February 2009 Archives

February 20, 2009

Do I need a Florida Probate?

If a person dies and owns anything that does not transfer upon death like a bank account, car, home, retirement account, or accounts receivable a Florida Probate is necessary to transfer these assets to the rightful owner. It does not matter if they have a will, a trust, or any other estate planning documents. Often we get clients who say they are the executor or personal representative and attempt to manage the decedents assets. This cannot take place until the probate process has begun and the court has appointed someone to be the PR or executor.

The type of administration that is required depends on several factors.

1. The date of death;
2. The amount of assets;
3. If there will be litigation; or
4. If there is a will.

In addition, Florida law requires that if you are in possession of what you suspect to the be last will of a decedent it needs to be filed with the courthouse where the decedent resided within 10 days of death. If it has been more than 10 days you should file it anyway. We often file these for clients who are in the state and those from other states and there is no charge to file the will with the proper court.

If you have specific questions in regards to a Florida Probate Contact Florida Probate Lawyer for a Free consultation with a Florida Estate Planning and Probate Lawyer

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

February 13, 2009

Eight Ways to Lose a Noncompete Case

Jay Shepherd who writes the Gruntled Employees Blog has a good article on the "Eight Ways to Lose a Noncompete Case." Here is his list of the 8 most common ways companies to lose a noncompete case:

1. Putting too much faith in the belief that the court will enforce the language of the noncompete agreement as written.
2. Trying to enforce a noncompete against employees who really don't possess any confidential information or customer relationships.
3. Drafting the noncompete too broadly.
4. Focusing only on geography, duration, and scope of the noncompete rather than on the existence of protectable interests.
5. Waiting too long to file.
6. Asking for an injunction before you've developed enough evidence.
7. Filing in the wrong jurisdiction.
8. Focusing on the law instead of on the story of the case.
Jay's bottom line is that "If your client's wearing the white hat, and your agreement is narrowly drafted, and your secrets or customer relationships are in imminent peril, then you've got a fighting chance of winning. Otherwise, wave goodbye to the former employee and get back to work."

While many of these are true in Florida, when there is a protectable business interest, most Florida Courts are willing to rewrite the agreement and make some of it enforceable. If you would like your non-compete agreement reviewed, Contact a Florida Non-Compete Lawyer.

February 12, 2009

Florida Parents May be liable for Children’s Car & Motorcycle Accidents

motorcycle.jpgDo you remember when your child turned 15 and you or your spouse brought them to get their first Florida drivers license. Did you read the fine print? You may not have realized that you agreed to financial liability if the damage is due to negligence or willful misconduct of the minor. Florida Statute 322.09. If you have a minor child under the age of 18 you might think about protecting your assets because of the financial liability you have agreed to. Once the child turns 18, be sure and revoke your financial commitment. To learn about Florida Asset Protection, Contact a Florida Asset Protection Lawyer.

February 11, 2009

Automobile Trust and Florida Asset Protection

Auto, Motorcycle, Car TrustMost residents of Jacksonville and Florida could benefit from a Florida Vehicle Trust if they have children who drive their vehicles or in the case that a judgment is in excess of their insurance limits.

A Florida Vehicle Trust protects your assets by holding title in a specifically designed trust. In Florida the owner and the driver of a Car, Motorcycle, or other vehicle is liable for any damage done by the driver of the vehicle.

Many parents are concerned about damage that their child, or a friend of their child's may do when loaned the vehicle. Using a Vehicle Trust can protect your assets from excess liability that is created when the damage done by the driver and/or vehicle is in excess of the insurance on the automobile.

To find out more about how a Florida Vehicle Trust can protect you, Contact us by email or phone a Florida Estate Planning Lawyer at (904) 685-1200.

February 11, 2009

Planning for Florida Residents

Although these are difficult times and the experts acknowledge that we are in a recession it is just as important to plan for the future. The current economic situation may make the need for long term care planning even more important than in the past. My most recent newsletter discusses why planning needs should be and are unrelated to the economy in reference to

Disability and retirement planning;
Special needs Planning;
Beneficiary protection planning (for example, protection from divorce, creditors and/or perhaps the beneficiaries themselves); and
Second marriage and "blended family" protection.

If you would like more information on these issues please Contact Us to request a copy of the newsletter on these subjects.

February 11, 2009

George Washington's Estate Plan

Florida Estate Planning is important. Planning for Estate taxes has been part of our culture and one of the earliest examples and pointed out by Christopher Berry, of the Michigan Estate Planning Blog, is found when looking at George Washington's Will.

The estate tax has been part of our culture many times over the last 200 years. It has typically been used to help finance wars or the debts surrounding them. The last time the estate tax was enacted was in the early 1900's and it has been with us ever since. The current Federal Estate Tax is 45% on assets in excess of 3.5 million. With the current estate tax, the exemption is suppose to be changed over the next two years, but few expect the changes to happen. If the tax is not changed by congress there will be no limit next year and then in 2011 the number will drop to 1 million dollars.

An interesting fact I learned from an ex IRS agent in charge of the estate taxes was that the IRS spends around 15 billion a year to collect what is anticipated to be 20 billion in estate tax revenue. This does not seem like a very efficient use of 15 billion dollars. A few years ago many of us would have said - the IRS collects 5 billion, that is a good thing, but with the massive size of the recent bailouts of 700 billion and over 800 billion we might ask why we have an estate tax to collect such a small amount of money.

The current view is that the estate tax will be amended to keep the level of the exemption at 3.5 million. What is unknown is whether we will continue to receive a stepped upped basis and what the estate tax on the assets in excess of the exemption will be.

For a free review of your Florida Estate Plan contact a Jacksonville Florida Estate Planning Lawyer who has clients throughout the state of Florida, around the country, and and throughout the world.

February 7, 2009

Assault Weapons Trust

guns.gif A new concept in Estate planning is creating a trust to protect the families firearms. For the past few years the public has been using NFA Gun Trusts for the purchase and protection of Title II firearms that are restricted by the NFA. Most gun enthusiast expect there to be a renewed ban on Assault Weapons that becomes permanent. To protect your families assault weapons, you might consider a new twist to the firearms trust - the Assault Weapons Trust. It might be a good idea to transfer your Assault Weapons into a Assault Weapons Trust before there is a ban on future transfers of these firearms.

February 3, 2009

Medicaid Asset Protection Trust

One very useful Medicaid planning technique involves the creation of an irrevocable Medicaid Asset Protection Trust. With a Medicaid Asset Protection Trust a person or couple can transfer some of their property to the trust to hold and manage for their benefit during their live with the remainder paid to their family after their death.

Example: David and Beth have assets in their savings and stock accounts of $250,000. They currently live off income from their investments, social security, and other retirement benefits. They are concerned that if they need nursing home care they will not have enough money to support their lifestyle and pay for the medical expenses for the remainder of their life.

Solution: David and Beth decide to transfer $150,000 to a Medicaid Asset Protection Trust. The trust provides that all income is paid to them while alive and in the event one needs nursing home coverage under Medicaid the income is paid to the other. Upon the death of the surviving spouse, the trust will terminate and distribute the remainder to their children. By using this type of irrevocable trust their assets are protected and they receive an income stream for their lives.

Potential Problems: The gift to the Medicaid Asset Protection Trust can cause a period of ineligibility for Medicaid benefits. The length of the ineligibility period depends upon 1) the value of the assets given away and 2) The date the assets were given away. After the ineligibility period, the assets in the Medicaid Asset Protection Trust should be protected and not counted as a disqualifying asset for Medicaid planning purposes. In addition, this removes the assets from the reach of the spouses.

A Medicaid Asset Protection Trust is not for everyone, but it can be a means of protecting a family's financial security. These trusts can be complicated and must be tailored to the families resources and needs. It is important that you use a Florida Elder law attorney who is familiar with the Florida Medicaid laws and who has experience in creating this type of trust.

Please note: The Irrevocable Medicaid Asset Protection Trust is not the same as a "revocable trust", "revocable living trust" or "living trust" that is currently being sold through Trust Seminars.

Contact us by email or at (904) 685-1200 for more information.

February 3, 2009

Avoiding Probate, Taxes & Remaining Eligible for Medicaid

As our population continues to age, more and more individuals are concerned about how they will pay for care as they get older. Often individuals and families find that they are unable to take care of themselves and need assistance.

As medical costs have continued to rise, so have the costs of home health care. As a result we are seeing more individuals need the assistance of Medicaid. Too often we find individuals who have received advise from family members, friends, and professionals who do not understand Medicaid and only deal with elder law or estate planning issues. While it may be great to avoid the costs and fees associated with probate, what if you end up being disqualified from Nursing home coverage. This could cost far more than the savings on probate.

Florida is a great state to live at the time you need Medicaid coverage because of the large exemption allowed on one's home. Generally you can protect up to $500,000 of equity in a Florida homestead. Unfortunately in an effort to save a few thousand dollars many individuals transfer a partial ownership in the property to their children with rights of survivorship. Often this is done with a life estate deed.

This can cause many problems for the owner in the event they ever need nursing home coverage. There is way to accomplish similar results without risking the tax detriments, gifting issues, loss of control, and Medicaid eligibility - us a Florida Enhanced Life Estate Deed.

Michael Bonasera with the Ohio Trust and Estate Blog recently wrote a on a similar topic Avoiding Probate vs Avoiding Taxes vs Medicaid Eligibility

If you would like a review of your estate planning that takes into account Elder law, Medicaid planning, as well as probate and tax issues Contact a Florida Estate Planning Lawyer who is familiar with Estate Planning and Medicaid Planning

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

February 2, 2009

Gifting changes required for POA's in NY

There has been an effort for many years in NY to reform the POA laws to make agents more accountable and reduce the incidents of financial abuse. Governor Patterson signed the bill into law last week and it is effective in less than 30 days!! Agents are now required to sign POA and Principal must sign an addendum to grant gifting powers to agent.

As many residents of New York and Florida travel back and forth it might be important to review your Florida Durable Power of Attorney if your NY based agent intends to make gifts.

The bill is Chapter 644 of 2008 [Assembly bill A6421-B (Weinstein) Senate bill S4996-B (Volker)]
Download NY POA Bill

February 2, 2009

Trustee's Duty to Disclose

Gerry Beyer has an article on a Trustee's Duty to Disclose and the rise in Surcharge Litigation. Dana G. Fitzsimons Jr. recently published an article - Navigating the Trustee's Duty to Disclose, Prob. & Prop., Jan/Feb 2009, at 40.

If you are managing wealth for your children, this should be a concern for you. As a Florida Trustee, it is important to avoid potential liability to your children.