October 21, 2013

How to Remove the Personal Representative of an Estate in Florida

One or more of the persons interested in the decedent's estate usually are unhappy with the personal representative (PR). Some have valid reasons, but others are influenced by sentiments of jealousy or by past rivalry. If you are unhappy with the PR of an estate in which you have an interest, you might be entitled to request the court to remove him or her. However, you must allege at least one of the below discussed causes to remove the PR of an estate. Animosity between you and the PR does not suffice to remove him or her from the appointment.

Causes to Remove the Personal Representative of an Estate

The Probate Code states the causes to remove the PR. Any interested person in the decedent's estate can request the court to remove the PR if one of the following circumstances arise:

  1. A court enters judgment declaring the PR incapacitated.
  2. The PR suffers a mental or physical incapacity that renders him incapable of the discharge of his or her duties.
  3. The PR fails to comply with any order of the court, unless the order has been superseded by an appeal.
  4. The PR fails to account for the sale of property, or to produce and exhibit the assets of the estate when he or she is required to do so.
  5. The PR wastes or fails to properly administer the estate.
  6. The PR fails to give bond or security for any purpose.
  7. The PR is convicted of a felony.
  8. In the case of a corporate PR, the corporation lacks financial resources.
  9. The PR has an adverse interest against the estate that will or may interfere with the administration of the estate. However, this does not apply if the PR is decedent's surviving spouse and he or she is seeking to exercise his or her right to the elective share, family allowance, or an exemption.
  10. The Probate Court revokes the decedent's will designating the appointment of the PR.
  11. The PR no longer has a domicile in the State of Florida and domicile in Florida was a requirement of the initial appointment.
  12. The PR would not now be entitled to appointment.
Procedure to Remove the Personal Representative of an Estate

A proceeding to remove the PR may be initiated by the court, or after an interested person in the decedent's estate files a petition requesting the court to remove him or her. If you are an interested person seeking to remove the PR and alleging one of the abovementioned causes to remove him or her, then you must file a petition for removal in the probate court administering the decedent's estate. The court will remove the authority of the PR to act on behalf of the decedent if it grants the petition for removal. Also, the removal of the PR does not exonerate him or her from any liability. It is wise to contact an estate attorney for assistance with this issue. For an estate attorney in Florida, contact the Law Office of David M. Goldman PLLC at (904) 685 - 1200.

October 20, 2013

How to Object to the Appointment of the Personal Representative of an Estate in Florida

A family member or someone you care for has just passed away and you have been served with a copy of the notice of administration of his or her estate. The copy should include the name and address of the preferred or nominated personal representative (PR) of the decedent's estate.1 If you disagree with the qualifications of the PR , then you can object to the appointment.2 However, you must do so within the three months after the date of service.3 Below, you will find the available grounds for objecting to the appointment of the PR.

NON-STATUTORY GROUNDS

Intestate Estate
A decedent has an intestate estate in Florida if he or she does not have a valid will when he or she dies. The appointment of the PR for an intestate estate is a discretionary act of the probate court and is regulated by section 733.301 of the Probate Code. This section states that the probate court must follow the following order of preference when appointing a PR in an intestate estate:

A. Surviving spouse;
B. Person selected by the majority of the beneficiaries;
C. The heir nearest in degree. If more than one applies, the court may select the one best qualified.
Someone with preference to be appointed as the PR of the intestate estate does not have an absolute right to be appointed. The court will not appoint the preferred PR if he or she is not qualified by character, ability, or experience to serve as the estate fiduciary.4 Therefore, you must show that the preferred PR is not qualified to perform his or her duties under the decedent's estate to prevent his or her appointment.

Testate Estate
A decedent has a testate estate in Florida if he or she has a valid will when he or she dies. In a testate estate, the decedent nominates the PR of his or her estate in the will and the court will afford great deference to the selection. The court has the discretion to refuse to appoint the PR nominated in the will. However, the court will only exercise this discretion in "exceptional circumstances." Courts have broad discretion in refusing to appoint the selected PR on non-statutory grounds. If you successfully allege hat one of the below circumstances has taken place, then the court will not appoint the nominated PR.
  1. Unforeseen circumstances arise, which clearly would affect the decedent's decision and decedent had no reasonable opportunity prior to his or her death to change the will.
  2. There are facts at the time of the appointment that would support removal of the PR after he or she has been appointed.
  3. The court concludes that the selected representative does not have the qualities and characteristics necessary to properly perform the duties of an administrator.
  4. There is a dispute between the PR of the estate and one of the beneficiaries that will cause unnecessary litigation and impede the administration of the estate. The court would consider the totality of the circumstances to make a determination.

STATUTORY GROUNDS
  1. If you successfully allege one of the below mentioned statutory grounds, which prevent the appointment of the PR, then the court will not appoint him or her.
  2. Fla. Stat. § 733.303: PR has been convicted of a felony, is mentally or physically unable to perform the duties, or is under the age of eighteen years.
  3. Fla. Stat. § 733.304: PR is a nonresident of Florida and he or she is not a legally adopted child or adoptive parent of the decedent; related by lineal consanguinity to the decedent; a spouse or a brother, sister, uncle, aunt, nephew, or niece of the decedent or someone related by lineal consanguinity to any such person; or the spouse of a person otherwise qualified under this section.
  4. Fla. Stat. § 733.307: The PR of the estate of a deceased PR is not authorized to administer the estate of the first decedent. On the death of a sole or surviving PR, the court shall appoint a successor PR to complete the administration of the estate.
CONTACT THE Law Office of David M. Goldman PLLC

If you have been served with a copy of a notice of administration of someone's estate and desire to object to the appointment of the PR, then you should strongly consider hiring an estate attorney to assist you with this issue. For an estate attorney in Florida, contact the Law Office of David M. Goldman PLLC at (904) 685 - 1200.

October 19, 2013

How to Create a Living Will in Florida

Life is full of instances where taking a decision seems to be extremely challenging. The task is even more difficult if the decision concerns the medical treatment for a loved one that is incapable of deciding for him or her self. Deciding health care matters for patients that cannot do so is emotionally wrenching for families and represents an ethical dilemma for physicians. This difficult scenario is better illustrated with the Terri Schiavo case.

Terry Schiavo Sad Case.

Ms. Schiavo was sustained by artificial hydration and nutrition through a feeding tube for 15 years after suffering a cardiac arrest, triggered by extreme hypokalemia caused by an eating disorder. Ms. Schiavo's husband, Michael Schiavo, faced a public legal struggle with his wife's parents and siblings about whether Ms. Schiavo's life-sustaining medical treatment should be continued or stopped. Mr. Schiavo and the two neurologists that he selected to testify in court stood for the position that Ms. Schiavo's condition met the criteria for a persistent vegetative state and believed that her treatment should be stopped. Ms. Schiavo's parents, siblings and the neurologists testifying in court for Ms. Schiavo's estate stood for the position that Ms. Schiavo's condition could improve in the future and believed that treatment should be continued.

After years of legal battle, Mr. Schiavo was able to terminate his wife's life-support treatment. By then, however, his family had been tainted by bitter moments trying to guess Ms. Schiavo's desires regarding life-sustaining medical treatment. This could have been avoided if Ms. Schiavo had left her written wishes about receiving life-support treatment in a living will. With a proper living will, Ms. Schiavo could have decided under which circumstances she desired life-support machinery, and under which ones she did not.

5 Steps to Create an Efficient Living Will


  1. Appoint a health care agent: You appoint someone as your health care agent with a durable power of attorney known as Designation of Health Care Surrogate. Your agent will have the legal authority to make health care decisions for you if you are no longer able to speak for yourself.

  2. Attach a signed HIPAA release form: You must provide your health care provider with a HIPAA release form so that he can discuss your medical information with your agent. It is wise to provide a release form to all of your physicians and insurance carrier.

  3. Draft instructions for health care: Write instructions for your future health care outlining your wishes about life-sustaining medical treatment in the event that you can no longer speak for yourself. Your agent will be directed to implement your written instructions. This will be your living will.

  4. Revise: Your written instructions must be absolutely clear to be enforceable. Moreover, your written instructions must clearly answer the question about life-sustaining care.

  5. Notify your attending physician: Once you draft your living will, it is your responsibility to notify your physician that you have a one. Also, it is important that you discuss your health care desires with your physician. He or she is likely to be the one carrying for you if your instructions become relevant and is more likely to honor requests that have been communicated to him or her directly.

Important Considerations
Often a living will is part of a more complex document which also contains a designation of health care surrogate and a HIPAA release.
You must sign your living will in the presence of two subscribing witnesses. The witnesses cannot be your spouse or your blood relative. If you cannot sign your living will, then one of the witnesses must subscribe your signature in your presence and at your direction. While you are not required to seek legal advice to prepare a living will, it is a good idea to do so to ensure that the actual instructions for your wishes are stated accurately. For assistance in drafting a living will in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200.

October 16, 2013

How to File a Claim Against Your Agent for Breaching his or her Fiduciary Duties in Florida

An agent is someone you chose to act on your behalf. If an agent acts on your behalf and under the scope of his or her authority, then you will more likely than not be bound to his or her decisions. However, your agent has the fiduciary duty to act with the highest degree of good faith on your behalf. If your agent failed to act under the scope of his or her authority or acted against your best interest, then he or she is liable to you and to your successors in interest.
THE PROCEDURE IN YOUR CLAIM AGAINST YOUR AGENT

1. File a petition in court requesting the judge to terminate your agent's authority, to remove the agent, or to grant an appropriate relief.

2. Show the court that you shared a relationship with your agent where you placed your trust and confidence in him or her; and your agent undertook such trust and assumed a duty to advice, counsel, and/or protect you.

3. Allege that your agent breached one of his or her fiduciary duties.

• Non-mandatory fiduciary duties: You can modify these duties on the document that granted power to your agent to act on your behalf.
i. Duty of loyalty: Your agent must act solely in your interest.
ii. Duty of care: Your agent must perform his or her functions with a high level of competence and thoroughness according to his or her level of skill and expertise
• Mandatory fiduciary duties: These duties are not subject to modification.
i. Duty to act in good faith: Your agent must act in good faith, within the scope of his or her authority, and not contrary to your best interests and expectations as actually known by him or her.
ii. Non-delegation of authority: agent may not delegate authority to a third person to act on your behalf.
iii. Keep records: Your agent must keep detailed records concerning all transactions he or she engages in on your behalf.
iv. Keep your money separated: Your agent must keep his or her money separated from yours. The agent must create and maintain an accurate inventory each time he or she access your income or safe-deposit box.
4. Prove that your agent's breach caused you to suffer damages. For example, if your agent's breach negatively affected one of your properties he or she will be liable for the amount required to restore the value of your property to what it would have been had the violation not occurred. The agent must also reimburse you or your successors in interest for the attorney's fees and costs paid in an action brought against him.

Seek Assistance of an Estate Attorney
Before filing a claim against an agent, it is important to understand the elements of the claim and the available defenses. For example, an agent is not liable if the value of the principal's property declines unless he or she breaches one of his or her fiduciary duties. For an estate attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200.

October 15, 2013

How to Create a Durable Power of Attorney in Florida

In Florida, a Durable Power of Attorney (DPA) is a document that allows you to designate someone to act on your behalf if you ever become incapacitated. The person creating the DPA is known as the "principal" and the person receiving authority to act on your behalf is known as the "agent" or "attorney-in-fact." Depending on the DPA, your agent will have authority to handle your financial transactions or to oversee your medical care.

Steps to Create a DPA

DPA for your finances: With this type of durable power of attorney, you can give a trusted person as much authority over your finances as you like. Your agent can handle simple tasks like sorting through your mail, or more complicated ones like watching over your investments. To create a Financial DPA follow the following steps:

  1. Choose your agent: Your agent must be a natural person who is 18 years of age or older. Your agent can also be a financial institution that has trust powers, has a place of business in the state of Florida, and is authorized to conduct trust business in Florida. Although your agent does not have to be a financial expert, you should trust that he or she has and will use common sense in making decisions that are in your best interest.
  2. Draft the DPA: A DPA must contain the phrase "this durable power of attorney is not terminated by subsequent incapacity of the principal except as provided in chapter 709, Florida Statutes." Otherwise, the document is a power of attorney and the authority granted to your agent to act on your behalf will terminate if you ever become incapacitated. Your DPA must also state how much authority do you grant to your agent to handle your finances, be signed by you and by two subscribing witnesses, and acknowledged by you before a notary public. Lastly, the document must state that your agent can exercise his or her power under the DPA only in the event that you become incapacitated.
DPA for your health: The name of this type of DPA is Designation of Health Care Surrogate (DHCS). To create a DHCS, follow the same steps to create a financial DPA but mention in the document that you grant the authority to your agent to oversee your medical health care in case you ever become incapacitated. Also, you must attach the following documents to your DHCS:
  • HIPAA release form: This form authorizes your health care providers to release your medical information to your agent.
  • Living will: This document allows you to draft instructions to your agent as to how to decide whether or not you will receive life support.
Why Do You Need a DPA Life is unpredictable. A sudden accident or illness can prevent you from being able to manage your financial affairs. Or even worse, it can leave you unable to tell the doctors what kind of medical treatment you desire. If this happens to you and you do not have a DPA, your relatives or loved ones will have to go to court to request a judge to name someone to manage your affairs. This proceeding can be expensive and will create a record available to the public. Moreover, the person selected by the judge might not know your desires and might even act contrary to them.

A DPA prevents this daunting scenario by allowing you to name someone you trust to handle your affairs if you are unable to do so, and allows you to draft instructions to that someone so that he or she can act according to your desires. Your instructions must be clear; therefore, it is wise to call an estate attorney for assistance with this matter. For an estate attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 - 1200.

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.