May 28, 2011

Adopted Children Inherit from Whom?

When a parent has died in Florida without a will, they have died intestate. Under the Florida intestate succession statutes, an adopted person is considered to be the descendant of the adopting parent and is considered the natural family of all members of the adopting parent's family. The adopted person is not a descendant of his or her natural parents, nor is he or she "kindred" of any member of the natural parent's family or any prior adoptive parent's family.

The confusion as to whom an adopted person can inherit from stems from the several scenarios in which that person may be adopted. A child may be put up for adoption after their natural parents have terminated their parental rights. A child may be adopted by his or her natural parent's spouse (who married the natural parent after the death of the other natural parent). A child may be adopted by a close relative after the death of both natural parents.

Each scenario has different implications as to how an adopted child is treated as far as his or her inheritance rights. It is best to consult with a Probate Attorney who can assist you in understanding your legal rights when your adopted or natural parent has passed away.

May 27, 2011

Florida Probate Process!

St. johns judicial center.jpgProbate comes from the root word "to prove". When someone in Florida has passed away leaving assets in his or her name only, a probate proceeding must be initiated. The first step is "proving" to the St. Johns Probate Judge that the Will you are presenting to him or her is the valid Will of the person who has died.

The goals of the Florida Probate process is:

1. To gather and inventory all the estate assets;
2 Pay the legitimate claims of creditors and pay taxes; and
3. Distribute the estate assets and property according to the provisions of the Will.

A probate proceeding may be an abbreviated procedure or a formal, more drawn out probate administration. The circumstances will dictate what type of proceeding you will be required to file. One must have a Ponte Vedra Probate Attorney to file a probate action in court.

May 25, 2011

Are Florida Residents Suffering from Gender Identity Disorder.

Gay Flag Pole.jpgGender Identity Disorder in Florida is a real, serious and often untreated disease. A recent federal case ruling validates the existence of Gender Identity Disorder (GID) which may affect many Florida Gay, Lesbian and Trans-gender persons.

The U.S. Court of Appeals for the 1st Circuit has upheld an order requiring the Massachusetts Department of Corrections to give hormone therapy to an inmate diagnosed with gender identity disorder. The court ruled that prison officials acted with deliberate indifference to the inmate's medical needs, in violation of the Eighth The lawyer representing the inmate reported the importance of the 1st Circuit in recognizing that if left untreated, gender identity disorder could be extremely important. See Inmate with Gender Identity Disorder.

If you are a gay, lesbian, or transgender individual who would like to learn about how the law either protects or does not protect certain rights, consult with a Florida Attorney about the legal documents that you can have prepared to protect yourself.

May 16, 2011

Ashes to Ashes, Dust to Dust, Deed to Deed

For Sale Sign.jpgIf your last parent in Florida has passed away leaving their Jacksonville home, how do you proceed if you want to sell the house? A Florida deed transfers title to real property from one person(s) to another. Generally before anyone will purchase a property, they will require clear title to the real property.

Whether your surviving parent died with a Florida Will or without a Will (intestate), if you want to sell the home, title to the property will need to be transferred to your parents to the named beneficiary or heir. A Florida probate proceeding is necessary to transfer title to the real property in such a way as to establish clear title. Florida statutes require that a Jacksonville Probate Lawyer or a Florida Probate Lawyer is used to represent the Personal Representative or Estate when there is more than one heir in an estate.

May 12, 2011

Beneficiaries of Inherited IRAs May Soon Have Asset Protected IRAs

Florida House bill 469, which was recently passed by the house and senate, states that an inherited IRA is asset protected for the Florida domiciled beneficiary. This is a recent change to court decisions which did not protect the beneficiary of an IRA from creditor's claims. This new law should even apply in Bankruptcy because in Florida the Bankruptcy court uses and analyses state law to determine certain exemptions.

The bill is expected to be signed by Governor Scott soon.

May 4, 2011

Florida Legislature Fixes Charging Order Protection for LLC's

Florida's Governor is expected to sign a bill that was passed by the Florida Senate on April 29th, 2011 which will apparently retroactively make a charging order the sole and exclusive remedy by which a judgment creditor of a member or a member's assignee may satisfy a judgment from a the interest in an LLC and that foreclosure is not an available remedy in a multi member LLC.

Single member LLC do not have as strong of a protection and a creditor can apply for a foreclosure when it is shown that distributions will not satisfy the judgment within a reasonable amount of time.

Here is the house bill text on the subject which was passed on May 2nd 2011

CS/HB 253 - Limited Liability Companies
GENERAL BILL by Civil Justice Subcommittee and Stargel and McBurney (CO-SPONSORS) Passidomo; Schwartz; Steube

Limited Liability Companies: Provides that charging order against member's limited liability interest is sole & exclusive remedy available to enforce judgment creditor's unsatisfied judgment against member or member's assignee with respect to limited liability company; provides exception for enforcing judgment creditor's unsatisfied judgment against judgment debtor or assignee of judgment debtor of single-member limited liability company under certain circumstances; provides that, in case of multimember limited liability company, certain remedies are unavailable to judgment creditor attempting to satisfy judgment; prohibits court from ordering such remedies; provides construction relating to secured creditor rights, specified principles of law and equity, and continuing enforcement jurisdiction of court; provides legislative intent; provides for retroactive application.

April 30, 2011

Estate Planning and Firearms

antiquefirearm250x186-495.jpgWhile a Gun Trust can provide guidance to your family and friends on how to transfer the legal ownership of Title I and Title II firearms, some individuals do not have anyone to leave their firearms to or want them to provide other benefits. The NRA has a program where one can exchange unused firearms collections for an income for life. The process involves selling the firearms and exchanging the revenue for a lifetime annuity for you or your spouse. They accomplish this though an action. The first of these auctions has already taken place and sold over 600 firearms. The next auction is expected to have a similar amount of firearms. I have spoken to several individuals who participated in the process and they felt that many of the firearms were sold for far more than they expected. (Some were in line and some were less than expected, but overall they were happy with the results).

If you are interested in finding out more about this to donate to the NRA or create an income stream for life, contact the NRA at

April 29, 2011

Legal Documents Create Equality for LGBT Community

gay rights button.jpgSt. Augustine has a prominent and growing gay population, and like numerous other gay Floridians, they are doing their part in executing legal papers to protect themselves, their same-sex partners, and children.

The LGBT community in Florida are not afforded any inherent rights when it comes to same-sex couples. Despite the number of years you have been with your St. Augustine gay or lesbian partner, if you die without a Florida Will they get nothing. If your home is not titled properly, it may not pass to the surviving spouse. If one partner has children not the biological children of another partner, that person may not be appointed guardian upon the death of the biological parent.

UNLESS . . .

Legal documents, Florida Estate Planning Documents, Power of Attorney documents and numerous other documentation has been prepared.

There is a Florida St. Augustine Estate Planning and Family Law Attorney focusing on gay and lesbian legal issues now servicing the St. Augustine and St. Johns County area. Call to schedule a consult and fight for your right to be recognized as a partner in a same-sex relationship.

April 25, 2011

Estate Planning in Florida For Gay and Lesibian Couples

Jacksonville Beach.jpgGoing to an attorney may be a difficult step for many. Being gay and unsure as to how you may be received by an attorney, may stop more than many.

Jacksonville Beach Residents, Atlantic Beach residents, erase your fear. Law Office of David M. Goldman PLLC has Estate Planning & Family Law Attorneys who focus on areas of law as it relates to the gay and lesbian community. Our beach doors are open.

Schedule a consult at our new beach office, located at 6th Avenue, Jacksonville Beach, with one of our Jacksonville Beach Estate Planning Attorneys who focuses on LGBT legal issues, to discuss the necessary legal documents in planning for your future, as well as the future of your domestic partner, children, and family.

April 20, 2011

Reason To Make An Estate Plan #10

While estate taxes are not a compelling reason for most of us to make an estate plan this year, there are many other reasons that provoke strong emotions and the need to do proper planning. Below is reason number 10. If you know someone who needs an estate plan, please send them a link to this page.


If you havent voted for us for your favorite estate planning blog, please take a moment to read this article and vote for this blog.

April 19, 2011

Equal Benefits for Florida Gay and Lesbian Employees Getting Closer to Home

men holding gay flag.jpgSt. Augustine, Jacksonville, Orange Park gay employees get ready. Orange County, Orlando Florida, will now offer gay employees the same benefits that heterosexual employees receive. Orange County Commissioners unanimously approved new benefits for gay employees to include life, health, dental, and bereavement benefits. These equal benefit changes will take effect in January 2012.

Other cities and counties in Florida that offer equality benefits for same-sex and domestic partners are: Gainesville, Kissimmee, Miami Beach, Tampa, Tallahassee, Broward County, Miami-Dade County, Monroe County and Palm Beach County.

April 17, 2011

Floridians Remember Terri Schiavo and the Living Will

terri-schiavo.jpgAll Jacksonville residents should remember Terri Schiavo, the St. Petersburg, Florida woman who made national news in 2005. Terri Schiavo had been in a coma for years and was diagnosed by doctors as being in a persistent vegetative state. The hotly debated issue between the husband and parents was whether Terri would want to be hooked up to life prolonging procedures.

The case centered on the fact that Terri did not have any Florida Advance Directives in place, in particular, no Living Will. Therefore, the debate centered on what her wishes would be. Seven years and numerous court cases later, (the Florida Legislature, the U.S. Congress and Supreme Court also became involved), a Florida Judge ordered the removal of Terri Schiavo's feeding tube.

A Florida Living Will is a legal document which allows you to express Your Wishes as to the type of medical treatment and intervention that you do or do not want in the event that you suffer from a:

Terminal Condition;
Persistent Vegetative State; or an
End-State Condition

Floridians, don't let your family become embroiled in a quarrel as to what a loved one would want in the event that he/she does not have Advanced Directives in place.

Talk to an Estate Planning Attorney in Jacksonville who will discuss with you the importance of having a Living Will as well as a Designation of Health Care Surrogate prepared.

April 12, 2011

And Florida Justice and Liberty for All?

Gay baloons.jpgDo Gay and Lesbian individuals living in Jacksonville know that according to the United States Government Accountability Office (GAO), there are approximately 1,138 rights and benefits that the federal government provides to heterosexual couples that are NOT provided to same-sex couples (even if legally married in their state)?

Again, 1,138 benefits not afforded to Florida's LGBT community. The number is staggering, and gives one pause to reflect (after the anger dissipates) as to what one can do for themselves and their same-sex partner or unmarried partner to protect them, when the government will not.

The answer is contact a Jacksonville Estate Planning Attorney who can discuss with you the various legal documents and tools that are available to provide you with the protection needed in times of illness, incapacity, and upon your death. Documents to be considered are Wills, Trusts, Durable Power of Attorney, domestic partnership agreements, preneed guardianship, and other documents related to providing and caring for minor children.

April 7, 2011

Do You Trust the Florida Trustee?

Trust.jpgAs a Jacksonville Beach Estate Planning Attorney I have heard countless stories of trustees who have been entrusted to administer, distribute, and account for trust funds to family members and beneficiaries . . . who DON'T!

Sad but true, the death of a grantor, trustor, or settlor of a trust fund may reign in the terror and unabashed greed of many trustees.

The Florida Trust Code provides that a Trustee of an irrevocable trust is required to keep beneficiaries of the trust fund informed about the trust and its administration. <a href="" target="_blank" >Florida Revocable Trusts</a> become irrevocable upon the death of one or all of the grantors.  Florida Statutes also dictate that the trustee make available to all beneficiaries certain accountings which will among other things:

• Show all cash and property transactions and all significant transactions affecting administration during the accounting period, including compensation paid to the Trustee; and

• Reflect the allocation of receipts, disbursements, accruals, or allowances between income and principal when the allocation affects the interest of any beneficiary of the trust.

If you are a Qualified Beneficiary of a Florida Trust and believe you are not receiving the information you are entitled to from a Trustee, contact a Jacksonville Beach Trust Attorney who can discuss with you several options on how you can remedy your situation.

April 7, 2011

Jacksonville Estate Planning and Gift Taxes

With the current Gift tax exemption at 5 million dollars + 13,000 per person per year, many people are not concerned about making gifts or the taxes. It is important to remember that unless a gift tax return is filed with annual gifts to an individual exceed $13,000 there could be penalties and interest for the unreported gifts. Talk to your CPA about filing a gift tax return if you are giving an individual more than the exempt $13,000 per year.

In addition, gifts keep the current basis so to the extent that you give an appreciated asset, the recipient will have to pay the capital gains based on your cost. If they inherit the asset, there the beneficiary receives the asset as the cost basis as of your date of death. This can have significant advantages to highly appreciated assets.

Lets say you have Apple stock you purchased at $14 a share 12 years ago. It has split 3 times since then so your cost is less than $5 a share. With a value today of $350 / share and a value of $500 when you die.

Lets say you gift 1000 shares of stock today with the proper gift tax returns so that no tax is due. The cost basis would be around $4700 and it is sold after you die at a price of $500 per share. The recipient would have to pay tax on 495,300 of gains.

If you leave the asset to the beneficiary in a will or trust and it was sold at the same $500 per share, they would pay no tax (based on receiving a stepped up basis on the stock).

If the tax rate is 25% at that time, this would be a savings of $124,000.

Whether to gift assets or not is a complicated issue that should be discussed with your Jacksonville Estate Planning Lawyer and your CPA. Only by looking at your specific goals, objectives, and risks associated with each option can one make an educated decision as to what makes send for them. There are ways of providing those funds while protecting them at the same time that you may want to discuss.