Florida Estate Planning Lawyer Blog

Florida Asset Protection Attorneys can help structure the ownership of assets to protect from liabilities and creditors. Often individuals own a bulk of their assets individually or in a Florida Revocable Trust, or in a corporation. The assets and businesses held in these entities can be subject to the claims of creditors if a judgment is obtained against the individual. In touch economic times like these it is more important than ever to protect your assets from the claims of creditors. You should discuss your assets and potential liabilities with a Florida Asset Protection Lawyer who also knows about Florida Estate Planning to make sure they are protected to the extent possible from claims that could cause you to lose the assets or income you have worked hard to create.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Asset Protection , Estate Planning , Irrevocable Trust , Living Trust , Retirement Plans , Wills

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The Wall Street Journal has an article on Deciding if Your Kid is Trust-Worthy where they discuss using trust like a Florida Estate Planning Lawyer would use to protect your families assets.

Part of the article is devoted to helping you determine if your child or your children are the best ones to manage your finances or Florida Revocable Trust in the even you become incapacitated or die. These are areas you should discuss your your Florida Estate Planning Lawyer in an effort to determine how best to structure a Florida Revocable Trust.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Living Trust , Revocable Trust

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When you own Florida property as Tenants in Common, each owner has a right to enter and use the entire property. Often one owner wants to sell their interest while another may not. This can lead to an action for partition where a court will order the property to be sold.

If the owners have an agreement that binds them and the future owners of the property from using a partition to break up or sell the property, the property will and owners will be protected from loosing their rights to use and access the property.

One additional advantage is that these agreements often reduce the value of one's interest in the property because of the restriction on the ability to partition the property.

If you have Florida property that you would like to protect from being broken up or to reduce the value of you should contact a Florida Estate Planning Lawyer by Email

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Posted In: Estate Planning

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Recently we ran across a situation where an individual in Puerto Rico died with a Florida Will . PR has some unique laws dealing with property and who will receive it under Puerto Rico's laws that can make a Florida Will or will created in another state invalid or ineffective for transferring property. If you live in PR or have property in PR you should have a lawyer in PR review your estate planning documents to make sure your intentions are carried out.

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Posted In: Estate Planning , Wills

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Today it was announced that deposits at FDIC-insured institutions are now insured up to at least $250,000 per depositor through December 31, 2013. On January 1, 2014, the standard insurance amount will return to $100,000 per depositor for all account categories except for IRAs and certain other retirement accounts which will remain at $250,000 per depositor. (This supersedes the October 3, 2008 changes.)

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Posted In: Asset Protection , Estate Planning

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All lawyers who took estate planning in law school learned about the possibility of an 80 year-old woman giving birth to a child. This mental exercise is just one of the unusual circumstances a Florida Estate Planning Lawyer might deal with in the drafting of Florida Estate Planning Documents.

Matthew Curtiss, a Connecticut Estate Planning Lawyer who writes the Connecticut Estate Planning, Probate and Fishing Blog, recently posted a link to a 70 year old woman giving birth. While 70 is not 80, it looks like the hypothetical 80 year-old giving birth could one day be a reality.

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Posted In: Estate Planning

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In Jacksonville and around Florida we are often asked about the differences between a Florida Will and a Florida Revocable Trust. Although each persons circumstances are unique, generally the following factors tend to determine which is better in relation to disability and death in relation to the cost of a Florida Probate or avoiding Probate in Florida.

A Will tends to be the best tool if these issues fit your circumstances:

Limited cash flow
Limited assets, including life insurance

A Trust tends to be the best tool if these issues fit your circumstances:

Older clients
Large qualified retirement plans (IRA, 401k, 403b, etc.)
High cost / difficulty death probate state
Simple, outright disposition of assets at death
More sophisticated disposition of assets at death
Privacy issues
Possible or probable mental disability
Desire to make everything as easy and inexpensive as possible for heirs
Out-of-state real estate or timeshares
Complicated disposition issues
Out-of-state executors, trustees or guardians
Tax planning
Protection of inheritance for spouse, children and grandchildren
Planning for couples on second or subsequent marriage
Medicaid planning or qualification issues
Planning for beneficiaries with “special needs”

To find out which is best for your particular situation Contact a lawyer in Florida who is familiar with Florida Probate and Florida Estate Planning

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Florida Probate , Living Trust , Revocable Trust , Wills

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Estate planning can help deal with the proper use and distribution of your assets upon a disability or your death. Below are several of the advantages of using a Florida Revocable Trust for Disability and Death Planning.

DISABILITY PLANNING

No probate, so everything remains private.
You decide the criteria for your disability and you pick those who will determine whether that criteria have been met.
You decide how your want your health care needs handled and you decide who will take on those duties.
You decide how you want your assets handled and you decide who will take on those duties.

DEATH PLANNING

No probate, so everything remains private.
By making your trust the centerpiece of your estate plan, you assure that distributions to your loved ones are exactly as you had planned.
You leave your assets to loved ones with certain protections. Unfortunate catastrophic illness expenses, divorces, accidents caused by your loved ones, or creditor problems will not cause the assets you leave your loved ones exposed to depletion as those issues are resolved.
By what you say in your trust (and by example), you leave your values to the next generation.
You achieve maximum federal estate, gift, and income tax savings.

To discuss how a properly drafted and implemented Florida Revocable Trust can help protect you in the case of disability or death, Contact a Florida Estate Planning Lawyer

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Living Trust , Revocable Trust

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In Florida all sorts of clerks, customer service people, insurance sales people, brokers, account managers, and other employees of financial institutions give customers advice about how to title accounts and name beneficiaries. In an effort to avoid probate, these seemingly harmless changes can cause many problems with estate plans.

Most new account forms at financial institutions ask you to name a beneficiary. This does not have to be completed and sometimes you are better off to leave it blank than to fill in a name or attempt to name a proper beneficiary.

Often when filling out beneficiary designations people do not understand how a share of the assets will be treated if that person predeceases them. Will the share go to their descendants or to other named beneficiaries and is that what was intended.

Other problem can happen when there are future children born who were not contemplated at the time the account was created or if all of the beneficiaries do not agree.

There are good ways of avoid Florida Probate , and it can often be dealt with through proper beneficiary designations, use of a will, or use of a Florida Revocable Trust.

Often a Florida Revocable Trust or Florida Will can simplify the need to change designations in the event of changes in your life such as a divorce, marriage, or birth or death of a family member. With a Florida Revocable Trust or Florida Will you can simply modify one document and it will take care of all of the accounts that are under it. Sometimes it is difficult or impossible to make changes when a spouse becomes incapacitated.

If you would like to review your Florida Estate Planning you should Contact an attorney familiar with Florida Estate Planning

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Posted In: Administration , Assets Subject to Probate Administration , Beneficiary , Distributions , Estate Planning , Florida Probate , Living Trust , Retirement Plans , Revocable Trust , Wills

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Recently we have begun seeing more cases involving agents who abuse their power of attorney in order to benefit themselves.

Most people do not realize that once they have become an agent for an individual, their duty is to act in the best interest of the individual and not for their own benefit. Sometimes agents make gifts to themselves or change the way bank or stock accounts are title so that the become the beneficiary upon the death of the individual. These actions are violations of the agents fiduciary duty and self dealing. Often what is done interferes with someone's right to an expectancy as a beneficiary or owner of an account.

In addition to creating liability to the beneficiary or the decedent's estate, in Florida such actions can also create criminal liability under Florida's Elder Abuse Statutes. If you have been accused of actions like these it is important to coordinate your defense with a Jacksonville Criminal Defense Lawyer who is familiar with Florida Abuse of the Elderly.

It is important to file a caveat or lis pendens as soon as possible to prevent the assets from being transferred to those who are without notice of these potential claims. Filing a caveat can make sure you receive notice prior to a will being admitted and a personal representative being appointed by the Florida Probate court.

If you believe your inheritance has been adversely affected by the actions of an agent acting under a durable power of attorney please Contact a Florida Estate Planning Lawyer to discuss an action against the agent or the estate.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Durable Power of Attorney , Estate Planning , Florida Probate , Probate Litigation , Probate Litigation , Trust Litigation

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Today a client of mine in Mexico contacted me about the transfer of their membership interest in an LLC upon their death. He had recently been told he had the "Pig Flu" or Swine Flu as we call it in the United States. Hopefully his case is not bad and he will make a full recovery.

His question was simple and perhaps the answer may help others so I am writing about it. He wanted to know whether his membership interest would become his business partners upon his death. Generally a business interest will transfer upon death by a will or trust and not have a payable on death designation. While it would be possible to create a payable on death designation on a small business interest it is not very common. As a result I suggested that the simplest way to deal with the transfer of his interest upon his death would be to do so with a will or other estate planning documents.

Every year people unexpectedly die from regular cases of the flu or other illnesses. Many individuals make changes to their estate planning documents when there are significant changes in their life such as a birth, death, child, move, major financial change. Perhaps the Swine Flu should be a wake up call for the majority of Americans who have no estate planning documents. With out Florida Estate Planning Documents the state of Florida will decide who receives your assets and who would raise your minor children. To review your Florida Estate Planning Documents Contact a Jacksonville Estate Planning Lawyer

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Assets Subject to Probate Administration , Distributions , Estate Planning , Florida Probate

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There are many times to update a Florida Will. Most updates are centered around significant life events like a wedding, divorce, new child, death in the family, or even moving to a new state.

Two of the most important things to change in a will are the designations for guardians of minor children and the beneficiaries of your estate or heirs. While Florida law provides that an ex spouse will not be an heir under a will that was created prior to the divorce, the law is not so kind when it comes to assets that do not pass through the probate system such as life insurance or retirement accounts.

All to often Florida Estate Planning Lawyers see cases of Florida Probate where a 401K or other contractual asset was never updated after a divorce. Because these assets are often designed to replace income that is lost, an improper designation can create a financial hardship for the decedent's family.

With the recent drop in home values, the stock market, and retirement accounts, it is more important than ever to review your beneficiary designations and how funds will be distributed under your Florida Will.

If you have selected a friend of the family to be a guardian of your minor child, the state of Florida requires that a non-relative be a Florida resident. This is a major reason to update your will when you move to Florida.

If you have gone through a life changing event in the past few years and have not updated your Florida Estate Planning Documents you should Contact a Florida Estate Planning Lawyer.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Life Insurance Trust , Wills

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Helmsey's estate made 53 charitable grants this week. Most of the money was given to hospitals and for medical research. Only 1 Million was given to 10 animal and dog charities equally. These donations came after a New York judge ruled that the trustees for the Helmsley Charitable trust has the sole authority to decide which charities would benefit from the trust.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Trust Litigation , Trust Litigation

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David A. Atraus, a Nevada Estate Planning Lawyer, has published a book titled Faith-Based Estate Planning: Our Values and Valuables. The book was written after contacting hundreds of religious clergy throughout the nation, and took him several years to write.

Upon a first glance, I was very impressed. The book covers Estate Planning issues like living trusts, wills, medical directives, long-term care insurance and life insurance on many religions including Baha'i, Buddhism, Christianity (10 denominations and branches), and 12 more religions from Roman Catholic to Judaism to Zoroastrianism.

It looks very comprehensive and I expect to write more on the book in the future.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning , Guardianship

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Back in 2006 and 2007 I wrote several articles on Digital Assets and Estate Planning. Now that we are in 2009, there is even more need for Digital Asset protection in your Florida Estate Planning Documents.

Digital assets are those that expire upon your death and are often associated with Email and website accounts. Most of these accounts are not actual property. They are licenses and these licenses generally expire upon your death. A new company Legacy Locker is attempting to solve this problem through a web based tool that stores account login and passwords and purports to transfer this information to the designated beneficiary upon your death or incapacity.

While their software is a good idea it has some issues in that it does not resolve the fact that the license expires upon the death of the person who creates it. One solution to this problem is to create the accounts in the name of a trust of business so that when you die, the entity that owns the license is still in existence. There are other companies that do similar things such as DeathSwitch.com

My previous articles on this topic include:

Speaking (or Emailing) from the Grave
Florida Estate Planning & Digital Assets
Digital Property After Death
Florida Estate Planning: Paperless Records Leave Heirs in the Dark

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Posted In: Assets Subject to Probate Administration , Devise / Devisee , Digital Asset Trust , Estate Planning , Florida Probate , Living Trust , Revocable Trust

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The Palm Beach Post.com has an article which describes a recent trend in Annuities in which scammers sell and churn an insurance policy sold as an annuity in which there are very high surrender fees and limited access to the money for 10 or more years. These policies are being sold to 85 year old individuals as investments when they cannot touch the money for more than 10 years and have very high surrender fees if they do.

Most reputable annuity policies, they say, allow access to the money after just 90 days and require no more than a 5 percent surrender fee, and nothing after five years.

Senate Bill 2520 and House Bill 141 seek to protect Floridians who are 65 and over from annuity scam artists by easing access to the assets and decreasing excessive withdrawal payments. The legislation says that "senior consumers diagnosed as having a terminal illness that will result in death within two years after the diagnosis" could "withdraw all purchase payments from an annuity contract prior to the expiration of the surrender charge period without penalty."

Recently we have begun seeing a trend in these types of annuities being marketed towards lawyers, doctors and other professionals as "safe investments" Given the high commission paid and the tendency of the agents to churn the assets into other annuities, it would be nice if this bill would do something to protect others from these life insurance investments.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning

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While Florida generally recognizes wills created in another state that were valid at the time they were created, it is often a good idea to have your will reviewed by a Florida Estate Planning Lawyer when you move to Florida.

One problem we often run into is that guardians for minor children who reside in Florida must be a close relative or a resident of the state of Florida. Often people designate non-relatives that do not reside in Florida and these are not effective.

While it is possible to create a trust or other legal instrument to allow a non-resident to manage the property of a minor, this should not be done in a will as it may be ineffective.

There are many other issues that arise with a move across state lines. Some states are community property and Florida is not. It is best to have your documents reviewed to make sure that your desires are carried out. There are some wills like holographic wills ( a will that is handwritten by the testator) that may be valid in states like California that Florida will not recognize unless they comply with the Florida Statute of Wills.

Contact a Florida Estate Planning Lawyer for more information and a review of your documents.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Living Will , Wills

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It seems like ever few months we hear about another company who provides living trust seminars to the public and scares them into purchasing unnecessary trusts.

Another "Trust Mill" has been found guilty of practicing law without a license by masquerading as qualified financial advisers, estate planners, lawyers, and paralegals to exploit and prey upon senior citizens with the creation and selling of unnecessary and often useless living trusts.

In this case The Estate Plan, a company operating in Texas and Arkansas, was hit with a $16 Million default judgment for fraud, unauthorized practice of law, negligence, breach of fiduciary duty and conspiracy.

The following update was added after receiving a letter clarifing some information that was reported incorrectly by other news sites.
NOTE and clarification of other reports on this topic.
According to M. Wade Kimmel who is counsel for CLA USA, Inc., CLA USA Insurance Services, CLA Marketing, CLA Estate Services, CLA insurance services, Charles Loper, Jr., Charles Loper, III, Steven Morgan Robert Reese, winning Strategies Marketing, Inc., Quest Staffing Group, Inc., James E. Bradshaw, Jr. Joel Carson, and Olaf Turek, his clients were not part of this suit and their case was severed and no longer associated with the default judgment mentioned above. Mr. Kimmel wrote to me that his clients case's are pending and his clients expressly denied the allegations in the suit.

Mr. Kimmel stated that the original suit involved his clients but that they were not properly joined and the court severed the cases. His clients were not involved in the default judgment. Any questions regarding M. Wade Kimmel's clients should be directed to him

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Posted In: Estate Planning , Living Trust

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Gerey Byer of the Wills, Trusts & Estates Professors Blog covered an article on ILITS which discusses issues with Irrevocable Life Insurance Trusts (”ILITs”) and some of the important issues of determining the proper trustee and which state law to use.

Martin M. Shenkman (Member, Martin M. Shenkman, P.C.) has written a new article entitled The Practical Planner: "Insurance Trusts (ILIT) Not So Simple", Feb. 2, 2009.

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Posted In: Estate Planning , Life Insurance Trust

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Our twitter feed http://www.twitter.com/guntrustlawyer has been named one of the Top 100 legal feeds

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Often a Florida Revocable Trust is not modified promptly upon a divorce. If the trust is subject to Florida law, Florida Statutes 736.1105 can amend the trust when the prior spouse is named as a beneficiary and the other spouse creates the trust.

736.1105 Dissolution of marriage; effect on revocable trust.--Unless the trust instrument or the judgment for dissolution of marriage or divorce expressly provides otherwise, if a revocable trust is executed by a husband or wife as settlor prior to annulment of the marriage or entry of a judgment for dissolution of marriage or divorce of the settlor from the settlor's spouse, any provision of the trust that affects the settlor's spouse will become void upon annulment of the marriage or entry of the judgment of dissolution of marriage or divorce and any such trust shall be administered and construed as if the settlor's spouse had died on the date of the annulment or on entry of the judgment for dissolution of marriage or divorce.

If you have a joint trust that was not addressed in a divorce decree or anulent or have recently been divorced, you should Contact a Florida Estate Planning Lawyer to review your trust to make sure that your ex-spouse is treated as per your intentions and not what your documents state.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Gun-Firearms Trust , Living Trust , National Firearms Gun Trust , Revocable Trust

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Jonathan G. Blattmachr, a partner at Milbank, Tweed, Hadley & McCoy LLP, has published "Reducing Estate and Trust Litigation Through Disclosure, In Terrorem Clauses, Mediation and Arbitration" in the Cardozo Journal of Conflict Resolution, 9 Cardozo J. Conflict Resol. 237 (2008).

He suggests six methods to reduce litigation.

1. Advise Inheritors of Inheritance Plans. Especially when children of the decedent are treated unequally, will contests and litigation arise from disappointed feelings of entitlement. Telling the children ahead of time what their shares will be may avoid a later dispute. Blattmachr even suggests that one could enter into a contract (for consideration) with such a person that he or she will not object to the validity of the document. (Of course, as Blattmachr says, "advising a child that he or she will not receive an equal share may have adverse effects even if it prevents litigation after death." You think?)

2. Use a Revocable Trust in Lieu of a Will. Since a revocable trust can be funded and operate during lifetime, it is difficult to contest on the grounds that the individual was unaware of its terms. When the Settlor of the trust dies, there is no need to begin a court proceeding to "prove" the validity of the trust, such as there is for a will.

3. Use an Irrevocable Trust in Lieu of a Will or Revocable Trust. An irrevocable trust is even less likely, in Blattmachr's view, to be challenged than a revocable trust. Irrevocable trusts can be drafted in such a way so that transfers of property to them are not completed gifts. Alternatively, making a transfer that is a completed gift, paying gift tax, and filing a gift tax return disclosing details may be additional evidence that the transfer was truly intended. Again, Blattmachr believes that a lifetime trust that is significantly funded is less likely to be challenged.

4. Use an In Terrorism Clause. If the testator lives in a state that will enforce it, an in terrorism clause (or disinheritance clause) could be used. Or the testator could direct that his will be probated in a state that does enforce such clauses. A lot of trust and estate litigation is not about the validity of the document, it is about its interpretation or about actions taken by the fiduciary. In order to reduce this type of litigation, an in terrorism clause can cause a forfeiture of a beneficiary's interest if such a challenge is made.

5. Use Mediation or Arbitration Provisions. Arbitration or mediation cannot be used with respect to the challenge of a document's validity unless the parties agree to it. Using an in terrorism clause to cause forfeiture if the parties will not participate can be used. This could stop claims that are filed only to harass other beneficiaries or to delay distributions to others. Another approach would be having the parties enter into a contract agreeing to arbitration before the transfer.

6. Use a Condition Precedent to a Bequest as an Alternative Method of Causing Participation in Mediation or Arbitration. Since a person cannot be forced to participate in arbitration or mediation unless the law provides for enforcement, consideration must be given to how to get parties to use these methods. One can use the carrot instead of the stick. Parties can be given a benefit if they consent to use arbitration or mediation instead of resorting to court.

When creating estate plans or trust documents it is important to consider the potential for litigation and whether it should be addressed prior to the death or after the death of the people creating it. While much can be done prior to death to resolve potential disputes and keep communications open, often issues only arise after the death of the trustees.

To discuss your estate plan with a Florida Estate Planning Lawyer and discuss what can be done to reduce the likelihood of estate and trust litigation Contact an estate planning attorney familiar with litigation issues.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Florida Probate , Probate Litigation , Probate Litigation , Trust Litigation , Trust Litigation

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Although these are difficult times and the experts acknowledge that we are in a recession it is just as important to plan for the future. The current economic situation may make the need for long term care planning even more important than in the past. My most recent newsletter discusses why planning needs should be and are unrelated to the economy in reference to

Disability and retirement planning;
Special needs Planning;
Beneficiary protection planning (for example, protection from divorce, creditors and/or perhaps the beneficiaries themselves); and
Second marriage and "blended family" protection.

If you would like more information on these issues please Contact Us to request a copy of the newsletter on these subjects.

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Posted In: Estate Planning

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Florida Estate Planning is important. Planning for Estate taxes has been part of our culture and one of the earliest examples and pointed out by Christopher Berry, of the Michigan Estate Planning Blog, is found when looking at George Washington's Will.

The estate tax has been part of our culture many times over the last 200 years. It has typically been used to help finance wars or the debts surrounding them. The last time the estate tax was enacted was in the early 1900's and it has been with us ever since. The current Federal Estate Tax is 45% on assets in excess of 3.5 million. With the current estate tax, the exemption is suppose to be changed over the next two years, but few expect the changes to happen. If the tax is not changed by congress there will be no limit next year and then in 2011 the number will drop to 1 million dollars.

An interesting fact I learned from an ex IRS agent in charge of the estate taxes was that the IRS spends around 15 billion a year to collect what is anticipated to be 20 billion in estate tax revenue. This does not seem like a very efficient use of 15 billion dollars. A few years ago many of us would have said - the IRS collects 5 billion, that is a good thing, but with the massive size of the recent bailouts of 700 billion and over 800 billion we might ask why we have an estate tax to collect such a small amount of money.

The current view is that the estate tax will be amended to keep the level of the exemption at 3.5 million. What is unknown is whether we will continue to receive a stepped upped basis and what the estate tax on the assets in excess of the exemption will be.

For a free review of your Florida Estate Plan contact a Jacksonville Florida Estate Planning Lawyer who has clients throughout the state of Florida, around the country, and and throughout the world.

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Posted In: Estate Planning , Wills

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A new concept in Estate planning is creating a trust to protect the families firearms. For the past few years the public has been using NFA Firearms Trusts for the purchase and protection of Title II firearms that are restricted by the NFA. Most gun enthusiast expect there to be a renewed ban on Assault Weapons that becomes permanent. To protect your families assault weapons, you might consider a new twist to the firearms trust - the Assault Weapons Trust. It might be a good idea to transfer your Assault Weapons into a Assault Weapons Trust before there is a ban on future transfers of these firearms.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Gun-Firearms Trust , NFA Trust , National Firearms Gun Trust

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One very useful Medicaid planning technique involves the creation of an irrevocable Medicaid Asset Protection Trust. With a Medicaid Asset Protection Trust a person or couple can transfer some of their property to the trust to hold and manage for their benefit during their live with the remainder paid to their family after their death.

Example: David and Beth have assets in their savings and stock accounts of $250,000. They currently live off income from their investments, social security, and other retirement benefits. They are concerned that if they need nursing home care they will not have enough money to support their lifestyle and pay for the medical expenses for the remainder of their life.

Solution: David and Beth decide to transfer $150,000 to a Medicaid Asset Protection Trust. The trust provides that all income is paid to them while alive and in the event one needs nursing home coverage under Medicaid the income is paid to the other. Upon the death of the surviving spouse, the trust will terminate and distribute the remainder to their children. By using this type of irrevocable trust their assets are protected and they receive an income stream for their lives.

Potential Problems: The gift to the Medicaid Asset Protection Trust can cause a period of ineligibility for Medicaid benefits. The length of the ineligibility period depends upon 1) the value of the assets given away and 2) The date the assets were given away. After the ineligibility period, the assets in the Medicaid Asset Protection Trust should be protected and not counted as a disqualifying asset for Medicaid planning purposes. In addition, this removes the assets from the reach of the spouses.

A Medicaid Asset Protection Trust is not for everyone, but it can be a means of protecting a family's financial security. These trusts can be complicated and must be tailored to the families resources and needs. It is important that you use a Florida Elder law attorney who is familiar with the Florida Medicaid laws and who has experience in creating this type of trust.

Please note: The Irrevocable Medicaid Asset Protection Trust is not the same as a "revocable trust", "revocable living trust" or "living trust" that is currently being sold through Trust Seminars.

Contact us by email or at (904) 685-1200 for more information.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning , Irrevocable Trust , Medicaid Asset Test , Medicaid Planning

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As our population continues to age, more and more individuals are concerned about how they will pay for care as they get older. Often individuals and families find that they are unable to take care of themselves and need assistance.

As medical costs have continued to rise, so have the costs of home health care. As a result we are seeing more individuals need the assistance of Medicaid. Too often we find individuals who have received advise from family members, friends, and professionals who do not understand Medicaid and only deal with elder law or estate planning issues. While it may be great to avoid the costs and fees associated with probate, what if you end up being disqualified from Nursing home coverage. This could cost far more than the savings on probate.

Florida is a great state to live at the time you need Medicaid coverage because of the large exemption allowed on one's home. Generally you can protect up to $500,000 of equity in a Florida homestead. Unfortunately in an effort to save a few thousand dollars many individuals transfer a partial ownership in the property to their children with rights of survivorship. Often this is done with a life estate deed.

This can cause many problems for the owner in the event they ever need nursing home coverage. There is way to accomplish similar results without risking the tax detriments, gifting issues, loss of control, and Medicaid eligibility - us a Florida Enhanced Life Estate Deed.

Michael Bonasera with the Ohio Trust and Estate Blog recently wrote a on a similar topic Avoiding Probate vs Avoiding Taxes vs Medicaid Eligibility

If you would like a review of your estate planning that takes into account Elder law, Medicaid planning, as well as probate and tax issues Contact a Florida Estate Planning Lawyer who is familiar with Estate Planning and Medicaid Planning

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Posted In: Elder Law , Estate Planning , Medicaid Planning

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One should be careful when leaving assets to someone who is in prison. They often have fines assessed against them and the assets can be taken for these fines. Sometimes it is beneficial to leave assets to the incarcerated persons heirs. While many trusts can be created to provide for creditor protection, these trusts usually fail when the government tries to take the assets. Often this happens with the IRS but it is logical to assume that the state could also take money from a trust offering asset protection.

As with most instances of Florida Estate Planning it is important to look at each families unique circumstances and dynamics to design aFlorida Estate Plan that addresses each families goals and objectives.

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Posted In: Estate Planning

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Forbes.com has an article on where not to die.

Sixteen states and the District of Columbia (shaded in red) impose their own estate taxes. The dollar amount exempted from tax (in black) and the top tax rate (in yellow) vary by state. Eight states (shaded in orange) levy an inheritance tax, meaning the tax rate (in black) depends on who gets the money. New Jersey and Maryland levy both types of tax.

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Posted In: Estate Planning , Florida Probate

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Bad will articles popping up all over the place

Seems like everywhere you turn these days there is another article on how Quicken and other online estate planning tools are a bad idea. I will begin to compile a list of other articles on this topic below my examples.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?
Do it yourself Estate Planning: Bad News Part 3
Do it yourself Estate Planning: Bad News Part 4
Do it yourself Estate Planning: Bad News Part 5
Do it yourself Estate Planning: Bad News Part 6
Do it yourself Estate Planning: Bad News Part 7
Do it yourself Estate Planning: Bad News Part 8
Do it yourself Estate Planning: Bad News Part 9

Others have covered this topic also

Would You Consider a Do-It-Yourself Estate Planning Kit? by Paul Rabilias
Do-It-Yourself Wills: Is the Cheap Way the Best Way? by Hull & Hull
Using Wills from the Internet or a Book NJ Estate Planning

Florida Probate cases often result when people try to make their own wills, or transfer their assets without getting professional help from a Florida attorney or Accountant who is familiar with the effects of gifting and estate planning.

If you have a personal experience with software that you would like others to know about Contact Us .

If you have used software, a form, or an online service to prepare your will, a deed, or other document, you Contacta Florida Estate planning Attorney or Florida Estate Planning Lawyer to review your documents for potential problems.

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The Wills, Trusts, and Estates Prof Blog had a posting from someone looking for interesting WIll issues. I thought some of my readers may be interested in contacting this person.

Hello,
I'm a researcher working on a documentary series about people's first-hand experiences with a family will. The project is being produced for a major US broadcaster.

The documentary explores various, unexpected family issues surrounding wills. We would like to showcase the powerful, true-life stories of family wills, in an effort to create a deeper awareness of the difficult subjects of legal wrangling, conflict, grief and deep-seeded dynamics that can often arise when the will of a loved one is read.

If you're interested in helping others reach closure on their feelings concerning a past will, or want to make sense of your own experience with a will, I would be very interested to hear your personal story. Thank you very much for generously sharing your story with me. You can email me.

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The following fifteen common assets and applicable beneficiary designations should be reviewed to make sure they will not be paid (or given) directly to the special needs child:

(1) IRA, 401(k) and other retirement benefits.
(2) Life insurance (including employer-provided life insurance) benefits.
(3) Accidental death and travel insurance benefits provided through credit cards when a person purchases a plane ticket, etc. using that credit card.
(4) Annuities.
(5) Savings Bonds.
(6) Any property not subject to the parents’ will or trust.
(7) UGMA or UTMA accounts.
(8) TOD, POD, ITF designations on accounts, savings bonds, or securities.
(9) Inheritances, gifts, or bequests through another person’s will or trust (if not paid to a third-party created and funded SNT).
(10) Deeds.
(11) Joint accounts.
(12) Jointly owned property, including jointly owned real estate.
(13) Final paycheck (including unused vacation and sick pay).
(14) Collectibles, antiques and family heirlooms.
(15) Personal injury and wrongful death proceeds payable to a parent’s estate (in contrast to personal injury and wrongful death proceeds payable, by law, directly to the special needs child).
(16) Homestead laws that give the surviving spouse a life estate and the minor children a vested remainder interest (as does Florida law in certain instances).

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The thirteen benefits of an inter-vivos stand alone third-party created and funded SNT are:

(1) The trust can be established by the parents (or by any third party, such as the grandparents) for the benefit of the special needs child.

(2) The trust provides for the investment and management of the special needs child’s inheritance by a third party - the trustee.

(3) The persons establishing the trust (such as the parents or grandparents) decide the terms and conditions of the special needs child’s inheritance and who is to receive the balance of the trust funds when the special needs child dies - rather than having to reimburse the government for Medicaid and/or “cost of care” benefits provided to the special needs child. One of the significant differences between a between a third-party created and funded SNT and a first party SNT is that there is no Medicaid payback requirement for a third-party created and funded SNT, and a third-party created and funded SNT should not contain a Medicaid payback provision.

(4) The trust does not have to be for the “sole benefit” of the special needs child; other children of the parents can be current beneficiaries (although it is generally recommended that the special needs child be the preferred beneficiary vis-a-vis the other current beneficiaries).

(5) The persons establishing the trust can name who should serve as the initial trustee and as the successor trustees, thereby avoiding the risk of the probate court appointing a “stranger” as a trustee.

(6) The trust avoids family conflict, since the trust spells out who gets what, when, how, and why.

(7) The trust avoids a probate court guardianship for the special needs child’s inheritance.

(8) The trust (if properly drafted and administered) maintains the special needs child’s eligibility for government benefits (assuming the child is otherwise qualified to receive government benefits).

(9) The trust coordinates government benefits and trust assets to meet the special needs child’s lifetime needs.

(10) The special needs child can be any age (i.e., the trust is not limited to a special needs child under age 65).

(11) The trust can provide for the appointment of an independent advocate for the special needs child, regardless of whether the child has a guardian, as well as a Trust Advisory Committee to advice the trustee concerning distributions for the benefit and well being of the special needs child.

(12) The trust protects the special needs child’s inheritance from being seized by his or her creditors, and avoids the imposition of a Medicaid lien.

(13) The trust can be “simple” or “sophisticated,” depending on the amount and type of assets that are used to fund the trust.

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The principal purpose of a third-party created and funded SNT is to provide an inheritance for the special needs child without risking the loss of important government benefits such as SSI, Medicaid, etc. Consequently, it is important that grandparents and other relatives (including the siblings of the special needs child) not leave an inheritance outright to a special needs loved one.

Fortunately a parent’s stand alone inter-vivos third-party created and funded SNT can be structured to receive gifts, bequests, and inheritances from grandparents (and other relatives/friends) for the benefit of the special needs child. This avoids the grandparents (or other relatives/friends) having to prepare a separate third-party created and funded SNT.

There Are Many Ways A Special Needs Child Can Receive An Outright Inheritance and Lose Means-Tested Government Benefits. A special needs child can receive an outright inheritance in indirect ways. For example, if the grandparent’s will leaves his or her estate to “my descendants, by right of representation,” and the parent of the special needs child predeceases the grandparent, actually or presumptively under the requirement for survival (typically 120 hours (or 90 days for GST tax purposes)), a portion of the deceased parent’s share of the grandparent’s estate will pass outright to special needs child, and possibly disqualify the child from receiving certain government benefits.

Another way, that is not so obvious for a special needs child to receive an outright inheritance, is when an unmarried adult sibling dies without children and leaves his or her estate to his or her “heirs” and the decedent’s parents are also deceased. In such instance, the decedent’s special needs sibling (as an heir of the decedent) will receive an inheritance.

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Posted In: Estate Planning , Special Needs Trust , Supplemental Needs Trust

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The trustee of a third-party created and funded SNT is given complete discretion in making distributions to or for the benefit of the special needs child. Thus, who should serve as the trustee of a third-party created and funded SNT is important.

The selection of the trustee involves many considerations, including the trustee’s ability to understand and respond to the needs of the special needs child; the trustee’s knowledge of government benefit programs and the effect that trust distributions will have on the special needs child’s government benefits; the trustee’s health, integrity, reliability and financial acumen; the trustee’s potential for a conflict of interest if the trustee is a current or remainder beneficiary of the trust; the potential for adverse income and transfer tax consequences if a family member serves as a trustee and is also a current or remainder beneficiary of the trust, etc.

Caution: Due to SSI and Medicaid rules and for various tax reasons, neither the special needs child nor his or her spouse should serve as trustee of either a third-party or first- party SNT.

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There are five estate planning options available to parents concerning their special needs child:

(1) Distributing assets outright to the special needs child (not recommended since the assets may disqualify the child from receiving means-tested government benefits);

(2) Disinheriting the special needs child (generally not recommended since the child will have no “safety net” if government benefits are subsequently reduced or eliminated);

(3) Leaving property to another family member with the “understanding” that the property will be used for the benefit of the special needs child (generally not recommended since the arrangement is not legally enforceable and the sibling’s creditors (including a potential ex-spouse) may be able to seize the assets);

(4) Establishing a third-party discretionary support trust for the special needs child (generally not recommended since the trust will, in many states, disqualify the child from receiving means-tested government benefits); and

(5) Establishing a third-party created and funded SNT for the special needs child (highly recommended since the trust will not disqualify the child from receiving means-tested government benefits).

If an irrevocable inter-vivos third-party created and funded SNT is established by the parents or grandparents, the parents’ (or grandparents’) wills should specify the source for the payment of any death taxes attributable to the trust if any part of the third-party created and funded SNT is included in the parents’ (or grandparents’) gross estate. These trusts should not include a Medicaid Benefits payback clause. If its not drafted properly you can create a requirement to reimburse Medicaid.

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Posted In: Estate Planning , Summary Administration , Supplemental Needs Trust

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Tax planning should not be ignored when preparing an estate plan that involves a special needs child.

There is a general (and incorrect) assumption among some estate planners that taxes are of little or no concern to families of special needs children.

Income taxes, estate taxes, gift taxes, and the confiscatory generation-skipping transfer (“GST”) tax should all be considered and dealt with when preparing an estate plan. Equally important are the income and transfer tax consequences of a special needs trust.

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Five Essential Estate Planning Documents For A Special Needs Family. At the minimum, a special needs child deserves a parent’s continued stewardship and guidance, even though the parent may be incapacitated or deceased. Therefore, the parents of a special needs child should typically have the following five estate planning documents prepared:

(1) Last will and testament.

(2) General durable power of attorney for financial affairs (“GDPA”). The parent’s GDPA should permit the agent to make discretionary non-support distributions to or for the benefit of the special needs child, and to establish a SNT for the benefit of the special needs child.

(3) Durable medical power of attorney.

(4) Revocable living trust. During a parent’s period of incapacity, the parent’s revocable living trust should contain language that permits the trustee to make discretionary non-support distributions to or for the benefit of the special needs child. Upon the parent’s death, the special needs child’s inheritance should be distributed to a third-party created and funded SNT previously established by the parent.

(5) Third-party created and funded SNT.

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In addition to the usual hurdles that parents face when preparing an estate plan (e.g., who should be the guardian, trustee, executor, etc.), the parents of a special needs child are faced with five unique estate planning challenges:

(1) How to provide for all of their loved ones without jeopardizing the special needs child’s current (or potential) eligibility for means-tested government benefits such as SSI and Medicaid;

(2) How to design an estate plan that supplements the special needs child’s means- tested government benefits and enhances the quality of the special needs child’s life;

(3) How to treat the other children equitably while adequately providing for the special needs child;

(4) How to make sure there are sufficient funds available at a parent’s death to care for the special needs child; and

(5) How to provide for the proper supervision, management, and distribution of an inheritance for the special needs child through a third-party created and funded SNT

When creating an Florida Estate Plan your lawyer should ask about special needs.

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There are at least seven options for family philanthropy, each of which has its own
strengths and weaknesses from tax, regulatory, and personal perspectives. Some are extremely complex while others are simple.

1. Private Foundation According to the IRS in 2006 65% of the 80,000 private foundations had assets of less than 1 million dollars. Biggest reason for forming a foundation is control over the assets and expenditure.

Advantages: 1) Charitable deduction for the gift. 2)Distributions to individuals and foreign charities. 3) Control of charitable distributions 4) Control of administrative and investment management decisions. 5) Memorializing the family. 6) Endowing the family’s charitable priorities while maintaining long-term flexibility. 7) Platform for family philanthropy. 8) Visibility and influence for family members. 9) Protection of assets from personal bankruptcy

Disadvantages: 1) Lower annual gift limitations. 2)Limitations on the value of some contributed assets. 3) Excise taxes on income 4) Costs of creation and ongoing management. 5) Investment restrictions. 6) Potential for personal liability. 7) Complicated rules and procedures

2. Type III Supporting Organization: A supporting organization (SO) is a separately-established public charity that makes distributions to or for one or more public charities. Since the SO exists solely to support the public charity, it derives its “public” tax-exempt status from its nexus to those charities rather than from meeting the public support tests on its own.

Advantages: 1) Full benefit of public charity deduction rules 2) Supporting organization administrative role 3)Supporting organization grantmaking role.

Disadvantages: 1) Supporting organizations under Congressional scrutiny. 2) Public status at risk with certain transactions. 3)Burden to establish support status 4) Less control than with private foundation 5) Ongoing Congressional involvement 6) Limits on payments to family members or related parties 7) Type III SOs subject to as yet to be determined mandatory distributions 8) Limits on family business holdings in Type III SOs

3. Donor Advised Funds A donor advised fund is created by making a charitable gift to a publicly supported charity to create a segregated fund over which the donor or named individuals reserve the right to make non-binding recommendations to the sponsoring charity on the charitable entities to receive the funds. In the past, traditional community foundations and Jewish community foundations were the primary sponsors of donor advised funds. Over the last fifteen years, however, commercially sponsored donor advised funds have become popular. Under the legal definition established under the Pension Protection Act of 2006, a donor advised fund has the following three characteristics:

• A fund identified by reference to one or more donor contributions;
• Which is owned and controlled by the publicly supported (sponsoring) entity; and
• Over which the donor(s) has a reasonable expectation to advice on distributions or
investments for the amount (because of his status as donor).

Advantages 1) Funds managed by charitable sponsor/manager. 2) Staff resources support grantmaking. 3) Anonymous giving possible

Disadvantages 1) Loss of control 2) Institutionalized nature of fund may extend for only one or two generations below the donor 3) New limitations and requirements for charitable deduction. 4) Limitation on distributions from the advised fund. 5) Limitation on holdings through application of the excess business holdings rule. 6) Penalties for taxable distributions. 7) Penalties for more-than-incidental benefit distributions. 8) Penalties for excess benefit transactions

4. Charitable Lead Trust A charitable lead trust is an irrevocable trust that creates an income, gift, and estate tax charitable deduction for the present value of amounts irrevocably set aside for one or more charities over the term of the trust. When there is greater than a 5% probability the assets will be returned to the grantor at the end of the trust term, it is treated as a grantor trust. The donor is entitled to a charitable income tax deduction for the charitable portion in the year of gift but is taxed on the undistributed income and gains in the trust over its term. When the trust is structured to distribute the assets to family members or other individuals at the end of the trust term, the donor is entitled to a gift or estate tax deduction for the charitable portion of the transfer and the trust is taxed as a complex trust, responsible for payment of taxes on undistributed income.

Advantages 1) Platform to combine personal and charitable goals. 2)Current environment attractive to lead trust gifts. 3) Short-term foundation substitute 4)Short-term foundation substitute. 4) • Long-term philanthropy funding mechanism

Disadvantages 1) Complex trust tax rates. 2)Prohibited transaction rules apply. 3) Donor involvement limitations when lead trust funds private foundation

5. A “Charitable” Revocable Trust A “charitable” revocable trust is simply a revocable trust used for family philanthropy. The Donor funds the revocable trust with dollars that will be used to make charitable gifts. The trust adopts by-laws and operating procedures that bring the family together as trustees or an advisory board for the purpose of making distributions. And the donor – without creating an expensive, irrevocable structure– can engage in the process of teaching younger generations about philanthropy, engaging the family in philanthropic impact, and benefiting the community. In addition, the donor can add a testamentary provision that distributes any remaining assets to a donor advised fund, a private foundation, or any of the other philanthropic entities discussed here to perpetuate that giving.

Advantages: 1) Control and use of assets during life. 2)Platform to engage and train family members. 3) Little or low cost to create 4) Flexibility in determining charitable form at death. 5) Income, gift, and estate tax charitable deductions. 6) Discount and defer transfers to heirs

Disadvantages: 1) There is no immediate charitable deduction for assets transferred to the trust. 2) Assets set aside for charity not protected

6. Partnership With the Charity Sometimes donors do not need to create a separate entity, especially when charitable interests are focused narrowly on a single charity. In these instances, the donor may want to engage family members to fund a program over a defined period of time (or lifetime) or may want to create a permanent endowment using family members to provide ongoing advice and counsel.

Advantages: 1) Public charity tax benefits. 2) Achieving specific results and controlling the terms. 3) Flexibility to stop funding. 4)Louder voice. 5) Meeting goals.

Disadvantages: 1) No tax disadvantages. 2) For short-term projects, no ongoing pool of funds. 3) Potential lack of family interest.

7. Informal or Kitchen Table Philanthropy

Advantages: 1) Direct engagement with and training of family. 2) Flexibility. The arrangement is as flexible as the donor’s goals and objectives. 3) Ability to adjust annual contributions based on convenience, the economy, and need. 4) Ability to “test drive” and determine priorities

Disadvantages: 1) Temporary structure. 2)Avoids experience with administration

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Seven states have enacted statutes that permit a trustee with discretion to distribute principal of a trust to exercise the discretion by transferring principal to a new trust, which may have terms different than the original trust. They are Alaska, Delaware, Florida, New Hampshire, New York, South Dakota and Tennessee.

Main issues for using Decanting statutes:

1. The discretion the trustee of the first trust must have to use the
statute;
2. The permissible beneficiaries of the second trust;
3. Interests in the first trust that are protected from change;
4. The ability of a beneficiary-trustee to exercise a decanting power;
5. Whether the statute permits transfer to a trust in another state
and/or applies to trusts that move into the state; and
6. The effect of decanting under the rule against perpetuities.

Florida statute for decanting Fla. Stat. §736.04117 (2007)

§736.04117. Trustee’s power to invade principal in trust

(1)(a) Unless the trust instrument expressly provides otherwise, a trustee who
has absolute power under the terms of a trust to invade the principal of the trust,
referred to in this section as the “first trust,” to make distributions to or for the benefit
of one or more persons may instead exercise the power by appointing all or part of the
principal of the trust subject to the power in favor of a trustee of another trust, referred
to in this section as the “second trust,” for the current benefit of one or more of such
persons under the same trust instrument or under a different trust instrument; provided:

1. The beneficiaries of the second trust may include only
beneficiaries of the first trust;
2. The second trust may not reduce any fixed income, annuity, or unitrust interest in the assets of the first trust; and
3. If any contribution to the first trust qualified for a marital or charitable deduction for federal income, gift, or estate tax purposes under the Internal Revenue Code of 1986, as amended, the second trust shall not contain any provision which, if included in the first trust, would have prevented the first trust from qualifying for such a deduction or would
have reduced the amount of such deduction.

1 (b) For purposes of this subsection, an absolute power to invade principal shall include a power to invade principal that is not limited to specific or ascertainable purposes, such as health, education, maintenance, and support, whether or not the term “absolute” is used. A power to invade principal for purposes such as best interests, welfare, comfort, or happiness shall constitute an absolute power not limited to specific or ascertainable purposes.

(2) The exercise of a power to invade principal under subsection (1) shall be by an instrument in writing, signed and acknowledged by the trustee, and filed with the records of the first trust.

(3) The exercise of a power to invade principal under subsection (1) shall be considered the exercise of a power of appointment, other than a power to appoint to the trustee, the trustee’s creditors, the trustee’s estate, or the creditors of the trustee’s estate, and shall be subject to the provisions of s. 689.225 covering the time at which the permissible period of the rule against perpetuities begins and the law that determines the permissible period of the rule against perpetuities of the first trust.

(4) The trustee shall notify all qualified beneficiaries of the first trust, in writing, at least 60 days prior to the effective date of the trustee’s exercise of the trustee’s power to invade principal pursuant to subsection (1), of the manner in which the trustee intends to exercise the power. A copy of the proposed instrument exercising the power shall satisfy the trustee’s notice obligation under this subsection. If all qualified beneficiaries waive the notice period by signed written instrument delivered to the trustee, the trustee’s power to invade principal shall be exercisable immediately. The trustee’s notice under this subsection shall not limit the right of any beneficiary to object to the exercise of the trustee’s power to invade principal except as provided in other applicable provisions of this code.

(5) The exercise of the power to invade principal under subsection (1) is not prohibited by a spendthrift clause or by a provision in the trust instrument that prohibits amendment or revocation of the trust.

(6) Nothing in this section is intended to create or imply a duty to exercise a power to invade principal, and no inference of impropriety shall be made as a result of a trustee not exercising the power to invade principal conferred under subsection (1).

(7) The provisions of this section shall not be construed to abridge the right of any trustee who has a power of invasion to appoint property in further trust that arises under the terms of the first trust or under any other section of this code or under another provision of law or under common law.

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Some of the common issues with naming beneficiaries on retirement accounts:
1) Make sure you name a beneficiary on a retirement account or estate will become beneficiary.
2) Multiple Beneficiaries on accounts can cause problems because all Beneficiaries must take the ADP of the oldest beneficiary
3) Lump sum distribution requirements- can be transfered to IRA.
4) If the beneficiary is a see through trust, then each beneficiary of the oldest beneficiary.
5) if the beneficiary is older than the participant, the life expectancy of the participant is used.

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We previously reported that there were no RMD (required minimum distribution) in 2009. This turns out not to be trust in at least one case. If you turned 70.5 in 2008 and did not make your RMS in 2009 as required. You must still make your RMD by April 1, 2009

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The University of Miami School of Law’s Heckerling Institute will host the 43rd Annual Estate Planning Conference from January 12 –16, 2009 at the Orlando World Center Marriott Resort & Convention Center.

The Heckerling Institute on Estate Planning is the nation’s leading conference for estate planning professionals. As the largest gathering of its kind in the country, the conference is designed to meet the educational needs of sophisticated attorneys, trust officers, accountants, insurance advisors, and wealth management professionals.

This year, the Institute offers a new series of programs focusing on the estate planning and administration issues associated with retirement plan benefits. The comprehensive series will provide registrants with a thorough understanding of the planning techniques involved in this growing practice area. This year’s Institute will also address the planning issues and opportunities presented by recent economic developments, changing demographics and the prospect for wealth transfer tax legislation in 2009. Conference sessions such as “Planning for the Unknown for 2010 and Beyond” and “Estate Planning for the Next Generation of Clients” reflect these timely concerns.

The Institute offers a unique opportunity to exchange ideas and network with leading estate planning professionals from around the country. The conference also offers the opportunity to review the latest in technology, products and services displayed by nearly 150 vendors in an exhibit hall dedicated entirely to the estate planning industry. Register for the conference at http://www.law.miami.edu/heckerling or call (305) 284-4762 for more information.

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Professor Gerry Beyer, author of the WIlls, Trust & Estates Professor Blog wrote an article where a Texas court admitted a copy of a will which gave most of the assets to the decedents sister instead of the children. The will had been seen shortly before the decedents death and many people had access to it. Normally, if a will was last seen in the decedents possession and cannot be found the Florida Will is presumed to have been revoked by the decedent. But his presumption can be overcome as it was in this Texas case.

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Posted In: Administration , Estate Planning , Florida Probate , Probate Litigation , Probate Litigation

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I have begun seeing attorneys advertise on Craigslist. Here is the latest one in San Francisco.
This San Francisco Estate Planning Lawyer is offering a 25% off on California Estate Planning.

I have tended to take a different approach and price my services at lower fixed rate than many of the Jacksonville Estate Planning Lawyers. I am interested to find out If you would check craigslist for a lawyer ? If so please Le me know.

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A common question with Florida Estate Planning is whether an adult who is adopted is considered a child. We often recomend that out clients places language in their Florida Wills or Florida Revocable Trusts that deal with these issues. The typical language deals with adopted children above or below a certain age. Most people want to consider children adopted at a young age the same as a child who is naturally born. Occasionally it is necessary for an adult to be adopted. This can happen to provide medical coverage or for other reasons. In these cases, individuals may not want to consider these adopted individuals the same as their naturally born or younger adopted children.

Gerry Beyer of the Wills, Trust & Estate professor Blog wrote an article on a Texas case where the court found that an adopted adult is not treated as a descendant. Gerry points out that this ase seems to be one where the court struggled with the facts and created bad case law to deal with the facts in the case.

Garry's moral is one that should be used in all estate planning documents. When making gifts to classes such as “children,” “grandchildren,” and “descendants,” settlors and testators should indicate whether adopted children are included and if adopted children are included, the age by which they need to be adopted to be included in the class.

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There seems to be articles misquoting the Suspension of RMDs by Congress. Congress has not suspended the 2008 RMDs. As of this time The Worker, Retiree, and Employer Recovery Act of 2008 is awaiting the President's signature.

One of the provisions of the bill is the suspension of required minimum distributions (RMDs) for 2009 ONLY.
This applies to all RMDs from IRAs and employer plans for account owners AND beneficiaries. This temporary suspension will not affect an individual’s required beginning date. An individual who turns 70 ½ in 2008 and chooses to defer their first distribution to April 1, 2009 must still take that distribution.

Non-spouse Beneficiary Rollovers from Employer Plans Made Mandatory
A non-spouse beneficiary direct rollover provision mandatory for employer plans. All employer plans will be required to allow these direct rollovers to properly titled inherited IRAs after December 31, 2009.

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Senior citizens in Florida are being warned to think before going to financial planning seminars and estate-preservation workshops that offer a “free lunch” or "free dinner" to lure seniors to attend.

The Florida AG's Office has received more than a dozen complaints from seniors enticed to attend a free meal that actually turned out to be a high-pressure sales pitch for investments that may be entirely inappropriate based on age and financial circumstance.

In quoting Attorney General Bill McCollum, the Naples Daily News reported that “The last thing our seniors need during this economic climate when their retirement savings may be dwindling is an investment scam that further depletes that nest egg”. “Too many of our seniors are finding that these free meals can cost them dearly.” The invitations often arrive by phone or mail and promise tips on earning great financial returns with minimal risk, eliminating taxes or avoiding probate. After a high-pressure presentation, salespeople then try to schedule follow-up visits in the homes of those who attend so they can continue the pitch. In addition to losing money, consumers who complained to the Attorney General reported being badgered by many unsolicited phone calls and frustrated by misrepresentation of the seminar’s purpose.

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The UPC or Uniform Probate Code has been modified to accept a Notarized Will as valid. Lawrence W Waggoner, wrote an article "The UPC Authorizes Notarized Wills", 34 ACTEC 83 (Fall 2008). (This article was brought to my attention by Gerry Beyer of the Wills, Trust & Estate professor Blog)

The article begins by reviewing the history of attested wills which were derived from the English Statute of Frauds Act of 1837. The requirements state that the will must be (1) in writing, (2) signed by the testator, and (3) witnessed by attesting witnesses. The UPC also popularized the concept used in Florida of self-proved wills. A self-proved will allows the testator to execute a will and attach an affidavit to the will, notarized and signed by the testator and the attesting witnesses.

In 1990- the UPC adopted another new concept, the harmless error rule. Under the harmless error rule, a will that does not strictly comply with the statutory requirements for an attested will is treated as if it had been properly executed if the will is proved by clear and convincing evidence that the decedent intended the document to be his or her will. So far Colorado, Hawaii, Michigan, Montana, New Jersey, South Dakota, Utah, and Virgina have adopted statutes based upon the Harmless-Error Rule.

In 2008, the UPC added Notarized Wills so that a will that is in writing, signed by the testator, and notarized is valid. The rational behind this is that the notary provides the same protections and removes the danger of reliability that is present with wills that are not witnessed by two attesting witnesses and that a Notarized Will is a logical an extension of the harmless error rule.

The UPC and many Non-UPC states authorize holographic wills ( Florida does not recognize a holographic will unless it also complies with the Florida statute of wills)

The article goes on to state that often lawyers who prepare a package of estate planning documents often miss a signature on one or more documents and the ability to use a notary protects the clients and the attorney from the mistakes and consequences associated with the improper execution of the a will. In addition, the Notarized Will option would benefit individuals who attempt to execute wills on their own. Given the high likelihood of errors in these wills it is hard to determine if this is a benefit or not.

If you would like a will reviewed in Florida contact a Florida Estate Planning Lawyer.

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Posted In: Estate Planning , Wills

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A Michigan Estate Planning Lawyer Blog has written another article on Problems with Michigan Trust Kits. While we have reported on these issues many times in Florida, there appear to be similar problems in other states. Christopher Berry, a Michigan Estate Planning Attorney, points out that Michigan citizens have lost over $200,000 because of poorly drafted Revocable Trust .

In addition, many of these Estate Planning Kits do not take Elder law issues into account when filling out the generic forms for individuals and their families. Please contact a Florida Estate Planning Lawyer to discuss your individual needs.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Elder Law , Estate Planning

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Life insurance is counted as part of your taxable estate. Many people understand that life insurance is income tax free to the beneficiaries, but the do not know that the proceeds of a life insurance policy are usually counted as part of the decedent's estate for Federal Estate Tax purposes.

This increase in the taxable estate can often lead to estate tax or a death tax being due. 1,000,000 in life insurance can create as much as a $450,000 tax bill for the estate. To avoid this many individual create an Irrevocable Life Insurance Trust or ILIT. An Irrevocable Life Insurance Trust is a type of Florida Revocable Trust that is designed to hold and own life insurance policies. Once the ILIT is created you transfer ownership of your life insurance policies or purchase new policies in the Irrevocable Life Insurance Trust. By giving up all "incidents of ownership" over the policies the benefits of the policies are not part of your taxable estate when you die.

To find out how an Irrevocable Life Insurance Trust can benefit you Contact a Florida Estate Planning Lawyer to discuss your situation.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Death Taxes , Estate Planning , Estate Taxes , Life Insurance Trust , Life Insurance Trust , Tax issues

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If you are a Trustee or Guardian over property in Florida There are many things to consider when remodeling or purchasing an older home, which is common in the real estate industry.

I recently became aware of problems with some homes built before 1980 because they have a strong likelihood of containing asbestos. Due to a steady progression of technology and green sustainable methods, there are many ways to ensure your home or property is asbestos free. If you are interested in saving money, remodeling and improving your carbon footprint, here is some information that I found to help you get on the right track.

Asbestos insulation was used in millions of homes throughout the last quarter of the 20th century and can become a real dilemma for homeowners due to a variety of health problems, including malignant mesothelioma and a variety of other lung ailments. Mesothelioma takes the lives of thousands of people each year and has lead to a variety of mesothelioma lawyers throughout the nation. Manufacturers of asbestos products knew about the harmful effects of asbestos and continued manufacturing the products anyways.

Non-regulated asbestos material can be legally performed by homeowners, regular contractors, or licensed asbestos abatement contractors as long as the National Emissions Standards for Hazardous Air Pollutants (NESHAP) are not violated. Asbestos removal in public facilities, homes and workplaces must be undertaken by a licensed asbestos abatement contractor. Once the removal is complete, green insulation options should be given serious consideration, such as: Cellulose, Cotton Fiber and Lcynene.

The United States Green Building Council (USGBC), in a study conducted in 2003, estimated a savings of $50-$65 per square foot for well-constructed green buildings in the U.S. (see table below) during that year. The numbers continue to improve as more eco-friendly options become available, and those kinds of figures have finally begun to attract those who thought eco-friendly construction was just a bunch of hogwash.

If you are involved with property in Florida as a fiduciary, you may want to check out these resources to protect the assets. To discuss your potential liability, Contact a Florida Estate Planning Lawyer.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Powers and Duties , QPRT

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a Florida Revocable Trust is a trust created during the life of an individual which can be modified, amended, or revoked at anytime during their life. Often they are used to:

1. avoid Florida Probate;
2. Keep your assets and decisions private;
3. Simplify after death distributions;
4. Increase the amount of the estate tax exemption for a couple;
5. Simplify the management of the beneficiary designations on property and other assets; and
6. Keep property separate in the case of a divorce.

A Florida Revocable Trust cannot be changed after the trust is created. A Florida Revocable Trust becomes irrevocable after the Settlor or Grantor dies. Florida Revocable Trusts are often used for:

1. Estate tax reduction;
2. Removing Life insurance proceeds from one's taxable estate;
3. Asset protection for the creator;
4. Asset protection for the beneficiaries;
5. Charitable Estate Planning; and

To determine what type of Florida Trusts would be best for you, you could Contact a Florida Trust Attorney or a Florida Estate Planning Lawyer

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Irrevocable Trust , Living Trust

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The Emergency Economic Stabilization Act of 2008 temporarily raises the basic limit on federal deposit insurance coverage (FDIC) from $100,000 to $250,000 per depositor. WARNING the basic deposit insurance limit will return to $100,000 after December 31, 2009.

The rise in insurance coverage applies to most trust accounts with no more than five beneficiaries.

Some benefits of establishing a Florida Revocable Trust include of avoiding probate, transfer upon death of property,reduced taxes, and privacy.

A Florida elder law attorney or Jacksonville Estate Planning Lawyer can help you determine whether your trust accounts are adequately insured or tell you whether your situation merits setting up a trust.

To discuss ways to reduce your estate taxes, avoid probate, and make the transfer of assets upon your death easy for your family and friends Contact a Jacksonville Estate Planning Attorney

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Florida Probate , Living Trust , Revocable Trust

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The FDIC has extended FULL insurance coverage to all Florida IOTA trust accounts, regardless of amount on deposit or number of clients. The unlimited FDIC insurance is available at all financial institutions that participate in the FDIC's Transaction Account Guarantee Program. Please make sure that you comply with the trust accounting rules by placing all short term or nominal funds of clients and third parties in your IOTA trust account. Those funds, which are incapable of generating income for individuals, in excess of the costs to secure that income, are pooled in IOTA accounts the interest from which provides legal services for the poor and other law-related public interest programs approved by the Florida Supreme Court. If you have any questions about your ethical responsibilities relating to your trust account, please call the Bar's Ethics and Advertising Department at (800) 235-8619. If you have any questions about the mechanics of setting up an IOTA trust account or how the IOTA funds are used, please call The Florida Bar Foundation at (800) 541-2195.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Business Law , Elder Law , Estate Planning

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The 2009 IRS annual gift tax exclusion is increasing form $12,000 to $13,000 for 2009.

This increase means that more money can be given away for estate tax planning purposes. For example, a married couple with two married children will be able to give away up to $104,000 in 2009 with no gift tax implications.

To discuss other ways of moving funds to your family or friends in order to reduce the effects of estate taxes, Contact a Florida Estate Planning Lawyer

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Annual Gift Tax Exclusion , Estate Planning , Tax issues

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In Florida, if you were married when a will was created by your spouse, a subsequent divorce will treat you as predeceasing your spouse in most cases. Even if you were living with your ex spouse, engaged, or had a new wedding date planned, a will executed before the divorce would not be valid in regards to anything devised from a person to his or her ex-spouse.

It is possible to talk with the family and if they agree, the beneficiaries can work together with the ex-spouse to provide assets after the death. The ex-spouse has no legal right to receive assets but it can be negotiated in a friendly arrangement.

If you are an ex-spouse who was friendly with their ex, contact a Florida Estate Planning Lawyer to discuss your options.

if you have been divorced or reacquainted with someone from a prior marriage, it is important to update your Jacksonville Estate Planning Documents to reflect your current intentions.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Beneficiary , Estate Planning , Florida Probate , Wills

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I recently receive a copy of Quicken Willmaker 2009. I have previously written about many articles about the unintended results that occur with Do It yourself and Free Estate Planning Documents created by individuals without the advice of counsel and the problems with online document preparation services like LegalZoom and RocketLawyer.

I decided to try out a few of the documents in Quicken to see if they had improved the quality and accuracy of their Florida documents. Last week I wrote about problem with the Quicken Willmaker 2009 Durable Power of Attorney. This week I will be looking a the Revocable Living Trust. I have previously written about the many problems in using Quicken to create a Firearms Trust but for this article I will be focusing on the typical issues with regular estate planning and living trusts.

1. No free updates and old language, in order to keep your trust up to date, you need to purchase the software every year and hope they have dealt with changes in your state laws. Quicken seems to be slow at incorporating small or significant changes in the law. The changes in the new trust code from Florida in the years 2006 and 2007 have not been incorporated into the software. Quicken does not let you know what years statutes its language is based upon. Quicken states that when their users report problems they try to fix the program. Unfortunately, their users are not lawyers, and their users never find out about the problems. Their family may find problems when it is to late to make changes, but they have no way to ask, nor to they attempt to ask the beneficiaries to report problems.

2. Review your document is advice given to the users by Quicken. Quicken's instructions also state to make sure that your document says exactly what you want it to. Although Quicken recommends that you have your document reviewed by an attorney, they neglect to mention that useful advice in their instructions under the review section. Living trusts are complicated documents, how the state law interprets the language you choose is complicated. Lawyers have differing interpretations, how can a non-lawyer pretend to understand what the outcome of the language they choose will be. Want proof of this, check out Do It yourself and Free Estate Planning Documents and see some of the results that have occurred when users attempted to make their own trusts and wills.

3. Register your trust with the court? Quicken incorrectly advises that you must register your living trust with your local court. Although there are some states that do require this they incorrectly state that it is a requirement in Alaska, Colorado, Florida Hawaii, Idaho Maine, Michigan, Missouri, Nebraska, and North Dakota.

4. Quicken WillMaker Doesn't Provide Legal Advice. The instructions state later that Quicken published legal forms that are useful in many situations but they can not tell you whether or not a form is right for you, given your circumstances. Only a lawyer can do this and you should consult a licensed attorney in your state.

The Trust

5. Part 2 of the trust declares that the assets mentioned in the trust have been delivered. While this may work for an assignment of interest, anything requiring a deed can not be transferred by this language. Individuals should not rely on this misleading statement and believe that their assets are transferred because they sign a sheet of paper that states that they have.

6. Revocation and Amendments: The Quicken trust allows revocation after one of the grantor's dies. Typically a revocable trust becomes irrevocable and cannot be changed once a settlor or grantor dies. Quicken does make this distinction when dealing with an amendment and states that the trust cannot be amended once a Grantor dies. I am not sure why or how they allow a trust to be revoked by not amended after the death of a Grantor.

7. Amendment by power of attorney: Florida case law states that a trust must specifically allow for amendment by a durable power of attorney, and the durable power of attorney must authorize the act specifically. The quicken trust includes language that the trust shall not be amended by an agent unless the document creating that power authorizes the amendment. This may or may not comply with the case law. It would be simple to ensure that it did comply compared to the language that is used.

8. Income. The Grantors are required to take all income from the trust at least annually. It would seem that this creates assets that are subject to probate and may not be what the individuals desire.

9. Successor Trustee. The successor trustee is chosen automatically but there does not appear to be an ability for someone else to choose a more appropriate trustee at the time one is needed. Quicken does give the last serving trustee the ability to appoint a new trustee if the successor trustee is unable or unwilling to serve. What happens if the trustee ceases serving because of death, who would have the power to appoint a new trustee? Quicken leaves this question unanswered.

10. Compensation. While Quicken allows for several choices for compensation, their no compensation choice does not contemplate the need to have a professional or corporate trustee.

11. Powers. The Quicken trust states that the trustee has all the authority and powers allowed or conferred on a trustee under Florida law. They do not tell you what these powers or authorities are or where to find a list of them. Also are they the powers granted when the document was signed, or when one goes to use the powers. While this may not seem important one should consider the substantial changes made in the area of a trustee's powers within the last 2 years in Florida.

12. Incapacity: Quicken gives the power to determine incapacity to a person, rather than a court conservator or guardian, or physicians. Under this trust it would be very easy for your children or whom ever you select to declare you incapacitated, remove you a trustee, and appoint a successor trustee of their choice.

13. Beneficiaries. Although quicken does appear to do a better job of checking the names of a beneficiary to make sure it is not a grantor, they only look for an exact match and do not question names that are close or provide a warning for any name. I found that it was possible to name yourself as your own beneficiary using a slightly different name, misspelling, or middle initial. This creates several problems and can void the trust.

14. Survivorship. The quicken trust voids a gift to a beneficiary if that beneficiary dies within 120 hours. This can cause some big problems when there are large unpaid medical bills related to the death of a beneficiary. To deal with this issue completely you should contact an estate planning lawyer.

15. Spendthrift provisions. Quicken does not make a mistake in this area because they do not address the concept.

16. Property transfer. Quicken does not address the potential for a re-evaluation of property taxes upon the transfer of a piece of property into the trust when the names on the trust are different than the current title on the property. Nor does quicken address the requirement that taxes may be assessed.

17. Choice of law, venue, arbitration, required notices under Florida Trust code. Quicken does not address these, perhaps they are not important. Whether that is true depends on your circumstances and what happens in the future, where you live when you die, where your beneficiaries live when you die. I personally feel that every trust should address these issues including the requirements of the new Florida Trust code, but if you use Quicken you will not have the benefit of these provisions either.

There are many mistakes in the Quicken documents, most disturbing might be some of the things that are not included in a Quicken trust. Quicken gives none of the flexibility to a trust that make it useful for the common person. A trustee under a Quicken trust could not do anything without creating liability to a beneficiary because by default they must act as a prudent trustee. If you have a trust created by Quicken 2009, 2008, 2007 or a previous version, you should have it reviewed by an estate planning lawyer. If you are in Jacksonville or anywhere in Florida Contact us about reviewing your Quicken Revocable Trust.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Durable Power of Attorney , Estate Planning , Revocable Trust

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I recently receive a copy of Quicken Willmaker 2009. I have previously written about many articles about the unintended results that occur with Do It yourself and Free Estate Planning Documents created by individuals without the advice of councel and the problems with online document preparation services like LegalZoom and RocketLawyer.

I decided to try out a few of the documents in Quicken to see if they had improved the quality and accuracy of their Florida documents.

Problems and issues I encountered with the Quicken Durable Power of Attorney.

1) Willmaker 2009 now attempts to verify duplicate names but only catches them in the event that they are spelled exactly the same, they do no use any fuzzy logic to find and warn about names that are close. For Example David Goldman could be the agent for Dave Goldman, David M. Goldman, or David Michael Goldman. Although it will catch an exact duplicate, this problem allows for potentially invalid documents to be created.

2) The instructions suggest that the DPA must be filed at the courthouse to become effective, this is not true in Florida.

3) The instructions suggest that a revocation is not effective unless you file it with the courthouse and notify anyone who has a copy with the revocation. Although this is a good idea, the point of filing it with the courthouse is to put the world on notice. It is impossible to know everyone who would have received a copy or acted upon the validity of a Durable Power of attorney in the past. This can cause the individual to spend more than $120 in unnecessary filing fees.

4) The document does not comply the the Florida Statutes for Durable Powers of Attorney and as such the individual or agents have no right to sue and collect costs and fees associated with the improper denial of authority granted under the Durable power of attorney.
5) The document is effective upon the execution of the agreement, there is no option for deployment contingent (becoming effective upon incapacity), nor is there an option to limit the time that the document will be effective for. This is significant problem because it assumes that everyone wants to grant their agent the power to do anything they want and right now. In fact, very few individuals want to grant this type of power, and most who initially do, change their mind after learning what they will be doing from an attorney.

6) Their instructions warn that their conversion utility may not make an accurate conversion to Microsoft Word or RTF formatting so you need to verify that the versions are the same. This seems like something that they should have done prior to releasing the product to the public.

7) They inaccurately state that the witnesses signatures must appear on the same page as yours.

8) they do not save the footers and suggest that you break each section into a unique document and insert footers with the instructions found in the manual. This is not necessary and for most documents the footers are unnecessary and not a requirement of Florida Law.

9) States that the agent must have the original Durable Power of Attorney to act. A copy of the Durable Power of attorney is just as valid as the original. In fact, if you follow their MANDATORY (but not really mandatory) instructions of filing the document in the county records the original may be kept they the county.

10) They recommend asking your Agent not to use it unless your incapacitated. There is no requirement for them not to act, and no liability for the agent if he does act. This is not the proper way of dealing with this issue under the Florida Statutes.

11) They do have a nice warning which states that if you do not understand anything about this document you should ask a lawyer to explain it to you. We are not sure if that warning is intended for the agent or the principal.

12) Quicken appears to have a provision which creates a Pre-Need Guardian designation within their power of attorney. Typically this is a separate document which is filed in the county records. Although, if you file the recommendation and file the document in the county records, there would appear to be a public record of this request, it might be overlooked or ignored by the court because it is hidden inside a power of attorney. In addition, by statute, a DPA becomes ineffective once you receive notice of a pending petition for guardianship. This would appear to make your nomination invalid during that time.

SUMMARY: While the Quicken WIllMaker can produce a valid Durable Power of Attorney in Florida banks, businesses, and others can refuse to honor it without liability because it does not comply with the Florida statutes. You can also create invalid document, will unnecessarily spend more than an additional $120 in state filing fees, create a potentially invalid pre-need guardian selection, and expose yourself to unnecessary risk and liability.

Conclusion: For around the same price as the software and the recording fees, you can have an attorney discuss your needs and draft a document that provides you additional protections that comply with Florida law. In addition, for most people a deployment contingent Durable Power of Attorney is what is needed compared to the higher risk document created by Quicken. There are many mistakes and misguidance found within the generic documents created by the software package.

If you are looking for a Free or Low cost Durable Power of attorney, it may be less expensive and a better value to contact a Florida Estate Planning Lawyer.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Durable Power of Attorney , Estate Planning

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The provision allowing IRA owners over age 70 ½ to transfer up to $100,000 of their IRA directly to charity has been RETROACTIVELY extended through the end of 2009 (as if it never expired).

This provision was part of the massive bailout legislation officially known as the “Emergency Economic Stabilization, Energy Improvement and Extension, and Tax Extenders and AMT Relief Acts of 2008”

It is so far being referred to in the short version as The “2008 Economic Stabilization Act”

H.R. 1424 was signed into law by the President on October 3, 2008.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning

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In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court stated to raise the presumption of undue influence, a plaintiff must show a confidential relationship between the donor and the donee and active procurement of the gift. Because courts have found that a confidential relationship exists in most relationships, the real issue comes down to active procurement of the gift. Recently Patrick Lannon wrote a summary of case law on the topic for the Florida Bar journal. Carpenter gives a list of seven factors of active procurement of a will, the:

1) presence of the beneficiary at the execution of the will;
2) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
3) recommendation by the beneficiary of an attorney to draw the will;
4) knowledge of the contents of the will by the beneficiary prior to execution;
5) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
6) securing of witnesses to the will by the beneficiary; and
7) safekeeping of the will by the beneficiary subsequent to execution.

1) the donee’s level of involvement in the donor’s affairs;
2) the donee’s level of involvement in the actual gift in question;
3) the relationship of the donee to the donor as compared to the natural objects of the donor’s bounty;
4) the secrecy or openness of the transaction;
5) the effect of the transfer on the donor’s pre-existing estate plan; and
6) the physical health and mental acuity of the donor at the time of the gift.

If you would like help in structuring transfers of property to help avoid the appearance of an improper transfer of property, Contact a Florida Will Attorney or a Florida Estate Planning Lawyer to review your case.

If you believe you have been harmed by the improper transfer of property, Contact a Florida Probate Litigation Attorney or a Florida Trust Litigation Lawyer to review your case.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Distributions , Estate Planning , Florida Probate , Probate Litigation , Trust Litigation , Wills

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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

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Business Law , Elder Law , Enhanced Life Estate Deeds , Estate Planning , LadyBird Deeds , Living Trust , Revocable Trust

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Greedy Trustees can be a problem in Florida Probate Litigation and Florida Trust Litigation. Often the Trustee must be removed to resolve the issues. Adrian Thomas a Florida lawyer who specializes in Florida Trust and Probate Litigation sent me an article where he discusses individual and corporate trustees. Often banks and financial institutions make their money by managing Florida Revocable Trusts and Florida Irrevocable Trusts. In recent interviews by news organizations, some employees talked about abuse of powers and improper investments that placed profits ahead of the best interest of the beneficiaries of the Florida Trusts.

Some of the abuses included:

Charging inflated fees;
Making distributions difficult for the beneficiaries;
Not considering compelling circumstances for distributions of allocation of principal and income; and
Naming themselves beneficiaries or trustees in the wills of elderly Florida Citizens.

The new Florida Trust Code includes remedies which allow the court to inquire into the appropriateness of a trustee and evaluate a change in circumstances for a judicial modification of the trust. In addition, Section 736.0706(2)(d) allows a trustee to be removed when there is a change in circumstances and the removal would best serve the interest of the beneficiaries.

Many of these problems can be addressed in the drafting of the Florida Living Trust by creating language and terms that beneficiaries can remove or modify the terms when it is in the best interest of the beneficiaries. In addition, judicial modification is a process where the court can modify a trust for similar circumstances. In Aelillo v. Hyland one beneficiary was favored over another beneficiary. The Florida Court removed the trustee because of conflict of interest.

If you feel that your are not being treated fairly by the trustee of a Florida Trust which you are the beneficary of Contact a Florida Estate Planning Lawyer who deals in Florida Probate Litigation or Florida Trust Litigation

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Distributions , Estate Planning , Florida Probate , Irrevocable Trust , Revocable Trust , Wills

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There is a new site which is putting together a list of Estate Planning and Probate professionals including lawyers for each state. You can find them at www.Estate-Attorneys.net.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Florida Probate

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If a person's usual place of dwelling was in Florida then the original probate should be opened in Florida. We see cases where someone is in the process of or has just moved to Florida and the issue of where to open a probate becomes more complex. In those instances where it may be difficult to determine the exact residence of the decedent there are several factors that should be evaluated to determine the residence.

1) Ownership of a home(s), and the percentage of time spent in each state.
2) Had the decedent applied for and are they currently receiving homestead exemptions in either state?
3) Where is the decedent employed?
4) Does the decedent own business interests?
5) If a homestead cannot be determined, where else does decedent own property?
6) Where are their federal tax returns filed?
7) State of Vehicle registration, Drivers license.
8) Location of Will, Ownership of cemetery lot.
9) Affidavit of domicile as found in Florida Statutes 222.17.
10) Religious, social, and union affiliations.
11) Charitable contributions.
12) Children's school attendance or activities.
13) Official termination of residence in one state by notice to taxing officer, cancellation of voter registration, change of DL, vehicle registration, and insurance.
14) Specific provisions in the will reciting the domicile.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Estate Planning , Florida Probate , Wills

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