Florida Firearms Law 101: Real issues taught by  Florida attorneys

 

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Florida Firearms Law 101

Please help spread the word about or new Florida Firearms Law Class.   Below is a description of the class

This class is designed for those who have their concealed carry permits and desire further training in legal compliance. Presented by licensed Florida attorneys who practice extensively in Firearms issues, each session wraps up with a Q&A session where the participants are permitted to ask the attorney any questions they may have related to firearms law in Florida.

This is an invaluable class to help you protect your legal and financial interests that accompany the responsibility associated with being a law-abiding firearms owner.

The Florida Firearms Attorneys will discuss:

  1. Federal and State Prohibitions
  2. Laws relating to Concealed and Open Carry
  3. Common Mistakes Florida CWP holders make and how to avoid them
  4. Statewide Firearm Preemption
  5. Return of Firearms after Seizure
  6. Constitutional Issues
  7. The Law of Self-Defense and Stand Your Ground in Florida
  8. Other Current Issues including Gun Trusts and 41F
  9. PLUS: There will be a Q&A with licensed attorneys who focus in litigating firearms law matters and are actively involved in Firearms litigation around the state.

To register or find out more follow this link

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If you are unable to attend on this date and would like to be notified of future classes, please let us know.

I just finished my new book Protect your IRA : Avoid the 5 Common Mistakes!

Postcard_ProtectYourIRA-DavidGoldman_Page_1

Here is the Table of Contents

The 3 Reasons Most People Experience Confusion with Their IRAs
Don’t Just Focus on the Taxes
Avoid the 5 Common Mistakes

Common Mistake #1: Trying to Avoid Income Taxes Now
Common Mistake #2: Incurring Unexpected Excise Taxes
Common Mistake #3: Losing your IRA to Long-Term Care Costs
Common Mistake #4: Paying Income and Estate Tax
Common Mistake #5: Naming Your Beneficiaries as Beneficiary

Putting It All Together
Creating Your Protection Plan

If you would like a copy, please visit our main Florida Estate Planning and Asset Protection website and request a copy using the contact form.

Florida Homestead for Non U.S. Citizens is possible for two types of Florida Homestead exemptions.

The first homestead exemption is tax based.

If you live in your home  and you or your spouse or dependent child is a permanent resident of the state of Florida on January 1s you are entitled to file for a reduction in property taxes.

The second homestead exemption is a protection from creditors

In addition to the tax reduction, Florida’s constitution also provides protection of a homestead from most creditors  to protect the family home from improper transfers or disinheritance.

Florida courts have held that the “permanent residence” requirement means that individuals who do not possess the legal right to permanently reside in Florida cannot establish that a Florida property is their permanent residence. While U.S. citizenship is not a requirement, foreign nationals living in the  Florida on temporary nonimmigrant visas or unlawfully, cannot take advantage of the homestead exemptions.  Only a permanent resident who is lawfully living in Florida can file for the homestead protection and property tax reductions

The Florida Supreme Court expanded the definition of who is eligible to be considered a permanent resident for homestead purposes to include those whose spouse or children or other dependents living in the home  have the right to live in the United States permanently.

This case was about a couple from Honduras that owned a house in South Florida and were in the United States under an  investor visa program. Because the visa was a temporary non-immigrant visa, the couple did not have the right to reside permanently in the United States and therefore could not receive the homestead exemption. However, the couple had three minor children who were all U.S. citizens. The Supreme Court held that because the children could lawfully reside permanently in the United States, the parents were entitled to receive the homestead exemption.

Asset protection is an important part of an estate plan. It is important to understand what what assets are at risk, and how to limit your risk to creditors from potential liability.  Florida’s homestead protection can be a valuable part of an estate plan.   Florida is one of a few states which permit the home to be exempt from creditors including Medicaid Planning.  If you would like to review your estate plan or create an estate plan that provides asset protection from the liability of your actions, your spouse, or your children, contact a Jacksonville estate planning lawyer who includes asset protection planning.

The Fourth District Court of Appeals ruled this month that personal representatives of estates are no longer allowed to deduct attorney’s fees from a spouse’s elective share when litigating claims against the spouse’s stake in the inheritance.  This holding of this case means that a spouse’s inheritance may now be much larger due to avoiding attorney’s costly fees.

So what exactly is an elective share in Florida?  An elective share is a term that describes the portion of an estate that the surviving spouse of the deceased may claim through intestate succession or in place of what the spouse was left in the decedent’s will.  Florida passed this law to ensure that no surviving spouse could be left with nothing.  In Florida, a spouse is entitled to an amount equal to 30 percent of the elective estate.

Property that can be included in an elective share includes all property subject to estate administration in any state.  This can include: joint bank accounts, Totten trusts, property held in joint tenancy, revocable trusts, life insurance policies, pensions and retirement plans, and other property passing directly to a surviving spouse.

The issue before the Court in the Estate of Konstantinos Boulis v. Efrosini Boulis was whether the personal representative of an estate may deduct a proportionate amount for the fees charged by the representative’s attorneys to litigate estate claims.  The district court felt the representatives should be able deduct a portion of the attorney’s fees from the elective share, which would mean the surviving spouse in this case would actually receive an amount that was less than the 30 percent required by Florida Statutes.  In the previous cases leading to this appeal the decedent had died and left nothing to his estranged spouse.  The decedent had cut out his wife from his will entirely by leaving the majority of his estate to his two sons through a trust.  The wife was not given an adequate amount of her late husband’s estate, and thus she was entitled to an elective share of the estate.

The Court of Appeals did not agree with the district court, and held attorney’s fees could not be deducted from the elective share.  The Court came to the outcome by looking to the plain language of the statute’s language to resolve the issue.  The Court stated, “Here, the statute clearly and unambiguously sets forth only four types of expenses or costs which the probate court is to deduct from the value of the assets in the surviving spouse’s elective share.  Attorney’s fees is not one of those four.”  Thus, the Court believes that if the Florida Legislature had intended for attorney’s fees to be deducted from a spouse’s elective share, it would have listed those fees as one of the exceptions.

This cases has now made the elective share a much more valuable option for spouses that have been cut out of wills or given too small an inheritance trough a will or trust.  However, an elective share does bring an uncertainty about what assets the spouse will actually receive as the only requirement is that the value be worth 30 percent.  This is why we advise clients to devise a detailed estate plan that leaves specific assets to your loved ones.  For more information on estate plans and other probate issues like elective shares contact The Office of David M. Goldman PLLC today at 904-685-1200.

41F was published today in the Federal Register.  Here is a link to 41F as filed which is similar to the draft that has been circulating.

41F will be effective 180 days from today or on Wed July 13, 2016.  Applications filed prior to July 13, 2016 will be handled under the current rules.  Applications filed with the ATF after July 13 will have require a CLEO notification, fingerprints and photographs for each responsible person.

The biggest change for Gun Trusts and other legal entities between 41P and 41F is the change from the CLEO certification to a CLEO Notification for each responsible person.  In addition ATF significantly limited the definition of a “responsible person” as compared to what was originally presented in 41P.  The CLEO notification in 41F appears to be limited to trustees and co-trustees in most trusts, but can be expanded because of the terms of the trust to also include beneficiaries and others with the ability to manage and possess the NFA firearms.  These changes happened after more than 9500 comments  were received in response to 41P. – For links to the major comments see our 41P page.

The final rule attempts to clarify the definition of a “responsible person” for trusts and legal entities, but leaves much ambiguity because of the way it that it was written.   While it is clear that a trustee or co-trustee is a responsible person, many other trusts will create responsible parties by giving individuals the power to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearms for, or on behalf of the trust.

The important part here, is that if your trust gives the power to receive, or possess (hold or use) a NFA firearm, they will be a responsible person and be subject to CLEO notification and the other requirements imposed under 41F as published.

Normally in most trusts a beneficiary or successor trustee would not be considered a Responsible person, but in some gun trusts I have reviewed, the trust permits beneficiaries or others named in a trust or will or separate document to have possession and use the firearms.  These people, in my opinion, would be responsible persons under the the  Definition found in 27 CFR 479.11

The ATF has indicated that if a trust references another document, schedule or exhibit it will need to be submitted along with the trust when the application to make or transfer a NFA firearm is being submitted.

Some lower priced Gun Trusts seem to refer to beneficiaries named in your will or some other document outside of the trust.  This would mean that you would have to submit your will  or the other documents along with your trust for approval.  If you do not have a will, your trust may not be valid or your application may not be approved.  If your Gun Trust names another document for your beneficiaries, you may want to amend your trust to list your beneficiaries.

As additional form are released, we will continue to update our example pages for how to fill out these new forms.  Links to the current forms for a Form 1, 3, 5, 20 and other useful information on additional configurations and engraving can be found on https://www.guntrustlawyer.com/signing

This rule adds a new section to 27 CFR  – part 479 to address the possession and transfer of NFA items registered to a decedent but this does little other than to codify how the ATF previously dealt with estates.

Florida Asset Protection Trusts: Can they be changed?

In Florida, both revocable and irrevocable trusts are valuable estate planning tools that permit individuals to organize and protect their assets from creditors.  The Florida Asset Protection trust is not used by many estate planning lawyers.  Asset Protection is an important part of estate planning in Florida. While the name irrevocable would seem to indicate that the trust cannot be revoked, there are many ways of accomplishing the same effect as revoking a trust.

Generally when one discusses revoking a trust, they are referring to doing one of the following:

  1. Changing a term in the trust
  2. Changing the plan of distribution or the beneficiaries named in the trust.
  3. Changing the managers in the trust- the trustee
  4. Changing the co-trustee in the trust
  5. Changing the assets in the trust

Of course there is also rate case when the need for a trust no longer exists. The creator of the trust may simply want to discontinue the existence of the trust and retain individual ownership of the assets.  We find that most people who want to revoke a trust are mistaken in their reasoning. Some people would like to revoke an irrevocable trust for a legitimate reason.  One example is a life insurance trust where the beneficiary no longer needs the insurance.

Florida law permits judicial modification and non-judicial modification of irrevocable trusts which may solve many problems that may arise in the future.  An even better solution is to permit changes in the trust, when estate tax is not a consideration, and permit the original creator of the trust to make the changes directly.  Many of the irrevocable trusts we create permit the settor ( the creator) to make changes to the beneficiaries, trustees, successor trustees, and assets in the trust.

In some cases the beneficiary can be a spouse so the entire trust can be undone without any consequences if necessary.  You should speak with an estate planning and asset protection lawyer about the new breed of irrevocable trusts that offer far greater flexibility than traditional Irrevocable trusts.    An irrevocable trust  or more specifically a Florida Asset protection trust can be designed to offer  asset and medicaid protection while a revocable trust offers neither.

 

News and Important information for Seniors and their Families.

In this issue, we discuss the following topics.

  1. How to Bulletproof your estate plan
  2. Trying to treat siblings equally
  3. The importance of taking the emotional value of family heirlooms into consideration
  4. Taking previous loans or gifts into consideration
  5. Proving you’re of sound mind
  6. Notes for those who wish to disinherit someone.
  7. Special issues for Blended families.
  8. How to choose the right guardian for your children.

To download a copy of our 4th Quarter newsletter use the following link  Goldman Elder Law Update 2015Q4

The Florida District Court of Appeals recently applied a little known doctrine called the Doctrine of Dependent Relative Revocation in the case of In Re Estate of Murphy to save an estate from passing through intestacy.

The owner of the estate was Virginia Murphy.  Mrs. Murphy died in 2006 and was predeceased by her parents and husband.  She also died without any siblings or children.  In the years before she passed, Mrs. Murphy executed a number of wills that were prepared by her longtime attorney Jack S. Carney, including the last will she executed in 1994.  The 1994 will named Mr. Carey as personal representative of Mrs. Murphy’s estate; and it purported to leave the bulk of that estate to Mr. Carey, Gloria DuBois (Mr. Carey’s legal assistant), and George Tornwall (Mrs. Murphy’s accountant, who died the year before Mrs. Murphy passed away).
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Most financial planners are unfamiliar with some of the modern twists available with irrevocable trusts.  They tend to be familiar with the older style of irrevocable trust that can pose several problems for those who use them. These problems include:

  1. Loss of control over the management of the assets;
  2. A separate EIN number for tax reporting purposes;
  3. A larger tax bills because of the way traditional irrevocable trusts are taxed;
  4. A loss of the step up in basis available to assets owned by an individual upon the death of the settlor; and
  5. The inability to change provisions or beneficiaries in the future.

The irrevocable trust, you have chosen does not suffer from any of the traditional problems discussed above.  It is an Irrevocable Pure Grantor trust  (IPUG™). With the iPug™ many of the advantages that are traditionally only found with a revocable trust can be provided in an irrevocable trust.  Some may ask, why should we use an irrevocable trust instead of a revocable trust.  Here is a summary of the reasons that the iPug™ trust is superior to the revocable trust and does not pose the problems that a traditional irrevocable trust presents:

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At the Law Office of David M. Goldman, one of our biggest goals is to protect our client’s assets from creditors.  One of the most important assets a person can have is a retirement account.  These accounts are often targeted by creditors, but the good news is many retirement accounts are protected from creditors through federal and state laws.

So what type of retirement accounts are protected from creditors?  The most common form of protected retirement accounts are known as “qualified retirement plans,” and are protected under Federal ERISA law.   ERISA protected accounts include traditional pension plans such as 401(k) and 403(b) plans, and these plans are usually exempt from civil court judgments and from bankruptcy.  Other protected accounts include Rollover IRA accounts, which are assets, formally in a 401(k) account, from a previous employer that are “rolled over” into an IRA.  This means that these retirement accounts are usually protected no matter what state they were established in.

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