August 2010 Archives

August 23, 2010

Pre-Validation of Wills and Trusts Before You Pass Away

Over the past summer, Alaska has become one of a few states to allow pre-validation of a will. The state legislature also took the law a step farther and allowed trusts to be validated by the grantor before they pass away. In order to explain the new process it is essential to know how most states operate in the probate process. In Florida, if a beneficiary wishes to contest a will, the document must first be submitted to probate. The probate court will not allow probate proceedings to proceed unless the testator is deceased which eliminates the crucial witness of the document, the testator. For this reason, Florida subjects wills and trusts to a number of formalities in order to be deemed valid.

In their effort to reduce will challenges, the Alaska law allows the testator to accurately express their intentions before they die rather than allowing the process to occur afterward. The process first starts by notifying all interested parties and serving them with a copy of the will or trust. The parties then have a specific deadline for filing a challenge to the document, usually 3 to 4 months, before they permanently lose the chance to contest the will. If there is a challenge, the testator will be there to confirm the validity of the document. Since a court can verify duress, undue influence, and capacity while the testator is testifying, the judge can make a final ruling on the authenticity of the will or trust.

Although Florida has not adopted any law of this kind, Alaska allows non-residents to take advantage of their laws. However, a will must be probated in the decedent's state of residence so it is doubtful a Florida court will give any significance to an pre-validated Alaska will. On the other hand, trusts are separate legal entities from their creator so pre-validating this document may prove critical in probate proceedings. A Florida Estate Planning Lawyer offer assistance to your estate plan and answer any further questions concerning wills and trust documents.

August 21, 2010

Rite Aid Settles with HIPAA for Privacy Violations

A recent article by Tanya Roth reveals some shocking truths about our local drug store. Rite Aid is being held accountable for their employees' actions after an investigation by the Office of Civil Rights (OCR) revealed privacy regulations were not followed. The chain of drugstores has reached a settlement with the Department of Health and Human Services and the FTC where they will pay damages of $1 million. Spurred by a television station's videotape, the investigation revealed Rite Aid employees dumping labeled medicine bottles and prescriptions into public dumpsters near their stores.

Since these medicine bottles contained the private information of customers, it was obvious Rite Aid was not abiding by the requirements protecting patient information under HIPAA privacy regulations. OCR confirmed that customer information and other private information was disposed of improperly including job applications. In addition to the $1 million they will have to pay under the settlement, Rite Aid is obligated to implement new training procedures and policies for monitoring internal operations. Nevertheless Rite Aid was not the only drugstore to be targeted by the OCR as last year CVS Pharmacy paid a much larger fine for HIPPA violations.

These violations of health care laws affect everyone but elderly citizens are more at risk because they are frequently in need of medications. Identity theft has been on the rise for many years and this crime is often the result of criminals sorting through dumpsters for any private materials you through away.

August 20, 2010

Protecting My Assets Using A Florida LLC: What are the Options?

Supreme_Court_Florida.jpgDue to the recent decision of the Florida Supreme Court, many single-member limited liability company owners have been left confused and upset. The Ohmstead decision expressly eliminated most of the asset protection benefits that single-member LLCs were thought to have. Creditors of the member can use all available remedies to recover their debt, not just the charging lien that was thought to be the sole remedy. Now it may be possible for a creditor to force the sale of LLC assets and seize all management decision-making.

This decision has sparked new ideas on how to protect debtors who are the owner in a single-member LLC. According to one academic, adding an unrelated business partner as a new member could offer protection. This would require the new member receive some consideration such as a share of the profits so that the reorganization would not be a fraudulent transfer. Also, a second option would be to reorganize the LLC in another state with more desirable LLC protections. Some LLC owners may consider converting to limited partnerships to offer a stronger protection that might be available under the current law. The Florida legislature is expected to address this issue in the future to clarify the standing of multimember LLC's

While the decision did not deal with multi-member LLC's, there is language in the opinion that has raised concern with many around the state over the issue of whether a multi-member LLC offers asset protection in Florida. It seems that it might be possible for a creditor to pierce a LLC and foreclosure on the shares, which may not be possible with a limited partnership interest. Given the current uncertainty with asset protection and LLC's in Florida you should have your operating agreements reviewed to make sure that they are updated to include provisions that would not permit a creditor who has taken an interest in the LLC to vote or participate in the business decisions, is not guaranteed any distributions, and any moneys that would be provided to the original members who have creditor problems are use to purchase annuities for that member or are paid in the form of wages if that individual's wages are protected from creditors

Although these options may seem like quick fixes, they are complex and are not guaranteed solutions to the problem because it will take years for appellate courts approve them. If you have any questions about how this decision may affect you, contact a Florida Asset Protection Attorney for help.

August 20, 2010

Jacksonville Bankruptcy Lawyer

The Law Office of David M. Goldman PLLC has expanded again and added a Jacksonville Bankruptcy Lawyer and a Jacksonville FDCPA Lawyer who can help Stop Creditor Harassment in Florida. Look for an exciting announcement with a new lawyer addition next week in a related area of Florida Estate Planning.

This week our new Blog designs went live. Please let us know what you think about our
Florida Foreclosure Defense Lawyers Blog
Jacksonville Criminal Defense Lawyer Blog
Florida Estate Planning Lawyer Blog

Our Gun Trust Lawyer Blog did not change its format.

Law Office of David M. Goldman PLLC Update

August 19, 2010

Lost Wills in Florida Require Live Witnesses

will.jpgA lost Florida Will is a will that was lost or destroyed without the decedent's knowledge or consent and without his or her intent to revoke. The original Florida Will of a testator can be revoked in a number of ways but the individual must have the intent to revoke the will. When the original will of the decedent cannot be located after her death, it is presumed that the will was destroyed with the intent to revoke it. Overcoming this presumption in Florida requires the proponent of a lost will to carry the burden of introducing competent and substantial evidence.

In the recent case Brennan v. Estate of Brennan, the issue addressed by the 5th District Court of Appeals was whether affidavits alone are enough to prove a lost will or whether live witness testimony is required. Relying on a similar issue addressed by the Florida Supreme Court and the 3rd DCA, the 5th DCA determined that in order for a lost will to be admitted to probate Fla. Stat. § 733.207 requires testimony of one disinterested witness and a "correct copy" of the will, or testimony from two disinterested witnesses. Affidavits merely swearing the witnesses saw the decedent execute the lost will and that witness signed the will are insufficient to fulfill this requirement.

From this decision it is apparent that a draft of the will or some evidence be provided for admission to the probate court and depending on whether a "correct copy" of the will is offered, the testimony of one or two disinterested witnesses. Florida Probate issues are anything but simple so if you feel the need for assistance don't hesitate to contact a Florida Probate lawyer or Florida Estate Planning Lawyer. If you are considering a Florida Will modification, it may be wise to do a full disclosure to all beneficiaries and those close to you because it will provide peace knowing your final wishes have been acknowledged.

August 11, 2010

Insolvent Estates: Who Gets Paid First

FreeFloridaProbateHandbook-small.jpgWhether a death is expected or unexpected, the deceased will probably die with some outstanding debts. It is the responsibility of the estate of the decedent to pay whatever outstanding debts are owed. If you are wondering whether a debt owed by a recently deceased person is collectible, a probate judge will make that decision for you under Florida Statutes. Normally, tax debts are collected first followed by probate fees and all other debts including mortgages, account payables and credit card bills.

In order to pay the remaining debts the executor of the estate will use estate assets, which may require selling off illiquid portions of the estate to create funds to pay the debts. However, if there are not enough assets in the estate to cover all the debts then you may be left wanting. A creditor must file a claim with the estate within a fixed date after the death of the debtor. Therefore, you will go onto a list of creditors to be paid if you meet this deadline. A creditor will always be paid before a beneficiary unless the beneficiary also can make a claim as a creditor. As a result, if an individual leaves their estate insolvent, creditors will end up with their pockets full while your beneficiaries end up with nothing.

With an economy still slow to recover, more and more estates are left insolvent. A Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer may be able to assist you in creating an Florida Estate Plan that can protect assets from some types of creditors and allow your heirs to receive a larger portion of your estate. If you would like a Free Florida Probate Handbook, let us know

August 10, 2010

Asset Protection: IRA's and other Retirement Accounts

ira.jpgIn a recent article by Kelly Greene of the Wall Street Journal, she explains methods in which individuals can protect their retirement accounts. Over an individual's lifetime an IRA (Individual Retirement Account) can accrue hundreds of thousands, or even millions of dollars. There is a high possibility that these retirement accounts will have significant assets left in them when you pass away. One of the main goals of Florida Estate Planning is to make certain your hard earned money is spent according to your final wishes. In order to control how quickly your children or heirs can spend their inheritance, most individuals are led to trust documents.

In a ruling last year, a Florida State Court found that inherited IRAs are not protected from creditors in civil court cases, with the exception of bankruptcy proceedings. Consequently, it is advisable to create an IRA trust where the account holder can name one or more trusts as the retirement account beneficiary instead of leaving the IRA outright to an heir where it could be subject to the claims of their creditors. Not only do you control how your retirement account is spent, but also with this type of Florida Estate Planning you can receive tax-free growth on the funds. Forming an IRA Trust is a complicated process therefore if you require any assistance contact a Florida Estate Planning Lawyer.

August 6, 2010

Updating Life Insurance Beneficiaries Can Be Easy for Florida Families

Whether you want to completely alter the beneficiaries of your life insurance policy or simply add contingent beneficiaries, the process is not all that difficult. However, there are some common mistakes that occur which can result in unpredictable situations. An amendment to a will or trust document cannot change the beneficiaries under the policy. Since an amendment to a Florida Will or Florida Revocable Trust usually requires the assistance of a Florida Estate Planning Lawyer, while you are there ask about the life insurance policy. The attorney can also offer advice and recommend who would be a good beneficiary to fit your particular situation.

Once you are ready to get started, you will need all required information, such as the beneficiary's name, mailing address, date of birth, Social Security Number, contact number and relationship to you. Naming a trust as a beneficiary entails knowing the complete name of the trust and the current trustee's name and address. Before contacting a life insurance company representative, look up the company's website because many companies allow you to make changes to your beneficiaries over the Internet. Most will at least have forms that you can print and fill out. Be sure to comply with all rules on the forms for witnessing and notarizing.

Finally, once you have completed all necessary forms, make copies of the documents and then mail them to the address provided by the insurance company. To avoid disputes, notify all original beneficiaries to let them know they are no longer part of the policy. If you would like further assistance modifying your life insurance beneficiaries or creating a new policy, seek help from a Florida Estate Planning Lawyer.

August 5, 2010

Scam Targets the Elderly in Florida

Grandmother-mother-daughter.jpgalign="left" style="margin-right: 5px;"Seniors Citizens in Florida are the latest to fall victim to the scam dubbed the "Grandparent Scam." An article in the South Florida Sun-Sentinel details how grandparents are scammed when they first receive a phone call from someone pretending to be their grandchild.

The fake grandchild then informs the grandparent that they are in legal trouble and need money to get bailed out of jail. Later, they give detailed instructions on how to wire money and where the money should be wired. Usually the scammers will use a bank account in another country as the place to wire the money to hide their money trail.

Seniors should not be fooled if they seem to know a lot about your grandchild and your family history. With the boom of social networking websites, many family secrets that you thought were private can end up in the personal history of a grandchild. Look for them to request you keep the transfer confidential as this could tip you off that the call is a scam. Also, it is probably in the grandchild's best interest to notify their parent of the call because they have the ability to verify their child's legal trouble.

This is not the first scam to target the elderly, nor will it be the last. Many scams involve family members because they are in a position of trust with the senior. If you believe you have fallen victim to a scam, do not be embarrassed to report these con artists to family members or proper authorities including the Department of Children and Families Elder Abuse Hot Line at 1-800-962-2873.

August 4, 2010

Florida Supplemental Needs Trust

A Florida Supplemental Needs Trust (SNT), also known as Florida Special Needs Trust, is a unique trust designed to benefit an individual with a disability. Supplemental Needs Trusts can be broken down into two categories, third party and self settled. In a well-executed SNT, an unlimited amount of assets can be placed in the trust for the benefit of a disabled person without jeopardizing their qualification for government benefits. These trusts are designed to provide for the extra care and costs above that which governmental benefits supply.

The self settled, or self created, supplemental needs trust has been officially recognized by Congress to benefit individuals under the age of 65, who have a physical or mental disability.
When creating a self settled SNT it is important to know that any assets remaining in the trust at the death of the disabled beneficiary will be used to reimburse the state for Medicaid benefits paid on behalf of the beneficiary. If there is a balance left over it will be distributed to the remainder beneficiaries identified in the trust document.

On the other hand, third party SNT can be created by anyone who is not obligated to support the beneficiary. As long as the third party SNT is irrevocable, the trust assets will not be a countable resource for Medicaid purposes. Explicit language must be used in this trust in order to guarantee the trust resources are not countable assets. In contrast to a self settled SNT, a third party SNT can distribute any remaining funds in the trust after the death of the disabled beneficiary to whoever the grantor designates as the remainder beneficiaries. There is no requirement to include the State for benefits received.

Very sensitive issues are involved when applying for government benefits such as Medicaid and Social Security. Asking for assistance from a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer can help you find comfort knowing that a Supplemental Needs is set up correctly.

August 3, 2010

Estate Planning Brings Relief

Planning for your own death may appear morbid to some people, but the knowing your financial affairs are in order brings reassurance. By acknowledging that death will eventually happen to everyone, the estate planning process can proceed. If you suddenly become ill or are diagnosed with a terminal condition, would you really want to have to deal with additional unwanted stress? Waiting until the end can bring this stress on you and your family at a time when you could be fulfilling your bucket list.

In a recent Market Watch article by Chuck Jaffe, the author's reluctant sister-in-law had to be taken "kicking and screaming" to meet with estate planning lawyers with the his brother. She believed that by remaining ignorant to the possibility of death or illness would lessen the likelihood of those things happening. Unfortunately, two years after the meeting with lawyers her husband was diagnosed with a rare disease that was incurable. Jaffe shared the story of his brother upon his insistence that he tell the life lesson he learned in his final days. This important lesson to share with the world was that taking care of the important things when your days are numbered should not include estate planning. Jaffe's brother believed it was a blessing to know that as his time approached, he didn't need to worry one minute about the estate planning documents.

Focusing on death while you are alive and healthy was an important point in this article. Jaffe's brother believed "focusing on death when you are dying" would be unimaginable. With these life lessons learned, imagine all the time and stress that can be avoided with estate planning. A Florida Estate Planning Lawyer can help you with your end of life decisions. Whether that time is now or in years in the future, remember the life lessons learned from this story.

August 2, 2010

Estate Planning and Commercial Services

digital_assets.jpgEstate planning for Digital Assets is a topic that was covered in a two part article by Oregon Estate Planning Attorney on his Wealth Law blog. In the second part of his article Estate Planning and "Virtual Assets" - Part 2 Michael discusses the importance of determining who should receive your virtual assets and cautions readers in the use of commercial services to hold your virtual assets because of the risk of loss associated with the improper storage or release of the assets to others.

While these are valid points, a bigger concern in my mind is that most of these commercial services appear to violate the the terms of the licenses by allowing others to use your accounts after your death and potentially create liability to your estate. The Digital Asset Protection Trust is the only solution that appears to resolve the legal issues and deal with digital assets correctly. To create a Digital Asset Protection Trust contact a Florida Estate Planning Lawyer to discuss your circumstances.

August 1, 2010

Is a Virtual Asset Instruction Letter Enough to Protect Digital Assets?

digital_assets.jpgEveryday there is becoming an increasing need for Digital Asset protection as more and more digital assets are created. In Estate Planning and "Virtual Assets" - Part 1, a recent article written by Washington attorney Michael Walker, he discusses digital assets and recommends doing two things to protect your digital afterlife. First, he recommends integrating digital assets, or "virtual" assets, into your estate plan. By choosing a trustworthy representative for your estate, he suggests this will properly integrate the assets into the estate. Next, Walker proposes creating a virtual asset instruction letter (or VAIL) that will list all of your online accounts and assets. Included in this list will be the web addresses, user names, and passwords to give your designated representative access these accounts.

While it is important to include these assets in an estate plan, simply choosing a dependable and trustworthy representative may not be enough to secure your digital assets after you are gone. Even with a VAIL list, digital assets may be lost if the username/password is changed. Additionally, a VAIL does not resolve the problem that digital assets are expiring licenses. The best solution to this problem is to create a Digital Asset Protection Trust that will form the accounts in the name of a trust so that when you die, the entity that owns the license is still in existence. For more information on protecting Digital Assets, consult your Florida Digital Asset Trust Lawyer for guidance before your digital death day.