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Estate Planning in Florida – Preparing for the Future

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Estate planning is the practice of officially and legally arranging what will happen to an individual’s estate (the person’s net worth) during their life and upon their passing. Estate planning differs slightly from a will, as it can apply to extra items that are not addressed by the later – for example bank accounts and retirement plans. This process also plans for incapacity, assists in the clarity and certainty over future probate procedure and finally endeavors to ensure the amount of the individual’s estate is fully maximized. This is done by attempting to reduce taxes and other such expenses; in some situations a trust may be used to do this.

One of the overall aims of estate planning is to help lessen the amount of decisions in later life, avoiding undue stress in what can possibly be an already emotionally demanding situation. It basically sets out a route for your family to follow, dealing with not only financial disposition, but also with end of life and care decisions. After an individual’s passing all estate must go through a probate period, which is a time during which the court deals with all aspects of the estate, assets and distribution. By having a thorough plan any discrepancies that could end with your family going through a lengthy probate period can be avoided. One thing Florida does practice is summary administrations, which mean that if a person’s estate is valued as less than $75,000, an heir may be able to cut out the probate procedure altogether.

It is important to note that estate planning laws do vary state to state. This is why it is essential to get yours evaluated under Florida law in order to ensure its validity if, for instance, you have recently moved into the area. The same rule applies to former residents who had their estate planning organized in Florida – the document will need to be examined by a legal expert in their new state so as to guarantee its legitimacy.

There are many paths to take when it comes to estate planning, and they are based on the person’s individual assets, unique situation and goals. It is best to discuss estate planning with a legal representative who is an expert in this type of law to make sure you and your family will have a thorough and detailed plan, thus avoiding any additional emotional and financial stress in the future.

Different Types of Wills for Florida Residents

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There are many different types of will, however only some are considered legally sound in the state of Florida. Your will is incredibly important, and one which is invalid can cause your family serious issues in the future. Anyone who is over the age of 18 and is compos mentis can make a will, but there are certain requirements that must be met in order for them to be lawfully recognized.

In order for a will to be considered valid, it must meet the following criteria:

  • It has to be in writing
  • It has to be signed by the testator as the end of the will, however some practice signing/initialing each page.
  • It has to be in the presence of two witnesses. The witnesses must understand what the testator is doing and be able to observe the testator’s signature. There is no age constraint for the witnesses and they do not have to read the will.
  • The testator has to sign the will in front of the witnesses, or make it known that he/she has signed the will before. The witnesses must sign after the testator and in front of one another.

Different Types of Wills

  • Attested Will: This is a will that is written and signed by a testator, and is witnessed by two others. This is the most common type of recognized will in Florida, and can be:
  1. Simple: Which leaves property to a spouse and has only a few bequests
  2. Complex: A more detailed document with numerous bequests, some of which may have certain conditions
  3. Pour-Over: Similar to a simple will, it also details your request that property not in a trust will be put into a trust in the event of your death.
  • Military Will: This will is legal on a federal basis, and is executed by the eligible person as stated. They are similar to an attested will, and are thus legally recognized in the state.
  • Oral Will: This will is not in writing; rather it is orally given to another individual. This is not considered valid in Florida.
  • Holographic Will: This will is handwritten and signed by a testator, much as the attested. However it is not signed by witnesses and is therefore not recognized by the state.
  • Out-Of-State-Will: This can be judged as valid, given the correct conditions. The will may be considered legally valid if it is:
  1. In writing
  2. Valid in the jurisdiction in which it was completed

This type of will can apply even if said will does not comply with Florida’s requirements.

A will can still be contested for many reasons such as defective execution, forgery, undue influence and duress. If the will is contested, then the onus is on the party presenting the will to certify its legality. If the will is established as being legally correct, then it is the other parties’ responsibility to prove otherwise.

Burial Arrangements in Florida

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Until 2005, Florida Law was relatively unclear with regards to burial arrangement details. As a response to this, the state has since attempted to clear up any issues by creating expansive and thorough legislation. The specifics of this law can be found in further detail in the Florida Statute 497.005, which comprehensively addresses all legal aspects of the burial process, amending Florida statutes Ch.470 and Ch. 497.

The statute’s purpose was in part to avoid legal issues with regards to the burial arrangements of an individual. Before this law came into play, when people had passed away and had neglected to record their burial wishes, there was often conflict as to what these may have been. Different parties would want different arrangements for the deceased: burial site, cremation, organ donation etc. The Anna Nicole Smith case (Arthur v. Milstein) is a famous example, with the burial not being undertaken until over a month after her death due to a dispute with family members over where she should be laid to rest. Such events drag out longer than they should and cause unnecessary pain to all those involved; as such the state of Florida passed the legislation to avoid such instances in the future.

This law now states that a “legally authorized person” will be in control of the deceased, and provides a list that details whom that person may be, and in which order:

  • The deceased, who may have organized a burial plan or has left instruction in their will as to their wishes
  • The surviving spouse, unless said spouse committed an act which resulted or contributed to the deceased death
  • A son or daughter who is over the age of 18
  • A parent
  • A sibling over the age of 18
  • A grandchild over the age of 18
  • A grandparent
  • Next of kin

If no family member is available, the term can also apply to the deceased’s guardian, attorney, personal representative, a friend not listed but who is willing to undertake the responsibility, health surrogate or other official (see the statute for further details). If an individual is part of the military, they can name a person in the Record of Emergency Data.

Even with the above, there can still be disputes in court regarding burial arrangements. Some have argued this statute goes against the Florida Probate Code, which treats spouses and children as equal parties when it comes to an intestate decedent (a person without a will). In this case, the court has the final decision as to who has responsibly. In other instances where parties are in dispute, the court has also taken the deceased oral statements into consideration with sufficient evidence, even if their will contradicts this, as the deceased should still have priority as far as is possible.

Easements in Florida

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In its most basic legal definition, an easement is the right of use over another party’s property. This use is permitted in several different situations under Florida law, and can be implemented by law or be formulated by agreement between the two parties. An example of an easement would be allowing one party access to land for the purpose of entering/exiting their own property.

As easements are directly concerned with land, under Florida law they are required to be in writing; there are known as express easements. However there are instances where easement can be implied. This notion can be applied by the courts to property if a) there was previously a vague or unclear written agreement, or b) there is a necessity for the easement, such as if there is no other manner in which one can access their property.

One thing to note is that easements are not completely permanent; for example they may be discontinued if an alternate route is constructed and thus makes the purpose of the easement unnecessary.  Another important thing for landowners to be aware of is that when created, easements only apply to the specific purpose as expressed.  Using the easement in any other manner than that which is outlined in the original agreement is not permitted. If there is a dispute regarding incorrect usage of a prearranged easement, legal action may be taken.

Regarding the party which uses the easement, if the agreed upon route is blocked than the individual may legally seek an alternate way in order to reach their destination, thus going further onto the property. If the route continues to be blocked, then the landowner can be ordered to remove said item(s). Those who hold the easements are in charge of the upkeep and maintenance of the access.

Easement disputes can also be related to property boundary lines, such as when a homeowner installs a new fence or wall which oversteps their own land and goes into a neighbor’s.  In such cases, the items may be ordered to be removed or the individual may be charged.

Florida Contract Disputes

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The purpose of contracts is to legally set out the details of an agreement between two parties. This process, although meant to clarify and define the requirements, can frequently create a dispute with regards to the terms as previously agreed. In this case legal representation is consulted on behalf of both parties, who try to reach a resolution.

In legal terms, a contact is any written or spoken agreement between two or more parties. It can be regarding any number of things: land, employment, business, sales, tenancy etc. The contract, if created correctly, should be legally binding.  Contracts involve a process of offer, acceptance, consideration, intention to be legally bound and finally certainty of terms. All parties must be of sound mind to enter the contract; for instance intoxication or those suffering from mental disorders are not considered able. Oral contracts can still be legally binding; however it is always preferable to have such agreements in writing and signed – so as to supply courts with clear evidence of terms if any issues do arise.

When it comes to contractual disputes, there are many reasons why parties may get into a disagreement. If a contract is not thorough and does not contain enough detail, then previously unforeseen issues may cause ramifications. This is why it is integral a business has expert contractual representation from the start.  Other issues commonly emerge when one party breaks the terms as explicitly set out in the contract, such as in the recent case of Sanford Burnham Prebys and the state of Florida. The state had clearly stated numerous, clear conditions in the contract that were not met – one of which was that the company had to create many new jobs. As the organization has not provided these and is considering leaving its current location (it was required to run on the site for at least 20 years) the state has demanded SBP pays $77.5 million dollars back.

When a dispute such as the above happens there are a few options for a party to consider, and they should seek a legal expert who can advise them based on the specifics of their case. In some instances, a lawyer may recommend to settle out of court through negotiation, settlement, arbitration and mediation. If these are not possible or desirable, then the dispute must be resolved in court. For a breach of contract, damages may be awarded or an injunction may be attained. Remember to always seek an expert who has a great degree of experience within this field – contact law is extremely complicated and you should always choose the best representation in order to ensure your success.

IEP Laws in Florida

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The Individual Educational Plan (IEP) is a requirement for all disabled students who are eligible for Exceptional Student Education (ESE). The IEP is the written plan and process that informs the students, parents, teachers and all other education staff which types of ESE assistances will be provided.

A child is not eligible to receive ESE until the IEP is in place – and until the parents have given permission for the services and placement.  The purpose of the IEP is to ensure the needs of each individual child are met. It will detail objectives, how best the student works, how their disability affects their learning process, and helps in choosing placement for the student in the least restrictive education environment.

Eligibility for ESE

Before a student it able to receive ESE and have their IEP program in place, the school is required to determine whether the child’s disability will have a negative effect on their educational development.  A full evaluation will be conducted and the school will meet with the parents to analyze and assess if special education services need to be introduced. If this is the case, this is when the IEP team is formed.

IEP Meetings

The first IEP is developed during the initial meeting, with a specific IEP team constructed by the school. For parents in Florida there are a number of important aspects to consider, whether this is the initial meeting or any of the following ones:

  • The IEP is unique to their child
  • There can only be one IEP running at a time for each child
  • If a parents chooses not to attend, the meeting may be held without them
  • Parents will receive a copy of the IEP, even if they do not participate
  • The IEP details the services the child will receive, and will have a beginning and end date
  • If the parent does not agree with the evaluation or recommendation, they have the right to request an Independent Education Evaluation at no cost. Parents can write “not in agreement” by their signature.
  • If a school wishes to invite individuals from other organizations outside of the school district, they must gain permission from the parent. The parent may also bring someone if they wish – it is usually recommended to let the school know, but the school may not pressure the parent into coming alone
  • When a parent signs the IEP, this does not mean they have given their permission for the program to begin –this is a different form.
  • If the parent feels rushed, they may request a continuation meeting. They do not have to sign the IEP there and then.
  • The school must gain informed consent from the parent if they believe it best for the child to go into a specialized ESE school, or if the child should not be taking the regular curriculum. If a parent does not consent, then there will be a due process hearing.

Additionally, it should be noted that:

  • The IEP must be reviewed and revised at the very least annually
  • Parents are an important part of the IEP team, and must be invited to all IEP meetings
  • Parents are to be informed how much the budget is for the ESE for their school district at the IEP meeting
  • A child may be requested to be exempt from certain examinations
  • Parents have the right to have their own professionals collaborate with schools

Further Regulations

Legally, the laws of the IEP are greatly linked to the Individual with Disabilities Education Act (IDEA), which is found in three federal statutes. If there is a conflict between the state of Florida law and federal, federal must be followed.

Florida Employment and Background Checks

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Background checks are becoming more and more common in America, and Florida is no exception. It is estimated that possibly upwards of ninety percent of employers now perform these checks; making it even harder for those with a record in this already tough job market.

What Rights do Applicants Have?

Florida law does not provide much protection for its applicants, but there are certain systems in place that give them some rights. The first is the Fair Credit Reporting Act (FCRA). This illustrates procedures that are required when it comes to employers hiring a third party organization to run a check and produce a report. This may include the individual’s credit history and criminal records. The FCRA states that all employers in this situation must:

  • Attain the applicants written consent before the check is run
  • Inform the applicant if they are not being employed based on the content of the report
  • Give the applicant a copy of the report

The applicant’s rights are that:

  • They may dispute incorrect information
  • They have a right to know what is on their file
  • They can seek damages if the FCRA is breached
  • Military personal and victims of identity theft also have additional rights

The organizations that provide these reports and checks also have certain guidelines they must adhere to.  These include:

  • Not reporting any outdated information (including arrest records over seven years old – salary dependent)
  • Correction/deletion of incorrect or unverifiable information
  • An investigation if an error occurs

Conviction records may be included, regardless of how long ago they occurred.

The second structure in place is the Civil Rights Act of 1964, which protects all applicants from any type of discrimination in the workplace; this includes the hiring process. For example, because arrest and conviction records for African Americans and Latinos are generally higher, an employer which decides to disqualify anyone with a record may be in violation of the Civil Rights Act. The Equal Employment Opportunity Commission has provided guidelines to advise employers in this area. They recommend considering the following:

  • How serious is the offense?
  • How recent is it?
  • What is the nature of the employment?

The organization has also advised employers on giving applicants the chance to explain the situation and provide any information to show that they should not be disqualified from the position due to this offense.

Additionally under Florida Law, state and local agencies cannot deny anyone a license, certificate or permit on the basis of a conviction unless it was a felony charge, a first-degree misdemeanor, or it is related to the role. However, there are different regulations when it comes to certain drug felonies.

Florida Statute of Frauds

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The Statute of Frauds, in its simplest definition, cites that certain varieties of contracts must be made in writing. All parties involved must sign the document(s) and there must be adequate content to provide evidence for the contract to be valid. For example, if you are selling a property the contract must have within it all essential terms of the transaction and sale, and must be signed by both you and the buyer. The purpose of this is to ensure that no fraudulent claims are brought to court based on oral discussion, which is difficult to prove.

Traditionally, Statute of Frauds are applicable in the following situations:

  • Marriage (including prenuptial contracts)
  • Contracts not able to be performed within the space of one year
  • Transfer of land
  • Executor of Will
  • Sales of more than $500
  • Paying someone else debt

What is a Contract?

A contract is any agreement entered into by two or more parties and can concern any number of things. It is enforceable by civil law and is usually required to be in writing, so as to protect both parties if any dispute arises.  Most usually, a contract requires offer, acceptance, consideration and mutual intent to be valid. A contract may be found invalid if it is entered into by those who are not considered of sound mind or have the capacity to agree – for example those who are intoxicated, are minors or those who suffer from mental afflictions.

Statute of Frauds in Florida

Similarly to most states, Florida’s statute of Frauds requires that certain contracts and invalid unless they are in writing and signed.  This includes sales of goods over $500 and personal property over $5000, promises to pay debt of another and land conveyances. It no longer includes sales of securities.

Oral Contracts

Oral contracts are a more complex issue when it comes to Statute of Frauds. In the past, the Florida court has ruled that oral agreements used for the purchase of property have been valid and enforced in certain circumstances, for example if the purchasing party has been given the property and has paid part of the agreed price, or has made noted improvements. This is not typical for all cases, and is dependent on the individual circumstance.

A recent ruling in the Florida Supreme Court further clarified the states position on oral contracts, in Browning V Poirier (2015). In this case, a couple had agreed to split lottery winnings in 1993. This agreement was to last for as long as they were a couple. Fourteen years later in 2007 the girlfriend won $1 million, and allegedly refused to give her partner half.  The boyfriend filed suit in breach of the original oral contract. The trial ended in favor of the girlfriend. The case was then taken to the Court of Appeal, whereupon the original trial’s decision was upheld, with the boyfriend admitting that when they entered into the agreement, they intended on being together for more than a year – the DCA referring to the intention of each parties at the making of the contract.

The case was then taken to the Supreme Court, whereupon they disagreed with the previous rulings. They held that since the contract terms did not specifically state a time period and that it could have been performed within one year, the fact it lasted longer was not relevant. The Supreme Court ruled that if a contract theoretically has the capability of being performed within a year, then the Statute of Frauds is inapplicable and thus the oral contract enforceable.

Duplicate Exams in Hillsborough County

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Testing is an extremely difficult and stressful process for all students. It is a necessary part of the education practice, and although some disagree with its accuracy, it certainly has is merits. However, do schools put too much pressure on its pupils with their constant examination, especially when students are made to take duplicate exams? In Hillsborough County, a recent decision has been made to respond to this issue head-on, by attempting to remove duplicate testing across all of its high schools.

The elimination of these duplicate exams, which is to be implemented this spring, was created in order to lessen the amount of stress on both students and teachers. Its objectives are to streamline the testing process for all high schools in the area. This was backed by previous feedback from students, teachers, principals and assessment professionals, and comes after a similar restructuring of Elementary examination process. The movement is supported by the governments ESSA (Every Student Succeeds Act) which has been researching and implementing methods that “reduce redundant testing”.

The restructure also follows a recent statute passed in the state of Florida that stated a school district should have a maximum of five percent of the total amount of school hours spent on examination; whether these are statewide or local assessments. This in turn gave the schools and organizations even more of a motivation to consolidate testing.

Findings:

It was found that many AP (Advanced Placement) and IB (International Baccalaureate) tests were in fact being duplicated. This meant that these courses had their own standardized tests, but the students were also made to take additional exams that covered exactly the same material – a headache for students and teachers alike. These were required by the school district, and were mainly used as a way to evaluate the teachers. It then transpired that the AP and IB tests, in combination with the SATs, ACT and end-of-course exams, were easily a sufficient indicator of student’s progress and were equally as proficient at evaluating the staff.

The same method for the calculation of final grades is currently used by certain senior students who have gained exemptions from district examinations. These students avoid having to take duplicate exams by earning respectable grades and having a high attendance – with only two grades being used to create their final mark. This exact technique will be used by all those AP and IB students in the future, making their – and their teacher’s – workload and stress lightened.

Disability Rights for Florida Students

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Students with disabilities are welcomed at all schools and educational communities within Florida, and the department of education has created a system to provide any assistance students need to guarantee they get the best out of the their schooling. Since 2013, there have been extra measures put in place to ensure their rights are protected; this was named the Exceptional Student Education Law.

The Exceptional Student Education law was brought in four years ago to build on the already existing structure that safeguarded and promoted rights for all students with disabilities. It carried in it five tenants were designed to assist both families and students.

The Choice to Bring Support to Meetings

This section of the law allows the parent to bring another adult of their choosing to meetings at school about their child. It is completely their choice whom they decide to bring for support, and the school should not pressure the parents into coming alone. If the parent feels at all discouraged, they are asked to fill out a document stating this.

Decisions about your Child’s IEP

IEP stands for Individual Educational Plan; it is a unique document that every child with disabilities has to have and is reviewed regularly. It basically denotes how best a student learns and what areas they may need more assistance in. It informs decisions about the pupil’s education, the most important two being the following:

  • Whether the student will be taught a curriculum which is not a part of the regular diploma/testing system
  • Whether the student should be attending an ESE school that specializes in and is only attended by individuals with disabilities.

With the new law in place, these important decisions can only be made with the parent’s approval. The IEP team must provide the parent with information regarding the advantages/disadvantages of the above two options. If a parent contests the decision of the IEP team, a hearing will take place. This is an annual process, as the IEP has to be reviewed regularly.

A Right to Information

At the primary IEP meeting at the start of the year, parents will be informed of the amount of money each level of the ESE is receiving for their district.

Professional Collaboration

This means parents have the right to have their private professionals collaborate, work with and observe the child in a school setting. This could be a behavior analyst, social worker, speech therapist etc. The school and parents must agree upon the times beforehand, and this does not prevent the school in question from providing these services also. This law was put in place to ensure ease of collaboration between different parties, as it is best for the student’s development.

Exemption From Testing

A request may be put in to allow students to be exempt from certain testing.  This is if the testing is believed not to test ability, but assess disability. If a parent contests the decision, they may appeal at a hearing.

These five items are in addition to a larger system that is designed to ensure all disabled students have sufficient rights and opportunity based on their own individual needs.