Attorneys Alex Douglas and Stephanie Cook recently contributed to a Florida Bar Real Property, Probate and Trust Law Section’s (RPPTL) ActionLine article: “As the RPPTL World Turns: The Impact of the Pandemic and Remote/Zoom Hearings, Depositions, and Mediations on Your Trusts and Estates Litigation Practices.” The authors performed a series of interviews with a cross-section of RPPTL Section members who practice primarily Trusts and Estates Litigation. The interviews were designed to learn how their practices have been impacted by the COVID-19 pandemic. The article covered topics including working from home, Zoom hearings, depositions, mediations, business development, technology, and captured the attorney’s post-pandemic thoughts. One thing everyone agreed on was that Zoom was the new normal.
The Real Property, Probate and Trust Law Section’s ActionLine is a quarterly publication containing the latest news on Florida law of concern to RPPTL members and reporting on current Section activities.
The National Firearms Act (NFA) regulates and restricts personal ownership of certain weapons. NFA firearms that are allowable in Florida include machine guns, short-barreled rifles, short-barreled shotguns, grenades, large caliber weapons, and silencers. Such weapons, when registered directly to a Florida resident, may only be used and possessed by that individual resident. As such, if a Florida resident, who owns an NFA weapon, becomes incapacitated at any point, their NFA weapons are subject to confiscation by the government. When a Florida resident who owns NFA weapons passes-away, the weapons will transfer to the beneficiaries under the terms of the deceased owner’s last will and testament by way of a court-supervised probate process. Probate can be costly and time-consuming; and, the executor of the probate estate must apply with the bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) before any NFA weapon transfer can be made to a beneficiary or other transferee.
Transfer planning for NFA weapons should be given careful consideration, as the NFA makes it illegal for a person to knowingly, or having reasonable cause to believe, sell or dispose of a firearm or ammunition to any person who is:
- under indictment for or has been convicted of certain crimes;
- a fugitive from justice;
- an unlawful user or addict of a controlled substance;
- mentally defective or committed to any mental institution;
- an illegal alien;
- one who has been dishonorably discharged from the Armed Forces;
- one who has renounced his or her U.S. citizenship;
- convicted of a misdemeanor crime of domestic violence;
- one who is subject to certain court-issued injunctions.
NFA weapons are clearly not items that can be freely given or sold to just any person.
So, what is a gun trust and who would want one? The person who establishes their gun trust is known as the grantor. The gun trust is the title owner of the NFA weapons and the grantor names a trustee or trustees to manage the trust and the trust owned property. The grantor will typically name him or herself as an initial trustee of the gun trust. When an NFA weapon is titled to a Florida gun trust it can be held and used by more than one person, e.g., a husband, wife, adult children, friends, etc.… The grantors named trustees will all be able to possess and use any weapon owned by the trust. A trustee must be at least eighteen (18) years old and otherwise legally allowed to possess and use a firearm. The grantor may also name beneficiaries who would receive the weapons in the event of the grantor’s death, incapacitation, or other legal disqualification from possessing a firearm. A beneficiary can be a minor. The grantor is free to change any of the trustees and/or beneficiaries throughout his or her lifetime. When the grantor is deceased or if he or she is rendered incapacitated, the NFA weapons that are titled to a Florida gun trust can avoid probate or confiscation and pass to a successor or beneficiaries pursuant to the terms of the trust. Additionally, a Florida gun trust can provide a higher level of privacy as the NFA weapons are titled to the trust and not to individuals. A probate proceeding is not a private affair and is in fact a matter of public record. A trust is a private document that is not required to be made public in Florida and it is often utilized to avoid a court-supervised probate proceeding.
A Florida gun trust can be a very helpful planning tool for those enthusiasts and/or collectors who are interested in arranging for legal use by multiple people and a simple transfer once they have passed, become incapacitated, or are otherwise disqualified from possessing a firearm. Florida gun trusts have several requirements to be legally effective and the NFA has rather strict fines and criminal penalties. The trust should be discussed with and prepared by an attorney with advanced knowledge in firearm trust planning. To learn more about firearm trust planning, contact one of the attorneys on our estate planning teams.
Florida estate plans today are highly detailed regarding what happens when one passes-away or becomes incapacitated. However, most Florida residents who take the time to do this type of detailed planning still fail to address what will happen to a very important family member. Pets are valued family members who are routinely left out of one’s estate plan.
Prior to 2002, Florida law only allowed honorary pet trusts, which sounded nice but did nothing to protect the deceased’s wishes for their furry (or feathered) friends. These honorary trusts were essentially unenforceable by Florida courts. Florida changed this law in 2002; as such, Florida residents are now free to create an enforceable trust for the care and maintenance of their beloved pet(s).
Florida’s pet trust law has three main provisions (F.S. §736.0408):
- The trust must benefit a pet that is alive during the lifetime of the one creating the trust, and the trust only operates until the death of the last surviving pet beneficiary.
- The terms of the trust may be enforced by:
- A person appointed by the creator of the trust;
- If no person was appointed, then by a person appointed by the court.
- Any person that has an interest in the welfare of the pet(s) may request the court to appoint a person to enforce the trust or to remove a person already appointed.
- If the value of the trust exceeds the amount needed to care for the pet(s), except as otherwise provided in the terms of the trust itself, the excess must be distributed to the creator of the trust, if living, otherwise as part of the trust creator’s estate.
The trusted individual(s) or organization(s) that one may choose to be responsible for the health, maintenance, and financial needs of their loyal companion(s) when they are gone is of utmost importance and should be carefully considered. To avoid any conflicts, the person or legal entity that is chosen as a pet care-giver should be a different party than the one who is acting as trustee and administering assets from the trust to the pet caregiver.
Many planners may question their need for a pet trust as they think that their pet will simply be cared for by a friend or relative. However, the main purpose behind estate planning is to account for the unexpected or unknown. Hopes and assumptions never make good replacements for estate plans and can leave beloved pets without a home or proper care.
Florida residents who would like to plan for the care of their pet(s) should decide whether they want to create and fund their pet trust while they are living or if they would like the trust to begin upon their death by way of direction through their own last will and testament or grantor trust.
Florida law at long last provides residents with enforceable means to care for their pet(s) when they are either gone or incapacitated. While the law is unique, it is a great tool to ensure that pets are respected in the manner that their families desire.
If you are interested in learning more about Florida pet trusts please contact our estate planning team.