Florida Estate Planning Lawyer Blog

Don't Ask, Don't Tell (DADT), was adopted by Congress in 1996. On December 20, 2011 the the federal law banning openly gay people from serving in the military is repealed.

The President, Defense Secretary and Joint Chiefs of Staff Chairman signed and submitted a one-page certification to Congress that the military is ready to implement the repeal of DADT.

Nearly two million troops have received training in preparation for the repeal of DADT. The Department of Defense stated that sexual orientation is a personal and private matter and that all service members should be treated with dignity and respect. The Defense Undersecretary reported that there will be "zero tolerance for harassment, violence or discrimination of any kind."

Eligibility benefits remain the same as far as service-members being able to choose their beneficiary for benefits, however the Defense of Marriage Act (DOMA) still prohibits the extension of many military benefits to same-sex couples, including health care and allowances for housing and transportation.

As a Mayport Estate Planning Attorney, I recommend that Mayport gay and lesbian service members consult with an attorney to learn the various ways that legal documents will protect them and their families. Same-sex couples currently lack many federal government protections afforded to heterosexual couples. The best way to provide for your same-sex partner is to draft Florida estate planning and other documents, such as your will, a trust, health care surrogate, power of attorney, and other similar documents.

Florida law does not provide for your same-sex partner, no matter how long you have been together. As a Florida gay and lesbian member of the armed forces who serves our county, serve yourself as well. Continue to protect the U.S.A and begin to protect yourself and your same-sex partner.

Florida residents be advised, not only is it important to consult with a Neptune Beach Estate Planning Attorney about having your Will, Trust, Power of Attorney and other legal documents prepared, but you must make your beneficiaries and heirs aware that they exist.

Keeping your important legal, real estate, motor vehicle, insurance and financial papers in an organized fashion and storing them where they can be found is crucial. Keeping your original Will secure and accessible is the first step. A Will allows you to decide which of your family members or friends will inherit your assets. If you have minor children, you designate a guardian for your kids, in case of your demise.

Wills are subject to the Probate process, which is a court supervised proceeding in which a personal representative is appointed, an inventory of your property is prepared, your debts and taxes are paid, and finally your assets are distributed to those beneficiaries named in your Will.

As a Neptune Beach Probate Attorney, I have seen first hand what happens after you die, if your relatives cannot find your original Will. It becomes a more complicated, more timely, and more expensive undertaking than had your heirs known where to look for the original will, which you have "hidden" in the back closet, under a pile of clothes, in a box, with hundreds and hundreds of receipts and sheets of papers . . .

A Revocable Living Trust is another Estate Planning tool that not only benefits you and your beneficiaries, but also avoids the probate process. As you can amend your Living Trust at any time during your lifetime, it becomes imperative that you not only keep the original trust agreement but the amendments to the original trust where your trustee and beneficiaries can find it. Failure to find your trust documents may set your estate up for litigation.

A Durable Power of Attorney is a most powerful document as it allows someone you have named, to act on your behalf in financial, banking and business matters if you ever become incapacitated due to illness or injury. If the person you have designated is unable to locate this document, he or she will be unable to conduct banking transactions or deal with business associates on your behalf.

Another important Estate Planning Document is a Designation of Health Care Surrogate. This health care document allows you to name the person you want to make health care decisions on your behalf in the event you are incapacitated and unable to make health care treatment decisions for yourself. Again, remember, it is not only important to have these legal Estate Planning Documents prepared, but to share the existence and location of these documents to your beneficiaries, loved ones, and trusted friends.

The lazy days of Jacksonville Beaches summer is a time to relax, enjoy the beach, and have a great time. Summer time is also the time to reflect. . . about your life, your partner, your children, and your future.

Don't put off until tomorrow, the preparation of important documents dealing with important Florida Estate Planning Documents or those dealing with Gay and Lesbian Legal Issues that will protect both yourself, your partner, and your family.

Your Florida Will, a Florida Revocable Trust, a Florida Durable Power of Attorney, your Florida Living Will, a Designation of Health Care Surrogate. . . take the time this summer to think about your future and how important it is to have these documents prepared, because before you blink, Jacksonville summers turn into Florida Fall.

A Jacksonville Beaches Estate Planning Attorney can discuss with you what estate planning and other documents are best suited for your situation.

REASONS TO HAVE YOUR FLORIDA WILL PREPARED:

IT'S YOUR WAY: You decide who inherits from you. If you die without a Florida Will the Florida's intestacy statute directs how your property and assets are divided and distributed.

Florida intestacy laws DO NOT provide for non-family members. Unless you draft a Florida Will, your partner will not inherit from you.

YOUR CHILDREN: If you have minor children, you nominate who is to become their legal guardian (the guardian you choose will still have to be approved by the judge). However, your nomination will by duly noted by the court and receive priority if qualified.

YOUR NON-BIOLOGICAL CHILDREN: In order for your child to inherit from a non-legal or non-biological parent, that parent must prepare a will in Florida.

LEAVING TO CHARITY: You can give money or personal property to the charities of your choice; the state will not distribute your property to charity.

BELOVED PETS: You can provide for the continued care of your pet after you are gone.

FAMILY SQUABBLES: Reduce the risk of dissension by providing clear directions as to how you want your property distributed. (Ask us how a Florida Trust may reduce the risk further)

PARTNER BURDEN: If you pass away without a will, you leave a burdensome job to your Partner, Spouse or other Close Personal Friend. They are already mourning your death, don't make this time more difficult as they settle your personal affairs.

FAMILY DISSENT: If your family has been non-supportive and disapproving of your same-sex relationship, preparing a valid will is important in the event of a will contest. A penalty clause for a will contest is unenforceable in Florida.

To learn about having your will prepared, or how a Florida revocable trust might benefit you, as well as how other legal documents will protect you, your partner and family contact me, a Jacksonville Beaches Estate Planning Attorney and let's sit down and talk.

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.

Going to an attorney may be a difficult step for many. Being gay and unsure as to how you may be received by an attorney, may stop more than many.

Jacksonville Beach Residents, Atlantic Beach residents, erase your fear. Apple Law Firm has Estate Planning & Family Law Attorneys who focus on areas of law as it relates to the gay and lesbian community. Our beach doors are open.

Schedule a consult at our new beach office, located at 6th Avenue, Jacksonville Beach, with one of our Jacksonville Beach Estate Planning Attorneys who focuses on LGBT legal issues, to discuss the necessary legal documents in planning for your future, as well as the future of your domestic partner, children, and family.

As a Jacksonville Attorney at a Florida Estate Planning Firm, I have seen many issues concerning homestead protection in both probate matters and in estate planning. When you occupy a home in Florida as your main residence, this is called your homestead property. Notwithstanding some exceptions, the Florida Constitution protects the homestead from forced sale by creditors. If the owner of a homestead dies, the creditor protection of the home (from the decedent's creditors) continues for the spouse or family members who inherit the homestead. If the home becomes the homestead of the spouse or other family members then they shall also enjoy the same creditor protection from their creditors.

A Florida condominium was transferred to a Florida revocable trust. Upon the death of the first, the Florida Revocable Trust created a marital trust for the spouse, with the remainder to sons from a previous marriage. A few months after the condo was titled to the trust, the same condo was deeded directly to the spouse. A lawsuit ensued as to who owned the condo, the trust or the 2nd wife.

The sons won an initial victory, ensuring they would receive the condo upon the surviving spouse's death. The surviving spouse counter-sued for reimbursement of all condo related expenses paid with her own funds, and won a money judgment against the sons. The spouse wanted the sons to transfer a percentage of the condo interest to her, and the sons wanted the trust to sell the condo to obtain money to pay the judgment against them. The sons lost.

A Florida District Court ruled that homestead property (the condominium) held in a marital trust does NOT lose its creditor protection. Homestead issues can be complicated and diverse, it is recommended that you consult with a Jacksonville Homestead Attorney to learn more about the homestead protection and how it effects you and your family.

The rights of a surviving spouse changed in late 2010. These new rights give the option of a 50% interest in the sale of a homestead or a life estate. In most cases where the home is owned by husband and wife as Tenants in common, the surviving spouse will have full ownership of the home.

Recently the 3rd DCA in the Florida case of Lorenzo v. Medina ruled that the anti-lapse statute must be strictly construed and that gifts to in-laws are not saved and lapse unlike a gift to a close family member.

This means a gift to a sister-in-law who predeceases the testator is not honored while a gift to a predeceased sister would go to her children. If you are involved with trying to save assets for the families of non-relatives you should talk with a Florida Estate Planning Lawyer how simple changes to your Florida Will or Florida Revocable Trust can ensure that your intentions are carried out.

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.

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.

With Florida Trust Litigation on the rise, it is important that trustees preform their duties properly.

One of the primary duties of a Florida Trust trustee is to keep accurate records of all acts performed by him in regards to the trust estate. In Florida, trustees have this duty, known as an accounting, which requires providing these records to the trust beneficiaries. The trustee's accounting should be a reasonably understandable report from the date of the last accounting, or from the date on which the trustee became accountable, that adequately discloses the information required.

Fla. Stat. § 736.08135(2) states the requirements of an accounting:

a) The accounting must begin with a statement identifying the trust, the trustee furnishing the accounting, and the time period covered by the accounting.

b) The accounting must show all cash and property transactions and all significant transactions affecting administration during the accounting period, including compensation paid to the trustee and the trustee's agents. Gains and losses realized during the accounting period and all receipts and disbursements must be shown.

c) If feasible, the accounting must identify and value trust assets on hand at the close of the accounting period. For each asset or class of assets reasonably capable of valuation, the accounting shall contain two values, the asset acquisition value and the estimated current value.

Not everyone is entitled to an accounting and while if the grantor is the trustee, the accounting can be waived. There are many other provisions of the Florida Statutes that deal with accountings. If you are a trustee of a Florida trust or a qualified beneficiary of a Florida Trust and want to find out about your rights, you should contact a Jacksonville Estate Planning Lawyer or Florida Estate Planning Lawyer to discuss you options.

Creating a Florida Revocable Trust is a job that most Florida Estate Planning Lawyers are capable of but the process of avoiding Florida Probate does not end there. Once the Florida Revocable Trust has been created it must then be funded with the client's assets. Without proper funding all of the assets that should have been in the trust will pass through Florida Probate costing heirs extra money in taxes and fees.

In order to fund your Florida Revocable Trust properly, you need to transfer ownership of your assets into the name of the trust. Personal property can be transferred using a document called a General Assignment or Assignment of Personal Effects. Real property is a little more complex because it requires executing a new deed transferring the property from your name as an individual to the name of the trust. Institutions with which you have bank and brokerage accounts usually require a showing that your trust exists and that it is your wish to have these accounts transferred. A Certificate of Trust is a document that provides proof of the existence of your trust and is usually given to the client in the living trust package he receives from his Florida Estate Planning Attorney.

Forgetting or neglecting to fund your trust is something you wouldn't want to do after going to all the trouble to create a trust in the first place. Even if you initially funded the trust with assets there are many cases where people have acquired a significant amount of assets later and never transferred them to the trust. If you would like assistance in creating a revocable living trust or an assessment of your existing trust contact a Florida Revocable Trust Lawyer or Jacksonville Estate Planning Lawyer today!

Florida Revocable Trust are managed by a Trustee who is the person(s), or in some cases entity, that hold legal title to property for the benefit of an equitable title holder.

Often the grantor of the Florida Revocable Trustselects the trustee who is responsible for making sure the beneficiaries are taken care of according to the grantor’s wishes. A single beneficiary or group of beneficiaries can become dissatisfied with the performance of the trustee when unfortunate circumstances occur. This may lead to a difficult court proceeding where the removal of a trustee is sought.

Under the current Florida statute a beneficiary, co-trustee, or the grantor of the trust may request the court to remove a trustee. When a removal request is made, it is up to the court to decide if there are sufficient circumstances that justify the trustee’s removal.

The Florida Trust statute expressly states that the court may remove a trustee if:

1) The trustee commits a serious breach of trust,
2) There is a lack of cooperation among multiple trustees,
3) The trustee is unfit, unwilling, or persistently fails to administer the trust effectively, or
4) There has been a substantial change of circumstances or all beneficiaries agree to the removal, the removal of the trustee best serves the interests of all of the beneficiaries, is not inconsistent with a material purpose of the trust, and a suitable co-trustee or successor trustee is available.

If you are the beneficiary, co-trustee, or grantor of a Florida Revocable Trust and believe any of the circumstances mentioned here apply to your trustee, contact a Florida Revocable Trust attorney or Jacksonville Trust Attorney who can discuss whether it would be beneficial to seek the removal and appointment of a new trustee.

When using a Specific Devise in a Florida Will or Florida Revocable Trust it is important to understand how they work and what causes them not to work in order to avoid unintended consequences.

A specific bequest is a gift of a particular identifiable asset within the estate that can be distinguished from any other estate property. For example, “I give the Picasso painting hanging in the living room to Jane” or “I give all of my baseball cards to my son David Goldman.” Typically, specific gifts are given in a Florida Will to a beneficiary that will keep and use the property. Upon the death of the Testator (the person who made the will), problems arise when specific gifts are no longer owned or in their possession or if there is not enough money to satisfy the gift.

In Florida, a specific gift is deemed to be extinguished to the extent that the testator does not own it when they die. This means that the gift is void and the beneficiary has no right to collect the gift. In the previous examples above, if the testator had sold the the Picasso painting or box of baseball cards before his or her death, the gifts would be extinguished and Jane and David would be left with nothing. The problem can also arise when there are specific devises of money in dollar amounts but not enough money or the money is in account with joint ownership or payable on death designations. Since these accounts are not subject to probate, there is no money to give to the named beneficiaries. This can also happen if cash is given, but only stocks are owned at death. There is no requirement to sell other assets to satisfy the specific gifts in the estate.

However, recent changes in the law allow the beneficiary of a specific gift to receive a general gift equal to the sale price of the property if a guardian of the property sold it instead of the testator.

If you would like advice or counseling on any matters related to your devises in your Florida Will or Florida Revocable Trust contact a Jacksonville Estate Planning Lawyer to aid you in the estate planning process.

It is a common mistake many people make to believe that only the rich and wealthy need to implement a Florida Revocable Trust as a component of their Florida Estate Planning. Often after taking into account your home, bank accounts, cars, brokerage accounts, jewelry, collectibles, and life insurance policy most individuals will see their estate is much larger than they believed. Without proper utilization of Florida Estate Planning tools such as a Florida Revocable Trust, this amount can be subject to high costs associated with the Florida Probate process and potentially federal estate taxes or death taxes. While there are no Federal or Florida estate taxes in 2010, the annual exclusion is expected to drop in 2011. Many believe we could see only a 1 million dollar exclusion in 2011.

There can be many advantages of using a Florida Revocable Trust for you estate planning needs rather than a Florida Will. First, privacy is an advantage offered by a living trust but not a will because after death wills are publicly recorded and copies may be viewed or purchased. A second advantage is that a Florida Will often requires the expense and delay of Florida Probate. With the attorney fees, executor fees, and tax consequences involved with probate, thousands of dollars could be saved with a living trust.

A third advantage is control and to some extent the protection from creditors with the money and assets given to beneficiaries. Often your beneficiaries creditors are not be able to satisfy their debts from your trust funds when the trust is properly setup and managed. However, if the money were given outright in a Florida Will, creditors are be free to collect their debts with those funds. Another advantage worth noting is efficiency with which assets are distributed. Probate proceedings usually take between 6 months and 24 months. Throughout these proceedings the assets are usually tied up and cannot be enjoyed by the beneficiary.

A Florida Revocable Trust can provides significant advantages for many people that cannot be obtained with only a simple will. To receive these benefits your goals should be shared with a Jacksonville Estate Planning Lawyer to determine what options you have and how to implement them to meet your desires.