Florida Estate Planning Lawyer Blog

The Homestead Exemption in Florida, which was established in the State's Constitution, has always provided for the protection of the Family home free from creditors and liens. In 1985 the Constitution was amended to extend the protection to the "natural person" and not necessarily having to be the head of the household. The 4th district Court of Appeals ruled that a husband and wife who are separated for a period of time can BOTH claim the Florida Homestead Protection from creditors. This ruling does nothing to allow two homestead tax deductions. Law v. Law et al., 738 So. 2d 522.

The case involves a husband and wife who were separated for several years. They both claimed Homestead exemption for the Hollywood home that they owned jointly. But when his mother got sick, he and his wife decided to sell the home to pay for the medical bills. His ex-wife had a claim against him for support and brought action to seek recovery through the sell of the home. He filed for Homestead exemption. The court of appeals ruled that "we see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements." Court referencing Colwell v. Royal International Trading Corp., 226 B.R. 714 (Bank S.D. Fla. 1998) to show precedent on allowing dual homestead exemption. The court seemed to find it important to find that the separation was not contrived to defraud creditors.

If you would like to talk about how to create two homesteads and document them to avoid unnecessary litigation over the issue, contact a Florida Estate Planning Lawyer or if one or more of your home is in foreclosure contact a Jacksonville Foreclosure Defense Lawyer.

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.

A 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.

Whether 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

In 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.

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.

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.

Estate 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.

Everyday 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.

In a recent article published in the New York Times, Sonia Kolesnikov-Jessop writes that Asians are paying more attention to inheritance planning. With a vast number of first generation wealthy Asians getting older, many heirs find themselves in court fighting over their parents' estates. In the article, a Singaporean businessman explained that death was never talked about for sensitive and superstitious reasons. The second generation, having already experienced the uncertainty of estate court battles, is much more willing to talk about estate planning with their beneficiaries.

Due to the strong family values in Asia, individuals are planning because they feel obligated to do so. According to a study, people between the ages of 30 and 40 with a net worth of at least $1 million are more likely to do estate planning than Westerners of the same group. However, a similar survey showed that only 10% of first generation Asians with a net worth of at least $1 million had thought about inheritance planning. The same study found that Americans are more motivated to plan due to the high estate taxes that face wealthy estates. China and other Asian countries do not have a tax similar to the U.S. estate tax.

Increasing awareness of the importance of estate planning is essential, not only for Asian countries, but also here in the Florida. With the potential for a federal estate tax level not seen in years, more Floridians than ever before could be subject to the estate tax. Planning your estate with a Florida Estate Planning Lawyer can potentially avoid probate court and taxes.

While video games have become increasingly realistic over the last few years, they still cannot compete with the virtual world reality of computer based Internet services. To some, SecondLife.com may seem like a game, but to others it really is a "second life." Second Life is a website that allows users to interact with each other by downloading a software program. Each user creates an avatar that can resemble himself, a celebrity, or anyone they can imagine. All users interact, socialize, and even conduct business with each other in the same world known as "the grid."

One of the unique abilities built into the software is a modeling tool that allows the user to build virtual objects in the virtual world. The terms of service guarantee that the users will retain all copyrights to the substances they design and create. With their digital rights management, the virtual community of Second Life generated approximately $55 million of real money last year. By having such a unique way to create an asset, the user must choose a unique way to protect it for heirs.

I would suggest a Digital Asset Trust because Second Life will only transfer an account when there is a relevant legal documentation. By setting the account up in the name of a trust, licenses and use restrictions will no longer apply to transfer of property to another. If you would like assistance in protecting your Second Life account and property, contact a Florida Estate Planning Lawyer today.

Since Florida Estate Planning Documents distribute the wealth you have accumulated over your life and provide your wishes in the event you become incapacitated, estate planning documents are some of the most important documents you will ever sign. Knowing where to keep these documents is imperative to ensuring the original copies are never damaged, lost, or forgotten over the years.

A couple of recommendations on where to keep your estate planning documents are a safety deposit box or a home safe. A safety deposit box is probably the most secure place to keep any documents and you can rest assured that the documents are protected from theft, fire, damage, tampering or loss. Banks provide top of the line security for those who seek the ultimate safe location for their estate planning documents.

In addition, storing your estate planning documents in a home safe that is waterproof and fireproof is a good alternative to a safety deposit box. However, storing the documents at home may not provide the same level of security as a bank safety deposit box because safes are always prone to thievery in the event your home is broken into.

Recently, I have written several blogs concerning the possible federal estate tax increase from zero to 55% in 2011. If Congress's left and right representatives cannot come to an agreement, the exemption will end at $1 million. This means that for every individual who passes away, up to $1 million in assets may pass to their heirs free from estate taxes. While having one million dollars is a significant amount of money, $1 million in assets is something considerably different. Numerous small and family owned businesses that fall into the class above the $1 million limit would be hit hard by the estate tax.

Over the past few years many businesses have been split up and sold to pay the estate taxes. Much of this could have been avoided with proper estate planning. If nothing changes many businesses that are family-owned will most likely have to sell off the business because of a 55% federal estate tax rate. Many states have additional estate taxes that will be due which could raise the total tax to around 70%. Luckily Florida residents will not be subject to additional state estate taxes. For instance, suppose a family owned business has a net worth of $10 million. When the current owner dies the $10 million net worth of the company will pass to the estate and be taxed at 55% + any state estate taxes that may be due. This means that the heirs will have to pay the millions of dollars out of their own pocket or sell off the company. The same rationale is true for farm and ranch owners as well. A one thousand acre farm that has been in a family for many years could be worth millions of dollars. When the current owner dies, the farm will be subject to the same 55% estate tax requiring the heirs to sell off the property to pay the taxes.

With serious tax consequences on the horizon, estate planning has never been more important. The showdown between Republicans and Democrats on Capitol Hill on estate taxation does not show strong signs of reconciliation. If you are a small business owner or farm owner who would like more information on protecting your company contact a Florida Estate Planning Lawyer today. An attorney can help you reach your goal of keeping the business in the family and reducing the taxes through estate planning techniques.

As we age, it is very common to lose some of the wits you had when you were younger. Due to the growing number of senior citizens that are falling victim to financial abuse, careful estate planning is a necessity while you are still fully competent. Financial abuse of the elderly usually occurs in a time when the person's mental capacity is diminishing. Also, it is common that the senior can't say no to someone who repeatedly requests to be included in the estate.

In a recent article by Eileen Ambrose, she provides an in depth analysis of this blight in our country. Arguably the most shocking statistic related to financial abuse of the elderly is, in approximately one-third of all cases, a family member of the victim is the person who takes advantage of the senior. This is the reason that it is essential for aging adults to create a complete estate plan while they remain fully competent. Protecting your assets is a complicated matter that should be handled by a Florida Estate Planning Lawyer . In addition to seeing an attorney, the following list is advice Ambrose shares in her article:

1) Choose a trustworthy agent to represent you who manages his or her own finances properly and is not a spendthrift.
2) Maintain control of assets refrain from including a child's name in your a bank account.
3) Report pressure exerted by anyone who is pressuring you to be given Power of Attorney to a loved one or appropriate authorities.
4) Compensate agents for the work they do to maintain your finances because it is a time consuming job.

Faith and religion often underlie many decisions an individual makes in regards to their Florida Estate Plan. This realization prompted David A. Straus to write a book entitled Faith-Based Estate Planning: Our Values and Valuables. Straus' book attempts lead the reader through the estate planning process, at all times keeping in mind their personal beliefs. The book focuses on how Estate Planning is not always about tax and probate avoidance as it is used to fulfill the planner's final wishes.

Taking information from trade journals, magazines, book, websites, surveys and newspapers, Straus' main goal is to provide a wealth of knowledge about faith to support those final wishes as desired. Health care, burial and resuscitation beliefs all fundamental beliefs based on faith and religion. For example, most Jewish and Eastern Orthodox practitioners believe it is a desecration of the body to be cremated or embalmed after death. These beliefs should be addressed in the estate plan so that everything goes according to your wishes.

Each religion addressed in Straus' book is detailed with a geographical concentration, history, the number of practitioners, and integration of estate planning subject ideas. Furthermore, the book's emphasis is on death rituals, philosophy of life, position in the afterlife and their effect on each religion's perspective on investments and estate planning.

If you're interested in how your religion and faith has an effect on the estate planning decisions you make this book is a useful read. Whatever religious beliefs are guiding your decisions, addressing each choice with the aid of a Florida Estate Planning Lawyer will ensure those end-of-life choices become reality.

FCC Disclosure: David Goldman received a free copy of this book to evaluate and discuss with clients and on his blog.