December 9, 2011

Will Contests: Are Foreign WIlls Valid in Florida?

In Florida a Will must be in writing, signed by the signed by the testator and authenticated by two witnesses. Florida does not recognize holographic wills that are valid in another state if they do not meet the above requirements. Other than holographic wills, Florida will recognize a will that was validly created in another country.

Therefore a foreign will other than a holographic will is valid in Florida and holographic wills created in anther state or country which are signed by the testator and authenticated by two witnesses are also valid in Florida.

There are three ways in which a will can be contested in Florida.


  1. Undue Influence;

  2. Testamentary Capacity;

  3. Failure to Execute with the Required Formalities.


The above example would involve Failure to Execute with the Required Formalities.
Florida Statute 732.502 defines the requirements that a testator must follow to create a valid will. Carefull attention need to be paid to a will that was not executed in Florida, or an old will to make sure that the requirements were followed at the time the will was created and not necessarily the current requirements.

In addition, a foreign will could be challenged under testamentary capacity. To have the proper testamentary capacity to make a will in Florida you must be of sound mind and either an emancipated minor or more than 18 years of age. Sound mind is having the mental ability to understand the making of a will, knowing what your assets are, and being able to choose who is going to receive them. You do not have to understand it later, but only have a lucid moment at the time you execute the document. If there is a question about mental capacity, it is a good idea to ask questions, and document the answers at the time the will is signed to create evidence of mental capacity for any future dispute.

The third type of will contest deals with undue influence. This happens when a beneficiary or another person causes a person to change a will to the detriment of another person. These are very hard cases to prove but do occur. Often a family member, caregiver, friend, or neighbor with access to a person can cause them to change a will with undue influence.

If you are considering contesting a will in Florida, you should discuss your situation with a Florida Estate Planning Lawyer to determine what your options are.

December 6, 2011

Democrats to Introduce Bill to Lower Estate Tax Exemption to $1 Million

Jim McDermott and the House Democrats introduced a bill to extend the estate tax beyond 2012. The proposal would reduce the current estate tax exemption from $5 million to just 1 million and raise the estate tax rate from 35% to a top rate of 55%.

The bill also contains restrictions on Grantor Retained Annuity Trusts :


  • Minimum 10 year term;

  • Annuity payment cannot be reduced from one year to the next during the first 10 years of the GRAT term; and

  • The remainder interest at the time of the transfer must have "a value greater than zero.''

  • The bill contains no guidance regarding the parameters of the "greater than zero" requirement.

  • Effective for transfers made after the date of enactment.

The bill would also limit discount on minority interest in companies or investments:


  • For the transfer of an interest in an entity which is not actively traded, no valuation discount would be allowed with respect to "non business assets";

  • For the transfer of an interest in an entity which is not actively traded, no discount would be allowed by reason of the fact that the transferee does not have control of the entity if the transferee and the transferee's family members have control of the entity.

  • Effective with regard to transfers after the date of enactment.



"It really is a question of clarity," for both families and planners, McDermott said. "The question is how to bring fairness into it."

Under McDermott's proposal, co-sponsored by Rep. Charles Rangel , the exemption for married couples would drop to $2 million from current level of $10 million. A surviving spouses could still claim the remainder of their partner's exemption if some remains unused after death. The rate and $1 million exemption would be adjusted for inflation, beginning at the 2000 level.

The bill would also unify the estate and gift taxes. That means a taxpayer would only have a single exemption of $1 million for their estate and most gifts. The legislation also includes several provisions from Obama's last budget proposal to end targeted estate tax breaks.

While there are not many days left this year, it might be beneficial to make larger gifts today to lock in the 5 Million dollar gift exemption in place now. To discuss how this could change your existing estate tax planning, contact a Florida Estate Planning Lawyer to discuss your specifics.

December 2, 2011

What are the duties and responsibilities of the Personal Representative in Florida?

Once the personal representative (PR or executor) is appointed by a Florida court, takes the oath of office, and posts bond (if required), then he or she is authorized to administer the decedent's estate. A Florida personal representative has a fiduciary responsibility to the creditors, the IRS, and the beneficiaries for proper administration of the estate. The personal representative must not comingle the estate's funds with his or her own funds, and needs to be fully accountable for all of the decedent's property during the administration of the estate. The personal representative may sell some or all of the assets of the estate to raise cash to pay the debts and expenses of the estate, if necessary or appropriate.

The personal representative is obligated to:

a) Identify, gather, value, and safeguard the assets.
b) Publish the "notice to creditors" in a local newspaper, giving creditors an opportunity to file claims relating to the estate.
c) Serve "notice of administration" on specific persons, giving information about the estate and giving notice of requirements to file any objections relating to the estate.
d) Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed.
e) Contact the Social Security Administration and the Veteran's Administration to apply for any death benefits or survivor benefits for which the decedent's estate may be eligible.
f) Locate insurance policies and apply for benefits if the proceeds are payable to the estate.
g) Contact the decedent's employer and any club or fraternal organization to which the decedent may have belonged to determine if the estate or surviving family members are entitled to any benefits.
h) Examine the circumstances surrounding the decedent's death to determine if there are any claims against third parties, which need to be asserted or preserved, such as claims for wrongful death or worker's compensation.
i) Collect rents, accounts receivable, interest, dividends and other income due to the decedent prior to death and that becomes due to the estate thereafter.
j) Assume the responsibility for any litigation or settlement of pending lawsuits in which the decedent had an interest.
k) Keep the property of the estate in good repair.
l) Keep the estate property invested properly until the administration is complete.
m) Locate and access any safe deposit boxes in the decedent's name.
n) Object to improper claims and defend suits brought on such claims.
o) Pay the valid claims.
p) File all past due and current tax returns.
q) Pay the taxes.
r) Employ necessary professionals to assist in the administration of the estate.
s) Pay the expenses of administration.
t) Distribute the statutory amounts or assets to the surviving spouse or family if claims are made.
u) Distribute the appropriate assets to beneficiaries.
v) Close the probate administration.


No personal representative shall be compelled to pay the debts of the decedent until after the expiration of five (5) months from the first publication of notice to creditors and is obligated to make payment of expenses of administration and creditors' claims against the estate in accordance with the priorities set forth in §733.707, Fla. Stat.

December 1, 2011

What are the Different Types of Probate in Jacksonville Florida?

There are 4 types of probate in Florida

1) Disposition without Administration.
This type of probate can only be used when the assets are less than the funeral bills and last medical expenses. This is available only if estate assets consist solely of property classified as exempt from the claims of the decedent's creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of:


  1. up to $6,000 in funeral expenses; and

  2. the amount of all reasonable and necessary medical and hospital expenses incurred in the last 60 days of the decedent's final illness.

Very few estates will qualify for this type of disposition. The steps involved in a Disposition without Administration are preparing documents and filing them along with a copy of the paid funeral bill.

The current court costs are $231 and the legal fees for this type of probate are the lowest of the three types of probates.

The approximate time frame is less than 30 days.

2) Summary Administration.

This type of probate can only be used when the total value of the assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two years. The steps involved in a summary administration are preparing the documents, publishing notice to creditors, determining homestead (if applicable) and having the funds distributed to creditors and beneficiaries per the court order.

The current court costs are $345, and publication costs range from $30 to $300 depending on the county and newspaper (most are around $150).

The approximate time frame is three to five months unless extraordinary circumstances such as a will contest occur. The estate cannot be closed while litigation is pending.

3) Formal Administration.

This type of probate is for all other estates or whenever a personal representative is required for other purposes. The steps involved in a formal administration are preparing the documents, getting a personal representative appointed, publishing notice to creditors, filing an inventory of the estate, determining homestead (if applicable), distributing the assets to creditors and beneficiaries, and closing the estate.
If you need Letters of Administration for any reason, or if the estate will be subject to litigation, you should open a formal administration.

The current court costs are $400, and publication costs range from $30 to $300 depending on the county and newspaper (most are around $150).

The approximate time frame is four to twelve months unless extraordinary circumstances such as litigation occur. The estate cannot be closed while litigation is pending.

4) Ancillary Administration.

Ancillary administrations are for secondary probate administrations when the decedent's primary estate was in another state, but there was also real property in Florida. Ancillary administrations follow the same procedures as a summary administration or formal administration depending on the date of death, value of the real property, and whether a personal representative is necessary.

The approximate time frames are the same as for the summary or formal administrations above. The estate cannot be closed while litigation is pending.

November 30, 2011

2012 Florida Mediaid Eligibility Requirements

The eligibility requirements for Medicaid have changed for Florida as of 1/1/2012. There were changed in the income criteria, maximum amount of assets, and maximum equity in your homestead property.

Florida Medicaid Income Limits as of 1/1/2012.

The Applicant's income limits have increased from $2022/ month to $2094/month. If the applicant for Medicaid has income in excess of $2094, they may use a Qualified Income Trust or Miller Trust to help the applicant qualify for Florida Medicaid Benefits under the Medicaid Asset Test.

Florida Medicaid Asset Limits as of 1/1/2012.

For an individual who is not married, the Applicant can only have $2000 in countable assets. This number is unchanged from 2011.

For an Applicant who is married, their Spouse's Asset limits have increased from $109,560 in 2011 to $113,640 as of 1/1/2012.

If you have more than the maximum assets, we can talk about how to convert countable assets to exempt assets, spend the money appropriately or plan for gifting, loans, or Medicaid compliant annuities to allow you to qualify even if you have significantly more assets than the maximum.

Florida Medicaid Homestead Equity Limits as of 1/1/2012.

An Applicant for Florida Medicaid can have $525K in homestead equity. This value has increased from the $506K which was allowable in 2011. If your home has more than the maximum value of equity, there are ways to reduce the amount of equity to allow you to qualify for Florida Medicaid.

if you or a family member will be looking for Florida Medicaid Benefits, you should consult with a Florida Medicaid Lawyer before you apply for coverage to protect excess income or assets and allow you to qualify properly. Many of these techniques can still be used even if the family member is already in a nursing home.

As you or your family members age, it is important to review your Florida Estate Planning Documents with someone who is familiar with Elder law and estate planning because many of the techniques used for estate planning can cause problems when applying for Florida Medicaid Benefits

November 30, 2011

Probate and WIll Issues

What is a Florida will?

Thumbnail image for Last Will and Testament 1.jpgA will is a written instrument, signed by the decedent and at least two witnesses in each others presence, that fulfills the requirements of Florida law. A will names the beneficiaries for the testator's probate assets. The testator can also designate guardians for minor children and a personal representative to administer the estate. If a will was validly executed in another state, Florida courts will recognize the document as a will except in the case of a holographic will. Holographic wills are wills written entirely in the testators own handwriting and in most states witness signatures are not required. However, Florida law requires that holographic wills be witnessed and signed in the same manner as any other Florida will.

What if there is not a Florida will?

In Florida if someone dies without a valid will they are said to have died 'intestate'. If they have a will when they die, they die 'testate'. If a person dies without a will, Florida statutes direct how their assets will be distributed based on whether the decedent had a spouse, children, children from outside the marriage, parents, siblings and so on. If a person dies without a will or any living relatives then his or her property will escheat to the state (become the property of the state).
If a person dies intestate, the decedent's probate assets will be distributed to the decedent's heirs in the following order of priority:


a) If the decedent was survived by a spouse but was not survived by any lineal descendants, the surviving spouse receives all of the decedent's estate.
b) If the decedent was survived by a spouse and was survived by one or more lineal descendants (all of whom are the descendants of both the decedent and his or her spouse), the surviving spouse receives the entire intestate estate.
c) If the decedent was survived by a spouse and survived by one or more lineal descendants (at least one of whom is not also a lineal descendant of the surviving spouse), the surviving spouse receives one-half of the probate assets, and the decedent's lineal descendants share the remaining half.
d) If the decedent was not married at his or her death but was survived by one or more of his or her lineal descendants, those descendants will receive all of the decedent's estate. If there is more than one lineal descendant, the decedent's estate will be divided among them 'per stirpes' which is the manner prescribed by Florida law. The easiest way to understand per stirpes is to divide the assets at the first generational level where there is a survivor. If any of those individuals pre-deceased the decedent, their share will be split between their descendants, if any. If there are no surviving descendants, their share will not be counted when making the division between their siblings. Basically if you predecease your parents, your children will divide your share of your parent's estate. If you have no children or descendants, your share will go to your siblings.
e) If the decedent was not married at his or her death and had no surviving lineal descendants, the decedent's probate assets will pass to the decedent's surviving parents, if they are living, otherwise to the decedent's brothers and sisters if living, otherwise to the decedent's nieces and nephews.
f) Florida's intestate laws will pass the decedent's probate estate to other, more remote heirs if the decedent is not survived by any of the close relatives described above.

Do I need the original Will in Florida?

In Florida only an original will can be admitted to the court unless there are extenuating circumstances.

What happens if I cannot find the original Will?

A Will that cannot be found that was last seen in the hands of the testator is presumed to have been destroyed by the decedent. If a will has been destroyed by the decedent it is presumed that the decedent intended to revoke the will. It is possible to admit a copy when the original cannot be found and people can testify to its validity. This process is not guaranteed because you have to overcome the presumption that the testator destroyed the will intentionally.

Is a Will valid in Florida?

In order for a will to be admitted to court, it must be a validly executed will under the statutes governing Wills. For a Florida will to be valid, it must be signed at the end by the testator and two witnesses, who each in the presence of the other witness the testator's signature. It is not necessary that the testator sign their name, an X is sufficient. If the will was validly created in another state, Florida Courts will generally recognize the will.

If you are having problems getting a copy of a will or would like your Florida will reviewed to make sure it is valid and does what you want, you should contact a Florida Estate Planning Lawyer to discuss your situation.

November 29, 2011

When is a Probate in Florida required?

Thumbnail image for probate.jpgWhen is a Florida probate required?

If a Jacksonville resident dies owning anything in his or her name individually a probate is necessary in Florida. In addition, if a person living in another state owns real property (a home or land) in Florida there will also need to be a probate case opened in Florida. Some examples of individually owned assets include a checking account, a stock account, an insurance policy payable to the insured's estate or someone who does not survive the decedent, a home or other real estate, or bonds. Just because a Florida will names an asset and a beneficiary, does not mean that the asset will be distributed per the terms of the will. If such asset is jointly owned, for example, it will generally pass to the surviving joint owner (with few exceptions). To carry out the instructions in the will, you must first open a probate. In Florida if there is more than one beneficiary, a lawyer will be required to open the probate. This is because if while you can represent yourself in a probate case, you cannot represent another if you are not a licensed attorney in Florida.

When is a probate not required?

If an asset has a payable-on-death beneficiary or a joint owner it is not subject to probate. If there are no assets that are not disposed of upon death, there is often no need to open a probate in Florida. Property that is generally not included in the probate estate includes life insurance proceeds that are not payable to the decedent's estate, jointly owned property, and property held in an intervivos trust (a trust created during the life of the decedent commonly called a living trust, revocable trust, or revocable living trust). Trust property may be used to satisfy the expenses of estate administration and claims of creditors if the probate property is not sufficient. If you have a trust, a notice that the trust exists is required to be filed with the probate court to give creditors the ability to file claims and notify the trustee that there are debts that need to be paid. If the only property owned that is subject to a probate is upside down or does not have equity, the beneficiaries may choose to abandon the property and not complete a Florida probate. This is happening more and more with many homes having negative equity.

Will a probate be required in state other than Florida?

If the decedent owned real property in a state other than Florida without in their individual name, a probate will be required to dispose of the real property that was owned in the other state. If property is owned in more than one state, a probate will be required in each state that real property was owned. A probate in another state is called an ancillary probate administration.

If you have questions regarding a Florida probate, you should contact a Jacksonville Probate Lawyer to discuss your situation and what makes the most sense given your particular circumstances.

November 15, 2011

Exploitation of the Elderly

Jacksonville Elder Law Attorney.jpgFor those working with Jacksonville Elder Law Attorneys the Florida news that a daughter living with her elderly mother was accused of stealing her mother's money to fuel a gambling and drug addiction was not a shock. In attempting to ascertain the Florida elder mother's mental state, the investigators turned to her doctors.

The medical insight gleaned from treating physicians can lead to tougher charges against those who use their position of trust to scam the elderly. However, many doctors' are hesitant to get involved in the Florida legal proceedings of their elderly patients.

In Florida counties, where the population of elderly over the age of 60 often exceeds 25%, many law enforcement financial crimes units are seeking volunteer licensed physicians. These doctors assist in determining the mental and physical state of a victim at the time of the perpetration and fraud.

Jacksonville Elder Law Attorneys have experience with numerous elderly who are victims of financial exploitation. Jacksonville's elderly victims are described by Florida Statutes as a "person of 60 years of age or older who suffers from infirmities of aging manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunction. . . that the ability of the person to provide adequately for the person's own care or protection is impaired."

Many cases of Florida elderly abuse and exploitation are by home health care providers, relatives, guardians, and even opportunistic friends and neighbors.

A Jacksonville Guardianship Attorney can talk to you about the elders in your life who may need assistance. Jacksonville Estate Planning Lawyers have the experience to advise of ways to protect your loved ones before they become victims. Some of these strategies encompass having a trust prepared and consulting with a Jacksonville Medicaid Law Attorney.

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.