April 2009 Archives

April 28, 2009

Swine Flu and Estate Planning

flu.jpgToday a client of mine in Mexico contacted me about the transfer of their membership interest in an LLC upon their death. He had recently been told he had the "Pig Flu" or Swine Flu as we call it in the United States. Hopefully his case is not bad and he will make a full recovery.

His question was simple and perhaps the answer may help others so I am writing about it. He wanted to know whether his membership interest would become his business partners upon his death. Generally a business interest will transfer upon death by a will or trust and not have a payable on death designation. While it would be possible to create a payable on death designation on a small business interest it is not very common. As a result I suggested that the simplest way to deal with the transfer of his interest upon his death would be to do so with a will or other estate planning documents.

Every year people unexpectedly die from regular cases of the flu or other illnesses. Many individuals make changes to their estate planning documents when there are significant changes in their life such as a birth, death, child, move, major financial change. Perhaps the Swine Flu should be a wake up call for the majority of Americans who have no estate planning documents. With out Florida Estate Planning Documents the state of Florida will decide who receives your assets and who would raise your minor children. To review your Florida Estate Planning Documents Contact a Jacksonville Estate Planning Lawyer

April 27, 2009

Keeping Guardianship and Beneficiary Designations Updated

There are many times to update a Florida Will. Most updates are centered around significant life events like a wedding, divorce, new child, death in the family, or even moving to a new state.

Two of the most important things to change in a will are the designations for guardians of minor children and the beneficiaries of your estate or heirs. While Florida law provides that an ex spouse will not be an heir under a will that was created prior to the divorce, the law is not so kind when it comes to assets that do not pass through the probate system such as life insurance or retirement accounts.

All to often Florida Estate Planning Lawyers see cases of Florida Probate where a 401K or other contractual asset was never updated after a divorce. Because these assets are often designed to replace income that is lost, an improper designation can create a financial hardship for the decedent's family.

With the recent drop in home values, the stock market, and retirement accounts, it is more important than ever to review your beneficiary designations and how funds will be distributed under your Florida Will.

If you have selected a friend of the family to be a guardian of your minor child, the state of Florida requires that a non-relative be a Florida resident. This is a major reason to update your will when you move to Florida.

If you have gone through a life changing event in the past few years and have not updated your Florida Estate Planning Documents you should Contact a Florida Estate Planning Lawyer.

April 22, 2009

Helmsley estate: $136M to charity, $1M to dogs

Helmsey's estate made 53 charitable grants this week. Most of the money was given to hospitals and for medical research. Only 1 Million was given to 10 animal and dog charities equally. These donations came after a New York judge ruled that the trustees for the Helmsley Charitable trust has the sole authority to decide which charities would benefit from the trust.

April 20, 2009

Faith-Based Estate Planning

David A. Atraus, a Nevada Estate Planning Lawyer, has published a book titled Faith-Based Estate Planning: Our Values and Valuables. The book was written after contacting hundreds of religious clergy throughout the nation, and took him several years to write.

Upon a first glance, I was very impressed. The book covers Estate Planning issues like living trusts, wills, medical directives, long-term care insurance and life insurance on many religions including Baha'i, Buddhism, Christianity (10 denominations and branches), and 12 more religions from Roman Catholic to Judaism to Zoroastrianism.

It looks very comprehensive and I expect to write more on the book in the future.

April 15, 2009

Probate and Guardianship fees may increase by thousands in Florida

SB 1718 & HB 5117 dealing with funding the court would create new filing fees in probate and Guardianship cases that would range from $1,000 to $5,000, depending on the value of the estate of the person being protected.

The increase in filing fees is linked to probate cases but includes all guardianship proceedings. In addition to the current fee of $280, the additional fees will be tied to the person’s estate. Depending on the value of the estate and whether the House or Senate version of the legislation prevails, the additional cost could range from $1,000, to as high as $5,000 if the person being cared for has a large estate.

If you have been waiting to start a Florida Probate or Guardianship proceeding, now may be the time start before the fees increase.

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.

April 14, 2009

Florida Probate and Letters of Administration

funeral.jpgOften when someone dies, they have money in a bank account that does not have a joint owner or a payable on death designation (POD). These banks often tell family members that they need "Letters of Administration" to distribute the funds. While this may be trust in some cases, most Florida Probate Courts will only issue Letters of Administration for Formal Probate Cases. If the decedent has been dead for more than 2 years or the assets subject to probate are less than $75,000 then you qualify under the Florida Probate code for a abbreviated probate process. This small estate administration is called Florida Summary Administration.

Once the court enters an order of summary administration, the court order can be used to collect and distribute the money in a bank account or other assets of the decedent.

Even if you qualify for the summary administration there may be reasons why a formal administration is preferable. You should discuss all the issue dealing with the assets, actions of the beneficiaries, and actions of fiduciaries while the decedent was alive with a Florida Probate Attorney to discuss which options make the most sense for you and your family.

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.

April 14, 2009

Digital Assets and Estate Planning

Back in 2006 and 2007 I wrote several articles on Digital Assets and Estate Planning. Now that we are in 2009, there is even more need for Digital Asset protection in your Florida Estate Planning Documents.

fingerprint-scanner.jpgDigital assets are those that expire upon your death and are often associated with Email and website accounts. Most of these accounts are not actual property. They are licenses and these licenses generally expire upon your death. A new company Legacy Locker is attempting to solve this problem through a web based tool that stores account login and passwords and purports to transfer this information to the designated beneficiary upon your death or incapacity.

While their software is a good idea it has some issues in that it does not resolve the fact that the license expires upon the death of the person who creates it. One solution to this problem is to create the accounts in the name of a trust of business so that when you die, the entity that owns the license is still in existence. There are other companies that do similar things such as DeathSwitch.com

My previous articles on this topic include:

Speaking (or Emailing) from the Grave
Florida Estate Planning & Digital Assets
Digital Property After Death
Florida Estate Planning: Paperless Records Leave Heirs in the Dark

There are no products that seem to provide what is truly needed by consumers at this time. The best solution is to include Digital Asset Provisions in your Florida Revocable Trust or create a separate Digital Asset Protection Trust and Digital Asset Protection.

April 13, 2009

Stop Florida Annuity Scammers from selling Life insurance as an investment

The Palm Beach Post.com has an article which describes a recent trend in Annuities in which scammers sell and churn an insurance policy sold as an annuity in which there are very high surrender fees and limited access to the money for 10 or more years. These policies are being sold to 85 year old individuals as investments when they cannot touch the money for more than 10 years and have very high surrender fees if they do.

Most reputable annuity policies, they say, allow access to the money after just 90 days and require no more than a 5 percent surrender fee, and nothing after five years.

Senate Bill 2520 and House Bill 141 seek to protect Floridians who are 65 and over from annuity scam artists by easing access to the assets and decreasing excessive withdrawal payments. The legislation says that "senior consumers diagnosed as having a terminal illness that will result in death within two years after the diagnosis" could "withdraw all purchase payments from an annuity contract prior to the expiration of the surrender charge period without penalty."

Recently we have begun seeing a trend in these types of annuities being marketed towards lawyers, doctors and other professionals as "safe investments" Given the high commission paid and the tendency of the agents to churn the assets into other annuities, it would be nice if this bill would do something to protect others from these life insurance investments.

April 12, 2009

NFA Trust for Assault Weapons

guns.gif What is a NFA Trust? Can a Gun Trust be used for Assault Weapons?

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, those sold by a Class 3 SOT,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 NFA Gun 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.

April 11, 2009

Reviewing wills and trust for compliance with Florida Law

While Florida generally recognizes wills created in another state that were valid at the time they were created, it is often a good idea to have your will reviewed by a Florida Estate Planning Lawyer when you move to Florida.

One problem we often run into is that guardians for minor children who reside in Florida must be a close relative or a resident of the state of Florida. Often people designate non-relatives that do not reside in Florida and these are not effective.

While it is possible to create a trust or other legal instrument to allow a non-resident to manage the property of a minor, this should not be done in a will as it may be ineffective.

There are many other issues that arise with a move across state lines. Some states are community property and Florida is not. It is best to have your documents reviewed to make sure that your desires are carried out. There are some wills like holographic wills ( a will that is handwritten by the testator) that may be valid in states like California that Florida will not recognize unless they comply with the Florida Statute of Wills.

Contact a Florida Estate Planning Lawyer for more information and a review of your documents.

April 10, 2009

Florida Probate and Cleaning up the Mess

One of the most difficult processes with a probate it dealing with all of the stuff that is left over. After all of the valuable assets have been collected and distributed there are still many items that are of value to some but often get thrown away because of the difficulty and cost in dealing with them. If you are the PR of an estate you may consider using a service like JustJunk.com to remove, recycle, and donate the remainder of an estate. Sometimes it is just to costly to hire someone to collect and sell off the remaining assets.

Remember that if you are contemplating something like this to make sure that you obtain waivers from all the beneficiaries so that you do not expose yourself to liability in the future. A service like this can reduce the stress and responsibility of a PR in dealing with their family members unwanted possessions.

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.

April 9, 2009

HIPAA - Part II What are Advance Health Care Directives and What do they have to do with HIPAA?

Roy Doppelt, a California estate planning lawyer, wrote an article on HIPAA and Advanced Health Car Directives. Much of his information applies to Florida Advanced Health Care directives. Roy states that an Advance Health Care Directive appoints a family member or friend to make health care decisions for you if you become physically or mentally unable to make them for yourself.

The person appointed is your Agent and many people appoint backup agents to help make decisions. We typically draft these documents in conjunction with a living will and a HIPAA release so that your Agent cannot show one document without the other in an attempt to avoid your desires.

April 3, 2009

Estate Planning and Fraudulent Seminars - Updated

It seems like ever few months we hear about another company who provides living trust seminars to the public and scares them into purchasing unnecessary trusts.

Another "Trust Mill" has been found guilty of practicing law without a license by 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.

In this case The Estate Plan, a company operating in Texas and Arkansas, was hit with a $16 Million default judgment for fraud, unauthorized practice of law, negligence, breach of fiduciary duty and conspiracy.

The following update was added after receiving a letter clarifing some information that was reported incorrectly by other news sites.
NOTE and clarification of other reports on this topic.
According to M. Wade Kimmel who is counsel for CLA USA, Inc., CLA USA Insurance Services, CLA Marketing, CLA Estate Services, CLA insurance services, Charles Loper, Jr., Charles Loper, III, Steven Morgan Robert Reese, winning Strategies Marketing, Inc., Quest Staffing Group, Inc., James E. Bradshaw, Jr. Joel Carson, and Olaf Turek, his clients were not part of this suit and their case was severed and no longer associated with the default judgment mentioned above. Mr. Kimmel wrote to me that his clients case's are pending and his clients expressly denied the allegations in the suit.

Mr. Kimmel stated that the original suit involved his clients but that they were not properly joined and the court severed the cases. His clients were not involved in the default judgment. Any questions regarding M. Wade Kimmel's clients should be directed to him

April 2, 2009

Irrevocable LIfe Insurance Trusts Explained

Gerey Byer of the Wills, Trusts & Estates Professors Blog covered an article on ILITS which discusses issues with Irrevocable Life Insurance Trusts (”ILITs”) and some of the important issues of determining the proper trustee and which state law to use.


Martin M. Shenkman (Member, Martin M. Shenkman, P.C.) has written a new article entitled The Practical Planner: "Insurance Trusts (ILIT) Not So Simple", Feb. 2, 2009.

April 2, 2009

Top 100 Twitter Feeds for Law Students

Our twitter feed http://www.twitter.com/guntrustlawyer has been named one of the Top 100 legal feeds