Florida Estate Planning Lawyer Blog

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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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

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

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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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

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

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

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

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

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

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

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

Posted In: Devise / Devisee , Enhanced Life Estate Deeds , Estate Planning , Homestead , Revocable Trust

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

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

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

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

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

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

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

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

Posted In: Business Law , Estate Planning , Revocable Trust

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The Ca Estate Planning Blog has an article on how to put your bank account in your Florida Revocable Trust . It is one of the most important things that can be done after setting up your Florida Living or Revocable Trust.

If you have not funded your Florida Revocable Trust please Contact a Florida Estate Planning Lawyer to make sure it is funded properly.

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

Posted In: Estate Planning , Living Trust , Revocable Trust

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As the second marriage becomes more popular, it becomes more important than ever to protect your life insurance for your children. I received a call today where the second wife had changed the life insurance benefits to her name, as might be expected. Five months later the father of two children died. The second wife will receive all the benefits of the life insurance and non will go to help support the fathers biological children. When the wife dies, it is likely that the money will go to her biological children and the fathers children will receive nothing. What this the intent of the father? Probably not? Can anything be done to protect your assets for your descendants? yes

How can you allow a portion of the money to be available for the benefit of a second or third wife and give part to your biological children. One way is through changes in the beneficiary designations. Although this can be difficult and some companies require the consent of the spouse, it is not impossible.

The better way, is to set up a revocable trust. The trust can designate who you would like to receive the proceeds and how you want the money distributed. Even better, once you create the trust, you can amend it.

It is best to create the trust before you get married, and amend it when you choose. Paul A. Rabalais of the Estate Planning Law Firm of Louisiana Blog recently wrote a similar article on this topic that you may want to review for more information.

If you need help creating a Florida Revocable Trust Contact a Florida attorney who is familiar with Florida Estate Planning Documents

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

Posted In: Estate Planning , Exempt property , Life Insurance Trust , Living Trust , Revocable Trust

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Divorcing spouses can add flexibility to their tax and estate plans using property settlement agreements according to Private Letter Ruling 12572406.

Kreig Mtichell a Colorado Estate Planning Attorney wrote an article on this process. He stated that the facts involved a Husband and Wife who shiged a property settlement agreement pursuant to their divorce. The husband owned a large amount of publicly traded stock. The wife was to recieive a portion of the stock in the divorce agreement approved by the court.

Later the husband and his ex wife renegotiated the agreement to provide a larger amount of stock to the wife.

The IRS ruled that this accelerated lifetime payment by the husband to the wife was not taxable income to the husband or wife and not a taxable gift from the husband to the wife.

The IRS found that the accelerated lifetime payment by the husband to the wife was not taxable income to the husband or wife because the transfer was “related to the cessation of marriage." Even though the modification of the property settlement agreement occurred “years after the divorce.”

The IRS stated that the accelerated lifetime payment by the husband to the wife was not a taxable gift from the husband to the wife based on the same reasoning.

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

Posted In: Estate Planning , Revocable Trust , Wills

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Gurfinkel v. Marmor, 32 Fla. L. Weekly D2931 (Fla. 3rd DCA December 12, 2007)

The decedent’s trust beneficiaries challenged a pre-death "amendment" executed by the decedent’s spouse as attorney in fact pursuant to a valid Durable Power of Attorney . The amendment "deleted" the trust’s primary asset stock in a family corporation. The stock was subsequently transferred to one of the decedent’s sons. The trial court relied upon language in the Durable Power of Attorney to uphold the amendment. The appellate court reversed, relying upon language in the Trust which indicted powers granted by the trust could be exercised only by the grantor and not by a conservator, guardian, or any person other than the grantor.

What does this mean, if you want your agent acting under a Durable Power of Attorney to be able to change your trust, your trust should include language to allow for it.

To review your Durable Power of Attorney and Florida Revocable Trust Contact a Florida Estate Planning Lawyer.

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

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

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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.

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

Posted In: Estate Planning , Pet Trusts , Revocable Trust , Wills

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Only five weeks before his death Leonard R. Brener made a change to his will. He decided to change his beneficiaries form four local charities to his niece and her husband who took care of him while he was dying.

The non-profits were stunned and file a suit to battle over the money. The case took more than five years that the state appeals court recently ruled that Brener was mentally competent and his decision to leave the money to his family should stand.

The charities tried to argue that his change was unnatural because it would trigger significant estate taxes which he had previously stated he wanted to avoid.
(Estate taxes on 8M today are 2.7 Million Dollars) with proper estate planning its possible to have reduced the tax to 1.8 Million or less) Although the estate taxes from 2001 were significantly more than they are today.

This lengthy estate battle could have been avoided with the privacy afforded by a Florida Revocable Trust and some explanation within the will as to why the changes were being sought. In addition a Florida Revocable Trust would help to avoid the costs associated with a Florida Probate. If you would like more information on how a Florida Revocable Trust could benefit your or your family, Contact a Florida Estate Planning Lawyer for more information.

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

Posted In: Administration , Assets Subject to Probate Administration , Charitable Trusts , Death Taxes , Estate Planning , Estate Taxes , Florida Probate , Living Trust , Revocable Trust , Wills

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When creating a revocable trust you may be asked for a Employment ID number (EIN) or Tax ID to open the account or fill out the paperwork. Many banks do not understand the difference between a revocable and a irrevocable trust. Although irrevocable trusts require TAX ID or EIN's revocable trusts do not require them.

When this happens to you, it may be difficult to get them to understand why they do not need this information. It is best to just fill out that section with your social security number - which is your Tax ID number.

If you have questions on a Florida Revocable Trust you should Contact a Florida Estate Planning Lawyer.

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

Posted In: Estate Planning , Irrevocable Trust , Living Trust , Revocable Trust

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Florida judge who presided over the Terri Schiavo case until her death, has a new assignment. He no longer judges Florida Guardianship cases. He judges divorce cases.

The Judges transfer from Florida Probate and Florida Guardianship court to family court should allow Judge Greer who is now 65 to serve the next three years in obscurity before his retirement.

Judge Greer is nationally famous and has 20 honors displayed in his chambers. The largest is the 2005 President's Award of Merit from the Florida Bar, "for your unswerving commitment to the rule of law, the independence of the judiciary and the fundamentals of American democracy."

With the recent cases like Britney Spears competency hearing, many have found the need for a Durable Power of Attorney and the Schiavo case is a good reason people need a Florida Living Will. After all if Schiavo had a Florida Living Will she and Judge Greer would not have had the national spotlight. The fight was only because Schiavo did not have a Florida Living Will.

If you would like a Power of Attorney or Florida Living Will please Contact a Florida Estate Planning Lawyer to discuss your needs.

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

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

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Drafting and transfer of assets is an important aspect of a Florida Will or a Florida Revocable Trust. Real estate held by a company will not transfer to the trust unless the ownership of the company interest is transferred.

In a recent Florida case a testator never transferred the ownership of his business entity. When he died the trust directed that the property go to one beneficiary. His will transferred the residual to his wife.

The court in Vaughan v. Boerckel, 963 So. 2d 915 (Fla. Dist. Ct. App. 2007), affirmed judgment for the widow, holding that the failure to transfer title to the realty to the trustee meant that title remained in the corporation all the shares of which passed to the widow.

If you have assets owned by a Florida Limited Liability Company or corporation and wish to have your trust dictate how the assets will be transferred upon your death, you should Contact a Florida Estate Planning Lawyer to help you with your Florida Estate Planning.

This article was also reported on by Professor Gerry Beyer who writes the Wills, Trusts & Estate Professor Blog and Michael Bonesara who writes The Ohio Trust & Estate Blog.

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

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

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When considering getting married for the second time, or to someone with a prior family it is important to consider Estate Planning, Long-Term Care, the family home, Social Security, Alimony, Survivor's Annuities, and College Financial aid as an article on Forbes has reported.

Florida Estate Planning becomes very important when there are children from outside the current marriage. A spouse in Florida is entitled to a 30% share of all assets unless there is a prenuptial or post nuptial waiver.

in addition aFlorida Revocable Trust or prenuptial agreement might not keep a spouse from being responsible for long-term care and can have an effect on Florida Medicaid Planning and Eligibility

The Florida Supreme court has said that a spouse may wave their rights to a family home, but the constitutional rights of the Florida Homestead are very strong and should be considered.

Social Security needs to be considered an the benefits from former will be affected by remarrying before the age of 60. After age 60 you may be able to collect benefits from a new spouse if those benefits are higher.

Alimony and Survivor's Annuities will likely end if you remarry.

College Financial Aid might be affected if the income of the family changes.

For more information on Florida Estate Planning Contact a Florida Estate Planning Lawyer.

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Posted In: Beneficiary , Elder Law , Estate Planning , Florida Probate , Homestead , Living Trust , Medicaid Planning , Revocable Trust , Wills

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When reviewing your Florida Estate Plan be sure that your will does not conflict with other actions you have taken to avoid probate.

Assets that have joint ownership, payable on death designations or beneficiaries will not pass to the beneficiaries names in your Florida Estate Planning Documents. Often a person's will leave assets split equally among their heirs. When a bank account, IRA, CD, or life insurance policy names someone else as the owner, the asset is not counted as part of the estate and the asset will not be split how the will designates.

This can reduce the amount of assets that other beneficiaries receive compared to the person who is the joint owner or beneficiary of the bank account, IRA, CD, or life insurance policy.

One solution to this problem is the use of a funded Florida Revocable Trust or Florida Living Trust. The technique would be to name the trust as the beneficiary and have the trust make the distributions as you want.

For more details on these or other techniques you should contact to a Florida Estate Planning Lawyer or have your attorney review all of your account designations along with your Florida Estate Planning Documents.

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

Posted In: Distributions , Estate Planning , Exempt property , Living Trust , Revocable Trust , Wills

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Randall Armour of the Santa Clarita Valley Signal wrote an article discussing Trust Mills and gives some advice on how to spot a trust mill and several problems associated with them.

1. Trust mills often prepare documents after the client has filled out a simple check-the-box-type questionnaire. Little or no counseling or advice is given to the client and the client may meet with a “paralegal,” CPA or financial adviser, but not with an attorney.

2. The cost of the documents is a good indicator of whether or not you are dealing with a trust mill. Trust mills usually charge from $300 to $700 for their documents. Just remember, you get what you pay for — in this case, not very much!

3. Trust mills often provide documents for limited purposes such as avoiding probate or estate taxes.

4. A major problem with trust mills is the lack of proper assistance in funding the trust. Most mill trusts created are not properly funded and the documents do not provide a way of funding the trust after death without probate. A trust must be properly funded to work.

Some common issues not dealt with by Trust Mills are:

Failure to fund, mentioned above.
Failure to consider retirement funds and insurance policy funds which could lead to increased estate taxes, distributions, and income tax.
Failure to address issues such as incompetency, children from prior marriages and tailoring management and distribution of assets for beneficiaries who may be unable to properly manage their inheritance.

For more issues with Trust Mills and what other states are doing to stop them from harming their citizens see this article.

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

Posted In: Estate Planning , Living Trust , Revocable Trust

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

1. Texarkana Arkansas Living Trust Seminar Class Action suit
2. California Living Trust Mill Judgment
3.Texas Bar story reported by Professor Beyer of Wills, Trusts & Estates Prof Blog- Living trust Scams and Senior Consumer
4. Michael Bonasera wrote an article titledLiving Trust Scams/Trust Mills/Elderlaw Planning Seminars - STAY AWAY! where he Ohio's history with Trust Mills and cites a case Ohio Trust Mill Case of Cleveland Bar v Sharp Estate Services, Inc. which seems to have ended Trust Mills in Ohio.
5. Beware of Trust Mills when Estate Planning - by Randall Armour, CA Lawyer- reported on by Florida Estate Planning Lawyer Blog

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

Posted In: Elder Law , Estate Planning , Living Trust , Revocable Trust

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Vanguard recently sent their clients a notice that they would no longer allow their clients to name different beneficiaries for multiple IRA accounts and would be changing the beneficiaries to whomever was named last.

If you have a Florida Estate Plan that uses POD or beneficiary designations, this could significantly change your estate planning.

It is important to check your designations on all accounts.
- Make sure all accounts have beneficiaries to avoid a Florida Probate.
- Consider using a Floria Revocable Trust to manage your beneficiaries. A Florida trust can manage all of the beneficiaries in one documents. Remember that if you are leaving a percentage to a Charity to deal with this properly so there are no adverse tax and distribution consequences.

If you have questions about payable on death designations, beneficiaries, or joint accounts, please contact a Florida Estate Planning Lawyer to help you understand the implications and benefits of using a Florida Trust.

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

Posted In: Assets Subject to Probate Administration , Estate Planning , Florida Probate , Living Trust , Revocable Trust

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Accidental disinheritance is a growing problem. It's a problem, in part, because there are too many death-disposition instruments now that dispositions are slipping through the cracks to the wrong people.

Paul Rabalais wrote about this on Your Louisiana Estate Planning Blog where he describes some of the more common ways people are disinherited. He mentions several life events that cause unintended consequences.

1) Failing to update your will yearly.
2) Ineffective wills
3) Divorce
4) Remarriage
5) Conflicting disposition instruments.

You should have your Florida estate plan reviewed on a regular basis. This should include a review of any changes in assets. To have your estate plan reviewed please contact a Jacksonville Estate Planning Attorney.

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

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

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Next time you attend a Living trust seminar in Jacksonville Florida or where ever you live, you may want to think twice. This week Family First Advanced Estate Planning, and insurance company, and a life insurance company who targeted low cost estate planning to seniors settled with the Attorney General of California.
An article on Kristen Howe's Blog states:

I caution everyone to remember the old saying “If something looks too good to be true it probably is.” If someone is offering to write a revocable trust and a will for you for free or for just a few hundred dollars, you have to ask yourself why. The two big lessons to be learned from this case are:

1. Do not let anyone who is not an attorney write an estate plan for you. There are just too many complexities in this area of the law to trust it to someone who is not educated.
2. Do not take investment advice from anyone who sells any kind of investment product. Period. It doesn’t matter what it is, life insurance, annuities, mutual funds.

If they make their living selling it they cannot possibly give you objective investment advice about it. If you believe you have been victimized by Family First, another trust mill or by annuity fraud, you should report the crime to the local district attorney or the Department of Insurance. You may also file a complaint with the Attorney General.

Although this problem did not involved lawyers the general ideal of seminars where you are told that everyone can benefit from a Florida Living trust have problems also. You should only consider a Florida living trust if you meet with a Florida Estate Planning Lawyer and determine that your finances and needs require and justify a living trust.

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

Posted In: Elder Law , Estate Planning , Living Trust , Revocable Trust

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A Living Trust is a tool used by Jacksonville Estate Planning Lawyers to hold assets for the benefits for one or more beneficiaries. Often the initial beneficiaries are the people who create them. In this case, a person or couple can use the assets of the trust just like they would do with their own assets. The big advantage to a Florida Living Trust is that upon the death of the creators of the trust, the assets have a predefined beneficiary.

This enables properly created trust assets to avoid the delays and costs associated with a Florida Probate. Florida's new trust code requires that to be eligible to create a Florida Trust, you must some nexus or connection with the state of Florida.

Some additional benefits of a Florida Revocable Trust are that the way in which the assets are distributed are not public like with a will or assets that pass under the state's intestate statutes.

Assets that are to pass to young children can be held for them until they become responsible or reach a predefined age.

There are no tax consequences of having assets in a revocable trust in Florida. Once the creator (grantor or settlor) dies, the trust is converted into an irrevocable trust and a Federal Employee number must be obtained.

If you are considering a Florida Revocable Trust, have a revocable trust from another state, or want to find out how a Florida Revocable Trust can benefit you, contact a Florida Revocable Trust Attorney or a Florida Living Trust Lawyer for more information.

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

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

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A Florida Trusts are created to fulfill different needs and obligations. Today people find it necessary to protect their investments and properly allocate their resources while taking the least risks with regards to finances. A Jacksonville Trust Lawyer can help you analyze your assets and determine if a Living Trust will work for you.

Some Florida Trust are created for the purpose of privacy. The terms of a Florida trust are not public, unlike the terms of a Florida will.

Trusts are also created to protect one’s assets. There are different types of Florida Truss based on individual needs. Often a spendthrift provision is included in a Florida Trust to protect beneficiaries from creditors or assignment of the assets.. These can protect a person from his or her own lack control his or her own money.

Florida Trust are also created for Florida wills and Florida estate planning. Trusts are often present in wills Often if a person's children are under 18, a trust is created to hold and protect assets until the required age is reached.

Florida Trust are also created for charities. Sometimes trusts, proven to be very flexible of functioning as an investment vehicle, are created as investment trusts.

Florida Trusts are also widely used for asset protection, tax planning, and co-ownership of properties.

If you think you may benefit from a Florida Trust , please contact a Florida Trust Lawyer or Attorney to help evaluate your needs and what type of Florida Trust may be best for your circumstances.

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

Posted In: Estate Planning , Living Trust , Revocable Trust

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In Florida Domestic Partners need the help of a Florida Estate Planning Lawyer to handle their complex situations. Domestic partners are considered any two people no mater what sex who live together and what each other to benefit in the event of the subsequent death of the other.

Without a valid Florida Will or Valid Florida Estate Planning Documents the domestic partner will not receive any portion of the others estate upon their death. The Florida intestate statutes do not provide any benefits for a domestic partner.

If one creates an invalid Floria Will using software or a form, the Florida statutes provides benefits to the spouse and children of the deceased. Although the decedent's desires may not be complied with completely. Their family, who is usually the intended beneficiary, will receive the proceeds from the estate. This is not true with domestic partnerships. The domestic partners will receive nothing from the decedents estate.

To make sure you and your domestic partner are protected, you should have your Florida Estate Planning Documents reviewed or created by a Florida Estate Planning Lawyer or Attorney.

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

Posted In: Durable Power of Attorney , Estate Planning , Health Care Surrogate , Living Trust , Living Will , Revocable Trust , Wills

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Clients often bring in Florida Will to amend which have been marked up several times. Usually, once there are so many changes that they cannot tell what the last change is, the decide to redraft or amend their will.

With a Florida Will, or a will drafted in another state, a Florida Resident cannot simply cross off part of a page or change the language on their own. The result will be that the court will look to see if they can determine what the original language was, and enforce it.

The reason for this is all Florida Wills, Florida Revocable Trusts, and Codiles (an amendment to a will) must comply with the Florida statute of wills. This requires that two people who witness each other and the person who is creating the will all witness each other signing the document.

To destroy your will, you must burn, tear, or cross through the entire pages of the will. Another way is by creating a new Florida Will which revokes all prior wills.

If you need help amending your Florida will, rewriting your Florida Will or reviewing you will for compliance with Florida law, you should talk with a Florida Estate Planning Lawyer.

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

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

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Florida Estate Planning Lawyers often tell clients of the many advantages of a Florida trusts. When a client leaves property to heirs in a trust instead of outright, they can control how the property is used. The control can violate public policy or law, but often good estate planning can control the property without risk of having the control stricken. Some of the major advantages are:

1. That a trust can provide a mechanism for better management and investment than the individuals may be capable of on their own.
2. That a trust can prevents the beneficiary(s) from using all of the proceeds quickly, or wasting it on unnecessary items.
3. Than a trust can protect the assets from the claims of creditors.
4. That a trust creates separate property that can be free of claims of a spouse upon divorce or the beneficiary's death.
5. That a trust allows the creator to control the disposition of the property instead of the beneficiary.

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

Posted In: Estate Planning , Irrevocable Trust , Living Trust , Revocable Trust , Supplemental Needs Trust

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In Jacksonville or other cities in Florida, there are many advantages to using a Revocable Living Trust or Florida Land Trust to hold title to real estate. Dyches Broddiford has an interesting article dealing with many of these issues.

In summary a real estate trust provides:
- Privacy for the owners;
- Protection of the individual owners assets (in most circumstances);
- Ability to assign an interest without changing public records;
- Avoids Guardianship of the assets when a party is incapacitated;
- Guardianship of the trustee, trusts can provide for alternate trustees;
- Privacy while living;
- Probate is not needed upon the death of the owner; and
- No tax benefits

For more details click the link above or talk with a Florida Estate Planning Attorney or Jacksonville Living Trust Lawyer

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

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

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In Florida a Successor Trustee is the person or institution named in the Revocable Trust agreement or other trust agreement who will assume control of the trust if the original trustee dies, resigns, or becomes unable or unwilling to act. There can be several layers of back-up trustees that take over in the order you designate. This person is like a backup agent for a power of attorney or Living Will

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

Posted In: Charitable Trusts , Estate Planning , Irrevocable Trust , Life Insurance Trust , Living Trust , Revocable Trust , Special Needs Trust , Supplemental Needs Trust , Trusts - Charitable

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In Florida a Revocable Trustcan be amended and revoked, by the grantor who established the trust. This trust may become irrevocable and no longer amendable when the grantor of the trust dies or becomes permanently incompetent.

Living Trust also known as Revocable Trust of Revocable Living Trust: A trust that one establishes during one's lifetime which is not part of one's will, but is established by a separate written trust agreement. A revocable trust is one of the primary means for avoiding probate. I can also allow for a specific distribution such as the children receiving 1/3 of the inheritance at 25 1/3 at 30 and 1/3 at 35 if the parents are already deceased or providing longer term asset protection on their behalf. It can provide for professional management of the trust assets, help to ensure that the grantor or their trustee can maintain control over their affairs and has many useful benefits.

Assets which are in the Revocable Living Trust prior to the death of the grantor are not subject to probate, inventory, but can be subject to estate tax. The Trust will generally become irrevocable at the time of the death of the grantor and terminate shortly afterwards. The trust can create several new trusts upon or give assets outright to the beneficiaries. Consult with your Florida Revocable Living Trust Attorney to create a trust that works best for you. There are also several special trusts that can be used to carry out your desires and achieve your goals and objectives.

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

Posted In: Assets Subject to Probate Administration , Estate Planning , Exempt property , Florida Probate , Inventory , Living Trust , Revocable Trust

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4. What are the general myths about Florida revocable trusts?

"Revocable Trusts Save Taxes."

Revocable trusts do not save income taxes or estate taxes. Typically during the life of the grantor the tax id of the grantor is used and any tax flows through to the grantor at his rates. Following the death of the grantor if the trust continues and is not immediately distributed outright to the beneficiaries it must then get a tax identification number and the retained income is taxed to the trust which has a more compressed rate schedule often resulting in a higher tax rate then if the individual beneficiaries were paying. This is not a potential problem until after the passing of the grantor though and then with proper planning the income can be distributed to the beneficiaries and there will be no adverse tax issues.

"Revocable Trusts Protect Assets from Creditors." - Myth

This is generally not correct as it relates to the grantor themself. Creditors may reach the assets of the grantor. Some asset protection could be achieved for other beneficiaries though. A Florida trust attorney could further help explain the details of how a trust could help with asset protection for other beneficiaries.

The primary benefit of creating a revocable trust is that it allows for continued management and preservation of your assets, should you become disabled. It can also help avoid probate and set forth all of the dispositive provisions of your estate plan including delayed distributions to beneficiaries if desired and professional management of such assets.

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

Posted In: Creditors and Claims , Estate Planning , Estate Taxes , Florida Probate , Living Trust , Revocable Trust

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2. What are the general advantages of revocable trusts?

Continuity of Management During Disability

Creating a Florida revocable trust is probably the best way to ensure that your property remains available to be used for your benefit, should you become physically or mentally incapable of managing your own affairs. While continuity of management is also possible when a Florida durable power of attorney is signed, third parties such as banks, brokers, and transfer agents often have more difficulty in dealing with a durable power of attorney than with a trust and do not always accept the authority of the agent.

If you become disabled and you have neither a revocable trust nor a durable power of attorney, (power of attorneys are controlled in Florida by the Florida Durable Power of Attorney Statute 709.08 an expensive, lengthy, and potentially embarrassing court proceeding is generally required to appoint a guardian before your property can be used to benefit either you or your family. Even after a guardian has been named, continued court supervision over the management of investments and disbursements is usually required. This can include annual bond fees, annual accounting, and additional legal, accounting, and other professional fees. It was also require a restricted depository account in which the court must approve of the transactions from.

Flexibility
Using a funded revocable trust may allow you to name unrelated, out-of-state individuals and out-of-state trust companies to act as the primary administrator of your property at death. Without a trust, Florida and other jurisdictions limit your flexibility in this regard. To serve as a non corporate Personal Representative in Florida a person must be a Florida resident or a close family member (as defined by Florida Statute) of the Florida decedent

Avoiding Florida Probate
Because Florida probate can be costly and time-consuming, the avoidance of probate in Florida is often cited as one of the primary benefits of a revocable trust. Depending on the assets that are funded in the Florida Trust may determine how great a benefit avoiding probate may be. If you own real estate in more than one state such as in Florida, California and Pennsylvania you can avoid multiple probate proceedings. If the decedent was a Florida domicile and owned property in Southern California, another piece of real estate in Philadelphia, and also owned real estate in Manhattan New York for example then putting the real estate in the trust can help avoid a California Ancillary Administration, avoid New York Ancillary Probate as well as helping to avoid Ancillary Probate Administration for the Pennsylvania property. The property can be distributed to the beneficiaries in a quicker manner and with far less administration costs.

Continue reading "Florida Trust Advantages" »

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

Posted In: Ancillary Administration , Estate Planning , Estate Taxes , Florida Probate , Living Trust , Revocable Trust

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