Florida Estate Planning Lawyer Blog

A *Florida Enhanced Life Estate Deed or Florida LadyBird Deed is designed to pass the property if any to a person upon the death of the life tenant while allowing the life tenant to do anything during their life.

What happens if the person named in the remainder interest predeceases the life tenant?
This is
From A to B for life (with enhanced powers) remainder to C.
If C dies before B, and then B dies the property will revert to A or A's Estate upon B's Death.

This can be problematic when claims are potential claims against A's estate.

Solutions:
1) When C dies, B should change the Enhanced Life Estate Deed
2) create the deed in such a way that the language of the deed specifies that the property does not go back to A or A's heirs

If you need a Florida Enhanced Life Estate Deed or Florida LadyBird Deed Contact a Florida Estate Planning Lawyer to create a deed that serves your needs and minimizes your risks.

I did not get paid my Vacation pay, What can I do?

Under Florida law, employees are entitled to make a claim for unpaid vacation pay that is vested. "Vested Vacation Pay" is defined as "wages" for purposes of section 448.08 requiring the employer to pay all attorneys fees and costs. If you win, you are entitled to receive unpaid vacation pay for the last 5 years and legal fees and costs associated with the case.

Most cases center around a termination. If you are terminated from your job, you are still owned vested vacation pay whether the agreement was written or verbal. The employer must pay you the value of your vacation. If the vacation pay was not vested under the terms of your agreement, then your employer does not need pay it.

If you have a question about your unpaid vacation please Contact a Florida Employment Lawyer to discuss your situation.

You should have a copy of your employment handbook, any employment agreements, and pay checks.

A new Blog ( Gun Trust Lawyer ) dedicated to Gun Trusts and issues related to the ownership of class 3 weapons (which I started) has an article on a man who was arrested for an improper transfer of a unknown class 3 machine gun.

His gun misfired and was reclassified as a Machine Gun. This along with allowing a potential buyer to shoot it at a range resulted in the invalid transfer of a Class 3 Weapon, a crime punishable under the NFA with a sentence of up to 10 years in jail.

These are the types of transfers a NFA FIREARMS TRUST can help prevent.

The is the link to the article on Invalid Class 3 Gun Transfer

A Florida Living Trust is a Florida Revocable Trust created while a person is alive, while a Bypass Trust is usually a testamentary irrevocable trust. Some Bypass Trusts are created by a Living Trusts or even Florida Will.

A Trust is an ownership arrangement where property is held in the name of a "trustee" rather than in the name of the person who really owns the property. It is a separation of legal and equitable ownership. People often create Living Trusts for their own benefit, to avoid probate, address the possibility of future incapacity, or keep their finances private.

Normally, the person who creates a Living Trust names himself or herself as trustee and as beneficiary. Upon that person's death, all or a portion of the property which remains in the Living Trust passes according to the terms specified in the trust agreement.

A Bypass Trust is created when a husband or wife dies and their assets are more than the estate tax deduction. Currently this is when a couple is worth over $2,000,000. The Bypass Trust is a way to shelter the first spouse's $2,000,000 exemption from taxation when the surviving spouse dies, thereby doubling the amount that can be left tax-free to $4,000,000.

Also a Bypass Trust can protect the trust property from creditors' claims, and allow the deceased spouse to direct where the trust property passes when the other spouse dies.

529 accounts are good and are one of the best ways to save for a child's education.

When paying for college there are many options.

Uniform Transfers to Minors Accounts;
Education IRAs;
Prepaid tuition plans; and
529 plans to name a few.

The 529 account seems to have the best features of each option and be one of the better investment vehicles.

The biggest advantage is that earnings and most withdrawals are free of income unless they are not used for tuition, room, board, and other authorized expenses.

Another advantage is that gifts to a 529 account can be made in larger amounts. Typical gifts can only be $12000 per person per year. but with a 529 plan you can make a gift that is 5x as large.

As far as estate taxes are concerned, all amounts contributed are excluded from your estate even though you control the account.

Any Downsides worth noting?

529 accounts don't let you choose the investments yourself.
If you use funds in the account for non-qualified purposes, a 10% penalty will apply to the portion of the withdrawal which constitutes investment gains.
The tax laws which make 529 accounts so great may expire in 2011

If Congress fails to extend the new tax laws, and other key benefits can always be changed during a future session of Congress.

You can give any person $12,000 a year without any gift tax consequences. This annual gift exclusion is now indexed for inflation and be increasing periodically in $1,000 increments.

If you are married, you and your spouse can each give $12,000 a year for a total of $24,000. If the person you are giving to is married, you can give $12,000 to that person and their spouse.

You may also pay tuition or medical payments on behalf of another, but it is important to make those payments directly to the institution and not give the money to the individual to make the payments. When the payments are made directly they do no count against the $12,000 gift exclusion.

If you want to make a gift that is larger than the $12,000 limit you can also use part of your $1,000,000 lifetime exemption. This exemption is an amount that each person can give away during their lifetime without having to pay gift taxes.

If you do give away more than $12,000 to any individual not including payments for tuition or medical expenses that are made directly, you need to file a gift tax return by April 15th of the following year.

Once you have give away more than the $1,000,000 lifetime limit, you must start paying gift taxes. These gifts are currently taxed at a rate of 45%

Before making large gifts, you should take with your tax professional or your Florida Estate Planning Lawyer.

It is important to keep your Florida Estate Planning Documents safe. In some cases if the original documents are lost, a copy is as good as the original. With the will, the original is the document that is important.

Some people choose to keep originals documents at their Florida Estate Planning Lawyer office, in a bank vault, with other people, or at home in their filing system. It is important to let someone know where they will be kept in case they are needed.

People have different views on their Florida Estate Planning Documents. Some do not want to disclose them and others want to openly disclose them with their family and friends.

Each person has to look at their family circumstances and determine the risks and benefits of sharing their documents as compared to keeping them private.

Sometimes when the documents are kept private, it is important to let someone know how to obtain the documents in the event they are needed.

It is important to remember that your will is different than your other Florida Estate Planning because it is the original that is important. A copy of any other Florida Estate Planning Documents is the same as the original, but only the original Florida Will can be deposited with the court.

Some people are afraid that family members will destroy the original Florida Will in order to change how property is distributed at death.

Documents like living wills and medical powers of attorney should be given to your agents before the need arises for their use.

Some people pick a Personal Representative that does not stand to inherit property under the will and give them copies or instructions to follow upon their death.

It is generally not advisable to pick a PR or trustee that you have concerns about are.

Most wills distribute property as expected or evenly among their family members. In such a case it is a good idea to distribute copies of the documents to everyone and keep them updated with changes.

If there is a sudden change in the terms of the will, it may give the other family members reason to suspect that there might be something wrong with the documents.

One of the nice advantages of a Florida Revocable Trust is that you can not designate an individual to receive notice who is different than the beneficiary. This helps to keep the subject matter and contents of one's estate private. For those who are interested in privacy a Florida Revocable Trust may be a solution.

A Florida Revocable Trust is a useful estate planning tool. They can be used for many functions including disposition of one's assets upon death. In my practice I use Florida Revocable Trust for the purchase of Class 3 items which are controlled by the NFA, to provide for pets and animals after death, and to hold assets. Each type of Florida Revocable Trust has unique language and purpose.

In addition there are several benefits in using a Florida Revocable Trust to dispose of property over a will. These include the following:

1: No Florida Probate is required for assets that are in a living trust at the time of death. Although this is the most common reason people use a Florida Revocable Trust it is not the only reason. Many times there are other ways of accomplishing the same results with payable on death designations or having assets held in the name of more than one person. Other property such as retirement accounts, life insurance and those with beneficiaries will pass to your beneficiaries on their own without a Florida Probate.

When property is transferred by your Florida Will to a living trust, a Florida Probate is still required.

Florida now requires the trustee of a living trust to file a notice of the trust with the appropriate court containing information about the person who created the trust and the trustee. In some cases the trust is filed in the probate proceeding because they are responsible for paying clams of the creditors and the creditors must be given notice of this.

2: Instruction. Some trusts are used to provide the beneficiaries with instructions or notice that they would otherwise not have available to them. One example is the Florida Gun Trust. One of the benefits of a Florida Gun Trust is that the beneficiaries and successor trustee's are given information on what laws they must comply with and how to avoid criminal and civil liabilities associated with improper actions.

3: Privacy. As mentioned above, when a person dies with a Florida Will, an inventory must be filed with the court. You may not want your friends, neighbors, or the media to be able to read a listing of what you own and what it is worth. After all, an inventory is a public record. With a living trust, your properties and their values remain private.

4: Constitutional Rights. Some trusts like the Gun Trust or NFA trust allow individuals to maintain their right put purchase items that would otherwise not be permitted under some state laws.

5:Future Incapacity. When one becomes incapacitated, their finances can be dealt with by their successor trustee. This can avoid the unnecessary costs associated with the invalid rejections associated with a Power of Attorney. In can also avoid the necessity to establish a Florida Guardianship.

6: Harder to Challenge. When you make an unequal distribution among your heirs they might not be happy and want to dispute your wishes. A Florida Revocable Trust can shorten the time to dispute distributions and the time in which someone has to complain about the outcome. When proper notice is given, individuals only have 6 months to bring an action.

7: Easy Modification. When retirement accounts or many assets are pointed to a Florida Revocable Trust the trust can be changed without some of the restrictions that are typically placed on accounts. Often if is difficult to remove someone from retirement or benefits accounts, but there is no approval process associated with the modification of a Florida Revocable Trust.

8: Ancillary or Out-of-state Probate. Property owned in another state is normally subject to a second probate or ancillary probate. If the a trust owns the property an additional or out of state probate can be avoided.

Everything is not positive with a Florida Revocable Trust and there are some downsides you should consider.

1: Cost. A living trust can cost more than using other methods.

2: Time-consuming to Fund properly. Depending on how many different types assets you have, proper setup of a living trust can take time and cost money to move the assets to your Florida Revocable Trust

2: More Complicated. Unlike with a Florida Will which you only have to change with there is a life event that causes you to reevaluate your wishes, a Florida Revocable Trust assets need to be maintained within the trust. Much of this can be transparent, but it takes a conscious effort to realize when you receive assets that are not in the trust, and transfer them to the trust. In addition, some families require more than one trust and this can increase the level of complexity.

3: Medicaid ineligibility. Transfers to a Florida Revocable Trust can create a period where one is ineligible for medicaid benefits. Although this can be resolved by revoking the trust, there may be some additional time and expenses associated with this process. This is more of an issue with older individuals but you never know when it might affect you.

4: Time-consuming to Revoke. Although living trusts can be easily amended, the same effort that was involved in creating them is associated with revocation.

5: Probate or additional costs after death. If you have a taxable estate there will be tax returns and other costs associated with death. With a trust there may be an additional set of returns that are due and this could be more than the savings on probate. You should consider this when you are looking to save costs associated with a Florida Probate.

6: Probate?. If you leave assets in your personal estate you will still need to do a probate. Although the cost of the probate may be significantly lower the time delay and work associated with of the administration of a will.

In Florida when an individual left their Florida Will in a bank vault or safety deposit box a court order is necessary to open the box unless there is a joint owner on the account.

The process involves having a judge issue an order to inspect the contents of the box. If there is a will it should be deposited with the court in the probate proceeding.

If you need help getting a Florida will that is stored in a safe deposit box at a bank, you should Contact a Florida Estate Planning Lawyer

Many people feel that one of the best places to keep your estate planning documents and original Florida Will is in a safe deposit box. A bank box can protect the documents from most natural disasters. If you keep the documents in a bank you should have a joint holder on the account to simplify the process of obtaining the documents in the event of your death.

Some people also keep their documents with the lawyer who created them. Many lawyers will not retain original documents because of the risk of loss and expense associated with keeping the documents.

Most people keep their documents at their home. They can be kept in a safe, file cabinet, or even their freezer. If they are kept in a place that is not obvious, you need to let others know where they are located so they will be found when they are needed.

If Florida, you need to be conscious of Hurricanes and potential water damage from the storms that frequent our state.

There are many parts to a Florida Estate Planning.
The Documents include Durable Powers of Attorney, Living Wills, HIPAA releases, Medical Powers of Attorney, Living and Revocable trusts and other documents depending on the particular needs of the clients.

The most important thing to remember is not everyone needs a living trust (see my articles on Trust Mill Scams) and each plan should be customized to the individuals family dynamics.
If you would like your Florida Estate Plan reviewed Contact a Florida Estate Planning Lawyer.

There are many times when one needs to discuss a the effects of a settlement or legal decision with a Florida Tax Lawyer, CPA, or Accountant prior to signing documents.

When possible a tax adviser should be involved early on in a case to make sure that efforts are spend on a tax friendly solution. Obtaining advise to consult with your tax adviser after a successful mediation or settlement often leads to unnecessary tax expenses.

If you are in the early states of litigation, be sure and discuss potential outcomes with your tax adviser to understand the effects on your or your business.