January 2008 Archives

January 31, 2008

Second Marriages: Estate Planning and More

Jacksonville Florida Lawyer WeddingWhen considering getting married for the second time, or to someone with a prior family it is important to consider Estate Planning, Long-Term Care, the family home, Social Security, Alimony, Survivor's Annuities, and College Financial aid as an article on Forbes has reported.


Florida Estate Planning becomes very important when there are children from outside the current marriage. A spouse in Florida is entitled to a 30% share of all assets unless there is a prenuptial or post nuptial waiver.

in addition aFlorida Revocable Trust or prenuptial agreement might not keep a spouse from being responsible for long-term care and can have an effect on Florida Medicaid Planning and Eligibility

The Florida Supreme court has said that a spouse may wave their rights to a family home, but the constitutional rights of the Florida Homestead are very strong and should be considered.

Social Security
needs to be considered an the benefits from former will be affected by remarrying before the age of 60. After age 60 you may be able to collect benefits from a new spouse if those benefits are higher.

Alimony and Survivor's Annuities will likely end if you remarry.

College Financial Aid might be affected if the income of the family changes.

For more information on Florida Estate Planning Contact a Florida Estate Planning Lawyer.

January 31, 2008

Estate Planning for Non-U.S. Citizen Spouses

How is a Florida Estate Plan different if you or your spouse is not a citizen of the United States? The Connecticut Elder Law Blog reported in an article that if non U.S. citizens have a completely different set of estate tax rules to contend with.

If the U.S. citizen dies first, then the estate tax could become due at that point and the government does not wait until the death of the second spouse like when both are U.S. citizens. Michael Keenan states that the a common approach is to use a QDOT to deal with this issue.

if you or your spouse is not a U.S. citizen you should contact a Florida Estate Planning Lawyer to understand how this can affect your estate planning.

January 30, 2008

Reasons to Create a Living Trust

Mark Jakubik of the Pennsylvania Estate Planning Lawyer Blog posted an article Reasons to Prepare a "Living Trust" where he has compiled a good list of reasons. They are:

* Avoiding probate. Since the property is no longer in your name as an individual, but is now in your name as trustee, there is no reason to go through probate. This is a savings of 5%-10% of your gross estate. An additional benefit is that it will only take weeks instead of years to transfer your property to your heirs.

* The trust will remain private. Unlike a will, which has to be filed as a public record in the probate court, the trust remains a private document even after your death.

* With certain provision in the trust, you can completely avoid or reduce estate taxes. This can mean savings of literally thousands of dollars.

* You avoid the potential of a guardianship hearing because you have already named someone to take your place if you are unable to handle your affairs. In addition, you can set up your trust to allow your family Doctor to make the decision of whether you can handle your own affairs. The alternative is to allow a judge to do this in a public hearing.

* If your heirs are too young or immature to handle the money you will leave them when you die, you can use a trust to determine when they will receive the money and how much they will receive each time. For example, you can leave instructions that say, when my child reaches 30, he gets 1/3 of the property. When he reaches 35, he gets another 2/3. And when he reaches 40, he would receive the final 1/3, or the remaining balance of the estate.

* The trust is less open to attack than a will. This means that your wishes have a better chance of being carried out.

* In the context of a second marriage, the trust is an excellent way to protect both the surviving spouse and the children from your previous marriage.

* If you have property in another state the trust will eliminate the probate in the other state.

* Transferring property through a trust allows your property to receive a stepped up basis. This could greatly reduce the amount of capital gains tax your heirs will pay.

* Setting your finances in order will give you peace of mind.

Not all of the numbers are the same for Jacksonville Florida Living Trusts. Please contact a Jacksonville Living Trust Lawyer to discuss your needs.

January 29, 2008

Amending Life Insurance Trusts in Florida

ILIT Florida Life insurance Trust and Jacksonville Estate PlanningCan I amend my life insurance trust?

A Florida Life Insurance Trust is an irrevocable trust and can generally not be amended. Although Florida's new trust code does allow for easier amendments of trusts when the primary purpose of the trust will not be accomplished by the current form. An example of this might be when the trust's beneficiary dies. This type of judicial modification is not certain and would depend on the circumstances and the court's willingness to agree.

One other way to modify a life insurance trust (ILIT) is to let the policy expire and create a new life insurance trust. Sometimes this is not practical because of a change in the health or age of the individual.

Most estate planning lawyers will plan for such contingencies in the original documents to avoid the necessity to modify, or create new trusts in the future.

Each set of circumstances is unique you should contact an Estate Planning Lawyer to review your needs and circumstances in dealing with changes with a Life Insurance Trust.

January 28, 2008

Florida Unrecorded deeds and Estate Planning

unrecorded Florida Deed and Jacksonville Estate PlanningNormally a Florida Estate Planning Lawyer would advise against signing a deed conveying a home or other property without recording the deed.

What happens if a Florida deed or Florida Enhanced Life Estate Deed is signed but unrecorded?
Is the deed valid?
What risks are associated with unrecorded deeds?
Why would someone want to sign a deed but not record the deed in Florida?

A Florida Deed is not invalid just because it is not recorded. There is the potential for claims from other people if they record a deed before you record a deed. In Florida, when a deed is recorded there are taxes that must be paid on any outstanding mortgage. For every $1000 of mortgage a fee of $70 is charged. While this may not seem like much, if the loan is $100,000 the fee will be $700 and if the loan is $500,000 the fee is $3500. Often people want to transfer the ownership of their property but expect to pay off outstanding loans prior to their death. To save the fees, clients often ask about waiting to record the deed. We would generally advise against such actions as in Florida the first person to record a deed, who does not have notice of a prior deed, and who pays for the property will be considered the owner.

As people age, they may forget that they signed a prior deed, and sell the property to someone else. If that person records before you do, your claim or right to the property would be invalid. In addition, as people age, they are sometimes taken advantage of and do things against their will. Although there may be a claim for undue influence, these are very hard and expensive to prevail on.

Another potential problem could arise if your father's estate plan distributes the real estate to someone other than you. If your dad's will bequests the property to your sister and you go to record your deed, you might find yourself on the business end of a lawsuit involving the estate.

There is always a chance the rules relating to recording a deed change. The current sales disclosure form that must be filed with deeds needs to be signed by both parties.

Unrecorded deeds can be useful under certain limited conditions, such as death-bed planning. However, personally, I would generally be reluctant to advise using an unrecorded deed. When clients ask about them it is important to let them know the risks associated with them.

Each set of circumstances is unique and sometimes the use of an unrecorded deed in Florida is worth the risk. You should contact an Estate Planning Lawyer to review your needs and circumstances prior to executing an unrecorded deed.

January 27, 2008

Overriding your will by mistake

Jacksonville Florida WillWhen reviewing your Florida Estate Plan be sure that your will does not conflict with other actions you have taken to avoid probate.

Assets that have joint ownership, payable on death designations or beneficiaries will not pass to the beneficiaries names in your Florida Estate Planning Documents. Often a person's will leave assets split equally among their heirs. When a bank account, IRA, CD, or life insurance policy names someone else as the owner, the asset is not counted as part of the estate and the asset will not be split how the will designates.

This can reduce the amount of assets that other beneficiaries receive compared to the person who is the joint owner or beneficiary of the bank account, IRA, CD, or life insurance policy.

One solution to this problem is the use of a funded Florida Revocable Trust or Florida Living Trust. The technique would be to name the trust as the beneficiary and have the trust make the distributions as you want.

For more details on these or other techniques you should contact to a Florida Estate Planning Lawyer or have your attorney review all of your account designations along with your Florida Estate Planning Documents.

January 23, 2008

IRA Beneficiaries - Know the Rules

As Baby boomers retire and move to Florida or other states, one of the jobs of an Estate Planning Lawyer is to review the Beneficiaries on IRA and other types of accounts. Denice Glerach a lawyer in Naperville wrote an article discussing this problem and suggesting some solutions for IRA's suggesting that most people do not realize that the money in a traditional IRA account or employee benefit accounts are subject to income taxes by the recipient as well as estate taxes upon the death of the IRA owner.

Several options are mentioned
Leaving the IRA to a charity - Should eliminate the income tax and estate tax.
Leaving the account to a trust to defer income tax and protect it from creditors.
Structuring the trust correctly to reduce or defer income taxes by spreading the distributions.
Using a Conduit trust or an accumulation trust as the designated beneficiary to qualify as a designated beneficiary to help protect the assets. and
Not missing real people with charities was beneficiaries because charities are not considered to have a life expectancy.

You review the beneficiaries on your estate planning documents and all accounts on a regular basis.

January 22, 2008

Florida Firearm Legislation Has Been Filed

Below is some information I on proposed Florida gun legislation.

The following bills have been filed to protect your constitutional and statutory right to have a firearm stored in your vehicle in a parking lot for self-defense and other lawful purposes.

House Bill 503 by Greg Evers (R) (CO-SPONSORS) Mitch Needelman (R)
Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008:
Creates "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008"; prohibits public or private entity from prohibiting customer, employee, or invitee from possessing any legally owned firearm that is lawfully possessed & locked inside or locked to private motor vehicle in parking lot; prohibits such entities from violating specified privacy rights by verbal or written inquiry or by search to ascertain presence of firearm within motor vehicle; prohibits certain actions by public or private entity against customer, employee, or invitee; prohibits employer from conditioning employment upon agreement by prospective employee that prohibits employees from keeping legal firearm locked inside motor vehicle; prohibits employer from attempting to prevent or prohibiting any customer, employee, or invitee from entering parking lot of employer's place of business when customer's, employee's, or invitee's motor vehicle contains legal firearm; prohibits employers from terminating employment of or otherwise discriminating against employee, or expelling customer or invitee, for exercising specified constitutional rights; provides specified immunity from liability; provides for enforcement of act; provides for award of costs & attorney's fees.

Senate Bill 1130 by Durell Peaden (R) Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008: Creates "Preservation and Protection of the Right to Keep and Bear Arms in Motor Vehicles Act of 2008"; prohibits public or private entity from prohibiting customer, employee, or invitee from possessing any legally owned firearm that is lawfully possessed & locked inside or locked to private motor vehicle in parking lot; prohibits such entities from violating specified privacy rights by verbal or written inquiry or by search to ascertain presence of firearm within motor vehicle; prohibits certain actions by public or private entity against customer, employee, or invitee; prohibits employer from conditioning employment upon agreement by prospective employee that prohibits employees from keeping legal firearm locked inside motor vehicle; prohibits employer from attempting to prevent or prohibiting any customer, employee, or invitee from entering parking lot of employer's place of business when customer's, employee's, or invitee's motor vehicle contains legal firearm; prohibits employers from terminating employment of or otherwise discriminating against employee, or expelling customer or invitee, for exercising specified constitutional rights; provides specified immunity from liability; provides for enforcement of act; provides for award of costs & attorney's fees.

WHY THESE BILLS ARE NEEDED

These bills will stop business entities from searching private vehicles and violating the constitutional rights of customers and employees.

Your Second Amendment rights are at the very heart of this issue. In addition to prohibiting searches of private vehicles in parking lots, these bills also prevent businesses from asking customers or employees to disclose what personal private property is stored in private vehicles and prevents action against customers and employees who refuse to divulge that private information. Furthermore, it prohibits action against a customer or employee based on information provided by a third party.

Some Florida businesses are trying to ban firearms in cars in parking lots used by customers and employees. They are discriminating against people who exercise their constitutional rights - they are violating the constitutional rights of gun owners and Florida law.

Corporate giants have been trampling constitutional rights. Some are even attempting to coerce and intimidate gun owners into giving up their constitutional rights as a condition of employment.

Your Rights are in Danger!

Carrying firearms in a vehicle for hunting, target shooting or protection of yourself and your family obviously means you can leave that firearm locked in the vehicle in a parking lot when you go grocery shopping, to the doctor's office, to a movie theater, to visit a sick friend in the hospital, to rent a movie, to the shoe store or anywhere else normal people travel to conduct business.

Florida law, the U.S. Constitution, and the Florida Constitution clearly and unequivocally give law- abiding citizens the right to have firearms in their vehicles for lawful purposes.

How can anyone justify telling a woman who is being stalked that she can't have a firearm for protection? In many cases police tell these women to get a gun for protection because police can't be there to protect them -- and calling 911 is nothing more than government sponsored dial-a-prayer.

A business owner or manager has no more right to say you can't have a firearm in your private vehicle than they have a right to say you can't have a pair of sunglasses, an umbrella, a Bible or a baby seat.

Such an anti-gun political exercise is not good business sense. They want your money, but don't respect your rights.

Businesses are not allowed to discriminate against employees and customers because of race, religion, political party, color of eyes, hair or weight. And they certainly can't discriminate because of the exercise of lawful self-defense. And, make no mistake, these gun ban policies are blatant discrimination against people who chose to exercise a constitutional right and take responsibility for their own safety.

January 22, 2008

Beware of Trust Mills

Randall Armour of the Santa Clarita Valley Signal wrote an article discussing Trust Mills and gives some advice on how to spot a trust mill and several problems associated with them.

1. Trust mills often prepare documents after the client has filled out a simple check-the-box-type questionnaire. Little or no counseling or advice is given to the client and the client may meet with a "paralegal," CPA or financial adviser, but not with an attorney.

2. The cost of the documents is a good indicator of whether or not you are dealing with a trust mill. Trust mills usually charge from $300 to $700 for their documents. Just remember, you get what you pay for -- in this case, not very much!

3. Trust mills often provide documents for limited purposes such as avoiding probate or estate taxes.

4. A major problem with trust mills is the lack of proper assistance in funding the trust. Most mill trusts created are not properly funded and the documents do not provide a way of funding the trust after death without probate. A trust must be properly funded to work.

Some common issues not dealt with by Trust Mills are:

Failure to fund, mentioned above.
Failure to consider retirement funds and insurance policy funds which could lead to increased estate taxes, distributions, and income tax.
Failure to address issues such as incompetency, children from prior marriages and tailoring management and distribution of assets for beneficiaries who may be unable to properly manage their inheritance.

For more issues with Trust Mills and what other states are doing to stop them from harming their citizens see this article.

January 22, 2008

Living Trust Mills Winding Up In Some States

Although there are no current verdicts against Florida Companies, many states have taken action against living Trust Scams / Trust Mills / and Elder Law Planning Seminars. Michael Bonasera of Buckingham Doolittle & Burroughs, LLP and author of the The Ohio Trust & Estate Blog wrote an article titled Living Trust Scams/Trust Mills/Elderlaw Planning Seminars - STAY AWAY! where he mentions a previous posting on this Blog, Florida Estate Planning Lawyers Blog, on a similar topic dealing with a Texarkana Arkansas class action suit.
I thought I would start a list of Living Trust Scam Articles and resources on my blog.

1. Texarkana Arkansas Living Trust Seminar Class Action suit
2. California Living Trust Mill Judgment
3.Texas Bar story reported by Professor Beyer of Wills, Trusts & Estates Prof Blog- Living trust Scams and Senior Consumer
4. Michael Bonasera wrote an article titledLiving Trust Scams/Trust Mills/Elderlaw Planning Seminars - STAY AWAY! where he Ohio's history with Trust Mills and cites a case Ohio Trust Mill Case of Cleveland Bar v Sharp Estate Services, Inc. which seems to have ended Trust Mills in Ohio.
5. Beware of Trust Mills when Estate Planning - by Randall Armour, CA Lawyer- reported on by Florida Estate Planning Lawyer Blog

If anyone has heard of additional Living Trust Scam / Trust Mill or Elderlaw planning Seminar articles please contact me and let me know and I will update the list.

January 19, 2008

Gun Licensing and The Supreme Court

Many gun owners are concerned about how the Supreme Court may rule in a case that is before them. A client of mine sent me a video link that shows what has happened in the UK and Australia.

We have seen a substantial increase in the number of people looking to establish NFA Gun trusts in the past few months. Many are concerned with who the next president is and all seem concerned with the outcome of the case before the Supreme Court where a states ability to limit gun ownership is at issue.

January 17, 2008

Supreme Court Limits Deductions on Trusts

The Supreme Court upheld the limits on income tax deductions for a trustsor estate. The Court ruled against the Knight family (they created Pepperidge Farm).

The Court said trusts ordinarily may not deduct the full cost of investment advice on their income tax returns. These expenses are only deductible when they exceed 2 percent of adjusted gross income of the entity. These are the same as with individuals.

The case dealt with a small dispute and involved the Trusts income tax return.

The trust reported that it spent $22,241 on investment advice and deducted all of it on its tax return. The Internal Revenue Service said the expenses could be deducted only to the extent they exceeded the 2 percent floor. The discrepancy was $4,448.

The trust sued in U.S. Tax Court, which ruled for the government and the case was affirmed by the 2nd U.S. Circuit Court of Appeals before being heard by the Supreme Court

The case is Knight v. Commissioner of Internal Revenue, 06-1286.

January 17, 2008

Death of Employee and Final Paycheck

Florida Paycheck Lawyer AttorneyA paycheck of a decedent belongs to the Decedents estate. Florida Employers should not cancel nor refuse to issue paychecks for employees who die. Florida Employers should follow their normal procedures. If no one checks on the status of the paycheck, it would be a good idea to send notice to their address that the check is being held for their estate. This gets more complicated with direct deposit where the funds could go to the wrong person. The decedent could have a joint account with someone who was not the same person who would take under the will.

If you have questions about receiving or what to do with the earned but unpaid income of a decedent in Florida you should contact a Florida Estate Planning Lawyer who is familiar with Florida Business Law.

January 16, 2008

Medical Powers of Attorney for Minor Children

Florida residents who have minor children should consider executing a power of attorney which allows another to take care of their minor children medically if they are unable to do so or unavailable at the time.

A medical power of attorney for a minor child is just another piece in the estate planning jigsaw puzzle. Like many estate planning documents, it isn't for everyone. However, if you are like my family and your children spend a lot of time in the care of another loved one, a MPOAMC is an important piece.

Contact a Florida Estate Planning Lawyer to create a medical power of attorney for your minor children.

January 15, 2008

Class Action Suit Against Living Trust Sellers

A number of Texarkana residents have filed suit against sellers of living trust documents in a class action accusing the salesmen of exploiting senior citizens. This is similar to what I reported happening in California in December.

A Plaintiff says he purchased a living trust after attending a lunch presentation at a restaurant. He states the document was misrepresented and that if he dies with only these estate-planning documents, his estate will still need to be probated because the living trust failed to factor in his real property in Arkansas.

The living trust sellers are facing allegations of "masquerading as qualified financial advisers, estate planners, lawyers, and paralegals" to "exploit and prey" upon senior citizens with the creation and selling of "unnecessary and often useless" living trusts.

Defendants are accused of fraud, unauthorized practice of law, negligence, breach of fiduciary duty and conspiracy. The suit alleges that the defendants created and sold the living trusts as part of a scheme to gain access to senior citizens' financial information in order to sell annuities and other financial products.

According to the original complaint, the scheme begins with advertisements that persuade senior citizens to attend a free lunch or dinner. At these meetings, the "unlicensed" living trust defendants conduct presentations and distribute materials that misrepresent the impact of probate fees and estate taxes in order to create fear that the senior citizens need to buy a trust to prevent heirs from losing their estate.

These presentations include references to celebrities such as Elvis and describe the large amounts these celebrities have paid in estate taxes. The plaintiffs state these presentations do not include information about the federal estate tax exemption, the sliding scale of the exemption amount, or the possibility of the elimination of future estate taxes.

Further, the presentation does not tell senior citizens with estates larger than the exemption amount that the purchase of these living trusts will not automatically eliminate all estate taxes. The forms and decisions made by the defendants fail to take into account the entire senior's assets and ultimately and fail to serve the legal purpose as presented, argue the plaintiffs.

The plaintiffs claims the presentations convince the senior citizens to use their IRA accounts or other tax-exempt growth products to purchase variable annuities. However, according to the plaintiffs' accusations, the presentations and documents do not demonstrate the redundancy with regard to a variable annuity's tax deferral benefit when purchased in a qualified plan and also do not inform the consumer of the associated fees, surrender charges and commissions associated with these variable annuity products.

These types of programs are everywhere. It is important to use a lawyer who will look at your individual assets and who is not trying to sell you other financial products. To review your estate planning needs contact a Florida Estate Planning Lawyer.

January 14, 2008

Florida Prepaid Funeral Plans and Estate Planning and Elder Law

Part of Florida Elder Law planning and Florida Estate Planning includes planning for funerals. medicare exempts prepaid funeral plans in Florida and many other states. Sam Hasler of the Indiana Civil & Business Lawyer Blog has an article about this. He has an article dealing with the these by a cash purchase and funding them by insurance policy.

Setting up a prepaid funeral trust means going to the funeral home and selecting the sort of funeral you want. Before going to the funeral home, you should read the Federal Trade Commission's Funerals: A Consumer Guide. The FTC's Funeral Home Rule requires a funeral home to display a price list that includes all goods and services the funeral home will provide to the buyer. The funeral trust funds whatever the buyer selects.

I know no one likes to consider Florida Wills, Florida estate planning or funerals, but not doing can leave your survivors making the choices and may leave them in the same position as the Randolph family.

If you will be needing to qualify for government assistance, it is important that your funeral plan will qualify. Please contact a Florida Estate Planning Lawyer for help in determining eligibility for these programs.

January 13, 2008

Leaving IRA Money to a Minor

Fox Business has an article on A New and Smart Way to Leave Your IRA to a Minor where they discuss the importance of reviewing beneficiaries on all acounts including insurance, annuities, and retirement plans.

They discuss leaving a percentage of the account rather than a dollar amount as this can cause complications if there are not enough assets in the account.

"If you don't name someone in your will to act as "financial guardian" for your granddaughter, then your IRA will end up in probate court with a judge making the decision. And it might not be the person you'd want. (Your son-in-law, for instance.)"

Not only that, once the probate court is involved, it can get very expensive, depending upon the laws of the state where the minor lives. "The court gets joint jurisdiction," says Goldberg. It can require the guardian to post bond and prepare annual reports on how the money was spent. You may need pre-approval each time you want to take a withdrawal. The court could require that the money be taken out as a lump sum, negating the benefits of "stretching" withdrawals over your granddaughter's life expectancy.

To avoid the jurisdiction of the probate court, you can leave your IRA to a trust instead of directly to your granddaughter. As the beneficiary of the trust, she would still receive all of the benefit of your IRA. You get to appoint a trustee- which can't easily be changed by a court- and this individual would take the annual required distributions from your IRA. The money goes into the trust and, based on the conditions you set, it can either be paid out to cover some of your granddaughter's living expenses or accumulated to pay for college.

January 13, 2008

Who Will Inherit Your IRA?

Vanguard recently sent their clients a notice that they would no longer allow their clients to name different beneficiaries for multiple IRA accounts and would be changing the beneficiaries to whomever was named last.

If you have a Florida Estate Plan that uses POD or beneficiary designations, this could significantly change your estate planning.

It is important to check your designations on all accounts.
- Make sure all accounts have beneficiaries to avoid a Florida Probate.
- Consider using a Floria Revocable Trust to manage your beneficiaries. A Florida trust can manage all of the beneficiaries in one documents. Remember that if you are leaving a percentage to a Charity to deal with this properly so there are no adverse tax and distribution consequences.

If you have questions about payable on death designations, beneficiaries, or joint accounts, please contact a Florida Estate Planning Lawyer to help you understand the implications and benefits of using a Florida Trust.

January 11, 2008

Ten Florida Estate Planning and Probate Tips - 2008

will.jpg
Florida residents should start the New Year off right, here are ten important Florida estate planning and Florida probate and tips for the New Year.

1. If you don't have a Will, get one.
Florida estate planning and Florida Probate tip #1:
Have a Florida Will. If you don't have a Florida Will, get one. In particular, married couples with children from prior relationships should always have a Florida Will. Otherwise, the state will decide who gets the money at death.

2. Get a Medical Power of Attorney and Advanced Medical Directive.
Florida estate planning and Florida Probate tip #2:
Along with a Will, everybody should have a Florida medical power of attorney and an advanced medical directive. A Florida medical power of attorney designates an individual to make health care decisions for you should you be unable to do so. An advanced medical directive, commonly called a living will, states in advance what you want in the way of life sustaining treatment when death is imminent or when you are in a persistent vegetative state.

3. Review all beneficiary designations on life insurance, retirement accounts, and other financial accounts.
Florida estate planning and Florida Probate tip #3:
Review all beneficiary designations on life insurance, retirement accounts and other financial accounts. You may be surprised at what you find. Do not settle for a verbal confirmation. Make sure you see the documents.

4. Get a permanent life insurance policy.
Florida estate planning and Florida Probate tip #4:
Evaluate the need for permanent life insurance. Liquidity is important in life and at death. The lack of liquidity at death can increase legal fees and cause property to be sold for less than its actual value - far less. Even a small amount of life insurance is better than none.

5. Put your permanent life insurance in a life insurance trust.
Florida estate planning and Florida Probate tip #5:
If you have substantial, permanent life insurance, consider putting the life insurance in a life insurance trust. Moving your life insurance into a life insurance trust removes the insurance from your gross taxable estate for federal estate tax purposes and protects the insurance policy from creditors. This can save you 45% or more of the policy value.

6. Put your inheritance in an irrevocable trust for asset protection.
Florida estate planning and Florida Probate tip #6:
Get it and give it in trust. When you give an inheritance in an irrevocable trust, you also give some level of asset protection. If you are the potential recipient of an inheritance and if you have the ability to speak openly with the person making the gift, consider suggesting that the gift be made in some form of irrevocable trust. There is some cost to a gift in trust. However, the asset protection benefits typically outweigh the cost.

7. Put all your estate planning documents in a safe deposit box.
Florida estate planning and Florida Probate tip #7:
Obtain a safe deposit box and put your original Florida estate planning and other important documents in the box. Fire safes and file cabinets are certainly better than nothing if you let somebody know where to look. However, many Wills vanish or are lost shortly before death. If the original cannot be found and the original was last seen in your possession, Florida courts presume that you destroyed or revoked the Will. While a copy of a Florida Will can sometimes be probated in a Florida probate, it can be expensive and not always successful.

8. Protect your heirs against local expensive probate proceedings.
Florida estate planning and Florida Probate tip #8:
If you own real estate outside of the state where your Will is to be probated, make sure that transferring the real estate to your heirs will not require a local, expensive probate proceeding. This can be accomplished several ways. Some states have a simplified probate procedure for making the transfer without opening a local probate proceeding. Other states allow for beneficiary designations through something called beneficiary deeds. In most states, the probate process can be avoided by transferring the real estate into a revocable trust. Otherwise, be prepared to spend several thousand dollars to make the transfer after the death of the owner. Note: Property in a foreign country can be very expensive to transfer upon death. Also pay attention to foreign estate tax. Unlike the United States, the estate tax can vary greatly based upon whom you give the property to at death.

9. Leave property to your husband or wife in trust.
Florida estate planning and Florida Probate tip #9:
Consider leaving property to your spouse in trust instead of outright. The trust accomplishes three goals.

1. Avoiding estate tax.
2. Protecting the assets from the surviving spouse's creditors.
3. Controlling how the remaining funds are distributed.
Many family estates have been lost when the surviving spouse remarries and leaves the family assets to the new spouse or his/her family. We see more money lost to shifting bloodlines than we have ever seen paid in federal estate tax.

10. Know if your state has state or estate/inheritance taxes.
Florida estate planning and Florida Probate tip #10:
If you have a tax planning estate plan, know whether your state has estate tax. Florida does not have any estate tax, but if you become domiciled in another state your estate may be subject to estate taxes. Many states are implementing estate or inheritance taxes.

January 11, 2008

Who Get What in a Florida Probate with No WIll?

Jacksonville Florida probate lawyer The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the distributions of a persons estate when is no will in a Florida probate case.
Contrary to the belief of some, the decedent's assets are not turned over to the State of Florida unless no intestate heirs can be found. If there is no will, the assets of the decedent will be distributed to the intestate heirs as follows:

• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all.

• Surviving spouse and lineal descendants.

1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.

2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.

• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.

• Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.

For an evaluation of a Florida Probate Case please contact a Florida probate Lawyer.

January 10, 2008

What does a Personal Representative do in Florida?

Jacksonville Florida probate lawyer The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the personal representative and their role in a Florida probate case.

The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:

• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other papers relating to the estate.
• Serve a "notice of administration" on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed.
• Object to improper claims and defend suits brought on such claims.
• Pay valid claims.
• File tax returns.
• Pay taxes.
• Employ necessary professionals to assist.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries.
• Close probate administration.

January 5, 2008

NFA Trust used to Purchase NFA Firearms

If you live in a Jacksonville or another city in Florida where the Chief law Enforcement Officer (CLEO) will not or easily sign a Form 4, there are several solutions.
Gun Trust, NFA Trust, Jacksonville Gun Lawyer, Florida NFA trust, Class 3 TrustTitle II Firearms (sold by Class 3 SOT dealers) include suppressors, , short barrel rifles, machine guns, and other destructive devices.

The most common solution is to create a NFA Gun trust to hold title to the firearms.

A NFA Gun Trust is established under state law. For NFA purposes many individuals prefer the a Gun Trust over a corporation or LLC because the cost is far less on an ongoing basis. Business entities typically have state filing fees of around $150 a year. In addition there are the costs of tax preparation, compliance and filings with the IRS. In Florida and many other states Revocable Trusts like the NFA or Firearms trust do not require any disclosure or public filings. This means the ownership, control, and management is private.

Although most Florida Revocable or Living Trusts can hold firearms or other Title II items, many are not properly setup to deal with the issues involving firearms and other items which are regulated by the National Firearms Act (NFA). If the NFA is violated, the people in possession, and who transferred the items are subject to criminal charges, substantial fines, and forfeiture of not only the class 3 items in question but all firearms in the possession or ownership. ($250,000 penalty, 10 years in prison, and forfeiture of items)

The gun or firearms trust must give the Trustee instructions and special powers so that they can legally manage for unplanned events. Weapons and other assets in a Gun Trust can not be distributed like other assets upon the death or incapacity of the person who placed the items in the trust(The Grantor or Settlor).

There are many advantages to a firearms trust, if you own or plan to purchase a class 3 items you should contact a lawyer who is familiar with these issues and can design a trust to protect you and your family from liability. If you are in Florida you can contact me and if you are in another state I would be happy to get you in touch with a lawyer in your state who can provide information on Gun Trusts.

January 5, 2008

Donating Your Body for research in Florida

Most Florida medical schools will accept donation of bodies (complete with organs). Florida Medical schools will use them for research and instruction.

Generally after the body is used, it will be cremated by the school. If requested most schools will return the remains if requested. Individuals and schools are not permitted to pay for a body, but they will pay for the transportation costs as well as the final disposition costs. These types of arrangements need to be made in advance but there are some institutions that will accept a donation at the death with the written permission of the next of kin.

Here is a list of Florida Medical Schools. If you live in a state with no medical school or one that has strict requirements you may also contact the national Anatomical service 24 hours a day at 1-800-727-0700.

State of Florida.com - Florida Medical Schools
Florida State University College of Medicine (COM)
UF College of Medicine
University of Miami School of Medicine
Univeristy of South Florida College of Medicine

Sometimes it is a good idea to have a backup institution in mind as some schools can reject bodies if organs are removed, death occurs during surgery, the institution has to many bodies, or physical conditions or diseases present at the time of death.

January 5, 2008

How are Creditors Handled with Florida Probate

Jacksonville Florida probate lawyer The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how creditors are dealt with in a Florida probate case.

Prior to commencement of probate proceedings, a creditor can file a caveat with the court. Upon publication of notice to creditors a creditor or other claimant may file a document called a "statement of claim" against the estate with the Clerk of the Circuit Court where the estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The personal representative or any other interested person may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim.

The personal representative is required to use diligent efforts to give actual notice of the probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the estate until the claim has been satisfied or otherwise disposed of.

It is important to give creditors the proper notice in a Florida Probate Case. If you have questions about creditors and a Florida Probate proceeding please contact a Florida Probate Lawyer.

January 4, 2008

What is a Reasonable Fee for Florida Probate?

Jacksonville Florida probate lawyer The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how fees are determined in a Florida probate case.

The personal representative, the attorney and other professionals whose services may be required in administering the estate (such as appraisers and accountants) are entitled by law to reasonable compensation.

The fee for the personal representative is usually determined in one of five ways:

(1) as set forth in the will;
(2) as set forth in a contract between the personal representative and the decedent;
(3) as agreed among the personal representative and the persons who bear the impact of the fee;
(4) as the amount presumed to be reasonable as calculated under Florida law if the amount is not objected to; or
(5) as determined by the judge, applying Florida law.
Likewise, the fee for the attorney for the personal representative is usually determined
(1) as agreed among the attorney, the personal representative and the persons who bear the impact of the fee,
(2) as the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to, or
(3) as determined by the judge, applying Florida law.

That being said each case is different and the fees depend on the type of assets, complexity of the case, and the conflict between the beneficiaries or heirs of the estate. To find out what a reasonable fee for a probate case please contact a Florida probate lawyer.

January 3, 2008

Florida Probate FAQ by Florida Bar

Jacksonville Florida probate lawyer The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:

1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
4. WHAT IS A WILL?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES THE PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE?
19. HOW ARE FEES DETERMINED IN PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE TRUST?
If you have questions about a Florida probate case please contact a Florida Probate Lawyer.

January 2, 2008

Death Tax - Estate Tax Rates and Exemptions for 2008

Florida Continues to have no State Death Tax. Only 24 states have some form of death tax as the state death tax credit has been phased out.

The Top Estate Tax rate for 2008 is 45% and is scheduled to remain at $45 percent through 2009. This estate tax rate applies to assets in excess of $1.5 million.

The 2008 Estate Tax Exemption is $2 Million dollars and is set to increase to $3.5 million dollars in 2009. Many believe there will be new legislation this year which could change the numbers in the future.

The 2008 Generation Skipping Transfer tax is unchanged from 2007. If more than 2 Million of GST is transfered there is a 45% tax on additional funds.

If your Florida Estate Planning does not consider these numbers, please contact a Florida Estate Planning Lawyer to review your Florida Estate Plan.

January 2, 2008

Avoiding Accidental Disinheritance with Florida Estate Planning

Jacksonville Florida Estate Planning Attorney disinheritanceAccidental disinheritance is a growing problem. It's a problem, in part, because there are too many death-disposition instruments now that dispositions are slipping through the cracks to the wrong people.

Paul Rabalais wrote about this on Your Louisiana Estate Planning Blog where he describes some of the more common ways people are disinherited. He mentions several life events that cause unintended consequences.

1) Failing to update your will yearly.
2) Ineffective wills
3) Divorce
4) Remarriage
5) Conflicting disposition instruments.

You should have your Florida estate plan reviewed on a regular basis. This should include a review of any changes in assets. To have your estate plan reviewed please contact a Jacksonville Estate Planning Attorney.

January 1, 2008

Florida Estate Planning and the Importance of Beneficiary Desinations

Jacksonville Estate Planning Lawyer Attorney Beneficiary changes
Often the first thing that comes to mind with Florida Estate Planning is a Florida will or Florida living trust. Although these are valuable documents they do not have any effect on the distribution of many assets.

We recommend that our Jacksonville residents make sure their beneficiary designations are updated as these control the distribution of many assets. When a Florida Living Trust is part of an estate plan, you can designate your trust to be the beneficiary of most assets. It is important to make sure that the trust is the proper beneficiary. With some assets like retirement plans, you may not want your trust to be the beneficiary as it can have adverse consequences when charities are named as beneficiaries of the trust.

Your beneficiaries need to be updated on a regular basis and in the event of a life event (birth, death, marriage, divorce...). We recommend naming contingent beneficiaries in these documents.

You should review your Florida Estate Planning Documents with a Florida Estate Planning Lawyer to make sure your intentions are fulfilled.