Florida Estate Planning Lawyer Blog

In Florida as with most states, Estate Planning is something that needs to be addressed when one has major changes in their life. This includes divorce and separation.

You only have to think about your spouse or ex-spouse getting all of your assets if you should die to realize the importance of addressing the issue.

In the last year I have seen a number of families who have been adversely affected because of a lack of planning. Several couples were separated for many years when one died and the estranged spouse received a significant portion of the estate. In Florida, even if you change you will to disinherit your spouse, the spouse is entitled to an elective share of your estate. This is equal to 30 percent of your entire estate. If you are divorced in theory, go ahead and file the paperwork to make it official.

When you get a divorce, be sure to change payable of death designations on your retirement accounts, life insurance, bank accounts.

Be sure to revoke any guarantees associated with credit established in both of your names. Change the way property is owned, even if you plan on selling it soon.

The 401(k)s is also a non-probate assets also, but be careful because ERISA, a federal law, protects a surviving spouse. I have seen children loose their parents life insurance because their parent never finalized the divorce and made changes when they separated from their spouse decades ago. If you are getting a divorce be sure that proper paperwork to change the designations is made part of the divorce or separation agreement.

Unless your Florida Divorce Lawyer is also a Florida Estate Planning Lawyer, it is best to have a Florida Estate Planning Lawyer Contact and work with your Florida Divorce Attorney.

What happens if you are in the middle of a partition to divide or sell property and one of the owners dies?

The pending action is has no force and effect on the ownership. What doest this mean? If you own property as joint tenants with rights of survivorship and you want to partition the property but die in the middle of the court action, the other joint tenant will own the entire property.

A recent 1st DCA case Mercurio v. Headrick, WL 2434193 (Fla. 1st DCA Jun 18, 2008) has the expected outcome that all attorney's learn in their first year property course. In addition many other states have reached similar opinions but Florida had not seen this issue before. The Florida Probate Litigation Blog has an in depth article on this case.

What should you do if you find yourself in this situation? You should convey your property to break the joint tenancy with right of survivorship prior to bringing the action. The benefit in doing this is that should you die during the action, your heirs or family will not loose the entire value of the property.

To learn how to do this properly in Florida Contact a Florida Estate Planning Lawyer

Google Health just began offering personal health records on the Web. They are joining WebMD, Microsoft, and Revolution Health.

These services are designed to help consumers manage their health care and medical spending records.

Google record allows users to send personal information to some clinics or to pull records from the clinic into the Google personal file. One clinic that has begun working with Google is the Cleveland Clinic.

As of the launch, more than two dozen companies announced a partnership with Google Health. Some of the companies include Walgreens, CVS, the American Heart Association, Quest Diagnostics, Beth Israel, Deaconess Medical Center, and the Cleveland Clinic.

If you plan to subscribe to a service like this make sure you deal with it in your Durable and Medical Powers of Attorney so that the benefit from these services is not lost by your subsequent incapacity.

To discuss how to integrate these services into your Florida Estate planning documents Contact a Jacksonville Estate Planning Lawyer.

The Florida Supreme court has ruled affirmatively on the question presented to it.

Whether, under Florida Statutes section 689.07(1) as it existed before
its 2004 amendment, this Deed––which is a recorded real estate
conveyance deed to a named trustee of a private express trust
identified in the deed by name and date, and contains other language
referring to the unrecorded trust agreement, the settlors, and the
beneficiaries––conveys only legal title to the property in trust to the
grantee as trustee.

In Raborn v. Menotte, 974 So. 2d 328 (Fla. 2008), the court held that a deed which identifies the grantor as the creator of and the grantee as trustee of a named trust shows sufficient “contrary intention” and grants legal title as trustee to the grantee.

This case was brought to my attention by an article by Gerry Beyer on the WIlls, Trust, & Estates professors Blog.

Spendthrift clauses can be confusing to trustees. The general idea with a Florida Spendthrift clause is that the beneficiaries cannot assign their interest in the trust to a creditor ( voluntarily or involuntarily)

Here is the test found in a typical clause under the new Florida Trust Code

Spendthrift Provisions. Each trust created by this Trust Agreement shall be a spendthrift trust to the fullest extent allowed by law. Prior to the actual receipt of trust property by any beneficiary, no property (income or principal) distributable under any trust created by this Trust Agreement shall, voluntarily or involuntarily, be subject to anticipation or assignment by any beneficiary, or to attachment by or to the interference or control of any creditor or assignee of any beneficiary, or be taken or reached by any legal or equitable process in satisfaction of any debt or liability of any beneficiary, and any attempted transfer or encumbrance of any interest in such property by any beneficiary hereunder prior to distribution shall be void.

The most common application of a Spendthrift Provision is to protect against involuntary assignment or bankruptcy.

While this may be fine with a small estate, this question often comes up with larger estates.
Why would I want to void my child's right to his 5 Million dollar distribution to avoid paying his creditors $25,000. Would it not be better in such a case to pay of the creditor and let my child enjoy and use the benefits of the trust rather than treat his a being predeceased?

Although it is not clear, the trustee can take this into consideration and make the distribution even though the creditor will receive a small portion of the decedents estate.

In these types of cases, I prefer to include language that a trustee can, in their discretion, make a payment when they know that a portion will go to a creditor of the beneficiary. Some times there is a limit placed on the amount and other times there is no limit placed on the maximum amount that can be used to pay a beneficiaries debts.

The Louisiana Estate Planning Law Blog has an article Whether you should include a "Spendthrift Trust" in your will? where they discuss using a spendthrift trust to prevent your children from loosing the money you leave to them.

If you want to make sure your children do not spend or loose all the money or assets you leave to them. It is also common to include a spendthrift provision in a NFA Gun or Firearms Trust to protect the items from being lost to a creditor. To find out more about how a Spendthrift Clause can help you Contact a Florida Estate Planning Lawyer
about including a Spendthrift Provision in your Florida Estate Planning Documents

It could be happening again in Florida, The Palm Beach Post has a report on a similar case. If you do not have a Florida Living Will now is the time to get one.

Karen Weber did not have a Florida Living Will when she suffered a seizure back in November. Her husband wants to disconnect the feeding tube that has kept her alive for the past 7 months.

The courts have not ruled on Ms. Weber's condition and it is Mr. Weber's intent to keep it a private matter.

Who could forget the circus that can arise when such an emotional issue is tried in the court of public opinion.

If you need a living will you can get a free one, I have previously posted a Free Florida Living Will on this site.

If you need help with Florida Estate Planning Documents please Contact a
Florida Estate Planning Lawyer

Seven weeks ago, I got a new puppy. I was thinking of a way to protect myself from Florida's Strict Liability for Dog Bites. Most states have a one free bite rule, but Florida does not and makes the owner of the Dog liable for all damage by the dog from the first bite.

In walks the Florida Revocable Trust. I began thinking that if you set up a separate revocable trust that owned the dog, you could transfer the liability of the dog's future actions to the revocable trust.

I began reading the Florida Statutes and sure enough the statute states that the "owner" is the party liable. Figuring that this must be too easy, I kept reading. It seems that when the state creates statutes, the often hide the real details in some other part of the statute. Sure enough after a few minutes I found that "Owner" as defined in the statute means any person, firm, corporation, or organization possessing, harboring, keeping, or having control or custody of an animal or, if the animal is owned by a person under the age of 18, that person's parent or guardian.

So while the trust would be liable as the owner, so would the person who the animal was staying with and the person keeping the animal, and the person in control or custody of the animal at the time of the attack.

So what did I learn from this exercise? You should be very careful when offering to take care of someone's pet while they are out of town as the person in control and / or custody is just a liable as the person or entity that owns the animal. More over your homeowners insurance may cover your liability as an owner, but I am not sure if they would cover damage caused by a pet that you did not own.

The only other way to protect yourself from liability is to have good insurance and / or protect your other assets.

To discuss potential sources of liability that you can help protect your self and your families assets from, you should contact a Florida Asset Protection Lawyer or read more on Florida Asset Protection

For families living in Florida, choosing a guardian for their minor children is a primary reason why a Florida Will is such an important document to create and keep updated.

Often choosing who will care for your children is a difficult decision. Many families find it the hardest decision that they make in terms of estate planning. This is one area where it is common for the husband and wife to have completely different views of who should raise their children in the event that both the husband and wife die prior to the children reaching the age of 18.

First it is important to know that the planning is more important than agreeing with your spouse. Although it can create some tension between spouses, it is important to know that should one of you predecease the other, and then the surviving spouse gets to make their own decision anyway. Also, as long as one of you lives until the children reach the age of 18, it will not matter who you choose.

It is more important to discuss the reasons with each other and if possible come to a decision as to what is important to each of you than to try to come to a decision that one of you does not agree with.

The Georgia Wills, Trust, and Estate Planning Blog has an article on choosing the right guardian for your children where the break down the process into three steps. This three-step approach should make the process easier to accomplish without damaging the marriage.

Step 1 Make a list of people - make it long and include everyone that would make a better home for your children than the foster care system.

Step 2 Decide What Matters the Most - choose factors that are important and rank them in an order of priority. Some examples are maturity and patience, parenting style, religious beliefs, values, ability to care for additional children, and do not forget their willingness to serve (don't forget to ask them)...

Step 3 Match People to the Priorities - rank and evaluate your choices. Listen to each other and try to come up with a coherent reason for the choices you will make as a couple, or individually. Remember you may not be exactly happy with your spouses’ choice, but if you live longer you get to change your mind anyway. Perhaps its better to come up with someone you can both agree upon in case you both die simultaneously.

To choose a guardian properly, you should make a valid Florida will. Please contact a Florida Will Attorney or Florida Estate Planning Lawyer to help you prepare valid documents that accomplish your goals.

Before making a Florida will you should think these things before drafting or having your Florida will modified.

In Florida to create a valid will the person needs to know what assets they have, who they are giving them to, and have an understanding of who they would go to if they were not listed in the Florida Will.

In addition, there are specific execution requirements to make sure the resulting document is a valid Florida will. The Jersey Estate Planning Blog
has a nice summary of what should be considered when creating a will.

I have adopted the issues to Florida, but in general they mention the following issues to consider when making a Will:

1) What assets will put into the Florida will.
2) Who you are going to leave your assets to;
3) Who will administer your will?
4) Who will care for (minor children) both financially and physically?
5) Who will witness the execution of your Florida Will

In addition, you may consider what how you would like your body dealt with upon your death. Although this can be placed in your Florida will, it is advisable to let others in your family, those who will make the decisions, know what your plans are. Generally, your will cannot be looked at by the time these decisions need to be made.

A Florida will is a very important document and careful attention should be paid to what it states and how it is executed. Unlike other documents that you may sign during your life, this document cannot be changed once you die. I like to contrast it to dying your hair, if you do not like the color you can seek the help of a professional, try again, let it grow out, or even cut it off and wait for your hair to re grow. With a Florida will or a will in any state, you do not have any of these options and your family, heirs, and beneficiaries do not get the chance to make changes because of unforeseen changes or poor choice of words.

Most people think a Florida Will is an expensive document to create, but generally they are not much more than what you would pay an online service. Many online services allow you to create documents that have unintended consequences. I have a section on this blog with many examples of estate planning problems created by the wrong choice of words. Before you create a Florida Will you should contact a Florida Estate Planning Lawyer or a Florida Will Lawyer to discuss your needs and objectives.

Florida QPRT (Qualified Personal Residence Trust): Options:

Often clients want to make sure their homes go to their children. In Florida, a homestead will automatically go to your descendants and be protected. One of the problems is that although the home is generally not subject to Florida Probate, the value of the home at the time of their death is subject to estate tax. Once option of leaving a home to children is to use a special trust designed for the home. There are many advantages and disadvantages of using a Qualified Personal Residence Trust in Florida (QPRT).

Andrew Ewalt recently wrote an article on this on his Legal Blog where he listed the basic Pros and Cons. It is important that there are risks involved with a QPRT and each persons situation needs to be evaluated to determine if this is the right way to deal with the transfer of one's Florida Homestead. QPRT's are not for everyone, and many who used them in the past have ended them because of the changes in tax laws and how they impact their individual estate plan. As with all Florida Estate Planning it is important to review and update you estate plan on a regular basis.

The Advantages of a QPRT that Andrew list are

1. A QPRT removes any appreciated value of a house from a parent's estate which can help reduce estate tax liability.
2. The parents can continue to live in the house during the term of the trust.
3. Both residence and vacation homes can qualify.
4. Often more than one home can be protected.
5. When the trust term ends the children receive the home.

The potential disadvantages of a QPRT are:

1. Capital gains tax can be a significant factor on the sale of the home because the cost basis of the house remains the same as it was for the parents. (as the capitol gains is suppose to increase shortly, this can be a significant issue)
2. If the parents die before the trust terminates the home will not be devalued for estate tax purposes. Thus it is very important the parents survive for the term of the trust.
3. Children will become their parents landlord when the trust terminates. As such children could evict their parents or increase the rent to live in the home.
4. These trusts are very complicated. In order to set one up you will need a lawyer.

If you live in Jacksonville or have property in Florida that you are considering placing in a Qualified Personal Residence Trust (QPRT) you should discuss your personal situation by Contacting a Jacksonville Estate Planning Attorney

POWERS OF THE ATTORNEY IN FACT AND LIMITATIONS IN FLORIDA

Except as otherwise limited by statute (below), by other applicable law, or by the durable power of attorney, the attorney in fact has full authority to perform, without prior court approval, every act authorized and specifically enumerated in the durable power of attorney. Such authorization may not include:

1. Perform duties under a contract that requires the exercise of personal services of the principal;
2. Make any affidavit as to the personal knowledge of the principal;
3. Vote in any public election on behalf of the principal;
4. Execute or revoke any will or codicil for the principal;
5. Create, amend, modify, or revoke any document or other disposition effective at the principal's death or transfer assets to an existing trust created by the principal unless expressly authorized by the power of attorney; or
6. Exercise powers and authority granted to the principal as trustee or as court-appointed fiduciary.

PROPERTY SUBJECT TO DURABLE POWER OF ATTORNEY IN FLORIDA.
Unless otherwise stated in the Florida durable power of attorney, the durable power of attorney applies to any interest in property owned by the principal, including, without limitation, the Principal's interest in all real property, including homestead real property; all personal property, tangible or intangible; all property held in any type of joint tenancy, including a tenancy in common, joint tenancy with right of survivorship, or a tenancy by the entirety; all property over which the principal holds a general, limited, or special power of appointment; chooses in action; and all other contractual or statutory rights or elections, including, but not limited to, any rights or elections in any probate or similar proceeding to which the principal is or may become entitled.

If you have questions about the validity or scope of your Florida Durable Power of Attorney Contact a Florida Estate Planning Lawyer

Once an Agent (Attorney in fact) receives written notice which requires a signature, their powers under the Durable Power of Attorney are suspended until the court determines incapacity. The court may reinstate the Durable Power of Attorney for an emergency, when a petition if file upon the court showing the nature of the emergency, the property or matter involved, and the power to be exercised by the attorney in fact.

Notwithstanding the provisions above, a proceeding to determine incapacity must not affect any authority of the attorney in fact to make health care decisions for the principal, including, but not limited to, those defined in chapter 765, unless otherwise ordered by the court. If the principal has executed a health care advance directive designating a health care surrogate pursuant to chapter 765, the terms of the directive will control if the two documents are in conflict unless the durable power of attorney is later executed and expressly states otherwise.

If the person has not received written notice of the proceeding for which they were required to sign for, any third party may rely upon the authority granted in a durable power of attorney that is not conditioned on the principal's lack of capacity to manage property until the third party has received the required notice. A third party may, but need not, require the attorney in fact to execute an affidavit.

If the Durable Power of Attorney is deployment contingent, any third party may rely upon the authority granted in a durable power of attorney to manage property as defined in Florida Statute 744.102(11)(a) only after receiving the affidavits provided in paragraphs (c) and (d), and such reliance shall end when the third party has received notice.

Continue reading "Guardianship and Durable Power of Attorney in Florida" »

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.

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

When Selecting an attorney for will preparation it is important that they take a look at your full financial condition. Often clients think they want an attorney for will preparation but in fact need other types of estate planning.

You should be prepared to give full financial disclosure as well as all information about your family dynamics to make sure that the right Florida Estate Planning Documents are created for you.

Often clients do Florida Estate Planning in anticipation of an overseas trip or international relocation. They often ask if they should make special considerations because of their anticipated location.

Generally we advise clients that the planning is basically the same even if they will be living overseas for an extended period of time. The one area where there may be differences is in their Durable Power of Attorney where it might be advisable to make changes.

These changes require an evaluation of the current and anticipated needs of the individual client and cannot be generalized.

If you are planning an international trip, going on a cruise, or moving overseas for a time, you should contact a Florida Estate Planning Lawyer to discuss or review your Florida Estate Planning Documents .

Although there are no current verdicts against Florida Companies, many states have taken action against living Trust Scams / Trust Mills / and Elder Law Planning Seminars. Michael Bonasera of Buckingham Doolittle & Burroughs, LLP and author of the The Ohio Trust & Estate Blog wrote an article titled Living Trust Scams/Trust Mills/Elderlaw Planning Seminars - STAY AWAY! where he mentions a previous posting on this Blog, Florida Estate Planning Lawyers Blog, on a similar topic dealing with a Texarkana Arkansas class action suit.
I thought I would start a list of Living Trust Scam Articles and resources on my blog.

1. Texarkana Arkansas Living Trust Seminar Class Action suit
2. California Living Trust Mill Judgment
3.Texas Bar story reported by Professor Beyer of Wills, Trusts & Estates Prof Blog- Living trust Scams and Senior Consumer
4. Michael Bonasera wrote an article titledLiving Trust Scams/Trust Mills/Elderlaw Planning Seminars - STAY AWAY! where he Ohio's history with Trust Mills and cites a case Ohio Trust Mill Case of Cleveland Bar v Sharp Estate Services, Inc. which seems to have ended Trust Mills in Ohio.
5. Minnesota Sues "Trust Mills" on Consumeraffairs.com
6. Beware of Trust Mills when Estate Planning - by Randall Armour, CA Lawyer- reported on by Florida Estate Planning Lawyer Blog
7. Don’t Trust the “Trust Mills”, Traci D. Ellis Esquire

If anyone has heard of additional Living Trust Scam / Trust Mill or Elderlaw planning Seminar articles please contact me and let me know and I will update the list.