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.
Today 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
IN RE AMENDMENTS TO FLORIDA PROBATE RULES
IN RE: AMENDMENTS TO THE FLORIDA PROBATE RULES.
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.
CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.
THE FILING OF A MOTION FOR REHEARING SHALL NOT ALTER THE EFFECTIVE DATE OF THESE AMENDMENTS.
RULE 5.025. ADVERSARY PROCEEDINGS
(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.
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.
Zsa 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.
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.
We all need someone to look after us and care for us when we become part of the eldery population. We also need to take care of our spouses, our children, and our loved ones, when we have passed away. Looking to, and preparing for our future is in a nutshell, what Estate Planning in Jacksonville is all about.
Florida Estate Planning can be as simple as having your Florida Will, Florida Living Will, Florida Designation of Health Care Surrogate, and Florida Durable Power of Attorney prepared. You can also have different types of trusts prepared if you would rather have your assets managed by a trusted individual, after your death. In Florida, Trusts are also a great way to minimize your taxes as well as to manage your assets.
Preparing for future medical and financial decisions to be made on our behalf in the event of our incapacity, or illness, is the reason we prepare a Living Will, Do Not Resucitate Order, Health Care Surrogate Designation, and Power of Attorney.
Preparing for future disposition of our assets and property is the reason we "Estate Plan". Whether you live in a large home or a small home, have extensive assets or are just scraping by, whatever we own as individuals, (real property, personal property and intangible property) is important. What we pass on to our loved ones has value to us and to them.
No matter what you have as assets and property, make sure it is protected when you pass away. Prepare now and your family won't have the burden of going through the difficult process of grieving, while at the same time having to make decisions on your behalf, when you have not put your wishes and desires down in writing.
In a nutshell, Estate Planning in Floridais easy, just call a Florida Estate Planning Attorney to schedule an appointment today.
Recently in the Jacksonville news there was a disturbing story about Florida's senior citizens being exploited. Men posing as bank investigators were targeting Jacksonville women in their 70's and 80's. These women were being told, among other things, that illegal activity was occurring in their bank accounts, thereby paving the way for the con men to obtain crucial bank account information.
As a Jacksonville Elder Law Attorney, this is just one of the many horrific stories I hear about our Florida Elderly population being taken advantage of and exploited.
The Florida Statutes provide for a remedy when abuse, neglect or exploitation of elderly person or disabled adult occur. This abuse can take the form of financial theft and exploitation, or the intentional infliction of physical or psychological harm. The amount of money involved, the nature, the and severity of the injury will determine the degree of the crime.
Sadly family members and friends often take advantage of the elderly. In addition, Acquaintances, such as the hairdresser, caretakers, or neighbors, are also guilty of exploiting Florida's older population. If you live in Jacksonville or the surrounding area, and feel like you are being treated in an abusive manner, or feel like money or property is being taken without your consent, contact a Jacksonville Elder Law Attorney.
Florida elders know the importance of having a Living Will prepared. A Florida Living Will is a legal document, which expresses a person's wishes as to life-prolonging procedures. A Living Will typically only comes in to play when certain legally defined conditions exist. These conditions are:
- a Terminable Condition;
- an End-State Condition; and
- a Persistent Vegetative State
When asked whether her tattoos were legally sufficient, a General Medical Council spokesman stated that most doctors would ignore her DNR tattoo. He said her DNR wishes need to be put in writing and witnessed, or for a health surrogate to be designated.
Moral of story. . . before you get inked, consult with a Jacksonville Advance Health Directives Attorney about having the legal documents prepared to express your end of life health care wishes. A Florida Living Will, executed pursuant to Florida Statutes, establishes a rebuttable presumption of clear and convincing evidence of a person's wishes.
Circumstances 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.
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:
Many 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.
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.
Often 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.