June 2008 Archives

June 27, 2008

Florida DR-219 Form is Repealed as of 06/1/2008

Florida DR-219 Form is Repealed as of 06/1/2008

Beginning June 1, 2008:

•The requirement to complete and file Form DR-219 is repealed. •The Department of Revenue will not process DR-219 forms received. •Destroy all blank DR-219 forms in your inventory.
The repeal of the requirement to complete and file Form DR-219 does not impact documentary stamp tax payment and filing requirements. Documentary stamp tax continues to be due on all documents that convey an interest in Florida real property. The tax must be paid at the time of recording with the Clerks of Court or County Recorders if the document is recorded prior to the 20th day of the month following the month the document is delivered. The tax must be paid directly to the Department of Revenue by the 20th day of the month following the month the document is delivered if the document is not recorded before. Delinquent payment of tax will continue to be subject to penalty and interest charges.
June 27, 2008

Deeds Designating Grantee as a Trustee Sufficient to Pass Title to Trust

The Florida Supreme court has ruled affirmatively on the question presented to it.

Whether, under Florida Statutes section 689.07(1) as it existed before
its 2004 amendment, this Deed--which is a recorded real estate
conveyance deed to a named trustee of a private express trust
identified in the deed by name and date, and contains other language
referring to the unrecorded trust agreement, the settlors, and the
beneficiaries--conveys only legal title to the property in trust to the
grantee as trustee.

In Raborn v. Menotte, 974 So. 2d 328 (Fla. 2008), the court held that a deed which identifies the grantor as the creator of and the grantee as trustee of a named trust shows sufficient "contrary intention" and grants legal title as trustee to the grantee.

This case was brought to my attention by an article by Gerry Beyer on the WIlls, Trust, & Estates professors Blog.

June 26, 2008

Supreme Court Rules on Individuals Rights to Bear and Keept Arms

NFA Gun Trust Lawyer blog has an article on the 150 + page decision issued today in the gun rights case before the Supreme Court. Looks like good news for gun owners but it will take sometime to digest the full opinion which is over 150 pages. There is a link to the Supreme Court Gun Case also

June 26, 2008

Florida Spendthrift clause or Trust

Spendthrift clauses can be confusing to trustees. The general idea with a Florida Spendthrift clause is that the beneficiaries cannot assign their interest in the trust to a creditor ( voluntarily or involuntarily)

Here is the test found in a typical clause under the new Florida Trust Code

Spendthrift Provisions. Each trust created by this Trust Agreement shall be a spendthrift trust to the fullest extent allowed by law. Prior to the actual receipt of trust property by any beneficiary, no property (income or principal) distributable under any trust created by this Trust Agreement shall, voluntarily or involuntarily, be subject to anticipation or assignment by any beneficiary, or to attachment by or to the interference or control of any creditor or assignee of any beneficiary, or be taken or reached by any legal or equitable process in satisfaction of any debt or liability of any beneficiary, and any attempted transfer or encumbrance of any interest in such property by any beneficiary hereunder prior to distribution shall be void.

The most common application of a Spendthrift Provision is to protect against involuntary assignment or bankruptcy.

While this may be fine with a small estate, this question often comes up with larger estates.
Why would I want to void my child's right to his 5 Million dollar distribution to avoid paying his creditors $25,000. Would it not be better in such a case to pay of the creditor and let my child enjoy and use the benefits of the trust rather than treat his a being predeceased?

Although it is not clear, the trustee can take this into consideration and make the distribution even though the creditor will receive a small portion of the decedents estate.

In these types of cases, I prefer to include language that a trustee can, in their discretion, make a payment when they know that a portion will go to a creditor of the beneficiary. Some times there is a limit placed on the amount and other times there is no limit placed on the maximum amount that can be used to pay a beneficiaries debts.

The Louisiana Estate Planning Law Blog has an article Whether you should include a "Spendthrift Trust" in your will? where they discuss using a spendthrift trust to prevent your children from loosing the money you leave to them.

If you want to make sure your children do not spend or loose all the money or assets you leave to them. It is also common to include a spendthrift provision in a NFA Gun or Firearms Trust to protect the items from being lost to a creditor. To find out more about how a Spendthrift Clause can help you Contact a Florida Estate Planning Lawyer
about including a Spendthrift Provision in your Florida Estate Planning Documents

June 24, 2008

Terri Schiavo II?

It could be happening again in Florida, The Palm Beach Post has a report on a similar case. If you do not have a Florida Living Will now is the time to get one.

Karen Weber did not have a Florida Living Will when she suffered a seizure back in November. Her husband wants to disconnect the feeding tube that has kept her alive for the past 7 months.

The courts have not ruled on Ms. Weber's condition and it is Mr. Weber's intent to keep it a private matter.

Who could forget the circus that can arise when such an emotional issue is tried in the court of public opinion.

If you need a living will you can get a free one, I have previously posted a Free Florida Living Will on this site.

If you need help with Florida Estate Planning Documents please Contact a
Florida Estate Planning Lawyer

June 20, 2008

LLC's and Asset Protection and Legal Zoom

Florida LLC's are one of the best choices for a new business entity. When thinking of forming a company, may people only look for low taxes and protection from liability.

Unfortunately, many are misinformed as to the protection that a corporation can offer. While it is true that a corporation and a Limited liability company can both protect a persons personal assets from corporate liability (in most cases), only the properly created Florida LLC can protect your business assets from personal liability.

If someone sues you and wins, they can take your stock in your corporation just like they could take your stock in GM. Once they own your stock, they can sell the company, fire you, and liquidate the company. If this happened to you it could cost you your livelihood.

To protect against this many people now use limited liability companies in Florida. If the LLC is properly created you can be protect from judgments, reduce the risk of lawsuits, and still be taxed as a partnership or an S-Corp. Yes you can be a LLC but choose to be taxed as a S-Corp.

While legal Zoom will let you create a Corporation or LLC online in almost any state, they can not evaluate your personal circumstances, and make recommendations on how to set up the LLC to offer you the protections under Florida Laws. I have seen many LLC's created by Legal Zoom which failed to take advantage of these protections.

In addition, I have noticed that the people who use these services do not understand the importance of acting like a business entity. They rarely have meetings or authorize actions by the board members or officers. These actions can create prevent the business entity from protecting the owners, directors, and shareholders from personal liability.

Part of what your lawyer should do is understand your circumstances, and design an entity to protect your needs and interests. At the same time, the attorney should educate you on how to take advantage of the protections offered. just because your form an LLC or Corporation does not mean you are protected.

To discuss how to use your business entity to protect your personal assets and protect your business assets from the owners personal liability you should Contact a Florida Business and Asset Protection Lawyer

June 19, 2008

Revocable Living Trusts, Dog Bite Statutes & Strict Liability in Florida

Florida Dog Bite Liability.jpgSeven weeks ago, I got a new puppy. I was thinking of a way to protect myself from Florida's Strict Liability for Dog Bites. Most states have a one free bite rule, but Florida does not and makes the owner of the Dog liable for all damage by the dog from the first bite.

In walks the Florida Revocable Trust. I began thinking that if you set up a separate revocable trust that owned the dog, you could transfer the liability of the dog's future actions to the revocable trust.

I began reading the Florida Statutes and sure enough the statute states that the "owner" is the party liable. Figuring that this must be too easy, I kept reading. It seems that when the state creates statutes, the often hide the real details in some other part of the statute. Sure enough after a few minutes I found that "Owner" as defined in the statute means any person, firm, corporation, or organization possessing, harboring, keeping, or having control or custody of an animal or, if the animal is owned by a person under the age of 18, that person's parent or guardian.

So while the trust would be liable as the owner, so would the person who the animal was staying with and the person keeping the animal, and the person in control or custody of the animal at the time of the attack.

So what did I learn from this exercise? You should be very careful when offering to take care of someone's pet while they are out of town as the person in control and / or custody is just a liable as the person or entity that owns the animal. More over your homeowners insurance may cover your liability as an owner, but I am not sure if they would cover damage caused by a pet that you did not own.

The only other way to protect yourself from liability is to have good insurance and / or protect your other assets.

To discuss potential sources of liability that you can help protect your self and your families assets from, you should contact a Florida Asset Protection Lawyer or read more on Jacksonville Asset Protection

June 18, 2008

How to Choose a Guardian for your children in Florida

For families living in Florida, choosing a guardian for their minor children is a primary reason why a Florida Will is such an important document to create and keep updated.

Often choosing who will care for your children is a difficult decision. Many families find it the hardest decision that they make in terms of estate planning. This is one area where it is common for the husband and wife to have completely different views of who should raise their children in the event that both the husband and wife die prior to the children reaching the age of 18.

First it is important to know that the planning is more important than agreeing with your spouse. Although it can create some tension between spouses, it is important to know that should one of you predecease the other, and then the surviving spouse gets to make their own decision anyway. Also, as long as one of you lives until the children reach the age of 18, it will not matter who you choose.

It is more important to discuss the reasons with each other and if possible come to a decision as to what is important to each of you than to try to come to a decision that one of you does not agree with.

The Georgia Wills, Trust, and Estate Planning Blog has an article on choosing the right guardian for your children where the break down the process into three steps. This three-step approach should make the process easier to accomplish without damaging the marriage.

Step 1 Make a list of people - make it long and include everyone that would make a better home for your children than the foster care system.

Step 2 Decide What Matters the Most - choose factors that are important and rank them in an order of priority. Some examples are maturity and patience, parenting style, religious beliefs, values, ability to care for additional children, and do not forget their willingness to serve (don't forget to ask them)...

Step 3 Match People to the Priorities - rank and evaluate your choices. Listen to each other and try to come up with a coherent reason for the choices you will make as a couple, or individually. Remember you may not be exactly happy with your spouses’ choice, but if you live longer you get to change your mind anyway. Perhaps its better to come up with someone you can both agree upon in case you both die simultaneously.

To choose a guardian properly, you should make a valid Florida will. Please contact a Florida Will Attorney or Florida Estate Planning Lawyer to help you prepare valid documents that accomplish your goals.

June 17, 2008

Making a Florida Will: What to think about?

Before making a Florida will you should think these things before drafting or having your Florida will modified.

In Florida to create a valid will the person needs to know what assets they have, who they are giving them to, and have an understanding of who they would go to if they were not listed in the Florida Will.

In addition, there are specific execution requirements to make sure the resulting document is a valid Florida will. The Jersey Estate Planning Blog
has a nice summary of what should be considered when creating a will.

I have adopted the issues to Florida, but in general they mention the following issues to consider when making a Will:

1) What assets will put into the Florida will.
2) Who you are going to leave your assets to;
3) Who will administer your will?
4) Who will care for (minor children) both financially and physically?
5) Who will witness the execution of your Florida Will

In addition, you may consider what how you would like your body dealt with upon your death. Although this can be placed in your Florida will, it is advisable to let others in your family, those who will make the decisions, know what your plans are. Generally, your will cannot be looked at by the time these decisions need to be made.

A Florida will is a very important document and careful attention should be paid to what it states and how it is executed. Unlike other documents that you may sign during your life, this document cannot be changed once you die. I like to contrast it to dying your hair, if you do not like the color you can seek the help of a professional, try again, let it grow out, or even cut it off and wait for your hair to re grow. With a Florida will or a will in any state, you do not have any of these options and your family, heirs, and beneficiaries do not get the chance to make changes because of unforeseen changes or poor choice of words.

Most people think a Florida Will is an expensive document to create, but generally they are not much more than what you would pay an online service. Many online services allow you to create documents that have unintended consequences. I have a section on this blog with many examples of estate planning problems created by the wrong choice of words. Before you create a Florida Will you should contact a Florida Estate Planning Lawyer or a Florida Will Lawyer to discuss your needs and objectives.

June 12, 2008

Florida QPRT (Qualified Personal Residence Trust): Options

Florida QPRT (Qualified Personal Residence Trust): Options:

Often clients want to make sure their homes go to their children. In Florida, a homestead will automatically go to your descendants and be protected. One of the problems is that although the home is generally not subject to Florida Probate, the value of the home at the time of their death is subject to estate tax. Once option of leaving a home to children is to use a special trust designed for the home. There are many advantages and disadvantages of using a Qualified Personal Residence Trust in Florida (QPRT).

Andrew Ewalt recently wrote an article on this on his Legal Blog where he listed the basic Pros and Cons. It is important that there are risks involved with a QPRT and each persons situation needs to be evaluated to determine if this is the right way to deal with the transfer of one's Florida Homestead. QPRT's are not for everyone, and many who used them in the past have ended them because of the changes in tax laws and how they impact their individual estate plan. As with all Florida Estate Planning it is important to review and update you estate plan on a regular basis.

The Advantages of a QPRT that Andrew list are

1. A QPRT removes any appreciated value of a house from a parent's estate which can help reduce estate tax liability.
2. The parents can continue to live in the house during the term of the trust.
3. Both residence and vacation homes can qualify.
4. Often more than one home can be protected.
5. When the trust term ends the children receive the home.
The potential disadvantages of a QPRT are:
1. Capital gains tax can be a significant factor on the sale of the home because the cost basis of the house remains the same as it was for the parents. (as the capitol gains is suppose to increase shortly, this can be a significant issue)
2. If the parents die before the trust terminates the home will not be devalued for estate tax purposes. Thus it is very important the parents survive for the term of the trust.
3. Children will become their parents landlord when the trust terminates. As such children could evict their parents or increase the rent to live in the home.
4. These trusts are very complicated. In order to set one up you will need a lawyer.

If you live in Jacksonville or have property in Florida that you are considering placing in a Qualified Personal Residence Trust (QPRT) you should discuss your personal situation by Contacting a Jacksonville Estate Planning Attorney

June 11, 2008

LIMITATIONS OF POWERS OF THE ATTORNEY IN FACT AND LIMITATIONS IN FLORIDA

POWERS OF THE ATTORNEY IN FACT AND LIMITATIONS IN FLORIDA

Except as otherwise limited by statute (below), by other applicable law, or by the durable power of attorney, the attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney. Such authorization may not include:

1. Perform duties under a contract that requires the exercise of personal services of the principal;
2. Make any affidavit as to the personal knowledge of the principal;
3. Vote in any public election on behalf of the principal;
4. Execute or revoke any will or codicil for the principal;
5. Create, amend, modify, or revoke any document or other disposition effective at the principal's death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney; or
6. Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.

June 10, 2008

PROPERTY SUBJECT TO DURABLE POWER OF ATTORNEY IN FLORIDA

PROPERTY SUBJECT TO DURABLE POWER OF ATTORNEY IN FLORIDA.
Unless otherwise stated in the Florida durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including, without limitation, the Principal's interest in all real property, including homestead real property; all personal property, tangible or intangible; all property held in any type of joint tenancy, including a tenancy in common, joint tenancy with right of survivorship, or a tenancy by the entirety; all property over which the principal holds a general, limited, or special power of appointment; chooses in action; and all other contractual or statutory rights or elections, including, but not limited to, any rights or elections in any probate or similar proceeding to which the principal is or may become entitled.

If you have questions about the validity or scope of your Florida Durable Power of Attorney Contact a Florida Estate Planning Lawyer

June 9, 2008

Guardianship and Durable Power of Attorney in Florida

Once an Agent (Attorney in fact) receives written notice which requires a signature, their powers under the Durable Power of Attorney are suspended until the court determines incapacity. The court may reinstate the Durable Power of Attorney for an emergency, when a petition if file upon the court showing the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.

Notwithstanding the provisions above, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.

If the person has not received written notice of the proceeding for which they were required to sign for, any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal's lack of capacity to manage property until the third party has received the required notice. A third party may, but need not, require the attorney in fact to execute an affidavit.

If the Durable Power of Attorney is deployment contingent, any third party may rely upon the authority granted in a durable power of attorney to manage property as defined in Florida Statute 744.102(11)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice.

Continue reading "Guardianship and Durable Power of Attorney in Florida" »

June 8, 2008

Medicaid Qualified Income Trust (Miller Trust)

A Miller Trust is a irrevocable qualified income trust used for Florida Medicaid planning. Generally, when an individuals income is over the limits a Miller trust or Medicaid Qualified Income Trust can help.

Generally a Medicaid Qualified Income Trust will distribute your income in such a way that your income will not disqualify you.

If your live in Florida and you do not qualify for Medicaid coverage because your income is over the limits, Contact a Florida Elder Law Attorney

June 7, 2008

Florida Lady Bird Deed Forms

Where can I get a Form for Florida Lady Bird Deed is a question that I am often asked. Florida Lady Bird Deeds are generally not available on the Internet because not many Florida Lawyers even know what they are. They are also far more complex than a regular deed.

I have seen several cases where clients used Ladybird deed that were not acceptable to Title insurance companies and the families had to open probate cases to clear the title on the property after the death of the grantor.

Because of this when we created our deeds we went to many title companies to get their feedback and modified our deed and they way they are filed to be in compliance with the title companies requirements.

In addition the language that is used on the remainder interest is very important because it is possible that the person named might not survive the original owner. If the wrong language is used, the property will revert back to the original owners estate and could potentially be subject to the claims of the creditors and Medicaid liens. They are often used in Florida Medicaid Planning.

If you need a Ladybird deed in Florida, you should Contact a Florida Estate Planning Lawyer who is familiar with Ladybird deeds.

June 6, 2008

Cost of Florida Probate

Florida Probate costs very based upon they type of probate, type of assets, number of creditors, number of beneficiaries and complexity of the issues involved.

Generally a simple Florida Probate which only involves a homestead is around $1500-$1800 dollars and can take 30 to 90 days on average to complete. This fee is for the legal expenses associated with a Florida Summary Administration where the descendant has been dead for more than 2 years or the assets subject to probate are less than $75,000. A homestead, join accounts, and life insurance are not counted as assets. In addition there will be court costs in the $300-400 range depending on the county and if advertising notice is required or desired.

More complex Florida Probate cases can also be handled on flat fees but many are calculated based upon a percentage of the assets subject to probate + some amount for dealing with the non-probate assets.

If you would like to get a quote on a Jacksonville Probate or a Florida probate you should Contact a Florida Probate lawyer. Only after a summary of what the circumstances are, can an accurate quote be given.