Estate planner ’ s radar check for fall 2021
By COLTON CASTRO , Esq . Williams Parker
Over the past year , estate planners have been rightfully focused on the glaring federal and national issues affecting our practice . The Biden administration released a Green Book discussing changes to the federal capital gains tax and threatening the loss of the Section 1014 adjustment to basis , as a global pandemic continues to impact our clients and the logistics of our daily work . And with the year ’ s end fast approaching , certain clients are scrambling to ink their plans before federal legislation is passed ( hopefully , not retroactively ) that could interfere with their intent .
However , amidst such commanding issues , the Florida legislature has been busy enacting a number of impactful updates and additions to our state laws that all estate planners must keep on their radar . To assist my fellow estate planners , I am providing a very brief “ nutshell ” of some of the more easily missed or meaningful legal updates that should be pinging on every Florida estate planner ’ s radar .
Notary “ Boxes ” (§ 732.503 ( 1 )
Colton Castro , Esq . Williams Parker
ESTATE PLANNING
As you may be aware , effective January 1 , 2020 , legislation was passed authorizing the remote , online notarization and witnessing of electronic documents through the use of certain audiovideo communication technology . With this legislation , the jurat of notarial certificates now requires an indication as to whether the signer appeared before the notary public by means of physical presence or audio-video communication technology . An amendment was recently passed that added boxes for the notary public to check in order to satisfy the requirement that the notary state whether the signer is personally known or has produced identification . Moreover , additional boxes were added to the self-proving affidavit of a last will and testament to account for the fact that witnesses may appear remotely .
Slayer / Abuser Statute (§ 732.8031 and § 736.1104 ( 3 ))
Similar to Florida ’ s “ Slayer Statute ”, Florida law now provides a rebuttable presumption that a person convicted of abuse , neglect , exploitation or aggravated manslaughter of a decedent be treated as predeceased .
Attorney Fee Disclosure to Fiduciary (§ 733.6171 and § 736.1007 )
Similar to Florida Statutes Sections 733.617 ( 8 ) and 736.0708 ( 4 ), which require drafting ( or supervising ) attorneys serving in fiduciary roles to obtain informed written consent from their clients in order to receive compensation for serving in such role , Florida law now requires similar disclosures be made and consent obtained by any attorney wishing to use the statutory fee schedule when representing a fiduciary .
Florida Uniform Directed Trust Act ( FUDTA ) ( Chapter 736 )
FUDTA provides for clarification regarding the duties and powers of a “ trust director ” and the relationship of the “ trust director ” to the “ trustee .” While a full analysis is beyond the scope of this article , some of the highlights are that ( i ) a “ trust director ” is subject to the same fiduciary duties as a trustee ; ( ii ) “ trust directors ” are entitled to the same protections as a trustee for items disclosed in a trust disclosure document , which can be provided by the “ trust director ,”; ( iii ) a holder of a power of appointment is not a “ trust director ,”; ( iv ) a directed trustee must take reasonable action to comply with a “ trust director ’ s ” power to direct , unless doing so would be willful misconduct ; and ( v ) while each trustee and “ trust director ” has a duty to provide information to the other to the extent such relates to their respective powers and duties , they have no duty to monitor one another .
The “ Gordon Fix ” (§ 732.507 and § 736.1105 )
As the reader may know , the Florida 2d DCA in Gordon v . Fishman ( 253 So . 3d 1218 , 2d DCA 2018 ) held that the prior version of Florida Statutes Section 732.507 ( 2 ) did not apply in treating an ex-spouse as predeceased when the deceased testator ’ s will was executed prior to marriage . The court reasoned that the statute only applied to a will executed during marriage to treat the ex-spouse as having predeceased . Legislation has now been passed providing that whether executed before or during marriage , any provision of a will or revocable trust affecting a former spouse is void , and such former spouse is presumed as predeceased . However , if there is a clear intent to provide for such ex-spouse , or court judgment requires otherwise , or if such estate planning documents are executed after divorce , then the statute will not invalidate such provisions providing for the ex-spouse .
Revocable Trusts and Homestead (§ 736.1109 )
A number of statutory updates were passed affecting Florida Homestead , including provisions confirming that homestead titled in a “ community property trust ” ( discussed below ) retains its homestead protections . However , one of the more interesting updates is found in the cited statute that confirms by statute ( i ) the homestead devise restrictions apply to homestead property held in a revocable trust , and ( ii ) that inurement of creditor protection to heirs of homestead property also applies to homestead property held in a revocable trust . Please note that this statute does not specifically address the issue of homestead qualifying for the property tax exemption if held in a revocable trust .
Community Property Trust Act ( Chapter 736 )
In short , the Community Property See ESTATE , Page 19
THE DOCKET · OCTOBER 2021 11