Florida Estate Planning Lawyer Blog

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

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

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.

Thanks
Katherine

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.

In contrast with inter vivos transfers courts use a balancing test when evaluating the six recurring factors:

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.

Generally it is much harder to undue a gift that takes place with a Florida Will than during the decedents life. These factors should be considered with making or planning to make transfers. With an understanding of how these issues are raised, it is possible to structure transfers so to avoid many of the factors of Undue Influence.

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.

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 is modeled after the Uniform Trust code and now provides legal remedies for the beneficiaries who are being victimized by greedy trustees.

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.

If you have recently moved to Florida, it is important to update your Florida Will and when this is done you may also want to execute documents to make sure your domicile is Florida in terms of administration of you estate. For questions on how to accomplish this, Contact a Florida Estate Planning Lawyer

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.