Florida Estate Planning Lawyer Blog

Most people would not believe that a family pet needs to be subjected to the Florida Probate process, but Florida Law defines animals as personal property and as such are subject to probate just like other personal property. Fortunately we can create provisions in our Florida Revocable Trust to deal with our animals or at least to own them so that they are not subjected to probate. If you want to provide for more than an easy transfer of the ownership of the animals, you might consider pet trust provisions to allow for the care of the animal in the event they survive you.

Next time you talk with your Florida Estate Planning Lawyer ask them about your pet and how they will be dealt with if you were to die.

Many pet owners think of their pets as part of their family. Legally pets are considered personal property like a car or jewelry.

If you are sick, injured, or unable to care for your pet and have not planned ahead, your pets may not be taken care of by the person you want. They may be managed like your other personal property.

Upon your death, your pets will pass as residual property under your will or your states intestate laws.

It is important to make specific provisions in your will, trust, and other estate planning documents to provide for your pet. If not, you pet could end up like many, in a shelter or on the street.

A Pet trust give you the ability to control your pets care if you are unable to. You can also add additional pets to the trust during your life. The trust can go into effect as soon as you create it.

Other less expensive methods of taking care of your pets include provisions in a will to create a pet trust if a pet survives you and conditional gifts in the will. Although a gift in the will does not require that the funds be used for the benefit of the pet the funds are given with the instructions to be used for the purpose you request.

If you would like to know more about creating Estate Planning Documents to provide for your pet, please Contact a licensed Estate Planning Lawyer in your state.

Gerry Beyer, author of the Wills, Trusts & Estate Professors Blog has a post on his blog Becoming a "Pet Friendly" Estate Planner which points to an article he wrote in Legal Times. "Your Trust-worthy Pet" discusses the history of providing for pets which began in England in 1889. Now around 40 states have authorized statutory pet statutes.

In the Legal Times article he lists 13 important consideration for traditional pet trusts:

1. Create the trust inter vivos or in the pet owner’s will?
2. Who is the animal’s caregiver (the beneficiary of the trust)?
3. Who is the trustee and will the trustee be paid?
4. When should ownership of the pet be transferred?
5. What and how much property should be transferred to the trust?
6. What is the desired standard of living for the pet?
7. How is the distribution of trust property to the caregiver determined?
8. Should the caregiver be “paid” for services?
9. When should the trust end?
10. Who should be the remainder beneficiary when the trust ends?
11. How should the animal be identified?
12. How should the animal’s welfare be monitored?
13. What happens to the pet when it dies?

To create a Florida Pet Trust you should Contact a Florida Estate Planning Lawyer to discuss how you can modify your Florida Will or Florida Revocable Trust.

In Florida, and many other states animals are now allowed to be the beneficiaries of a special trust that is created to take care of them. These are often referred to as a Florida Pet Trust.

Today I was reading an article published in Arizona which stated that a Dog could inherit one's estate. While the article gives the correct advice the title is misleading and seems to suggest that a dog could inherit your estate. A pet may only receive the benefit of a Florida Pet Trust while the animal is alive. Being the beneficiary of a trust is not the same as inheriting part of an estate. In fact, a gift to a pet which is not in the form of a Florida Pet Trust would be void in Florida and most states.

To create a valid Florida Pet Trust please Contact a Florida Estate Planning Lawyer.

In Florida and many other states animals are now allowed to beneficiaries of a special trust that is created to take care of them. These are often referred to as a Florida Pet Trust.

Today I was reading an article published in Arizona where a letter to the editor basically stated that a Dog could inherit ones estate and referred to Leona Helmsley as an explanation of this. While the article gives the correct advice the title is misleading and seems to suggest that a dog could inherit your estate. A pet only receives the benefit of a Florida Pet Trust while it is alive and the pet does not have the ability to use it for anything they want. A beneficiary of a trust is not the same as inheriting one's estate. In fact a gift to a pet that is not interpreted as a Florida Pet Trust would be void in Florida and most states.

To create a valid Florida Pet Trust please Contact a Florida Estate Planning Lawyer.

Theresa Harrington of the Contra Costa Times has written about groups that encourage estate plans for pets. These are often referred to as Pet Trusts or may be included in a will with language that creates a testamentary Pet Trust.

She has found that it is suggested that $10,000 - $15,000 a year be set aside for the care of one's pet.

"Most people think some relative will take them. Sometimes they do, and sometimes they don't. She quotes, "From working in animal rescue, I see what happens to animals when their owners die. Approximately 500,000 pets are euthanized nationwide every year because they have gone into shelters when their owners passed away and homes couldn't be found for them.

If you want to ensure the care of your pet, Contact a Florida Estate Planning Lawyer to create a Florida Will with testamentary trust provisions for your pet or a Florida Pet Trust.

With the recent rise in the popularity of the Florida Pet Trust many individuals are caught off guard with unexpected expenses associated with a Florida Pet Trust. These expenses are also associated with Florida Pet Trusts from other states as they are related to Federal issues.

The primary issue that a pet trust is subject to income tax reporting and required to pay taxes on the income the funds generate. Most Florida Pet Trusts have less than $50,000 in funds and the cost of maintianing them is relatively high. There are some Pet Trusts that pool the money and do master reporting. This can be a solution to smaller pet trusts. If you are interested in creating a Florida Pet Trust, Contact a Florida Pet Trust Lawyer for more information

It wasn't long ago that animals had no rights when their owner died. Today you make a difference in your Pet's life after you are gone.

Estate planning for pets gained momentum during the 1990s, and pet trusts are now legal in most of the 50 states, including Florida.

A smooth transition

If you die or become incapacitated, what will happen to that special "member of the family?" Legally, a pet is your tangible personal property. It would pass to your heirs or the beneficiaries of your estate unless you have a will or trust stipulating otherwise. Even if you have a will, it doesn't likely address who is actually the best person to care for your pet, nor does it address the immediate problem of care, which pets will need at once. They can't wait until after the will is through probate.

The Florida pet trust is your chance to smooth the transition for your pet while providing the funds for its care and any special needs during its natural life. Details of such trusts vary by state, but no matter how you establish one, there are basic decisions to make before you act.

Picking a caretaker

Perhaps the most difficult step is finding the most suitable caretaker - someone not only able, but also willing to take on the care of your pet. Relatives and friends may enjoy visiting with your pet, but that doesn't necessarily translate into a willingness to provide for its daily care.

Discuss what financial provisions should be made to reimburse the caretaker for actual expenses for food, toys, walking, veterinary care and any special needs.

If you have no relatives or friends willing to accept possible pet-care responsibilities, you could investigate the fairly large number of non-profit organizations willing to do it.

Pet information

Whether a person or an organization, your pet's designated caretaker will need comprehensive information - both short-term (suppose you are hospitalized for a limited time) and long-term. This could include registration papers, if they exist, and descriptions that amount to reliable ways of identifying your pet - the story is told of a caretaker of a black dog who kept finding other black dogs to keep the trust income coming in long after the original pet had died. Markings are obvious identification points, but beyond that, you might consider DNA identification or micro chipping.

Other essential information includes a veterinary history, details of any medical conditions, dietary requirements, sleeping and exercise habits, even social preferences - especially any negative reactions your pet has to certain types of persons. For many, taking care of pets left behind is a particularly sensitive subject. If your situation fits certain criteria you may want to consider a Florida Pet Trust.

Pet trusts use to be very expensive to create, no a Florida Estate Planning Lawyer can include provisions in your Florida will or trust to deal with your pet for less than a few hundred dollars. For more information on Florida Pet trusts contact a Florida Estate Planning Lawyer.

If you or a member of your family was to have a crisis are you prepared? That is the question you should ask your Florida Estate Planning Lawyer or Attorney on a regular basis. Often we only look at significant events in our lives and do not consider the effects that a significant effect in our parents or children's lives will have upon us.

When you review your Florida Estate Plan you should also review or remind your parents and adult children to review their plans also. There are changes in the laws which may prompt updates to your estate planning techniques. In addition, significant changes in your life including births, deaths, marriages, divorces, and changes in assets should trigger an estate plan review.

Generally when an Florida Estate Planning Attorney creates Florida Estate Planning Documents their duty is over once the documents are prepared. The obligation is up to you to seek a regular review of these documents.

In addition to reviewing the documents you should consider the following:

1) Make sure you know where your parents documents are, and you tell your personal representative and beneficiaries know where the documents are. If you are concerned that the documents may disappear, you may keep them with an attorney. If you keep your documents with a Jacksonville Florida Estate Planning Lawyerr or Jacksonville Florida Probate Lawyer you should tell people who has them.

2)Check to see that the Florida Estate Planning documents are complete and reflect their current family and financial situation.

3)Make sure that the documents reflect your or your parents current mind set. Wills and trusts need to be reviewed for changes in their financial condition as well as the beneficiaries family and financial condition.

4) Make sure all Estate Planning Documents are signed and witnessed as necessary under the current statutes or those in place at the time of execution.

5)Make sure any Florida Durable Power of Attorney documents mention the current Florida Statutes, many durable power of attorney documents are not honored when they do not comply with the Florida Statutes.

6) Make sure your Florida Living Trust or Florida Revocable Trust or any Florida Trusts are funded. That means that the bank accounts, CD accounts, land, and other assets have been transferred to the trusts. Any deeds to this effect should be properly recorded.

If are not funded they will provide none of the expected benefits upon the death of the grantor.
If you have a Florida Durable Power of Attorney and would it reviewed free of charge by a Jacksonville Florida Estate Planning Lawyer use the contact form on this page.

You have just been asked to be a successor trustee for a Florida Living Trust. What will your trustee duties and responsibilities be? Do you want to accept? Are their downsides? I ran across an interesting article and have applied some of it to Florida law. This note will help you to understand what some of the common issues are and will help you to discuss your options with a Florida Estate Planning Lawyer. Remember that all Florida trusts are different, and that many of your duties, responsibilities may not be contained in the document. Therefore your document will need to be analyzed with the New Florida Trust code.

First Lets discuss some of the background information that will be necessary to understand your duties and responsibilities.

A Trust is a legal entity. When assets are contributed to the trust, the trust separates the legal ownership (possession) from the beneficial ownership (the principal and income). Often trusts look very much like wills because they include instructions for whom your your assets will benefit after our death. Some trusts are created during the life of the person who creates them ( the settlor or grantor) and some are created after their death (testamentary).

Florida Living Trusts work by separating the equitable ownership (the trustee)from the beneficial ownership (the beneficiary).

Who are the people involved in a Trust? The grantor (also called settlor, trustor, creator or trustmaker) is the person whose trust it is. Married couples who set up one trust together are co-grantors of their trust. Only the grantor(s) can make changes to his or her trust.

The trustee manages the assets that are in the trust. Many people choose to be their own trustee and continue to manage their affairs for as long as they are able. Married couples are often co-trustees, so that when one dies or becomes incapacitated, the surviving spouse can continue to handle their finances with no other actions or steps required, including court interference.

A successor trustee is named to step in and manage the trust when the trustee is no longer able to continue (usually due to incapacity or death). Typically, several are named in succession in case one or more cannot act. Sometimes two or more adult children are named to act together. Sometimes a corporate trustee (bank or trust company) is named. Sometimes it is a combination of the two.

The beneficiaries are the persons or organizations who will receive the trust assets after the grantor dies.

Continue reading "Successor Trustee: Duties and Responsibilities" »

When making a Florida Will, Florida Revocable Trust, or Codicil to a Florida Will there are several technicalities that must be complied with for the documents to be valid.

1) Who can make a Florida Will, Florida Revocable Trust, or Codicil to a Florida Will:
The answer to this can be found in section 732.501, Florida Statutes, where it states: Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will.

2 What are the requirements for execution of the Florida Will, Florida Revocable Trust, or Codicil to a Florida Will:
Section 732.502, Florida Statutes, states:
(1)(a)The Testator must sign at the end of the will; and
(1)(b)Two witnesses in the presence of the testator, must sign that they witnessed the will.

Each witness must sign the Will in the presence of testator and each other.

Section 732.504, Florida Statutes :Unlike in some states a witness for these documents can be any person competent even if they are named in the will or will benefit from the will.

if you have questions about a Florida Will, Florida Revocable Trust, or Codicil to a Florida Willyou should speak with a Florida Estate Planning Lawyer.

As a Jacksonville Living Trust Lawyer, I have noticed many changes that effect the administration of Trusts, even those which were already in existence when on July 1, 2007 when the Florida's New Trust Code became effective. If you are an estate planning attorney in another state and have clients who have trusts in Florida, it is most likely that their trusts must be managed differently than their trust document would imply.

1) A trustee has a duty to act in good faith in the interest of the beneficiaries and in accordance with the terms of the trust, imposed in part by sections 736.0801 and 736.0802.

2) There is a new 6 month statute of limitation sunder section 736.1008 with regard to any item set forth in a trust disclosure statement which contains a limitation notice containing the six-month period of time under 736.0604 within which to contest the validity of the terms of the trust.

3) The court has the power to take action and exercise jurisdiction as necessary " in the interest of justice."

4) The court has the power to modify or terminate a trust under sections 736.0410-04115, 0413, 0415, and 0416. Judicial modification in the best interest of the beneficiaries under section 736.0415(3) is not mandatory as to (i) any trust created prior to January 1, 2001 and (ii) any trust created after December 31m 2000 if it is subject to the Traditional RAP (90 years vs the expanded 365 Year RAP that Florida permits) or the trust expressly prohibits such judicial modification.

5) Nonjudicial modification with unanimous agreement of the trustee and all qualified beneficiaries under 736.0412 is not mandatory as to (i) any trust created prior to January 1, 2001, (ii) any charitable trust until the termination of all charitable interests, and (iii) any trust created after December 31, 2000 if it is subject to the Traditional RAP unless the trust expressly authorizes such nonjudicial modification.

6) New Spendthrift protections which affect the rights of creditors and assignees to reach a trust under part V of the Trust Code.

7) Trustee's duty under section 736.0503 to pay expenses and obligations of a settlor of a revocable trust upon death.

8) Trustee's duty under section 736.05055 to file a notice of trust with regard to a revocable trust upon the death of a settlor.

9) Trustee's duties under section 736.0813 to provide to qualified beneficiaries (or their designated representatives under 736.0306) (i) notification of the existence of an irrevocable trust, the identity of the trustee and their rights to trust accountings, (ii) a copy of the trust agreement and to account, and (iii) respond to requests for relevant information about the assets, liabilities, and particulars relating to the trust administration

10) Rights of third parties other than the trustee or beneficiary under sections 736.1013-736.1017

Often Estate Planning for your Pet can be very expensive. Some Florida Estate Planning Lawyers who also are Florida Pet Trust Lawyers have begun offering comprehensive Low Cost Florida Pet Trusts.

If you want to become more educated on Florida Pet Trusts or Pet Trusts in other states, one way is to speak to a Jacksonville Pet Trust Lawyer. In addition, you may want to attend this seminar by two Lawyers doing Pet Trusts

On September 28, 2007, Neil Hendershot PA Elder, Estate & Fiduciary Law Blog) and Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) will explore this issues important to estate planning for pet owners both in Pennsylvania and nationally.
The seminar entitled Estate Planning for Pets is sponsored by PBI. Follow the link for details about the program and registration information.

Since Leona Helmsley's dog inherited $12 Million dollars, when her dog dies will it have to pay estate taxes. If so will the trustee opt to take advantage of the 2010 unlimited exemption and euthanize the dog in 2010?

It appears that New York's Pet Trust Statute makes allows the Pet trust to direct the use of the proceeds after the death of the dog or revert it back to the decedents estate.

In addition, a court can reduce the amount of the property transferred if it determines that the amount substantially exceeds the amount required for the intended use.

if you want to see what types pet trusts your state authorizes and the limitations on them, you might check out a comparison of state pet trusts.

In Florida there are limitations on Pet Trusts and the courts would likely find that $12 Million for a dog would be excessive and strike all or part of the trust.

Leona Helmsley's Dog was left a $12 Million dollar trust fund. In addition the Maltese, named Trouble will be buried alongside her and her late husband in a mausoleum. Leona also left 3 Million for the perpetual care of the mausoleum.

While the press and blogs are making a big deal over the dog getting $12 million, everyone fails to see the costs she is incurring because of probate. She left the majority of her money and property (rumored to be in excess of 1 billion dollars) to a Family charitable trust. The legal fees on handling this administration could be in excess of $60 Million dollars. If she would have put this money in a Revocable Trust or Living Trust there would be no probate fees to transfer the Billion dollars to the charity.

If you or a loved one has a billion dollars they want to give to charity, make sure its in a Living trust to avoid the costs and delay of probate.

Often the Break even cost with a Florida Living Trust is less than $100,000 in assets. To determine if you or your family needs a trust, speak to a Florida Estate Planning Lawyer.

For more information on Florida Pet Trusts.

This article has many interesting provisions that have been found in wills, but more common today are provisions dealing with trusts for pets.

Pet trusts are quickly becoming more common. Around 20 percent of pet owners include their pets in their wills. Florida have specific rules on how one can leave money or provide for their pets after their death. After years of resistance, more states are making it easier to set up a trust for a pet. A guardian is appointed to care for the animal and a trustee to take care of the finances.

People can be very detailed in planning their own funerals, down to requesting specific songs and Bible verses. “It’s less of a taboo topic,” said Leanna Hamill, an attorney from Hingham, Mass. “People talk about it more.”

The possibility of legal challenges can limit what one can do with a will. “The farther you go from standard provisions the more uncertain they are to be fulfilled,” said Neil Hendershot, an attorney from Harrisburg, Pa.

If you want to do anything unusual, the attorneys give this advice: Do your research. Talk to your family or anyone else involved long in advance. And, of course, consult a competent estate planning attorney.

In Florida estate planning a person can leave money in trust for the care of an animal. As of July 1, 2007 Florida Statute 736.0408 replaced the previous statute 737.116 which was effective from April 23, 2002 until June 30 2007.

The new Florida Statute states:

(1) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates on the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, on the death of the last surviving animal.

(2) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed.

(3) Property of a trust authorized by this section may be applied only to the intended use of the property, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Except as otherwise provided in the terms of the trust, property not required for the intended use must be distributed to the settlor, if then living, otherwise as part of the settlor's estate.

Under Florida law it would be difficult to leave $12 Million Dollars to a dog as was recently done in New York. If this was done, and a beneficiary under the will were to challenge the court would take the excess and return it to the estate. The decedents estate would determine what was done with the excess money. In addition once the animal died, the remainder of assets from the pet trust would be returned to the estate also.

Although most pet trusts are not as excessive as Leona Helmsley's, a pet trust is a good idea. Often it is difficult to find someone who wants to take care of the pet, the probate process can be a long process, and when it is complete will the remainder beneficiaries really want the family pet. Its far better to find someone who wants to take care of the family pet, and provide funds so that it is not a burden on the family to do so.

Rarely do we see pet trusts for dogs, it is far more common to see pet trusts for expensive birds, turtles, monkeys and other animals that can live 50 or 70 years beyond that of their owners. If you want to make sure that your pet does not get caught up in the probate process which can take more than 9 months to complete, or you have an animal that is sure to live longer than you will, a Florida Pet Trust may be the solution for you. Please visit a Florida Estate Planning Lawyer to help with your needs.

A general power of attorney will not be effective when the principal, the one who wrote and signed it, becomes incompetent, but a Florida durable power of attorney will still be valid after a person becomes incompetent or incapacitated.

One of the primary tax purposes of a durable power of attorney is to provide a mechanism for reducing a person's estate by making gifts of his or her assets. A similar objective in a smaller, nontaxable estate may be to make the principal eligible for Medicaid planning or assistance. In either case, it is prudent, and good practice demands, that the attorney at law who drafts the power of attorney includes the power to make gifts.

If the gift-making power is not included, the validity of the gift may be challenged. The IRS has successfully challenged gifts that were made when there was no specific authority in the document.

A power of attorney is not the same as a trust, a will or a living will. But it is a separate legal document that is an important part of a Florida estate plan.

Please make sure when creating Powers of Attorney, trusts, or wills they are setup correctly. Often fill in the blank forms can provide a framework, but they are not able to take into condideration the particulars need of individuals. Its best to have an attorney prepare these documents and have them reviewed yearly by your Florida Estate Planning Attorney for changes in your status, and the law.

Florida Estate Planning news
Virginia joined 37 other states that have pet trust statutes.

People have long left money and even homes to pets in their wills, but because pets were considered property in many states, their status as beneficiaries rarely stood up to a challenge in court.

In Florida, and 37 states, a person can leave money for the care of their pets. Typically only 10-15 % of people who create wills and trusts plan for the care of their pets. This can cause undue delays in allowing their pets to be in a normal inviroment and keep them tied up in the probate process for months or years.

Florida is in the process of changing their statute

Fla. Stat. Ann. § 737.116 effective April 23, 2002 until June 30, 2007

737.116 Trust for care of animal

(1) A trust may be created to provide for the care of an animal alive during the settlor's lifetime. The trust terminates upon the death of the animal or, if the trust was created to provide for the care of more than one animal alive during the settlor's lifetime, upon the death of the last surviving animal.

(2) Except as provided in this section, the law of this state regarding the creation and administration of express trusts applies to a trust for the care of an animal.

(3) A trust authorized by this section may be enforced by a person appointed in the terms of the trust or, if no person is so appointed, by a person appointed by the court. A person having an interest in the welfare of the animal may request the court to appoint a person to enforce the trust or to remove a person appointed. The appointed person shall have the rights of a trust beneficiary for the purpose of enforcing the trust, including receiving accountings, notices, and other information from the trustee and providing consents.

(4) Property of a trust authorized by this section may be applied only to its intended use, except to the extent the court determines that the value of the trust property exceeds the amount required for the intended use. Property not required for the intended use, including the trust property remaining upon its termination, shall be distributed in the following order of priority:

(a) As directed by the terms of the trust;

(b) To the settlor, if then living;

(c) Pursuant to the residuary clause of the settlor's will if the trust for the animal was created in a preresiduary clause in the settlor's will;

(d) If the settlor is deceased, pursuant to the residuary provisions of the inter vivos trust if the trust for the animal was created in a preresiduary clause in the trust instrument; or

(e) To the settlor's heirs.

(5) This section applies to trusts created on or after January 1, 2003.

Continue reading " Florida Pet Trusts: Virginia Joins Florida in allowing Pet Trusts" »