September 2007 Archives

September 30, 2007

NFA Gun Trust Lawyers® Wanted

As a Florida Estate Planning Lawyer who has created Gun Trusts or National Firearms Trusts for many individuals in Jacksonville Florida and around Florida, I am often asked for names of Attorneys and Lawyers in other states who can help them create a NFA Gun Trust at a reasonable price.

As a result I have begun creating a list of Lawyers in other states who will produce Federal Firearms Gun Trusts. Some have created their own trusts, others will modify the one I am using for the specific laws in their states.

If you are an Estate Planning Lawyer and would be interested in helping others create Gun Trusts, or you are looking for an attorney in another city or state to help you create a NFA Living Trust please contact me using the form on this page or at dgoldman@jacksonvillelawyer.pro.

September 29, 2007

Florida Trust Advantages for Descendants

Jacksonville Florida, Duval, Clay, St. Johns County AttorneyFlorida Estate Planning Lawyers often tell clients of the many advantages of a Florida trusts. When a client leaves property to heirs in a trust instead of outright, they can control how the property is used. The control can violate public policy or law, but often good estate planning can control the property without risk of having the control stricken. Some of the major advantages are:

1. That a trust can provide a mechanism for better management and investment than the individuals may be capable of on their own.
2. That a trust can prevents the beneficiary(s) from using all of the proceeds quickly, or wasting it on unnecessary items.
3. Than a trust can protect the assets from the claims of creditors.
4. That a trust creates separate property that can be free of claims of a spouse upon divorce or the beneficiary's death.
5. That a trust allows the creator to control the disposition of the property instead of the beneficiary.

If you are interested in preserving your assets, managing their use, avoiding Florida Probate you should talk with a Florida Estate Planning Attorney about setting up a Florida Living Trust or Florida Irrevocable Trust.

September 29, 2007

Abusive Trust Tax Evasion Schemes - Questions and Answers

Jacksonville Estate Planning Lawyer, Orange Park, Ponte Vedra Beach income Tax
Florida Estate Planning Lawyers are often asked about tax strategies. Lawyers and accounts are not allowed to advise clients on tax evasion schemes. Recently I read an IRS Article named Abusive Trust Tax Evasion Schemes - Questions and Answers The questions and answers give a good general background to many of the terms used in Florida estate planning. In addition there are some links at the bottom which provide more information on tax abuse, scams, and fraud.

Basic Trust Law

Q: What is a trust?

A: A trust is an entity created and governed under the state law in which it was formed. A trust involves the creation of a fiduciary relationship between a grantor, a trustee, and a beneficiary for a stated purpose. A trust may be created by any of the following methods:

  • A declaration by the owner of property that the owner holds the property as trustee;
  • A transfer of property by the owner during the owner's lifetime to another person as trustee;
  • A transfer of property by the owner, by will or by other instrument taking effect upon the death of the owner, in trust, to another person as trustee or
  • An exercise of a power of appointment to another person as trustee or an enforceable promise to create a trust.

Q: Who is a grantor of a trust?

A: The grantor (also known as trustor, settlor, or creator) is the creator of the trust relationship and is generally the owner of the assets initially contributed to the trust. The grantor generally establishes in the trust instrument the terms and provisions of the trust relationship between the grantor, the trustee, and the beneficiary. These will usually include the following:

  • The rights, duties, and powers of the trustee;
  • Distribution provisions;
  • Ability of the grantor to amend, modify, revoke, or terminate the trust agreement;
  • The designation and selection of a trustee or successor trustees; and
  • The designation of the state under which the terms and provisions of the trust agreement are to be governed.

Continue reading "Abusive Trust Tax Evasion Schemes - Questions and Answers" »

September 28, 2007

Attorney and Client Check List for Mediation

Jacksonville mediation, Orange Park mediation, Ponte Vedra Beach mediationJacksonville Business and Estate Planning Attorney, David Goldman Found a great article How To Prepare For Mediation: The Mediator's Check List Of Key Legal And Factual Issues by David Laufer. This article and the checklist below can be used in Florida Business Law, Florida Probate Law, Florida Guardianship Law, and Florida Will Disputes.

THE MEDIATOR'S CHECK LIST ****************************************

ALL INFORMATION WILL BE MAINTAINED IN THE STRICTEST CONFIDENCE.

A CONFIDENTIALITY AGREEMENT HAS BEEN SIGNED BY ALL PARTICIPANTS IN THE MEDIATON BEFORE THE EXCHANGE OF ANY CONFIDENTIAL INFORMATION.

PARTIES
1. Identify each party and title of all participants involved in the dispute.
2. Identify each Disputant required to be present during the mediation process.
3. Identify each decision maker who will not be present during the entire mediation process.
4. Describe any special needs, demands, interests and goals of each Disputant and Counsel.
DISPUTE
5. Describe each claim, dispute and defense.
6. Describe each Disputant's demands -the best case outcome-to be achieved in the Mediation.
7. Identify and quote the key statutes governing the claims and defenses.
8. Identify and quote the key cases governing the outcome of the liability issues. For example: Stout v. Turney (1978) 22 Cal.3d 718: "Of the two measures the 'out-of-pocket' rule has been termed more consistent with the logic and purpose of the tort form of action (i. e., compensation for loss sustained rather than satisfaction of contractual expectations) while the 'benefit-of-the-bargain' rule has been observed to be a more effective deterrent (in that it contemplates an award even when the property received has a value equal to what was given for it.)"
9. Identify the legal support for each demand for special, general and punitive damages.
10. Identify all defenses to the claims for special, general damages and punitive damages.
11. Identify key disputed facts discussed in the legal briefs.
12. Identify any key facts and legal issues overlooked by Counsel and the Disputants.
13. Identify other issues that may have an effect on the dispute, including change in case and statue law, change in management, change in key decision maker, vacations, trial dates, motions for summary judgment, divorce, employment termination, surgery, promotion, restructure of company, bankruptcy, sale of business, cancellation of insurance coverage, and the need for closure.
14. Should the mediation be conducted in segments? For example, if the claimant is rehired in wrongful terminations claim will the damage claim be resolved? If the franchisor reinstates a franchise will the damage claim be resolved? If the insurance company renews the insurance policy will the claim for bad faith claim be dismissed?
15. Identify possible resolutions of dispute by restoring, creating or enhancing a commercial relationship that the defendant may be able to provide as an alternative to payment of money damages. For example, a HR Director may be able to re-hire an employee without consulting with a higher authority, whereas the payment of a damage claim may have to go through several levels of review and approval and consultations with the company's risk manger for reporting to an insurance carrier or audit committee.
EVIDENCE:

Continue reading "Attorney and Client Check List for Mediation" »

September 26, 2007

Do it yourself Wills? Good idea or not?

Jacksonville, Jacksonville Beach, PVB, Ponte Vedra Beach, Orange Park, Florida WillAlthough it is possible to create your own will using Quicken, an online service, or by just creating one on your own, a Florida Estate Planning Lawyer would likely caution against doing so.

A "Do it yourself will" can have many undesired results. The California Estate Planning Blog points to one of these. In their article they describe a man who died and bequeathed his home to five people, one being his wife. His will did not give the spouse the right to remain in the home for her life. Upon the request of any other beneficiary, the wife would either have to buy the additional interest, or be forced to move from the home. If you want to read the full details you can follow this link.

Often individually do not fully understand the consequences of the choices they make in a wills. In addition a Florida Will must comply with the Florida Statute of Wills to be valid. Most states have their own requirement for a will to be valid. A valid Florida Will requires that the person be competent, over the age of 18, understand what they are doing, know their possessions at the time they make the will, have two unrelated witnesses, and notarize the document.

Often there are problems with the execution of a will that do not become apparent until a Florida will is contested or submitted for probate. If a will does not have a proper self-proving affidavit, the work that must be done to prove the will is increased. This can cause the family to incur additional costs and delays in the probate process. Florida also allows a Florida Will to have some options that are not always available in other states. Once such option is the right to attach a separate writing memorandum. The separate writing memorandum can save money by not requiring a will to be redrafted everytime a change is needed. If you are not taught how to use this feature of the will, you could believe you are transferring items that cannot be transferred by the memorandum.

People have compared doing your own will to repairing your own car, doing your own surgery and coloring your own hair. While it is true that a person can eventually learn to do each of these, the results are not always as desired the first time. My favorite comparison is to coloring your hair, as I have personal experience with this and my wife. Often when one colors their own hair it does change the color, but not exactly as intended. Sometimes it good enough, but often it takes a professional to fix what was done.

The problem with a Florida Will or other Florida Estate Planning Documents is that you do not get the chance to see your results, much less correct them. Once you die, it is almost impossible to make a change. You cant say my dad used quicken and he told me that this is what he wanted even though his will doesn't exactly do that. Besides creating a Florida Will with a Jacksonville Estate Planning Lawyer should not be expensive.

September 26, 2007

Durable Power of Attoney? Why are they so Important?

Jacksonville Durable power of Attorney and Living will, Jacksonville HIPAA relaseFlorida Estate Planning Lawyers often include Durable Power of Attorney documents in the estate planning they do. Today I read an article on the California Estate Planning Blog entitled "Do I Need A POA Over My Spouse?".

The article recommends that everyone needs a power of attorney over their spouse in case something happens. Without a Florida Durable Power of Attorney in place, a spouse is unable to file taxes, deal with social security, talk to creditors or deal with other financial considerations that require the spouse's signature.

You cannot get a Florida Durable Power of Attorney if your spouse becomes incapacitated. The only alternative is to setup a Florida Guardianship. This is costly, time consuming, and requires one to act while a Florida Durable Power of Attorney gives one the ability to act, without the legal requirement to act.

For the same reasons why you need a Florida Durable Power of Attorney for you Spouse, you also need one for any children over the age of 18. If you child becomes injured, or incapacitated, you will be unable to act on their behalf without a Florida Power of Attorney.

Many Florida Estate Planning Lawyers also recommend a Combination Living Will and Designation of Health care Surrogate with HIPAA Release

September 25, 2007

Pet Estate Planning Seminar

Dog-Cat-Bird.gifOften Estate Planning for your Pet can be very expensive. Some Florida Estate Planning Lawyers who also are Florida Pet Trust Lawyers have begun offering comprehensive Low Cost Florida Pet Trusts.

If you want to become more educated on Florida Pet Trusts or Pet Trusts in other states, one way is to speak to a Jacksonville Pet Trust Lawyer. In addition, you may want to attend this seminar by two Lawyers doing Pet Trusts

On September 28, 2007, Neil Hendershot PA Elder, Estate & Fiduciary Law Blog) and Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) will explore this issues important to estate planning for pet owners both in Pennsylvania and nationally.
The seminar entitled Estate Planning for Pets is sponsored by PBI. Follow the link for details about the program and registration information.

September 24, 2007

Florida Executor Found Personally Liable for Estate Taxes

One of the first things your Florida Probate Lawyer should tell you is that as an executor or Personal Representative of a Florida Probate Case, you are personally liable for any unpaid taxes or penalties for the decedent.

Jacksonville Pet Trust, Discount Pet Trust, Florida Pet Trust Attorney
Kimberly Martinez-Lejarza has a nice review of the Estate of Ziotowski v. Commissioner. This tax court held that the failure of the two executors to file the 706 estate return made them liable for the taxes, penalties, and interest even though their attorney failed to inform them of the tax, filing, and due date.

Kimberly does a good job of analyzing the case stating:

That there was no way the estate could possibly stand upon its argument of reasonable reliance on the advice of counsel: there was no evidence the executors had even asked their attorney for advice as to whether the return was due on time, let alone that they had received such advice. In its analysis, the court also pointed to testimony given by one of the executors that further demonstrated the executors' complete disengagement from the estate administration process, including the preparation of the estate tax return. In the end, the estate was held liable for the additional tax generated as a result of the late filing.

When it comes to taxes, you the PR is ultimately responsible. Make sure your Florida Probate Lawyer understands this before you learn the hard way

September 21, 2007

Updating your Florida Will

Your Florida Estate Planning Lawyer should tell you that your Florida will is a living document and must be updated regularly based on changes in your circumstances, the laws, and the assets you own.

Jacksonville Florida, Orange park, Ponte Vedra, Jacksonville Living trust lawyerLife is full of change, and when your life changes you Florida Will should be evaluated for potential updates. Some Jacksonville Estate Planning Lawyers prefer to update Florida Wills with a Codicil. A codicil is just an amendment to a will. Often when there are more than one amendments or the Florida Will and Florida Codicil conflict with each other, it may be more difficult for your personal representative to understand and carry out the instructions on the decedent.

It is for that reason, that often the original Florida Will is rewritten in its entirety. With word processing it is often the same work to create a new Florida Will as a Codicil.

You should review your Florida Will and other Florida Estate Planning Documents on a regular basis. One idea is to pick a date, and every year, just like with a birthday, you sit down and review your Florida Estate Planning Documents for changes.

Some examples of life events that might require a change are:

Death of someone named in the will
Death of a Personal representative.
Change in financial situation
Change in Family members
Change in the needs of one or more beneficiaries
Moving
Marriage
Divorce
Concern for or change in Pets might require a Florida Pet Trust, or modification to your will.
Acquisition of Firearms or items that you may not want to go to a specific beneficiary.

Make sure to keep your Florida Will in a safe place and make sure those who will need access to it know where and how to locate the Florida Will.

September 20, 2007

Florida Trust Accounts: Should the Checking Account Be Held In the Name of the Trust?

When you create a Florida Revocable Trust, your Florida Estate Planning Attorney should advise you on how to title accounts.

Jacksonville Trust Lawyer, Jacksonville Beach, St. Johns, Duval, Clay, Orange Park, South Jacksonville FLOne common question is about checking accounts. In most cases, the title (ownership) of the checking account should be changed to the name of the Florida Living Trust or Florida Revocable Living Trust, or Trustee of the trust. If on the date of death, the amount in a personal account has not become property of the trust, it may be necessary to open a Florida probate.

NOTE: The checks do not need to show the trust name and reference to the trust may be omitted for check cashing. The signature cards need to be updated to reflect the way in which checks will be signed. When doing this its best not to close the accounts as outstanding checks could bounce and create unnecessary expenses.

For more information on creating a Florida Revocable Trust or maintaining your Florida Living Trust, you should contact a Florida Trust Lawyer.

September 19, 2007

Florida Estate Planning: Paperless Records Leave Heirs in the Dark

Jacksonville, Duval, St. Johns, Clay, PVB, Ponte Vedra, North FloridaOne problem I have seen in Florida probate cases, and Florida Estate Planning was recently written about by a Massachusetts Estate Planning Lawyer, Leanna Hamill who Practices in Estate Planning and Elder Law. This article was also covered by the Elder Law Professors Blog

In her review of the Walls Street Journal article, Paperless World Can Leave Heirs in the Dark, she states that the article outlines the dangers of keeping your records on your computer.

One of the main problems is that you may not have paper copies, for your Personal Representative to review. Without this information it may be difficult or impossible to compete an accurate inventory during the probate or administration of the decedents estate.

I have previously touched on this in a several articles about Florida Estate Planning and Digital Assets. Those articles cover some of the actual problems and ways in which various online services deal with death, and some of the problems that can result including who has a right if any to access the decedent's information which is stored online.

If you use a computer, you need to consider having a Florida Estate Plan that deals with Digital Assets, paperless transactions, and details your assets for those who have to administrate your estate.

September 18, 2007

Florida's New Trust Code is Retroactive

Jacksonville Living Trust, Jacksonville Beach, St Augustine, Ponte Vedra Living Trust, Orange Park Living Trust
If you have a Living Trust or other trusts as forms of your Florida Estate Planning, you should have them reviewed by a Florida Estate Planning Lawyer.

Effective July 1, 2007 Florida Trust laws changed. (Florida Statute 736) It is important to understand that most of the code, unless otherwise provided for applies to all trusts whether created before or after the effective date.

In addition, most of the code is options with the exception of certain mandatory provisions. these include:

- Requirements for creation, including the formalities required for a valid trust.
- Public policy limitations dealing with issues like spendthrift clauses, penalty and exculpatory clauses)
- Procedural matters ( jurisdiction, venue, and other limitations)
- Court Powers ( power to modify or terminate the trust)
- Duties of the Trustee (to act in good faith and to account)
- Rights of third parties and bona fide purchasers

A very important change deals with Designated Representatives.

Continue reading "Florida's New Trust Code is Retroactive" »

September 17, 2007

Do you have the power to help your children?

Some Florida Estate Planning Lawyers are now providing documents for college age kids as part of their parents estate planning.

A valid Health Care Proxy or Designation of Health Care Surrogate, or Medical Power of Attorney and a Durable Power of Attorney are important documents to have for your adult children.

Jacksonville, Jacksonville Florida, St. Augustine, Duval, Clay, Orange ParkWith recent HIPAA regulation and privacy laws, spouses can not find out medical information on each other, much less on their adult children. If you child is hurt, incapacitated, or unable to speak for themselves, a Florida Durable Power of Attorney or Florida Designation of Health Care Surrogate can allow you to act and make decisions on the behalf of your adult children. It is important to include HIPAA releases in these documents so that you can receive the background medical documents necessary to make decisions.

Remember, that your "child," is an adult and their Privacy is protected under the law, once he or she turns 18. Under HIPAA, the medical community treats him or her as completely separate and distinct from you, and owes your "child" full confidentiality. There are circumstances when a medical provider may slip up and allow a parent or friend more information than they are suppose to, but without the proper documents they are not suppose to discuss the care and treatment of your child with anyone, including a parent.

To make sure you are prepared in case a medical emergency arises, you should talk with your Florida Estate Planning Attorney. Make sure that if you have a durable power of attorney it is valid, in the last few years there have been many problems with them, so it needs to mention the Florida Statute it that its authority comes from. If there your documents are more than 3 years old, you should have them reviewed for compliance with the new regulations.

September 16, 2007

Florida Estate Planning: Financial Details

When you die, someone has to know hot to determine or what the details of your financial life are

Jacksonville Discount Estate Planning Attorney Lawyer St. Augustine, St. Johns, PVB Probate
It is important to make a comprehensive list of assets, liabilities, life insurance policies, power of attorney, Florida will, credit cards, details of bank accounts and all other important financial information.

The problem is that once you pass away, an executor or personal representative has to go through all of your document to figure out where assets may be located.

Recently a range of self-help products have emerged. The paper, and computer based products are available in many office supply stores. Many people who have a Florida Will or other Florida Estate Planning Documents, do not have a system for keeping the other information organized so that after passing, the Florida Probate process can be simplified.

Think about someone unfamiliar with your filing system trying to figure out where you have banks, stocks, Cd's, private investments, loans, debts, and everything else you keep in your mind but not on paper. Often the lack of an organized system increases the cost of the Fees associated with using a Florida Probate Lawyer.

Your Florida Estate Planning Lawyer, should be able to give you advice on what you need to make a list to simplify the Florida Probate process.

September 14, 2007

Guns after Death

With Florida Estate Planning it is important to consider the effects of a gun on the probate process.
Neil E. Hendershot a Professor at Widener University School of Law in Harrisburg and author or PA Elder, Estate & Fiduciary Law Blog, had a Student submit an article regarding the possession and use by elderly persons of firearms. The article has a great title "I Bequeath my machine gun to . . ."

Jacksonville, Ponte Vedra Beach, Silencer, Machine Gun, PVB, Beach, FloridaAfter reading this article, it is even more apparent that one who owns Title II Firearms (sold by Class 3 SOT dealers), needs to be conscious of the effect of their demise on their Personal Representative and/or heirs.

Uncertainty in proper disposition of such a firearm could lead to one's client being convicted of possession of an unregistered firearm, punishable by up to 10 years, $250,000 in fines and the forfeiture of the weapon and any "vessel, vehicle, or aircraft" used to conceal or convey the firearm.

This article discusses the process of determining if and to whom a firearms is registered. What to do with an unregistered firearm, the preferred procedures for the destruction of specific machine guns. The benefit of destruction compared to turning them in. ( The parts are valuable, and the ban may be lifted one day).

No matter what state you are in, if you or someone you know has a Machine Gun, or other weapon regulated by the National Firearms Act (NFA), they should speak to an Estate Planning Attorney or Florida Probate Attorney who is familiar with the Act to protect their estate, Personal Representatives, Trustees, and Beneficiaries from the penalties associates with the wrongful possession or transfer of a weapon in violation of the NFA.

A Florida NFA (Gun / Firearms) Revocable Trust may be the solution for you.

On September 13, 2007, Professor Gerry Beyer posted an entry on the Wills, Trusts & Estates Prof Blog, which he edits, entitled "Dead People With Guns", referencing this post: One of the growing estate planning niches is preparing for the death of gun owners and handling the estates of gun owners.

Here are two sites which have detailed information about the issues and the solutions:

  • Neil E. Hendershot, "I bequeath my machine gun to . . ." , PA Elder, Estate & Fiduciary Law Blog, Sept. 12, 2007: * * *
  • David M. Goldman, Florida Gun Trusts or National Firearms Trust , Florida Estate Planning Lawyer Blog, July 30, 2007, National Firearms Gun Trust: * * *
  • The second site discusses the legal tool of a "Firearms Trust" (or "Gun Trust"), which provides special powers to a trustee not normally considered or granted, to carry out specified purposes of maintenance & disposition of weapons.

    September 13, 2007

    Digital Property After Death

    Jacksonville, Duval, St. Johns, Clay, PVB, Ponte Vedra, North FloridaFlorida Estate Planning and Digital Assets is a topic that has been previously discussed. Today, I read an article written by the Trust and Estate Law Professors Blog which adds some more information.

    It appears that they are some digital assets which can be accessed after the death of the owner or licensee. Here is a summary of what they report on.

    - AOL -- Will allow access to the personal representative upon presentation of a death certificate and proof of appointment.
    - eBay (seller) -- Similar to AOL.
    - eBay (buyer) -- No access.
    - Facebook -- Profile moves to "memorial state" but no one may obtain the login password.
    - Gmail -- Similar to AOL plus an email showing that the decedent had sent an email message from the Gmail account to the person seeking access.

    In an article written by Katherine Roseman of the Wall Street Journal, she quotes Elaine King, a certified financial planner for Gibraltar Private Bank & Trust in Coral Gables, Fl., as stating that recently a man in his thirties died. His family could not even determine what financial accounts it needed to close until it could access his email account. The deceased man's Internet service provider required the family to get a court order granting it entry to his account.

    "It can be a very lengthy process," said King who adds that her firm now advises most clients to leave a list of electronic passwords along with a will.

    It is important to review your estate planning needs with a Florida Estate Planning Lawyer or Attorney who is familiar with Digital Assets, Licensing and how to deal with them. Please use our contact form if you have any questions about Florida Estate Planning and Digital Asset Protection.

    September 12, 2007

    Ladybird Deed

    Florida Estate Planning Lawyers and Florida Elder Law Lawyers often use Ladybird Deeds to help transfer property upon death while allowing the owner to retain the full rights to sell, mortgage, convey, or change the future owner.

    Jacksonville, Orange park, Ponte Vedra Beach, Jacksonville Beach, Clay County, Duval, St. JohnsFlorida, Texas, Ohio, California, Kansas and several other states now allow aLadybird Deed (named after Lady Bird Johnson) or Enhanced Life Estate Deed. With an enhanced life estate deed, a person can deed their property to another while reserving for themselves a life estate with the right to sell, convey, mortgage, or change who the property will pass to upon their death.

    Quitclaim Deed v. Lady Bird Deed (Enhanced Life Estate Deed)
    Often people use a Quitclaim Deeds to avoid probate. A Quitclaim Deed use to make things easier for beneficiaries. The problem with the Quitclaim Deed to avoid probate is that owner would not be able to sell or mortgage his/her property without the consent of her beneficiaries.

    In some states a life estate or quitclaim deed could invalidate your homestead protection. If you are elderly or wanting to reduce potential probate costs it is important to speak to attorney in your state, who is practices in Elder law and Estate planning.

    Florida residents or those owning property in Florida who have questions about how a recent or future deed transfer might affect them or their family can use the contact form to ask questions.

    September 10, 2007

    Florida Will & Trust Bonds

    Most people believe that a having a Florida Will or Florida Trust will save them money. The California Estate Planning Blog has an interesting comment about how it can actually cost your more money. In Jacksonville Florida as with CA, a Florida will or trust that does not waive bond can actually require one. In some Florida Counties, the judge can still require one even if you have asked to waive the bond.
    Jacksonville, Jacksonville Beach, PVB, Ponte Vedra Beach, Orange Park, Florida will modification

    This means that to handle an estate without a Will or Trust waiving the bond requirement, your personal representative will have to apply for a probate bond to cover the proposed value of your estate at an enormous cost to them. For example, if your estate is worth a million dollars -- say a medium sized home in CA along with some cash assets -- bond premiums could run approximately $2,000 for every year the estate is opened. The first year's premium is not refundable if the estate closes within a year.
    A probate bond is designed to protect the estate in case the personal representative mismanages the estate or runs off with all of the estate assets. It is kind of hard to do when there's real estate involved, but the courts still require bond.

    Qualifying for a bond also depends on the personal representative's personal net worth and credit worthiness. Some personal representatives won't qualify and the bond company will require that their attorney maintain control over the estate account in some agreeable fashion with the bond company.

    A properly prepared Will or Trust can waive bond and the court will follow your request in your testamentary instrument.

    It is important to have your Florida Willl & Florida Trust reviewed regularly by a Florida Estate Planning Lawyer.

    September 9, 2007

    NFA Trust: Gun Firearms trusts

    It appears that there are many names for Firearms Trusts, I have heard them referred to as
    NFA Trusts
    Title II Firearms (sold by Class 3 SOT dealers) Trust
    Gun Trusts
    Gun Revocable Trust

    It has also come to my attention that there are many people saying you can use Quicken to create a revocable trust for their class 3 or NFA ( National Firearms Weapons). While this is a true statement there are problems and potential dangers with using Quicken for a NFA Gun Trust. For more information you should read a posting on Gun and Firearms Trusts

    September 6, 2007

    Florida Wills: Separate Writing Memorandum

    Your Jacksonville Estate Planning Attorney should include a separate writing memorandum in the Valid Florida will that is prepared for you. Florida Statute, Section 732.515 allows a written statement or list referred to in the will to dispose of items which are tangible personal property.

    Jacksonville, Jacksonville Beach, PVB, Ponte Vedra Beach, Orange Park, Florida will modification

    • Property used in trade or business.
    • Property that must be transferred by deed such as an auto, land, or home.

    In order for the separate writing memorandum to be admissible, the writing must be signed by the testator and describe the items with reasonable certainty.

    The writing may be prepared before or after the execution of the will and can be changed after it is prepared. This makes most revisions to the will unnecessary, as many of the changes Florida estate planning lawyers see are changes on the distribution of personal property. If their Florida Will included a reference to a separate writing memorandum, the individual could change their Florida will when and as often as they like.

    Many clients ask their Attorney's, Can I add more pages or make changes after I have written something?
    Yes. Since the writing can be created before or after the signing of the Florida will, and can be altered by the testator after its preparation, the Florida Court will look at the different documents that are found, and then resolve any conflicts in favor of the latest writing.

    September 5, 2007

    Florida Wills: Revocation

    In Jacksonville and throughout the state of Florida a will can be revoked only in specific ways. If you want to make sure your will is revoked properly, you should have Florida Estate Planning Attorney or Jacksonville Estate planning lawyer help revoke your Florida Will properly. Jacksonville, Ponte Vedra, Jacksonville Beach, Orange Park, Duval, Clay, St. Johns Often we see individuals who try to change the test or cross off paragraphs of their will. This can cause problems and unintended results. To prevent these types of issues you might consider a separate writing memorandum at authorized under Florida Statutes, Section 732.515. Follow this link to read more on Separate Writing memorandums.

    1) Revocation by Writing: A Florida Will or Florida Codicil, or any part of either is revoked by a later inconsistent will or codicil, even though the subsequent will or codicil does not expressly revoke all previous wills or codicils. Such a revocation only extends to inconsistency.

    By a subsequent will, codicil, or other writing that declares the revocation and is executed with the same formalities as required for the execution of a will (Florida Statutes, Section 732.505).

    2) Revocation by Act: A Florida Will or Florida codicil is revoked if the writer of the will burns, tears, cancels, defaces, obliterating, or destroys the will with the intent and purpose of revocation. If Florida the testator can do the act, or in their presence have another individual do the act for them.(Florida Statutes, Section 732.506)

    Note: Under Florida Statutes, Section 732.509 When a will is properly revoked, it revokes all codicils to that will.

    September 4, 2007

    Nursing Home Admission Agreements

    Jacksonville Florida Elder law attorney.jpgShould you sign a Nursing Home Admission Agreement?"

    In the article they discuss the importance not to rush, but rather to read their agreements. Often there are misleading provisions. They recommend as a strategy to try to sign the agreement after the resident has moved into the facility. Once a resident has moved in, you have much more leverage, and there is a consideration argument that can be made if there is ever a dispute. For a contract to be valid in Florida, it must contain consideration of the part of both parties. If there is no consideration, a court can find that there was not contract.

    Often the areas to pay close attention to are the Responsible party, Arbitration provision, Private pay requirement, eviction procedures, and waiver of rights. A nursing home admission agreement is a very important document and can create substantial liability for Florida residents, Florida seniors and those signing them. You should always ask the nursing home to allow your Florida Elder Law Lawyer or Florida Business Lawyer time to review the agreement

    September 3, 2007

    Florida Guardianship: Preference of Appointment of a Guaridan

    In Jacksonville Florida and other Florida counties, your Florida Guardianship Attorney will help the ward present information to court. The court has the option to appoint any person who is qualified to act as a guardian. Florida Statutes, Section 744.312 requires the court to give preference to any person who is related by blood or marriage to the ward.

    In addition the Florida Court must also consider the wishes of the incapacitated person as to who shall be appointed guardian. This can be troublesome to the Florida court as the incapacitated person might wish to have a Florida Guardian who is not appropriate for the ward (themselves). The statutes require that the court consider the preference of the incapacitated person but the Florida court is not required to appoint the person requested by the ward.

    September 2, 2007

    Florida Guardianship: Appointment of a Guardian

    Right after the petition to determine incapacity, a petition to appoint a guardian is usually heard by the Florida Court. This process can vary from one city like Jacksonville to one in another area of Florida where it might happen a few days later. The appointment of a qualified guardian is very important and is one of the rights of the incapacitated person. Florida Statute, Section 744.3215

    September 1, 2007

    Are Pets Subject to Estate Taxes

    Since Leona Helmsley's dog inherited $12 Million dollars, when her dog dies will it have to pay estate taxes. If so will the trustee opt to take advantage of the 2010 unlimited exemption and euthanize the dog in 2010?

    It appears that New York's Pet Trust Statute makes allows the Pet trust to direct the use of the proceeds after the death of the dog or revert it back to the decedents estate.

    In addition, a court can reduce the amount of the property transferred if it determines that the amount substantially exceeds the amount required for the intended use.

    if you want to see what types pet trusts your state authorizes and the limitations on them, you might check out a comparison of state pet trusts.