Florida Estate Planning Lawyer Blog

June 23, 2014

You Thought the IRA was Protected From Your Kid’s Creditors!

Last week, The Supreme Court unanimously ruled that the funds contained in an IRA are not protected from creditors after bankruptcy.

You may need to reevaluate how your estate plan deals with your IRA. If your beneficiaries live in Florida, this may not be a concern because the Florida Legislature has an IRA exemption statute which includes inherited IRAs. As it is difficult to predict where your beneficiaries will live at the time of your death, you may not be able to count on the Florida statutes to protect your beneficiaries.

We have recommended to make an asset protection trust the beneficiary of your trust to protect from the retirement funds from the loss that could be associated with creditors of our client’s beneficiaries (typically their spouse or children). Many have not seen the need for this and as a result, there may be many families using traditional beneficiary designations which place their retirement funds at risk.

June 19, 2014

Probate: Do Stepchildren Inherit from the Will like Biological children do?

by David M. Goldman

In today’s world, it is common to see blended families full of biological and stepchildren. It is crucial for parents, who wish to leave an inheritance to their stepchildren, make a will or trust because stepchildren do not have the same inheritance rights as biological children.

Florida’s probate laws do not treat stepchildren as a person’s legal heir, which means stepchildren do not have an automatic right to inherit from their stepparents. Remember that your children may be the stepchildren of your spouse, and depending on who lives longer may be unintentionally disinherited.

This does not mean that stepchildren cannot be included in the will. To ensure a step-child can inherit from the estate, he or she must be specifically named as a beneficiary.

June 12, 2014

Florida Probate Law: The Risks of Avoiding Probate Through Changing Ownership

by David M. Goldman

Probate is the system the court uses to administer a person’s estate, either through a will or through intestate succession. Clients often ask for ways to avoid the probate process, such as adding a child to their bank account or adding the child’s name to the deed.

Adding a Child to a Bank Account

In most cases, adding a child to your bank account is not a good idea. A parent who adds a child to his or her bank account, may interfere with the will, and could put the account’s funds at risk.

June 11, 2014

Probate Law: Can a minor child be disinherited in Florida?

by David M. Goldman

There are many situations where a parent may wish to disinherit a child, such as when the parent has been estranged from the child for years. Clients often wonder if they are obligated to leave assets to their children or if they are allowed to disinherit them completely.

Florida’s constitution protects the rights of minor children through homestead laws, which prohibit the head of the household from leaving his or her residence to anyone other than a spouse or minor child. Under this law, a surviving spouse is given use of the property for the remainder of his or her life, this is known legally as a life estate, and then the home passes to the minor children. Recently a surviving spouse has been given the option of taking 50% of the interest in the home or the life estate. The homestead law only applies to children who were minors at the time of the death.

If a person dies without a will, any property that person owned during his or her life will pass under Florida’s intestate succession law. Intestate succession is a law that regulates the decedent’s estate for the remaining heirs. The part of the intestate estate that does not pass to the surviving spouse, or the entire estate if there is no surviving spouse, is given to the children of the decedent. This means that without a will, a person’s children will receive part of their estate without the decedent’s consent.

June 10, 2014

Probate Law: Are There Benefits to Adopting an Adult?

by David M. Goldman

Adult adoption is not only legal, but is becoming a more popular way for people to ensure their estate is inherited by the ones who matter most in their lives.

In Florida, the state law makes no distinction between child and adult adoption. According to the statute, § 63.042(1), “any person, a minor or adult, may be adopted.”

Adult Adoption in Florida requires the consent of the adoptive parent and the adopted person. Additionally, the state requires the consent of the adopted person’s husband or wife if they are married. The court may waive the requirement for spousal consent if the spouse is not available or unreasonably withholds consent.

June 6, 2014

Probate Law: Can a spouse be disinherited from a will?

by David M. Goldman

Modern estate planning has changed with the fabric of the modern American family. It is more common to now see scenarios such as estranged parents who stay married to raise children, or even married couples that live their lives completely separated from each other. A common question asked by many clients is can a spouse be disinherited from a will?

The general rule is that when a person makes a will they are able to dictate who receives their property after death. However, in Florida it may be very difficult to disinherit your spouse.

Even if the spouse and decedent are separated, the decedent’s surviving spouse is entitled to elect thirty percent of the decedent’s elective estate. This law was enacted to protect the surviving spouse from being left with nothing. The only way to circumvent an elective share would require a prenuptial, postnuptial agreement, or remove assets from the elective share. A prenuptial or postnuptial agreement can waive the surviving spouse’s right to receive a portion of the elective share.

June 5, 2014

Florida Probate: Who gets the engagement ring when the fiancé dies before marriage?

by David M. Goldman

Throughout the world, the engagement ring is known as a symbol of the love shared between two people who intend to marry. Engagement rings are expensive and often one of the most valuable assets a person will owns.

However, marriages in today’s world don’t always last, and a big issue faced by many estranged couples is who gets to keep the ring if the engagement ends. Who gets to keep the ring is a complicated answer that varies by state. To understand who keeps the ring when a death occurs, it is important to first understand the basic laws that decide who keeps the ring when the engagement is terminated.

In Florida, there are a few factors courts use to determine the answer. The general rule is the ring becomes the personal property of the person who receives the ring once the marriage occurs.

May 22, 2014

Who Gets Child’s Remains When Parents Do Not Agree?

by David M. Goldman

There was an interesting case published today regarding who got the remains of their son’s cremated ashes when the mother and father could not agree. One parent tried to state that the remains should be split and filed a partition case in much the same way as one would do with a home or a piece of land.

In reviewing the case history and what other courts have done, the Florida appellate court agreed with the trial judge who found that “ashes were not property” and hence were not subject to a partition. The court noted that while the division of ashes among heirs by funeral homes may be a common practice where the heirs are in agreement as to the division, a decedent’s remains, including ashes, are not “property” subject to ownership or court-ordered partition.

The opinion starts off discussion comments by William Blackstone in 1753 and moves forward through Florida case law. If you would like to review the case and facts you may read the case here. The cite for the case is 39 Fla. L. Weekly D1037a

March 17, 2014

Undue Influence Florida

by David M. Goldman

We often get questions about contesting a will because of Undue influence in Florida. Undue influence is a cause of action that is used to challenge the validity of a will, trust, or other testamentary document. You can not challenge a will until the person who has created it has died. The conduct of a person charged with undue influence must amount to over-persuasion, duress, force, coercion, or artful or fraudulent contrivances to such a degree that there is destruction of the free agency and will power of the one making the will.

The primary case on this topic is the Estate of Carpenter. This case holds that to prove undue influence in Florida with a will or trust, the person claiming the undue influence must show that the decedent ( the person who died) was unduly influenced by 1) a substantial beneficiary under the contested document 2) and that beneficiary had a confidential relationship with the decedent and 3) actively procured the will or trust.

In providing this the Florida Supreme Court provided seven criteria to help determine undue influence:

presence of the beneficiary at the execution of the will/trust;
presence of that beneficiary on occasions when the testator expressed a desire to make the will/trust;
recommendation by the beneficiary of an attorney to draw the will/trust;
knowledge by the beneficiary of the contents of the will/trust prior to its execution;
giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
securing of witnesses to the will by the beneficiary; and
physical possession of the will by the beneficiary after its execution.

December 26, 2013

How can I find a copy of my parent’s will or life insurance?

by David M. Goldman

We get many calls from children who want to know where they can get a copy of their parent’s will or find out if they had life insurance.

First, if your parent is alive, you have no right to demand or see a copy of your parent’s will. While it would be a good idea for them to share it with their children there may be reasons why they have chosen not to.

If your parent is incapacitated, and you acting as the agent under a power of attorney or the guardian over the property, you may look for these documents in order to preserve your parents assets or provide for them. A guardian or agent must be careful to avoid taking actions that could be considered changing the beneficiaries. They may also not create a will for someone else.