June 2011 Archives

June 30, 2011

Calculation of Your Elective Share in Florida

In Florida a spouse can elect to take 30% of the decedent's elective estate. But what was not answered is what portion of the estate is that 30% applied to? The 5th District Court of Appeal of Florida has answered this question in the case of Paredes v. McLucas .

For example, if you are the spouse of the decedent, your Florida Probate Lawyer should go through the decedent's records to find any claims that he may have had against him or her, and make a total. Next, there should be a total of mortgages, liens, and other similar devices. The claims and mortgages will be added together, then subtracted from the total amount of assets in the decedent's estate. The elective share of 30% applies to only this amount. While this may seem simple there are many assets which are not included in a Florida Elective Share Calculation.

Doing the research is a technical and difficult process, especially in the wake of grieving over the deceased. You could contact a Jacksonville Probate lawyer to determine the exact figure, and the option you as the decedent's spouse can take after that point.

June 29, 2011

What Happens In Florida when a Minor Child is a Beneficiary of a Last Will and Testament?

Piggy Bank.jpgIt happens frequently. A minor child inherits either personal property, including money, bank accounts, CD's, money markets, or is left an interest in real property. Who looks out for the best interest of the minor child?

Although Florida natural guardians (parents) have all the rights and authority over their minor child's "person", natural guardians do not have all of the rights and power over the minor's "property". Parents are authorized on behalf of their minor children to settle, collect, receive, and manage real or personal property distributed from an estate or trust, when the amounts received, in the aggregate, DO NOT exceed $15,000.00. Florida Statutes 744.301(2).

Florida law allows a court to appoint a Guardian Ad Litem (a fiduciary appointed by the court) to represent and protect the minor's best interests. The Guardian Advocate will act for the minor child in a probate proceeding involving an inheritance by either a Will, a Trust, or when the minor child inherits property through the Florida Intestacy Statute.

June 28, 2011

What to do with your Internet passwords when you die?

digital_assets.jpgComing of age in this digital world has its luxuries, but those luxuries come with their own set of complexities. Face Book enables you to connect with friends; blogging sites (such as this one) allow you to express your ideas to the world; and paying your bill over the Internet is convenient and environmentally friendly. What do all these different types of luxuries have in common? You must remember your password in order to access the information on them. These websites can add up quickly, and so too can the passwords that access them. Then throw in all the passwords you have for work in addition to all the passwords for your personal life, and these can be hard to remember when you are firing on all cylinders.

Digital Asset Protection.

Now, throw in an accident where you either pass away or are mentally incapable and there is a vast amount of information that you or your estate needs to access. If you have a Digital Asset Protection Trust , you will likely be taken care of. By having a Digital Asset Protection Trust , you decide who gets your online account information and what they can do with that information. To give you peace of mind, your Digital Asset Protection Trust attorney has attorney-client privilege with you, ensuring that the people who have access to your information, should a tragedy occur, will only know of those online accounts which you personally have laid out. It is never too early to begin preparing yourself in case a tragedy occurs.

June 27, 2011

New Florida Law for Durable Powers of Attorney

In a Bill supported by the Banks, you will no longer be able to obtain Springing Powers of Attorney in Florida. In addition, not only will you be required to have two witnesses sign in your presence like with a Florida Will or Florida Revocable Trust but you will also need a notary for it to be valid.

Each agent will have full authority to act independently, there will be new Mandatory Duties, Default Duties, and separate signing requirements for certain authorities like creating or revoking trusts, making gifts, disclaimers, and powers of appointment.

In addition, certain non family members will not be able to do certain things like support others, transfer certain interests in the principals property by gift, right of survivorship, beneficiary designation, disclaimer unless the POA provides otherwise.

And all gifts will be limited to the federal gift tax annual exclusion ($13,000 currently) unless the document states otherwise.

If you are considering a new power of attorney or revising your Durable Power of Attorney in Florida, you may consider doing a new one before October 1, 2011 or be forced to create one with the limitations and exclusions of the new Florida Statue.

June 27, 2011

New Florida law for Challenging Trust Revocation

There has just been a progressive change in the trust law governing the revocation of a revocable trust in the state of Florida. With bill HB 325, Governor Rick Scott signed into effect a law allowing a person who has had their interest in a revocable trust revoked, to challenge that revocation. This is a great piece of legislation as to ensure every interested party can protect their individual rights.

The challenge of the revocation can only on the grounds of fraud, duress, mistake, or undue influence. This means that the settlor of the revocable trust revoked a person's interest in that trust because he or she relied on a fraudulent statement, was forced by another person to revoke, the interest was revoked by mistake, or someone was heavily influencing the settlor to revoke that person's interest.

Maybe one of your family members has been influence by someone to revoke your interest as a beneficiary in a revocable trust. You now have a means to combat this revocation and should contact a Jacksonville Florida Trust Lawyer to discuss your options or an attorney who works on Florida Trust Litigation .

June 24, 2011

Reforming a Trust in Florida

In order for a person to attempt to reform a trust, that person must "have standing." This designation refers to a person who has an interest in the trust. This person can be a trustee, beneficiary, or a trustee and beneficiary. A settlor, the creator of the trust, gets to pick who will be designated in the other positions. While the settlor is still alive, he or she generally serves as trustee for that trust, and names a successor trustee to step in when he or she dies or becomes incapacitated.

The "interested parties" all have the power individually to petition a court to reform the trust. There are multiple reasons for trying to reform a trust, but which ever reason the interested party chooses as a basis for the reformation, the result must comply with both the current law and the original settlor's intent.

The settlor's intent is usually the trickiest to prove in court. If you have found yourself in a position where you believe a trust that you are involved in needs to be reformed, you should contact either a Florida Trust attorney to correctly set up your trust, or a Florida Trust Contests attorney who specializes in the aspects of litigation.

June 23, 2011

Florida Intestate Law Changes: You may now need or want a Florida Will.

If you are a married person in the State of Florida and have not created a Florida Will or Florida Revocable Trust you should fully understand what will happen to your assets when you die.

Previously in Florida, if a husband or wife passed away with only children belonging to the surviving spouse, the surviving spouse would receive the first $60,000 of the decedents probate estate, while the rest was split equally between the surviving spouse and the children or their heirs.

Governor Scott signed the Florida Law on June 21st. The new Florida Law gives everything to the surveying spouse (where one has passed away without a will and is survived only by a spouse and children of that marriage).

The reasoning for this rests behind the thought that the surviving spouse will "take care" of his or her own natural children and so there is no need to split anything beyond $60,000.

The new law does not change what happens when the decedent had children from outside the marriage. If someone with a mixed family dies without a Florida Will, 50% of the estate goes to the surviving spouse with the other 50% automatically divided among the decedent's children or a deceased child's descendants.

On a positive note, married couples typically want their surviving spouse to receive 100% of the deceased's estate. However, if you would like to have a say in how your estate is divested, some action is necessary on your part.

One major concern with this is that as we age, the old law provided a mechanism to give assets to the kids without subjecting them to claims of nursing homes and medicaid eligibility of the surviving spouse. Now if you die without a will and your surviving spouse needs nursing home coverage, it may be more difficult to qualify given that there is a $2000 cap on the amount of assets a single person can have in Florida.

To Discuss your situation or speak with someone about your options Contact A Jacksonville Estate Planning Attorney by email or call anEstate Planning Lawyer in Jacksonville at 904-685-1200 to schedule a free consultation to discuss your options in dividing your estate the way you see fit.

June 21, 2011

Parents Trust Creates Ineligibility for Child on Florida Medicaid

Suppose your parents set up a tax planning Florida Revocable Trust with the assets being held for the kids in trust. Under the terms of the trust, the trustee is to distribute net income and principle as the trustee determines is necessary for education and support in reasonable comfort. If one of the kids is on Medicaid, many states will determine that they are ineligible for Medicaid because of the availability of funds, even if the trustee does not distribute them. It is important to create trusts with the proper language to deal with special needs and not make them ineligible for Medicaid. If you would like to review your situation or have a child with special needs you should contact a Florida Estate Planning Lawyer to discuss your situation and goals.

June 20, 2011

From Younger Brother to Florida Legal Guardian

guardianship rehab hospital.jpgMore and more these days, Jacksonville family members must step in and take the reins needed to guide a loved one who is unable to take care of themselves. Whether it is a mental health condition or substance abuse issue, sometimes an individual needs help. To be able to assist your family member in choosing the right treatment and rehabilitative facility, to ensure that the person is being compliant with his/her medications, you must become the legal guardian over the person in need.

There are different types of Florida legal guardianship and the type of guardian you should become is dependent upon the specific problems and needs of the person you are about to help. An experienced Florida Guardianship Attorney can assist you in determining your best option.

A guardian is a person appointed by the court to act on behalf of a ward's person or property or both. A guardian may have limited authority or plenary (complete) authority.

A Florida guardian advocate under the Florida Mental Health Statute allows for a person to be appointed as guardian advocate when a psychiatrist determines that a patient is incompetent to consent to medical and psychiatric treatment.

June 13, 2011

New GRAT Rules for 2011

Senate passes the House proposed extension to the time requirement of 10 years for Grantor Retained Annuity Trusts (GRAT's). This extension is to amend section 2702 of the Internal Revenue Code of 1986. Along with that change, comes the mandate that a GRAT's fixed amount cannot "decrease relative to any prior year" during the first 10 years of the required annuity time period. The third mandate is a GRAT has to have a value greater than zero "at the time of transfer" in order to be valid.

Even though setting up this type of trust may be more risky and more difficult, it may still be a great option for your specific needs. A person wanting to pursue this avenue can still get the benefit of donating large sums of assets to the trust without paying a gift tax on those assets. You should discuss and compare the potential positives and negatives of setting up a GRAT with a Jacksonville, Florida Estate Planning attorney who knows the in's and out's of Grantor Retained Annuity Trusts.

June 9, 2011

Pet Trust for Can Save Your Dogs.

dogs in tog park.jpgJacksonville Florida loves its dogs, and this is no truer than at the Law Office of David M. Goldman PLLC where on Friday's, it's bring your dog to work day. At the Law Firm, we always wag, we bark, and when necessary we bite. As Florida Estate Planning and Florida Probate Attorneys, we know the importance of creating legal documents to provide for your loved ones after you are gone. But what happens to your 4 legged best friends when you are gone? Who looks out for their best interest?

The Florida Statutes allow for the creation of a trust for the care of your pets. A Pet Trust will enable you to designate a certain amount of funds for the support and maintenance of your pets. You can also choose the person(s) who will be able to utilize the funds you have established for the continued care of your animals. You may also include a provision pertaining to the care and support of your pet(s) in your Last Will and Testament.

At the Law Office of David M. Goldman, we not only help you provide for your future with estate planning, but we care about you and your family today. Whether you need to initiate a guardianship proceeding over an elderly loved one or disabled adult, or whether you need criminal law defense for someone who has barked upon the wrong tree, or perhaps you are contemplating Bankruptcy, the Jacksonville Lawyers at the Law Firm will be happy to consult with you, will strongly (bark) advocate for you, and finally, will fight for your cause with all the bite that is needed.

June 8, 2011

Florida Gay, Straight, Homosexual, Heterosexual - It's All the Same!

gay marriage.jpgIf you think a Jacksonville same-sex couple is different from you, just ask them. You will find that the problems same-sex couples have with each other are the same complaints you have about your heterosexual wife or husband. Whether it's how the bed is made, how the vegetables are chopped, or whether the toothpaste is squeezed from the bottom or middle, there is no difference.

Unfortunately, there is a major difference on how same-sex couples are treated by Florida Law. If a married man and woman die without a Will, the Florida Intestacy Statutes will provide that the surviving spouse is able to remain in the home as well as to receive a certain share of the deceased's spouse estate.

Not so, for the same-sex couple who might have been together for more years than the heterosexual couple. If a same-sex partner dies without a Will (and the house and other assets are titled in that person's name alone), the surviving partner gets Nothing.

Big difference. The only way to ensure that you will be treated the same as a married husband and wife, is to prepare legal documents such as a _blank">Florida Will, a Florida Revocable Trust, or a new Deed to your home. At the Law Firm, we can discuss with you about these and other legal documents that will benefit you and your partner.

June 3, 2011

Florida Asset Protection:New LLC Law becomes effective

rick_scott.jpgOn May 31, 2011, Governor Rick Scott approved House Bill 253. The Bill was crafted in response to the Florida Supreme Court decision in Olmstead v. FTC last year. It clarifies that a charging order is the sole remedy available to a creditor who holds a judgment against a member of a multiple member LLC. However, single member LLC's remain vulnerable to creditors forcing a debtor to surrender all right, title and interest in his LLC to satisfy an outstanding debt.

If you are interested in learning more about how to protect your Florida assets, contact a Jacksonville Asset Protection Lawyer to talk about your circumstances and the different options available in Florida.

June 2, 2011

Creating a Florida Dynasty Trust

asset-protection-cash.jpgFlorida Dynasty Trusts are generally used to keep assets within your family members or descendants. The person who creates this type of trust usually has significant assets which are far in excess of $1,000,000 which they want to protect from the misuse or dissipation of family members. A Florida Dynasty Trust can also protect the assets within the trust from the reach of future creditors of your born and unborn family members.

Florida is a great state in which to create a Dynasty Trust. This type of trust is regulated by state law, so where a person decides to create the trust will govern which state's law will regulate the trust. Florida's state law allows for a person to create a Trust for the benefit of another (usually children or grandchildren) plus 360 years after that benefited person has died. This is a longer than many states that have a limit of 21 years after the death of the beneficiary who was alive at the time the trust was created.

There are many options that need to be considered when creating a Florida Dynasty Trust such as who the trust's assets (income and/or principal) should vest in and which state law the trust should be interpreted under. A Florida Dynasty Trust may be able to protect your assets from creditors even though you live in another state. To contact a Florida Irrevocable Trust Attorney. For more information on Florida Trusts please contact us to discuss your specific goals and circumstances or visit the Florida Estate Planning Lawyer Blog for general information.

June 1, 2011

Recent Changes for Retirement Accounts in Florida

retirement.pngIf you have a Retirement Account in the State of Florida, a recently enacted law will provide your heirs stronger asset protection in Florida.

An individual Retirement Account is a form of retirement savings that provides tax benefits to the owner of the account. The account is primarily used as a means of saving for retirement. When the owner of an Individual Retirement Account dies, the account may be transferred to a named beneficiary. When transferred, it is known as an inherited Individual Retirement Account.

Generally, Florida law provides for protection of various assets from creditors, which protection extends to bankruptcy proceedings. Under the old Florida law, a regular Individual Retirement Account was exempt from creditor claims, but an inherited Individual Retirement Account was not.

However, House Bill 469 proposed to provide inherited Individual Retirement Accounts the same protection from creditors that the original Individual Retirement Account enjoyed. On May 31, 2001, Governor Rick Scott, signed HB 469, effectively making it the new law.

For more information about securing Florida Retirement Accounts and other Florida Estate Planning issues, contact a Jacksonville Estate Planning Lawyer today.