Florida Estate Planning Lawyer Blog

If you are in a domestic partnership and live in a Florida home, or if you are in a same-sex relationship and are planning to buy a house with your partner, you may want to speak with a Jacksonville Estate Planning Attorney and discuss how your deed [the instrument transferring title to real property] should be titled.

Under Florida law, there are three types of ownership, joint tenants wth right of survivorship, tenants in common, and tenants by the entirety (which is solely for a husband and wife).

Tenants in common gives each individual an undivided interest in the entire property. As tenants in common, there is no right of survivorship. When one owner dies, his/her interest passes to the beneficiaries as named in his/her will or passes per the Florida Intestacy law.

In Joint tenancy with right of survivorship two or more own property together, and on the death of a joint owner, the property passes to the surviving co-owner who now owns the property, without the need of a probate administration.

Jacksonville Domestic Partners, Life Partners, or same-sex couples can title their property as joint tenants with right of survivorship, or tenants in common. Another powerful instrument , the Enhanced Life Estate Deed or "Ladybird Deed" might be an option for you as well [to be discussed in future entry].

The particular circumstances of your relationship and what you and your partner have discussed as to each partner's future ownership of the property, will help to determine the best way to title your deed. Whatever your decision is it is best to consult with an Estate Planning Attorney who is sensitive to your needs.

Starting October 1, 2010, if you die in Florida your spouse will be able to elect to take the traditional life estate in your homestead that is separate property or a 1/2 interest in the property. While this does not effect many Floridians, it does effect many who got married after purchasing their home or who have children from another marriage.

Traditionally the new spouse would receive a life estate ( the ability to live in the home for the rest of their life) and the children of the deceased parent who owned the home would receive the remainder of the property after the death of the surviving spouse or their step parent.

A Florida Estate Planning Lawyer can create documents that change or alter the homestead rights of a surviving spouse. Remember that it may not be your spouse making the decision, but the government or an agent acting under a power of attorney who make the decision and they may not agree with what you and your spouse decided upon years earlier. It is best to create a post nuptial agreement or valid waiver to address these issues while everyone agrees and before it is too late.

Contact a Jacksonville Estate Planning Lawyer or Florida Estate Planning Lawyer to discuss creating documents that address these issues and protect your spouse and children from the influence of others.

When a person dies, who owned a property protected by a Florida Homestead we generally expect the property to be free from the claims of creditors.

There are certain situations when this is not true and other types of planning could prevent creditors from making claims against your Florida Homestead.

So when will your property lose homestead protection upon your death:
1) if you are not survived by a spouse or children and devise your property o people not listed in Florida Statute 732.103.
2) If you are not survived by a minor child and have a valid prenuptial agreement or waiver of homestead rights with your spouse and devise the property to someone not named in Florida Statute 732.103.

(Florida Statute 732.103 deals with the spouse, descendants, parents, siblings, grand parents, uncles, aunts, their kindred, and great-grand parents.)

If you want to leave your homestead to someone who is not defined in Florida Statute 732.103 we can help you maintain protection from the claims of creditors and avoid probate. Since there can often be many unexpected and significant expenses associated with end of life, it could be a good idea to plan to protect what could be your single largest asset- your home.

Note that many people incorrectly believe that a Revocable living trust can protect your home from the claims of creditors. While there may be homestead protection for those defined in Florida Statue 732.103, a Florida Revocable Trust in an of itself does not provide asset protection.

To talk about how to protect your assets and home from the claims of creditors, contact a Florida Estate Planning Lawyer.

This morning I woke up ready to leave on a trip to NY with my family. We had had this trip planned for several months and my wife and I like to travel a lot. As I got out of bed, something happened and I fell and hit my head on our new tile floor. Within seconds there was blood everywhere and I became disoriented. After spending more than 12 hours in the hospital, and after having been treated by one of the nicest Jacksonville Plastic Surgeons's that I have met, I began to think about how many estate planners take their own advice and have documents that are up to date and trusts that are funded.

I first became concerned with my Florida Estate Plan when I was going to London for an extended time and there had recently been some bombings in London. My wife refused to go, or let me go, if our plans were not set in writing prior to our departure.

Today as I sit in the hospital, I am thinking that If I did not have plans and my injury would have been more serious, it may have been more difficult for my wife to speak on my behalf. What if I have had a heart attack, stroke, or just been unconscious as a result of my fall and injury.

In the end, none of these documents was necessary, but it was comforting to know that they were in place if they were needed. While the emergency room did ask if they existed, they did not ask for a copy, nor would it have been easy to produce a copy upon admittance. The next thing I will do is keep a copy of them on my iPhone, and my wife's iPhone in case they are needed.

It just goes to show you that you never know when you might need Florida Estate Planning Documents. While my documents are up to date, I know most people do not have up to date Florida Estate Planning Documents. At the Apple Law Firm, we practice what we preach because each of ourselves place our family in harms way daily when we drive, walk down the street or get out of bed. If you would like a free review of your Estate Planning Documents under Florida law, let me know and I would be happy to make sure your documents are up to date and you understand what your options and obligations are.

One of the best benefits of a good estate plan is avoiding Florida Probate. To learn what is involved with a Florida probate request the Free Florida Probate Handbook

Can a Florida Quit Claim deed be recorded after death? Generally any deed can be recorded at any time even after the death of the grantor. However there can be problems created by the delay in filing. First, we often see that the deeds were never delivered and as such are ineffective and not a valid conveyance of the property. In addition, the deeds can be wrong or incomplete and create problems that the grantor is not alive to fix. Third, there is now a requirement in Florida to update the property appraiser with any change in beneficial ownership. Generally the reason why deeds were not recorded in the past was to avoid loss of homestead and keep property taxes lower. Florida's new requirement places penalties on this type of fraud, whether done intentionally or not.

You should have your deeds reviewed by a Florida Estate Planning Lawyer to make sure you are using the right type of deed, are protected from creditors, are not creating additional liability, are not creating unreported gifts and are accomplishing your goals.

While in Florida a lawyer is not required to create a valid deed like a ladybird deed or Florida Enhanced Life Estate Deed it may be a good idea to have a lawyer or attorney review these specific document because of their propensity for errors and the bad or unexpected outcome that would occur with an invalid or incorrect Florida Enhanced Life Estate Deed.
1. A lawyer can check to make sure that the deeds are executed with the formality required under Florida Statutes.

2. That an Florida Enhanced Life Estate Deed is the best method of accomplishing your goals. With property with larger mortgages, a deed of this type may not be the best or most affordable method for transferring the property upon the death of the owners because of the mortgage taxes in Florida.

3. In addition, some of the forms and Florida Enhanced Life Estate Deeds that I have seen do not properly deal with the property upon death and title companies have been known to require a probate before they will issue a new title policy. This can cost the family thousands of dollars on a homestead and up to 3 percent of the value of the home on non-homestead properties.

4. Prevent a portion of the property from lapsing, Florida's anti-lapse statute deals with devises by will and in trusts but would not protect an interest in a property that was given to an individual who predeceased the grantor of the deed. Because a Florida Enhanced Life Estate Deed is a contingent gift, it is possible that the remainder interest would be directed back to the estate of the grantor in a case were the contingent remainder beneficiary of the deed was to predecease the grantor.

5. The most important reason to use a lawyer with a Florida Enhanced Life Estate Deed deals with the circumstances surrounding the use of this type of deed. Often when a lawyer prepares these deeds they the process will cause them to evaluate the other financial, estate planning, elder law, and Medicaid planning that are found when these deeds are used. Paying a lawyer who is familiar with these issues to prepare your deed is a good way to have your personal circumstances and issues evaluated at the same time.

If you would like more information on a Florida Enhanced Life Estate Deed you should Contact a Florida Estate Planning Lawyer who is familiar with these issues.

One of the most common questions people ask about Florida Lady Bird Deeds (Florida Enhanced Life Estate Deeds) is whether upon the death of the grantor, the contingent beneficiaries receive a stepped up basis like they would receive if the property was to transfer under a will.

Under Section 2036 of the IRS code, the life estate portion of the Lady Bird Deed causes inclusion in the estate of the decedent. Because of the taxable inclusion in the state there is stepped up basis under the Internal Revenue Code. It is possible that this section of the code might be changed at some time in the future and you should verify this with your tax professional.

Florida Statute 193.1556 requires that any changes regarding a person or entity owning real property under Florida Statute 193.1554 or Florida Statute 193.1555 are reported to the property appraiser.

This may affect some Florida Enhanced Life Estate Deeds. Under Florida Statute 193.1554(5), If the property is nonhomestead residential property, there is an exemption for the transfer between husband and wife, including transfer to a surviving spouse or a transfer due to a dissolution of marriage. The transfer to a revocable trust will not trigger a new assessment at fair market value.

On the other hand for all residential and non-residential property which is not protected by homestead there doesn't appear to be the same exemption under Florida Statute 193.1555(5).

In either case the transfer to a Florida Revocable Trust where there is simply a change between legal and equitable title, will not trigger a new assessment at fair market value.

One new issue is that it is now required to report a change in ownership or control when a business entity owns property. In the past, many were able to sell an entity and no notice to re-evaluate the taxable base would be generated. Now if you convert real property to personal property by selling the ownership in an LLC instead of the real estate holdings of the LLC, you still have to report the change in ownership.

To read more on Florida Enhanced Life Estate Deeds or Florida Revocable Living Trusts read some of the articles on this site or Contact a Jacksonville Estate Planning Lawyer

Florida DR-219 Form is Repealed as of 06/1/2008

Beginning June 1, 2008:

•The requirement to complete and file Form DR-219 is repealed. •The Department of Revenue will not process DR-219 forms received. •Destroy all blank DR-219 forms in your inventory.

The repeal of the requirement to complete and file Form DR-219 does not impact documentary stamp tax payment and filing requirements. Documentary stamp tax continues to be due on all documents that convey an interest in Florida real property. The tax must be paid at the time of recording with the Clerks of Court or County Recorders if the document is recorded prior to the 20th day of the month following the month the document is delivered. The tax must be paid directly to the Department of Revenue by the 20th day of the month following the month the document is delivered if the document is not recorded before. Delinquent payment of tax will continue to be subject to penalty and interest charges.

Where can I get a Form for Florida Lady Bird Deed is a question that I am often asked. Florida Lady Bird Deeds are generally not available on the Internet because not many Florida Lawyers even know what they are. They are also far more complex than a regular deed.

I have seen several cases where clients used Ladybird deed that were not acceptable to Title insurance companies and the families had to open probate cases to clear the title on the property after the death of the grantor.

Because of this when we created our deeds we went to many title companies to get their feedback and modified our deed and they way they are filed to be in compliance with the title companies requirements.

In addition the language that is used on the remainder interest is very important because it is possible that the person named might not survive the original owner. If the wrong language is used, the property will revert back to the original owners estate and could potentially be subject to the claims of the creditors and Medicaid liens. They are often used in Florida Medicaid Planning.

If you need a Ladybird deed in Florida, you should Contact a Florida Estate Planning Lawyer who is familiar with Ladybird deeds.

A *Florida Enhanced Life Estate Deed or Florida LadyBird Deed is designed to pass the property if any to a person upon the death of the life tenant while allowing the life tenant to do anything during their life.

What happens if the person named in the remainder interest predeceases the life tenant?
This is
From A to B for life (with enhanced powers) remainder to C.
If C dies before B, and then B dies the property will revert to A or A's Estate upon B's Death.

This can be problematic when claims are potential claims against A's estate.

Solutions:
1) When C dies, B should change the Enhanced Life Estate Deed
2) create the deed in such a way that the language of the deed specifies that the property does not go back to A or A's heirs

If you need a Florida Enhanced Life Estate Deed or Florida LadyBird Deed Contact a Florida Estate Planning Lawyer to create a deed that serves your needs and minimizes your risks.

All Florida Enhanced Life Estate Deed or Florida LadyBird Deed are not created Equal.
In the past, I have had clients come to me for help when a title company would not accept the language on an Florida Enhanced Life Estate Deed or Florida LadyBird Deed. Each title company has specific language that they look for in the deed. As as result we have had several title companies review our deeds and make recommendations. We took these and complied them into a single form that satisfied all of their requirements.

If the title company is not happy with your current deed, they can refuse to write title insurance. As title insurance is required by every commercial lender in Florida when a home is sold, this can create a problem when you want to sell your home. In some cases, we have had to open or reopen a probate case to get the judge to issue an order to clear up the title concerns.

Often these deeds are used to avoid the delays and expenses of Florida Probate, not create ineligibility periods for medicaid, allow for stepped up basis, and not create unnecessary gift tax. If you would like to create an Florida Enhanced Life Estate Deed or Florida LadyBird Deed or have your deed reviewed please Contact a Florida Estate Planning Lawyer.

As the Percentage of Florida Millionaires continues to rise, the need for more complex Florida Estate Planning continues to increase.

When ones assets are significant the benefits of a Florida Revocable Trust in conjunction with a Florida Will are increased. Florida's probate fees can rapidly approach 30,000 dollars on some of these estates. These fees can be greatly reduced or eliminated with proper planning. Even Florida residents who have a Florida Revocable Trust may need some additional documents to avoid probate. One such document that Florida's millionaires might consider is the Florida Enhanced Life Estate Deed or Florida LadyBird Deed .

To discuss what steps you family can take to reduce your estate taxes and probate fees, Contact a Florida Estate Planning Lawyer to discuss your situation.

Florida residents should start the New Year off right, here are ten important Florida estate planning and Florida probate and tips for the New Year.

1. If you don’t have a Will, get one.
Florida estate planning and Florida Probate tip #1: Have a Florida Will. If you don’t have a Florida Will, get one. In particular, married couples with children from prior relationships should always have a Florida Will. Otherwise, the state will decide who gets the money at death.

2. Get a Medical Power of Attorney and Advanced Medical Directive.
Florida estate planning and Florida Probate tip #2: Along with a Will, everybody should have a Florida medical power of attorney and an advanced medical directive. A Florida medical power of attorney designates an individual to make health care decisions for you should you be unable to do so. An advanced medical directive, commonly called a living will, states in advance what you want in the way of life sustaining treatment when death is imminent or when you are in a persistent vegetative state.

3. Review all beneficiary designations on life insurance, retirement accounts, and other financial accounts.
Florida estate planning and Florida Probate tip #3: Review all beneficiary designations on life insurance, retirement accounts and other financial accounts. You may be surprised at what you find. Do not settle for a verbal confirmation. Make sure you see the documents.

4. Get a permanent life insurance policy.
Florida estate planning and Florida Probate tip #4: Evaluate the need for permanent life insurance. Liquidity is important in life and at death. The lack of liquidity at death can increase legal fees and cause property to be sold for less than its actual value – far less. Even a small amount of life insurance is better than none.

5. Put your permanent life insurance in a life insurance trust.
Florida estate planning and Florida Probate tip #5: If you have substantial, permanent life insurance, consider putting the life insurance in a life insurance trust. Moving your life insurance into a life insurance trust removes the insurance from your gross taxable estate for federal estate tax purposes and protects the insurance policy from creditors. This can save you 45% or more of the policy value.

6. Put your inheritance in an irrevocable trust for asset protection.
Florida estate planning and Florida Probate tip #6: Get it and give it in trust. When you give an inheritance in an irrevocable trust, you also give some level of asset protection. If you are the potential recipient of an inheritance and if you have the ability to speak openly with the person making the gift, consider suggesting that the gift be made in some form of irrevocable trust. There is some cost to a gift in trust. However, the asset protection benefits typically outweigh the cost.

7. Put all your estate planning documents in a safe deposit box.
Florida estate planning and Florida Probate tip #7: Obtain a safe deposit box and put your original Florida estate planning and other important documents in the box. Fire safes and file cabinets are certainly better than nothing if you let somebody know where to look. However, many Wills vanish or are lost shortly before death. If the original cannot be found and the original was last seen in your possession, Florida courts presume that you destroyed or revoked the Will. While a copy of a Florida Will can sometimes be probated in a Florida probate, it can be expensive and not always successful.

8. Protect your heirs against local expensive probate proceedings.
Florida estate planning and Florida Probate tip #8: If you own real estate outside of the state where your Will is to be probated, make sure that transferring the real estate to your heirs will not require a local, expensive probate proceeding. This can be accomplished several ways. Some states have a simplified probate procedure for making the transfer without opening a local probate proceeding. Other states allow for beneficiary designations through something called beneficiary deeds. In most states, the probate process can be avoided by transferring the real estate into a revocable trust. Otherwise, be prepared to spend several thousand dollars to make the transfer after the death of the owner. Note: Property in a foreign country can be very expensive to transfer upon death. Also pay attention to foreign estate tax. Unlike the United States, the estate tax can vary greatly based upon whom you give the property to at death.

9. Leave property to your husband or wife in trust.
Florida estate planning and Florida Probate tip #9: Consider leaving property to your spouse in trust instead of outright. The trust accomplishes three goals.

1. Avoiding estate tax.
2. Protecting the assets from the surviving spouse’s creditors.
3. Controlling how the remaining funds are distributed.

Many family estates have been lost when the surviving spouse remarries and leaves the family assets to the new spouse or his/her family. We see more money lost to shifting bloodlines than we have ever seen paid in federal estate tax.

10. Know if your state has state or estate/inheritance taxes.
Florida estate planning and Florida Probate tip #10: If you have a tax planning estate plan, know whether your state has estate tax. Florida does not have any estate tax, but if you become domiciled in another state your estate may be subject to estate taxes. Many states are implementing estate or inheritance taxes.

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed") is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process.

Why Use an Enhanced Life Estate Deed?
The Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Who should use the Enhanced Life Estate Deed?
An Enhanced Life Estate Deed or Lady-Bird Deed should be use by individuals or couples who want to simplify the transfer of their property upon their death and retain full authority and possession over their property.

Will using an Enhanced Life Estate Deed affect my Medicaid Eligibility?
As long as the individuals demonstrate an "intent-to-return" to the homestead Medicaid Eligibility should not be affected.

What are some common mistakes with deeds?
Many Florida residents add their children on their deeds as Joint Tenants with Rights of Survivorship.
Many Florida Residents deed their property to their children and retain a life estate.

What can happen if I have made a common mistake on my deed?
1) My home may not be protected from creditors and/or loose its homestead protection.
2) I may be disqualified from Medicaid in the event that I need to go into a Nursing home.
3) I may have made a gift, subject to Federal Gift Taxes, Penalties, and Interest which my heirs and/or family may be responsible for paying.
4) I may not be able to sell my home or use the proceeds from my home to enhance my quality of life, travel, or pay for the necessary medical care I need.

If I have made a mistake transferring my property, can it be fixed?
Yes, You should meet with a Florida Estate Planning Lawyer to evaluate your situation, and prepare the documents necessary to allow you to qualify for Medicaid, deal with the Gift taxes, protect your homestead, and pass your homestead to the desired beneficiaries without the costly expense and delay of Florida probate.