September 2008 Archives

September 18, 2008

Notice of ownership or control change now required in Florida transactions involving real property

Florida Statute 193.1556 requires that any changes regarding a person or entity owning real property under Florida Statute 193.1554 or Florida Statute 193.1555 are reported to the property appraiser.

This may affect some Florida Enhanced Life Estate Deeds. Under Florida Statute 193.1554(5), If the property is nonhomestead residential property, there is an exemption for the transfer between husband and wife, including transfer to a surviving spouse or a transfer due to a dissolution of marriage. The transfer to a revocable trust will not trigger a new assessment at fair market value.

On the other hand for all residential and non-residential property which is not protected by homestead there doesn't appear to be the same exemption under Florida Statute 193.1555(5).

In either case the transfer to a Florida Revocable Trust where there is simply a change between legal and equitable title, will not trigger a new assessment at fair market value.

One new issue is that it is now required to report a change in ownership or control when a business entity owns property. In the past, many were able to sell an entity and no notice to re-evaluate the taxable base would be generated. Now if you convert real property to personal property by selling the ownership in an LLC instead of the real estate holdings of the LLC, you still have to report the change in ownership.

To read more on Florida Enhanced Life Estate Deeds or Florida Revocable Living Trusts read some of the articles on this site or Contact a Jacksonville Estate Planning Lawyer

September 12, 2008

Step-Siblings & Half Bloods in Florida Inheritance

Florida probate cases often involve situations where the decedent has step-siblings or half blood siblings.

Under Florida's intestate statutes a step brother or sister would not receive any share of the decedent's estate, but a half blood (one related by one parent) would receive 1/2 as much as a child that was related by both parents of the decedent.

In the case were there are only half blood siblings, each of them receives a full share.

An example might be where your mother and father had 2 children together. Your mother and father each had a child from another relationship. If you died, your sibling from both parents would receive 1 share of your estate and your other two siblings (1 from your father and one from your mother) would receive 1/2 share each. This would mean that your full brother would receive 1/2 of your estate and each half-blood sibling would receive 1/4.

This is assuming that you had no descendants and your parents had predeceased you. If you have half blood and step siblings and would like to know what your rights to inheritance are Contact a Jacksonville Florida Estate Planning Lawyer

September 11, 2008

How to deal with greedy Trustees in Florida: Trustee Removal

Florida Greedy Trustee RemovalGreedy Trustees can be a problem in Florida Probate Litigation and Florida Trust Litigation. Often the Trustee must be removed to resolve the issues. Adrian Thomas a Florida lawyer who deals with Florida Trust and Probate Litigation sent me an article where he discusses individual and corporate trustees. Often banks and financial institutions make their money by managing Florida Revocable Trusts and Florida Irrevocable Trusts. In recent interviews by news organizations, some employees talked about abuse of powers and improper investments that placed profits ahead of the best interest of the beneficiaries of the Florida Trusts.

Some of the abuses included:

Charging inflated fees;
Making distributions difficult for the beneficiaries;
Not considering compelling circumstances for distributions of allocation of principal and income; and
Naming themselves beneficiaries or trustees in the wills of elderly Florida Citizens.
The new Florida Trust code is modeled after the Uniform Trust code and now provides legal remedies for the beneficiaries who are being victimized by greedy trustees.

The new Florida Trust Code includes remedies which allow the court to inquire into the appropriateness of a trustee and evaluate a change in circumstances for a judicial modification of the trust. In addition, Section 736.0706(2)(d) allows a trustee to be removed when there is a change in circumstances and the removal would best serve the interest of the beneficiaries.

Many of these problems can be addressed in the drafting of the Florida Living Trust by creating language and terms that beneficiaries can remove or modify the terms when it is in the best interest of the beneficiaries. In addition, judicial modification is a process where the court can modify a trust for similar circumstances. In Aelillo v. Hyland one beneficiary was favored over another beneficiary. The Florida Court removed the trustee because of conflict of interest.

If you feel that your are not being treated fairly by the trustee of a Florida Trust which you are the beneficiary of, Contact a Florida Estate Planning Lawyer who deals in Jacksonville Probate Litigation or Jacksonville Trust Litigation.

September 10, 2008

Estate Planning Attorneys

There is a new site which is putting together a list of Estate Planning and Probate professionals including lawyers for each state. You can find them at www.Estate-Attorneys.net.

September 10, 2008

Where should a probate be opened? In Florida?

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If a person's usual place of dwelling was in Florida then the original probate should be opened in Florida. We see cases where someone is in the process of or has just moved to Florida and the issue of where to open a probate becomes more complex. In those instances where it may be difficult to determine the exact residence of the decedent there are several factors that should be evaluated to determine the residence.

1) Ownership of a home(s), and the percentage of time spent in each state.
2) Had the decedent applied for and are they currently receiving homestead exemptions in either state?
3) Where is the decedent employed?
4) Does the decedent own business interests?
5) If a homestead cannot be determined, where else does decedent own property?
6) Where are their federal tax returns filed?
7) State of Vehicle registration, Drivers license.
8) Location of Will, Ownership of cemetery lot.
9) Affidavit of domicile as found in Florida Statutes 222.17.
10) Religious, social, and union affiliations.
11) Charitable contributions.
12) Children's school attendance or activities.
13) Official termination of residence in one state by notice to taxing officer, cancellation of voter registration, change of DL, vehicle registration, and insurance.
14) Specific provisions in the will reciting the domicile.

If you have recently moved to Florida, it is important to update your Florida Will and when this is done you may also want to execute documents to make sure your domicile is Florida in terms of administration of you estate. For questions on how to accomplish this, Contact a Florida Estate Planning Lawyer

September 9, 2008

Florida's Anti lapse Statute: A devise to someone who predeceases the decendent.

In Florida a devise in favor of a beneficiary who predeceases the testator will fail unless there is clear intent or in certain relationships.

Under Florida Statute 732.603 a devise to a grandparent or a descendant of a grandparent of the testator does not lapse but would be distributed per stirpes UNLESS the testator gift is conditioned on the person surviving the testator or the testator provides for a substituted or alternative beneficiary.

A similar result is achieved when the decedent dies intestate (without a will). We often see complicated property distributions when a parent dies and one or more of their children predeceased the parent. In these cases, it is not uncommon to see the Florida homestead or other real property owned by representatives of multiple generations.

To find out more about your Contact a Jacksonville Florida Probate Attorney.

September 8, 2008

Liability of Surving Spouse for Claims Against Decedent in Florida

In Florida, the surviving spouse is not liable for claims against the decedent. Under the common law a husband was responsible for the deceased wife's expenses for necessities, last illness, and funeral expenses.

At common law, a married woman's legal identity merged with that of her husband, a condition known as coverture. She was unable to own property, enter into contracts, or receive credit. A married woman was therefore dependent upon her husband for maintenance and support, and he was under a corresponding legal duty to provide his wife with food, clothing, shelter, and medical services.

In 1995 the Florida Supreme court abrogated the common-law doctrine of necessaries in the case Connor v. Southwest Florida Regional medical Center, Inc., 668 So.2d 175 (FLA. 1995).

Now neither a husband nor a wife is liable for the other's expenses for necessities in Florida.