Florida Estate Planning Lawyer Blog

If you think its time to review your Florida Will or Florida Estate Planning Documents contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer to review your documents before you begin to melt.

The Trials and Heirs blog\ recently had an article about how to avoid exploitation of the elderly by a family member. They recommend

1 Getting Expert advise who knows the ins and outs of estate planning. I would also recommend using a Florida Estate Planning Lawyer who is familiar with Florida Elder Law.
2. Be careful of Joint accounts as they can take the money or create ineligibility for nursing home coverage.
3. Consider "Springing" Powers of Attorney or as we call them contingent Durable Powers of Attorney as they only give powers once you are incapacitated.
4. Choosing Wisely which may mean not choosing a family member or the oldest child because of emotional reasons.
5. Having Checks and Balances by using more than one person to make decisions and to avoid fights.
6. Selecting someone to monitor your accounts. This person can be a trusted advisor and should have the ability to question and stop inappropriate actions.

David Goldman of Apple Law Firm, Florida Estate Planning Lawyer Blog, and NFA Gun Trust Lawyer Blog became a member of the Estate Planning Professionals network (EPPN) of the NRA. The next EPPN event will be held in conjunction with the NRA Annual Meeting in Charlotte, North Carolina in May 2010.

As a member of the EPPN, David can modify wills and trusts with language that can be added to Florida Wills and Trusts to make bequests to the national Rifle Association or any of the NRA charities or endowments.

Florida Revocable Trust's as well as those created in other states often have language that provides for the health, education, maintenance, and support of our spouses and children. Recently I was reading an article written by a CA Estate Planning Lawyer and firearms instructor on providing firearms training as an option within the definition of education. David R. Duringer wrote an article entitled Does the Definition of Education in Your Revocable Trust Allow for Firearms Training? and while it is a short article and only deals with firearms education, it got me thinking about other types of education and training that may be important to your beneficiaries or family tradition that you may want to include in your traditional revocable trust. Obviously this is something that would make sense to provide for in a NFA Gun Trust or a firearms trust designed specifically for firearms. In David's article he goes on to state

Such training can provide your children with the comfort of skill at arms so they can protect themselves and their own children, and furthermore, passes on American values necessary to preserve political independence of families in our society. Other benefits of such training can include increased personal responsibility and lower juvenile delinquency rates.

You may even want to go further with an incentive trust provision actually requiring this training, possibly with achievement standards.

Canadian-based TV production company – CMJ PRODUCTIONS - is currently shooting a new documentary series called, ‘The Will’ airing on INVESTIGATION DISCOVERY.
"The Will" tells the true life stories of complex and surprising disputes that have arisen surrounding a will, estate or trust.

The series is now accepting story submissions to appear on-air. They are looking for dramatic, unusual stories with numerous twists and turns, secrets and real emotion. Most importantly, all cases must have reached a final ruling or settlement in order to be considered. The company wants to interview all parties involved as well as their legal representatives.
Stories from Canada, the United States or the United Kingdom will all be accepted.
The goal of this series is to objectively illustrate both sides involved.

Each episode will explore why each party felt entitled to the involved inheritance and why they might have thought that others were less deserving than themselves.

Involvement with the series offers a great opportunity for legal experts to help viewers to deepen their understanding of the importance of wills and estates.

If you would like to participate in this series, or have a case you think they should profile, please contact researcher Ramelle Mair at r.mair@cmjprod.ca.

For more information on the production company, feel free to check out the company website at:

www.cmjprod.ca (CMJ Productions, 100-640 Notre-Dame, Saint Lambert (Quebec), Canada, J4P 2L1).

Will Contest Clauses are generally included to prevent children or beneficiaries from attempting to dispute their portion of an estate. In some states they are valid and many others like Florida they are not valid by statute.

Given that a No Contest Clause in a Will is invalid in a Florida Probate case, should they be used in Florida? If your will is contested and the end result under the state statute may be the same, it may provide any benefit to include the no contest language.

Today people move quite often and may have assets in other states that do recognize Will Contest clauses. Given that one of these situations may enable a no contest clause to be enforced, it might be a good idea to include them in your Florida Estate Planning Documents.

Under the Florida Trust Code a Florida Revocable Trust is not able to have a contest clause, unless the right to revoke the trust terminated prior to October 1, 1993.

While its not possible to have a no contest clause in a Florida Revocable Trust, Florida does allow a trust to specify the laws of another state to be used in interpreting and administering the trust. So in effect, by drafting your trust correctly, you can have a no contest clause.

There are several ways to accomplish the desired results from a no contest clause in a will or trust. To discuss your specific issues and how one might benefit you, contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer

Many of my Jacksonville Estate Planning clients ask me when and how often they should review their Florida Estate Plan. I like to recommend that people take a look at their situation on a yearly basis and if they notice any of the following, they should make an appointment with their Florida Estate Planning Lawyer.

1. Change or contemplation of change in Marital status;
2. Death of spouse;
3. You or your spouses' health changes;
4. Death or change in the health or marital status of a trustee, executor, guardian, or beneficiary;
5. If you change your residence or move to another state;
6.. Change in or anticipation of the number of children or grandchildren whether by blood or adoption. Consider step-children also;
7. Any disabilities, health issues, or significant factors on lifestyle of children or grandchildren;
8. If you buy, sell, or contemplate buying or selling a business.
9. Upon the discovery of a hereditary issue that will or might affect you in the future; or
10. Change in tax law or its been more than two years since you reviewed your plan with your attorney.

As the use of genetic material becomes more accepted, the issue of what and how to deal with it has begun to be an important part of estate and trust planning and administration. Not only could this change distributions or dilute inheritance, but without guidelines or requirements for the disposition of genetic materials, there could be a conflict between the legal requirements of a trustee and what is ethically permissible as well as legal at the time of your death. The Wills, Trust & Estate Professors Blog has an article that references Jerry Coopers's article on Trust Administrators Tool-Up for Custody and Care of Client's Genetic Property.

If you are a resident of the state of Florida, you may create a will in another state. You do not have to create a Florida Will or execute a Florida Will within the state of Florida.

There are some areas of a will that even if executed in another state may not be valid in Florida. For example many states do not have the same restrictions on who can be a guardian or the formalities required to execute a will. Most wills, other than with a holographic will, that are validly executed in another state will be valid in Florida.

Florida requires that holographic wills be executed with the same formality as another will and does not recognize the exceptions for a handwritten will that some other states do.

In a Florida Will you must name a relative or resident of Florida to be a guardian for a minor child.

If you would like a Florida Will created for you or would like your Florida Will updated or reviewed please contact a Florida Estate Planning Lawyer

A Florida Will provides instructions on how to distribute your assets upon your death. Many people believe that if they do not have a Florida Will their assets will be taken by the state. This is not true. Florida has a default will for all individuals built into the the Florida Statutes. If you die without a will, your assets will be distributed to your spouse and children, and then your parents, siblings, nieces and nephews as proscribed by Florida Law. For more information on this request our Florida Probate Handbook for free. If you want to be able to specify who will receive your assets and not depend on the state's view, you must have a Florida Will.

There are some issues that are not discussed in the statutes. Who will take care of my children? What will happen with my body? Only a Florida Will will prevent the State of Florida from making these decisions. If you have minor children you should have a will to determine who will be the guardian of the children in the event of your death.

There are many times when its a good idea to update your will which include if you purchase or sell real property, if your marital status changes, if your financial condition changes significantly, and if you have children or grandchildren you would like to recognize in the event of your death.

Today we find that online and software services have scared many people about the price of using a lawyer to prepare a Florida Will. They state that you could spend thousands of dollars to prepare a will with an attorney and that theirs is just as good. While its possible that you could prepare a Florida Will that does exactly what you want, the problem is that you only die once, so you do not know what the effects of your desires will be. By talking with a lawyer who have prepared many wills and dealt with the effects of them you get the benefit of experience that you will never obtain. Most wills that are prepared by an attorney are very reasonable when you consider the potential for problems that can arise when you write your own will. For illustrative purposes, we typically charge $200 to prepare a will and discuss your options and the potential risks for the choices you will make.

If you would like to discuss preparing a Florida Will you should contact a Florida Estate Planning Lawyer or a Jacksonville Estate Planning Lawyer

Florida Special Needs Trust Lawyers & Florida Supplemental Needs Trust Attorneys.

Florida Families who have disabled children had a greater need for a Florida Estate Planning Lawyer to prepare for the possibility that they do not outlive their children. When people have disabilities or special needs, its important to parents to provide for their welfare while you are alive. There are also significant advantages to creating a Florida Special Needs Trust or a Testamentary Special Needs Trust.

When assets are left to an individual with special needs in a normal trust or outright, it could disqualify the individual from government benefits as well as require that any remaining assets be paid to the government for reimbursement of services provided during the individual's life.

By using a SNT or Florida Special Needs Trust one can usually choose a remainder beneficiary, that is who will receive any funds that are not used by the individual with the disability during their life.

In addition, without a Florida will with a valid guardian clause, the state will determine if your child ends up in foster care or who will be the guardian over your child.

Contact aFlorida Trust Lawyer to discuss how a Florida Trust Lawyer can help you and your family.

This morning I woke up ready to leave on a trip to NY with my family. We had had this trip planned for several months and my wife and I like to travel a lot. As I got out of bed, something happened and I fell and hit my head on our new tile floor. Within seconds there was blood everywhere and I became disoriented. After spending more than 12 hours in the hospital, and after having been treated by one of the nicest Jacksonville Plastic Surgeons's that I have met, I began to think about how many estate planners take their own advice and have documents that are up to date and trusts that are funded.

I first became concerned with my Florida Estate Plan when I was going to London for an extended time and there had recently been some bombings in London. My wife refused to go, or let me go, if our plans were not set in writing prior to our departure.

Today as I sit in the hospital, I am thinking that If I did not have plans and my injury would have been more serious, it may have been more difficult for my wife to speak on my behalf. What if I have had a heart attack, stroke, or just been unconscious as a result of my fall and injury.

In the end, none of these documents was necessary, but it was comforting to know that they were in place if they were needed. While the emergency room did ask if they existed, they did not ask for a copy, nor would it have been easy to produce a copy upon admittance. The next thing I will do is keep a copy of them on my iPhone, and my wife's iPhone in case they are needed.

It just goes to show you that you never know when you might need Florida Estate Planning Documents. While my documents are up to date, I know most people do not have up to date Florida Estate Planning Documents. At the Apple Law Firm, we practice what we preach because each of ourselves place our family in harms way daily when we drive, walk down the street or get out of bed. If you would like a free review of your Estate Planning Documents under Florida law, let me know and I would be happy to make sure your documents are up to date and you understand what your options and obligations are.

One of the best benefits of a good estate plan is avoiding Florida Probate. To learn what is involved with a Florida probate request the Free Florida Probate Handbook

Florida Estate Planning Documents can be lost during a hurricane or tropical storm. Just when a Florida Will, Power of Attorney, or Florida Living Will, Designation of Health care Surrogate & HIPAA release.

You should protect your original signed documents by keeping them in with in waterproof container and if possible off the floor or at a bank in a safety deposit box A scanned copy of these documents should be keep with your and made available at an off site storage facility like Google or any free document storage provider.

If you home is damaged and is inside a Florida Revocable Trust you may have to provide an original copy of the trust to the insurance company.

As the storm season approaches, it may be a good idea to update your Florida Estate Planning Documents with any changes in your family or financial circumstances so that your documents are up to date with your intentions and your capabilities.

Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida, A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration.

(a) At the rate of 3 percent for the first $1 million.
(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
(c) At the rate of 2 percent for all above $5 million and not exceeding $10 million.
(d) At the rate of 1.5 percent for all above $10 million.

(a) The sale of real or personal property.
(b) The conduct of litigation on behalf of or against the estate.
(c) Involvement in proceedings for the adjustment or payment of any taxes.
(d) The carrying on of the decedent's business.
(e) Dealing with protected homestead.
(f) Any other special services which may be necessary for the personal representative to perform.

If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.

Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:

(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;
(b) The responsibilities assumed by and the potential liabilities of the personal representative;
(c) The nature and value of the assets that are affected by the decedent's death;
(d) The benefits or detriments resulting to the estate or interested persons from the personal representative's services;
(e) The complexity or simplicity of the administration and the novelty of the issues presented;
(f) The personal representative's participation in tax planning for the estate and the estate's beneficiaries and in tax return preparation, review, or approval;
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;
(h) Any delay in payment of the compensation after the services were furnished; and
(i) Any other relevant factors.

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

In Florida, the custodian of a will is required to file the will with the court having jurisdiction over the decedent within 10 day of learning that the testator is dead. As Florida Probate Lawyers we often have clients who are wanting to see a family members will but are not provided with one. Although you may not have a right to get one from the custodian, you can require them to file it in the court and then obtain a copy with the court.

If the custodian refuses or delays in filing the testator's will timely (within 10 days) you may file an action to require compliance with the Florida Statutes. In such a case, you are entitled to be reimbursed all costs, damages, and a reasonable attorney's fees.

We often send demand letters for our clients requesting the will to be deposited with the court prior to filing actions on their behalf. If you would like to learn more about this and how you can obtain a Florida Will Contact a Florida Probate Attorney to discuss your situation.

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

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

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

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bad will articles popping up all over the place

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

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

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

Others have covered this topic also

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

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

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

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

Although the state of Florida accepts wills created in other states when they were valid in the state where created, not all of the will may be valid. Recently, I ran across a will that named an accountant of the decedent as their Personal Representative. Several months later the decedent moved to Florida and eventually died without updating the will.

The problem started with the fact that the accountant was not related or married to someone who was related to the decedent. This is a disqualification of a Personal Representative in Florida. The result was that the decedent did not get to choose their Personal Representative.

If you have a will that was prepared in another state and want a Florida lawyer to review it for compliance with Florida law so that your desires are carried out upon your death, Contact a Florida Estate Planning Lawyer to review your Estate Planning Documents.

The Florida Constitution protects one's Homestead from creditors. One provision that is often misunderstood is a devise of a homestead in a will when there are minor children in the family. In some cases two people are getting married and one has a home and a minor child. The spouse may draft a will that states that the home goes to the future husband, but what happens if the spouse dies before the child reaches the age of 18?

Under the Florida Homestead Protections, the house does not pass as the will states, but the homestead goes to the minor child with a life estate going to the surviving spouse. Sometimes this appears to be an intentional mistake in a will to appease a future spouse but the clause does little to provide a fee simple ownership the the decedent's homestead.

If you are getting married or your spouse had a home prior to your marriage that is now your Homestead, be careful that any attempted devise of the home when there are minor children will create a default condition establishing a life estate for the surviving spouse and remainder for the children even if one is a minor.

To have your will reviewed for invalid clauses or to update a Florida will Contact a Florida Estate Planning Lawyer

LegalZoom and RocketLawyer are two of the many online services that allow individuals to create their own wills at low costs. Many times they are below the cost for a single hour of legal time from an attorney. The real question is whether they are a good value for individuals. Rebecca Kennedy with Everyday Simplicity Blog has a detailed analysis of the positives and negatives where she quotes a previous article on some of the problems with RocketLawyer that I previously wrote about.

Rebecca states that although the prices are low and may serve your needs, you are taking a risk by using these document services to create estate planning documents. She points to the following:
What if the will is not valid after you die?
What if the incorporation documents are not respected or as complete as necessary in a future civil suit.
What if your assets are not protected because of the choices that were made?
What if divorce documents are not valid?

With LegalZoom or RocketLawyer you have to hope that you get far more than you pay for.

Legal Zoom and RocketLawyer cannot and do not claim to be up to date with the ever changing state laws and do not offer any legal advice.

Often I see clients who have created perfectly valid legal documents with free or low cost providers but do not realize the problems they have created by executing them. Many families are unable to get Medicaid coverage for their loved ones because they executed a deed to transfer property. The use of an attorney offers far more than creating documents; the lawyer will examine your current and future circumstances to make sure the choice you are making will not cause problems down the road.

If you are looking to create a Florida Will or Florida Estate Planning document Contact a Florida Estate Planning Lawyer to discuss your circumstances and create documents that do what you want.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Florida Living Trust is a Florida Revocable Trust created while a person is alive, while a Bypass Trust is usually a testamentary irrevocable trust. Some Bypass Trusts are created by a Living Trusts or even Florida Will.

A Trust is an ownership arrangement where property is held in the name of a "trustee" rather than in the name of the person who really owns the property. It is a separation of legal and equitable ownership. People often create Living Trusts for their own benefit, to avoid probate, address the possibility of future incapacity, or keep their finances private.

Normally, the person who creates a Living Trust names himself or herself as trustee and as beneficiary. Upon that person's death, all or a portion of the property which remains in the Living Trust passes according to the terms specified in the trust agreement.

A Bypass Trust is created when a husband or wife dies and their assets are more than the estate tax deduction. Currently this is when a couple is worth over $2,000,000. The Bypass Trust is a way to shelter the first spouse's $2,000,000 exemption from taxation when the surviving spouse dies, thereby doubling the amount that can be left tax-free to $4,000,000.

Also a Bypass Trust can protect the trust property from creditors' claims, and allow the deceased spouse to direct where the trust property passes when the other spouse dies.

It is important to keep your Florida Estate Planning Documents safe. In some cases if the original documents are lost, a copy is as good as the original. With the will, the original is the document that is important.

Some people choose to keep originals documents at their Florida Estate Planning Lawyer office, in a bank vault, with other people, or at home in their filing system. It is important to let someone know where they will be kept in case they are needed.

People have different views on their Florida Estate Planning Documents. Some do not want to disclose them and others want to openly disclose them with their family and friends.

Each person has to look at their family circumstances and determine the risks and benefits of sharing their documents as compared to keeping them private.

Sometimes when the documents are kept private, it is important to let someone know how to obtain the documents in the event they are needed.

It is important to remember that your will is different than your other Florida Estate Planning because it is the original that is important. A copy of any other Florida Estate Planning Documents is the same as the original, but only the original Florida Will can be deposited with the court.

Some people are afraid that family members will destroy the original Florida Will in order to change how property is distributed at death.

Documents like living wills and medical powers of attorney should be given to your agents before the need arises for their use.

Some people pick a Personal Representative that does not stand to inherit property under the will and give them copies or instructions to follow upon their death.

It is generally not advisable to pick a PR or trustee that you have concerns about are.

Most wills distribute property as expected or evenly among their family members. In such a case it is a good idea to distribute copies of the documents to everyone and keep them updated with changes.

If there is a sudden change in the terms of the will, it may give the other family members reason to suspect that there might be something wrong with the documents.

One of the nice advantages of a Florida Revocable Trust is that you can not designate an individual to receive notice who is different than the beneficiary. This helps to keep the subject matter and contents of one's estate private. For those who are interested in privacy a Florida Revocable Trust may be a solution.

In Florida when an individual left their Florida Will in a bank vault or safety deposit box a court order is necessary to open the box unless there is a joint owner on the account.

The process involves having a judge issue an order to inspect the contents of the box. If there is a will it should be deposited with the court in the probate proceeding.

If you need help getting a Florida will that is stored in a safe deposit box at a bank, you should Contact a Florida Estate Planning Lawyer

In Florida an encumbered property shall be entitled to have the encumbrance on the property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in a will to pay the debts does not show that intent (Florida Probate Code Section 733.803 , Florida Statutes (2002))

In a recent case a Personal Representative tried to make the argument that since the debt was paid off a mortgage during the probate proceeding and that the above rule only applied if the debt was in place at the time of the distribution. In re Estate of Woodward (Fla. 2d DCA Apr 09, 2008)

The court said that the PR could not rewrite the decedents will and pay off the mortgage. The Florida Probate Code makes it clear that without a specific instruction in the will the property was to pass with the encumbrance.

If you are a PR or a beneficiary of an estate in Florida and you have a question about whether you can pay off a mortgage, Contact a Florida Estate Planning Lawyer to discuss your circumstances.

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.

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.

Invalid transfer of Florida Homestead with do it yourself deed leads to unintended consequences!

Man wants his second wife to have a life estate in his homestead after his death with the remainder to go to his children and not his second wife's children.

His mistake, he used a preprinted deed and filled it out wrong. The court found that he did validly convey a life estate to his wife, but did not convey the remainder of the property to his daughter because it must have been signed by both spouses.

The property went back to his heirs per stripes after his spouses death and not to his daughter as intended.

Florida's homestead provisions make it difficult to properly convey real property as you desire. There were valid ways of conveying the property correctly, but a preprinted form does not deal with non traditional families or non traditional conveyances.

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

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

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

Arthur v. Milstein. et al, 949 So.2d 1163 (Fla. 4th DCA February 28, 2007)

In this dispute regarding who controlled the disposition of the body of Anna Nicole Smith, the trial court ruled that the guardian ad litem for her minor daughter Dannielynn had priority over Anna Nicole Smith’s mother based upon interpretation of Florida Statutes section 406 defining a "legally authorized person" upon whom a funeral home can rely to receive burial instructions. The appellate court indicated section 406 simply protects a funeral home from liability, and Florida common law applies regarding who has the right to possession of the body. The court found the trial court’s ruling was "the right result, but for the wrong reasons," and based upon evidence indicating the intent of Anna Nicole Smith, affirmed the trial court ruling.

This issue could have been avoided with a properly drafted Florida Will. If you would like your Florida Will reviewed please Contact a Florida Estate Planning Lawyer.

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.

Rules regarding wills are usually based upon where the will was created. The general rule is that when a Will is valid at the time of creation, Florida will honor the will.

There is an exception to this and it regards certain handwritten or holographic wills. a Holigraphic Will is not valid in Florida unless it complies with the Florida Statute of Wills.

So even while your Mom's handwritten will in California may be valid, it will not be valid in Florida. To make sure you have a valid Florida Will please Contact a Florida Estate Planning Lawyer

A Los Angeles judge has decided that the young daughter of former Playboy bunny and television personality Anna Nicole Smith will inherit her estate.

Although Smith's will, drafted before her now 18-month-old daughter was born, gave everything to her son, Daniel, it also said she intended that the assets in trust for him be shared equally if she had future children, reports the Associated Press. Meanwhile, Daniel died, at age 20, three days after Smith's daughter, Dannielynn, was born in 2006. Smith herself died about five months later, in early 2007, of an accidental prescription drug overdose.

She is perhaps best known as the young wife of an elderly Texas oil billionaire, J. Howard Marshall II. The two married in 1994, when she was 26 and he was 89. He died a little over a year later, and litigation over his estate is still ongoing. If Smith's estate prevails or a settlement is reached, her daughter could potentially inherit millions, Reuters points out.

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.

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.

Britney’s dad had was appointed as conservator of her person and co-conservator of her estate, which means her dad is now in control of what Britney can do, who she can see, and he’s controlling all access to her bank accounts and credit cards.

Over the weekend, Britney attempted to hire her own lawyer to fight her dad’s attempt to take over her personal and financial affairs.

But, the Court refused to recognize Andrew Streisand as Britney’s lawyer because the court-appointed lawyer assigned to evaluate Britney said that Brit doesn’t have capacity right now to hire her own lawyer.

You’d think that someone with her wealth would have a Will , a Revocable Trust , Health Care Directives, Powers of Attorney, Guardian Nominations … basically a comprehensive estate plan.

It’s too late now for Britney, but it’s not too late for you … today having a personal lawyer is both accessible and affordable and if you own your home, care about your family, and want a trusted advisor to call when you are in crisis, you should have your own. To create of review your Florida Estate Planning Contact a Florida Estate Planning Lawyer.

As the Percentage of Florida Millionaires continues to rise, the need for more complex Florida Estate Planning continues to increase.

When ones assets are significant the benefits of a Florida Revocable Trust in conjunction with a Florida Will are increased. Florida's probate fees can rapidly approach 30,000 dollars on some of these estates. These fees can be greatly reduced or eliminated with proper planning. Even Florida residents who have a Florida Revocable Trust may need some additional documents to avoid probate. One such document that Florida's millionaires might consider is the Florida Enhanced Life Estate Deed or Florida LadyBird Deed .

To discuss what steps you family can take to reduce your estate taxes and probate fees, Contact a Florida Estate Planning Lawyer to discuss your situation.

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.

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.

How is a Florida Estate Plan different if you or your spouse is not a citizen of the United States? The Connecticut Elder Law Blog reported in an article that if non U.S. citizens have a completely different set of estate tax rules to contend with.

If the U.S. citizen dies first, then the estate tax could become due at that point and the government does not wait until the death of the second spouse like when both are U.S. citizens. Michael Keenan states that the a common approach is to use a QDOT to deal with this issue.

if you or your spouse is not a U.S. citizen you should contact a Florida Estate Planning Lawyer to understand how this can affect your estate planning.

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.

A number of Texarkana residents have filed suit against sellers of living trust documents in a class action accusing the salesmen of exploiting senior citizens. This is similar to what I reported happening in California in December.

A Plaintiff says he purchased a living trust after attending a lunch presentation at a restaurant. He states the document was misrepresented and that if he dies with only these estate-planning documents, his estate will still need to be probated because the living trust failed to factor in his real property in Arkansas.

The living trust sellers are facing allegations of "masquerading as qualified financial advisers, estate planners, lawyers, and paralegals" to "exploit and prey" upon senior citizens with the creation and selling of "unnecessary and often useless" living trusts.

Defendants are accused of fraud, unauthorized practice of law, negligence, breach of fiduciary duty and conspiracy. The suit alleges that the defendants created and sold the living trusts as part of a scheme to gain access to senior citizens' financial information in order to sell annuities and other financial products.

According to the original complaint, the scheme begins with advertisements that persuade senior citizens to attend a free lunch or dinner. At these meetings, the "unlicensed" living trust defendants conduct presentations and distribute materials that misrepresent the impact of probate fees and estate taxes in order to create fear that the senior citizens need to buy a trust to prevent heirs from losing their estate.

These presentations include references to celebrities such as Elvis and describe the large amounts these celebrities have paid in estate taxes. The plaintiffs state these presentations do not include information about the federal estate tax exemption, the sliding scale of the exemption amount, or the possibility of the elimination of future estate taxes.

Further, the presentation does not tell senior citizens with estates larger than the exemption amount that the purchase of these living trusts will not automatically eliminate all estate taxes. The forms and decisions made by the defendants fail to take into account the entire senior's assets and ultimately and fail to serve the legal purpose as presented, argue the plaintiffs.

The plaintiffs claims the presentations convince the senior citizens to use their IRA accounts or other tax-exempt growth products to purchase variable annuities. However, according to the plaintiffs' accusations, the presentations and documents do not demonstrate the redundancy with regard to a variable annuity's tax deferral benefit when purchased in a qualified plan and also do not inform the consumer of the associated fees, surrender charges and commissions associated with these variable annuity products.

These types of programs are everywhere. It is important to use a lawyer who will look at your individual assets and who is not trying to sell you other financial products. To review your estate planning needs contact a Florida Estate Planning Lawyer.

Part of Florida Elder Law planning and Florida Estate Planning includes planning for funerals. medicare exempts prepaid funeral plans in Florida and many other states. Sam Hasler of the Indiana Civil & Business Lawyer Blog has an article about this. He has an article dealing with the these by a cash purchase and funding them by insurance policy.

Setting up a prepaid funeral trust means going to the funeral home and selecting the sort of funeral you want. Before going to the funeral home, you should read the Federal Trade Commission's Funerals: A Consumer Guide. The FTC's Funeral Home Rule requires a funeral home to display a price list that includes all goods and services the funeral home will provide to the buyer. The funeral trust funds whatever the buyer selects.

I know no one likes to consider Florida Wills, Florida estate planning or funerals, but not doing can leave your survivors making the choices and may leave them in the same position as the Randolph family.

If you will be needing to qualify for government assistance, it is important that your funeral plan will qualify. Please contact a Florida Estate Planning Lawyer for help in determining eligibility for these programs.

Florida residents should start the New Year off right, here are ten important Florida estate planning and Florida probate and tips for the New Year.

1. If you don’t have a Will, get one.
Florida estate planning and Florida Probate tip #1: Have a Florida Will. If you don’t have a Florida Will, get one. In particular, married couples with children from prior relationships should always have a Florida Will. Otherwise, the state will decide who gets the money at death.

2. Get a Medical Power of Attorney and Advanced Medical Directive.
Florida estate planning and Florida Probate tip #2: Along with a Will, everybody should have a Florida medical power of attorney and an advanced medical directive. A Florida medical power of attorney designates an individual to make health care decisions for you should you be unable to do so. An advanced medical directive, commonly called a living will, states in advance what you want in the way of life sustaining treatment when death is imminent or when you are in a persistent vegetative state.

3. Review all beneficiary designations on life insurance, retirement accounts, and other financial accounts.
Florida estate planning and Florida Probate tip #3: Review all beneficiary designations on life insurance, retirement accounts and other financial accounts. You may be surprised at what you find. Do not settle for a verbal confirmation. Make sure you see the documents.

4. Get a permanent life insurance policy.
Florida estate planning and Florida Probate tip #4: Evaluate the need for permanent life insurance. Liquidity is important in life and at death. The lack of liquidity at death can increase legal fees and cause property to be sold for less than its actual value – far less. Even a small amount of life insurance is better than none.

5. Put your permanent life insurance in a life insurance trust.
Florida estate planning and Florida Probate tip #5: If you have substantial, permanent life insurance, consider putting the life insurance in a life insurance trust. Moving your life insurance into a life insurance trust removes the insurance from your gross taxable estate for federal estate tax purposes and protects the insurance policy from creditors. This can save you 45% or more of the policy value.

6. Put your inheritance in an irrevocable trust for asset protection.
Florida estate planning and Florida Probate tip #6: Get it and give it in trust. When you give an inheritance in an irrevocable trust, you also give some level of asset protection. If you are the potential recipient of an inheritance and if you have the ability to speak openly with the person making the gift, consider suggesting that the gift be made in some form of irrevocable trust. There is some cost to a gift in trust. However, the asset protection benefits typically outweigh the cost.

7. Put all your estate planning documents in a safe deposit box.
Florida estate planning and Florida Probate tip #7: Obtain a safe deposit box and put your original Florida estate planning and other important documents in the box. Fire safes and file cabinets are certainly better than nothing if you let somebody know where to look. However, many Wills vanish or are lost shortly before death. If the original cannot be found and the original was last seen in your possession, Florida courts presume that you destroyed or revoked the Will. While a copy of a Florida Will can sometimes be probated in a Florida probate, it can be expensive and not always successful.

8. Protect your heirs against local expensive probate proceedings.
Florida estate planning and Florida Probate tip #8: If you own real estate outside of the state where your Will is to be probated, make sure that transferring the real estate to your heirs will not require a local, expensive probate proceeding. This can be accomplished several ways. Some states have a simplified probate procedure for making the transfer without opening a local probate proceeding. Other states allow for beneficiary designations through something called beneficiary deeds. In most states, the probate process can be avoided by transferring the real estate into a revocable trust. Otherwise, be prepared to spend several thousand dollars to make the transfer after the death of the owner. Note: Property in a foreign country can be very expensive to transfer upon death. Also pay attention to foreign estate tax. Unlike the United States, the estate tax can vary greatly based upon whom you give the property to at death.

9. Leave property to your husband or wife in trust.
Florida estate planning and Florida Probate tip #9: Consider leaving property to your spouse in trust instead of outright. The trust accomplishes three goals.

1. Avoiding estate tax.
2. Protecting the assets from the surviving spouse’s creditors.
3. Controlling how the remaining funds are distributed.

10. Know if your state has state or estate/inheritance taxes.
Florida estate planning and Florida Probate tip #10: If you have a tax planning estate plan, know whether your state has estate tax. Florida does not have any estate tax, but if you become domiciled in another state your estate may be subject to estate taxes. Many states are implementing estate or inheritance taxes.

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.

Often the first thing that comes to mind with Florida Estate Planning is a Florida will or Florida living trust. Although these are valuable documents they do not have any effect on the distribution of many assets.

We recommend that our Jacksonville residents make sure their beneficiary designations are updated as these control the distribution of many assets. When a Florida Living Trust is part of an estate plan, you can designate your trust to be the beneficiary of most assets. It is important to make sure that the trust is the proper beneficiary. With some assets like retirement plans, you may not want your trust to be the beneficiary as it can have adverse consequences when charities are named as beneficiaries of the trust.

Your beneficiaries need to be updated on a regular basis and in the event of a life event (birth, death, marriage, divorce...). We recommend naming contingent beneficiaries in these documents.

You should review your Florida Estate Planning Documents with a Florida Estate Planning Lawyer to make sure your intentions are fulfilled.

Starting January 1, 2008 every non-spouse designated beneficiary will have the option to rollover an inherited IRA and stretch distributions. To take advantage of this opportunity your Florida estate plan must be setup correctly to qualify for this rollover opportunity. You are not entitled to a rollover, you must prove you meet the technical legal requirements. Let’s take a look at why your family would not qualify for the new IRA rollover opportunity.

The IRS has very specific rules for how a trust can qualify as a see through trust and treated as a designated beneficiary. The top level bullet point requirements are:

The trust must be valid under state law;
The trust must be irrevocable or become irrevocable when the IRA owner dies;
The trust beneficiaries must be identifiable from the trust instrument;
Proper documentation must be provided to the IRA custodian.

The most common issue is the requirement that beneficiaries be identifiable from the trust document. Often trust documents do not contain adequate language to comply with the IRS rule. Make sure you have the proper language to qualify for rollover treatment.

Rollover treatment is a privilege, not a right. Your family will not qualify for rollover treatment if you do not follow the rules in your estate plan. Make sure you and your Florida Estate Planning lawyer or attorney understands the requirements and that your estate plan doesn’t fall apart on this critical issue.

Here are some of the more common rationalizations for not creating a Florida will, and the facts that quickly dispel those "myths."

Myth: "My estate is so small that a Florida will or estate planning is not needed."

Think again. Few people are have so little value as to not require estate planning. Did you add the value of your home, car, furniture, jewelry, savings account, retirement accounts, life insurance, and investments. Even if some items do not hold monetary value, they could have sentimental value. Failing to indicate who receives these items will can cause disagreements between family members that can last forever.

Myth: "When I die, my spouse will get all of my assets."

If you and your spouse own assets jointly, at death your share of the assets will automatically go to the surviving spouse. If you have separate assets, you have to look at the states statutes to figure out who gets them. Also what will happen when your surviving spouse dies? What will your children receive? What if your children are not your husbands children? Does your spouse know how to manage the family wealth? If your spouse remarries, some or all of your spouse's assets may wind up in the hands of his/her new spouse or the new spouses children and not your children.

Myth: "I don't want my final wishes to be set in stone. I'll create a will later in my life."

A will is an extremely flexible document whose terms can be changed as often as needed. In fact, any estate planning lawyer will tell you that a Florida will should be re-examined periodically to make sure it is up to date. A Florida will should receive a checkup whenever there is a substantial change in your life. Remember, the terms of a will only become effective at death.

Making a will is not expensive or difficult, but it is a legal document and must be properly prepared. It is usually best to contact an Florida Estate Planning Lawyer or Attorney who will be able to help with the precise wording to make sure your wishes are clear and that they are carried out exactly as you wish. Although it is not advisable, there are software options for the creation of wills, you may read about some of the problems that have occurred because individuals used preprinted wills or software created wills.

There is nothing wrong with putting your house in order today as tomorrow may be too late.

More about Anna Nicole's will
According to Jay MacDonald , You can accidentally disinherit your heirs,

Here are the 7 ways to disinherit your kids which Mr. MacDonald discusses:

1. Failure to update a will
2. Faulty will
3. Stepparent succession
4. Ademption
5. Misunderstanding survivorship
6. Mirror-image grant
7. Failure to prepare a will

Although children have no legal right to inheritance throughout most of the United States, many states do provide protection against accidental disinheritance. Because she was born after the execution of Anna Nicole's will, Dannielynn will likely be considered a pretermitted child that was accidentally disinherited, and thus will likely inherit the bulk of Anna Nicole's estate.

if you have a will you should review it, if not you should create one. For help with your will see a Jacksonville Estate Planning Lawyer.

If you feel that something is wrong with a Florida will because you are left out or your distribution doesn't seem fair, is there anything you can do?

If you believe a Florida will is not valid, you may be able to contest it. Proving a Florida will is invalid is a difficult process but not impossible. You must have some right to property to contest a Florida Will. You can not contest a will for someone when there is no indication that you would be a beneficiary.

Often wills contain no contest clauses voiding a persons interest if they contest the terms of the will. In Florida will contest provisions are invalid and ignored. If there was no will and you would inherited or become a beneficiary of their estate than you may have standing to contest the Florida Will.

Assuming you have standing to contest the will, the will can be contested only in certain circumstances; there must be evidence that something is wrong with the will. The situations in which a will may be contested are:

Mental incapacity: If you believe the decedent did not have the mental capacity to write the will it may be grounds for a will contest. To prove mental incapacity a statement from a doctor who examined the person around the time the will was created is beneficial. Medical records and witnesses can also be used to establish mental incapacity.

Fraud: Sometimes a person is fraudulently induced into signing a will. If fraud occurred or the Florida will was signed without the person knowing it was a will it may also be contested as fraudulent. Another type of fraud occurs when someone signs a will under a mistaken believe that caused a change in the will or the distribution of assets to a beneficiary.

Undue Influence:Often caretakers, friends, or children are in a position to exert undue influence over a person and induce them to change or create a will. Wills can be contested on the basis of undue influence. In some cases with a child, spouse, or agent there is a fiduciary relationship. When there is a fiduciary relationship the burden of proving undue influence can shift to that person to prove that there was no undue influence.

Not Executed Properly: On other way to contest a Florida will is to check and make sure that it was executed properly. A Florida will must comply with the statute of wills and be signed by the creator in the presence of two witnesses who each see the signing process. In addition a Notery must authenticate the signatures. If the Florida Will or Florida Trust was not witnessed properly, it may be invalid.

If you want to contest a Florida will, you should contact an Florida will contest lawyer immediately because a claim will need to be filed timely with the court.

Could you imagine an Estate Planning Lawyer selling wills or estate planning documents with a disclaimer in small print that your documents may not be valid in Louisiana or some other state.

Today I found another example of when using quicken is a bad idea. Paul Rabalais the author of Estate Planning in Louisiana: A Layman's Guide to Understanding Wills, Trust, Probate, Power of Attorney, Medicaid, Living Wills & Taxes and Your Louisiana Estate Planning Blog wrote an article about how buying Quicken can be the Worst Buy at Best Buy. Apparently there is a small print on their software which says Estate Planning documents Not Valid in Louisiana. I wonder what other states their documents are not valid in. I have examined several trusts created by quicken, and they do not address the new Florida Trust Code that was implemented in 2007.

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

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

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

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.

A recent article on Your Louisiana Estate Planning Blog, For Families With More Than $2 million of Assets: Bad Wills Can Cost You $1,000,000 talks about how poorly drafted wills can quickly cost your over $1Million in estate taxes. I see several clients a month that would have tax bills in excess of 1 Million dollars upon their death.

For those of you who have assets in excess of 2 million or expect to have assets in 2011 in excess of 1 million dollars, did you know that almost 1/2 of your estate will go to pay the tax bill?

If you have substantial assets and want to leave them to your family instead of the government, talk to a Florida Estate Planning Lawyer about how to structure your assets.

Today I found an article on where an individual purchase a preprinted will form and filled in the blank space incorrectly. He hand wrote:

My shares of Lee Bros. Holding Co. My property of 817 North Park St., Victoria, B.C. and 35% of cash & bonds to my brother Horace. 35% to my sister Estelle of cash & bonds. 35% divided evenly for my sisters Elsie, Edythe, Effie and my brothers Harold & Henry of cash & bonds.

A few months later Mr. Henry Lee died with over $2,600,000 in assets. Apparently the will was witnessed prior to the blank being filled in and this did not meed with the formal requirements of a will.

The Rule of Law has an extensive review of this case.

In the final ruling the Judge said:

Hubert’s contributing action was his honest, but ill-advised decision, to use a store-bought form will without involving a lawyer. Horace’s contributing action was his bad faith and fraudulent behaviour.

After two trials and many years each party had to pay their own legal fees. This all could have been avoided if a lawyer was used. I am not sure why someone with $2.6 Million dollars in their estate would have used a preprinted will form or a software program to generate a will.

The moral of the story: Online wills are only forms. Even if they imply that a lawyer created them, a lawyer is not looking at your documents or your assets when you make decisions. If you make the wrong decisions or follow the wrong procedures what will the cost to your estate be?

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

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

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

When was the last time you sat down with someone to review your Floria trust, Florida will, Florida power of attorney, health care directive, and other documents intended to make sure that your assets will be managed and distributed according to your wishes? If it has been longer than a year, you are probably overdue for an estate planning check-up.

Changes in your assets

Acquiring different of assets or changes in the value of the assets may require Estate Planning that was not anticipated.

Changes in the law

Florida Estate plans become outdated or are not as effective over time. This year there were substantial changes to the Florida Trust laws that are retroactive on older trusts. Recent tax changes can have a dramatic impact on how estates are planned. There have been changes in health care privacy laws which can make it difficult for family members to care for loved ones without the proper documents.

Changes in family circumstances or relationships

Events such as births, deaths, marriages and divorces can have significant impacts on an Florida estate planning. Your feelings about people who you appointed to handle your estate or make health care decisions can change.

Changes in your goals or desires
A change in your goals or desires throughout their lives can also effect Florida Estate Planning.

To update your Florida Estate Planning contact a licensed Florida Estate Planning Lawyer and discuss your current documents and desires.

The Ferrell Law Firm in Memphis bloghas a series on Living Trusts vs. Wills. Many of the issues discussed are similar to those in Florida. For those of you who are unsure as to whether you need a living trust, will, or both you might review their 4 part article.

Their Answer to "How can a living trust save on estate taxes?"
If you die in 2007 or 2008 and the net value of your estate (assets minus debts) is more than $2 million, federal estate taxes must be paid on the excess at a rate of 45%. If you are married, your living trust can include a provision that will let you and your spouse leave up to $4 million estate tax-free to your loved ones, saving up to $900,000 in taxes.

To create a Florida Living Trust or Florida Will contact a Florida Estate Planning lawyer

Last week I had a client call me about a Probate problem? It turned out that this client had used a Do it yourself Will Program that was online ( LEGALZOOM). Her husband executed his will, but she did not. Then her husband died. The problem is that because her husband had a bank account in his name and did not have a Payable on Death designation, the bank account needed to go through probate.

This could have happened if a lawyer had prepared the will, but the lawyer would have probably inquired into the title of the assets in his possession. This little mistake cost $1500 in probate fees.

The odd thing is that she doesnt want her will or assets reviewed by an attorney because it will cost around $100. Some people never learn.

The moral of the story: Online wills are only forms. Even if they imply that a lawyer created them, a lawyer is not looking at your documents or your assets when you make decisions.
This client could have spent $100 more than the online cost and had an attorney prepare, and review their documents for mistakes like the one she missed.

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

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

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

Many couples and individuals want to place no contest clauses in their Florida Wills. The purpose of a no contest clause in a will is to keep the beneficiaries heirs from fighting over who gets what or how assets are distributed upon your death.

In many states no contest clauses become fights over the language used in the Florida will. Florida does not recognize no contest clauses for Florida Wills. Although it is possible to have a no contest clause if the laws of another jurisdiction or state are chosen to govern the will.

One example of a no contest clause that was struck down in Louisiana is found on Your Louisiana Estate Planning Blog. The article mentions a clause which stated that if any "named legatees should contest any provision in this will, then the naming of that person in my will shall be struck and they shall not be considered to be a legatee."

The court ruled that since, a beneficiary of a testamentary trust is not a "named legatee" the beneficiary was not bound by the clause.

If you desire a no contest clause in a Florida Will, you should speak with a Florida Estate Planning Lawyer who works withe Estate Planning Lawyers of other states who can determine how to properly implement such a clause.

Many Florida residents include language in their Florida estate planning documents which leave either a fixed sum or a percentage of their estate to one or more charities.

The most common gift is an outright bequest of property to a named charity from a Florida Will or Florida Revocable Trust. The gifts can be any type of property and often consultation with a tax adviser as to which property to leave can produce additional tax savings. Analysis of the size of the estate, and the cost basis of various assets can make significant differences.

In addition, careful attention needs to be made to the selection of the asset and how it is described in the documents. Contingencies can be made for a change in assets if the person wants to make a gift even if that asset does not exist.

One major area of concern is making a charitable gift from a Florida Living Trust if there are retirement assets included in the trust. As a charity is a non qualified beneficiary, it can a negative effect on the ability for other beneficiaries to take the proceeds over a prolonged period of time.

For more information on these issues you should consult with an Estate Planning Lawyer in your state and your accountant. To contact a Jacksonville Estate Planning Lawyer follow this link

Professor Gerry W. Beyer author of the Wills, Trusts, & Estates Professors Blog, as reported on a mistake in estate planning where a Another Self-Help Estate Plan Gone Awry. In this case a man decided not to consult with anestate planning lawyer. He transferred the family home to his stepchildren son and $150,000 of securities to his son.

The house was highly appreciated and as such was a poor asset to select to use as a lifetime gift. Because it was transferred during life, the children had to use the father's basis instead of the price of the home at the death of the father. This resulted in over $80,000 in capital gains liability.

In addition the house, because it was transferred within 3 years of death, was still included in the father's estate value and did not reduce his estate taxes.

The moral of the story: Spontaneous self-help by a Testator / Grantor can backfire and deprive heirs of large percentages of an estate and prompt family tensions. Professional planning would have made a huge difference to this man's family.

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

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

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

Many people who have reached the age of retirement split their time between Florida and another state. Since we are at the prime time of year for this to be happening I thought it appropriate as a Florida Estate Planning Lawyer to write about some of the issues of Estate Planning that can affect these individuals.

Florida’s new trust code has a new requirement of a connection with the state of Florida to be able to create and use a Florida Living Trust or any Florida Trust.

In addition there are specific requirement for Valid Florida Durable Power of Attorney that do not exist in other states. If you visit or live in Florida, you Durable Power of Attorney should have the relevant Florida language to make sure it can be enforced in Florida.

Often our clients have well-established relationships with the Estate Planning Lawyers in their home state. Some want to take advantage of the strong and robust trust code in Florida compared to that of their other state of residence. A common question that arises when a person spends time in two different states (dual residency) is: how do you create a Florida living trust and Florida Estate Plan that works as intended when you are not sure where the probate or trust administration will take place?

This issue becomes important because the ultimate determination of domicile for the purpose of probate and trust administration is not conclusively determined until a person passes away. Individuals can take steps to help insure that Florida is considered their domicile to take advantage of the favorable tax, estate tax, and probate costs associated with Florida.

Often when I am confronted with a living trust and family which spans multiple states I try to work with an Estate Planning Lawyer from the other states to make sure that the Living trust complies with the requirements of each state as well as offers the advantages of each state. Often we find that Florida is as advantageous as other states, but sometimes we use aspects from each state to create the plan that serves the clients ultimate needs.

For example, if there is a possibility that my client’s estate plan may be administered in Connecticut or another northern state. In these cases we will work with Estate Planning lawyers from these states to make sure that any recent changes in the states laws are included in the will or revocable trusts that are in place or being prepared

Do you have to work with a Florida Estate Planning Lawyer to make sure your estate plan works in Florida and or a different state than where it was created? In most cases I find that the answer is no. Although competent drafting can establish the site of the trust as the state where it was created it can also establish another state when there are advantages. Most Florida Estate Planning Lawyer focus on one state and are not able to accurately determine what is the best state to use. This means that even if there are judicial proceedings in Florida, the court can interpret the revocable trust according to the chosen state in the trust.

An effective estate plan for dual residency is a challenge and an opportunity. Multi-state Estate Planning can be a can of worms for the ill-prepared and can have unintended or unforeseen consequences to an estate plan that worked perfectly fine in one state. However, if you act carefully you can not only preserve your existing estate plan, but possibly enhance it as well.

If you would like you Estate Planning Documents reviewed to see if they can be enhanced please contact a Florida Estate Planning Lawyer.

If you would like your Estate Planning Documents reviewed by a http://www.shealawonline.com/blog/ Connecticut Estate Planning Lawyer you may contact http://www.shealawonline.com/ Richard L. Shea.

Mitchell Port a California lawyer posted a link to an article on the California Tax Attorney Blog about an article on the State Bar Website which provides information on estate planning. Although this is a California bar website, many of the same issues and considerations are important to Florida residents interested in Florida Estate Planning. Much of the information is also found on The Florida Estate Planning Lawyer Blog which primarily deals with Florida issues.

1. What Is Estate Planning?
2. What Is Involved in Estate Planning?
3. Who Needs Estate Planning ?
4. What Is Included in my Estate?
5. What Is a Will?
6. What Is a Revocable Living Trust?
7. What Is Probate?
8. To Whom Should I Leave My Assets?
9. Whom Should I Name as My Executor or Trustee?
10. How Should I Provide for My Minor Children?
11. When Does Estate Planning Involve Tax Planning?
12. How Does the Way in Which I Hold Title Make a Difference?
13. What Are Other Methods of Leaving Property?
14. What If I Become Unable to Care for Myself ?
15. Who Should Help Me With My Estate Planning Documents?
16. How Do I Find a Qualified Lawyer?
17. Should I Beware of Someone Who Is a "Promoter" of Financial and Estate Planning Services?
18. What Are the Costs Involved In Estate Planning?

Leanna Hamill with the Massachusetts Estate Planning and Elder Law Blog wrote an article on Estate Planning titled Should You Discuss Your Plans with Your Children?

In the article she discusses the fact that clients often wonder if they should share their estate plans with their children. In giving her expected advice of IT DEPENDS, Leanna explains some of the reasons why one should and should not disclose their plans. These deal with the way the property is split between the beneficiaries, who will be the PR, Executor, or Trustee, unfit children, issues of disinheritance, and special provisions for one child.

For more insight on these issues read her article or speak with your Florida Estate Planning Lawyer about your particular situation. While you may have not considered the ramifications and ways to approach your specific issues, an Experienced Florida Estate Planning Attorney has.

If you live in a Jacksonville Florida, like many other cities around the country where the (CLEO) Chief law Enforcement Officer of your city will sign a Form 4 for NFA purchases of Class 3 items, there are several solutions.

Class 3 Weapons include suppressors, short barrel rifles, machine guns, and other destructive devices.

The most common solution is to create a revocable trust to hold title to the firearm or class 3 items you desire to purchase. Florida now requires a nexus to the state of Florida to create a Florida Revocable Trust or Florida Gun Trust

A Gun Trust, Firearms Trust, Limited Liability Company, or Florida Corporation are all legal entities that are established under Florida State Law. Each of these entities can purchase and hold firearms. There are some advantages and disadvantages of each legal entity. Generally the Florida NFA Gun Trust is the least expensive to create and maintain. In addition the Florida Gun Living Trust provides complete privacy from the public as Revocable Trusts are not required to be registered or filed with the state. The lack of any required filings means, the only people who know the terms of the trust are those you choose to tell.

Florida Business entities typically cost $150 a year for the state filings in addition to the cost of a CPA to prepare and file the federal filings.

Although most Florida Revocable or Living Trusts can hold firearms or other class 3 items, many are not properly setup to deal with the issues involving firearms and other items which are regulated by the National Firearms Act (NFA). If the NFA is violated, the owners are subject to criminal charges, substantial fines, and forfeiture of not only the class 3 items in question but all firearms in the possession or ownership. ($250,000 penalty, 10 years in prison, and forfeiture of items)

The Florida NFA Gun or Firearms Trust must give the Trustee instructions and special powers so that they can legally manage for unplanned events. Weapons and other assets in a Firearms Trust can not be distributed like other assets upon the death or incapacity of the person who placed the items in the trust(The Grantor or Settlor).

Many individuals are using Quicken or other simple trusts to purchase class 3 items. Before doing something like this you should consider the adverse effects that can be created by this technique.

1) You put your family and friends at risk of criminal and civil penalties in the event of your death or incapacity.
2) What happens if these items are transferred to someone who is not able to accept them because of eligibility, residency, age, or mental condition.
3) What happens if your trust merges with another trust, which will survive.
4) What happens if you will transfers NFA assets to your trust upon your death, can the trustee say no, most trusts do not allow for this.
5) What happens if the beneficiary is under age?
6) Will you know the mental state of the beneficiary, at the time of transfer and who and how will a problem be dealt with?
7) What state will the beneficiary live in at the time of the transfer? Can they accept, or possess these items, if not, what will be done?

If your trust doesn't deal with these issues or you do not understand why they are important, you should speak to a Florida NFA Gun Trust Lawyer to find out the answers. Feel Free call, email or ask any questions using the contact form

Read more articles on Gun Trusts, NFA Trusts, or using Trusts to hold Guns, Weapons or Class 3 items.

A Florida Probate Lawyer Long Duong is reporting a mistake a client of his made with a modification to a Florida Will. The document was not properly executed and it was held to be invalid. This mistake cost the intended beneficiaries over $75,000.

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

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

Joshua Prince, a law student has written another article on NFA Firearm issues and estate planning. The article appears on Neil Hendershot's PA Elder, Estate & Fiduciary Law Blog and is the third in a series on Gun Trusts.
To answer these and other question about Firearms and Estate Planning Please read his article Estate Planning for Grandpop's Gun in the Chest. His article deals with the requirements, benefits, and detriments of registering a weapon as an individual person, corporation , or trust. Many of the issues hold trust for Florida Gun Trusts but you should check with a Florida Gun Lawyer to verify what makes sense in your particular situation. His article begins:

As an estate attorney, how do you handle the planning of an estate, which includes National Firearms Act [NFA] firearms? What if your client asks you, prior to his/her purchase of a NFA weapon, what is the best form of ownership, with long term estate planning in mind?

This issue may plague estate attorneys, leaving them to scratch their head in bewilderment as to the correct course of action. More importantly, a probate attorney may be flirting with malpractice, since the registration of NFA weapons is mandatory and ignorance is not a defense.

Wills

•A new Florida will is almost always advisable for the divorced client, especially if there are minor children.

•Florida Statute section 732.507 generally provides that after the dissolution the provisions for the former spouse in the will are treated as if the former spouse died at the time of the dissolution of the marriage.

• A subsequent marriage, birth, adoption, or divorce will not revoke a Florida Will.

•A Major Concern of Most Clients

-Former spouse will be appointed guardian of the property of the deceased client because they are the natural guardian of minor children and have the highest priority for appointment as guardian. The priority can be altered by naming another individual as guardian under a Florida will.

-Consider avoiding a guardianship of the property by having assets for minors held in a Florida trust. Someone other than the former spouse can then be named as trustee.

•If the client has established a revocable inter vivos (living) trust and executed a Florida pour over will (a will that distributes the residue to a trust) prior to the dissolution, the former spouse could potentially inherit the entire estate if the former spouse is the beneficiary of the trust. Florida Statute section 732.507 does not have any effect on inter vivos trusts.

•A new or restated Florida trust should be executed to remove provisions for the former spouse for the reasons stated above.

•If the client has a taxable estate, the fact that they no longer have a spouse could drastically change their estate tax planning due to loss of the marital deduction.

•Beneficiary designations should be reviewed to assure that the former spouse is no longer a beneficiary.

•IRA designations need to be reviewed to make sure the effect of the chosen beneficiaries does not adversely affect one of the beneficiaries because of age, or ineligibility

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.

Can I do it myself?
It is possible for a person to do his or her own Florida estate planning with forms or books bought at a stationery or bookstore or from the State Bar. At the least, a review of such forms can be helpful in preparing you for doing estate planning. If you do review such materials and have any unanswered questions, however, you should seek professional help form a Florida Estate Planning Lawyer.

Will documents I prepare myself be valid?
In Florida most estate planning documents must comply with the Florida Statute of Wills. This requires that they be witnessed by two witnesses in the presence of each other and a notary who is present and witnesses the signature of the creator of the document. There are other documents which make the documents easier to use in the event that becomes necessary. For example a will or trust can have a self proving affidavit which eliminates the necessity to prove the will in a probate process. Many forms, software, and online services are not current when there are law changes. For example this year there were changes in the way Florida revocable trusts must be executed in Florida.

What about updates?
One of the most common problems with using software to create wills is that to make minor changes requires a new license. Most will software only comes with a 1 year license. This is good because it will probably be current under the laws or recent laws. The bad part is that there are often additional fees incurred with the new software licenses.

Do I Need a Professional To Help?
If you do seek advice, Florida Wills and Florida Trusts are legal documents which should be prepared only by a qualified Florida Estate Planning Lawyer. However, many other professionals and business representatives may become involved in your Florida Estate Planning Process. A certified public accountant, life insurance agent, bank trust officer, and financial planner often share in a Complete Florida Estate Planning process. These professionals can help you in planning your estate.

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.

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.

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.

I have previously written about Doing your own will in a post entitled Do it Yourself Wills? a Good Idea or Not?

Gerry W. Beyer of the Wills, Trusts, & Estate Professors Blog had an article that disccusses some of the other problems Do-it-yourself estate documents – the attractions and the dangers
In his article he discusses another problem that occurred because of a poorly drafted will stating that:

many seemingly straightforward cases contain large underwater stones. In one case, for example, stepchildren ended up paying $100,000 in legal fees to claim their inheritance; the reason is that their step-mother’s will left everything to her “children,” but she had never legally adopted her step-children

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

As an Estate Planning Lawyer in Jacksonville Florida, I am often asked about issues dealing with addresses in Florida Wills, Florida Trusts, Florida Living Wills, Florida Durable Powers of Attorney, and other documents.

Generally the address and phone number in these documents is to help locate or contract the person. In some cases they can be used to help distinguish one John Doe from the next. The Connecticut Estate Planning Blog had an example of when it might be important to update the address, but as the site states, this would only happen on a law school exam.

The only possible reason why such a move would prompt a legitimate will amendment is if the move created an identification problem. For instance, in the above example, suppose the client disinherited his other brother, also named Billy Bob (I don't think I've ever seen two brothers with the same name), out of his will, but then that brother moves to Glastonbury after the other Billy Bob moved from Glastonbury to Wethersfield. Now the will seems to identify someone who the client didn't intend to include as a beneficiary of his will.

Please note that the above facts only tend to arise in law school exams, not real life. Suffice it to say that address changes do not require will changes unless there are extraordinary circumstances.

As a Jacksonville Estate Planning Lawyer, one of the most common things I do is determine what is necessary for a clients Florida Estate Plan. Greg Herman-Giddens of the North Carolin Estate Planning Blog has an Article called the Anatomy of an Estate Plan where he discusses and defines the Basic Documents in an Estate Plan:

Will
Durable power of Attorney
Health Care Power of Attorney
Living Will
HIPAA Authorization, and
Living Trust

Insurance
Asset Titles and Beneficiary Designations
Investment Management
Asset Protection

(1) Marriage, divorce, death of spouse.
(2) Birth of a child.
(3) Children become financially independent.
(4) Birth of a grandchild.
(5) New business venture.
(6) Substantial growth in your business.
(7) Job promotion.
(8) Retirement.
(9) Purchase of life insurance.
(10) Move to a different state.
(11) Substantial increase or decrease in wealth.
(12) Decision to make large charitable gifts.
(13) Increase in risk of being subject to a lawsuit.
(14) Substantial amounts of property are in joint names.
(15) You purchase real property (including a time share) in another state.

If you move to Florida from any state or country, Florida will recognize any will that was properly executed as to the rules of another state except Holographic wills.

A holographic will is one that is entirely in the handwriting of the creator. Florida does have an exception to their rule against accepting holographic wills, that is for those holographic wills that are witnessed by two witnesses and notarized.

In almost all cases new states will recognize a validly executed will from another state. It is best to check with an Estate Planning Lawyer in your new state to make sure that your will is valid and deals with any special laws that may be available in the new state.

In addition if you are moving from or to a community property state (Arizona, California, Idaho, New Mexico, Louisiana, Washington, Nevada, Texas, Wisconsin, and Alaska) to a state which a common law property state (like Florida), your will should be reviewed as there is a significant difference in the way property is held.

Be sure to look at your other estate planning documents like llving wills, advanced health care directives, and durable powers of attorney as these might be regulated differently in your new home state.

Often in the process of Florida Estate Planning, Florida Elder Law, or Florida Probate I get asked about the effects of Florida's Spousal Share Statutes. The statutes reserve 30 % of the decedents estate for a spouse in the event that the decedent did not provide at least that amount in their will or other Florida Estate Planning Documents. This right can be waived by the spouse in pre or post nuptial documents. Often for wealthy clients, or those who are legally seperated but not divorced the spousal share can become a big issue. If you think that a spousal share might be an issue with your estate planning, you should discuss it with a Florida Estate Planning Lawyer.

Last week a Florida Appeals Court looked at, Whether Florida's Spousal Share Statutes were constitutional or not?

Generally Florida Statutes are constitutional unless they are not rationally related to furthering a valid governmental objective. Lane v. Chiles, 698, So.2d 260, 262 (Fla 1997) In this case the court looked at whether the potential loss of property rights were rationally related to providing a share in the assets of the decedent.

The Florida Appeals Court upheld the statute and found that the statute was rational related to the purpose. The Florida Probate Litigation blog has an excellent analysis of the case In RE Estate of Magee Download file.

As a Jacksonville Estate Planning Lawyer, I learned that Florida did not recognize common law marriages. About a week ago, the founding partner of Wood Atter, came into my office and asked me about an estate plan involving a couple that were married under the common law many years ago.

Later I discovered that common law marriages prior to 1969 were valid in Florida. I asked some divorce Lawyers some questions and learned, that once married under the common law, you must still be divorced in a court. The divorce is the same process as with a traditional marriage.

Then I began to think that with the number of people who separate and never get divorced, there must be some estate plans had the potential for disruption because of an unreported common law marriage.

For example, a Husband and Wife were married under common law in Florida prior to 1969. They are later separated but not officially divorced. There would not be an official record of their marriage, so when one dies, there is an opportunity for the property of the estate to be distributed incorrectly.

If you were married through common law and now live in Florida It is important for you to have a Valid Florida Will that represents your wishes, if you are sepearted from your spouse and married either under the common law or by the state, you need to evaluate your Florida Estate Plan to make sure you assets are distributed as you desire.

Florida has some unique benefits for the spouse, if you were married under the common law and not divorced in a court, and your spouse died in Florida, you are probably entitled to some or all of your spouses assets. You should talk with an Jacksonville Florida or other estate planning attorney where your spouse lives or where your spouse died.

Although it is possible to create your own will using Quicken, an online service, or by just creating one on your own, a Florida Estate Planning Lawyer would likely caution against doing so.

A "Do it yourself will" can have many undesired results. The California Estate Planning Blog points to one of these. In their article they describe a man who died and bequeathed his home to five people, one being his wife. His will did not give the spouse the right to remain in the home for her life. Upon the request of any other beneficiary, the wife would either have to buy the additional interest, or be forced to move from the home. If you want to read the full details you can follow this link.

Often individually do not fully understand the consequences of the choices they make in a wills. In addition a Florida Will must comply with the Florida Statute of Wills to be valid. Most states have their own requirement for a will to be valid. A valid Florida Will requires that the person be competent, over the age of 18, understand what they are doing, know their possessions at the time they make the will, have two unrelated witnesses, and notarize the document.

Often there are problems with the execution of a will that do not become apparent until a Florida will is contested or submitted for probate. If a will does not have a proper self-proving affidavit, the work that must be done to prove the will is increased. This can cause the family to incur additional costs and delays in the probate process. Florida also allows a Florida Will to have some options that are not always available in other states. Once such option is the right to attach a separate writing memorandum. The separate writing memorandum can save money by not requiring a will to be redrafted everytime a change is needed. If you are not taught how to use this feature of the will, you could believe you are transferring items that cannot be transferred by the memorandum.

People have compared doing your own will to repairing your own car, doing your own surgery and coloring your own hair. While it is true that a person can eventually learn to do each of these, the results are not always as desired the first time. My favorite comparison is to coloring your hair, as I have personal experience with this and my wife. Often when one colors their own hair it does change the color, but not exactly as intended. Sometimes it good enough, but often it takes a professional to fix what was done.

The problem with a Florida Will or other Florida Estate Planning Documents is that you do not get the chance to see your results, much less correct them. Once you die, it is almost impossible to make a change. You cant say my dad used quicken and he told me that this is what he wanted even though his will doesn't exactly do that. Besides creating a Florida Will with a Jacksonville Estate Planning Lawyer should not be expensive.

One problem I have seen in Florida probate cases, and Florida Estate Planning was recently written about by a Massachusetts Estate Planning Lawyer, Leanna Hamill who Practices in Estate Planning and Elder Law. This article was also covered by the Elder Law Professors Blog

In her review of the Walls Street Journal article, Paperless World Can Leave Heirs in the Dark, she states that the article outlines the dangers of keeping your records on your computer.

One of the main problems is that you may not have paper copies, for your Personal Representative to review. Without this information it may be difficult or impossible to compete an accurate inventory during the probate or administration of the decedents estate.

I have previously touched on this in a several articles about Florida Estate Planning and Digital Assets. Those articles cover some of the actual problems and ways in which various online services deal with death, and some of the problems that can result including who has a right if any to access the decedent's information which is stored online.

If you use a computer, you need to consider having a Florida Estate Plan that deals with Digital Assets, paperless transactions, and details your assets for those who have to administrate your estate.

When you die, someone has to know hot to determine or what the details of your financial life are

It is important to make a comprehensive list of assets, liabilities, life insurance policies, power of attorney, Florida will, credit cards, details of bank accounts and all other important financial information.

The problem is that once you pass away, an executor or personal representative has to go through all of your document to figure out where assets may be located.

Recently a range of self-help products have emerged. The paper, and computer based products are available in many office supply stores. Many people who have a Florida Will or other Florida Estate Planning Documents, do not have a system for keeping the other information organized so that after passing, the Florida Probate process can be simplified.

Think about someone unfamiliar with your filing system trying to figure out where you have banks, stocks, Cd's, private investments, loans, debts, and everything else you keep in your mind but not on paper. Often the lack of an organized system increases the cost of the Fees associated with using a Florida Probate Lawyer.

Your Florida Estate Planning Lawyer, should be able to give you advice on what you need to make a list to simplify the Florida Probate process.

With Florida Estate Planning it is important to consider the effects of a gun on the probate process.
Neil E. Hendershot a Professor at Widener University School of Law in Harrisburg and author or PA Elder, Estate & Fiduciary Law Blog, had a Student submit an article regarding the possession and use by elderly persons of firearms. The article has a great title "I Bequeath my machine gun to . . ."

After reading this article, it is even more apparent that one who owns Class 3 Weapons, needs to be conscious of the effect of their demise on their Personal Representative and/or heirs.

Uncertainty in proper disposition of such a firearm could lead to one’s client being convicted of possession of an unregistered firearm, punishable by up to 10 years, $250,000 in fines and the forfeiture of the weapon and any “vessel, vehicle, or aircraft” used to conceal or convey the firearm.

No matter what state you are in, if you or someone you know has a Machine Gun, or other weapon regulated by the National Firearms Act (NFA), they should speak to an Estate Planning Attorney or Florida Probate Attorney who is familiar with the Act to protect their estate, Personal Representatives, Trustees, and Beneficiaries from the penalties associates with the wrongful possession or transfer of a weapon in violation of the NFA.

A Florida NFA (Gun / Firearms) Revocable Trust may be the solution for you.

On September 13, 2007, Professor Gerry Beyer posted an entry on the Wills, Trusts & Estates Prof Blog, which he edits, entitled "Dead People With Guns", referencing this post: One of the growing estate planning niches is preparing for the death of gun owners and handling the estates of gun owners.

Here are two sites which have detailed information about the issues and the solutions:

Neil E. Hendershot, "I bequeath my machine gun to . . ." , PA Elder, Estate & Fiduciary Law Blog, Sept. 12, 2007: * * *

David M. Goldman, Florida Gun Trusts or National Firearms Trust , Florida Estate Planning Lawyer Blog, July 30, 2007, National Firearms Gun Trust: * * *

The second site discusses the legal tool of a "Firearms Trust" (or "Gun Trust"), which provides special powers to a trustee not normally considered or granted, to carry out specified purposes of maintenance & disposition of weapons.

Florida Estate Planning and Digital Assets is a topic that has been previously discussed. Today, I read an article written by the Trust and Estate Law Professors Blog which adds some more information.

It appears that they are some digital assets which can be accessed after the death of the owner or licensee. Here is a summary of what they report on.

- AOL -- Will allow access to the personal representative upon presentation of a death certificate and proof of appointment.
- eBay (seller) -- Similar to AOL.
- eBay (buyer) -- No access.
- Facebook -- Profile moves to "memorial state" but no one may obtain the login password.
- Gmail -- Similar to AOL plus an email showing that the decedent had sent an email message from the Gmail account to the person seeking access.

In an article written by Katherine Roseman of the Wall Street Journal, she quotes Elaine King, a certified financial planner for Gibraltar Private Bank & Trust in Coral Gables, Fl., as stating that recently a man in his thirties died. His family could not even determine what financial accounts it needed to close until it could access his email account. The deceased man’s Internet service provider required the family to get a court order granting it entry to his account.

“It can be a very lengthy process,” said King who adds that her firm now advises most clients to leave a list of electronic passwords along with a will.

It is important to review your estate planning needs with a Florida Estate Planning Lawyer or Attorney who is familiar with Digital Assets, Licensing and how to deal with them. Please use our contact form if you have any questions about Florida Estate Planning

Your Jacksonville Estate Planning Attorney should include a separate writing memorandum in the Valid Florida will that is prepared for you. Florida Statute, Section 732.515 allows a written statement or list referred to in the will to dispose of items which are tangible personal property.

• Property used in trade or business.
• Property that must be transferred by deed such as an auto, land, or home.

The writing may be prepared before or after the execution of the will and can be changed after it is prepared. This makes most revisions to the will unnecessary, as many of the changes Florida estate planning lawyers see are changes on the distribution of personal property. If their Florida Will included a reference to a separate writing memorandum, the individual could change their Florida will when and as often as they like.

Many clients ask their Attorney's, Can I add more pages or make changes after I have written something?
Yes. Since the writing can be created before or after the signing of the Florida will, and can be altered by the testator after its preparation, the Florida Court will look at the different documents that are found, and then resolve any conflicts in favor of the latest writing.

In Jacksonville and throughout the state of Florida a will can be revoked only in specific ways. If you want to make sure your will is revoked properly, you should have Florida Estate Planning Attorney or Jacksonville Estate planning lawyer help revoke your Florida Will properly. Often we see individuals who try to change the test or cross off paragraphs of their will. This can cause problems and unintended results. To prevent these types of issues you might consider a separate writing memorandum at authorized under Florida Statutes, Section 732.515. Follow this link to read more on Separate Writing memorandums.

1) Revocation by Writing: A Florida Will or Florida Codicil, or any part of either is revoked by a later inconsistent will or codicil, even though the subsequent will or codicil does not expressly revoke all previous wills or codicils. Such a revocation only extends to inconsistency.

By a subsequent will, codicil, or other writing that declares the revocation and is executed with the same formalities as required for the execution of a will (Florida Statutes, Section 732.505).

2) Revocation by Act: A Florida Will or Florida codicil is revoked if the writer of the will burns, tears, cancels, defaces, obliterating, or destroys the will with the intent and purpose of revocation. If Florida the testator can do the act, or in their presence have another individual do the act for them.(Florida Statutes, Section 732.506)

Note: Under Florida Statutes, Section 732.509 When a will is properly revoked, it revokes all codicils to that will.

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.

In Jacksonville Florida or another Florida city, if a person creates a valid Florida will, but the will can not be found upon their death, the Florida courts will presume that the decedent destroyed the Florida will with the intention of revoking the Florida will. This doesn't mean that it is impossible to get a copy of the Florida will admitted, but it will be difficult.

The first step is to establish the terms of the will in Florida and offer it for Florida probate. This can be done by any interested person. The specific content of the Florida will must be proven by the testimony of two disinterested witnesses, or, if a copy of the will is available it can be proven by one disinterested witness.

In Florida, it is very important to keep your original will in a safe place. You might consider having your Florida Estate Planning Attorney keep the original will for you in a fire and water proof safe. If you live in an area of Florida that is prone to hurricanes, it would be wise to keep the will in a water proof, fire proof area that is not at risk to weather. Some Florida will lawyers or Jacksonville will attorneys can keep the original Florida will in their safe.

Recently the Florida statutes changed to allow for arbitration clauses in Florida Revocable Trust Agreements. When including an arbitration clause in a Florida Revocable Trust one needs to make sure the arbitration clause will be enforceable.

Below are some issues with arbitration clauses in Florida that need to be considered whether used for Florida Business Contracts, Transactions in Florida, or Florida revocable trusts. Luckily the US Supreme Court has ruled that if an arbitration clause is invalid, the clause can be removed from the agreement and the underlying agreement can still be valid.

Florida Arbitration Clauses

An agreement to arbitrate, or a provision in a contract providing for the arbitration of disputes, is valid, enforceable, and irrevocable without regard to the justiciable character of the controversy. The only questions for a court to determine when looking to see whether an arbitration clause is enforceable are:

1. Whether the agreement that contains the arbitration clause is valid?
2. Whether the parties have a valid arbitration agreement;
3. Whether an arbitrable issue exists; and
4. Whether the right to arbitrate has been waived.

Continue reading " Validity of Florida Arbitration Clauses" »

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.

Amy Baldwin has a nice article on when people usually think about getting wills. Typically they get wills when they are married, buy a home, have a baby, get a divorce or go on a vacation.
She states that most estate planning lawyers say whether married or not, every adult, starting at 18 needs to have estate planning documents.

In general when people turn 18 they need to have a Florida medical power of attorney . With the new HIPPA regulations parents can not depend on being able to find out about their injured child and provide instructions for their treatment. In Florida and other states, many doctors will not release information to a spouse much less an adult child. Before your child goes to college, you should have him execute some common Florida Estate Planning Documents.

Clients often ask Estate Planning Attorney'sfor a Florida will or a Florida Living Trust. The seldom ask for a will and a trust even though in most cases this is what they need. Clients who want to skip probate and avoid the fees and delays associated with establishing and administrating a probate in Florida often request a Florida Living or Revocable trust. One of the big problems with creating a revocable living trust is that most people never fund them. In Florida, a living trust must be funded prior to the death of the grantor or it is not in existence.

The primary purpose of having a valid Florida Will along with the Florida Living Trust is that if the Trust is not in existence, the decedents Will will determine how the assets are distributed. The will often directs that any remaining assets be placed in the trust and the trust will determine how the assets are distributed. Often the will does not exist, so the will must specify how the assets should be distributed in case the trust doesn't exist.

When you create a trust or trust/will combination please discuss what will happen if the trust is not funded, or you revoke the trust during your life.

Everyone in Florida seems to be going crazy to setup a Florida living trust. Often we find ourselves asking why does this client need a living trust. In most cases they don't, but if clients are looking for privacy, to save time or money on probate or have assets in excess of 1,000,000 a Florida living trust might be a good vehicle for their estate planning.

Much like a will, a living trust will describe what happens to your property in the event of your death. While you are alive, you can remain in control and have the power to change the trust at any time. Setting up a living trust allows you to avoid the expense and long delays of probate, and may even save you money on taxes.

Continue reading " Why use a Living Trust in Florida" »

Often clients ask about Do it yourself living wills, wills, trusts, and other components of estate planning. I read an interesting post by an Estate Planning Attorney and although they are not in Jacksonville Florida their advice and commentary is very relevant. Basically with a will, you don't often get a chance to correct mistakes or have a professional fix or review the document. The Estate Planning Lawyer compares it to buying a hair dye in a store and then getting a professional to fix your hair after you make a mess or do serious injury to yourself.

While this is true with business planning, often with estate planning there is no time to fix the mistakes. Often one discovers the mistakes in their will, trust, power of attorney only after it is to late to make any changes. Sure we could all go purchase a form, or use an online service and save some money, but if you are trying to protect assets, save money on probate, or reduce estate taxes, the few dollars saved (even if large by percentage) will often cost hundreds or thousands of times as much when the taxes come due.

Be careful with do it yourself kits and services, and if you have something to loose, remember that you often get what you pay for.