July 24, 2010

Know Where to Store Estate Planning Documents

Since Florida Estate Planning Documents distribute the wealth you have accumulated over your life and provide your wishes in the event you become incapacitated, estate planning documents are some of the most important documents you will ever sign. Knowing where to keep these documents is imperative to ensuring the original copies are never damaged, lost, or forgotten over the years.

A couple of recommendations on where to keep your estate planning documents are a safety deposit box or a home safe. A safety deposit box is probably the most secure place to keep any documents and you can rest assured that the documents are protected from theft, fire, damage, tampering or loss. Banks provide top of the line security for those who seek the ultimate safe location for their estate planning documents.

In addition, storing your estate planning documents in a home safe that is waterproof and fireproof is a good alternative to a safety deposit box. However, storing the documents at home may not provide the same level of security as a bank safety deposit box because safes are always prone to thievery in the event your home is broken into.

July 23, 2010

Small Businesses Are Set to Collide With Estate Taxes in 2011

Recently, I have written several blogs concerning the possible federal estate tax increase from zero to 55% in 2011. If Congress's left and right representatives cannot come to an agreement, the exemption will end at $1 million. This means that for every individual who passes away, up to $1 million in assets may pass to their heirs free from estate taxes. While having one million dollars is a significant amount of money, $1 million in assets is something considerably different. Numerous small and family owned businesses that fall into the class above the $1 million limit would be hit hard by the estate tax.

Over the past few years many businesses have been split up and sold to pay the estate taxes. Much of this could have been avoided with proper estate planning. If nothing changes many businesses that are family-owned will most likely have to sell off the business because of a 55% federal estate tax rate. Many states have additional estate taxes that will be due which could raise the total tax to around 70%. Luckily Florida residents will not be subject to additional state estate taxes. For instance, suppose a family owned business has a net worth of $10 million. When the current owner dies the $10 million net worth of the company will pass to the estate and be taxed at 55% + any state estate taxes that may be due. This means that the heirs will have to pay the millions of dollars out of their own pocket or sell off the company. The same rationale is true for farm and ranch owners as well. A one thousand acre farm that has been in a family for many years could be worth millions of dollars. When the current owner dies, the farm will be subject to the same 55% estate tax requiring the heirs to sell off the property to pay the taxes.

With serious tax consequences on the horizon, estate planning has never been more important. The showdown between Republicans and Democrats on Capitol Hill on estate taxation does not show strong signs of reconciliation. If you are a small business owner or farm owner who would like more information on protecting your company contact a Florida Estate Planning Lawyer today. An attorney can help you reach your goal of keeping the business in the family and reducing the taxes through estate planning techniques.

July 22, 2010

Florida Asset Protection : LLC issues: Olmstead v. Federal Trade Commission

The Supreme Court of Florida recently had a chance to consider the single member LLC and the charging order protections under Florida Law. As expected by many, the single member LLC is not afforded the protection that a multi member LLC can be under certain circumstances. If you are wanting to structure your business entities and assets to protect against future and unknown liabilities, you should discuss these with a Florida Asset Protection Attorney.
Here is what happened in this recent case. This is not our typical blog posting, but its very fact specific so we have decided to post a short summary of the case for those who want to look at the facts, issues, and holding of the court. If you want a copy of the full case, let me know and I can send it to you.

Continue reading "Florida Asset Protection : LLC issues: Olmstead v. Federal Trade Commission" »

July 22, 2010

Avoid Being Exploited Financially in Florida

As we age, it is very common to lose some of the wits you had when you were younger. Due to the growing number of senior citizens that are falling victim to financial abuse, careful estate planning is a necessity while you are still fully competent. Financial abuse of the elderly usually occurs in a time when the person's mental capacity is diminishing. Also, it is common that the senior can't say no to someone who repeatedly requests to be included in the estate.

In a recent article by Eileen Ambrose, she provides an in depth analysis of this blight in our country. Arguably the most shocking statistic related to financial abuse of the elderly is, in approximately one-third of all cases, a family member of the victim is the person who takes advantage of the senior. This is the reason that it is essential for aging adults to create a complete estate plan while they remain fully competent. Protecting your assets is a complicated matter that should be handled by a Florida Estate Planning Lawyer . In addition to seeing an attorney, the following list is advice Ambrose shares in her article:

1) Choose a trustworthy agent to represent you who manages his or her own finances properly and is not a spendthrift.
2) Maintain control of assets refrain from including a child's name in your a bank account.
3) Report pressure exerted by anyone who is pressuring you to be given Power of Attorney to a loved one or appropriate authorities.
4) Compensate agents for the work they do to maintain your finances because it is a time consuming job.

July 21, 2010

Faith Based Estate Planning

Faith and religion often underlie many decisions an individual makes in regards to their Florida Estate Plan. This realization prompted David A. Straus to write a book entitled Faith-Based Estate Planning: Our Values and Valuables. Straus' book attempts lead the reader through the estate planning process, at all times keeping in mind their personal beliefs. The book focuses on how Estate Planning is not always about tax and probate avoidance as it is used to fulfill the planner's final wishes.

Taking information from trade journals, magazines, book, websites, surveys and newspapers, Straus' main goal is to provide a wealth of knowledge about faith to support those final wishes as desired. Health care, burial and resuscitation beliefs all fundamental beliefs based on faith and religion. For example, most Jewish and Eastern Orthodox practitioners believe it is a desecration of the body to be cremated or embalmed after death. These beliefs should be addressed in the estate plan so that everything goes according to your wishes.

Each religion addressed in Straus' book is detailed with a geographical concentration, history, the number of practitioners, and integration of estate planning subject ideas. Furthermore, the book's emphasis is on death rituals, philosophy of life, position in the afterlife and their effect on each religion's perspective on investments and estate planning.

If you're interested in how your religion and faith has an effect on the estate planning decisions you make this book is a useful read. Whatever religious beliefs are guiding your decisions, addressing each choice with the aid of a Florida Estate Planning Lawyer will ensure those end-of-life choices become reality.

FCC Disclosure: David Goldman received a free copy of this book to evaluate and discuss with clients and on his blog.

July 19, 2010

Contesting a Will in Florida

will.jpgFlorida Will Contests:

Occasionally a family member or friend passes away with a Florida Will that gives less than expected to an heir of the decedent. This situation usually gives rise to an inquiry about a will contest. A will contest happens when the disgruntled heir challenges the will by suing the estate under some legal theory claiming the will is invalid. Will contests commonly happen when the testator attempts to leave a small amount to an estranged child or a large amount to someone who would not be expected to inherit under a Florida Will.

To guard against the potential of challenges to the will, you may see a No-Contest clause added by the testator. A no-contest clause is a provision of a will that penalizes the beneficiary who challenges the will, or the contestant. While these clauses may be valid in other states, Florida law specifically makes them unenforceable. According to the Florida Probate Code, "a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable." Furthermore, the Florida Trust Code, as amended in 2007, addresses no-contest provisions by making them unenforceable in any trust instrument. This does not mean that they should not be considered as they may be enforceable if one changes which laws the documents will be interpreted under.

The possibility that an estate could be tied up in Probate court for a long period of time is almost certain when there is a contestant of the will. Your beneficiaries will be prevented from receiving their money and assets for prolonged periods while at the same time the estate funds are being depleted by attorney's fees. If you would like information on ways in which Florida residents can protect their assets from these will contests contact a Florida Estate Planning Lawyer today for guidance.

July 18, 2010

FBI finds another case of Foreclosure Fraud

Foreclosure_Fraud_Stop_RGB.gifAn Indianapolis foreclosure attorney was recently sentenced in federal court to three years probation and almost of 300 hours of community servce for defrauding Citifinancial of thousands of dollars through a foreclosure fraud scheme. While working for Citibank, the attorney was required to submit a bid at sheriff's sale on foreclosed homes, sell the home through legitimate means and submit the proceeds of the sale to Citifinancial. Instead of following these proscribed procedures the attorney submitted inflated bids and had arrangements for family and friends to purchase the homes. The purchase price for the home made by his family and friends were for a few thousand dollars more than the Citifinancial minimum bid and the attorney would not send the profits to Citifinancial.

July 16, 2010

Update Intellectual Property in Estate Planning

In today's society, intellectual property rights are rapidly increasing for those individuals that are business savvy and artistically or scientifically talented. Intellectual property rights (aka intangible assets) include patents, copyrights, trademarks, and publicity rights. In most instances, intangible assets are obtained as a direct result of someone's job, profession, or trade. With the vast expansion of the Internet, many new intangible assets have been acquired in the last 10 - 15 years. Therefore, the issues involved with these assets are continually evolving and the governing law is struggling to keep up.

The rules governing these intangible assets and the way they are treated when passed through an estate is anything but clear. There are a few key issues that should be addressed when intellectual property is incorporated into an estate. First, valuing the asset always poses a challenge, especially when the formula involves reducing the future earnings to present value. How to address current and future income from the asset is another key issue. Next, some intangible assets have a specific life for which the owner has exclusive rights. According to federal law, copyrights last for the life of the author plus 70 years. On the other hand, patent rights are divided into two categories with design patents receiving 14 years and utility patents receiving 20 years.

Furthermore, intellectual property creates a unique concern with the return of the Federal Estate Tax in 2011 and the looming effect on everyone with a slightly more than modest estate. For example, the executor of a best-selling author's estate may be forced to sell the future publication rights of a book in order to cover estate taxes. The author may be uncomfortable with the thought that his unfinished work could be published once he is gone. Enhancing your estate with a life insurance trust can guard against these estate tax concerns.

Many complicated matters of estate planning revolve around intangible assets. To address the concerns herein, contact a Florida Estate Planning Lawyer today to make sure the distribution of your assets is done according to your final wishes and determine if a Digital Asset Protection Trust is something you should be considering.

July 15, 2010

Tips for Selecting a Guardian for Your Minor Child

baby.jpgAfter having a child, one of the first decisions parents should make is deciding who the guardian of the child will be in the event both parents pass away. While many parents may talk about who they wish to take care of their child in the event of their deaths, it is important to include this decision in your estate plan to ensure the individual left with this responsibility is in fact the person the parents chose. Here are a few helpful hints when the time comes to make a guardian decision.

1) Will this person be a responsible guardian? Does the individual have the parenting skills necessary to care for your child and look after them properly?
2) Where does the potential guardian live? If you do not want your child to be uprooted from his home, you should pick someone who lives near you.
3) Is the potential guardian too old or too young to care for your child? The person selected should be physically able to care for the child. They should also be in touch with the latest issues children deal with at school and at home.
4) Consider the religious, political, and moral beliefs of the prospective guardian. In the event both parents pass away, more than likely you will want your child to grow up with similar values to your own.
5) Is the potential guardian comfortable and willing to take on the guardianship? It is important to ask the potential guardian and to receive their acceptance of the position. A child is a huge responsibility that some people may not be ready for.

If you are unsure who to select as your child's guardian or have no idea how to decide, your Jacksonville Estate Planning Lawyer may be able to help guide you in choosing the right guardian for your child.

July 13, 2010

George Steinbrenner III Dies - Another billionaire in 2010

yanks.jpgToday George Steinbrenner, New York Yankees owner, died of a heart attack in Tampa Florida. The Yankees are valued at more than 1.6 billion dollars and have been run by his sons Hal and Hank for almost 2 years. Steinbrenner's estate at the time of his death is estimated to be worth 1.15 billion.

We will learn more about his fortune and how he planned his estate in the next few weeks but The timing of Steinbrenner's death could exempt heirs from estate tax like the other three billionaires who have died in 2010.


Steinbrenner moved to Floirda where there is no state estate tax as compared to NY which could have taxed his estate more than 16% or more than 160 million dollars.

July 13, 2010

Have your Will reviewed under Florida Law and with you change in circumstances

will.jpgMoving to a new state can often times be a stressful and exhausting process that takes careful planning. It is important to remember to visit a Florida Estate Planning Lawyer during the planning process to review your Florida Will. A common misconception of many people moving to Florida is that their out-of-state will is no longer valid once they arrive. A will signed by a non-resident of Florida is valid in Florida so long as the will complies with Florida statutory formalities and was valid in the state where the will was signed.

Contrary to other states, a Florida Will must be in writing in order to be considered valid. This means that verbal wills, or "deathbed" wishes, are not legally binding. Due to the fact that handwritten, or holographic wills, have the potential for forgery they are not valid in Florida either. NOTE: a holographic will is valid in FL if it complies with the statute of wills.

In Florida, an out-of-state will may be valid but unless it is distinctly drafted the provisions could be ineffective. For example, if you had named a friend as guardian of your minor children from your prior hometown before moving to Florida, this person probably will not be qualified under Florida statute to serve as guardian. Florida law requires that only a Florida resident, or close blood relative that resides out of state may serve as guardian.

Another consideration that should be observed when someone moves to Florida with an out-of-state Will is having to defend the will with out of state witnesses. Plane tickets and overnight stays could become costly for your estate. While these are just a few examples of how an out-of-state will can be valid and effective, it is our belief that a new Florida resident should plan to consult with a Jacksonville Estate Planning Lawyer or Florida Estate Planning Lawyer to ensure their documents conform to Florida law and will accomplish your goals.

July 12, 2010

Know Your Estate Plan and the Tax Consequences of it

With the new estate tax laws that will soon be put in place, more Americans hard by the estate tax. However, there is more to estate planning than simple tax avoidance. Estate planning and Florida Estate Planning is about the legacy you want to leave behind after you are gone. Everyone will leave behind some sort of legacy therefore planning for it will enable others remember you the way you want them to.

There are four major goals that should be considered when legacy planning and working with a Florida Estate Planning Lawyer can help you understand and reach these goals more efficiently.

1. Financial security for you and your family is a priority. When you establish a legacy it usually entails providing money or other assets for heirs. It is important to know that your own standard of living is secure before you decide what to give to others. Once your lifestyle is secure, establishing goals for the ultimate disposition of your wealth can improve the financial security of others.

2. Continuing the management and care taking of the estate. In many estates, regardless of the size, assets can dwindle rapidly after the first owners pass them on to the next generation of beneficiaries. Often the successors of an estate do not understand how the assets were to be managed or did not share the same values of the founder. If you believe the people you want to benefit from the trust are not likely to manage their wealth properly over the long term, a trust can help manage these expectations and provide additional guidance for your descendants.

3. Protecting the estate is another key element of the planning process. Most people do not want their assets to be handed over to potential creditors or subjected to lawsuits. Small business owners and professionals as well as disgruntled family members, irresponsible family members, and ex-family members in divorces all potentially could claim they are a creditor of the estate or your beneficiaries assets. It is important to structure the assets to allow for protection from as many types of creditors as possible.

4. The estate planning should address potential estate taxes. Once you have established who should benefit from your estate, you may want to begin to transfer assets to them. Some methods can create larger tax burdens and often by using a properly structured estate plan, estate taxes can be reduced.

Reducing the tax burden that will be put on the estate and its beneficiaries is only one goals of a legacy plan. Now is the time to start determining your goals and putting your plan together.

If you have a Florida Estate Plan that you would like to review or want to create a new Florida Estate Plan contact a Jacksonville Estate Planning Lawyer or Florida Estate Planning Lawyer to discuss your goals and objectives.

July 8, 2010

Has Your Florida Trustee Provided an Accounting of the Florida Trust?

With Florida Trust Litigation on the rise, it is important that trustees preform their duties properly.

One of the primary duties of a Florida Trust trustee is to keep accurate records of all acts performed by him in regards to the trust estate. In Florida, trustees have this duty, known as an accounting, which requires providing these records to the trust beneficiaries. The trustee's accounting should be a reasonably understandable report from the date of the last accounting, or from the date on which the trustee became accountable, that adequately discloses the information required.

Fla. Stat. § 736.08135(2) states the requirements of an accounting:

a) The accounting must begin with a statement identifying the trust, the trustee furnishing the accounting, and the time period covered by the accounting.

b) The accounting must show all cash and property transactions and all significant transactions affecting administration during the accounting period, including compensation paid to the trustee and the trustee's agents. Gains and losses realized during the accounting period and all receipts and disbursements must be shown.

c) If feasible, the accounting must identify and value trust assets on hand at the close of the accounting period. For each asset or class of assets reasonably capable of valuation, the accounting shall contain two values, the asset acquisition value and the estimated current value.

Not everyone is entitled to an accounting and while if the grantor is the trustee, the accounting can be waived. There are many other provisions of the Florida Statutes that deal with accountings. If you are a trustee of a Florida trust or a qualified beneficiary of a Florida Trust and want to find out about your rights, you should contact a Jacksonville Estate Planning Lawyer or Florida Estate Planning Lawyer to discuss you options.

July 7, 2010

Florida Estate Battle Includes Millionaire Dogs and Pet Trust

chihuahua.jpgThe stage has been set for a estate contest concerning the estate of Gail Posner. Gail is the daughter and heiress of the late millionaire business executive Victor Posner. In her recent will admitted to probate, Gail left $3 million in a Florida Pet Trust fund for the care of her three Chihuahuas so that they could maintain the lifestyle in which they were brought up. Gail's only surviving child, Bret Carr, is challenging the Florida Will declaring his mother was coerced into changing the Florida Will by her caretaker and employees.

Despite the fact that Carr was awarded $1 million under the Florida Will, Gail's maids, personal trainer, and bodyguard received a total of $27 million. Carr's allegations state that the Gail made changes to her Florida Estate Plan while she had with mental problems and was addicted to painkillers. The son alleges this led to the brainwashing of his mother by those who sought to cut him out of his grandfather's fortune.

While Carr's main concern is not the Florida Pet Trust, it could certainly be affected by the decision that is reached by the judge. In the event that undue influence is found, the entire Florida Will could be invalid.

If you are concerned about a Florida Pet Trust contact a Jacksonville Pet Trust lawyer to discuss the types of actions that can be taken to protect your animals and how to document it properly to help avoid claims of undue influence and other attacks.

July 6, 2010

Naming Alternate Beneficiaries in Florida Estate Planning Documents

will.jpgAn alternate beneficiary is a person or entity that you name in your Florida Will or Florida Revocable Trust to receive a gift or devise in the event that the direct beneficiary does not outlive you or is not fit to receive the gift because of a legal reason, disclaimer, or other provision in the document that would disqualify them. Many times when an elderly individual makes a Florida Will they assume their demise will be sooner than all of their beneficiaries. It is important to name at least one other person to take in the event a direct beneficiary dies before you. The following is an example what a gift might look like: "I leave to my son Aaron the house but in the event he predeceases me, the house should pass my brother Bob."
Florida does provide some default language in most cases for close relatives. In Florida close relatives who predecease the person who leaves them something will have the item left to their children in many cases. Since this is not always what is desired or always the case, you should have any documents that are depending on this to be reviewed by an Florida Estate Planning Lawyer who is familiar with the provisions.

Although it is rare to think someone is not fit to take a gift, a child who stands to inherit a large sum of money may not be prepared to receive such a gift. Under this scenario, it would be wise to then name one or more alternate beneficiaries and place a condition on the child's gift such as: "I give to my son Aaron $1,000 if he has reached the age of 25. In the event he is not yet 15, I leave the $1,000 to my cousin Barbara in trust for my son until he reaches the age of 25."

Alternate plans can be very complex but should be discussed with a Florida Estate Planning Lawyer. They are not required but are wise in estate planning because in the event the beneficiary predeceases you the gift will pass under a statutory scheme. Naming alternative beneficiaries is essential if you truly desire to have your gifts carried out faithfully.