Stimulus Checks for Deceased Taxpayers?

Here's a link to an interesting article about the recent stimulus payments.  LA Times Article

We heard from one family this week, asking about the stimulus payment that was paid to their deceased loved one.  The stimulus payments are for the 2020 tax year, but the U.S. Treasury used data from the 2019 returns, if filed, and, if not, the 2018 returns. They did what Congress wanted - get the money to Americans as quickly as possible.  What's not clear is how funds paid to deceased taxpayers will be returned.  We'll watch for word on what to do. For now, it would seem prudent not to spend money that is for a taxpayer who died before January 1, 2020.

Here's a link to the actual text of the legislation:
https://irc.bloombergtax.com/public/uscode/doc/irc/section_6428

Like so many other things in our lives right now, this reminds me of a saying I learned during Basic Training at Fort Knox, Kentucky, "Hurry Up and Wait."

On April 10th, The Internal Revenue Service issued Notice 2020-23, which added to the list of filing and payment deadlines extended as a result of the national health care emergency in Notice 2020-18 and 2020-20. The notice includes Forms 1041, 706, 709 and other forms relating to trusts and estates.

Click on the link for the full text of the notice. Notice 2020-23

Please consult with your tax advisor to ensure that you meet all filing and payment deadlines to avoid penalties and interest.

Florida Probate Rules Updated to Recognize Electronic Wills and Notarization

On January 16, 2020, The Florida Supreme Court approved amendments to The Florida Probate Rules.  These were “fast-track” amendments based upon changes to The Florida Statutes during the 2019 legislative session.  For probate and guardianship attorneys, the big change is the recognition of electronic notarization which became effective January 1, 2020 and the recognition of electronic wills, effective July 1, 2020.  Although these statutes reflect rapidly-changing technology, they do require strict procedures to ensure the validity of the notarized document or will, and to ensure the integrity of documents preserved in electronic format.  The new procedures will introduce third-party vendors into the process due to the requirements for preserving electronic copies of wills and certain other estate planning documents, as well as the requirements imposed upon electronic notaries.  While this initially appears to add convenience, time will tell how well these procedures work and how the added technology requirements will affect the overall cost of estate planning for those who utilize the new procedures.

Here’s a link to the rule changes:

https://efactssc-public.flcourts.org/casedocuments/2019/2071/2019-2071_disposition_148503_d29.pdf

The changes are primarily updates to the committee notes following each rule.  These changes are invaluable because the cross-reference each rule with other rules and statutes that need to be considered when applying a particular rule.  The provide a great research tool.

The amendments also recognized that documents, such as wills, could be submitted in electronic format, as long as the original format complied with the laws for electronic notarization and electronic wills.  The electronic document and the video of the signing must be preserved in a tamper-proof format. For wills signed by ink on paper, the original must still be preserved and filed with the clerk upon the death of the person making the will. 

Probate Rules Committee Vulnerable Adult Rule

The Florida Probate Rules Committee was tasked with the creation of forms for Florida's law that protects vulnerable adults from exploitation.  Section 825.1035 now permits an injunction to protect our state’s most vulnerable residents from various types of exploitation.  The statute offers a civil remedy to stop financial or physical abuse by freezing financial accounts and allowing for an injunction to keep the exploiter away from the vulnerable adult.  Although the statute initially provided a form, the Florida Supreme Court asked the rules committees to develop a standard form for use throughout the state. 

The Probate Rules Committee took on the challenge, drafted a rule and considered comments to improve the proposed form.  It appeared that various circuits throughout the state were suggesting or requiring forms that were not the same as the form in the statue.  The Probate Rules Committee received one comment suggesting that some petitions that complied with the form in the statute were being dismissed for not complying with the statute.

The usual rule process was followed - a petition was filed, comments were requested, and then the final version of the new rule was published for final comments. Comments were due by April 15^th.  No comments have been received by the Probate Rules Committee, so it is anticipated that the Supreme Court will enter an order making the proposal final. On occasion, the Florida Supreme will modify a submission from one of the rules committee, so it’s not over until the Florida Supreme Court says so.

Here’s a link to the new Rule 5.920;

https://efactssc-public.flcourts.org/casedocuments/2020/21/2020-21_petition_74875_appendix2drules.pdf

Hopefully the new rule will offer consistency and protection for our vulnerable adults who become victims to those who would prey on the elderly and disabled.

Amendment to Rule 2.205, Rules of Judicial Administration

The Florida Supreme Court, on its own motion, updated the Rules of Judicial Administration to better react to unexpected circumstances such as those facing the courts right now.  The courts, from the Florida Supreme Court, down to the local circuit courts have done an amazing job.  As Floridians, we're used to preparing for hurricanes, but none of us have experienced the changes that have occurred over the past few months.  Our judges are certainly doing their part to get us through this. They, along with their staff and all who support them in their work, are quietly getting the job done. 

The amendment inserts a new subdivision  (a)(2)(B)(v) into Rule 2.205 and renumbers the subsequent subdivisions: 

(v) the power, upon request of the chief judge of any circuit or district, or sua sponte, in the event of a public health emergency that requires mitigation of the effects of the emergency on the courts and court participants, to enter such order or orders as may be appropriate: to suspend, extend, toll, or otherwise change time deadlines or standards, including, without limitation, those affecting speedy trial procedures in criminal and juvenile proceedings; suspend the application of or modify other requirements or limitations imposed by rules of procedure, court orders, and opinions, including, without limitation, those governing the use of communication equipment and proceedings conducted by remote electronic means; and authorize temporary implementation of procedures and other measures, including, without limitation, the suspension or continuation of civil and criminal jury trials and grand jury proceedings, which procedures or measures may be inconsistent with applicable requirements, to address the emergency situation or public necessity.

The full text of the opinion can be found here: 

https://efactssc-public.flcourts.org/casedocuments/2020/346/2020-346_disposition_149072_d29.pdf

The New Normal?

It is encouraging to see Americans pull together during difficult times.  That's part of the American character. Despite our shortcomings, we are a nation of good people. Our hearts go out to those affected by the pandemic and those who are sacrificing more than ever to serve others. 

As my colleagues and I try to work through many new challenges, we're adapting with new ways to serve our clients.  Instead of in-person meetings, telephone conferences and email communication help bridge the new gap between client and professional.  For live signings, constant sanitizing and wearing masks reduce the risks of in-person meetings where witnessing and notarizing are required. 

Electronic notarization became a legal reality in Florida in January, but the additional procedures involved with remote online notarization come with a cost - it is not free. Online will and trust executions will be possible under Florida law on July 1st, but it will also come with a price and additional complications. The Florida Bar's Real Property, Probate and Trust Law Section was vigilant as the Florida legislation was considered, not because they wanted to stop progress, but because they wanted to ensure protections for Floridians who elect those methods of signing crucial planning documents.  

So... is this the "new normal?"  While we're adapting for now, there is nothing to replace the interaction of an attorney and client during an in-person meeting. Estate planning, or the administration of an estate after the death of a loved one, is an emotional process.  The professional needs to understand how the client is feeling about personal and sensitive issues, much of which focuses around unpleasant events in life: the loss of a loved one, the declining capacity of a loved one (or our self), prolonged illness, and our own death. Despite all of the advancements in technology, human interaction remains critical. This is especially true for older Americans who did not grow up with modern technology.  

Americans are great at adapting to new challenges, and each generation brings a new perspective.  While progress is inevitable, are online communications, and even artificial technology, better than a human planner?  I've found over the past few weeks that a client communication can be based upon a misunderstanding or lack of information. In reading an email, it is difficult to know where the client is coming from.  Why are they worried about a particular issue?  Why did they request something that doesn't fit within the normal range of planning options? What happened in their life that made them worry? I apply my experience and training to the problem presented during an office conference.  It's tougher to do with an email.  Quality communication is essential.  It often takes more time to review and reply to an email than to speak with the client in person or on the phone. 

In some ways, the current pandemic will change our lives for ever.  The 9-11 tragedy and the recent mass shootings brought new security procedures to schools, airports and courthouses. We're getting used to those and understand the reasons behind the changes. They still bring additional expenses and inconvenience.  My take-away is that I'm fortunate to do what I do and I will value my interactions with clients more than ever, especially when they are face to face meetings.