Florida Estate Planning Lawyer Blog

The Florida Slayer Statute bars a murderer from profiting off the victim's assets. The victim's assets which are subject to a Florida Probate pass as if the murderer had predeceased the victim and other jointly held assets are severed so that the victim and murder each owned 50%.

One problem with the slayer statute is that the effect of the statute does not take place until there is either a criminal or civil conviction. It is possible to make changes to the ownership of the assets prior to a court determination that the slayer statute applies. While there are some safeguards in place to prevent those with knowledge from profiting from these types of transfers, there appears to be certain situations where one could protect the assets prior to such a determination. I have not seen any case-law where this has been challenged and do not know what the outcome would be but like with many asset protection techniques, it can put someone in a better position to negotiate if there are any funds or asset left.

One recent case in South Florida involved a beneficiary of a trust. This individual adopted his girlfriend so that she would be a legal beneficiary of the trust. While it does not appear that these asset would have been subject to a slayer statute claim, it is the type of planning that we are referring to and can create the desired results through creative planning.

If you are involved with a potential probate in which a relative was believed to be responsible for the murder of the decedent, contact a Jacksonville Probate Lawyer to discuss how to structure the assets or what steps can be taken to protect your rights.

We often get asked questions as a Ponte Vedra Beach Probate Lawyer about inheriting debt. Just as you can inherit property and other assets from a Florida Estate, it is possible to inherit the debt that is associated with the property.

When the debt associated with an asset is worth more than the asset itself, one must decide whether they want the asset or not. Just because you inherit something does not automatically mean you are financially responsible for the debt which is associate with the property.

In Ponte Vedra Beach and around Florida we are finding that homes often are worth less than the amount of debt remaining on the mortgage. Just because you inherit the property does not make you responsible for the debt. You may abandon the property in the Florida Probate or decide not to even probate the property or estate until the item which are upside down are dealt with in legal proceedings such as a Florida Foreclosure Case.

The only way a beneficiary is responsible for the debt is if they were a co-signer on the debt or signed a new document which created a financial responsibility.

If you are dealing with a Florida Probate and there are assets which may not be worth what is owed, you should contact a Ponte Vedra Beach Probate Lawyer to discuss your options.

Often before the death, a spouse or someone else in control of assets attempts to rearrange the assets so that it will benefit them and in doing so it can interfere with the desires of the decedent.

In these situations, the prospective beneficiaries who have been damaged have the right to bring a cause of action against the person who manipulated the decedent's assets.

Some examples of this type of activity include cashing out insurance policies, paying bills our of one account but not another, removing funds from one account and transferring them to another in which they are the beneficiary. Selling or disposing of assets that would go to one beneficiary and converting them to cash what is distributed in another manner.

In a recent appeal over this issue it was made clear that it is not enough to have shown that someone engaged in this type of wrongful activity, but also must provide legally admissible evidence of the damage that was caused to the beneficiaries. Failure to show damages, a required element of the claim, subjected the case to a directed verdict and final judgment of dismissal.

If you are considering a claims against someone who has interfered with your expectancy, you should contact a Florida Estate Planning Lawyer who understands the elements of the cause of action as well as the ability to gather and introduce legally admissible evidence.

In Florida Probate is the legal process which occurs after death and is used to transfer assets and pay the debts of the person who is deceased. This process takes place in the Civil Court where the person lived at the time they passed away or in the county where the decedent owned property in Florida. Additionally, a probate proceeding is usually required in each state where the decedent owned property in their own name without a right of survivorship.

The basic steps to a Florida probate case are:

2. Filing a petition in the Probate Court


3. Heirs, beneficiaries, and creditors are identified.


4. Notice is delivered to all heirs and beneficiaries.


5. A public notice of petition is published in a local newspaper


6. For larger estates a Personal Representative appointed by the court and obtains letters of administration


7. An inventory of assets and debts is created.


8. Creditors claims are verified and disputed when necessary.


9. A proposed distribution of assets is presented to the Court.


10. The Court determines and approves the distribution of assets and actions of the Personal Representative.


11. The Probate is finalized through consent or by order of the Probate Judge.

A basic probate can be in the range of $1000-$1500 and larger estates typically are based on the assets in the estate. We will quote fixed fees for probates and even discount them in larger estates based on the statutory guidelines.

Timeshares can be problematic and one should consider owning the timeshare in a Trust or LLC, or holding ownership with another party as joint tenants with rights of survivorship in an effort to avoid an unnecessary probate

Starting October 1, 2010, if you die in Florida your spouse will be able to elect to take the traditional life estate in your homestead that is separate property or a 1/2 interest in the property. While this does not effect many Floridians, it does effect many who got married after purchasing their home or who have children from another marriage.

Traditionally the new spouse would receive a life estate ( the ability to live in the home for the rest of their life) and the children of the deceased parent who owned the home would receive the remainder of the property after the death of the surviving spouse or their step parent.

A Florida Estate Planning Lawyer can create documents that change or alter the homestead rights of a surviving spouse. Remember that it may not be your spouse making the decision, but the government or an agent acting under a power of attorney who make the decision and they may not agree with what you and your spouse decided upon years earlier. It is best to create a post nuptial agreement or valid waiver to address these issues while everyone agrees and before it is too late.

Contact a Jacksonville Estate Planning Lawyer or Florida Estate Planning Lawyer to discuss creating documents that address these issues and protect your spouse and children from the influence of others.

The Homestead Exemption in Florida, which was established in the State's Constitution, has always provided for the protection of the Family home free from creditors and liens. In 1985 the Constitution was amended to extend the protection to the "natural person" and not necessarily having to be the head of the household. The 4th district Court of Appeals ruled that a husband and wife who are separated for a period of time can BOTH claim the Florida Homestead Protection from creditors. This ruling does nothing to allow two homestead tax deductions. Law v. Law et al., 738 So. 2d 522.

The case involves a husband and wife who were separated for several years. They both claimed Homestead exemption for the Hollywood home that they owned jointly. But when his mother got sick, he and his wife decided to sell the home to pay for the medical bills. His ex-wife had a claim against him for support and brought action to seek recovery through the sell of the home. He filed for Homestead exemption. The court of appeals ruled that "we see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements." Court referencing Colwell v. Royal International Trading Corp., 226 B.R. 714 (Bank S.D. Fla. 1998) to show precedent on allowing dual homestead exemption. The court seemed to find it important to find that the separation was not contrived to defraud creditors.

If you would like to talk about how to create two homesteads and document them to avoid unnecessary litigation over the issue, contact a Florida Estate Planning Lawyer or if one or more of your home is in foreclosure contact a Jacksonville Foreclosure Defense Lawyer.

Whether a death is expected or unexpected, the deceased will probably die with some outstanding debts. It is the responsibility of the estate of the decedent to pay whatever outstanding debts are owed. If you are wondering whether a debt owed by a recently deceased person is collectible, a probate judge will make that decision for you under Florida Statutes. Normally, tax debts are collected first followed by probate fees and all other debts including mortgages, account payables and credit card bills.

In order to pay the remaining debts the executor of the estate will use estate assets, which may require selling off illiquid portions of the estate to create funds to pay the debts. However, if there are not enough assets in the estate to cover all the debts then you may be left wanting. A creditor must file a claim with the estate within a fixed date after the death of the debtor. Therefore, you will go onto a list of creditors to be paid if you meet this deadline. A creditor will always be paid before a beneficiary unless the beneficiary also can make a claim as a creditor. As a result, if an individual leaves their estate insolvent, creditors will end up with their pockets full while your beneficiaries end up with nothing.

With an economy still slow to recover, more and more estates are left insolvent. A Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer may be able to assist you in creating an Florida Estate Plan that can protect assets from some types of creditors and allow your heirs to receive a larger portion of your estate. If you would like a Free Florida Probate Handbook, let us know

Creating a Florida Revocable Trust is a job that most Florida Estate Planning Lawyers are capable of but the process of avoiding

Florida Probate

does not end there. Once the

Florida Revocable Trust

has been created it must then be funded with the client's assets. Without proper funding all of the assets that should have been in the trust will pass through

Florida Probate

costing heirs extra money in taxes and fees.

In order to fund your

Florida Revocable Trust

properly, you need to transfer ownership of your assets into the name of the trust. Personal property can be transferred using a document called a General Assignment or Assignment of Personal Effects. Real property is a little more complex because it requires executing a new deed transferring the property from your name as an individual to the name of the trust. Institutions with which you have bank and brokerage accounts usually require a showing that your trust exists and that it is your wish to have these accounts transferred. A Certificate of Trust is a document that provides proof of the existence of your trust and is usually given to the client in the living trust package he receives from his Florida Estate Planning Attorney.

Forgetting or neglecting to fund your trust is something you wouldn't want to do after going to all the trouble to create a trust in the first place. Even if you initially funded the trust with assets there are many cases where people have acquired a significant amount of assets later and never transferred them to the trust. If you would like assistance in creating a revocable living trust or an assessment of your existing trust contact a

Florida Revocable Trust Lawyer

or

Jacksonville Estate Planning Lawyer

today!

When using a Specific Devise in a Florida Will or Florida Revocable Trust it is important to understand how they work and what causes them not to work in order to avoid unintended consequences.

A specific bequest is a gift of a particular identifiable asset within the estate that can be distinguished from any other estate property. For example, "I give the Picasso painting hanging in the living room to Jane" or "I give all of my baseball cards to my son David Goldman." Typically, specific gifts are given in a Florida Will to a beneficiary that will keep and use the property. Upon the death of the Testator (the person who made the will), problems arise when specific gifts are no longer owned or in their possession or if there is not enough money to satisfy the gift.

In Florida, a specific gift is deemed to be extinguished to the extent that the testator does not own it when they die. This means that the gift is void and the beneficiary has no right to collect the gift. In the previous examples above, if the testator had sold the the Picasso painting or box of baseball cards before his or her death, the gifts would be extinguished and Jane and David would be left with nothing. The problem can also arise when there are specific devises of money in dollar amounts but not enough money or the money is in account with joint ownership or payable on death designations. Since these accounts are not subject to probate, there is no money to give to the named beneficiaries. This can also happen if cash is given, but only stocks are owned at death. There is no requirement to sell other assets to satisfy the specific gifts in the estate.

However, recent changes in the law allow the beneficiary of a specific gift to receive a general gift equal to the sale price of the property if a guardian of the property sold it instead of the testator.

If you would like advice or counseling on any matters related to your devises in your Florida Will or Florida Revocable Trust contact a Jacksonville Estate Planning Lawyer to aid you in the estate planning process.

Whether you live in Florida, New York, California or any state and are the owner of a Toyota car, truck, or SUV, your Toyota Automobile may have just dropped in value. We all know there will be many Class Action Lawsuits against Toyota. Here is one class action that you may not have considered. Even if Toyota fixes the problems and no one is injured from a defect in your Toyota car, the recent bombardment of news has caused your automobile to decrease in value. You may ask, why is this on a Florida Estate Planning Lawyer's website? What if you are the PR of an estate that owns a Toyota vehicle, a trustee of a trust that owns a vehicle, or the guardian of someone who owns a Toyota car subject to the recall? You may have a duty to investigate what claims of action you might have to avoid liability. Remember that by failing to investigate a claim or pursue one, you may be violating your fiduciary duty.

The good news that whether to pursue these types of claims is a simple one as they are almost always done on a contingency basis. If you have a potential claim you might want to contact Florida Toyota Class Action Lawyer Mike Ossi at (904) 399-0606 to talk about a claim.

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.

In addition a Florida Personal Representative shall be allowed further compensation as is reasonable for any extraordinary services including, but not limited to:

(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 probate estate is in excess of $100,000 and there are 2 personal representatives, each shall be entitle to a full fee. If there are more than 2, then the PR in possession of the home shall be entitled to a full fee, and the remaining shall split an additional fee.

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.

In Florida, Probate assets are those items in the decedent's name at death which contain no provision for automatic succession of ownership at death like those that are jointly owned or have a payable on death designation. For example:

1. bank accounts that is not a joint account, one held in trust for another, or those without a beneficiary,
2 real estate in the individuals sole name unless it is a homestead property and the decedent is survived by a spouse or children'
3 property owned by the decedent and spouse becomes subject to probate upon the death of the surviving spouse (subject to surviving descendants in the case of a homestead),
4. life insurance payable to the decedent or their estate,
5. retirement accounts payable to the decedent or their estate,
6. annuities payable to the decedent or their estate,

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.

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.

Today a client of mine in Mexico contacted me about the transfer of their membership interest in an LLC upon their death. He had recently been told he had the "Pig Flu" or Swine Flu as we call it in the United States. Hopefully his case is not bad and he will make a full recovery.

His question was simple and perhaps the answer may help others so I am writing about it. He wanted to know whether his membership interest would become his business partners upon his death. Generally a business interest will transfer upon death by a will or trust and not have a payable on death designation. While it would be possible to create a payable on death designation on a small business interest it is not very common. As a result I suggested that the simplest way to deal with the transfer of his interest upon his death would be to do so with a will or other estate planning documents.

Every year people unexpectedly die from regular cases of the flu or other illnesses. Many individuals make changes to their estate planning documents when there are significant changes in their life such as a birth, death, child, move, major financial change. Perhaps the Swine Flu should be a wake up call for the majority of Americans who have no estate planning documents. With out Florida Estate Planning Documents the state of Florida will decide who receives your assets and who would raise your minor children. To review your Florida Estate Planning Documents Contact a Jacksonville Estate Planning Lawyer

Back in 2006 and 2007 I wrote several articles on Digital Assets and Estate Planning. Now that we are in 2009, there is even more need for Digital Asset protection in your Florida Estate Planning Documents.

Digital assets are those that expire upon your death and are often associated with Email and website accounts. Most of these accounts are not actual property. They are licenses and these licenses generally expire upon your death. A new company Legacy Locker is attempting to solve this problem through a web based tool that stores account login and passwords and purports to transfer this information to the designated beneficiary upon your death or incapacity.

While their software is a good idea it has some issues in that it does not resolve the fact that the license expires upon the death of the person who creates it. One solution to this problem is to create the accounts in the name of a trust of business so that when you die, the entity that owns the license is still in existence. There are other companies that do similar things such as DeathSwitch.com

My previous articles on this topic include:

Speaking (or Emailing) from the Grave
Florida Estate Planning & Digital Assets
Digital Property After Death
Florida Estate Planning: Paperless Records Leave Heirs in the Dark

There are no products that seem to provide what is truly needed by consumers at this time. The best solution is to include Digital Asset Provisions in your Florida Revocable Trust or create a separate Digital Asset Protection Trust and Digital Asset Protection.