July 2009 Archives

July 30, 2009

What are reasonable fees for a Florida Personal Representative?

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In Florida, A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration.


(a) At the rate of 3 percent for the first $1 million.
(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
(c) At the rate of 2 percent for all above $5 million and not exceeding $10 million.
(d) At the rate of 1.5 percent for all above $10 million.
In addition a Florida Personal Representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:
(a) The sale of real or personal property.
(b) The conduct of litigation on behalf of or against the estate.
(c) Involvement in proceedings for the adjustment or payment of any taxes.
(d) The carrying on of the decedent's business.
(e) Dealing with protected homestead.
(f) Any other special services which may be necessary for the personal representative to perform.
If the probate estate is in excess of $100,000 and there are 2 personal representatives, each shall be entitle to a full fee. If there are more than 2, then the PR in possession of the home shall be entitled to a full fee, and the remaining shall split an additional fee.

If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.

Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:

(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;
(b) The responsibilities assumed by and the potential liabilities of the personal representative;
(c) The nature and value of the assets that are affected by the decedent's death;
(d) The benefits or detriments resulting to the estate or interested persons from the personal representative's services;
(e) The complexity or simplicity of the administration and the novelty of the issues presented;
(f) The personal representative's participation in tax planning for the estate and the estate's beneficiaries and in tax return preparation, review, or approval;
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;
(h) Any delay in payment of the compensation after the services were furnished; and
(i) Any other relevant factors.

July 23, 2009

When Is It Time to "Service" Your Estate Plan?

Grandmother-mother-daughter.jpgIf you own a car, then you know it requires regular servicing in order to perform well and be reliable. More than likely, your car came with a recommended schedule for service, based on how many miles it has been driven. After a certain number of miles, you need to change the oil, replace the brake pads, rotate the tires, and so on.

If you have a newer car, you probably have an irritating dash light that comes on when it's time for service and stays on until the mechanic resets it. Either way, whether you pay attention to the odometer or rely on that dash light, it's pretty easy to know when it's time to service your car. And if you keep driving it without servicing it, it's a sure bet your car will let you down.

Like your car, your estate plan needs "servicing" if it is going to perform the way you want when you need it. Your estate plan is a snapshot of you, your family, your assets and the tax laws in effect at the time it was created. All of these change over time, and so should your plan. It is unreasonable to expect the simple will written when you were a newlywed to be effective now that you have a growing family, or now that you are divorced from your spouse, or now that you are retired and have an ever-increasing swarm of grandchildren! Over the course of your lifetime, your estate plan will need check-ups, maintenance, tweaking, maybe even replacing.

So, how do you know when it's time to give your estate plan a check-up? Well, instead of having mileage checkpoints, your estate plan has event checkpoints. Generally, any change in your personal, family, financial or health situation, or a change in the tax laws, could prompt a change in your estate plan. Use the list at the end of this newsletter to guide you.

It's a good idea to review your estate plan every year. Set aside a specific time every year (your birthday, anniversary, family gathering) to review it. Keep these events in mind each time you read through your documents. If you think a change may be in order, don't write on your actual document; contact your attorney. Most changes can be handled by a simple amendment that is attached to your current will or trust.

Planning Tip: Like your car, your estate plan needs regular "servicing." Set aside a specific time every year (your birthday, anniversary, family gathering) to review it. Become familiar with it. Keep it current so it will perform the way you want when you need it.

What Do You Do with Your Estate Plan?
Think for a few moments about what would happen if you became incapacitated or died today. Would your spouse, family and successor trustees know what to do?

Continue reading "When Is It Time to "Service" Your Estate Plan?" »

July 21, 2009

Recording Florida Deeds after death

Can a Florida Quit Claim deed be recorded after death? Generally any deed can be recorded at any time even after the death of the grantor. However there can be problems created by the delay in filing. First, we often see that the deeds were never delivered and as such are ineffective and not a valid conveyance of the property. In addition, the deeds can be wrong or incomplete and create problems that the grantor is not alive to fix. Third, there is now a requirement in Florida to update the property appraiser with any change in beneficial ownership. Generally the reason why deeds were not recorded in the past was to avoid loss of homestead and keep property taxes lower. Florida's new requirement places penalties on this type of fraud, whether done intentionally or not.

You should have your deeds reviewed by a Florida Estate Planning Lawyer to make sure you are using the right type of deed, are protected from creditors, are not creating additional liability, are not creating unreported gifts and are accomplishing your goals.

July 19, 2009

Free Florida Probate Forms - Will they work?

Are you searching for Free Florida Probate Forms? In most Florida Probate cases the personal representative or executor must hire an attorney. While this is not necessary in some other states, the Florida laws require it. A Florida Probate Lawyer will be familiar with the rules of the probate process in Florida.

The Attorneys at Law Office of David M. Goldman PLLC can help you to understand the complicated forms that are associated with Florida Probate . Whether you are a personal representative, an executor, a creditor, or a beneficiary, we can help you file the correct paperwork and make sure that everything is done correctly so that the court will be able to grant what is being requested. A Florida Probate Lawyer can help you make sure you do not miss any of the steps necessary to be heard.

Your search for Florida probate forms stops here. Much of the information necessary for a successful Florida Probate can be found on this website.

We are flexible and evaluate Florida Probate cases using hourly fees and often can offer a flat fee cost lower than the statutory fees. In most cases you will be able to choose which you feel more comfortable with.

Receive your Free Probate Evaluation with the use of our Free Florida Probate Contact Form.

July 16, 2009

Probate with Living Trust - Is probate required?

Is a Florida Probate required if the decedent had a living trust?
Most people do not transfer all of their assets into a Florida Revocable Trust prior to their death. If their home, or other personal property was not transferred into the trust prior to their death, a Florida Probate may still be required to properly dispose of the remaining assets. Often bank accounts, IRA's, land, business interests, or other assets are not transferred property.

The probate will typically take the remaining assets and follow the instructions of the Florida Will to distribute them. If the will directs the assets to a trust it is called a Pour-over will.

What happens if the Florida Will directs the assets to a non-existent trust. Unless the Florida Will contemplates this, the assets will be transferred by the residuary clause in the will or in the case that this does not exist, they will transfer under the Florida intestate statutes or as if there was no will.

If you are looking to find out about Florida Beneficiary rights, or how property should be transferred in a Florida Probate Contact a Florida Estate Planning Lawyer

July 16, 2009

Forbes and Esatate Planning

Forbes.com has an article on 10 issues dealing with Estate planning and items you should check within your own plan.. Forbes even includes a calculator that will tell you where your assets will go if you die without a will.

July 15, 2009

When is an Heir an Heir? Can forum Shopping Protect Your Heirs?

Matthew Gardner an Estate Planning Lawyer who writes the Iowa Estate Plan Blog has an article on a child conceived after death and how his state and Social Security treats this child as not being an heir of the decedent. The Iowa Probate Code and many states specify that in order to qualify as an "heir" under Iowa law, you must have been conceived prior to the death of the biological parent. You can see with recent medical advancements, this with become more of an issue as time goes on.

If you have a potential for future heirs after your death, you may consider the jurisdiction of your trust or estate to avoid or permit additional children to share in your estate.

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.

July 14, 2009

When Do It Yourself Asset Protection Goes Wrong

Attorney Kevin W Davidson of the Green Bay Wills, Trusts & Estate Planning Blog wrote an article on the pitfalls of Do it yourself asset protection where he talks about some of the problems with trying to protect your own assets.

Over the last 6 months the number of inquiries for asset protection have significantly increased. Unfortunately most of these people did not take action when they had significant assets without potential liabilities, but are only now beginning to consider it as the liabilities become a certainty. While there are things that can be done at this stage to protect, reduce the risk of loss, or increase the ability to negotiate one's debts, it is always best to address these issues prior to problems arising.

If you would like to discuss Florida Asset Protection you should Contact a Florida Asset Protection Lawyer.

July 13, 2009

IRA and Amnesty Program about to Expire

A few months ago the IRS announced a voluntary disclosure program for undeclared foreign accounts. This six months program closes on September 23, 2009. For qualifying taxpayers who come forward and report their undisclosed foreign bank accounts and pay back taxes for six years plus interest and some penalty, the IRS agrees not to bring criminal charges or assess the 75% fraud penalty. What most are not resporting is that the IRS will require disclosure of all who had knowledge of the program and are likily to require you to be a witness in cases against those professionals who had knowledge or helped in the tax avoidance schemas.

On June 30, 2008 a federal court authorized the IRS to serve a "John Doe" civil summons on UBS, demanding the names of approximately U.S. clients who hold off-shore bank accounts. On February 18, 2009, UBS entered into a Deferred Prosecution Agreement with the Department of Justice and agreed to pay $780 million to the U.S. and to disclose the names of between 250-300 of its U.S. clients who had maintained secret accounts at UBS. Now the IRS has sued to enforce the earlier John Doe summons seeking the disclosures of the owners of about 52,000 UBS Swiss accounts. It is estimated that these accounts hold some $17.9 billion in assets. The 52,000 accounts are just at one bank in one country. No one knows how many other accounts in other jurisdictions and financial institutions are unreported.

In addition, UBS has notified many of its U.S. clients that their secret bank accounts will be terminated. Closing the accounts is going to put the account holders in a tight spot. They have two choices: 1) transfer the money to banks in other "bank secrecy" jurisdictions which would create a paper trail discoverable by the IRS, or 2) repatriate the funds to the U.S and come clean with the IRS.

It is not illegal to have a foreign bank account in a bank secrecy jurisdiction (Switzerland, Liechtenstein, Nevis, Anguilla, Panama, the Cayman Islands, or others). What is illegal is failing to disclose the accounts and failing to report the income and pay income tax. In addition to disclosing the existence of the accounts on your 1040 and reporting the income, Foreign Bank Account Reports ("FBARs") must be filed by any U.S. taxpayer who has signatory or other authority over a foreign account or accounts that have a combined value of more than $10,000 at any time during the calendar year.

For taxpayers who "come clean" under the voluntary disclosure program, they will have to 1) pay back taxes due on the undisclosed assets for the last six years; 2) pay interest on the back taxes; and 3) pay a 20% accuracy penalty or a 25% delinquency penalty for each tax year at issue.

These penalties are high, but much lower than previous penalties. IRS will not pursue charges of criminal tax evasion against taxpayers who voluntarily disclose their offshore assets under this new policy (as long at they comply with disclosure requirements).

The IRS will not pursue other penalties against participating taxpayers, such as the fraud penalty of 75% of the unpaid tax or the statutory penalty for willful failure to file an FBAR, which is the greater of $100,000 or 50% of the foreign account balance. Both of these penalties apply annually to undisclosed accounts and assets during the relevant tax years.

Since a taxpayer's name may be discovered by the enforcement of the "John Doe" summons against UBS or in Congressional Hearings, it would be prudent for affected taxpayers to begin the process of determining whether the voluntary disclosure policy is available and appropriate for their particular circumstances. As IRS Commissioner Shulman forewarned, "having the IRS find you could mean a much heavier price than coming forward on your own."

Voluntary disclosure is not a guarantee of no criminal prosecution. Experts recommend that the taxpayer's attorney contact the local IRS district office. Without disclosing the taxpayer's name, the attorney should explain the facts and circumstances to the IRS to determine if the IRS will agree not to prosecute. This disclosure should only be done with a high-level IRS official or counsel.

Taxpayers with offshore noncompliance should take advantage of the amnesty and come forward. The situation is going to get worse, not better.

July 12, 2009

Is a lawyer required for a Florida Enhanced Life Estate Deed?

While in Florida a lawyer is not required to create a valid deed like a ladybird deed or Florida Enhanced Life Estate Deed it may be a good idea to have a lawyer or attorney review these specific document because of their propensity for errors and the bad or unexpected outcome that would occur with an invalid or incorrect Florida Enhanced Life Estate Deed.
1. A lawyer can check to make sure that the deeds are executed with the formality required under Florida Statutes.

2. That an Florida Enhanced Life Estate Deed is the best method of accomplishing your goals. With property with larger mortgages, a deed of this type may not be the best or most affordable method for transferring the property upon the death of the owners because of the mortgage taxes in Florida.

3. In addition, some of the forms and Florida Enhanced Life Estate Deeds that I have seen do not properly deal with the property upon death and title companies have been known to require a probate before they will issue a new title policy. This can cost the family thousands of dollars on a homestead and up to 3 percent of the value of the home on non-homestead properties.

4. Prevent a portion of the property from lapsing, Florida's anti-lapse statute deals with devises by will and in trusts but would not protect an interest in a property that was given to an individual who predeceased the grantor of the deed. Because a Florida Enhanced Life Estate Deed is a contingent gift, it is possible that the remainder interest would be directed back to the estate of the grantor in a case were the contingent remainder beneficiary of the deed was to predecease the grantor.

5. The most important reason to use a lawyer with a Florida Enhanced Life Estate Deed deals with the circumstances surrounding the use of this type of deed. Often when a lawyer prepares these deeds they the process will cause them to evaluate the other financial, estate planning, elder law, and Medicaid planning that are found when these deeds are used. Paying a lawyer who is familiar with these issues to prepare your deed is a good way to have your personal circumstances and issues evaluated at the same time.

If you would like more information on a Florida Enhanced Life Estate Deed you should Contact a Florida Estate Planning Lawyer who is familiar with these issues.