Probate Section Report
Larry E. Ciesla

The probate section continues to meet on the second Wednesday of each month throughout the year. Many thanks to Steve Graves and Judy Paul for steering the November meeting in my absence. Following are various matters discussed during the last three meetings. Caridad (Cary) Gonzalez has returned to open an office in Gainesville (as well as a satellite office in Marion County) following a hiatus spent caring for elderly family members in South Florida. The experience has motivated Cary to make elder law a substantial part of her new practice. Cary has several years’ prior experience in Gainesville working with the state; the Clayton firm; and the Schackow firm. We welcome Cary and wish her the best of luck in the future.

The members of the probate section had an opportunity to meet Ryan Huslander at the September meeting. Ryan is a recent law school graduate (who is Judge Hulslander’s son) working as a courthouse staff attorney handling Alachua County guardianships as well as probates and guardianships in Baker, Bradford and Union Counties. Early reports say Ryan has hit the ground running and has quickly become a valued asset to the judges with whom he is working. Welcome Ryan from the probate section. The section also wishes to recognize and welcome Michael Heider, a new lawyer working with Sam Boone.

Several real estate issues were discussed at the September meeting. According to a recent directive from Attorneys’ Insurance Fund, Inc., effective October 1, 2007, House Bill 111 changed some definitions regarding title services such that lawyers should no longer charge a separate fee for “title examination” (line 1103) on the HUD-1 Settlement Statement. Title examination is now included as a part of the main fee for title insurance. Likewise for line 1105 – Document Preparation and line 1106 – Notary Fees. Marvin Bingham advised that both First American and Attorneys’ Title will not insure a title involving a LadyBird Deed where there is an IRS lien against a remainder beneficiary, even though the grantor is still alive and the remainder beneficiary has no vested interest. Marvin also advised that there is an exemption in the sales tax law for leases on agricultural lands.

The October meeting began with a discussion of the current handling of the DR-312 Nontaxable Affidavit for estates. This form has technically been eliminated as of January 1, 2005, when Florida discontinued the Florida estate tax (a/k/a sponge tax). Sam Boone and Richard White indicated they both intentionally still file the DR-312 form because it remains useful for title purposes (by establishing that the estate is not subject to the federal estate tax). Attorney’s Title, for example, currently requires either a federal estate tax closing letter or an affidavit that the estate was not taxable.

For those members with spouses working in their offices, Sam Boone pointed out that Florida law prohibits a notary from notarizing the signature of a spouse. Therefore, for will signings, the lawyer and spouse should both be witnesses and someone else should be the notary. A few section members have joined the so-called “LINDAS List” with the Clerk of Court, which allows internet access to the images of documents in cases in which the lawyer is counsel of record. It is easy to do (one-time set-up fee; obtain password) and my experience is that it works well; no glitches.

The issue of the appropriate length for the “cooling off” period before signing a prenuptial agreement was discussed in the November meeting. The consensus was that at least 30 days is preferable. Anything less runs the danger of being too close to the short time-frames (1 week or less) which the appellate courts have decided is too little time and is grounds to invalidate the agreement. Another issue discussed concerns whether to put homestead real estate into a testamentary trust where the testator and/or testatrix have one or more children under the age of 18.

Although a court would certainly treat the homestead as not being in the trust in the event of death of the parents prior to the youngest child reaching 18, the consensus was that this should not prevent the lawyer from putting the homestead in the trust, as it is more probable that the children will have all reached age 18 before the death of the parents, in which case the estate plan will work as intended. Furthermore, in the event of the former, nothing has been lost, as the outcome will be the same regardless of whether the homestead has or has not been put in the trust.

The probate section will meet again on December 12 and on January 9. All interested practitioners are invited to attend.

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