Florida Estate Planning Lawyer Blog

The lazy days of Jacksonville Beaches summer is a time to relax, enjoy the beach, and have a great time. Summer time is also the time to reflect. . . about your life, your partner, your children, and your future.

Don't put off until tomorrow, the preparation of important documents dealing with important Florida Estate Planning Documents or those dealing with Gay and Lesbian Legal Issues that will protect both yourself, your partner, and your family.

Your Florida Will, a Florida Revocable Trust, a Florida Durable Power of Attorney, your Florida Living Will, a Designation of Health Care Surrogate. . . take the time this summer to think about your future and how important it is to have these documents prepared, because before you blink, Jacksonville summers turn into Florida Fall.

A Jacksonville Beaches Estate Planning Attorney can discuss with you what estate planning and other documents are best suited for your situation.

By now, it is impossible to not know of the terrible housing market within the state of Florida with all the news of foreclosure and the like. There are many people that are in a are underwater in terms of home values. However, there are also some people taking advantage of the current housing market. These people are entrepreneurs looking to buy properties on short sale or at foreclosure auctions.

These entrepreneurs are working out of their own homes and likely seeing some profits through renting the newly acquired properties. Only some of these entrepreneurs are fully taking advantage of the asset protection options available to them. One of the main advantages is forming a multiple member limited liability company or LLC in Florida. It is reasonable that one entrepreneur would own about three properties. The entrepreneur could have each property owned by a separate LLC so as to minimize his risk of liability if an accident were to happen to a tenant in one of the properties. In that case, that tenant would likely be able to access the assets of that one LLC instead of all of them.

In order to provide yourself with this advantage and to realize other benefits that may apply to your situation, you should contact a Jacksonville Business Formation lawyer to assist you in setting up a Florida LLC. Take advantage of the Florida housing market today by setting up a LLC by calling 904-685-1200 to talk to an Florida Asset Protection Lawyer . Also, you can find more information on LLC's and other asset protection vehicles online by clicking on the areas under the "Business Formation Practice Area" section of the webpage hyperlinked to in this sentence.

REASONS TO HAVE YOUR FLORIDA WILL PREPARED:

IT'S YOUR WAY: You decide who inherits from you. If you die without a Florida Will the Florida's intestacy statute directs how your property and assets are divided and distributed.

Florida intestacy laws DO NOT provide for non-family members. Unless you draft a Florida Will, your partner will not inherit from you.

YOUR CHILDREN: If you have minor children, you nominate who is to become their legal guardian (the guardian you choose will still have to be approved by the judge). However, your nomination will by duly noted by the court and receive priority if qualified.

YOUR NON-BIOLOGICAL CHILDREN: In order for your child to inherit from a non-legal or non-biological parent, that parent must prepare a will in Florida.

LEAVING TO CHARITY: You can give money or personal property to the charities of your choice; the state will not distribute your property to charity.

BELOVED PETS: You can provide for the continued care of your pet after you are gone.

FAMILY SQUABBLES: Reduce the risk of dissension by providing clear directions as to how you want your property distributed. (Ask us how a Florida Trust may reduce the risk further)

PARTNER BURDEN: If you pass away without a will, you leave a burdensome job to your Partner, Spouse or other Close Personal Friend. They are already mourning your death, don't make this time more difficult as they settle your personal affairs.

FAMILY DISSENT: If your family has been non-supportive and disapproving of your same-sex relationship, preparing a valid will is important in the event of a will contest. A penalty clause for a will contest is unenforceable in Florida.

To learn about having your will prepared, or how a Florida revocable trust might benefit you, as well as how other legal documents will protect you, your partner and family contact me, a Jacksonville Beaches Estate Planning Attorney and let's sit down and talk.

In a recent online edition of Private Wealth, Beth Tractenberg and Kathryn Von Matthiessen discuss the nexus between people from a foreign nation living in the U.S. and the current Gift Tax exemption. The authors first break down the difference between foreigners Domiciled in the U.S. versus those that are not domiciled here (Non-Doms). U.S. courts have a factoring system when it comes to determining whether a person is domiciled in the U.S. If it is determined that a foreigner is domiciled in the U.S., U.S. gift taxes generally apply to that person. Previously, there was a $1 million cap on the amount a person could gift during his or her lifetime. This new reform ups that amount to a $5 million exemption for each person, therefore giving a couple a $10 million exemption. Also, it is VERY IMPORTANT to note that this exemption will only be in effect until the end of 2012. There is also a real possibility that Congress could end this extra exemption early so it is important not to wait to long if a significant give is something you are considering as part of your Florida Estate Planning

There are three types of people this blog is meant to inform: U.S. citizens, Domiciled foreigners, and Non-Domiciled foreigners. U.S. citizens can take advantage of the laws of their nation. However, it is the non-resident Domiciled and Non-Domiciled person who may not know their wealth can be protected from U.S. taxes in that the new exemption applies to them. If you do not know whether you are a Domiciled or Non-Domiciled foreigner, you should contact a Jacksonville Estate Planning attorney so they he or she can guide you to make a sound decision on keeping the money you have worked hard to earn before the exemption end at the end of 2012.

As Floridians we know that Jacksonville summers seem to blend into the Florida Fall. Before you know it, school registration will be upon us, sports physical exams, and signing up for health insurance. As the non-legal parent of a minor child, don't wait until the school year begins to obtain Florida legal custody over your grandchild, niece, nephew or other minor relative.

Florida Statutes, Chapter 751 recognizes that many minor children live with and are cared for by members of their extended family and not by their natural or legal parents. An "extended family member" is any relative within the 3rd degree by blood or marriage to the parent, or the stepparent of a child if currently married to the parent and not in a pending civil or criminal proceeding involving one or both of the child's parent as an adverse party.

If you are a Jacksonville individual eligible to bring a proceeding in the circuit court to obtain legal temporary custody of a minor child under your care, contact a Jacksonville Custody Attorney to discuss the importance of obtaining court ordered legal custody. For more information on Child Custody in Florida please review our Jacksonville Divorce Attorney Blog

Though statistics are scarce, there are somewhere between 1.6 to 3.2 million gay men and women who are 65 or older. Many of them live in Florida, which also happens to be home of the first federally-funded elder care center with an LGBT program.

Planning for end of life care and asset protection takes time and should not be left to the last minute. Unfortunately, for gay and lesbian couples in Florida, current laws are often discriminatory or simply do not consider the issues that arise with these couples who wish to leave their belongings to a same-sex partner. Florida Laws often favor direct family members, who may challenge wills that were meant to distribute assets to a same-sex partner. These challenges can be costly, time consuming, and are definitely something one should seek to avoid.

It is important to remember that a Florida Will is not the only means of divesting assets after death. An Florida Estate Planning Lawyer can explain these alternatives to you. For example, you may consider an inter vivos trust or a Florida Revocable Trust . This allows an individual to transfer title to property in a trust, which is held by someone you name as trustee. A trustee may then hold the property for the individual's lifetime. When the individual dies, or at some other stated time, the property remaining in the trust can be transferred to the intended beneficiaries.

There are multiple issues one should consider when planning for end of life care and asset protection. These issues are even more numerous for gay and lesbian couples, which is why it is important that you contact a Jacksonville Gay and Lesbian Estate Planning Attorney familiar with Jacksonville gay and lesbian legal issues to discuss your options.

A Florida guardian is a surrogate decision-maker appointed by the court to make personal
and/or financial decisions for a minor-child or for an adult with mental and/or physical disabilities. After the court has found that a person requires a Florida Guardian, they are referred to as a "ward."

Florida Statutes provide for the appointment of a guardian for a minor in Florida in certain circumstances, such as when the child's parents die, they are unable to care for a child, or if a child receives an inheritance exceeding an amount parents are allowed by statute to receive on behalf of their child.

On the other hand, adult guardianship in Florida is the process by which the court finds an individual's ability to make decisions is impaired. The court gives the right to make decisions to another person or entity (the Guardian). Generally, a Guardianship is only warranted when no less restrictive alternatives, such as a durable power of attorney, a trust, a health care surrogate, or another form of pre-need directive, are found by the court to be appropriate and available.

As a St. Augustine Guardian Lawyer, I frequently establish guardianships on behalf of Guardians, as well as Wards. If you would like to discuss your individual situation or learn more about the process of establishing a Guardianship, feel free to contact me anytime!

As a Jacksonville Guardian Attorney, I am often asked about the details in establishing a Guardianships in Jacksonville Florida. If a Pre-Need guardian has been selected by the Ward, the court will look to their eligibility first before looking at others. A Florida Pre-Need Guardian is a person who has been named by a competent adult to serve as guardian in the event of his or her future incapacity.

A Florida Pre-need Guardian is a person you name in a written declaration to serve as a guardian in the event of your future incapacity. Parents may also nominate a pre-need guardian for their minor children to act in the event of their incapacity or demise.

A Pre-Need guardian assumes the duties of guardian immediately upon the adjudication of incapacity and must petition the court for confirmation of the appointment. For minors, the Pre-Need guardian assumes such duties upon the adjudication of incapacity or the death of the last surviving parent.

If you are interested in establishing a Pre-Need guardianship or have questions regarding Florida Guardianships, contact a Jacksonville Guardianship Lawyer today!

Because many people move to Florida when they retire, it can make it harder to find family members who have not remained close with their relatives. Section 733.816 of the Florida Statutes is discusses what is to be done when an heir cannot be found. The Florida Statute provides that an attorney has to expend a reasonable effort in order to find the "missing heir," and also that notice must be given to the "missing heir."

The funds are then held by the court for 10 years. A "missing heir" must have a court hearing if he or she is claiming a right to those funds. It is probably best that a "missing heir" be represented by a Jacksonville Florida Probate Litigation attorney who knows the proper documents to file with the court.

If you think you may be a "missing heir" or if you are currently involved with an estate or probate matter in Florida that cannot find an heir, you should contract a Jacksonville Probate attorney that can evaluate your circumstances and determine. You can contact a Florida Probate lawyer online or by calling 904-685-1200.

A recent Florida appellate court decision, 2010 WL 4226204, came to the conclusion that if a trust only has a piece of real property as its sole asset and the trust documents provide an intent that the trust give 5% of its annual principal disbursements to the beneficiary, no monies needs to be paid to the beneficiary. However, as a substitute, the court ordered this trust to pay 5% of the interest in the principal asset to the beneficiary. The court ruled that this would be an "equivalent transfer of interest."

What this may mean to you: If you find yourself as the beneficiary of a trust where the sole asset is a house or some other type of real property and you are expecting a disbursement from the trust, you may be entitled to a substitute payment in an interest in the house. On the other hand, if you are a trustee of a trust with no money to make disbursements, you may still have some options depending on the language of the trust. In either case, you should contact a Jacksonville Florida Trust lawyer who can look over the facts of your particular situation, and let you know the possible legal avenues you can pursue. Or, if you are further down the road leading to litigation, you can contact a Florida Trust Litigation attorney who can represent you in court.

According to the United States Census Bureau, the state of Florida has the highest Population Change and Net Migration of any other state, from the years 1975-2000. As is common knowledge, the baby-boomer generation is growing into retirement age, which increases the likelihood of periods of disability. There are two main options you should consider for who will manage your assets and health care decisions during a period of disability: 1) Set up a Revocable Living Trust; and/or 2) Designate a Durable Power of Attorney for Health Care.

Setting up a Florida Revocable Living Trust and a Florida Durable Power of Attorney for Health Care usually provides a person with the comfort in knowing that their health and assets will be managed for their own benefit. Using both types of documents in tandem ensures that your assets and health should not be managed to benefit the private/secret desires of another person.

If you are a baby-boomer who is not quite at the age of retirement and who may look into moving into a warmer climate such as Florida, There are options you may want to discuss with a Jacksonville Estate Planning Lawyer now, so that you can further secure your dreams of moving down south.

In Florida a spouse can elect to take 30% of the decedent's elective estate. But what was not answered is what portion of the estate is that 30% applied to? The 5th District Court of Appeal of Florida has answered this question in the case of Paredes v. McLucas .

For example, if you are the spouse of the decedent, your Florida Probate Lawyer should go through the decedent's records to find any claims that he may have had against him or her, and make a total. Next, there should be a total of mortgages, liens, and other similar devices. The claims and mortgages will be added together, then subtracted from the total amount of assets in the decedent's estate. The elective share of 30% applies to only this amount. While this may seem simple there are many assets which are not included in a Florida Elective Share Calculation.

Doing the research is a technical and difficult process, especially in the wake of grieving over the deceased. You could contact a Jacksonville Probate lawyer to determine the exact figure, and the option you as the decedent's spouse can take after that point.

It happens frequently. A minor child inherits either personal property, including money, bank accounts, CD's, money markets, or is left an interest in real property. Who looks out for the best interest of the minor child?

Although Florida natural guardians (parents) have all the rights and authority over their minor child's "person", natural guardians do not have all of the rights and power over the minor's "property". Parents are authorized on behalf of their minor children to settle, collect, receive, and manage real or personal property distributed from an estate or trust, when the amounts received, in the aggregate, DO NOT exceed $15,000.00. Florida Statutes 744.301(2).

Florida law allows a court to appoint a Guardian Ad Litem (a fiduciary appointed by the court) to represent and protect the minor's best interests. The Guardian Advocate will act for the minor child in a probate proceeding involving an inheritance by either a Will, a Trust, or when the minor child inherits property through the Florida Intestacy Statute.

Coming of age in this digital world has its luxuries, but those luxuries come with their own set of complexities. Face Book enables you to connect with friends; blogging sites (such as this one) allow you to express your ideas to the world; and paying your bill over the Internet is convenient and environmentally friendly. What do all these different types of luxuries have in common? You must remember your password in order to access the information on them. These websites can add up quickly, and so too can the passwords that access them. Then throw in all the passwords you have for work in addition to all the passwords for your personal life, and these can be hard to remember when you are firing on all cylinders.

Digital Asset Protection.

Now, throw in an accident where you either pass away or are mentally incapable and there is a vast amount of information that you or your estate needs to access. If you have a Digital Asset Protection Trust , you will likely be taken care of. By having a Digital Asset Protection Trust , you decide who gets your online account information and what they can do with that information. To give you peace of mind, your Digital Asset Protection Trust attorney has attorney-client privilege with you, ensuring that the people who have access to your information, should a tragedy occur, will only know of those online accounts which you personally have laid out. It is never too early to begin preparing yourself in case a tragedy occurs.

In a Bill supported by the Banks, you will no longer be able to obtain Springing Powers of Attorney in Florida. In addition, not only will you be required to have two witnesses sign in your presence like with a Florida Will or Florida Revocable Trust but you will also need a notary for it to be valid.

Each agent will have full authority to act independently, there will be new Mandatory Duties, Default Duties, and separate signing requirements for certain authorities like creating or revoking trusts, making gifts, disclaimers, and powers of appointment.

In addition, certain non family members will not be able to do certain things like support others, transfer certain interests in the principals property by gift, right of survivorship, beneficiary designation, disclaimer unless the POA provides otherwise.

And all gifts will be limited to the federal gift tax annual exclusion ($13,000 currently) unless the document states otherwise.

If you are considering a new power of attorney or revising your Durable Power of Attorney in Florida, you may consider doing a new one before October 1, 2011 or be forced to create one with the limitations and exclusions of the new Florida Statue.