November 15, 2011

Choosing Your Executor in a Florida Will.

After you die, you may have money, property, and other assets that were in your own name. Generally the assets which did not automatically become someone else's upon your death are part of your probate estate. Many individuals attempt to make sure that there are no assets in their probate estate when they die. This is often done with the help of a Florida Estate Planning Lawyer and can often include Florida Revocable Trust as well as reviewing ones beneficiary designations.

A will is where you would typically define who will be the personal representative or the Executor of your estate. While the many estate plans in Florida will not need a PR or executor, many individuals do not fully plan to deal with all of their assets and a Florida executor is needed. Generally the executor is someone in whom you can put the utmost trust. Your Executor will be the person in charge of making sure all your assets including your money are gathered, kept safe and distributed according to state law and your desires. There are certain people who will get paid before any distributions are made. Generally, the PR, court costs, and lawyers are paid first, then the burial expenses are paid (up to $6000 is a priority claim). After these bills are paid, the creditors are paid and only after the bills are paid, do the beneficiaries receive what is left from the probate estate.

Florida Statute 733.707 discusses the priority that claims are paid. In general they are paid in the following order:

Class 1 - Costs, expenses of administration, and compensation of the personal representative and their attorneys fees

Class 2 - Reasonable Funeral, interment, and grave marker expenses, whether paid by a guardian, the PR or any other person not to exceed $6000. (Additional costs are treated as an unsecured creditor.

Class 3 - Debts and taxes with preference under federal law.

Class 4 - Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent, including compensation of persons attending the decedent.

Class 5 - Family allowance.

Class 6 - Arrearage from court ordered child support.

Class 7 - Debts acquired after death by the continuation of the decedent's business, but only to the extent of the assets of that business.

Class 8 - All other claims including those founded on judgments or decrees rendered against the decedent during the decedent's lifetime, and any excess sums allowed in the Class 2 and Class 4 claims.

After paying the expenses in Class 1 - Class 7, if the estate is insufficient to pay all of the Class 8 claims, the Class 8 claims shall be pro-rated. If the probate estate does not have sufficient assets, any revocable trust's assets can be used.

How your Executor determines your heirs, should have been designated by you while you are alive through a will. The will is governed by Florida state law which mandates your Executor has a fiduciary duty to distribute your money and assets to whomever you state in your will should get the money or assets. The fiduciary duty is one of the highest duties one person can owe another. The fiduciary duty imparts on the person owing the duty (your Executor) the obligation of good faith, impartiality, honesty, and diligence. This basically means your Executor must act as if he or she was you making the decision while you were alive.

November 9, 2011

More Estates Need Estate Tax Returns in 2010

Jacksonville Probate Lawyer IRS Form 706 for Estate Tax ReturnWhile many of you may be thinking that fewer Florida Probate cases will involve federal estate tax returns in 2011, the opposite is actually true. It seems with the new $5 Million estate tax exemption that most estates will not need to file a tax return. What most people do not realize is that by failing to file an estate tax return in 2010 (Form 706) the spouse of a decedent will lose the portability of the unused portion of the estate tax exemption that is available to the surviving spouse. Form 706 was just released by the IRS and if you know someone who passed away in 2011, you should have them ask their CPA or Tax Attorney about the benefits of filing a Form 706 and the risks and potential tax liabilities if one is not filed.

November 8, 2011

Who gets to make funeral decsisions in Florida?

probate.jpgWho gets make the funeral arrangements for our parents? Why was Dad or Mom Cremated? How can I stop my mom, step-parent, parents significant other, or sibling from the improper disposition of my relatives remains?

These are all questions dealing with the same issue: Who gets to make the decision about the disposition of a person who has recently died? As a Florida Estate Planning Lawyer we always talk to our clients about the importance of discussing your desires with those who will make the decisions, but what if someone takes over and does something that was not wanted? Can it be stopped? In most cases, the damage may be done before you have knowledge of what is happening, but in some cases there is time to stop arrangements. Florida statutes define the legally authorized person who can make the decisions regarding disposition of a body. In doing so there is a priority list that starts with the decedent, as it should.

That means if you make arrangements regarding your disposition, your decisions should be followed - as long as they are known, and able to be learned of prior to alternative arrangements being carried out.

Next a person listed on your Department of Defense Record of Emergency Data (DD Form 93) for those who die while serving in military service.

If there are no documents, the surviving spouse, even if not living as husband and wife, an adult child, a parent, an adult sibling, an adult grandchild, a grandparent, and if you exhaust that list it can be any person in the next degree of kinship. The Florida Statutes even provide that if there is no family member, the guardian, the personal representative, the attorney in fact, health surrogate, a public health officer, medical examiner, county commission, or basically any one willing to assume the responsibility as the legally authorized person.

If the decision is made my someone in a class of people (one of several adult children) to cremate a body, the funeral establishment can rely on that one person as long as the person represents that she or he is not aware of any objection to the cremation by others in the same class or any person in a higher priority class.

A Florida Estate Planning Lawyer can help educate you on how to property draft documents to make sure you understand how to address these issues properly, while you can and before it causes problems between your family members. Does your Florida Estate Planning address the following?

How do I make sure my wishes are carried out? and
How to I educate those whom will make the decision as to how to make sure that my wished are carried out?

November 7, 2011

Florida probate Hanbook Updated

I recently updated the Free Florida Probate Handbook to deal with many of the changes from this year's legislature. If you have a previous copy or would like an undated version please let us know by requesting on this page.

October 30, 2011

Gay and Lesbian benefits involve preparing living trusts

Jacksonville gay and lesbian issues lawyer.jpgJacksonville Estate Planning Attorneys working in Jacksonville Beach watch for Florida issues about gay and same-sex partner benefits.

More and more Florida counties are making positive steps by providing health care and other benefits for same-sex couples. Central Florida's publicly owned Orlando Utilities Commission (OUC) now offers Florida Domestic Partnership health care benefits for the domestic partners of their employees. Some nationwide companies that do business in Florida likewise provide same-sex partner benefits.

Despite the fact that Florida does not recognize gay marriage, newly-released U.S. Census figures, show nearly 6,800 same sex couples call the Sunshine State home. That's based on how many gay couples checked the "husband" or "wife" options. The Census bureau also reported an estimate of the number of same sex couples in Florida, both married and unmarried, at 48,456.

Gay couples who reside in Jacksonville Beach are wise to make their own benefits. A Jacksonville Estate Planning Lawyer can provide many options so you can provide benefits for your partner. Estate Planning can consist of having a will drawn up, a revocable living trust prepared,and other legal documents which will give your loved-ones the protection and security they need.

A Jacksonville Florida Living Trust is used to avoid the probate process and possible will contests from disapproving family members. A trust is set up and managed during your lifetime and avoids the need for a guardianship over your property in the event you become incapacitated. A trust must be funded and titled in specific ways to be effective, but the benefits are many.

Meet with a Jacksonville Beach lawyer sensitive to the unique issues that same-sex couples and unmarried partners face.

October 20, 2011

Guardianship Lawyers Serving Elderly

Callahan Guardianship Lawyer.jpgIn Callahan, Guardianship Lawyers often have clients who have parents who have been diagnosed with dementia and Alzheimer's. It can be a struggle to do what you feel is best for your parent and when they are often argumentative and irritable. Growing old is not easy for anyone, especially the kids. Often times an adult child will need to step in and take over the financial and health care needs of their parents.

In some cases, the aging parent will voluntarily sign a Florida Power of Attorney (NOTE: the law changed 10/1/2011 and documents drafted prior to that date may not be valid if signed after 10/1/2011) or Designation of Health Care Surrogate. Another option is a Voluntary Guardianship for a parent who voluntarily elects a guardian to handle financial matters. Elder individuals suffering from dementia and other infirmities are often influenced by those not acting in their best interest. Therefore, speaking with a Jacksonville Guardianship Attorney may be helpful in learning your options.

A Guardianship proceeding in Callahan is a dual process and takes place in the Nassau County Court. It involves petitioning the Nassau court to appoint a certain individual to be appointed as guardian. At the same time a petition is filed to determine that an individual is incapacitated and cannot make decisions in their own best interest.

There are certain criteria that must be met to be appointed guardian of the person and property of another. If there are conflicting opinions about the best interest of an elderly parent or relative, please discuss your situation with a Jacksonville Guardianship Lawyer who handles Callahan Guardianship cases.

Likewise it is important to learn about the manner in which a court goes about determining that an individual is mentally incompetent to manage their own health and business affairs.

Although there are alternatives to Guardianship in Florida, many such methods may be temporary at best. To ensure your elderly parent will be protected from the wrong decisions, contact a Jacksonville Estate Planning Lawyer who also deals with Florida Guardianship and Jacksonville Medicaid Planning to learn what choices you have.

October 20, 2011

Problems with Domestic Asset Protection Trusts

Domestic Asset Protection Trusts (DAPT) have become the latest rage in estate planning and asset protection. We have generally found that there are better ways of protecting assets from creditors by using traditional estate planning that has case-law history.

In a recent US bankruptcy case, a DAPT was invalidated and the 10-year bankruptcy statute of limitations in regards to trusts was upheld. This was an Alaskan case using an Alaskan DAPT but similar results should be expected in other jurisdictions.

If you are interested in Florida Asset Protection or Asset Protection in Jacksonville, contact a Florida Asset Protection Lawyer to discuss your circumstances and options that are available to help protect your assets from creditors or increase the ability to negotiate with creditors.

October 20, 2011

Florida Medicaid and Durable Powers Of Attorney

DCF will reject Medicaid planning involving trusts and personal service contracts where a power of attorney is executed after 10/1/11 and the DPOA does not specifically authorize the ability to execute trusts or personal services contracts.

If you are using forms for a POA or DPOA, you should have them reviewed by an attorney as the may not be valid with the recent law change. In addition, the forms may not let you accomplish what needs to be done in regards to planning for a nursing home or Medicaid eligibility.

October 17, 2011

Trust Advisor Blog & Steve Jobs

Here is a link to the article I previously mentioned on the Trust Advisor Blog where they interviewed me on my thoughts on Steve Jobs Estate.

October 17, 2011

Protecting Assets with No Equity

I recently had a client inquiry with us regarding the transfer of real property which was upside down or had negative equity. Typically when one transfers property of value to another to avoid a creditor's reach, the creditor can seek to have the transaction reversed under the theory of a fraudulent transfer.

Florida statute 726.102 seems to define assets which are subject to this to only include those which have a value on the date of transfer. If the property had a negative equity, it would appear that a future increase in value would not subject the property to the fraudulent transfer statutes. Given this a property transferred when there was no equity in the property should be protected if the property's value later increased. There does not appear to be any case-law that is directly on topic and of course there is no guarantee that this would protect the asset. If you are trying to structure your assets for protection from creditors you should talk with a Jacksonville Asset Protection Lawyer to review your circumstances and what options you have.

October 6, 2011

Steve Jobs Will Reading and His Estate Plan

steve jobs.jpgToday there is much speculation about what Steve Jobs' will reading will reveal about his life. Steve Jobs has always been very quiet and protective about his personal life and we all know that he has been very good at protecting business secrets.

I was interviewed today about what Steve Jobs's will and the potential huge estate tax that will be paid. I think if you look at how he managed his life and businesses, it is likely that if Steve had a will, it will not be read and there will be no probate. I believe that none or almost none of his assets will pass under a traditional probate and that there will be no boom to the economy from his huge estate. Steve was married at the time he died and as such jointly held assets or those in a joint trust will probably not be subject to any estate taxes.

It is unlikely that we will hear anything in the next few months and may never know about Steve's estate.

Forbes is reporting that Steve Jobs's estate will probably not owe taxes also

October 3, 2011

Florida Probate Changes



No. SC11-1575.

Supreme Court of Florida.

September 28, 2011.

Tasha K. Pepper-Dickinson, Co-Chair, and John Christopher Moran, Co-Chair, Florida Probate Rules Committee, West Palm Beach, Florida; John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Liaison, The Florida Bar, Tallahassee, Florida, for Petitioner.

In response to recent legislation, The Florida Bar's Probate Rules Committee (Committee) has filed an out-of-cycle, fast-track report of proposed amendments to the Florida Probate Rules. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).
The Committee proposes amendments to rules 5.025 (Adversary Proceedings), and 5.240 (Notice of Administration). The proposals are in response to statutory changes made by chapter 2011-183, Laws of Florida, which went into effect upon being signed into law by the Governor on June 21, 2011. See ch. 2011-183, §§ 3-4, 8, 14, Laws of Fla. (creating §§ 732.615, 732.616, Fla. Stat.; amending § 733.212, Fla. Stat. (2010); providing effective date). The Executive Committee of the Board of Governors of The Florida Bar unanimously approved the proposals.

After considering the Committee's proposals and reviewing the relevant legislation, we adopt the Committee's proposals.1 Subdivision (a) (Specific Adversary Proceedings) of rule 5.025 is amended to add proceedings to reform a will, modify a will, and determine pretermitted status to the list of probate and guardianship proceedings that are "adversary proceedings" to which the Rules of Civil Procedure apply under the rule. The Committee determined that the new actions to reform or modify a will created by chapter 2011-183, sections 3-4, Laws of Fla. (creating §§ 732.615, 732.616, Fla. Stat.), should be treated as adversary proceedings. The Committee also determined that an action to determine a pretermitted share should be treated as an adversary proceeding.

Subdivision (d)(2) of rule 5.025 is amended to exclude Rule of Civil Procedure 1.525 (Motion for Costs and Attorney Fees) from the requirement that the Rules of Civil Procedure govern adversary probate and guardianship proceedings. Cf. Amendments to Fla. Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla. 2005) (adopting new rule 12.525 to provide that rule 1.525 shall not apply to proceedings governed by family law rules).

Consistent with statutory changes made by chapter 2011-183, section 8, Laws of Florida (amending § 733.212, Fla. Stat. (2010)), subdivision (b)(2) of rule 5.240 (Notice of Administration) is amended to require that a notice of administration include a statement that "the fiduciary lawyer-client privilege in section 90.5021, Florida Statutes, applies with respect to the personal representative and any attorney employed by the personal representative."

Accordingly, we amend the Florida Probate Rules as reflected in the appendix to this opinion. New language is underscored, and deleted language is struck through. The committee notes are offered for explanation only and are not adopted as an official part of the rules. The amendments shall become effective immediately upon the release of this opinion. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.




(a) Specific Adversary Proceedings. The following must beare adversary proceedings unless otherwise ordered by the court: proceedings to remove a personal representative, surcharge a personal representative, remove a guardian, surcharge a guardian, probate a lost or destroyed will or later-discovered will, determine beneficiaries, construe a will, reform a will, modify a will, cancel a devise, partition property for the purposes of distribution, determine pretermitted status, determine pretermitted share, determine amount of elective share and contribution, and for revocation of probate of a will.

(b) Declared Adversary Proceedings. Other proceedings may be declared adversary by service on interested persons of a separate declaration that the proceeding is adversary.
(1) If served by the petitioner, the declaration shallmust be served with the petition to which it relates.
(2) If served by the respondent, the declaration and a written response to the petition shallmust be served at the earlier of:

(A) within 20 days after service of the petition, or
(B) prior to the hearing date on the petition.

(3) When the declaration is served by a respondent, the petitioner shallmust promptly serve formal notice on all other interested persons.
(c) [No Change]
(d) Notice and Procedure in Adversary Proceedings.
(1) Petitioner shallmust serve formal notice.
(2) After service of formal notice, the proceedings, as nearly as practicable, shallmust be conducted similar to suits of a civil nature and the Florida Rules of Civil Procedure shall govern, including entry of defaults. The Florida Rules of Civil Procedure govern, except for rule 1.525.
(3) The court on its motion or on motion of any interested person may enter orders to avoid undue delay in the main administration.
(4) If a proceeding is already commenced when an order is entered determining the proceeding to be adversary, it shallmust thereafter be conducted as an adversary proceeding. The order shallmust require interested persons to serve written defenses, if any, within 20 days from the date of the order. It shallis not be necessary to re-serve the petition except as ordered by the court.
(5) When the proceedings are adversary, the caption of subsequent pleadings, as an extension of the probate caption, shallmust include the name of the first petitioner and the name of the first respondent.

Rule 5.240. Notice of Administration
(a) [No Change]
(b) Contents. The notice shall state:

  • (1) the name of the decedent, the file number of the estate, the designation and address of the court in which the proceedings are pending, whether the estate is testate or intestate, and, if testate, the date of the will and any codicils;

  • (2) the name and address of the personal representative and of the personal representative's attorney, and that the fiduciary lawyer-client privilege in section 90.5021, Florida Statutes, applies with respect to the personal representative and any attorney employed by the personal representative;

  • (3) that any interested person on whom the notice is served who challenges the validity of the will, the qualifications of the personal representative, venue, or jurisdiction of the court is required tomust file any objections with the court in the manner provided in the Florida Probate Rules within the time required by law or those objections are forever barred;

  • (4) that any person entitled to exempt property is required tomust file a petition for determination of exempt property within the time provided by law or the right to exempt property is deemed waived; and

  • (5) that an election to take an elective share must be filed within the time provided by law.

(c) Copy of Will. Unless the court directs otherwise, the personal representative of a testate estate shallmust, upon written request, furnish a copy of the will and all codicils admitted to probate to any person on whom the notice of administration was served.
(d) [No Change]
(e) Waiver of Service. For the purpose of determining deadlines established by reference to the date of service of a copy of the notice of administration in cases in which service has been waived, service on a person who has waived notice shall beis deemed to occur on the date the waiver is filed.

October 3, 2011

Intro to Death Taxes

I received an email regarding a video on Death and Estate Taxes. While most of these seem to be SPAM, this one actually had some decent background information that many of you may find valuable. The video states that 2% of the US population are subject to Death Taxes. I think the actual number is closer to 0.3% at the current level and it was as high as 2% when the estate tax exemption was 2 Million.

Continue reading "Intro to Death Taxes" »

September 28, 2011

Zsa Zsa Gabor to be a new mother at age 95?

zsa-zsa-gabor.jpg-5760.jpgZsa Zsa Gabor, currently 94, is in the process of becoming one of the oldest new mothers ever. In law school we learn about a theory involving a fertile octogenarian with the point being that no one is too old to have a child so it is important to plan for future children.

Today this is most common with grandparents who adopt children, Zsa Zsa is going about this a little differently. She is reportedly in the process of selecting an egg donor, surrogate mother, and after a succesful artificial insemination she could become a new mother. Zsa Zsa's only previous child predeceased her.

What if the artificial insemination takes but the child is not born before she dies? Hopefully we will not have to answer this question. Historically an unborn child is considered a child of the parent if born within 9 months of death. Obviously this has historically applied to the father. What would the courts decide about a artificially inseminated child using a surrogate mother? I have no idea what a court would rule or what rational they would use, but it sounds like a law school or bar exam question.

The Trust Advisor is quoting Florida Estate Planning Lawyer David Goldman regarding Zsa Zsa.

CNN is reporting that there may be a problem obtaining Zsa Zsa's consent to become a mother.

September 26, 2011

LGBT Legal Issues for Military in Florida

gay-military-300x225.png As of September 20th 2011,the old "don't ask, don't tell" rule that has been in force for about 18 years is gone. The end of this policy marks a victory for Mayport gay and lesbian military personnel.

Now Mayport gay sailors and soldiers who don't have to fear the loss of their military career because of their sexual orientation can feel free to obtain the legal advice and LGBT legal documents which will not only protect them but their relationships as well.

There are several Estate Planning Documents that will enable Jacksonville military men and women to provide for their loved ones. Same-sex couples do not have the inherent rights that heterosexual couples enjoy. Preparing a Will, Trust and Advance Directives will ensure that your decisions are honored when you are no longer able to communicate your wishes.

Same-sex couples are often encouraged to consult with a Mayport Attorney to learn about other ways to legally ensure that you, your partner, and your children are provided for not only now but in the future as well.

Mayport gay and lesbian naval and military members can feel comfortable consulting with a Mayport Law Firm that accepts them for who they are, not who they love or how they love.