October 2007 Archives

October 30, 2007

Estate Planning and Insurance

Jacksonville Live Insurance Trust Lawyer ILITAs a Florida Estate Planning Lawyer, I often advise people about the effects of an insurance payout on their beneficiaries or their taxable estate value.

Generally Life Insurance is not income taxable to the beneficiary of the policy but does increase the value of the estate. In the event that life insurance value would increase the value of the estate to the point that estate tax payment would be generated, it can be advisable to create a Florida Irrevocable Life Insurance Trust (ILIT). A Florida ILIT not only maintains the income tax benefits of traditional life insurance but also can reduce or eliminate the Federal Estate Taxes.

I recently read an article on Investors Business Daily that discusses the Pros and cons of company paid insurance. Anyone who has or is considering company paid insurance should read this article and review the taxable effects and investment costs with their accountant and financial planner.

October 30, 2007

No Free Lunch: Florida Seniors beware of free lunch offers!

Jacksonville Elder Law Lawyer, Medicaid Planning AttorneyAlthough there are legitimate "free lunch" seminars done by many respectable Florida Estate Planning Lawyers, the Securities and Exchange Commission (SEC) has found that many seminars may mislead seniors into making unwise investments. Florida Estate Planning Lawyers are prohibited from making advertising claims that are false and statements that are likely to mislead

The SEC was not investigating "free lunch" seminars by attorneys and primarily focused on investment and financial seminars. Many of the seminars made statements like "Immediately add $100,000 to your net worth."

The report recommends that financial firms supervise sales seminars more closely. It also recommends that ongoing senior investment education efforts include education about "free lunch" sales seminars.

The SEC filed charges against 26 companies and individuals in connection with a $428 million securities fraud scheme that targeted seniors.

Some of the senors were coaxed into investing into timeshares in Cancun and many used funds from their IRA accounts.

For more information and the full report Click Here

If you feel you have been a victim and Need Assistance. Please call the SEC's Office of Investor Education and Advocacy at (800) SEC-0330.

October 29, 2007

Best Email Practices: Protecting the Company's Privilege (Part 3)

Jacksonville Corporate Business Litigation lawyer attorney, Jacksonville email discoveryThis is the third part to a series on Protecting the Company's Privilege and the dangers of Email. Click here if you missed Part 1 and Part 2. Many Jacksonville Business Lawyers tell their clients that email can be very dangerous in the event of litigation. One should always be careful before pressing the send button.

Some of the things you should implement in regards to email are:

1) Provide training to employees teach them what the proper steps are to prevent inadvertent disclosures, spoliation, and other risks from occurring.

2) Always separate business advice from legal advise, use lead ins to make it clear that what is being provided is legal advise.

3) Indicate in the communications when the communication is for legal purposes or in anticipation of litigation.

4) Limit the distribution of any disclosure to avoid waiver of privileges.

5) Teach and train that any disclosure, even an unintended one, can be a waiver of the privilege.

6) Create, implement, and audit your firms document retention policy.

If you have question on your Document retention policy or how your firm is using email on an internal and external basis, be sure to have a Florida Business Lawyer or Attorney review and audit your procedures.

October 29, 2007

Successor Trustee: Duties and Responsibilities

You have just been asked to be a successor trustee for a Florida Living Trust. What will your trustee duties and responsibilities be? Do you want to accept? Are their downsides? I ran across an interesting article and have applied some of it to Florida law. This note will help you to understand what some of the common issues are and will help you to discuss your options with a Florida Estate Planning Lawyer. Remember that all Florida trusts are different, and that many of your duties, responsibilities may not be contained in the document. Therefore your document will need to be analyzed with the New Florida Trust code.

First Lets discuss some of the background information that will be necessary to understand your duties and responsibilities.

A Trust is a legal entity. When assets are contributed to the trust, the trust separates the legal ownership (possession) from the beneficial ownership (the principal and income). Often trusts look very much like wills because they include instructions for whom your your assets will benefit after our death. Some trusts are created during the life of the person who creates them ( the settlor or grantor) and some are created after their death (testamentary).

Florida Living Trusts work by separating the equitable ownership (the trustee)from the beneficial ownership (the beneficiary).

Who are the people involved in a Trust? The grantor (also called settlor, trustor, creator or trustmaker) is the person whose trust it is. Married couples who set up one trust together are co-grantors of their trust. Only the grantor(s) can make changes to his or her trust.

The trustee manages the assets that are in the trust. Many people choose to be their own trustee and continue to manage their affairs for as long as they are able. Married couples are often co-trustees, so that when one dies or becomes incapacitated, the surviving spouse can continue to handle their finances with no other actions or steps required, including court interference.

A successor trustee is named to step in and manage the trust when the trustee is no longer able to continue (usually due to incapacity or death). Typically, several are named in succession in case one or more cannot act. Sometimes two or more adult children are named to act together. Sometimes a corporate trustee (bank or trust company) is named. Sometimes it is a combination of the two.

The beneficiaries are the persons or organizations who will receive the trust assets after the grantor dies.

Continue reading "Successor Trustee: Duties and Responsibilities" »

October 26, 2007

How to change a WIll

Jacksonville Florida Will, Jacksonville Estate Planning Attorney.jpgClients often bring in Florida Will to amend which have been marked up several times. Usually, once there are so many changes that they cannot tell what the last change is, the decide to redraft or amend their will.

With a Florida Will, or a will drafted in another state, a Florida Resident cannot simply cross off part of a page or change the language on their own. The result will be that the court will look to see if they can determine what the original language was, and enforce it.

The reason for this is all Florida Wills, Florida Revocable Trusts, and Codiles (an amendment to a will) must comply with the Florida statute of wills. This requires that two people who witness each other and the person who is creating the will all witness each other signing the document.

To destroy your will, you must burn, tear, or cross through the entire pages of the will. Another way is by creating a new Florida Will which revokes all prior wills.

If you need help amending your Florida will, rewriting your Florida Will or reviewing you will for compliance with Florida law, you should talk with a Florida Estate Planning Lawyer.

October 26, 2007

Medicaid Application: What to do first?

Jacksonville medicaid Lawyer, Jacksonville Elder Law Lawyer
There have been many changes in the eligibility requirements for Medicaid. One of the most significant is that penalty periods and ineligibility periods begin from the date of application. It is for this reason, that you should have your documents reviewed by a Jacksonville Florida Elder Law Lawyer who works with Medicaid applications. As many posts of this blog have stated, the rules, and laws changed significantly in 2007. It is for this reason, you should not rely on books in print, friends, or family. It is highly unlikely that they have the experience necessary and have dealt with the new policies an procedures.

Michael Keenan of the Connecticut Elder Law Blog has begun a series which discusses How to Get Organized Before Filing Your Medicaid Application. I would suggest reading it and even if you are not a technically oriented person, make a copy and show it to your family or Florida Elder Law Attorney. Perhaps they can scan or help organize the documents for you.

October 23, 2007

IRS Issues Revised Form 706

Jacksonville Beach Tax Lawyer, Ponte Vedra Beach tax, Orange park estate planning lawyers, Jacksonville Estate Planning AttorneyLast month the IRS released a newly revised Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, and Instructions to Form 706. The new form is to be used for estates of decedents dying after December 31, 2006 and before January 1, 2008, and reflects changes in law as well as indexing changes.

According to the instructions, the following items are new:

  • Use of the revision is only for the estates of decedents dying in calendar year 2007.
  • The maximum tax rate for the estates of decedents dying in 2007 has decreased to 45%.
  • The Small Business and Work Opportunity Tax Act of 2007, P.L.110-28, extends the application of income tax return preparer penalties to all tax return preparers, including estate tax return preparers.
  • The decedent's authority over certain financial accounts in a foreign country must be reported on Part 4 - General Information.
  • Various dollar amounts and limitations are indexed for inflation, and the following amounts have increased:
    1. The ceiling on special-use valuation is $940,000, and
    2. The amount used in computing the 2% portion of estate tax payable in installments is $1,250,000.
  • Beginning with the estates of decedent's dying and generation-skipping transfers occurring after December 31, 2003, the generation-skipping transfer (GST) exemption is equal to the applicable exclusion amount. ($2,000,000 for 2007).

Visit the IRS website at www.irs.gov and look under Forms and Publications.

Source: Internal Revenue Service, Form 706 (United States Estate / and Generation-Skipping Transfer Tax Return) and Instructions for Form 706, Forms and Publications - September 28, 2007.

October 22, 2007

Does your Estate Plan contain a Designation for Pre Need Guardian?

What is a Pre-Need guardian and why is it important in Florida and other States? Very rarely do I run across Florida estate plans that have designated a Florida Pre-Need Grandmother-mother-daughter.jpg
Guardian. This simple document allows an individual if incapacitated to name someone in advance to act as your Florida Guardian. More importantly the Designation of Pre-Need Guardian allows you to say who you do not want to be your guardian.

Most Florida Estate Plans contain Florida Durable Powers of Attorney, but what if you need more than a Durable Power of Attorney? What if the Florida Court determines that you need a Florida limited guardianship or Florida plenary guardianship? What if a judge issues Emergency Guardianship orders? Who will be representing your interests. When you file a Pre-Need Guardianship with the Florida probate court, you are telling the world, and more importantly the judge who your preference is in the event that a Florida Guardianship is ever established.

You should speak with your Florida Estate Planning, Elder Law, & Guardianship Lawyer about implementing your rights to determine who you would to be appointed as your Florida guardian.

More information from the Florida Statutes

Continue reading "Does your Estate Plan contain a Designation for Pre Need Guardian?" »

October 22, 2007

Florida Statute of Wills: Wills, Revocable Trusts, Codicils

will.jpgWhen making a Florida Will, Florida Revocable Trust, or Codicil to a Florida Will there are several technicalities that must be complied with for the documents to be valid.

1) Who can make a Florida Will, Florida Revocable Trust, or Codicil to a Florida Will:
The answer to this can be found in section 732.501, Florida Statutes, where it states: Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.


2 What are the requirements for execution of the Florida Will, Florida Revocable Trust, or Codicil to a Florida Will:
Section 732.502, Florida Statutes, states:
(1)(a)The Testator must sign at the end of the will; and
(1)(b)Two witnesses in the presence of the testator, must sign that they witnessed the will.

Each witness must sign the Will in the presence of testator and each other.

Section 732.504, Florida Statutes :Unlike in some states a witness for these documents can be any person competent even if they are named in the will or will benefit from the will.

if you have questions about a Florida Will, Florida Revocable Trust, or Codicil to a Florida Willyou should speak with a Florida Estate Planning Lawyer.

October 19, 2007

Do it Yourself Wills? More bad news

I have previously written about Doing your own will in a post entitled Do it Yourself Wills? a Good Idea or Not?

Gerry W. Beyer of the Wills, Trusts, & Estate Professors Blog had an article that disccusses some of the other problems Do-it-yourself estate documents – the attractions and the dangers
In his article he discusses another problem that occurred because of a poorly drafted will stating that:

many seemingly straightforward cases contain large underwater stones. In one case, for example, stepchildren ended up paying $100,000 in legal fees to claim their inheritance; the reason is that their step-mother’s will left everything to her “children,” but she had never legally adopted her step-children

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

October 19, 2007

Can a Felon be a Personal Representative or Executor of an Estate?

Jacksonville probate Orange park PR, PVB executor qualifications

In Florida, the following classes of people are not qualified to serve as a personal representative of an estate:

(a) Has been convicted of a felony.
(b) Is mentally or physically unable to perform the duties.
(c) Is under the age of 18 years.

If the person named as personal representative n the will is not qualified, then letters of administration appointing the executor or personal representative shall be governed by Florida Statute Section 733.301

If you need help with a Jacksonville Probate Case or Florida Probate Case Please contact a Florida Probate Lawyer or Attorney.

October 18, 2007

Durable Power Of Attorney, Living Will, Trusts: & Co-Agents

Jacksonville Estate Planning Attorney, Orange park, Jacksonville BeachOften Estate Planning clients struggle with their spouse or self over who to pick as an agent to represent them in a Florida Durable Powers of Attorney ( Financial decisions), Florida Living will & Designation of Health Care Surrogate ( Health care decisions) and Revocable Trusts (Financial Management).

Initially clients might thing of using a Co-Agent. This can cause many problems and unforeseen circumstances and must be done with the correct expectations and knowledge of the potential problems. Michael Keenan has an article discussing several of these issues, titled Be Careful With Co-Agents. In summary, before choosing co-agents you should consider whether they get along well with each other, and what to do if they do not in the future.

In addition, what if one lives far away or moves after the documents are created. Some hospitals or financial institutions may require that both act together unless each co-agent has "several powers" or "joint and several powers" This can be difficult and impracticable. You put your financial and health interest at risk due to delay in execution of the documents.

Both Michael Keenan and David Goldman, a Jacksonville Estate Planning Lawyer & Attorney, recommend that unless there are extraordinary situations taking place, the use of co-agents should allow for flexibility and/or the ability for each to act independently.

October 16, 2007

Florida Employment Agreements: Terms and Conditions

employment-agreements.jpeg
As a Jacksonville Florida non-compete Lawyer, I often am asked about some of the provisions that are contained in a Florida employment agreement. I found an article on the Texas Non-Compete Law Blog, entitled Texas Executive Employment Agreements: Checklist for Employees and thought that the information would be relevant to my Florida Clients. I have based this information on what was contained in that article, but modified removed some information and added some that is specific to Jacksonville and throughout Florida .

1. Term of Employment. Employment agreements are either for a fixed term or at-will. An at-will employment agreement can be terminated by either party at any time for any reason. Some employment agreements that are purportedly for a fixed term (e.g., a one-year term) also contain provisions pursuant to which the employer may terminate the employee "for any reason" on shorter notice (e.g., "thirty days' notice")--such an agreement is in reality a 30-day employment contract.

2. Position, job duties, location. Employment agreements routinely contain provisions outlining what the employee's title will be, what their duties will be, who the supervisor will be, and where the work will be performed.

3. Compensation. Employment agreements often reference compensation or salary and sometimes discretionary compensation (e.g. bonuses and stock options).

4. Termination for Cause.
Employment agreements often provide that an employee may be terminated for "cause," and "cause" is defined to include various acts or omissions by the employee. Some acts--like commission of a felony and embezzlement of company funds are fairly easy to understand. However, defining "cause" to include the employee's failure to perform his/her job duties can be difficult because this can be subjective. Employees want what a clear non subjective definition of cause.

Continue reading "Florida Employment Agreements: Terms and Conditions" »

October 15, 2007

Florida Medicaid: How does your state compare

Jacksonville Florida Medicaid Lawyer PlanningAs a Florida medicaid Planning Lawyer, clients often ask about coverage, eligibility, and benefits in other states. I ran across an article entitled A Ranking of State Medicaid Programs on the Public Citizen website.

Here is a link to the overall ranking of states by Score Florida Ranks 26th If you would prefer this is a ranking by state name.Use this link for some details on Florida . You might be surprised to know that Florida ranks 4th on Quality of care.

October 15, 2007

What is Non-Solicitation & What is a Non-Solicitation Agreement?

Florida employment agreements and Florida non-compete agreements frequently contain non-solicitation clauses. These agreements or clauses prohibit an employee from soliciting the employer's clients and/or employees while they are employees and for a period of time after there employment.

The Texas Non-Compete Law Blog references a Massachusetts case that illustrates the difficulty in making the determination of whether an act or communication constitutes solicitation. They have very in depth article on this case. Here is a short summary of the case they review. The following provision was at issue:

Non solicitation Covenant. For a twelve (12) year period commencing on the date hereof, Seller shall not, directly or indirectly, (a) employ or contact any person who is employed or engaged by the Company or in any manner seek to induce any such person to leave his or her employment or engagement with the Company.
The issue in the case came down to whether social interaction with potential clients was a violation of the agreement.

The court found that social interaction could be a violation when there was an attempt to solicit clients for business, but that social interaction in itself was not restricted. The company could have prohibited all interaction but their agreement did not.

If you have a question about the validity or enforceability of a non-solicitation agreement under Florida Law, contact a Jacksonville Non-Solicitation Lawyer for a review of your facts and circumstances.

October 15, 2007

Updating Addresses in Estate Planning Documents

As an Estate Planning Lawyer in Jacksonville Florida, I am often asked about issues dealing with addresses in Florida Wills, Florida Trusts, Florida Living Wills, Florida Durable Powers of Attorney, and other documents.

Generally the address and phone number in these documents is to help locate or contract the person. In some cases they can be used to help distinguish one John Doe from the next. The Connecticut Estate Planning Blog had an example of when it might be important to update the address, but as the site states, this would only happen on a law school exam.

The only possible reason why such a move would prompt a legitimate will amendment is if the move created an identification problem. For instance, in the above example, suppose the client disinherited his other brother, also named Billy Bob (I don't think I've ever seen two brothers with the same name), out of his will, but then that brother moves to Glastonbury after the other Billy Bob moved from Glastonbury to Wethersfield. Now the will seems to identify someone who the client didn't intend to include as a beneficiary of his will.

Please note that the above facts only tend to arise in law school exams, not real life. Suffice it to say that address changes do not require will changes unless there are extraordinary circumstances.


If you are unsure about your Florida estate planning documents, you should have them reviewed by a Florida Estate Planning Lawyer.

October 11, 2007

Florida's New Trust Code and Some Mandatory Provisions Relating to Administration That Can Effect Existing Trusts

Jacksonville Florida, Duval, Clay County Fl, Ponte Vedra Beach, St. Johns County AttorneyAs a Jacksonville Living Trust Lawyer, I have noticed many changes that effect the administration of Trusts, even those which were already in existence when on July 1, 2007 when the Florida's New Trust Code became effective. If you are an estate planning attorney in another state and have clients who have trusts in Florida, it is most likely that their trusts must be managed differently than their trust document would imply.

1) A trustee has a duty to act in good faith in the interest of the beneficiaries and in accordance with the terms of the trust, imposed in part by sections 736.0801 and 736.0802.

2) There is a new 6 month statute of limitation sunder section 736.1008 with regard to any item set forth in a trust disclosure statement which contains a limitation notice containing the six-month period of time under 736.0604 within which to contest the validity of the terms of the trust.

3) The court has the power to take action and exercise jurisdiction as necessary " in the interest of justice."

4) The court has the power to modify or terminate a trust under sections 736.0410-04115, 0413, 0415, and 0416. Judicial modification in the best interest of the beneficiaries under section 736.0415(3) is not mandatory as to (i) any trust created prior to January 1, 2001 and (ii) any trust created after December 31m 2000 if it is subject to the Traditional RAP (90 years vs the expanded 365 Year RAP that Florida permits) or the trust expressly prohibits such judicial modification.

5) Nonjudicial modification with unanimous agreement of the trustee and all qualified beneficiaries under 736.0412 is not mandatory as to (i) any trust created prior to January 1, 2001, (ii) any charitable trust until the termination of all charitable interests, and (iii) any trust created after December 31, 2000 if it is subject to the Traditional RAP unless the trust expressly authorizes such nonjudicial modification.

6) New Spendthrift protections which affect the rights of creditors and assignees to reach a trust under part V of the Trust Code.

7) Trustee's duty under section 736.0503 to pay expenses and obligations of a settlor of a revocable trust upon death.

8) Trustee's duty under section 736.05055 to file a notice of trust with regard to a revocable trust upon the death of a settlor.

9) Trustee's duties under section 736.0813 to provide to qualified beneficiaries (or their designated representatives under 736.0306) (i) notification of the existence of an irrevocable trust, the identity of the trustee and their rights to trust accountings, (ii) a copy of the trust agreement and to account, and (iii) respond to requests for relevant information about the assets, liabilities, and particulars relating to the trust administration

10) Rights of third parties other than the trustee or beneficiary under sections 736.1013-736.1017

October 11, 2007

Common Mistakes Your Estate Planning Attorney Can Help You Avoid( in Florida and other states)

Jacksonville Estate Planning Attorney, Ponte Vedra Estate Planning Lawyer Orange Park Estate Planning AttorneyThe Princeton Business Journal had an interesting article on Common mistakes that your Estate Planning Lawyer can help you avoid

Without a will, living will, durable powers of attorney for healthcare and property or Letters of Guardianship, the state will likely decide the distribution of your assets and the caring of your loved ones. A Florida estate plan should clearly define the distribution of your assets, how and if care will be provided in the event you cannot exercise control over your medical care and who will act as the guardian for your children, dependents or for yourself.
Without a Florida estate plan you may:
• Not be providing for your family when you pass.
• Not be protecting your estate from estate taxes.
• Not be designating beneficiaries on assets.
• Not understand and plan for Medicaid, Medicare and long term care.

Princeton suggests Due diligence. When selecting a Florida Estate Planning Lawyer, you should check to make sure they spend a significant portion of their time and resources on Estate Planning. Otherwise, the end result could be disastrous and financially devastating.

Ask pointed questions, such as: What percentage of your practice is devoted to Florida estate planning? Will you consult with my financial planner to review all aspects of my wealth? If you are not provided with clear answers move on to the next candidate.

October 11, 2007

What are the most important considerations When Selecting an Estate Planning Attorney?

Jacksonville Estate Planning Attorney, Ponte Vedra Estate Planning Lawyer.jpgThe Princeton Business Journal had an interesting article on how to choose an Estate Planning Lawyer.
Princeton suggests Due diligence. When selecting a Florida Estate Planning Lawyer, you should check to make sure they spend a significant portion of their time and resources on Estate Planning. Otherwise, the end result could be disastrous and financially devastating.

Ask pointed questions, such as: What percentage of your practice is devoted to Florida estate planning? Will you consult with my financial planner to review all aspects of my wealth? If you are not provided with clear answers move on to the next candidate.

October 10, 2007

What are the most important considerations When Selecting an Estate Planning Attorney?

Jacksonville Estate Planning Attorney, Ponte Vedra Estate Planning Lawyer.jpgThe Princeton Business Journal had an interesting article on how to choose an Estate Planning Lawyer.
Princeton suggests Due diligence. When selecting a Florida Estate Planning Lawyer, you should check to make sure they spend a significant portion of their time and resources on Estate Planning. Otherwise, the end result could be disastrous and financially devastating.

Ask pointed questions, such as: What percentage of your practice is devoted to Florida estate planning? Will you consult with my financial planner to review all aspects of my wealth? If you are not provided with clear answers move on to the next candidate.

October 8, 2007

What is a Living Will? Part I

combo-livingwill.jpgAs a Jacksonville Estate Planning Lawyer, I find that I am explaining the terms of a Florida Living Will over and over and thought that I might be able to shed some light on what they are and how they are used with Florida Estate Planning.

A Florida Living Will is a document that says if I am both mentally and physically incapacitated and my treating (or attending) doctor and another doctor determine that there is no reasonable probability of my recovery from the condition, you direct that life-prolonging procedures be withheld or withdrawn when the application of the procedures would serve only to prolong artificially the process of dying.

It permits you to die naturally with only the administration of medication or medical procedures deemed necessary to provide me with comfort care or to alleviate pain.

You can agree with the above in one or more of the following conditions

1. When you have a terminal condition
2. When you have an end-stage condition.
3. When you are in a persistent vegetative state

Note in Florida the following definitions apply:
1."End-stage condition" means an irreversible condition that is caused by injury, disease, or illness which has resulted in progressively severe and permanent deterioration, and which, to a reasonable degree of medical probability, treatment of the condition would be ineffective.

2. "Terminal condition" means a condition caused by injury, disease, or illness from which there is no reasonable medical probability of recovery and which, without treatment, can be expected to cause death.

3. "Persistent vegetative state" means a permanent and irreversible condition of unconsciousness in which there is:

(a) The absence of voluntary action or cognitive behavior of any kind.
(b) An inability to communicate or interact purposefully with the environment.
4."Life-prolonging procedure" means any medical procedure, treatment, or intervention, including artificially provided sustenance and hydration, which sustains, restores, or supplants a spontaneous vital function. The term does not include the administration of medication or performance of medical procedure, when such medication or procedure is deemed necessary to provide comfort care or to alleviate pain.
After reading the definitions, there tends to be a lot of confusion between terminal conditions and end-stage conditions. You can read them over and over. The best way I have found to explain them is to say that cancer can be terminal. and at the very end when you have diabetes, and you are mentally and physically incapacitated, and you cant express any feelings and things are so bad that 2 doctors say additional treatments will do noting but prolong the process of dying ( this is about the time hospice would be called in).

Look for What is a Living Will Part II to find out what else should but is not usally included in your living will, how to execute one, and why you might want yours notarized, even if not required by the state of Florida.

October 7, 2007

Estate Planning for the Disabled in Florida

Florida Disabled, Jacksonville Handicapped, Jacksonville Nursing Home, Jacksonville Medicaid
As a Florida Estate Planning Attorney, I often get involved in planning for Disabled Florida Adults and Children. Often these individuals are receiving government benefits or expect to receive the in the future due to a physical or mental illness or disability. In some cases clients expect their spouse to need these benefits soon. If the individual receives income that is to create or acquires or maintains assets above a certain level, they will be unable to qualify for these government benefits.

Often the solution is to create a Florida Special or Supplemental Needs Trust. This trust can hold assets and income that would typically disqualify an individual. This money can then be used to supplement their lifestyle. The Connecticut Estate Planning Blog has a two part article on this topic and the rules there seem to be very similar to those in Florida. If you have someone in your family who is currently disabled, or you expect to need government benefits in the future, you should discuss this with a Florida Estate Planning Lawyer so that you can determine what the best option for your particular situation is.

October 7, 2007

Anatomy of a Florida Estate Plan

Jacksonville Living Trust, Jacksonville Beach, St Augustine, Ponte Vedra Living Trust, Orange Park Living TrustAs a Jacksonville Estate Planning Lawyer, one of the most common things I do is determine what is necessary for a clients Florida Estate Plan. Greg Herman-Giddens of the North Carolin Estate Planning Blog has an Article called the Anatomy of an Estate Plan where he discusses and defines the Basic Documents in an Estate Plan:

Will
Durable power of Attorney
Health Care Power of Attorney
Living Will

HIPAA Authorization, and
Living Trust
In addition to these document your Florida Estate Planning Attorney should be looking at
Insurance
Asset Titles and Beneficiary Designations
Investment Management
Asset Protection
All of this should be reviewed on a regular basis and always when one of the following happens:
(1) Marriage, divorce, death of spouse.
(2) Birth of a child.
(3) Children become financially independent.
(4) Birth of a grandchild.
(5) New business venture.
(6) Substantial growth in your business.
(7) Job promotion.
(8) Retirement.
(9) Purchase of life insurance.
(10) Move to a different state.
(11) Substantial increase or decrease in wealth.
(12) Decision to make large charitable gifts.
(13) Increase in risk of being subject to a lawsuit.
(14) Substantial amounts of property are in joint names.
(15) You purchase real property (including a time share) in another state.

October 6, 2007

Do It Yourself Estate Plan Disaster

As a Florida Estate Planning Lawyer, I often get asked about Florida Estate Planning and Using "Do it yourself estate plans" like quicken or other online services. Mark Jakubik with the Pennsylvania Estate Planning Blog has a good analogy about the topic:

Recently we were having some work done at our home. The contractor is a great guy, a true craftsman and a perfectionist. He is also expensive, but his work is so good that he is worth the price. While finishing up the job, he asked me one day about some estate planning questions that had been bothering him. We chatted for a few minutes, and I suggested we meet to have a more detailed discussion. "Can't I just download some stuff and do it myself?" he wanted to know. I asked him what he thought would have happened if I had tried to do the job he'd just finished for me by myself. "Total mess..." was the response.

October 5, 2007

Why do I need a Guardian for my Child?

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As a Jacksonville Estate Planning Lawyer, I often get asked about picking a Florida Guardian for a child in the even that the parents were to die before the child becomes an adult. There are two types of guardians one should consider to take care of their children. There is the person who will actually be taking care of the child, and the person who takes care of their money. Often these end up being the same person.

If a persons has Florida trusts included in their Florida estate plan, they can choose a guardian for the child, and a trustee to take care of the child's money or assets. This can prevent the need for a court maintained guardianship over the person. These are expensive to set up and in Florida, they require yearly reporting to the court. In addition, the court may determine that the funds are best protected in a restricted account. If funds are placed in a restricted account, the Trustee must hire a lawyer to file a petition to allow for use of money from the account. While this serves to protect the assets, it limits the investment opportunities, potential growth, and increases the costs of management. All of these fees and restrictions can actually cause the funds to decrease over time and the child may have less money at 18 then when they originally received it.

Susan Nattras an attorney in California has written an article What is a Legal Guardian And Why Do I Need One For My Child? In the article she discusses:
How to Choose the right person to be the Guardian? and gives some things to consider

Whose parenting style, values, and religious beliefs most closely match your own?
- Who is most able to take on the responsibility of a caring for a child — emotionally, financially, physically, etc.?
- Who does your child feel comfortable with already?
- Will your child have to move far away, and will that pose any problems?
- Does the person you're considering have other children? If so, would your child fit in or feel lost in the shuffle?
In addition Susan suggests that you consider the following issues:
- Does the person have enough time and energy to devote to your child?
- Is the same guardian right for each of my children? and
- What if I'm not married to my partner? What will happen to our child if I die?
Choosing a guardian, and evaluating the guardian properly are very important issues for every parent. If you live in Florida you should speak with a Florida Estate Planning Lawyer about your concerns and individual needs.

October 4, 2007

Do I really need a Florida Living Trust?

Jacksonville Florida, Duval, Clay, St. Johns County AttorneyAs aFlorida Estate Planning Lawyersand a Jacksonville Estate Planning Lawyer I often receive questions about Florida Living Trusts. These usually come after clients attend seminars given by Estate Planning Organizations. Often they are not law firms, but some are.

Although there are benefits to Florida Living Trusts, sometimes they are not necessary. I often get questions from clients who have less than 100,000 in assets who have been told that a Florida Revocable Trust or Florida Living Trust is the answer to their Florida Estate Planning needs.

To answer the question, "Is a Florida Living Trust right for me?" a Florida Estate Planning Lawyer needs to look at the clients individual financial circumstances. I have found that many times, simple payable on death designations will accomplish the same results as a Revocable Trust.

Other times the cost of the Florida Living Trust is more than the savings in probate, and what is saved is time. Although cost of probate is not the only consideration, it is usually one of the primary concerns of clients.

The Connecticut Estate Planning Blog has a detailed review of the issues that must be looked at to determine if a Living Trust is right for you.

October 3, 2007

Personal Representative / Executor Requirements

Your Florida Estate Planning Lawyer will tell you that being appointed the PR / executor of an estate is not easy. The PR takes a personal risk and large responsibility to the estate of the decedent, the IRS, and the beneficiaries.

client-meeting.jpgThe main job of the PR is to manage the administration of an estate. Many small estates in Florida are distributed without the need of a Personal Representative or Executor. If the decedent had valid Florida Will, the PR can be name from the will, if not the court will appoint a PR based on qualifications and an order of priority. Generally the spouse is the first to be chosen as a PR, next the adult children along with any children who have legal guardians can be the PR. There is a statutory scheme to determining who will be the PR in a Florida Probate Case.

The PR will be responsible for locating the will, and additional documents to help determine what the debts and assets of the decedent are. In Florida probate requires a Florida Attorney. Once you are appointed as the PR, the court will issue you Letters of Administration. This document allows you to act on behalf of the estate. When you take actions, you will have to notify any interested parties (beneficiaries and creditors). The assets of the estate may be used to pay valid claims. One very important job of the PR is to file all current and final tax returns. This is one area where the PR has personal liability for unpaid taxes, penalties, and interest. Once all of the assets have been accounted for, creditors paid, and beneficiaries determined, the PR will distribute the remaining assets as instructed in the will or by the intestate statutes. The PR is also responsible for filing the accounting (a balance sheet showing the amount of the assets and whom they belong to).

The personal representative is entitled to compensation for the work that they do. The personal representative is also able to hire professionals or others to advise and administer aspects of the estates.

October 2, 2007

Powers of Attorney for College Students

Jacksonville Living WIll, Jacksonville Durable Power of Attorney
As a Jacksonville Estate Planning Attorney, I wanted to share with you and your family an important planning idea on he use of Powers of Attorney and Health Care Surrogate forms for college students and adult family members that are under 30 years of age. These documents are recommended because of the higher standards of patient privacy that hospitals and physicians are now being held to under the Health Insurance Portability and Accountability Act ("HIPAA"). Because of this, medical providers, family doctors, and health care centers are often unable to provide medical information to anyone without the authority of the patient.

Section 1177 of HIPAA imposes strict penalties on anyone who violates the law by providing a patient's individually identifiable health information to another person, even a parent or spouse. Specifically, the law states as follows:

(a) OFFENSE -- A person who knowingly and in violation of this part--
(1) uses or causes to be used a unique health identifier;
(2) obtains individually identifiable health information relating to an individual; or
(3) discloses individually identifiable health information t another person, shall be punished as provided in subsection (b)
(b) PENALTIES. -- A person described in subsection (a) shall--
(1) be fined not more than $50,000, imprisoned not more than 1 year, or both;
(2) if the offense is committed under false pretenses, be fined not more than $100,000, imprisoned not more than 5 years, or both; and
(3) if the offense is committed with the intent to sell, transfer, or use individually identifiable health information for commercial advantage, personal gain, or malicious harm, be fined not more than $250,000, imprisoned not more than 10 years, or both.

According to Section 1171, "individually identifiable health information" means any information, including demographic information collected from an individual that:
(A) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and
(B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provisions of health care to an individual; and
(i) identifies the individual; or
(ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual.

Because of the harsh penalties, many health care providers may be unwilling to disclose a patient's information to anyone else, even that patient's spouse or parents. Once a child turns 18, the natural parents no longer have authority over their child's financial or medical decisions. In fact, when distressed parents and family members of some of the students at Virginia Tech tried to discover information about their children, medical providers were unable to release information without the proper release form. Thus, I am preparing Durable Powers of Attorney and Designations of Health Care Surrogate for many clients who have children who are 18 or older. Typically, we designate the parents as their Attorneys-in-fact and Surrogates to make financial decisions and health care decisions should they not be able to do so themselves. In addition, I ask their children whether they want to execute Living Wills. Each of our clients typically executes these documents for themselves, but in the past, many have not executed them for their adult children.

Continue reading "Powers of Attorney for College Students" »

October 2, 2007

Are Wills Still Valid After Moving To Another State?

Valid Jacksonville will, Ponte Vedra Beach, Orange Park WillsIf you move to Florida from any state or country, Florida will recognize any will that was properly executed as to the rules of another state except Holographic wills.

A holographic will is one that is entirely in the handwriting of the creator. Florida does have an exception to their rule against accepting holographic wills, that is for those holographic wills that are witnessed by two witnesses and notarized.

In almost all cases new states will recognize a validly executed will from another state. It is best to check with an Estate Planning Lawyer in your new state to make sure that your will is valid and deals with any special laws that may be available in the new state.

In addition if you are moving from or to a community property state (Arizona, California, Idaho, New Mexico, Louisiana, Washington, Nevada, Texas, Wisconsin, and Alaska) to a state which a common law property state (like Florida), your will should be reviewed as there is a significant difference in the way property is held.

Be sure to look at your other estate planning documents like llving wills, advanced health care directives, and durable powers of attorney as these might be regulated differently in your new home state.

October 1, 2007

Spousal / Elective Share: Constitutional or Not?

Jacksonville spousal share, Ponte Vedra Spousal Share, Orange park elective share.jpgOften in the process of Florida Estate Planning, Florida Elder Law, or Florida Probate I get asked about the effects of Florida's Spousal Share Statutes. The statutes reserve 30 % of the decedents estate for a spouse in the event that the decedent did not provide at least that amount in their will or other Florida Estate Planning Documents. This right can be waived by the spouse in pre or post nuptial documents. Often for wealthy clients, or those who are legally separated but not divorced the spousal share can become a big issue. If you think that a spousal share might be an issue with your estate planning, you should discuss it with a Florida Estate Planning Lawyer.

Last week a Florida Appeals Court looked at, Whether Florida's Spousal Share Statutes were constitutional or not?

Generally Florida Statutes are constitutional unless they are not rationally related to furthering a valid governmental objective. Lane v. Chiles, 698, So.2d 260, 262 (Fla 1997) In this case the court looked at whether the potential loss of property rights were rationally related to providing a share in the assets of the decedent.

The Florida Appeals Court upheld the statute and found that the statute was rational related to the purpose. The Florida Probate Litigation blog has an excellent analysis of the case In RE Estate of Magee Download file.

October 1, 2007

Common Law Marriage and Estate Planning

Florida Common Law Marriage, Jacksonville Common Law, Orange park, Ponte Vedra BeachAs a Jacksonville Estate Planning Lawyer, I learned that Florida did not recognize common law marriages. About a week ago, the founding partner of Wood Atter, came into my office and asked me about an estate plan involving a couple that were married under the common law many years ago.

Later I discovered that common law marriages prior to 1969 were valid in Florida. I asked some divorce Lawyers some questions and learned, that once married under the common law, you must still be divorced in a court. The divorce is the same process as with a traditional marriage.

Then I began to think that with the number of people who separate and never get divorced, there must be some estate plans had the potential for disruption because of an unreported common law marriage.

For example, a Husband and Wife were married under common law in Florida prior to 1969. They are later separated but not officially divorced. There would not be an official record of their marriage, so when one dies, there is an opportunity for the property of the estate to be distributed incorrectly.

If you were married through common law and now live in Florida It is important for you to have a Valid Florida Will that represents your wishes, if you are sepearted from your spouse and married either under the common law or by the state, you need to evaluate your Florida Estate Plan to make sure you assets are distributed as you desire.

Florida has some unique benefits for the spouse, if you were married under the common law and not divorced in a court, and your spouse died in Florida, you are probably entitled to some or all of your spouses assets. You should talk with an Jacksonville Florida or other estate planning attorney where your spouse lives or where your spouse died.