Florida Estate Planning Lawyer Blog

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.

The 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.

An 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.

A garnishment is a way of collecting money from a defendant by ordering a third party (usually an employer) to pay money, otherwise owed to the defendant, directly to the plaintiff. Florida is one of the few states in the country to allow an exemption from wage garnishment. In Florida, the wages of the “head of family,” meaning the person who provides greater than 50% support for a child or other dependent, may be exempt from garnishment altogether. However, the wages are subject to a waiver and a cap on the earnings that can be exempted.

Florida statutory law provides the exemption from wage garnishment to the head of family’s disposable earnings if they are less than or equal to $750 a week. Disposable earnings are the earnings of any head of family remaining after subtracting the amount the government withholds from those earnings. In addition, individuals that make over $750 a week also qualify to receive the exemption unless they have agreed to a waiver in writing. The agreement to waive the protection provided must:
1. Be written in the same language as the contract or agreement to which the waiver relates;
2. Be contained in a separate document attached to the contract or agreement; and
3. Be in substantially the following form in at least 14-point type.

It is important to know your rights when creditors are attempting to garnish your hard earned wages. Florida provides this protection so that people who have fallen on hard times may get back on their feet again before having to deal with creditors. If your wages have been garnished and you believe you fall under the exemption contact a Jacksonville Lawyer today.

Digital Asset Protection Trust can help preserve your pictures and other website information after you die or if you become incapacitated.

Most picture sharing websites promote the freedom to assign ones property rights to another. While all of these websites prohibit reselling the account to another, Flickr was the only picture sharing website that prohibited the assignment of rights in their terms and conditions of use. This may be due to their affiliation with Yahoo! which has one standard user agreement for many of the websites they own.

Part of the appeal of picture sharing sites is that they allow many family members and friends to view your pictures. Although it may not be illegal to assign your rights to the pictures, they may be deleted automatically if your account is deactivated due to inactivity. Therefore, a Digital Asset Trust should be created to protect your Digital Assets from being destroyed when you pass away.

According to a recent statistic in the USA Today, a poll found that only 4% of married couples in the United States have a premarital or prenuptial agreement. Florida was reported as having one of the country's worst divorce rates in 2009. Due to this alarming rate, Florida allows couples to enter into valid prenuptial agreements so long as there is full disclosure and the agreement is in writing and signed by both parties.

There are many important things that a prenup can protect. First, prenups can protect the rights and obligations of both spouses with respect to property. So if one spouse owned a car before the marriage, a provision could state that that spouse would be responsible for all payments on that car. The agreement can also protect a spouse's individual right to sell or lease real property. Other common provisions include what career path a spouse may choose, where the couple will live, and cash penalties if one spouse cheats.

Since prenups cannot violate public policy or criminal law, there are a few things they cannot accomplish. Child support is always governed by state guidelines enacted by the legislature. These guidelines cannot be overridden by a prenuptial agreement between spouses. Given that prenup terms usually include outlining the disposition of property when the marriage ends as a result of death or divorce, it is vital to have an experienced Florida Family Law Lawyer or Florida Estate Planning Lawyer with you to represent your best interests.

During the late 1970’s through mid 1980’s, Gary Coleman became a promising young star on the television sitcom Different Strokes. His character’s catchphrase "What you talkin' 'bout, Willis?” made numerous people laugh during the shows 8 year run. Sadly after his passing and subsequent cremation, his relatives will not be able to hold a funeral until a judge in Utah decided who will permanently control his estate.

There are records that indicate Coleman created a will in 1999 and another in 2005. However, a handwritten amendment was added to the 2005 will later on, in 2007. The significant difference between the 2005 will and the 2007 amendment is that the 2005 will leaves his entire estate to ex-girlfriend and former business associate Anna Grey while the 2007 amendment leaves the entire estate to his ex-wife Shannon Price.

Price and Grey are both claiming in court they should be entitled to the entire estate but have significant legal obstacles to overcome. Price’s strongest argument is that Utah is one of the states that recognize holographic (handwritten) wills, although they must be entirely written in the handwriting of the person, signed and dated. However, Grey’s best argument is that the 2007 amendment was revoked because it was made while Price and Coleman were married. Since they divorced there is a presumption that the amendment was automatically revoked and struck from the will. Price is trying to rebut this presumption by claiming she and Coleman were living in a common law marriage at the time of his death.

In Florida, holographic wills and amendments are disfavored and held unenforceable because of the potential for coercion or duress. Most of these issues could have been avoided with a properly prepared estate plan. For information on avoiding estate planning consequences contact an experienced Florida Estate Planning Lawyer for any questions or concerns you may have with your Florida Will.

As generations grow older, more and more women will find that they have significant assets worth giving to others when they pass away. In most parts of the world women have a longer life expectancy and commonly marry older men. This means that there is a good chance a wife will inherit her husband's estate if she outlives her husband. Since the wife will typically outlive the husband, she will have the last word about the division of property between heirs when she passes away.

Due to statistics that show many women do not make as much money in their lifetime as men, it is important for women to do Florida Estate Planning . Women's living standards could be compromised if proper estate planning is not accomplished. By planning for unforeseen circumstances with insurance and a Florida Revocable Trust, living standards can be easily maintained should anything occur to you or your loved one. Another issue to consider is how assets to a spouse may be limited to allow the spouse to obtain benefits but not put the families assets at risk. This is a combination of Elder law and estate planning.

Florida Estate Planning has never been something only men should complete before they pass away. In modern society, women are dying with significantly more assets than a vast number of men. A Florida Will or Florida Revocable Trust can ensure that your assets pass to your chosen heirs. Speak to a Estate Planning Lawyer in Jacksonville Florida who can assist you in fulfilling all your estate planning needs.

Grantor Retained Annuity Trusts are used in the United States to make large financial gifts to beneficiaries without paying a U.S. gift tax. A GRAT is a trust with a specific life or term, usually anything longer than 2 years. In most cases a wealthy grantor transfers assets to the GRAT and retains an annuity interest in the trust. This means that the grantor receives an annual payment from the GRAT for a fixed period of time. When the GRAT term ends, any remaining assets will be distributed to the named beneficiaries. However, the grantor must outlive the trust term or the funds will fall into the probate estate and subjected to estate taxes.

Recently, the U.S. House of Representatives passed H.R. 5486, a bill that requires all GRATS to have a term of at least 10 years. This is a significant increase from the previous 2 year minimum and significantly dulls the attractiveness of this type of trust. The trust will now be more risky due to the requirement that the grantor must outlive term in order for the beneficiaries to receive the tax breaks from the trust.

The bill has passed in the House and now needs approval from the Senate. This shot period provides a window of opportunity for those who wish to seek the benefits of a GRAT. This is also a great time to review existing GRATs if asset values have declined, so that a GRAT now in place is unsuccessful. If the asset could possibly bounce back and become profitable, now is the time to contact a Florida Estate Planning Lawyer to create a new GRAT.

Creating a Florida Revocable Trust is a job that most Florida Estate Planning Lawyers are capable of but the process of avoiding

Florida Probate

does not end there. Once the

Florida Revocable Trust

has been created it must then be funded with the client's assets. Without proper funding all of the assets that should have been in the trust will pass through

Florida Probate

costing heirs extra money in taxes and fees.

In order to fund your

Florida Revocable Trust

properly, you need to transfer ownership of your assets into the name of the trust. Personal property can be transferred using a document called a General Assignment or Assignment of Personal Effects. Real property is a little more complex because it requires executing a new deed transferring the property from your name as an individual to the name of the trust. Institutions with which you have bank and brokerage accounts usually require a showing that your trust exists and that it is your wish to have these accounts transferred. A Certificate of Trust is a document that provides proof of the existence of your trust and is usually given to the client in the living trust package he receives from his Florida Estate Planning Attorney.

Forgetting or neglecting to fund your trust is something you wouldn't want to do after going to all the trouble to create a trust in the first place. Even if you initially funded the trust with assets there are many cases where people have acquired a significant amount of assets later and never transferred them to the trust. If you would like assistance in creating a revocable living trust or an assessment of your existing trust contact a

Florida Revocable Trust Lawyer

or

Jacksonville Estate Planning Lawyer

today!

Foreclosure Lawyers in Jacksonville Florida have seen a significant increase in the number of Foreclosure cases in Duval County over the past several months. Many individuals who are currently going through loan modifications are seeing the banks file foreclosure cases on them as the same time as they try to modify their loans. It is important not to ignore the Jacksonville Foreclosure case while you are talking with the bank even if they tell you they will put the case on hold. The cases often proceed and you can loose your right to defend your case if you do not respond timely. To discuss your situation with a Jacksonville Foreclosure Defense Lawyer contact a Florida Foreclosure Lawyer or use the contact us form on this page.

According to Forbes Magazine the United States has over four hundred billionaires. Currently, three Liberal members of the Senate are working on a plan that calls for a 10% estate "billionaire surtax" that would go into effect retroactively. This would raise the tax rate to 65% on all estates that have accumulated more than $1 billion in assets. These lawmakers believe that billionaires should be required to pay more in estate taxes due to the increasing federal budget deficit and national debt.

This harsh tax proposal may have been spurred by the death of Texas billionaire Dan L. Duncan who passed away in March with a net worth of $9.8 billion. Since Duncan died this year, his entire estate passes to his heirs tax-free. If these Senators' proposal is enacted, it will hit Duncan's estate retroactively, immediately prompting a court challenge to its constitutionality.

Republican Senators and some less liberal Democrats are opposed to any retroactive plan. Seeing that the only way to come up with a legitimate plan is through bipartisan cooperation, two other Senators have been working on a compromise. This would impose estate taxes on estates above $5 million at a maximum tax rate of 35%. If Liberals have their way they would also seek to eliminate or restrict the use of GRATs because those trusts are popular tax breaks for the wealthy. If you have any questions or concerns about how these new laws may effect you contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer for assistance.

In Florida, it is a common principle of law that criminals should not profit from their crimes. Therefore, it follows that a murderer should not be able to inherit from the estate of their victim. The most common, but unfortunate event that would trigger a slayer statute would be when a spouse murders the other spouse.

Under the Florida statute, a surviving person who unlawfully and intentionally kills or participates in killing the victim is not entitled to any benefits under the intestacy code or the victim's Florida Will or Florida Revocable Trust. Property that was originally meant for the killer passes as if the killer had predeceased the victim. A final conviction of murder in any degree is conclusive for purposes of this statute but in the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional.

There are many situations where the slayer statute could arise in Florida Probate proceedings of a Florida Estate. None of them are simple and should be dealt with quickly and efficiently. For more information on how to deal with slayer statutes contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer.

Being named the "Personal Representative" or "Executor" of someone's estate under a Florida Will should be a decision made after consider several factors. Although many people may be tempted to name their spouse or one of their children as personal representative, there are certain qualities one should look in a candidate before deciding who to name. The following is a list of traits you should look for when deciding who should serve as your executor:

1. Loyalty - the executor should be loyal to your beneficiaries and loyal to your final wishes. 2. Fair - the executor should treat multiple beneficiaries fairly and protect all of their interests equally in the probate process. 3. Trustworthy - the executor will be trusted with large sums money, real property, and personal property. Your executor is capable of investing and selling all of these assets and will know all of your financial secrets. 4. Organized - the personal representative you choose will be responsible for performing several comprehensive tasks with deadlines that must be met. Good organizations skills make it quick and easy to locate information. 5. Financial Background - the personal representative should understand finances because during the probate process he must pay debts and collect revenues for the estate. Also, financial minded people can deal with investment accounts so they won't suffer or drop in value before they can be distributed to your heirs. 6. Tough Minded - the executor should be able to deal with greedy beneficiaries who want their inheritance right way and any unforeseen circumstances that could arise.

With the proper personal representative, you can ensure that your estate is safe and distributed according to your wishes. For assistance in choosing a Personal Representative, contact a Jacksonville Estate Planning Lawyer today.

Intestate succession is a statutorily imposed way of passing property to descendants after death. In Florida, an adopted child is treated exactly the same as if he/she was a natural born child of the adoptive parents (mother and/or father). This means that for the purpose of intestate succession by an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred 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 one of the kindred of any member of the natural parent's family.

Adoption of a child by a step-parent, who is married to a natural parent, has no effect on the intestacy rights between the child and the natural parent or the natural parent's family. This is true even if the child was adopted by the step-parent after the death of the other natural parent. For example, imagine that Tom and Kate are married and have one child Jane. If Kate dies and Tom later remarries and his second wife adopts Jane, Jane would maintain her rights to inherit from Kate's family under Florida intestacy statutes. As long as Kate's family lives in Florida Jane will be protected, but if Kate's family lives in other states, you would need to check how step-parent adoptions are treated in the state where the relative lives.

One final thing worth mentioning regarding adopted children's intestacy rights is that in certain circumstances an omitted child from a Florida Will can receive a share of the estate equal in value to that which the child would have received if the testator had died intestate. However, an obvious intentional omission or devises of substantially all the estate to the other parent of the omitted child will likely result in no gift for the omitted child. To discuss your circumstances or ask questions about this or other Florida Estate Planning issues contact a Jacksonville Estate Planning Lawyer.