Florida Estate Planning Lawyer Blog

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 Administratio , Charitable Trusts , Death Taxes , Estate Planning , Estate Taxes , Living Trust , Probate , 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 Administratio , Beneficiary , Estate Planning , Living Trust , Probate , 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.

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

Posted In: Beneficiary , Elder Law , Estate Planning , Homestead , Living Trust , Medicaid Planning , Probate , 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 advise 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 Administratio , Estate Planning , Living Trust , Probate , 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 pe