June 2010 Archives

June 30, 2010

Gary Coleman’s Will Contest

will.jpgDuring the late 1970’s through mid 1980’s, Gary Coleman became a promising young star on the television sitcom Different Strokes. His character’s catchphrase "What you talkin' 'bout, Willis?” made numerous people laugh during the shows 8 year run. Sadly after his passing and subsequent cremation, his relatives will not be able to hold a funeral until a judge in Utah decided who will permanently control his estate.

There are records that indicate Coleman created a will in 1999 and another in 2005. However, a handwritten amendment was added to the 2005 will later on, in 2007. The significant difference between the 2005 will and the 2007 amendment is that the 2005 will leaves his entire estate to ex-girlfriend and former business associate Anna Grey while the 2007 amendment leaves the entire estate to his ex-wife Shannon Price.

Price and Grey are both claiming in court they should be entitled to the entire estate but have significant legal obstacles to overcome. Price’s strongest argument is that Utah is one of the states that recognize holographic (handwritten) wills, although they must be entirely written in the handwriting of the person, signed and dated. However, Grey’s best argument is that the 2007 amendment was revoked because it was made while Price and Coleman were married. Since they divorced there is a presumption that the amendment was automatically revoked and struck from the will. Price is trying to rebut this presumption by claiming she and Coleman were living in a common law marriage at the time of his death.

In Florida, holographic wills and amendments are disfavored and held unenforceable because of the potential for coercion or duress. Most of these issues could have been avoided with a properly prepared estate plan. For information on avoiding estate planning consequences contact an experienced Florida Estate Planning Lawyer for any questions or concerns you may have with your Florida Will.

June 30, 2010

Florida Estate Planning is Important for Women Too

As generations grow older, more and more women will find that they have significant assets worth giving to others when they pass away. In most parts of the world women have a longer life expectancy and commonly marry older men. This means that there is a good chance a wife will inherit her husband's estate if she outlives her husband. Since the wife will typically outlive the husband, she will have the last word about the division of property between heirs when she passes away.

Due to statistics that show many women do not make as much money in their lifetime as men, it is important for women to do Florida Estate Planning . Women's living standards could be compromised if proper estate planning is not accomplished. By planning for unforeseen circumstances with insurance and a Florida Revocable Trust, living standards can be easily maintained should anything occur to you or your loved one. Another issue to consider is how assets to a spouse may be limited to allow the spouse to obtain benefits but not put the families assets at risk. This is a combination of Elder law and estate planning.

Florida Estate Planning has never been something only men should complete before they pass away. In modern society, women are dying with significantly more assets than a vast number of men. A Florida Will or Florida Revocable Trust can ensure that your assets pass to your chosen heirs. Speak to a Estate Planning Lawyer in Jacksonville Florida who can assist you in fulfilling all your estate planning needs.

June 29, 2010

Time is Running Out on the 2 Year Rolling GRAT

Grantor Retained Annuity Trusts are used in the United States to make large financial gifts to beneficiaries without paying a U.S. gift tax. A GRAT is a trust with a specific life or term, usually anything longer than 2 years. In most cases a wealthy grantor transfers assets to the GRAT and retains an annuity interest in the trust. This means that the grantor receives an annual payment from the GRAT for a fixed period of time. When the GRAT term ends, any remaining assets will be distributed to the named beneficiaries. However, the grantor must outlive the trust term or the funds will fall into the probate estate and subjected to estate taxes.

Recently, the U.S. House of Representatives passed H.R. 5486, a bill that requires all GRATS to have a term of at least 10 years. This is a significant increase from the previous 2 year minimum and significantly dulls the attractiveness of this type of trust. The trust will now be more risky due to the requirement that the grantor must outlive term in order for the beneficiaries to receive the tax breaks from the trust.

The bill has passed in the House and now needs approval from the Senate. This shot period provides a window of opportunity for those who wish to seek the benefits of a GRAT. This is also a great time to review existing GRATs if asset values have declined, so that a GRAT now in place is unsuccessful. If the asset could possibly bounce back and become profitable, now is the time to contact a Florida Estate Planning Lawyer to create a new GRAT.

June 28, 2010

Funding Your Florida Trust

Creating a Florida Revocable Trust is a job that most Florida Estate Planning Lawyers are capable of but the process of avoiding

Florida Probate

does not end there. Once the

Florida Revocable Trust

has been created it must then be funded with the client's assets. Without proper funding all of the assets that should have been in the trust will pass through

Florida Probate

costing heirs extra money in taxes and fees.



In order to fund your

Florida Revocable Trust

properly, you need to transfer ownership of your assets into the name of the trust. Personal property can be transferred using a document called a General Assignment or Assignment of Personal Effects. Real property is a little more complex because it requires executing a new deed transferring the property from your name as an individual to the name of the trust. Institutions with which you have bank and brokerage accounts usually require a showing that your trust exists and that it is your wish to have these accounts transferred. A Certificate of Trust is a document that provides proof of the existence of your trust and is usually given to the client in the living trust package he receives from his Florida Estate Planning Attorney.



Forgetting or neglecting to fund your trust is something you wouldn't want to do after going to all the trouble to create a trust in the first place. Even if you initially funded the trust with assets there are many cases where people have acquired a significant amount of assets later and never transferred them to the trust. If you would like assistance in creating a revocable living trust or an assessment of your existing trust contact a

Florida Revocable Trust Lawyer

or

Jacksonville Estate Planning Lawyer

today!

June 27, 2010

Foreclosures in Jacksonville Florida

Foreclosure Lawyers in Jacksonville Florida have seen a significant increase in the number of Foreclosure cases in Duval County over the past several months. Many individuals who are currently going through loan modifications are seeing the banks file foreclosure cases on them as the same time as they try to modify their loans. It is important not to ignore the Jacksonville Foreclosure case while you are talking with the bank even if they tell you they will put the case on hold. The cases often proceed and you can loose your right to defend your case if you do not respond timely. To discuss your situation with a Jacksonville Foreclosure Defense Lawyer contact a Florida Foreclosure Lawyer or use the contact us form on this page.

June 25, 2010

Lawmakers Considering Billionaire Estate Surtax

According to Forbes Magazine the United States has over four hundred billionaires. Currently, three Liberal members of the Senate are working on a plan that calls for a 10% estate "billionaire surtax" that would go into effect retroactively. This would raise the tax rate to 65% on all estates that have accumulated more than $1 billion in assets. These lawmakers believe that billionaires should be required to pay more in estate taxes due to the increasing federal budget deficit and national debt.

This harsh tax proposal may have been spurred by the death of Texas billionaire Dan L. Duncan who passed away in March with a net worth of $9.8 billion. Since Duncan died this year, his entire estate passes to his heirs tax-free. If these Senators' proposal is enacted, it will hit Duncan's estate retroactively, immediately prompting a court challenge to its constitutionality.

Republican Senators and some less liberal Democrats are opposed to any retroactive plan. Seeing that the only way to come up with a legitimate plan is through bipartisan cooperation, two other Senators have been working on a compromise. This would impose estate taxes on estates above $5 million at a maximum tax rate of 35%. If Liberals have their way they would also seek to eliminate or restrict the use of GRATs because those trusts are popular tax breaks for the wealthy. If you have any questions or concerns about how these new laws may effect you contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer for assistance.

June 23, 2010

The Florida Slayer Statute

In Florida, it is a common principle of law that criminals should not profit from their crimes. Therefore, it follows that a murderer should not be able to inherit from the estate of their victim. The most common, but unfortunate event that would trigger a slayer statute would be when a spouse murders the other spouse.

Under the Florida statute, a surviving person who unlawfully and intentionally kills or participates in killing the victim is not entitled to any benefits under the intestacy code or the victim's Florida Will or Florida Revocable Trust. Property that was originally meant for the killer passes as if the killer had predeceased the victim. A final conviction of murder in any degree is conclusive for purposes of this statute but in the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional.

There are many situations where the slayer statute could arise in Florida Probate proceedings of a Florida Estate. None of them are simple and should be dealt with quickly and efficiently. For more information on how to deal with slayer statutes contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer.

June 22, 2010

Choosing Your Florida Personal Representative

Being named the "Personal Representative" or "Executor" of someone's estate under a Florida Will should be a decision made after consider several factors. Although many people may be tempted to name their spouse or one of their children as personal representative, there are certain qualities one should look in a candidate before deciding who to name. The following is a list of traits you should look for when deciding who should serve as your executor:

1. Loyalty - the executor should be loyal to your beneficiaries and loyal to your final wishes. 2. Fair - the executor should treat multiple beneficiaries fairly and protect all of their interests equally in the probate process. 3. Trustworthy - the executor will be trusted with large sums money, real property, and personal property. Your executor is capable of investing and selling all of these assets and will know all of your financial secrets. 4. Organized - the personal representative you choose will be responsible for performing several comprehensive tasks with deadlines that must be met. Good organizations skills make it quick and easy to locate information. 5. Financial Background - the personal representative should understand finances because during the probate process he must pay debts and collect revenues for the estate. Also, financial minded people can deal with investment accounts so they won't suffer or drop in value before they can be distributed to your heirs. 6. Tough Minded - the executor should be able to deal with greedy beneficiaries who want their inheritance right way and any unforeseen circumstances that could arise.

With the proper personal representative, you can ensure that your estate is safe and distributed according to your wishes. For assistance in choosing a Personal Representative, contact a Jacksonville Estate Planning Lawyer today.

June 21, 2010

Adopted Children Rights in Intestacy

Intestate succession is a statutorily imposed way of passing property to descendants after death. In Florida, an adopted child is treated exactly the same as if he/she was a natural born child of the adoptive parents (mother and/or father). This means that for the purpose of intestate succession by an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family. The adopted person is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent's family.

Adoption of a child by a step-parent, who is married to a natural parent, has no effect on the intestacy rights between the child and the natural parent or the natural parent's family. This is true even if the child was adopted by the step-parent after the death of the other natural parent. For example, imagine that Tom and Kate are married and have one child Jane. If Kate dies and Tom later remarries and his second wife adopts Jane, Jane would maintain her rights to inherit from Kate's family under Florida intestacy statutes. As long as Kate's family lives in Florida Jane will be protected, but if Kate's family lives in other states, you would need to check how step-parent adoptions are treated in the state where the relative lives.

One final thing worth mentioning regarding adopted children's intestacy rights is that in certain circumstances an omitted child from a Florida Will can receive a share of the estate equal in value to that which the child would have received if the testator had died intestate. However, an obvious intentional omission or devises of substantially all the estate to the other parent of the omitted child will likely result in no gift for the omitted child. To discuss your circumstances or ask questions about this or other Florida Estate Planning issues contact a Jacksonville Estate Planning Lawyer.

June 19, 2010

Removal of a Florida Trustee

Florida Revocable Trust are managed by a Trustee who is the person(s), or in some cases entity, that hold legal title to property for the benefit of an equitable title holder.

Often the grantor of the Florida Revocable Trustselects the trustee who is responsible for making sure the beneficiaries are taken care of according to the grantor's wishes. A single beneficiary or group of beneficiaries can become dissatisfied with the performance of the trustee when unfortunate circumstances occur. This may lead to a difficult court proceeding where the removal of a trustee is sought.

Under the current Florida statute a beneficiary, co-trustee, or the grantor of the trust may request the court to remove a trustee. When a removal request is made, it is up to the court to decide if there are sufficient circumstances that justify the trustee's removal.

The Florida Trust statute expressly states that the court may remove a trustee if:

1) The trustee commits a serious breach of trust,
2) There is a lack of cooperation among multiple trustees,
3) The trustee is unfit, unwilling, or persistently fails to administer the trust effectively, or
4) There has been a substantial change of circumstances or all beneficiaries agree to the removal, the removal of the trustee best serves the interests of all of the beneficiaries, is not inconsistent with a material purpose of the trust, and a suitable co-trustee or successor trustee is available.

If you are the beneficiary, co-trustee, or grantor of a Florida Revocable Trust and believe any of the circumstances mentioned here apply to your trustee, contact a Florida Revocable Trust attorney or Jacksonville Trust Attorney who can discuss whether it would be beneficial to seek the removal and appointment of a new trustee.

June 18, 2010

Valid and Invalid Methods of Destroying/Revoking Your Will in Florida

will.jpgMany people create a Florida Will on their own or with a Florida Estate Planning Lawyer and later want to make a change to one or all of the beneficiaries.

Although this can be frustrating because substantial time and thought went into creating the first Florida Will, there are certain procedures a Florida resident should follow when destroying or modifying the Florida Will.

If you wish to destroy or cancel your Florida Will, there are a few common techniques to use that are considered valid in courts. The goal is to leave no doubt that the will no longer contains your final wishes, should you pass away. Tearing, mutilating, shredding or cutting the Florida Will into small pieces is an effective way that leave no doubt that the will should no longer be recognized as an individual’s last wishes. While burning your Florida will could cause a fire hazard and should be done with caution, it is also recognized as an effective way to revoking your Florida Will. However, if the Florida will is destroyed because of an accidental tear or is burned in a fire it still remains effective because there was no intent to revoke (as long as there is something that can be used to replace the original Florida Will.

When attempting to modify a Florida Will your efforts should conform with the requirements found in the Florida statutes for WIlls and Trusts. Some techniques that courts have found are invalid when modifying or destroying a will include crossing out only part of the document with pen and writing void on the back of a will. Florida Willsrequire two witnesses when making any alteration or modification of a will. If they are not there to witness the changes made, then a court will not uphold modification. The witness must sign the will in the presence of each other and in the presence of the creator of the will- who must sign at the end of the document also.

It is important to remember that after destroying or revoking a will it leaves the individual with no estate plan to distribute their assets when they are gone. That means it is the same as dying with no will at all. If this happened the state intestacy laws control how the assets of your estate will be divided upon your death. Thus, it is important to discuss these issues with a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer to make sure that you understand what will happen in the event of your death.

June 18, 2010

Florida Prenuptial Agreements

prenuptial.pngToday, more people than ever before are finding the need for a prenuptial agreement before marriage. A Florida Premarital Agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Although many people view creating a prenuptial agreement as an adversarial process with the one you love, you can also look at it as a way to make your own decisions about the distribution of your finances. The agreement’s purposes extend beyond planning the outcome of divorce because they can also serve as important tools in Florida Estate Planning particularly when you want to make sure children, friends, and charities receive assets. Otherwise most assets will be given to the surviving spouse upon death.

Florida statutory law lists many forms of content that spouses may contract with respect to in the agreement. In most cases the agreement will spell out in detail who owns each asset and almost any property right may be included. One very important property interest related to Florida Estate Planning is a requirement to be included in a Florida Will or an obligation to make a Florida Will. However, the right of a child to support cannot be adversely affected by the agreement.

The prenuptial agreement is not enforceable under circumstances that indicate a party did not execute the agreement voluntarily or fair disclosures of the property were not given to both parties. Some of the limitations on enforceability do not apply in the case of death. It is also important to have two Florida Estate Planning Lawyers present, one to represent each party, at the signing of the prenuptial agreement because the terms could end up being substantially one-sided. If this happens courts may invalidate the portions or all of the agreement.

Whether or not you are considering remarriage later in life or marrying for the first time, you may want some protection if you have worked hard and accumulated substantial assets during your lifetime. If you believe it is time to tie the knot with your loved one, a premarital agreement may be right for you. Remember to contact a Jacksonville Estate Planning Lawyer to help you understand and define your objectives in the case of divorce or death.

June 17, 2010

Digital Death Day

Digital Death Day is the idea that when we die physically, we may want to decide what happens to our digital profiles and accounts, whether that entails deleting or claiming the information. In the physical world individuals tend to leave paper trials so that their heirs may find important documents, but in the digital world the paper trial vanishes. Whether assets are economically or sentimentally valuable assets, they may be lost when we die.

Recently, a conference was held in California which discussed some of the issues involved with digital assets and what becomes of them when we die. Participants included attorneys, funeral directors, hospice services, obituary columnists and memorial services. In addition, representatives from many digital asset services offering digital afterlife management. The problem with many of these is that although they provide a way to pass on account information, they do not provide a legal means to access them or use the assets which could create liability for the violations of the licensing agreement as well as to others in the estate.

As the digital environment grows and the area of law develops, many people will seek to ensure that their legacy remains after they are gone. In the future individuals who use a computer to store information should utilize a Digital Asset Protection Trustfor all their digital assets to pass to their heirs. Consult your Digital Asset Protection Trust Lawyer for guidance on how to protect and distribute your digital assets before your digital death day.

June 17, 2010

Specific Devises in Florida Wills and Trusts

fineprint.jpgWhen using a Specific Devise in a Florida Will or Florida Revocable Trust it is important to understand how they work and what causes them not to work in order to avoid unintended consequences.

A specific bequest is a gift of a particular identifiable asset within the estate that can be distinguished from any other estate property. For example, "I give the Picasso painting hanging in the living room to Jane" or "I give all of my baseball cards to my son David Goldman." Typically, specific gifts are given in a Florida Will to a beneficiary that will keep and use the property. Upon the death of the Testator (the person who made the will), problems arise when specific gifts are no longer owned or in their possession or if there is not enough money to satisfy the gift.

In Florida, a specific gift is deemed to be extinguished to the extent that the testator does not own it when they die. This means that the gift is void and the beneficiary has no right to collect the gift. In the previous examples above, if the testator had sold the the Picasso painting or box of baseball cards before his or her death, the gifts would be extinguished and Jane and David would be left with nothing. The problem can also arise when there are specific devises of money in dollar amounts but not enough money or the money is in account with joint ownership or payable on death designations. Since these accounts are not subject to probate, there is no money to give to the named beneficiaries. This can also happen if cash is given, but only stocks are owned at death. There is no requirement to sell other assets to satisfy the specific gifts in the estate.

However, recent changes in the law allow the beneficiary of a specific gift to receive a general gift equal to the sale price of the property if a guardian of the property sold it instead of the testator.

If you would like advice or counseling on any matters related to your devises in your Florida Will or Florida Revocable Trust contact a Jacksonville Estate Planning Lawyer to aid you in the estate planning process.

June 16, 2010

When do you Digital Assets Expire and are they Assignable

fingerprint-scanner.jpg

We have started reviewing digital assets for whether they are assignable and when they will be deactivated.

There are services that purport to pass on login information to who you designate after you die. Remember that such a transfer does not appear to be legal and may create liability to the beneficiaries of your estate if damage is done to them or information is obtained by and used by others. The best way to address this issue is to create a Digital Asset Trust and have the trust own the assets, that way there is no transfer upon your death only a change in management- the trustee.

Below is our first summary of some of the major services. A Digital Asset Trust can prevent the loss of valuable Digital Assets upon your death.

Service Time Before Deactivation Assignable
AOL Screen Name: 90 Days
Free Email: 30 Days
No
Yahoo Extended period of time No
Hotmail Bing Cashback: 12 months
Paid Subscription when service ends
No
Gmail Nothing in terms No
PayPal 2 Years No
For more information on how to manage your digital assets contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer.
June 16, 2010

Choosing a Living Trust Over a Will in Florida. Which is right for you?

Grandfather-grandaughter.jpgIt is a common mistake many people make to believe that only the rich and wealthy need to implement a Florida Revocable Trust as a component of their Florida Estate Planning. Often after taking into account your home, bank accounts, cars, brokerage accounts, jewelry, collectibles, and life insurance policy most individuals will see their estate is much larger than they believed. Without proper utilization of Florida Estate Planning tools such as a Florida Revocable Trust, this amount can be subject to high costs associated with the Florida Probate process and potentially federal estate taxes or death taxes. While there are no Federal or Florida estate taxes in 2010, the annual exclusion is expected to drop in 2011. Many believe we could see only a 1 million dollar exclusion in 2011.

There can be many advantages of using a Florida Revocable Trust for you estate planning needs rather than a Florida Will. First, privacy is an advantage offered by a living trust but not a will because after death wills are publicly recorded and copies may be viewed or purchased. A second advantage is that a Florida Will often requires the expense and delay of Florida Probate. With the attorney fees, executor fees, and tax consequences involved with probate, thousands of dollars could be saved with a living trust.

A third advantage is control and to some extent the protection from creditors with the money and assets given to beneficiaries. Often your beneficiaries creditors are not be able to satisfy their debts from your trust funds when the trust is properly setup and managed. However, if the money were given outright in a Florida Will, creditors are be free to collect their debts with those funds. Another advantage worth noting is efficiency with which assets are distributed. Probate proceedings usually take between 6 months and 24 months. Throughout these proceedings the assets are usually tied up and cannot be enjoyed by the beneficiary.

A Florida Revocable Trust can provides significant advantages for many people that cannot be obtained with only a simple will. To receive these benefits your goals should be shared with a Jacksonville Estate Planning Lawyer to determine what options you have and how to implement them to meet your desires.

June 15, 2010

Avoiding Florida Estate Planning Pitfalls

3kidson-jacksonville-beach.jpgFlorida Estate Planning involves many situations where is the potential do have disputes over money or assets. Many problems arise from poorly planned and drafted estate planning and these can lead to fights amongst family members, IRS audits, and lead to high litigation costs. Focusing on your specific needs can avoid these pitfalls and can benefit those individuals with all sizes of estates.

It is important to first understand and define your objectives and resources. In order to get a custom-tailored Florida Estate Plan, a Florida Estate Planning Lawyer must be able to explain exactly what you want in terms you can understand. In some cases there are advantages in giving up control over your assets. Part of the process often involves talking with children and other beneficiaries about the estate plan and educating them on how to use it to their benefit after you are gone. Your plan can often offer your children protection into their lives from divorce or claims by creditors if used properly. In addition, many future disputes can be avoided by helping your beneficiaries to understand your goals, objectives, and reasoning behind the decisions you are making. While documents are a large part of the Florida Estate Planning process, effective communications, a clear understanding and education of all those involved will help the plan be successful when you are not there to manage it.

If you would like professional assistance with your Florida Estate Planning contact an experienced Florida Estate Planning Lawyer to help you in these matters.

June 12, 2010

Can a Trustee Resign? And how under Florida Law

When a Florida Trust is created, the creator of the trust designates a trustee to monitor the trust. There is great responsibility that comes with being the trustee because this individual, or group of individuals handles the distributions to the beneficiaries according to the terms of the trust document. The terms may place numerous restrictions on the distributions made to beneficiaries or the trust may give broad discretion to the trustee to make the distributions. In addition, Florida law places additional requirements on a trustee that may not be apparent from the reading of the document. Circumstances can arise where a trustee wishes to resign their position as trustee.

In order to resign your position as trustee in Florida, you must comply with Florida statutory law. Florida Statute § 736.0705 governs the resignation of a trustee. It says that a trustee may resign if at least 30 days notice is given to all qualified beneficiaries, the settlor (creator) of the trust if still living, and all co-trustees. A trustee can also petition the court for resignation and then may be relieved of their position with the courts approval.

This does not mean that the trustee will escape liability for acts done before the trustee's resignation. If the resigning trustee has committed some breach of their duties to the beneficiaries, they can still be held accountable for those acts. For more information on your Florida Revocable Trust or if you have any trust administration questions contact a Florida Trust Lawyer today.

June 11, 2010

Plan for Your Potential Incapacity in Florida

combo-livingwill.jpgOne important aspect of the estate planning process is determining what will happen if one day you become incapacitated. The decisions that you make on a day to day basis will no longer be possible, therefore you will be required to rely on someone else to make these decisions for you. Two positions, the Florida Health Care Surrogate and Florida Durable Power of Attorney, can serve as decision makers when your time of need arises.

The designation of a Florida Healthcare Surrogate is vital to the estate planning process because this person will make the medical decisions for you in a situations where you are unable to do so. This does not mean that the person will always make medical decisions for you. Only when an individual becomes incapacitated to the point that the primary physician decides he/she can no longer make medical decisions for themselves. Situations such as this often arise when someone is unconscious.

A Florida Durable Power of Attorney determines your financial matters in the event you become incapacitated. It is important to choose a trusting person to whom you can assign this power because of the many responsibilities he or she will have. You can control the degree of power the person chosen has over financial matters but under most circumstances they will have complete control over your banking transactions, real estate transactions, and securities exchanges. In some cases this person can even run your business for you by making contracts and running the day to day operations.

These decisions involve imperative decisions to your estate and future should anything happen to you. Discuss these estate planning issues with your Jacksonville Estate Planning Lawyer who can provide guidance and expertise in this sensitive area of law.

June 10, 2010

Bank of America settles lawsuit involving Countrywide FInancial lending practices

Bank of America settled a class-action lawsuit stemming from their acquisition of Countrywide Financial based upon predatory lending practices in eleven states including Florida. The funds provided by this settlement includes lowering of interest rates, lowering principal, no loan modification charges, and waiving prepayment penalties. This new program was launched by Bank of America in December. For more information on this see the Florida Foreclosure Defense Lawyer's Blog

If you have been served with a Florida Foreclosure Lawsuit or if you have concerns about the practices of your lender, contact a Jacksonville Foreclosure Defense Lawyer . Many Florida Foreclosure Lawyers are very adept at spotting this type of violation and providing the homeowner with a defense to a Florida Foreclosure Lawsuit.


For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

June 10, 2010

Requirements for a Florida Qualified Disclaimer

In a recent article I discussed disclaimers, which are a refusal by a person to accept an interest in property. According to the Internal Revenue Code § 2518, the following is a list of requirements for a qualified disclaimer to be effective in Florida.

(1) A refusal is in writing,

(2) Such writing is received by the transferor of the interest, his legal representative, or the holder of the legal title to the property to which the interest relates not later than the date which is 9 months after the later of--
(A) the day on which the transfer creating the interest in such person is made, or
(B) the day on which such person attains age 21,

(3) Such person has not accepted the interest or any of its benefits, and

(4) As a result of such refusal, the interest passes without any direction on the part of the person making the disclaimer and passes either--
(A) to the spouse of the decedent, or
(B) to a person other than the person making the disclaimer.

There are different types of disclaimers for different assets. I have included a sample form of what is required to make a qualified disclaimer under a plan Download file. Because of the risk of doing an incorrect disclaimer, it is advisable to have a Florida Estate Planning Lawyer review or create the disclaimer for you.

June 10, 2010

Disclaiming Inherited Property from a Florida Will or Trust

Most people in today's society would be happy to discover that they were being left an inheritance in a Florida Will . However, since inherited property under the estate laws of Florida is a gift, the beneficiary does not have to accept the inheritance. Although declining to accept a gift would seem odd to some people, there are a few reasons why it would be beneficial not to claim inherited property.

One reason why a person may not want to accept an estate gift is because the property may be undesirable. Property may become undesirable when there is a large debt owed on the property or significant maintenance would be required to sell the property. For example, an old abandoned gas station that was given to you in a will would probably not be worth taking because of the significant costs to modify the property and the taxes that could come with it.

Other reasons why someone would disclaim property are to prevent your creditors from taking the property, a feeling that it is wrong to benefit from someone's death, and to reduce your tax burden, or it will only create additional estate taxes upon your death. While it may not be permissible to disclaim the property in all situations to avoid creditors, you should discuss your specific goals with a Jacksonville Estate Planning Lawyer as soon as possible because there are time limits on when a properly filed disclaimer can be done. Whatever your reason may be for not wanting the gift it is important to know a disclaimer must comply with federal law. Contact a Florida Estate Planning Lawyer who can assist you in the process and insure that the disclaimer is done correctly and complies with the appropriate laws of the jurisdiction.

June 3, 2010

Florida Elective Share of a Spouse

Under ideal circumstances a husband and wife will agree to what the surviving spouse should receive when the other dies. However, many times when this doesn't happen the surviving spouse receives a portion of the estate they are unsatisfied with. For example, an elderly couple who marries later in life may want to provide their grandchildren, so they leave 90% of their estate to them and 10% to their wife. In Florida, if the wife is unsatisfied with these conditions, she may make a claim for an elective share.

An elective share is statutorily defined as a right of the surviving spouse to a specific portion of the estate when he/she isn't satisfied with the amount received under a Florida will. Taking a 30% elective share of the estate is something a surviving spouse has a right to in Florida. However, the elective share does not overcome a pre or post nuptial agreement between the husband and wife.

Many times the elective share consists of more than just the net probate estate. The assets subject to the elective share can be different than those subject to a probate and it is a complicated process to calculate what assets should be included in a Florida Elective Share. Therefore, the surviving spouse will receive 30% of the elective estate which include other property interests that pass outside of probate. To discuss what property is subject to the elective share and what amount may be due to you contact a Florida Estate Planning Lawyer or Florida Family Law Attorney to assist in the estate planning process.

June 2, 2010

Florida Estate Taxes: Past, Present, and Future

Florida has no Estate Taxes, but there may still be Federal Estate taxes due. Before the distribution of assets of the deceased's estate can occur, the federal government has the ability to take their share of the estate. The Federal Estate tax has been repealed for the year 2010 but in past years the tax has been applied to every U.S. citizen who died leaving assets to be distributed to their heirs. - This does not mean no taxes will be due for individuals who die in 2010. Remember the law does not allow an unlimited amount of capital gains like in previous years. There is not an unlimited amount of capital gains like in 2009. This means even with an unlimited estate tax exemption, some people will pay more in estate taxes under 2010 than under previous years.

In past years the estate tax was applied only on funds that exceeded the net estate amount set by Congress. For example, if an individual died in 2009 leaving a net estate of $3.5 million then the federal government would not have taxed the estate because the net estate did not exceed the amount exempted by Congress. However, if the net estate would have been $4 million instead, the estate would be taxed at a rate of 45% on the amount over $3.5 million. So in this case the Federal Estate tax liability would be ($500,000 x 45%) which comes out to $225,000.

Currently, there is no plan to repeal the Estate Tax exemption for 2011. Before the 2010 repeal, Congress had increased the tax exemption given to individuals who died and whose net estate was distributed to $3.5 million. However, the current plan for 2011 is to have a tax exemption of $1 million and a tax rate of 55%. If the current plan remains in effect it will place a much greater tax liability on assets and funds that are distributed out of the net estate of those who die next year.

Thus, it is important to discuss the estate tax process and what tax liability your estate may be subject to in future years with an Florida Estate Planning Lawyer. Some assets are exempt from tax liability and with proper planning your federal estate tax liability in future years could be significantly reduced.

June 1, 2010

Florida Trusts: Who is involved and what is the Grantor, Trustee, and Beneficiary?

A valid Florida Living Trust or Florida Revocable Trust includes three typical positions that most individuals can occupy.

Each Trust should have a grantor, trustee and beneficiary at the time the Florida Revocable Trust is created. The grantor, sometimes called the settlor, is the person who originally sets up the trust and usually supplies the initial trust property. A trustee is the manager of the trust, but does not receive any benefits of the trust (as the trustee). The Trustee has a responsibility and duty to take care of the trust assets for the beneficiary. The original beneficiary is typically the grantor, but a trust must also designate a beneficiary who is different than the grantor in the event of the grantor's death. This beneficiary is also the person who will receive the benefit of the trust and receives the benefits of the trust after the death of the grantor.

Although there are three different positions, one person can serve in more than one capacity. However, there should be some separation of the legal title and equitable title. This can be done by having more than one beneficiary or more than one trustee. Otherwise, the trust purpose of holding property for the benefit of another would be defeated. As long as there are at least two people named in the Florida Trust, a separation of legal and equitable title has occurred.

It is important to know the difference between the three trust positions and how they affect your particular situation. Should you wish to have someone review your Florida Revocable trust documents or create a new trust, contact an Experienced Florida Estate Planning Lawyer and discuss your specific goals and circumstances.