September 24, 2011

Updating your Florida Will is as Important as making a Will!

will and testament.bmpCircumstances change, possessions change, homes change, has your Will changed? As a Middleburg Estate Planning Attorney, I have heard many "will" stories, not all of them have a happy ending.

A Florida woman was left a home in her father's Florida Will . Her brother was left money in the amount equivalent to the value of the home. Her father sold the home before he died, but failed to update his Florida Will to provide for his daughter.

If the subject matter of a specific gift is not in the estate at the time of the testator's death, the specific gift, (in this case the house) will fail and the person who should have received the gift will take nothing. This is called "Ademption by Extinction", in other words, the house no longer belongs to the deceased and therefore it cannot pass to his heirs.

Although nothing precludes the heir from contesting the will, this is a time-consuming and costly endeavor guaranteed to cause stress. A better plan is to consult with a Middleburg Wills Attorney. An attorney will review your current Will, and make suggestions as to how you can prevent similar scenarios. If you no longer own the mint condition mustang that you devised to your granddaughter, she may be quite disappointed when she realizes she receives no car or anything else.

If you have already had your Will prepared, that is great. However, life changes, what we own changes, our heirs may change. If your Will is not updated to reflect what your circumstances are now, it will not reflect what your true intentions are.

September 14, 2011

IRS extends Filing Deadline for Form 706 and 8939 for Decedents dying in 2010

The IRS just released Notice 2011-76 that extends the filing deadline for Forms 706 and 8939 for estates of decedents dying in 2010.

The Notice provides that large estates of people who died in 2010 will have until early next year to file various required returns and pay any estate taxes due. In addition, the IRS is providing penalty relief to certain beneficiaries of these estates on their 2010 federal income tax returns. This relief is designed to give large estates, normally those over $5 million, more time to comply with key tax law changes enacted late last year. Specifically, the following relief is given:

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September 11, 2011

Differences between Estate Planning and Elder Law

Last Will and Testament 1.jpgMany Middleburg families have thought about their future and what they want to happen upon their incapacity or death. However, many Middleburg families have not made that important call to consult with a Jacksonville Estate Planning Attorney about memorializing their thoughts in valid legal documents.

When you plan in advance you make your own decisions, you pay less, and you rest comfortably knowing that if you become incapacitated, and when you pass away, you have important legal documents in place. Legal documents that direct what you want to happen, to your children, your assets and you.

If you are a parent, whether you are married, divorced, or single, you must consider who will take care of, and provide for your minor children in the event of your incapacity or death. It is important to designate in a Forida Will or Pre-need Guardianship document your choice of who would be your child's guardian. Better that you make this choice than a judge.

You may not have minor children or any children, however, you still want to control what individuals inherit your assets. If you do not prepare your Will, the State of Florida will distribute Your assets according to state law, which may be in conflict of what you may have wanted.

Middleburg residents should also discuss with an Attorney about appropriate legal documents needed to designate the person you want to make those important personal, health care, and financial decisions, in the event that you are incapacitated, or are suffering from a serious illness or injury.

A Middleburg Estate Planning Attorney is able to advise you as to what documents are best suited for your needs.

September 9, 2011

Personal Represntative of Yale Student's Estate Files Wrongful Death Lawsuit

It is the PR's job in a Florida Probate case to take actions to gather the assets and distribute them to the beneficiaries. When wrongful death claims are not assets subject to distribution under Florida Probate, it is the personal representative of an estate who pursues a Wrongful Death Claim in Florida or another state. The Jacksonville Wrongful Death Lawyer will often work directly with a Florida Estate Planning Lawyer to pursue the claim for the family and children of the decedent.

The Yale Daily News is reporting that

The estate of former pharmacology student Annie Le GRD '13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harassment at the University "emboldened" her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale's negligence.

While many states have broader statutes dealing with wrongful death claims, Florida limits which family members can have a claim and often when an elderly person dies, the adult children may not be able to file a claim.

It is important to talk with a Florida Estate Planning Lawyer who is familiar with the Florida Wrongful Death Statute and requirements so that the correct form of probate is opened and unnecessary estate or personal assets are not waisted when there is no claim that can be recovered.

September 9, 2011

Protecting the Family Vacation Home

Florida asset protection for homestead- House.jpgOften families have vacation property that has been owned for may years or generations. It would be virtually impossible for most children to acquire or maintain these types of properties in today's market.

We often use business entities or trusts to hold title to the property and other assets to help provide for the management and expense of owning and operating a vacation home. When the property is going to be inherited by more than one child or family. An operating agreement or trust agreement can provide rules for handling allocation of time, and expenses among the children and their families.

If you have a family beech or lake home or a ski lodge you may want to talk with a Florida Estate Planning Lawyer about how to protect the property from your creditors, the creditors of your children, and disputes between your children regarding the use and expense sharing of the home in the future.

September 9, 2011

TBE Bank Accounts and Asset Protection

When protecting one's assets in Forida a Florida Asset Protection Lawyer will often look at the stying of accounts and other personal property.

There are situations when having a Bank account in the name of a husband and wife as tenants by the entireties can offer additional protection from creditors. In Florida if you open joint bank account or certificate of deposit (CD) and the joint owners are the husband and wife, the account will have the benefits of a tenants by the entireties account. The statute seems to allow for husband AND wife as well as husband OR wife and does not indicate any issues as to when or how the account was opened or if a spouse was added at a later time. Florida Statute 655.29(1) is very limited and does not establish TBE status on other types of accounts or personal property that you may own. It is important to review the way in which you hold title to your personal property to make sure you will be afforded creditor protection.

655.29(1) Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons shall be presumed to have been intended by such persons to provide that, upon the death of any one of them, all rights, title, interest, and claim in, to, and in respect of such deposit account, less all proper setoffs and charges in favor of the institution, vest in the surviving person or persons. Any deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.

September 6, 2011

Gay and Lesbian and Living in the Bible Belt

gay bible.jpgThe grandson of the late evangelist Oral Roberts has "come out" as a gay man. Courageous move for a man that comes from a devout and famous evangelical family. Although he and his family have minimal contact, their opposing views as to living a gay lifestyle has them at opposite ends of the spectrum (the rainbow spectrum).

This is a familiar pattern for many Orange Park and Jacksonville gay and lesbian individuals. Families can't and won't accept their lifestyle. Communication is the first key, but often times that does not work. Living in a same-sex relationship often involves thinking about your partner and your future together. Because same-sex relationships are not a legally recognized union in Florida, it is important to talk with an Orange Park Estate Planning Attorney sensitive to the concerns of the LGBT community. There are many avenues and legal documents that enable you to be in control of who will make future health and financial decisions in the event of your incapacity.

Florida Estate planning can help protect your same-sex partners and their children. This can help avoid disputes between your family and your parents and siblings

There are a growing number of gay-affirming and welcoming churches and synagogues right here on the Florida First Coast as well as all around the country. If you would like more information, contact Patricia Davis to find out more about what services aJacksonville LGBT Lawyer can provide to you and your family.

August 26, 2011

Protecting Assets From a Florida Divorce using an IPUG Trust

In Florida, all marital assets are subject to equitable distribution. If you leave assets to your children in a revocable trust, they can also be at risk to equitable distribution depending on the circumstances and how they are used. If you create an Irrevocable Pure Grantor Trust (IPUG) and leave assets to your children in their own IPUG they will remain separate property and are only subject to alimony and child support as a last resort. Generally these assets will be protected as separate property in the case of a divorce which occurs in around 50% of all marriages.

To discuss how an IPUG trust can protect assets from your creditors and those of your beneficiaries, contact a Florida Estate Planning Lawyer to discuss your circumstances and goals.

August 25, 2011

Can Minor Children Pick the Personal Representative of an Estate

In Florida Statute 733.301(1)(b)(2) defines how a minor child can participate in a probate proceeding. Minor children are not able to participate directly, but can do so through a court appointed guardian over their property. In a recent Florida case out of the 2nd District of Florida the appellate court found that it is an error not to give the minor children an opportunity to have a guardian appointed before appointing a personal representative.

The court found that although the mother, as natural parent, had no right to select the personal representative, she did have the right to file objections on behalf of her children. Significantly, the statute does not entitle a natural guardian to such a right. Rather, section 733.301(2) provides that "[a] guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative."

Although Florida Probate Rule 5.040(a)(2) provides that where an interested person on whom formal notice is served does not serve written defenses within twenty days, the probate court may consider the pleading ex parte, Florida courts treat this rule as merely procedural; it is "`in no sense' a statute of limitations or a mandatory non-claim provision." Tanner v. Estate of Tanner, 476 So. 2d 793, 794 (Fla. 1st DCA 1985).

August 24, 2011

Florida Probate and Timeshare Ownership?

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:



  1. Filing a petition in the Probate Court

  2. Heirs, beneficiaries, and creditors are identified.

  3. Notice is delivered to all heirs and beneficiaries.

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

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

  6. An inventory of assets and debts is created.

  7. Creditors claims are verified and disputed when necessary.

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

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

  10. 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

August 23, 2011

LGBT Population increases 60% in Broward County Florida

Gay Flag Pole.jpgProvincetown, Massachusetts is the new LGBT place to be.

The Williams Institute of Census has said that South Florida is one of the top spots for LGBT population Growth. Florida is the last state to declare the ban on gay adoption as unconstitutional.

According to the 2010 Census, Florida has approximately 65,601 same-sex couple households, a 60 percent leap since the 2000 Census. Read more about same-sex couple household statistics.

As an Orange Park LGBT Rights Attorney it is wise for same-sex couples living together to consult with a Florida attorney. There are no inherent legal rights that apply to same-sex couples in Florida. Legal documents ranging from Deeds to your home, Wills, Designation of Health Care Surrogate, and many other Florida Estate Planning documents and agreements are needed to ensure that you, and your partner, are protected, legally.

With the rise of the gay population in Florida, awareness is needed to inform every partner of a same-sex relationship to seek the counsel of an attorney. When heterosexual couples divorce, there are statutory protections, not so when a gay or lesbian couple split.

August 23, 2011

What Documents Should I Look for After Someone Dies?

In Florida when a someone dies family members will need to compile a list of important information to deal with the estate. These documents will include what the deceased person owned, a list of their creditors and the amount of money owed at the time of death. To help get you started, here is a list of documents that need to be located:


  1. Account statements

  2. Life insurance policies

  3. Beneficiary designations

  4. Deeds for real estate

  5. Automobile and boat titles

  6. Stock and bond certificates

  7. Business documents

In addition you may want to request our Free Florida Probate Hanbook to help you understand the process. When you request the handbook, be sure to ask any specific questions you may have.

August 22, 2011

Voluntary Guardians Assist Individuals in Daily Tasks

pic_giving_money.jpg

A Florida Voluntary Guardianship is a great option for those with elderly parents and elderly relatives who have increasing difficulty managing their own "property affairs". Business transactions such as banking matters, real estate transactions, and money management are some of the everyday tasks that become increasingly difficult to handle for Florida's elderly.

Ponte Vedra or Jacksonville residents may become a Voluntary Guardian by request and petition of the individual ("ward") who is in need of assistance from a trusted family member or friend.

The petition must also include a physician's certificate stating that the person who is petitioning the court for a guardian is competent to understand the nature and scope of the guardianship.

A wonderful feature of the provision is that it allows the guardian to take possession and control of less than all of the wards property. This enables the "ward" to maintain a sense of independence, and allows that person to manage a certain "portion" of their property, and still feel in control of their world. Each circumstance is unique and therefore, it is prudent to discuss your situation with a Ponte Vedra Guardianship Attorney.

When the Petition requests that the guardian only take control of a part of the wards estate, the court order must be specific as to the property to be included in the guardianship estate.

A Voluntary Guardian must file an annual report with the court, which gives an accounting as to the property under the guardian's control. The ward may terminate the voluntary guardianship at any time by filing a notice of termination with the court and must obtain a new certification of competency each year for the guardianship to continue. If you have questions about how a voluntary guardianship may assist someone in need of assistance, contact an experienced Guardianship Attorney in Ponte Vedra.

August 17, 2011

Revocable Living Trusts: Are they now obsolete?

Currently the Revocable Living Trust is the most popular type of trust for estate planning. With the current estate tax exemption at 5 Million dollars, many have begun to ask if there is a need for such a trust. More over the Revocable Living Trust provides no asset protection.

Currently 99.7% of the US population has less than 5 Million in Assets. While a Revocable Living Trust can offer privacy, probate avoidance, easier management of one's assets, and numerous other benefits, it does not offer any asset protection. Many people really want an irrevocable trust, but do not want the consequences of the traditional irrevocable trust. While there are many types of irrevocable trusts, most either cause a loss of control over the assets by the grantor, loose the stepped up basis, or cause the trust to pay taxes at the highest tax rate with as little as $11,000 in earnings.

There are variations of the irrevocable trust that can solve one or more of these issues, but there is only one type of Irrevocable Trust that has the flexibility of a revocable trust, provides asset protection from the creditors of the creators as well as the beneficiaries, allows the income to be taxed at personal rates, and provides for stepped up basis upon the death of the creator.

While the IPUG: Irrevocable Pure Grantor Trust defies the logic of most estate planners, it has been designed using common law, trust law, and tax law to provide Asset Protection, taxing at a personal level, the ability to control the income and principal, stepped up basis and even can even help in nursing home qualification or Medicaid eligibility.

If you would like to find out how you can upgrade your standard revocable trust or create a new Florida Asset Protection Trust, contact a Florida Estate Planning Lawyer that is knowledgeable about the Irrevocable Pure Grantor Trust and how to structure it to accomplish your goals.

August 16, 2011

The New Florida Power of Attorney Act

The Florida law governing powers of attorney and similar instruments is found in Chapter 709 of the Florida Statutes. The Florida legislature on May 4, 2011 voted to pass Senate Bill 670 which significantly revised Chapter 709.

A. Generally

A power of attorney is a writing that grants authority to an agent to act in the place of the principal. Pursuant to the Act, a principal is an individual who grants authority to an agent and an agent is the person granted authority by the principal in a power of attorney. The Act allows for both durable and nondurable powers of attorney. A durable power of attorney is one that is not terminated by the incapacity of the principal, whereas a nondurable power of attorney is terminated upon the principal's incapacity. For a power of attorney to be durable, it must state that it is not terminated by the subsequent incapacity of the principal, or similar words that evidence the principal's intent.

The Act applies to all powers of attorney created by an individual except a proxy or other delegation to exercise voting or management rights with respect to an entity, a power created on a form prescribed by a governmental agency or subdivision for a governmental purpose, and a power coupled with an interest (e.g., a power given to a creditor to sell pledged collateral.

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