December 9, 2010

Wrongful Death Claim Settlements May be at Risk from Creditor Claims

money money12902491322ghusW.jpgWhen a Florida Wrongful Death action is settled, the money either goes to the estate of the decedent (the person who has died) or to the decedent's survivors. If the settlement is small, it can be handled with a summary administration. When this happens, the settlement money becomes an asset of the estate and can be subject to the claims of creditors. With small wrongful death settlements, the potential risk from creditors needs to be evaluated to see if the savings in probate fees makes it worth while to consider a summary administration. It is important for a Jacksonville beneficiary of the estate to sit down with a Jacksonville Probate Attorney who can guide you through the probate administration process.

Probate is the court supervised proceeding for distributing the estate assets of the person who died. The probate process also identifies creditors who have valid claims against the estate. If a wrongful death settlement is listed as an estate asset, then it may be susceptible to the valid claims of creditors.

If you are a Jacksonville survivor under the Florida Wrongful Death Statute, protect your settlement award by knowing what estate assets are exempt and protected from the claims of creditors. Talk with an attorney experienced in Florida Probate cases.

December 9, 2010

5M Estate Tax Exemption? But what about Stepped Up Basis?

It has been widely reported that the extension of the Bush Tax Cuts is being recommended by Obama in addition to agreeing to a new estate tax of 35% on assets in excess of 5 Million dollars but no one is reporting on what will happen with the loss of stepped up basis. For many Americans the loss of stepped up basis could cost more than if there was a lower estate tax exemption.

The bill is reported to be submitted to congress today so we should know soon what we are dealing with. Either way it will cause many American families to have to revisit their estate planning and life insurance needs over the next few months.

December 7, 2010

Removal of Florida Guardian may be in the Best Interest of the Ward.

A Florida guardian may be appointed to exercise limited or total powers over a ward (minor, elderly or incapacitated person). There are times when a Jacksonville guardian appointed by the court has failed to act in the best interest of the ward. If a Jacksonville Guardian fails to ensure that the ward is being properly cared for or is not managing the ward's property and assets in a responsible manner, a family member, friend or interested person may have to take action.

Consulting with a Jacksonville Guardianship Attorney may be the first step needed to rectify a frustrating situation, when you feel powerless to protect a ward. The Florida statutes allow for a proceeding to remove a guardian upon a showing that one of the proscribed reasons has been met. Reasons for removal, among several, may be when a guardian has abused his or her powers, has wasted or mismanaged the ward's property or when a conflict has developed between the guardian and the ward.

To obtain information about the procedure for removal of a guardian or how to terminate a guardianship, it is best to discuss your situation with a Jacksonville Estate Planning Law Firm who has experience in guardianship matters.

December 7, 2010

Using a Business Entity as the General Partner of a Limited Partnership

One needs to be careful that they do not expose their assets in a Florida Limited Partnership to forced distributions because they choose a general partner that can be take over. In the past and in many other states, it is common to protect the GP from liability by making it a corporation or LLC. The problem with this is that if a creditor is able to take over the entity because of a judgment, then the creditor acting as the General Partner can force distributions that they can then attach by means of a charging order.

You should review your limited partnership agreements with a Florida Asset Protection Lawyer to review your LP structure for potential problems in light of recent Florida cases.

Florida does have a LLLP which can remove the liability of the general partner without the use of a more complicated business structure.

December 7, 2010

Oklahoma Law Lets Executors manage Online Social Media Accounts

digital_assets.jpgA new law in Oklahoma appears to let estate executors have the power to access, administer, or terminate online social media accounts of the deceased. This law is in direct contradiction to the licensing arrangements of most online accounts and it has yet to be seen how and if the law will provide rights to estates.

The law should remind the people as they go about their estate planning that, in addition to their personal and real property, they should make plans for the vast amount of intellectual property they will leave behind.

As digital photo accounts, iTunes accounts, cell phone applications, and email accounts replace their traditional counterparts with many people, it is becoming more important than ever to address these assets in every estate plan.

If you would like to know more about a Digital Asset Protection Trust contact a Florida Estate Planning Lawyer who is familiar with Digital Asset Protection to discuss your circumstances and options.

December 6, 2010

Florida Probate Code Requires Production of Wills


Gavel images.jpgWills need to be deposited with the court within 10 days of death.  Florida Statutes, Section 732.901.  A Jacksonville custodian of a will must deposit the will with the appropriate clerk of court within 10 days after receiving information that the testator (person whose will it was) is dead. If the will has not been timely deposited, any interested person may upon petition and notice compel the production of the will, and receive attorney fees, costs and damages against the delinquent custodian.


A Florida judge recently entered an order requiring a custodian of a will to produce the will. The judge then entered an award of $2500.00 in attorney's fees against the custodian who had failed to produce the will.

The 4th district court of Florida reversed the order, stating it was error by the circuit court to enter an order requiring production of a will and assessing attorney fees against the custodian of the will, without a hearing or proof that the petition to produce the will had actually been received by the custodian of the will. As the order was entered without due process the district court set it aside and remanded the case back to the circuit court.

When someone has died it is important to consult with a Jacksonville Estate Planning Attorney to discuss the probate laws and rules that govern. Knowing your legal rights and responsibilities is beneficial as you begin the probate administration process.

November 29, 2010

Estate Planning and Beneficiary Designations

When creating Florida Estate Planning Lawyer it is important to remember that once you create the documents your job is not done.

If you create a Florida Revocable Trust it is important to fund the trust or it will not provide one of the typical benefits of avoiding a Florida Probate. There are several ways of funding the trust and you should discuss these with your Florida Estate Planning Lawyer to see what makes the most sense for you and your family.

In addition, another common mistake is forgetting to make proper beneficiary designations on life insurance or retirement accounts. This is also something that needs to be carefully considered and implemented with the advise of your CPA and Florida Estate Planning Lawyer.

Forgetting to make proper beneficiary designations on assets can subject your estate and beneficiaries to unnecessary taxes, expenses, and delays in the transfer of the assets. If you have a 401(k) you may consider moving the asset to an IRA for additional flexibility. This is something you should discuss with your financial planner as IRA distributions to a non-spouse can usually be spread over the lifetime of the oldest beneficiary instead of having to be taken within a year of your death.

If you have recently moved to Jacksonville or Florida and would like a complimentary review of your estate plan and your circumstances contact a Jacksonville Estate Planning Lawyer to discuss your options.

November 26, 2010

Lesbian and Gay Estate Planning for Couples

gay dollerimages.jpgAs a Florida lesbian and gay person in a committed relationship, you know that living in Jacksonville does not afford you the same legal rights as if you were in a relationship with a legally recognized spouse. Not only will you be ineligible to receive survivor social security benefits, or other government benefits when your same-sex partner dies, but, If you don't have written documents in place, many partners will lose property, assets, access to their children, and the right to make medical and financial decisions.

Creating Estate Planning Documents in Jacksonville is the process of determining what you want to happen to your estate, once you are gone, which includes all the rights, titles and interests that you have in the property you own.

It is important for you to safeguard what you do have and consult with a Jacksonville Estate Planning Attorney who is sensitive to the issues prevalent in same-sex couples, to discuss the Estate Planning distribution methods which will allow you to provide for your surviving partner.

November 24, 2010

Florida Advance Directives for Gay and Lesbians

file0001130641378.jpgIf you are gay or lesbian in Ponte Vedra or the Jacksonville area, having properly prepared Florida Advance Directives is essential. Whether you are young, healthy, and believe you will live forever, the fact remains, that if you wait until illness, injury, or disability to strike, you will not have a voice in your own future health care.

Florida Advance Directives are written documents created by statutory authority that express your wishes and desires concerning many aspects of your future health care. A Florida Living Will expresses your wishes for the type of life-prolonging procedures as well as pain alleviating medications you want in the event you suffer certain serious medical conditions. A Designation of Health Care Surrogate and HIPAA Release will allow you to choose the person you want to make your health care decisions in the event of your future disability, as well as to give that person authority to obtain and review your medical records.

Don't wait until you are unable to make your own decisions. Contact a Jacksonville, Florida Gay and Lesbian Rights Attorney to discuss how these legal documents are vital to your maintaining control of your future healthcare.

November 23, 2010

Guardianship for Developmentally Disabled

Jacksonville Guardianship Lawyer.jpgMany people residing in the St. Augustine area, suffer from developmental disabilities. Unfortunately, as these individuals get older, the disease progresses to the point where the person is often unable to take care of and manage their own financial and personal affairs.

A Florida procedure can appoint a Florida guardian advocate for a person with developmental disabilities, without an adjudication of incapacity. One way this appointment can be accomplished is if the disabled person has voluntarily petitioned for the appointment of a guardian advocate. If the disabled person is able to care for some, but not all of his personal care and finances, a guardian advocate will be able to act for the disabled person in certain specified matters.

If you have a relative or friend that suffers from a developmental disability and you believe that this person is unable to care for themselves, contact a St. Augustine Guardianship Attorney to learn more about the process of being appointed a guardian advocate.

November 22, 2010

Homestead Exemption Crackdown

Most Florida Estate Planning Lawyer deal with planning for the unexpected and protecting your assets for those after we are gone. Part of this protection and planning often involves the use of the Florida Homestead. The Homestead Exemption is not exclusive to Florida. A recent case, a New York Representative is accused of claiming a Homestead exemption for a home located in Washington, D.C.

The homestead exemption varies from location to location, but it generally applies to one's primary home. Recently government officials have noted that even though this exemption was established in the late 1800s, still only few today take advantage of it.

Tax officials in several locations around the country, including Florida, have begun to crackdown on the number fraudulent claims that are being reported every year. The New York Times reported that Jennifer Frastai, City manager of Hallandale Florida, has begun an intensive effort to stop fraudulent homestead claims.

In Florida there are two homesteads. This article is dealing with the property tax credit with is often confused from the homestead that protects your residence from attacks by most creditors. While many states offer homestead credits for taxes, few offer unlimited protection from creditors. If you would like someone to review your estate planning documents to see if you qualify for either type of Florida Homestead Exemption, contact your local Florida Estate Planning Lawyer today.

November 22, 2010

Florida Homestead Property Law for Condominiums

twohomes.jpgFlorida homestead is a constitutional protection which makes the homestead of a decedent exempt from the claims of creditors. Florida Homestead can apply to condominiums, however, a Florida District Court recently affirmed a lower court decision which held that decedent's contractual interest in a condominium (which was owned by decedent at the time of her death) was not homestead property, and therefore, not protected from claims of creditors.

The decedent had purchased a life estate in a condominium from the condominium association and then entered into a repurchase agreement. The repurchase agreement provided that upon the death of decedent the life estate would automatically terminate and fee simple title would be vested in the condominium association, which would then attempt to sell the condominium for the benefit of decedent's heirs. Therefore, the condominium was not afforded homestead protection.

Considering the descendant did not have an interest at the time of death, I am not sure what this case was about. If her interest expired at death, there was nothing there to protect.

If you or a loved one owns a condominium in Ponte Vedra Florida make sure you know what type of agreements have been entered into between condominium owner and condominium association and consult with a Florida Attorney to learn more about the homestead law.


November 15, 2010

The Future of Multi-Member LLC's in Florida

The recent court decision which removed the charging order protection for single member LLC's has raised concern over whether a multi member LLC has charging order protection.

In addition, a member in Florida is defined as one who has an an economic interest in a Florida LLC as well as one who has been admitted as a member. In the case of bankruptcy, one may no longer be considered a "member" as defined in Florida law.

Many Florida lawyers are advising those who have single or multi member LLC's in Florida to switch them to LLC's in other states or change them to Florida Limited Liability Partnerships. Please note that just changing to a FLLP or FLLLP is not enough, one must have a special operating agreement which sets fourth obligations that will make it an executory contract in the case of bankruptcy.

If you have a Florida LLC, you should contact a Florida Business Lawyer to talk about how to change your organization or what options you have to protect your assets.

November 10, 2010

Some Contemplate Dying in 2010 to Avoid Estate Taxes

Forbes has an article about contemplation of death in 2010 to avoid estate taxes. As 2010 comes to an end, there may not be time for many to make the decision. The article quotes Rep. Cynthia Lummis in saying that some of her Wyoming constituents are planning to discontinue dialysis and other life-extending treatments so they can die before December 31st.

In many cases, the stories of this seem to be overblown as many can have the same results with good estate planning. To discuss your options contact a Jacksonville Estate Planning Lawyer.

November 9, 2010

First congressional face-off of new year could be over tax cuts

The Bush tax cuts are set to expire on 12/31/2010. Many feel the the first face-off between Republicans and Democrats could be over the estate tax and income tax issues. If nothing is done we will see significantly higher estate taxes and income taxes in 2011.

To plan for these higher estate taxes and see hot to reduce the effects of a Florida Probate contact a Jacksonville Estate Planning Lawyer to discuss how planning can give your family advantages over the typical Florida Probate process.