December 2010 Archives

December 31, 2010

New Year's Resolution - Prepare your Will

Thumbnail image for Thumbnail image for happy_new_year_3.jpgPrepare your Will! It's easy, it's affordable and it doesn't involve giving up anything sweet.

We are all guilty of procrastinating when it comes to having our Florida Will prepared, make this a priority for 2011. Once you make the decision, you will be able to rest assured that when you pass (hopefully many years from now), your family will be provided for according to the provisions you have made.

If you die without a valid will you are said to have died "intestate", and the
Florida laws of intestate succession will take over. Florida state law is then in charge of determining what goes to whom, as well as to appoint a personal representative to manage your estate. Although the state gives first priority to the surviving family members, the proportion of your estate that goes to family members is specified by state law. The state's plan not be your plan. Be in control of your assets, consult with a Jacksonville Estate Planning Attorney and have your intentions put into a valid will.

December 27, 2010

GST Loop Hole- Must Act before 12/31/10 to take advantage of this.

The Tulsa Estate Planning Blog reported that The 2010 Tax Relief Act creates a unique opportunity to make gifts through December 31, 2010 that are not subject to the generation-skipping transfer tax. This is because, under the new law, the tax rate is zero for any generation-skipping transfer made in 2010. Beginning January 1, 2011, the tax rate for these transfers will be 35%. In two short years the rate goes back to 55%.

Money can be taken from an existing multigenerational trust, declared subject to the 2010 GST tax, and deposited in a new trust for grandkids' benefit, with the GST tax now pre-paid at a 0% rate.

Under the tax deal, each person's lifetime exemption from gift, estate and GST tax will be "unified" at a hefty $5 million in 2011 and 2012.

Talk with your Florida Estate Planning Lawyer soon to see if you can take advantage of the new tax

December 23, 2010

Be Informed Before Retaining a Probate Attorney

law_offices.jpgA Florida Probate Attorney was suspended from practicing law by the Florida Supreme Court. The attorney was said to be causing great public harm by a pattern of "obtaining fees, controlling assets, enforcing individuals to 'pay him' before he would resign as trustee of several trusts". The attorney has also been the subject of several pending disciplinary cases involving inappropriate handling of trust accounts and failing to move money from his account into a guardianship account.

The Florida Bar governs attorney behavior and law practice. An attorney has a code of ethical behavior in which he must adhere to in his representation of clients. There are specific rules which regulate trust accounts and accounting procedures, and Orange Park Probate Attorneys must act in accordance with these rules, otherwise, they are in violation of the Florida Bar.

Whatever reason has led you to retain an Orange Park or Jacksonville Florida Attorney, it is important to do your homework. One of the most reliable ways to find an attorney is through personal referral. Ask your family and friends if they know of or have used an attorney in your area. Access the internet to view a law firm's web site and blog pages. These sites often have informative articles which will provide you with background information about your legal issue.

December 15, 2010

Gun Trust Lawyer & Class 3 Firearms Trusts

Florida Gun Trusts are not the same as a standard Revocable or Living Trust.

We are getting more and more so called Gun Trusts that have been prepared by lawyers in Florida and other states that are nothing more than a traditional revocable trust with a few definitions thrown in to discuss the National Firearms Act.

The biggest problem with these trust is that they do not protect your family in the event you die or become incapacitated. If your trust talks about income and real estate or does not seem to be specific for firearms, you may want to have it reviewed by a Gun Trust Lawyer to see if your trust instructs your family or friends to break the law and subject themselves to the penalties of the NFA.

Not all trusts are created the same, if you think you have a NFA Gun Trust and it does not contain our copyright it is not our trust.

December 15, 2010

Scammers phone seniors saying they are owed a refund

The SunSentinel is reporting that Medicare recipients are being scammed again by identity thieves who are trying to steal personal and financial information by claiming they are owed a Medicare HMO owes them a refund.

Claiming to work for Humana or CarePlus they ask for the birthdate, social security number, bank account information and Medicare numbers to process the refund.

December 14, 2010

Want to read the new Tax Bill?

For those of you who want to read the Reid-McConnell Tax Relief bill for more details on what is actually in it follow this link

For the summary download this document.

December 14, 2010

Where There's a Florida Will, There's Your Way!

Jacksonville WIll and Probate Lawyerl.jpgWhatever the extent of your Jacksonville property or assets, it is important to have your Florida will drawn up. If you die before you make a will, the State of Florida intestacy succession laws will distribute your property for you. It is important to consult with a Jacksonville Estate Planning Attorney to ensure that your will is prepared in accordance with Florida Statutes. To be valid in Florida, your will must meet certain requirements:


• Legal age
• Testamentary capacity (of sound mind and body)
• Valid form
• Properly executed

Although there is no particular form of words necessary to make a will valid, there are several clauses which are typically found in many wills.

The preliminary clause gives information about the maker of the will, the fact that the writing is intended to be a will and the revocation of any prior wills.
The dispositive clause specifies what assets go to the beneficiaries.
The appointment clause names the personal representative and guardian for minor children and; the concluding clause seals the validity of the will, including the necessary signatures.

Jacksonville residents wishing to make their will should visit a Jacksonville Florida Estate Planning Law Firm with the experience needed to ensure that your will has been properly prepared and executed.

December 13, 2010

Houston Astros on the Market for Estate Tax Reasons

Forbes.com has reported that no price has been set for the Astros, but Drayton McClane Jr., has decided to sell the team for estate planning purposes. The team is worth a reported 455 Million and could create a tax bill of more than 200 Million dollars.

While the proposed changes to the estate taxes will help many people, it will still create major problems for larger estates. If you want to discuss your estate and what options you may have to reduce estate taxes or probate costs and delays, you should contact a Jacksonville Estate Planning Lawyer to discuss your circumstances and goals.

December 13, 2010

Personal Representative Selected in Absence of Will.

orange park estate planning attorney.jpgA Florida Personal Representative is appointed by the probate judge to settle the decedent's (person who died) estate and distribute the property to the beneficiaries. When an Orange Park resident dies without leaving a will (dies intestate), Florida Statutes, Section 733.301 provides for the preference in appointment of a personal representative. The order of appointment is:
  • Surviving spouse;
  • Person selected by a majority in interest of the heirs;
  • Heir nearest in degree;
A guardian of the property of minor children may serve if qualified, or may select the personal representative.

Where a person died intestate, with no surviving spouse, leaving two minor children, a Florida court reversed the appointment of the decedent's father as personal representative, instead of the individual chosen by the heirs (the children). The Florida court stated that there was no surviving spouse and the person selected by both heirs, acting through the guardians of their property, was authorized and qualified under Florida Law to act as the personal representative.

If you have been named as a Personal Representative in a will or you believe you qualify for appointment when there is no will, it is important to speak with an  Orange Park Probate Attorney, about the Personal Representative duties and rights under the law.

December 9, 2010

Wrongful Death Claim Settlements May be at Risk from Creditor Claims

money money12902491322ghusW.jpgWhen a Florida Wrongful Death action is settled, the money either goes to the estate of the decedent (the person who has died) or to the decedent's survivors. If the settlement is small, it can be handled with a summary administration. When this happens, the settlement money becomes an asset of the estate and can be subject to the claims of creditors. With small wrongful death settlements, the potential risk from creditors needs to be evaluated to see if the savings in probate fees makes it worth while to consider a summary administration. It is important for a Jacksonville beneficiary of the estate to sit down with a Jacksonville Probate Attorney who can guide you through the probate administration process.

Probate is the court supervised proceeding for distributing the estate assets of the person who died. The probate process also identifies creditors who have valid claims against the estate. If a wrongful death settlement is listed as an estate asset, then it may be susceptible to the valid claims of creditors.

If you are a Jacksonville survivor under the Florida Wrongful Death Statute, protect your settlement award by knowing what estate assets are exempt and protected from the claims of creditors. Talk with an attorney experienced in Florida Probate cases.

December 9, 2010

5M Estate Tax Exemption? But what about Stepped Up Basis?

It has been widely reported that the extension of the Bush Tax Cuts is being recommended by Obama in addition to agreeing to a new estate tax of 35% on assets in excess of 5 Million dollars but no one is reporting on what will happen with the loss of stepped up basis. For many Americans the loss of stepped up basis could cost more than if there was a lower estate tax exemption.

The bill is reported to be submitted to congress today so we should know soon what we are dealing with. Either way it will cause many American families to have to revisit their estate planning and life insurance needs over the next few months.

December 7, 2010

Removal of Florida Guardian may be in the Best Interest of the Ward.

A Florida guardian may be appointed to exercise limited or total powers over a ward (minor, elderly or incapacitated person). There are times when a Jacksonville guardian appointed by the court has failed to act in the best interest of the ward. If a Jacksonville Guardian fails to ensure that the ward is being properly cared for or is not managing the ward's property and assets in a responsible manner, a family member, friend or interested person may have to take action.

Consulting with a Jacksonville Guardianship Attorney may be the first step needed to rectify a frustrating situation, when you feel powerless to protect a ward. The Florida statutes allow for a proceeding to remove a guardian upon a showing that one of the proscribed reasons has been met. Reasons for removal, among several, may be when a guardian has abused his or her powers, has wasted or mismanaged the ward's property or when a conflict has developed between the guardian and the ward.

To obtain information about the procedure for removal of a guardian or how to terminate a guardianship, it is best to discuss your situation with a Jacksonville Estate Planning Law Firm who has experience in guardianship matters.

December 7, 2010

Using a Business Entity as the General Partner of a Limited Partnership

One needs to be careful that they do not expose their assets in a Florida Limited Partnership to forced distributions because they choose a general partner that can be take over. In the past and in many other states, it is common to protect the GP from liability by making it a corporation or LLC. The problem with this is that if a creditor is able to take over the entity because of a judgment, then the creditor acting as the General Partner can force distributions that they can then attach by means of a charging order.

You should review your limited partnership agreements with a Florida Asset Protection Lawyer to review your LP structure for potential problems in light of recent Florida cases.

Florida does have a LLLP which can remove the liability of the general partner without the use of a more complicated business structure.

December 7, 2010

Oklahoma Law Lets Executors manage Online Social Media Accounts

digital_assets.jpgA new law in Oklahoma appears to let estate executors have the power to access, administer, or terminate online social media accounts of the deceased. This law is in direct contradiction to the licensing arrangements of most online accounts and it has yet to be seen how and if the law will provide rights to estates.

The law should remind the people as they go about their estate planning that, in addition to their personal and real property, they should make plans for the vast amount of intellectual property they will leave behind.

As digital photo accounts, iTunes accounts, cell phone applications, and email accounts replace their traditional counterparts with many people, it is becoming more important than ever to address these assets in every estate plan.

If you would like to know more about a Digital Asset Protection Trust contact a Florida Estate Planning Lawyer who is familiar with Digital Asset Protection to discuss your circumstances and options.

December 6, 2010

Florida Probate Code Requires Production of Wills


Gavel images.jpgWills need to be deposited with the court within 10 days of death.  Florida Statutes, Section 732.901.  A Jacksonville custodian of a will must deposit the will with the appropriate clerk of court within 10 days after receiving information that the testator (person whose will it was) is dead. If the will has not been timely deposited, any interested person may upon petition and notice compel the production of the will, and receive attorney fees, costs and damages against the delinquent custodian.


A Florida judge recently entered an order requiring a custodian of a will to produce the will. The judge then entered an award of $2500.00 in attorney's fees against the custodian who had failed to produce the will.

The 4th district court of Florida reversed the order, stating it was error by the circuit court to enter an order requiring production of a will and assessing attorney fees against the custodian of the will, without a hearing or proof that the petition to produce the will had actually been received by the custodian of the will. As the order was entered without due process the district court set it aside and remanded the case back to the circuit court.

When someone has died it is important to consult with a Jacksonville Estate Planning Attorney to discuss the probate laws and rules that govern. Knowing your legal rights and responsibilities is beneficial as you begin the probate administration process.