September 6, 2013

Gun Trusts are not just for NFA firearms

Do you own firearms? If so, an estate plan should include provisions on how to deal with your firearms in the event of your death. The problem with traditional estate planning or using the state's default rules is that they are both designed to deal with objective decision-making while the thought process involved in giving someone a firearm is objective as well as subjective.

Think about the following issues that do not cause problems with a bank account or other financially based asset but could be devastating with firearms.
1) The location you your children or beneficiaries live at when you die.
2) The legal status of the firearms you own in those states.
3) The logistics of getting the firearms to those states, assuming it would be legal to do so.
4) The legal status of your beneficiary on the date of your death or at the time the transfer is contemplated.
5) What are the legal requirements of possession or use in the state where your beneficiaries live.
6) Who will be your successor trustee or personal representative?
7) The legal status of them to possess or manage firearms?
8) The subjective decision as to if it would be proper to give one or more of the beneficiaries the firearms. ( are they mature and responsible enough as well as is it the right moment in time that you would hand them a gun if you were there to make a decision)

A normal will or trust typically says wait until my child is 25 then give them my Glock or ther firearm. Some of the problems may be that you child lives in CA or one of the states where your Glock is not legal, you child has decided that medical marijuana is wonderful and is a prohibited person under federal laws, your child is in the middle of a nasty divorce or under great financial pressure.

Under these or other circumstances it is easy to see how your firearm could become a weapon and cause your family member to be incarcerated. In addition, there is no legal standard to make sure the family member or friend that you typically would choose to manage your other assets will know anything about guns or be legal to possess them.

As you can see a Gun Trust is the responsible way to own firearms and can even offer asset protection for you and your family members. If you own firearms and would like your estate plan reviewed to correct inadvertant mistakes that are made on a regular basis or to have us create an estate plan for your and your family, use the contact form on the right or call us to discuss your situation.

September 3, 2013

Who has the right to make funeral / burial arrangements in Florida?

Thumbnail image for probate.jpgWho has the right to make funeral / burial arrangements in Florida?

Florida Statute 497.005 defines human remains and who is the legally authorized person to dispose of the human remains.
38) "Human remains" or "remains," or "dead human body" or "dead human bodies," means the body of a deceased human person for which a death certificate or fetal death certificate is required under chapter 382 and includes the body in any stage of decomposition.
(39) "Legally authorized person" means, in the priority listed:

  • (a) The decedent, when written inter vivos authorizations and directions are provided by the decedent;
  • (b) The person designated by the decedent as authorized to direct disposition pursuant to Pub. L. No. 109-163, s. 564, as listed on the decedent's United States Department of Defense Record of Emergency Data, DD Form 93, or its successor form, if the decedent died while serving military service as described in 10 U.S.C. s. 1481(a)(1)-(8) in any branch of the United States Armed Forces, United States Reserve Forces, or National Guard;
  • (c) The surviving spouse, unless the spouse has been arrested for committing against the deceased an act of domestic violence as defined in s. 741.28 that resulted in or contributed to the death of the deceased;
  • (d) A son or daughter who is 18 years of age or older;
  • (e) A parent;
  • (f) A brother or sister who is 18 years of age or older;
  • (g) A grandchild who is 18 years of age or older;
  • (h) A grandparent; or
  • (i) Any person in the next degree of kinship.

In addition, the term may include, if no family member exists or is available, the guardian of the dead person at the time of death; the personal representative of the deceased; the attorney in fact of the dead person at the time of death; the health surrogate of the dead person at the time of death; a public health officer; the medical examiner, county commission, or administrator acting under part II of chapter 406 or other public administrator; a representative of a nursing home or other health care institution in charge of final disposition; or a friend or other person not listed in this subsection who is willing to assume the responsibility as the legally authorized person. Where there is a person in any priority class listed in this subsection, the funeral establishment shall rely upon the authorization of any one legally authorized person of that class if that person represents that she or he is not aware of any objection to the cremation of the deceased's human remains by others in the same class of the person making the representation or of any person in a higher priority class.

August 31, 2013

Florida Asset Protection

One of most common topics we discuss with our business and estate planning clients is asset protection. The best time to do asset protection is when you do not have any known or potential creditors. Unfortunately, this is often the least likely time to consider protecting your assets.

Today we have some innovative trusts that provide asset protection without the risks, expenses, and IRS compliance associated with Foreign ssset protection trusts or Domestic asset protection trusts (DAPT). A domestic asset protection trust is a trust created under state statute (not in Florida) which purports to protect the assets while still giving you access to the assets when there are no creditors. Unfortunately many states will not recognize the protections when there are assets which are located in another state. For example if you have your Florida property or bank account in a Nevada or other state's DAPT, it is likely that a court in Florida may not offer you the protections you have expected.

Unlike a DAPT which relies on another state's laws, our Florida Asset Protection Trust is an IGAP Trust which is based on statutory and common law principles regarding Trusts and Property and can be structured to protect the principal or principle and income of the property being held by the trust. The IGAP trust has no adverse tax consequences like some trusts do because it is taxed just as if you owned the property yourself. In addition some asset protection trusts lose the ability to increase the basis in the assets to the value at your death, but the IGAP Florida asset protection trust does not have this problem and receives the same tax treatment as if you owned the property yourself.

The biggest difference between property in an IGAP Florida asset protection trust and other trusts or property you own individually is that your future creditors cannot reach the principal or principal and income (depending on how the trust is structured). The IGAP trust can also be used to remove assets from the assets which can disqualify you from Nursing home or other forms of government assistance. A DAPT has a 10 year look back period if you became subject to a voluntary or involuntary bankruptcy while assets in the IGAP trust are not subject to the 10 year loop back period.

Often times asset protection trusts work by having you give up control over the assets and appoint someone else to make decisions on your behalf. With the IGAP, you remain in control and make decisions on buying and selling assets as well as if, when, and to whom assets are distributed.

Because there are no annual fees or additional tax returns associated with a IGAP, it is a very cost efficient option for asset protection and estate planning. Many of you may be familiar with a revocable trust as part of an estate plan. If you think of the revocable trust as your savings account, an IGAP Asset Protection Trust would be your savings account.

If you would like talk about how to start protecting your assets along with and estate planning analysis or a complimentary review of your existing estate plan just contact our office and request our estate planning form. Once you complete it, you can schedule a consultation to discuss your circumstances and goals.

May 26, 2013

Man without will dies and State may get 40 Million

Thumbnail image for will and testament.bmpForbes has reported that nearly 2.5 million Americans die each year without a will. While many states have default rules that define who will receive your assets, sometimes they do not cover your specific circumstances. Richard Blum, a Holocaust survivor and New York real estate developer appears to be one such example.

If you die without a will or living trust ("intestate"), state law will determine how your assets which are subject to probate are distributed, and the result may not be what you would want.

In Florida this generally means your probate assets will go to your spouse, then your children, then to parents, then to siblings and so on. While this may be fine for the traditional family, we see more families with children from outside the current marriage or relationships where they may not be a relationship that is legally recognized by the state.

Richard at 97 may have outlived his children and because it has been difficult to find siblings and or other relatives, his estate may end up going to the state of New York.

Some might say, if we have no family or relatives, then why not give it to the state. Other would prefer to help friends, caregivers, or a charity.

For families with minor children, a Florida will is how you select a guardian for your minor children if something was to happen to you. If you would like to create a will in Florida, contact us and we can evaluate if a will is the best solution for your circumstances.

May 14, 2013

The Advantages of Living Trusts: 6 Ways a Living Trust can Benefit Your Estate Plan

Thumbnail image for Last Will and Testament 1.jpgProbate can have the reputation of being a nightmare, and many hate the idea of going through this process. If the idea of transferring your assets through probate daunts you, then you will be happy to know that living trusts can avoid probate. The probate process is usually more expensive and time consuming than having a living trust set up to transfer assets. Moreover, a living trust has many more advantages than skipping probate. An estate-planning attorney can discuss with you the specific advantages that a living trust will bring to your estate plan and can assist you with setting up one to effectively address your needs and the needs of your beneficiaries. Meanwhile, here are 6 general benefits of using a living trust in your estate plan.

BENEFIT #1: A living trust can protect the assets in the trust for certain beneficiaries.
Sometimes, the intended beneficiaries are not capable to handle their full inheritance. For example, many states do not allow minors to own property. And even if a child was old enough to receive property legally, a full inheritance can detriment the child by tempting him to quit school or start an early retirement. Moreover, there are those beneficiaries who will spend all their inheritance at their first opportunity. A living trust can prevent any of these scenarios by allowing you to appoint a trustee to keep your assets for the benefit of your beneficiaries. The trustee would invest the assets in your trust for your beneficiaries' benefit until they are capable of handling their inheritance.

BENEFIT #2: A living trust can reduce and even eliminate estate taxes.
Even though there are no provisions in the federal tax code that exempt living trusts from estate taxes, living trusts are often used by people and families to take advantage of certain deductions and credits that are allowed under tax laws.

BENEFIT #3: A living trust can help manage your assets upon incapacity.
If you become incapacitated without having done some prior estate planning, then your loved ones may have to file an application with the probate court to have a guardian appointed to manage your property. This can be a wrenching experience because your assets and affairs will have to be prepared before total strangers. A living trust allows a successor trustee to take over the management of your assets if you ever become incapacitated.

BENEFIT #4: A living trust can avoid probate.
The assets in your living trust will not go through probate when you die. However, your outstanding debts and taxes will have to be paid. The reality is that avoiding probate might not be a viable option for some individuals. Discuss the factors of your case with an estate-planning attorney to find out whether or not skipping probate is a viable option in your case.

BENEFIT #5: A living trust can avoid a Will contest.
A Will is more likely to be contested than a living trust. This is so because a Will goes into effect when the person dies, whereas a living trust goes into effect as soon as the trust instrument is signed and usually lasts sometime after the grantor's death. To challenge a Will, an interested party needs only to show that the testator was either incompetent or under undue influence when he or she signed the Will. To challenge a living trust, on the other hand, an interested party may have to show that the grantor was incompetent or under undue influence when the trust was signed, when each asset was transferred to the trust, when each investment decision was made, and when each distribution was made to the owner or to anyone else. This is much harder to do than challenging a Will.

BENEFIT #6: A living trust can offer you privacy.
Probate is a public process. Therefore, theoretically, anyone can go into the probate court and look at a specific decedent's estate file. Unscrupulous sales persons often go through estate files to locate grieving heirs to prey on. A living trust can prevent this because it is private, does not get filed with the probate court, and no one gets to look at it unless the grantor or trustee allows it.

Contact an estate-planning attorney to assist you with setting up a living trust today. For an estate-planning attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

May 9, 2013

The Future of Estate Planning: The Multigenerational Life Plan

Over the last year I worked with an intern in our office of a Law Review article for Texas Tech University. This article describes problems with current estate planning and takes the premise that most estate planners have become lazy because of advancements in technology. That is, most only ask their clients about issues that their software is capable of addressing. We identify 6 primary areas that are not addressed in most estate plans:

  1. Firearms;
  2. Digital Assets;
  3. Asset Protection;
  4. Life Planning;
  5. Controlling from the Grave; and
  6. Pets

The citation for the article is
David Goldman & Charles Jamison, The Future of Estate Planning: The Multigenerational Life Plan, 5 Est. Plan. & Community Prop. L. J. 1 (2012).

Continue reading "The Future of Estate Planning: The Multigenerational Life Plan" »

May 9, 2013

3 Important Reasons to Use an Estate Planning Attorney to Create a Durable Power of Attorney

Estate Planning.jpgA Durable Power of Attorney (DPA) allows you, the "principal", to designate someone, the "agent", to act on your behalf. Depending on the DPA, your agent will have authority to oversee your financial affairs or your medical treatment. Having a DPA is a good idea, but only if it is done properly. Otherwise, a DPA will probably not serve its intended purpose and it might create additional problems. To avoid this, contact an estate-planning attorney to assist you with this issue. Meanwhile, this blog discusses three important reasons to hire an estate-planning attorney to draft your DPA.

1. A DPA is effective right after it is executed.
Before October 2011, a DPA could remain "dormant" after it was executed. This type of DPA is known as "springing DPA" and is not effective until the occurrence of the event specified in the document, like the principal's incapacity. However, pursuant to a revision to Florida Statutes section 709.2108, a DPA is ineffective if it provides that it is to become effective at a future date or upon the occurrence of a future event or contingency. Therefore, springing DPAs are no longer recognized by Florida and a DPA is effective the moment that is executed. So if you want a DPA to protect your financial affairs in the event that you become incapacitated, your agent will have authority to oversee your finances as soon as the DPA is created. This can be a problem. Even if your agent is a person that you completely trust, like your spouse, the fact that he or she has authority over your finances can be against your interests. An estate-planning attorney from the Law Office of David M. Goldman PLLC conveniently addresses this issue by offering an escrow service in which you chose the attorney as your agent and instruct him or her what to do in the event that the DPA is used. Meanwhile, the DPA will be kept in a secure place and will not be used unless you instruct the attorney to do so, a court mandates the attorney to do so, or two Affidavits from two different Doctors state that you are incapable of deciding for yourself. This way you can be better assured that your agent will not abuse his or her power over your affairs.

2. A DPA is one of the most complicated estate-planning documents.
DPAs involve a series of complex issues that make it more likely to make a mistake in a DPA than in any other estate-planning document. For example, a DPA might not survive the principal's incapacity or might not be effective if it does not have the appropriate language. An estate-planning attorney knows what language to include in your DPA to protect it from claims against its validity and to help it addresses the issues that need to be addressed in your circumstances.

3. If you ever become incapacitated, you need more than a DPA to address all of your health care needs.
Your agent might need more than a DPA to effectively oversee your medical treatment if you ever become incapacitated. For example, to have access to your medical records, your agent will need a HIPAA release. Also, a living will, although not necessary, can direct your agent to refuse for you medical treatment that will only prolong your suffering. An estate-planning attorney can assist you with gathering all the additional documents needed to create an effective health care directive package to prepare for possible future incapacity.

May 7, 2013

6 Quick Questions to Help You Effectively Decide When is a Trust Better than a Will in Florida

Thumbnail image for will and testament.bmpA Florida Will is one of the most basic estate-planning documents. A Will allows the grantor to devise his or her property with very limited encumbrances; however, there are issues that are better addressed with other estate-planning documents - like a Trust. If you are debating whether to use a Trust or a Will, then this blog will help you. However, it is wise to seek assistance from an estate-planning attorney before making a decision.

What is a Will?
A Will is a written instrument, signed by the decedent and at least two witnesses in each other presence, that fulfills the requirements of Florida law. A Will names the beneficiaries for the testator's probate assets. The testator can also designate guardians for minor children and a personal representative to administer the estate. If a Will was validly executed in another state, Florida courts will recognize the document as a Will except in the case of a holographic Will. Holographic Wills are Wills written entirely in the testator's own handwriting and in most states witness signatures are not required. However, Florida law requires that holographic Wills be witnessed and signed in the same manner as any other Florida Will.

What is a Trust?
A Trust is a relationship created at the direction of an individual, in which one or more persons hold the individual's property subject to certain duties to use and protect it for the benefit of others. The creators of a Trust may control the distribution of their property during their lives or after their deaths through the use of the instrument. There are many types of Trusts and many purposes for their creation. A Trust may be created for the financial benefit of the person creating the Trust, a surviving spouse or minor children, or for a charitable purpose.

TRUST VS WILL
Some common reasons to use a Trust over a Will include:

  • A. Are you seeking to avoid probate?
    You must first open probate to carry out the instructions in a Will. A Trust, however, can provide a way to bypass probate because the Trust owns the property the day it is transferred to it. Therefore, the dead of the settlor does not impact ownership in the property.
  • B. Are you seeking to plan for mental disability or special needs?
    If you have special needs or dependents with special needs, a Trust can be customized to meet these needs. A Will, on the other hand, allows you to transfer property but does not allow you to exercise substantial control over your heirs' use of property.
  • C. Is privacy one of your main goals?
    If a Will is probated, then all records of the proceeding are publicly available. Therefore, a Will is probably not a viable option if your primary goal is privacy.
  • D. Do you have a blended family?
    If you have children that are not children of your spouse, then a Will might not be the best option to leave them your property. A Trust is more flexible than a Will and can be a better option for blended families.
  • E. Do you own real property in more than one state?
    If you leave property in a Will located in another state, then it might be necessary to hire an attorney in the other state to have the property transferred. A Trust, however, can provide you the option to pass property located in another state without the need of incurring the extra expense of hiring the out-of-state attorney.
  • F. Are you looking to protect assets from creditors?
    Some trusts can protect assets from your creditors as well as make the assets exempt form the claims of medicaid.

The choice between a Trust and a Will might not be as straightforward as it seems. Minuscule details in your case might easily pass unperceived but still have a tremendous impact on your decision. Your best option to make an informed decision is to contact an estate-planning attorney. For an estate-planning attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of this page.

May 4, 2013

Taking Advantage of the Liberal Asset Protection Laws in Florida

asset-protection-cash.jpgEach state has different asset protection laws. Florida's asset protection laws are considered one of the most liberal ones. Therefore, it is a good idea to discuss your case with an estate-planning attorney with expertise in asset protection to take advantage of the liberal asset protection laws of Florida. Florida's asset protection laws apply to permanent residents and people in other states with property in Florida. Florida's asset protection laws are based on several legal sources: the Florida Constitution, Florida Legislature, and common law. Courts also establish asset protection through their interpretation of provisions of the constitution, statutes, and common law.

Florida assets protection laws provide many options to protect your assets from creditors. People anticipating substantial civil judgments often move from other states to Florida to become a resident for asset protection purposes. For example, OJ Simpson took advantage of Florida's asset protection by purchasing a large estate in Florida in part to avoid creditors.

4 Key Asset Protection Exemptions for Florida Residents

1. Homestead exemption: Article 10, section 4 of Florida's Constitution provides that the homestead is exempt from forced sale under process of any court. In a nutshell, it is nearly impossible for creditors to force the sale of a homestead. Florida's homestead exemption also protects spouses and children of decedents: a spouse cannot transfer the property by Will if survived by a spouse or minor child.

2. Life insurance and annuities: Florida statutes section 222.14 provides that the cash surrender values of life insurance policies issued upon the lives of citizens or residents of the state and the proceeds of annuity contracts issued to citizens or residents of the state are not subject to attachment, garnishment or legal process in favor of any creditor of the person whose life is so insured or of any creditor of the person who is the beneficiary of such annuity contract (unless the insurance policy or annuity contract was effected for the benefit of such creditor).

3. Qualified plans, IRAs and pension: These are fully exempt if the federal requirements are met. Florida statutes section 222.21 provides that any money or other assets payable to an owner, a participant, or a beneficiary from, or any interest of any owner, participant, or beneficiary in, a fund or account is exempt from all claims of creditors of the owner, beneficiary, or participant if the fund or account is:

  • a. Maintained in accordance with a master plan, volume submitter plan, prototype plan, or any other plan or governing instrument that has been preapproved by the Internal Revenue Service as exempt from taxation.
  • b. Maintained in accordance with a plan or governing instrument that has been determined by the Internal Revenue Service to be exempt from taxation .
  • c. Not maintained in accordance with a plan or governing instrument described in point a or b, if the person claiming exemption under this paragraph proves by a preponderance of the evidence that the fund or account is maintained in accordance with a plan or governing instrument that is in substantial compliance with the applicable requirements for tax exemption or would have been in substantial compliance with the applicable requirements for tax exemption but for the negligent or wrongful conduct of a person or persons other than the person who is claiming the exemption under this section
4. Prepaid tuition and medical savings accounts: Florida's asset protection laws protect assets in qualified tuition programs, medical savings account, Coverdell education saving account, and hurricane savings account (Fla. stat. § 222.22).

For a Florida estate planning attorney with experience in asset protection law, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of this page.

May 3, 2013

What Is Involved in Florida's Probate Process? Some Rules of Probate in Florida that You Should Know

FreeFloridaProbateHandbook-small-thumb.jpgThe grapevine is full of rumors about probate. Some of them are true, but many of them are more than misguided. The fact that each state has a different probate procedure makes the process harder to understand. If you want to get a general grasp about some basic rules of probate in Florida, then this blog is for you. However, you should discuss the facts of your case with an estate-planning attorney before deciding whether or not probate is a viable option for your estate plan or if you are faced with going through this process.

1. Estate Taxes vs. Probate Fees - Estate taxes are paid to the IRS if an estate exceeds a specific dollar limit, which varies each year. For example, in 2012 estate taxes were owed for estates that exceeded $5,120,000. Probate fees are paid to the attorney and executor (a.k.a personal representative) of an estate for any assets that go through probate. Additionally, there are filing fees needed to be paid to the probate court and appraisal fees for estate assets.

2. Compensation for Executor - An executor is entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission will be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration. A commission computed on the compensable value of the estate is presumed to be reasonable compensation for an executor in formal administration as follows:

  • a. At the rate of 3% for the first $1 million.
  • b. At the rate of 2.5% for all above $1 million and not exceeding $5 million.
  • c. At the rate of 2% for all above $5 million and not exceeding $10 million.
  • d. At the rate of 1.5% for all above $10 million.
3. Probate Bond - Probate bonds are used to ensure the accuracy and fairness of a probate proceeding. They are a type of security bond taken out by the executor of an estate entering probate and are used to ensure that the value of an estate will not be altered by the executor. A probate bond is typically used in estates that have no Will to direct the distributions of the assets, or when there is reason to believe that decedent was incompetent during the creation of his or her Will. All bonds required will be for the sum that the courts deems sufficient after consideration of the gross value of the estate, the relationship of the executor to the beneficiaries, exempt property and family allowances, the type and nature of the assets in the estate, known creditors, and liens and encumbrances on the assets.

4. Property Passing Outside Probate - Probate is necessary when a person dies owning anything in his or her name individually. However, many kinds of assets pass outside probate, for example:
  • a. Assets with beneficiary designations, like IRAs accounts and life insurance.
  • b. Joint tenancies with rights of survivorship (the right of survivorship must be expressed in the document creating the joint tenancy).
  • c. Property held in trust.
  • d. Property held as tenants by the entirety (for spouses only).
  • e. Automobiles.
For those of you who would like to learn more about probate in Florida we have a Free Florida Probate Handbook available for download

If you are faced with going through probate or are considering whether or not probate is a feasible option for your circumstances, contact an estate-planning attorney before taking any decision to make sure that the process goes smoothly. For an estate-planning attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

April 19, 2013

There is a Vacancy in My Trust - Appointment of a Successor Trustee in Florida

vacancy.pngEvery trust needs at least one trustee to administer the trust and to carry on its terms. If a person designated as a trustee ceases to act as one, then a vacancy in the trust occurs and it might need to be filled. Succession of trustees is perhaps one of the most common occurrences in the administration of a trust. A succession of trustee can be done by the terms of the trust, by the beneficiaries, or by appointment of the court. The overriding concept is that if one trustee ceases to act for any reason, the result depends upon the circumstances of each case. This is why it is wise to consult an estate-planning attorney to analyze all the factors affecting your case and assist you with this issue.

1. When does a vacancy occur?
A vacancy in a trusteeship occurs in the following circumstances:
· A person designated as trustee declines the trusteeship.
· A person designated as trustee cannot be identified or does not exists.
· A trustee resigns.
· A trustee is disqualified or removed.
· A trustee dies.
· A trustee is adjudicated to be incapacitated.

2. When does a vacancy need to be filled?
A vacancy in a trusteeship must be filled if the trust has no remaining trustee. If one or more co-trustees remain in office, however, then a vacancy in a trusteeship does not need to be filled.

3. Priorities in filling a vacancy in a trusteeship of a non-charitable trust.
A vacancy in a trusteeship of a non-charitable trust that is required to be filled must be filled in the following order of priority:
· By a person named or designated pursuant to the terms of the trust to act as successor trustee.
· By a person appointed by unanimous agreement of the qualified beneficiaries.
· By a person appointed by the court.

4. Priorities in filling a vacancy in a trusteeship of a charitable trust.
A vacancy in a trusteeship of a charitable trust that is required to be filled must be filled in the following order of priority:
· By a person named or designated pursuant to the terms of the trust to act as successor trustee.
· By a person selected by unanimous agreement of the charitable organizations expressly designated to receive distributions under the terms of the trust.
· By a person appointed by the court.

5. Appointment of an additional trustee or special fiduciary by the court.
The court may appoint an additional trustee or special fiduciary whenever the court considers the appointment necessary for the administration of the trust. This is so whether or not a vacancy in a trusteeship exists, or whether or not a vacancy is required to be filled.

The Law Office of David M. Goldman PLLC has experienced estate-planning attorneys that can apply the law to your particular circumstances to effectively assist you in a succession of trustee. Remember that the results in a succession of trustee depend upon the circumstances of each case. Moreover, the answer might not be as straightforward as it appears. For example, even if the terms of the trust designate a person to act as successor trustee, those terms might be invalid or the designated person might not qualify as a trustee. To contact the Law Office of David M. Goldman PLLC, dial (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

April 15, 2013

A Checklist to Update Your Florida Estate Plan

checklist.pngUpdating your estate plan is as important as having one. Many find it easy to procrastinate about updating their estate plan because they do not want to spend the money on a Florida estate-planning attorney. However, a lot of money can be lost through missed estate planning opportunities and family legal battles over out of date estate planning documents. Therefore, updating your estate plan can actually save money in the long run. Many Florida estate-planning lawyers, including the Law Office of David M. Goldman PLLC, will actually review your current estate plan free of charge. When updating your estate plan, consider the following points.

  • Consider whether you need a trust: A trust can be very helpful to achieve your goals, even if you do not have a lot of assets. In numerous situations, a trust or series of trusts in conjunction with other documents can be the best option for even those with modest means. Trusts are often used for the following reasons
    • Protect your assets from creditors
    • Provide for the car of your family and yourself financially in case you no longer are able to handle your own affairs.
    • Provide for children of a previous marriage in the case of your death.
    • Avoid probate, keep your assets private, and save money for your beneficiaries
    • Protect money for minors, so they cannot spend the money in the trust immediately on thing you may consider unnecessary.
    • Protect assets from a future ex son or daughter-in-law.
  • File an estate tax return if you lost your spouse: A surviving spouse has the option of adding any unused tax exclusion of the deceased spouse to her own $5 million exclusion. This option is known as "portability". You may thin that you will never need this additional exclusion, but they laws could change and significantly reduce the amount of portability in the future. Portability is not automatic. To get portability, the executor of the estate of the decedent spouse must file an estate tax return, even if no estate tax is due.
  • Consider whether to give away some of your assets now to save taxes: If you have enough money for retirement, it might be in your best interest to transfer some of it now to save some taxes. If you have a lot of assets, it is a good idea to seek an estate planning attorney to discuss the option of using leveraging techniques that can allow you to give away a large part of your assets gift-tax free.
  • Update basic estate planning documents: If you have not revised your estate plan in more than five years, then you should have someone look at your current estate plan to make sure it still reflects your intent and is flexible enough to accommodate present uncertainties. Consult an estate planning attorney to discuss whether your current estate plan needs some arrangements.
  • Prepare for a time when you may not be able to think for yourself: Notwithstanding your present age or health it is important to prepare for the possibility of becoming physically or mentally incapacitated. To prepare for this possibility, you should select someone to be a durable power of attorney for health care as well as financial decisions.
  • Chose a guardian for your children that are minors or have special needs: Even if you are married it is important to select who will take care of your children if you pass away so that a court is not making this decision on behalf of your children. This can be done by appointing a guardian in your will.
  • Use beneficiary designations or style accounts to assure you or your spouse has enough money to cover immediate expenses in case one of you suddenly passes away. It is wise to maintain a joint account designated for these types of emergencies because when a spouse dies, the surviving spouse generally does not have immediate access to the decedent spouse's private bank account. These issues can also be dealt with in various types of Trust documents.
An estate planning attorney can review your current estate plan to assure that your intent has not been frustrated with circumstances arising after the creation of your estate plan. New laws or unconsidered circumstances can easily frustrate at least part of your estate plan's purpose. For an estate planning attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the top of the page.

April 8, 2013

Probate: Disposition of Personal Property Without Administration in Florida

document.pngThis process lets someone who paid for a decedent's final expenses, from the funeral or from the last illness, to be reimbursed from the assets of the decedent's estate. This process is only available if the decedent did not leave any real estate and the only assets in the estate are either exempt from creditor's claims or do not exceed the total amount of the final expenses. Although this process avoids probate, it might be impractical in some cases. For example, this process can open the assets of decedent's estate to the claims of creditors, can have less favorable tax benefits, and there is a risk of unintentionally disinheriting some children from one spouse but not of both spouses. Therefore, it is important to consult with a Florida probate lawyer to help you consider the variables in your case and make an informed decision.

To apply for this process and request reimbursement, you file a form called "Disposition of Personal Property Without Administration." This form is available from the clerk of the court and on many Florida circuit courts' websites. There's a small filing fee; call ahead or check the court's website to find out the exact cost. The following is a list of the things needed to file for this process and the procedure involved in it.

What You Need

  • Petition of disposition without administration: Three pages and notarized.
  • Certified death certificate.
  • If decedent has a will, then the original will has to be filed with the verified statement unless previously filed.
  • Copy of paid funeral bill.
  • Copy of paperwork showing decedent's assets, i.e. copy of stocks, bank statement, etc.
  • Copy of last sixty days' medical expenses with receipts.
  • Consents of any additional heirs with address and notarized signature, or death certificate, if applicable.
  • Statement regarding creditors.
  • Filing fee (call ahead or check the circuit court's website to find out the exact cost)
  • An Affidavit stating that decedent was never married and did not have children may be required, if applicable.

When Filing the Petition
  1. Print the decedent's name after the words "In Re:"
  2. Print your name, address, and all the required information.
  3. Check the correct box indicating that either there is no will or that you are filing one at this time.
  4. List beneficiaries (heirs) in descending order at item no. 3. If you run out of space, you may use the back of the form, but indicate in the front of the form that you have done so.
  5. When listing estate property in item no. 3, you must provide the mailing address as part of the description. Consult Florida Statutes section 732.402 for the definition of exempt property.
  6. Attach a copy of the paid funeral bill and the last sixty days medical expenses and receipts showing payment. If the asset(s) is needed to pay the bill, the order can reflect that the proceeds go directly to the funeral home.
  7. The forms may be sworn to before the deputy clerk or a notary public. After completing the forms, file all documents with the clerk along with the filing fee. All documents will be forwarded to the judge. A plain copy and a certified copy of the Order to Distribute or Transfer Assets will be provided to you. The certified copy is to be presented by you to the financial institution

CONTACT A FLORIDA PROBATE LAWYER
Disposition of personal property without administration does not apply when the asset consists of the decedent's Income Tax return (see Florida Statutes section 735.302). Moreover, as discussed initially, some circumstances in your case might make disposition without administration impractical for your case. It is wise to contact a probate lawyer for assistance with this matter. For a Florida probate lawyer contact the Law Office of David M. Goldman PLLC at (904) 685-1200 or click the "Contact Us" tab at the beginning of the page.

April 5, 2013

Formal Administration vs. Summary Administration in Florida

chess.pngThere are to main types of probate administration in Florida: summary administration and formal administration. Summary administration can only be used when the total value of decedent's assets subject to probate are $75,000 or less, or when the decedent has been dead for more than two years. Formal administration is used for all other estates or whenever a personal representative is required for other purposes.

SUMMARY ADMINISTRATION
Steps

  1. Preparation of the documents.
  2. Publication of the notice to creditors.
  3. Determination of homestead (if applicable).
  4. Distribution of the funds to creditors and beneficiaries per court order.

Costs and Time Frame: The current court costs are around $400 and publication costs range from $30 to $300, depending on the county and news paper. However, most costs are around $200. The approximate time frame is three to five months - unless extraordinary circumstances occur, like a will contest. Decedent's estate cannot be closed while litigation is pending.
 
Pros
  • Shorter proceeding than formal administration: three to five months compared to four to twelve.
  • Less work and less expensive than formal administration.
  • Less complicated than formal administration: Summary administration involves less hoops and hurdles than formal administration.
Cons
  • A personal representative is not officially appointed: In formal administration, the appointed personal representative is given authority to request all the information he or she needs regarding the decedent's assets. Without this authority, requesting information regarding decedent's assets might be a little more challenging.
  • No letters of administration are provided: if you need letters of administration for any reason, or if the estate will be subject to litigation, you should open a formal administration
  • All assets need to be accounted for before filing.

FORMAL ADMINISTRATION
Steps
  1. Preparation of the documents.
  2. Appointment of personal representative.
  3. Publication of notice to creditors.
  4. Filing of the inventory of decedent's estate.
  5. Determination of homestead (if applicable).
  6. Distribution of the assets to creditors and beneficiaries.
  7. Closing of the estate.

Costs and Time Frame: The current costs are $400 plus publication costs that can range from $30 to $300. Depending on the county and newspaper. However, most costs are around $200. The approximate time frame is four to twelve months unless extraordinary circumstances occur: i.e. litigation. The estate cannot be closed while litigation is pending.

Pros
  • A personal representative is appointed: with authority to secure information about decedent's assets or debts.
  • Letters of administration are provided: banks and financial institutions are more comfortable with letters of administrations than with orders of summary administration.
  • Best choice when there are many known creditors.
  • Best choice when decedent's estate will be subject to litigation.
Cons
  • Longer proceeding than summary administration: four to twelve months compared to three to five months.
  • More expensive than summary administration.
  • More work required than in summary administration.

WHICH SHOULD I CHOOSE?
The answer is it depends. There are important variables to consider when making the choice. Every probate case is different, even if the differences are small. For example, some cases require letters of administration, making summary administration not a viable option. Be sure you are making an informed choice. To make an informed choice, contact a probate lawyer. For an attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200 or click the "Contact Us" tab at the beginning of the page.

April 3, 2013

How to Use a Florida Durable Power of Attorney

Using a Durable Power of Attorney in Florida
When you have been appointed as an agent by a person to act as an attorney-in-fact for that person, you must keep three important ideas in mind.

Agent Authority
Because you are acting as an agent, you are obligated to either act in accordance with specific instructions given to you by the principal (the person who appointed you) and/or in that person's best interest. If you are making independent decisions on behalf of your principal, you must think carefully about the situation and be certain you can justify your decision as being in the best interest of the principal. It is important to understand what powers you have been granted and that your authority ends when the principal dies.

Disclosure
You must keep in mind that you are acting for another person, not for yourself. It is very important that you disclose the agency relationship when you are signing documents on behalf of the principal. This means you do not sign documents or conduct business in your own name, but rather in the name of your principal. If you sign documents in your own name, you may become liable for the debt or liability arising out of that signature.
The proper way to disclose the agency relationship and to sign a document in the principal's name using a Power of Attorney is as follows: Principal's name By Agent's Name as Attorney-in-fact

Records
A person acting on behalf of another with a Power of Attorney should always keep good records of all actions and transactions performed on behalf of the principal with the Power of Attorney. It is possible that the principal, or a guardian, trustee, or executor on behalf of the principal, may call upon the agent to account for his actions on behalf of the principal. Good records are essential to protecting the principal's interest and to protecting the agent against accusations of acting improperly.

Conclusion
In summation: (1) keep in mind you are acting on behalf of another person's best interest; (2) disclose the agency relationship in all signatures on behalf of the principal; and (3) keep complete records so there can be no question about what you did as attorney-in-fact or why.