probate rules, but they will not be filed with the Florida Supreme Court for consideration before July 1^st.  The forms committee for FLSSI is also aware of the changes and working to update their forms as quickly as possible.

·         Section 731.1065 is added to include a definition to include precious metals, such as bullion or coins, kept for historical, artistic, collectible or investment purposes  as tangible personal property (effective for all proceedings commenced before, on or after July 1, 2020);

·         Section 731.201(32) is amended to clarify that a cause of action by the decedent is property of the estate and therefore within the authority of the personal representative (effective October 1, 2020);

·         Section 731.301(2) is amended to confirm that formal notice is sufficient to exercise in rem and quasi in rem jurisdiction, but not personal jurisdiction over the person served with formal notice (effective upon becoming law);

·         Section 733.212 is amended to require two new items in the Notice of Administration.  (1) the surviving spouse’s deadline to file an election elect an elective share can be extended under 732.2135(2); and (2) a notice that the failure to contest a pour-over will can result in being barred from contesting the trust or other writing incorporated by reference into the will. (Effective October 1, 2020) 

·         New language has been added to Section 733.610 to extend conflicts of interests for a personal representative to a sale or encumbrance involving the personal representative’s spouse, agent or attorney. (Effective July 1, 2020)

·         Section 733.617 has been amended to require written disclosure to a testator when the will designates the drafting attorney, including another attorney in the same firm or someone related to the attorney or an attorney in the same firm, as a personal representative. (It is effective October 1, 2020.) Without the proper disclosure, the attorney or related person is not entitled to compensation.  This was previously addressed by an updated comment to Rule 4-1.8 of the Rules Regulating the Florida Bar in 2017. (Effective October 1, 2020)

·         Section 736.0708 is the Trust Code version of 733.617 for drafting attorneys or related persons being designated as trustee. This was previously addressed by an updated comment to Rule 4-1.8 of the Rules Regulating the Florida Bar in 2017. (Effective October 1, 2020)

The text of the probate changes can be found at: http://laws.flrules.org/2020/67

 

The Perfect Storm: Homestead, Trust, Second Marriage, and Debt

There are many who advocate the use of trusts for everything.  Probate is slow, expensive and generally awful, right?  The Florida Probate Code, the Florida Trust Code, and the Florida Probate Rules are designed to protect the wishes of a person who makes a will or trust. The laws and procedures also protect the intended beneficiaries of a will or trust, as well as protections for surviving family members, especially spouses.  When a Florida resident does not have a will or trust, and there is money, property, or other assets in his or her name, state law will essentially create a will for him or her, assuming family members would be the intended beneficiaries.  Sometimes, inadequate planning is worse than no planning. 

One challenging area for Floridians planning their estate is the homestead protections found in Article X, section 4, of the Florida Constitution. Sometimes the protections cause unintended results for the unwary.  When planning does not take into account the unique aspects of Florida homestead law, the owner's family could face the perfect storm of an invalid trust or will, litigation between family members, and the loss of the protection from creditor claims. 

Protection from Creditor Claims. The first protection is the protection from the claims of creditors.  The constitution says that creditors cannot force a Florida resident to sell his home, or the home where his family resides, to pay a debt. (Mortgages, property taxes and construction liens are exceptions.)  This protection continues when the owner dies and leaves the home to family members. The Third District Court of Appeals treated homestead passing through the deceased owner's trust differently that homestead passing directly under a will. 

• In Elmowitz v. Estate of Zimmerman, 647 So. 2d 1064, 1065 (Fla. 3d DCA 1994), the court said "[u]pon devise to the trust Zimmerman's property lost its homestead status and became merely another asset of the trust." Gloria Zimmerman left her home to her sister, Bonnie Plotkin, a gift that clearly would have been protected if accomplished through a will. Instead, the court noted in a footnote that Gloria did not specifically say I give my homestead residence to my sister but said I give all the rest of my trust assets to my sister.  That distinction would not matter for a will.  Why should it matter for a trust?  In short, the home was lost to creditor claims in Gloria's estate and the homestead protection that should have applied was disregarded because Gloria used a trust instead of a will. 

• Would the outcome have been different if Gloria's trust said I leave my home to my sister Bonnie?  It probably would have.  Should that distinction make a difference? 

The Florida Trust Code says that assets in a revocable trust are subject to the claims of the trust creator's creditors make a claim against assets in a revocable trust.  (Section 736.0505)  The statute does say, however, that any protections available to the creator of the trust are not lost simply because the protected asset is held subject to a revocable trust.  Shouldn't that mean homestead in a revocable trust is just as protected from creditor claims after the owners death?  Two courts have said "Yes!".  HCA Gulf Coast Hospitals and Engelke v. Engelke. 

 

Surviving Spouses and Minor Children. Another protection under Article X, section 4, applies to surviving spouses and surviving minor children.   Section 732.4015, Florida Statutes, recognizes that titling a home in a revocable trust does not change the fact that the creator of the trust is really the owner.  Article X, section 4(c) says an owner of homestead property who is survived by a spouse or minor child cannot leave the home to anyone else. 

• The state constitution trumps and overrides the trust.  If a married owner attempts to leave the home to someone other than his spouse, or is survived by a married child, then section Section 732.401, Florida Statutes, says the surviving spouse receives a life estate in the homestead residence and the decedent's descendants become the owners when the surviving spouse dies. The spouse could file an election to become a 50/50 owner with the deceased spouse's descendants, but that must be done within 6 months. This happens automatically, as if a new deed was issued at the moment of the owner's death. 

• An example of an invalid devise by John, a married man, would be "I give my wife, Linda, a life estate in my homestead residence, with a remainder interest to my wife's son, Lance."  Without a valid waiver of Linda's rights as a surviving spouse, the result is: a life estate to Linda, with a remainder interest to John's descendants, Robert, Albert, and William.   Linda is faced with the obligation to pay insurance, the interest portion of the mortgage payments, property taxes, and ordinary maintenance for her lifetime, without the ability to control where the property passes on her death.  Linda's son Lance receives nothing. 

• What about joint trusts?  Because of changing estate tax laws and the fear of the probate process, joint trusts are becoming more and more popular.  If certain factors are in place, it might not be a problem.  If a married couple (1) owns a residence jointly, (2) then conveys title to themselves as trustees of a joint trust that they created, (3) the trust allows the surviving spouse to amend, revoke or withdraw all of the trust property without anyone else's consent, and (4)  the trust does not place any restrictions on the survivor's ownership of the home, then there might not be a problem.  If, however, the trust puts any limits on the survivor's use and control of the homestead, or any of the four factors listed above are not in place, then probate will be required to sort out the rights of the deceased spouse's descendants.  At the very least, deeds from the deceased owner's children will be required to clear title. That is often a very bad situation where there are children from prior marriages who may not get along well with their stepparent.  It is also a problem where a child of the deceased owner is incapacitated, has judgment liens against them, marital problems, or other problems that affect the ownership of an interest in real property. 

• Section 732.702, Florida Statutes, allows a a married person to waive his or her rights to some or all of the surviving spouse's estate, including homestead.  This must be done through a written agreement signed in the presence of two witnesses.  If the agreement is signed before the marriage, financial disclosure is not required.  However, financial disclosure is always advisable to help ensure that the agreement will be upheld if challenged by the survivor. It is also important for each party to be represented separately, or at least aware that they should have their own attorney, in negotiating and signing the agreement.  A recently-enacted statute was intended to simply the procedures for a waiver of homestead rights by a married person.  Section 732.7025, Florida Statutes.  I co-authored an article about all of the considerations that go into a waiver of homestead rights.  Here's a link to the article. Another statute, Section 732.701, allows a couple to enter into a written agreement to "lock in" their estate plans so they can be changed after the first death. It is not as simple as a signature on a deed. 

• One thing that does not work is to title homestead in a trust that becomes irrevocable on the death of the first spouse.  Even though a couple may want to lock in their estate plan after the first death, they must have a valid prenuptial or post nuptial agreement to waive the surviving spouse's rights so that the plan will hold up. 

Due to all of these complications, it is often easier for a married couple to own their primary residence in their individual names, which allows the survivor to be the sole owner without the need for probate. 

Planning for Minor Children.  To plan for situations where the homeowner could be survived by a minor child, there are a few options: 

• Ownership by a husband and wife does not result in a "devise" at the first spouse's death.  The constitution prohibits a devise, but not a transfer based upon survivorship rights.  See section 731.201(33), Florida Statutes. 

• A lifetime conveyance to an irrevocable trust does not result in a prohibited devise.  Although this strategy is recognized by section 732.4017, Florida Statutes, is comes with complications and drawbacks that don't fit into every estate plan. 

• Using a basic will that designates a guardian of the property to handle the inheritance of minor children can work.  It would require probate and a separate guardianship for each minor child.  Yes, that means some extra work and expenses, but those procedures are designed to protect the interests of minor children. 

Special Considerations for Trusts.  Many Florida attorneys would simply say, don't put your home into a revocable trust.  If you understand the risks involved, and obtain counsel from an experienced, Florida attorney, the following considerations should be taken into account when titling homestead property in a trust: 

• State that by utilizing a trust in  your estate planning, you do not intend to waive any protections under Florida law, including Article X, section 4 of the Florida Constitution; the Florida Probate Code; the Florida Trust Code; and Chapter 222 of the Florida Statutes entitled "Method of Setting Apart Homestead and Other Exemptions."

• For a married couple, the trust should state that the surviving spouse has the right to amend and revoke the trust without anyone else's permission and retains the equivalent of a fee simple interest in the homestead residence, including the unrestricted right to convey, sell, and reside in the home. Anything less creates a title defect on the first spouse's death.

• If only one spouse owns the home, that spouse's trust must give the surviving spouse unrestricted, fee simple ownership on the death of the first spouse. 

• Use written, signed waivers of spousal rights when appropriate.

• Devise the home directly to surviving family members without requiring that the home be held in trust or controlled by the trustee. 

• THIS POST IS NOT A DO-IT-YOURSELF GUIDE OR SELF-HELP LEGAL ADVICE.  IT IS INTENDED TO HELP OTHER LICENSED PROFESSIONALS AND TO ENCOURAGE NON-LAWYERS TO HIRE AN EXPERIENCED ATTORNEY LICENSED IN FLORIDA.  THE SUGGESTIONS AND COMMENTS ARE GENERAL AND DO NOT APPLY TO EVERY SITUATION. 

There is no single, easy answer that works for everyone.  Sometimes it makes sense for a homeowner to transfer his home to a trust.  In other cases, it can be a disaster.  With all of the rights and interests at stake, it will take thought, effort time and, yes, money, to plan properly.  When Florida homestead property is involved, generic trusts, or trusts prepared by non-lawyers or inexperienced lawyers, can actual create a situation that is worse than probate, or cause the need for probate instead of avoiding it. The time, money and effort invested in good planning will be a worthwhile investment in protecting your plans and your family. 

Tenth Edition of Practice Under the Florida Probate Code

The 10th Edition of Practice Under the Florida Probate Code has been released. Authors include: 

• Robert F. Iseley, Jr.
• Jay L. Kauffman
• Shane Kelley
• Jenna Rubin
• Randl L. Marker
• Rose M. LaFemina
• Daniel A. Hanley
• William T. Hennessey
• Cristina Papanikos
• Frank T. Piotte
• Tam F. Conetta
• Pamela O. Pricess
• Jeffrey S. Goethe
• Robert A. Dawkins
• Kateena E. Manners
• Tae Kelley Bronner
• Rohan Kelley
• Hon. Mark A. Spiser

The book is a great resource for probate attorneys.  I updated the chapter entitled Final Distribution and Discharge (my favorite part of the estate process).

Another Homestead Puzzler

Here's another case that illustrates the challenge of deciphering a homestead puzzle. In Anderson v. Precious Pets and Letosky, the decedent owned a four bedroom home.  He rented three bedrooms.  Normally, we expect that the homestead protections only apply to a residence within a municipality if it used used for residential purposes.  Here, the creditor argued that three bedrooms were rented, so 75% of the value of the homestead residence was not protected.  The Second District disagreed, and cited prior decisions that distinguish a home with distinct divisions between residential and commercial use.  In this case, Mr. Anderson shared the common areas with his tenants.  Finding that the arrangement was unlike a duplex-type arrangement where tenant and landlord living areas where segregated, the Second District held that the entire home was exempt homestead.  Had there been a wall, or separated living areas, the case would have turned out differently.  Here's a link to the 2d DCA opinion: 

Anderson v. Precisous Pets and Letosky

Don't Wait for a Crisis to Do Your Estate Planning!

I always seem to get requests for estate planning work in April because many of our clients spend the summers in another state.  Sometimes the call is, "I'm heading back to _______ on Saturday and I need you to update my will before I leave."  In one case, the caller was actually on the way to the airport!  In addition to those types of situations, we now have "social distancing" which makes signing estate planning documents more complicated, especially for clients with health problems.  So why can't we just skip all the formalities and make estate planning documents easy to execute? Well, there are a lot of good reasons.    

Because estate planning documents are so critical, there are strict requirements for signing.  It is not as simple as signing a tax return or a real estate contract. Florida is particularly protective to make sure that when you sign a will, trust, power of attorney, or health care directive, that you have the mental capacity to understand and express your wishes, that you are not being influenced by anyone, and that your true wishes are reflected in the documents.  As a result, two witnesses are required on each document, and some also require a notary acknowledgment.  Failure to follow the procedures can make the documents invalid.  The laws are different in each state, so we discourage our clients from signing Florida estate planning documents in another state.  I’ve been involved in several cases where estate planning documents would have been valid in the place where they were signed, but they were not valid for a Florida resident because the Florida requirements were not followed.

To sign the documents in another state, you would have to have 2 witnesses and a notary who all watch you sign and sign in your presence. Florida does have a remote notary law that allows online notarization, but that does not work for a will, trust or power of attorney.  The online notary process is very involved, and is not as simple as connecting with a notary on Facetime or Zoom.  It requires a Florida notary who is authorized to conduct online notarizations and you must have a high speed internet connection with video and audio capabilities on your computer.

On July 1^st, a new Florida law goes into effect that would allow the online signing of wills, trusts and powers of attorney.  Again, this requires the involvement of a vender authorized to provide online will services and the technology to permanently store the video of the signing and the electronic document in a tamper-proof electronic format.  Two witnesses and an authorized online notary are still required.

Although many banks have not opened their lobbies yet, we’ve heard that most banks will not help with notarizing and witnessing estate planning documents.  They have learned that the signing procedures are so critical, and that litigation over estate planning documents is so common now, that it just is not worth the risk of being pulled into a lawsuit.

If you are able to coordinate two witnesses and a notary, we could provide original documents for you to sign with detailed signing instructions.  Few non-lawyers are familiar with the procedures and signing requirements for estate planning documents.  They are very easy to mess up. If you decide to do that, I would encourage you to resign the documents after you return to Florida.

Appointment to Rules of Judicial Administration Committee

I learned today that the President-Elect of The Florida Bar, Dori Foster-Morales, has appointed me to a three-year term on the Florida Rules of Judicial Administration Committee.  The committee proposes rule amendments to the Florida Supreme Court, either on its own initiative or when directed by the court.  The Rules of Judicial Administration cover court procedures for all practice areas, ranging from procedures for e-filing court documents, to rules governing the service of filed documents. Florida courts today face significant challenges with rapidly changing technology and public health concerns. I expect the assignment to be challenging, demanding, and rewarding. I am grateful for the privilege to be of service. 

I have served a total of four three-year terms on the Florida Probate Rules Committee which proposes changes to the court rules that specifically govern probate and guardianship cases. June 30th marks the end of my second term as chair of the committee.  

IRS Notice 2020-42 Permits Remote Notarization and Witnessing for Qualified Plan Documents

In Notice 2020-42, the IRS has temporarily permitted electronic notarization or witnessing on forms relating to certain elections for qualified retirement plans. State law requirements must be satisfied for a remote notarization. In Florida, we have electronic notarization available as of January 1, 2020. The IRS notice permits signatures "1) witnessed by a notary public in a state that permits remote notarization, or (2) witnessed by a plan representative using certain safeguards." 26 CFR § 1.401(a)-21 requires that the plan representative or notary be physically present. For such documents signed between January 1, 2020 and December 31, 2020, the physical presence requirement can be satisfied through remote witnessing or notarization. Hopefully, by the end of the year, our current health concerns will be a thing of the past.