August 2007 Archives

August 31, 2007

Florida Guardianship: Advance Directives and their Role

In Jacksonville Florida and other areas of the estate Florida Estate Planning Lawyers and Florida Guardianship Lawyers use advance directives including Durable powers of Attorney and Designation of health care surrogates to limit the need for Florida plenary or limited guardianship.

Prior to the appointment of a Florida Guardian, the Duval County court or local court will determine whether the ward executed a valid advance directive in accordance with Florida Statutes, Section 765. If a valid directive exists the court will specify what powers the guardian will have in the letters of guardianship. If court is considering modifying or revoking the authority of the surrogate, the surrogate must be given notice prior to the hearing.

August 30, 2007

Florida Guardianship: Adjudicatory Hearing

The adjudicatory hearing is closed and only the examining committee members, the petitioner and his or her Florida Guardianship Attorney, the Alleged Incapacitated Person (AIP) and his or her Florida Guardianship Lawyer have the right to be present. The AIP has an absolute right to attend and must be present unless his or her presence is waived by his or her Florida attorney. The AIP also has the right to refuse to testify during the hearing.

In the event that there are witnesses, the witnesses must be disclosed to all parties. The Florida Court must find by clear and convincing evidence that the AIP is incapacitated. If the AIP is found to be incapacitated the court must consider alternatives to guardianship before the appointment of a guardian. This is the case in a plenary guardianship or limited guardianship.

August 29, 2007

Helmsley and her dogs 12 Million dollar Pet Trust

In Florida there are limitations on Pet Trusts and the courts would likely find that $12 Million for a dog would be excessive and strike all or part of the trust.

Jacksonville, Duval, St. Johns, Estate Planning AttorneyLeona Helmsley's Dog was left a $12 Million dollar trust fund. In addition the Maltese, named Trouble will be buried alongside her and her late husband in a mausoleum. Leona also left 3 Million for the perpetual care of the mausoleum.

While the press and blogs are making a big deal over the dog getting $12 million, everyone fails to see the costs she is incurring because of probate. She left the majority of her money and property (rumored to be in excess of 1 billion dollars) to a Family charitable trust. The legal fees on handling this administration could be in excess of $60 Million dollars. If she would have put this money in a Revocable Trust or Living Trust there would be no probate fees to transfer the Billion dollars to the charity.

If you or a loved one has a billion dollars they want to give to charity, make sure its in a Living trust to avoid the costs and delay of probate.

Often the Break even cost with a Florida Living Trust is less than $100,000 in assets. To determine if you or your family needs a trust, speak to a Florida Estate Planning Lawyer.

For more information on Florida Pet Trusts.

August 28, 2007

Florida Enhanced Life Estate Deed

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed") is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family. Upon the death of the homeowner's the property will pass to the people designated without the need for a costly probate process.

Jacksonville Duval Clay Orange ParkWhy Use an Enhanced Life Estate Deed?
The Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

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August 21, 2007

Florida Probate and Wrongful Death: Proceeds may not be claimed for unpaid child support

In Florida probate, proceeds from a wrongful death action are not subject to the claims on creditors including unpaid child support. In Re: The estate of Johnny Glenn Barton (631 So.2d 315) the Second District court of appeals reasoned that since the recovery for wrongful death has nothing to do with the injuries sustained by the decedent, but is due to the benefit that the beneficiaries would have received if the decedent had not been killed.

A wrongful death action does not include an award for medical expenses and thus the proceeds of such settlement do not include money for that. A Florida Wrongful death action is to compensate the survivor for their own losses, separate from their departed loved-one.

The appeals court held that it was wrong for back child support to be paid from the proceeds from the wrongful death action. If you have a wrongful death action it is important to use a Florida Probate Attorney who is familiar with Florida Probate.

August 20, 2007

Florida Will: Original Will must be kept safe

Jacksonville, Orange Park, St. Johns. Jacksonville Beach, Ponte Vedra Beach, St. Augustine Court FloridaIn Jacksonville Florida or another Florida city, if a person creates a valid Florida will, but the will can not be found upon their death, the Florida courts will presume that the decedent destroyed the Florida will with the intention of revoking the Florida will. This doesn't mean that it is impossible to get a copy of the Florida will admitted, but it will be difficult.

The first step is to establish the terms of the will in Florida and offer it for Florida probate. This can be done by any interested person. The specific content of the Florida will must be proven by the testimony of two disinterested witnesses, or, if a copy of the will is available it can be proven by one disinterested witness.

In Florida, it is very important to keep your original will in a safe place. You might consider having your Florida Estate Planning Attorney keep the original will for you in a fire and water proof safe. If you live in an area of Florida that is prone to hurricanes, it would be wise to keep the will in a water proof, fire proof area that is not at risk to weather. Some Florida will lawyers or Jacksonville will attorneys can keep the original Florida will in their safe.

August 14, 2007

Validity of Florida Arbitration Clauses

Recently the Florida statutes changed to allow for arbitration clauses in Florida Revocable Trust Agreements. When including an arbitration clause in a Florida Revocable Trust one needs to make sure the arbitration clause will be enforceable.

Below are some issues with arbitration clauses in Florida that need to be considered whether used for Florida Business Contracts, Transactions in Florida, or Florida revocable trusts. Luckily the US Supreme Court has ruled that if an arbitration clause is invalid, the clause can be removed from the agreement and the underlying agreement can still be valid.

Florida Arbitration Clauses

An agreement to arbitrate, or a provision in a contract providing for the arbitration of disputes, is valid, enforceable, and irrevocable without regard to the justiciable character of the controversy. The only questions for a court to determine when looking to see whether an arbitration clause is enforceable are:

1. Whether the agreement that contains the arbitration clause is valid?
2. Whether the parties have a valid arbitration agreement;
3. Whether an arbitrable issue exists; and
4. Whether the right to arbitrate has been waived.

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