In Florida many parents create Life Estate Deeds with their children in an attempt to avoid Probate on their homes. A Florida Life Estate Deed is a document which changes the ownership of a home or other piece of real estate. Essentially it creates a present interest and a future interest. A traditional life estate would say something like this, " I give my self and my spouse the right to live in the home as long as either of us shall live and the remainder to my child or children."
This example would create a future interest that vests now in the child or children and a present interest or right to use the home for the parents or grantor. While there are many potential problems like loss of tax basis, penalties and interest for failure to do gift tax returns, loss of eligibility for nursing home coverage because of the gift, the issue we are concerned about here is the risk that the home could be lost to the creditor of the child or one of the children.
Here is how it works. If the child or children do no live in the parents home, it is not their homestead, even if they do live in the home, it cannot be their homestead because they do not have a present interest in the home. Remember the child or children only have a future interest in the home. A creditor can levy against that asset just like any other. There are tables that determine the value of a future interest based on the age of the parents, their life expectancy, and the current interest rates.
So besides all the other risks associated with transferring a portion of your home to a child, you may in fact transfer nothing to your child if they end up having a creditor take the child's portion of the home.
There are ways of avoiding probate, reducing risks of loss to creditors, and receiving favorable tax status that may work in your situation but you should discuss these with a Florida Estate Planning Lawyer to see which options offer the best combination of benefits for your situation.
Last week there were several articles which brought light to many that our online identities are just licenses which will expire upon out death. While this concept is new to some, most lawyers understand this. Unfortunately there appear to be some who do not understand that we are dealing with licenses which expire upon death, because they are recommending that their clients deal with these assets using a traditional will. While they understand that a will only deals with assets that exist after death, they probably do not understand that your iTunes , Amazon , Gmail, Facebook, and Twitter accounts are licenses, which if owned individually, will not survive the death of the creator.
A Trust or Business entity can survive death! They are fictitious entities which are created by state statutes which do not have to dissolve upon death. A trust generally has provisions for beneficiaries unlike a business entity.
Last weekend the Wall Street Journal and several other publications ran articles on Who inherits your iTunes account?
Over the weekend there were several stories in the UK and Australia about Bruce Willis and his massive iTunes account with 80,000 or so songs. Today it is being reported that Bruce has no plans on suing Apple Computer over his iTunes account.
While your Amazon and iTunes accounts may be the most popular and have the most perceived value to people, it is often their other accounts that make more sense to try to protect in a DAPTrust.
If your mortgage goes to your email account and you die or become incapacitated, who will know who or how much to pay? Will they know soon enough to save your home from foreclosure, or will you incur thousands of dollars in legal fees because you signed up for electronic billing?
Will your family have the right to access your digital photos? Can you family realize value in your Facebook, or Twitter accounts to contact your "Friends" on your behalf to let them know of your illness, condition, or passing? Could your family benefit financially by allowing others to contact your "Friends" who may be aligned similarly in business?
While the iTunes angle is appealing, the other reasons are the real reasons one should plan to deal with his or her Digital Assets. Ensuring that you children can listen to your older outdated music is a nice thought, but can you remember the last time you pulled out one of your parents records or tapes to listen to it.
If you are interested in planning for your Digital Assets you might consider talking with an estate planning professional about a Digital Asset Trust - DAPTrust.com
Florida is a rather unique state in rights associated with homestead exemptions from forced sale. In a nutshell, it is nearly impossible for creditors to force the sale of a homestead (a situation famously highlighted by OJ Simpson, who purchased a large estate in Florida in part to avoid creditors).
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. While this rule often plays a positive role for families of decedents, certain cases show potential perils. Those cases primarily involve "blended families"; i.e., situations where a person late in life remarries. Florida's homestead exemption seems to presume that the surviving spouse will also be a biological parent of the surviving children, but that is not always the case. Blended families can be a lightening rod of litigation, as highlighted by the case of Aronson-v-Aronson.pdf.
This case is the third time the parties have been in the appellate court. These parties have been fighting for over a decade. Here's the story: a Mr. Aronson died after creating a revocable trust. Under the terms of the trust, his wife Doreen would take a life estate in the Key Biscayne condo the two of them shared. After that, the condo would go to Mr. Aronson's sons. However, in the time between creating the trust and dying, Mr. Aronson deeded the same condo directly to Doreen.
This created some problems, as there were basically two conflicting deeds. The first time through litigation, the court held that once deeded to a revocable trust, the individual could no longer validly deed the property to anyone else. The court then reconsidered, and completely reversed itself. Instead, under the new rule, the condo was not ever a valid trust asset because it was an invalid devise of homestead property. Basically, the moment Mr. Aronson died, his homestead transferred to his wife as a life estate, and thereafter to his surviving sons (so, basically, the law coincided with the terms of the trust anyway).
If this sounds confusing, don't worry. It took ten years of litigation to figure all this out, and that involved a Florida Appeals Court having to reverse itself before getting the law right. Although this is confusing, much of the litigation in Aronson could have been avoided had Mr. Aronson used a qualified attorney to help him with his estate planning. Still, do not forget the endless array of possibilities that may arise in blended family situations.
Finally, it's worth noting that some of the law in this area changed in 2010 (many years after Aronson's litigation began). Now, instead of automatically taking a life estate, a surviving spouse has six months to opt out of the life estate and take a 50% share as a tenant in common of the homestead property. This option may be more beneficial for certain parties, and anyone in this situation should consider talking to an estate planning attorney for advice.
If you are in a similar situation, or if you have any estate planning questions, contact a Jacksonville Estate Planning Lawyer at Law Office of David M. Goldman PLLC.
Will caveats: one more reason why hiring an attorney is a good idea for estate planning. Will caveats are, basically, objections to a will. For example, let's say Father dies, leaving his entire estate to his niece. That is awfully nice of him, but it probably won't make his two children happy. Taking it a step further, let's say Father had dementia when he died. Niece had moved in with him claiming she was going to take care of him, but the circumstances suggest she was just trying to dig for a little bit of gold from his estate. Now that Father has died, it looks like Niece's plan has worked. What are Father's children's options?
They can bring a will caveat action, effectively putting the will's probate on hold until the issues are resolved. Essentially, a caveat allows the interested party the ability to present evidence that something about the will makes it legally inoperable, and once a caveat is filed, the interested party must be allowed to present the evidence.
This was highlighted in a recent case, Rocca v. Boyansky, in which the court held that a party who made several late filings in court was nevertheless entitled to an evidentiary hearing before the will went to probate.
In Rocca, Mr. Rocca filed a caveat and was told he needed to respond 20 days after a certain date. He did not respond by that time, and the court granted him more time. He still didn't respond to the new date, but instead filed a motion about a week after the deadline had passed. The court, obviously frustrated, went ahead and brought the will to probate, concluding that Mr. Rocca had conceded his argument by failing to timely respond when twice asked to do so.
Fortunately for Mr. Rocca, the appellate court disagreed with the trial court. Instead of being a statute mandating certain time requirements, the statute governing caveats is not a statute of limitations. It is a statute that requires a hearing. The lower court was frustrated with Mr. Rocca, and rightfully so. He had delayed the court twice. Courts are busy, and it is never a good idea to do anything that would upset them. Yet, here was Mr. Rocca, doing probably the one thing that upsets courts most: making them reschedule. Nevertheless, the statute requires the court to reschedule in such a situation. The party filing the caveat has the right to a hearing.
At the end of the day, Mr. Rocca was able to present his evidence. But it should be noted that this case has been through litigation for several years, and it is unclear when it will stop. Had the decedent used an attorney when making his will, the caveat likely would not have been filed because the will would have been properly executed. It is very important that you contact an estate planning lawyer before taking any actions. Whether it's creating a will or challenging one in probate, a qualified attorney can help you get through the process.
Serving as a personal representative to an estate comes with many rights and obligations (see Chapter 733 of the Florida Statutes). One of those duties, for example, involves contacting creditors of the deceased person and letting those creditors know of the death. Those creditors then have a period of time to file a claim to be paid. Whether or not they are ever paid depends upon a variety of factors, largely dependent upon the estate actually having money to pay them.
The personal representative's job can be somewhat difficult in notifying the creditors. Credit card loans and mortgage debts, for example, are pretty obvious: the bills probably come directly to the deceased person's home. The personal representative generally would not have a difficult time in figuring out whom to contact to let the lender know of the death.
Some lenders, however, are not so easy to find. This is an important distinction. If a lender is relatively easy to find, it is considered a "reasonably ascertainable" creditor and has two years after the estate's "notice of creditors" is published in order to file its claim. But, if the creditor is not "reasonably ascertainable," it has only three months to file its claim. In other words, if you're a creditor, you have some interest in being dubbed not "reasonably ascertainable," as it gives you more time to file your claim.
But whose job is it to define your status? Well, according to Florida's Second District Court of Appeals, the creditor essentially has the burden of proof. In Lubee v. Adams, a personal representative contacted several creditors to inform them of the death of a debtor. The personal representative did not contact Mr. Lubee. Mr. Lubee did not file a claim until about a year later, claiming he was a "reasonably ascertainable" creditor and the failure to receive notice of death meant he could file his claim any time within the two-year window afforded to other reasonably ascertainable creditors.
The personal representative had not identified Mr. Lubee as a "reasonably ascertainable" creditor; therefore, according to the court, Mr. Lubee had two options. Option A: Mr. Lubee could file his claim within the three-month window afforded to all creditors. Option B: Mr. Lubee could file for an extension of time within that two-year window. Option B would essentially provide Mr. Lubee with status as a "reasonably ascertainable" creditor, but the burden would be on Mr. Lubee to prove that status.
Mr. Lubee unfortunately did not choose either option, but instead simply tried to file a claim. Since the three months had passed, his claim was barred. Instead, he should have filed for an extension of time. While this would have required him to prove he was a "reasonably ascertainable" creditor, doing so would have been more beneficial than simply trying to file a claim that was destined to be thrown out.
Creditor's rights in probate proceedings can be complicated, as Mr. Lubee's case highlights. As always, a Jacksonville Probate Litigation Attorney can help answer any questions you have regarding probate procedures.
At face value, "tortious interference" occurs when someone interferes with some sort of expectation to a level that prompts judicial involvement. It often occurs in a business context, referred to as "tortious interference of business expectations," and typically involves a defendant who has interfered with another party's contract expectations.
A relatively new form of tortious interference has emerged in the realm of family law, dubbed "tortious interference with an expected inheritance," and its name gives away the focus of the claim. Of course, like many tort claims, tortious interference with an expected inheritance involves five elements, each of which must be proven before a plaintiff can recover anything. The five elements are:
- The existence of an expectance on the plaintiff's part involving the inheritance,
- The defendant's intentional interference with that expectancy,
- Involvement of tortious conduct, such as fraud, duress, or undue influence, in the defendant's interference,
- Reasonable certainty that but for the defendant's interference the plaintiff's expectancy would have been realized, and
The sisters were able to show the first four elements. They had a reasonable expectation that they would receive some inheritance from their father, and they could even show that their stepmother deprived them of that. But they did not prove damages. They had three witnesses, none of whom could offer a reasonable estimate on the value of the estate the sisters were to receive at the time of their father's death. In other words, each witness could offer some vague generalization of the value of the estate, but none of them could peg down a more specific value of the estate at the time it was actually due to the sisters.
The court found this insufficient to establish the "reasonable certainty" threshold of the fifth necessary element. Reasonable necessity must be "sufficiently certain for a reviewing court to perform its review obligation," and the generalized testimony of three witnesses did not meet this standard.
You might be wondering how nobody at court was able to figure out the value of the man's estate. Well, the estate was in control of the stepmother, who was unsurprisingly difficult to deal with when her daughters came to sue her. She apparently prevented the sisters from proving their damages by refusing to provide (as required by discovery rules) certain accounting documents that would show the amount of damages.
The sisters of course brought this argument to the court's attention. The court replied, however, that there were other methods by which the sisters could have obtained the documents. Alternatively, the sisters could have called in expert witnesses (instead of laypersons and speculation) who could testify to the value of the estate. The sisters did none of these things, and paid dearly for it.
This is perhaps the most important point to take away from this case: you must be able to prove your damages. Don't rely on someone else to do it. Don't rely on speculation. Proving damages may be difficult. Other parties may not cooperate. Nevertheless, the burden is on the plaintiff to prove them.
As an aside, this case brings up another point that plaintiffs in similar positions must consider; that is, the difficulty that will surely arise when suing a family member. The estate in this case was apparently valued around several million dollars, which may have convinced the sisters that a lasting relationship with their stepmother was not very valuable. But the fact remains that their family is likely seriously shaken by the legal process they just went through. Family members will take sides and things will get ugly. Facing such a scenario is not something a person should go through alone, and a Florida Estate Planning Lawyer can help with any questions you might have.
In Florida a Will does more than you may at first realize. Florida Wills are not just for leaving specific items to specific people. The main function of a Florida will is to provide for the distribution of property owned by you at the time of your death in whatever manner you choose.
Wills take on various degrees of complexity and can be used to achieve a wide range of financial and family objectives. If a will provides for the outright distribution of assets, it is sometimes characterized as a simple will. Wills can also establish one or more trusts to help manage the assets after you are gone. A will in Florida may also leave assets to a trust that was created while you were alive (known as an inter vivos trust), in which case it is called a Florida pour over will. In either case, the purpose of the trust arrangement is often to ensure continued property management and creditor protection for the surviving family members, to provide for charities, and to minimize taxes.
Aside from providing for the intended disposition of your property., there are a number of other important objectives that may be accomplished in a Florida will.
• A will allows you to designate a guardian for your minor children if you survive the other parent so that the state does not decide who will raise the child. • A will lets you designate who will inherit which of your assets. • A will lets you specify when your children will receive what and under what conditions. Otherwise, a teenager could end up receiving his entire inheritance before he's mature enough to handle the responsibility. • It lets you name a Personal Representative of your estate and can allow you to save money by waiving the probate bond or PR fees, which will otherwise be required. • It can permit a business to continue operating. • It can save you some money in taxes.
While a will in Florida can help with many things, it does not do everything. For instance, a will does not govern the transfer of certain types of assets, called non-probate property, which will automatically pass to someone else upon your death. For example, real estate and other assets owned with rights of survivorship or with enhanced life estate deeds pass automatically to the surviving owner(s) or named beneficiary. Likewise, an IRA or insurance policy payable to a named beneficiary passes outside the will. While a Florida homestead also passes outside a will, often a probate is necessary to clear the title.
A trust can do almost everything a will can but has additional flexibility and can help in the case you become incapacitate. A Will in Florida will have no effect on assets if you become incapacitated.
If you have other questions about wills or trusts in Florida contact a Florida Estate Planning Lawyer at the Law Office of David M. Goldman PLLC today at (904) 685-1200.
The Wall Street Journal ran an interesting article this weekend examining the extent to which gift givers can exert control over their heirs once they are dead and gone. The article reveals several things that might surprise you given the scope of control that can be included in the language of Florida trusts and Florida wills.
The Journal explained that the issue is of special importance given the unusually favorable estate and gift tax rules that are set to soon expire. Currently, the exemption is $5.12 million per person, and twice that for a couple. The top tax rate applied to amounts beyond that number comes in at 35%. Not for long, the article warns, as the current exemption is scheduled to drop to $1 million and the top tax rate will jump to 55% come January 1, 2012. Given the state of affairs, expert recommend acting now, especially when it comes to giving gifts, as such moves made now can be grandfathered in if the law later becomes less favorable in the future.
There are limits to what a person can do when laying out their estate plan and one example includes provisions that are contrary to public policy. This includes requirements that promote divorce or demand criminal conduct and has been expanded to include racial discrimination. Provisions that discourage marriage have also historically be deemed unacceptable as well as any that are ambiguous, illegal or essentially impossible to implement. Religious restrictions are usually OK, like those leaving money to pay for a religious education, though they can, at times, be viewed with more suspicion.
While it may not be permissible to require marriage to a person with a specific religious background to keep inheritance, extra money if that occurs would seen not to violate public policy. One takes something away and one gives something extra. It is important to make sure your requests are properly worded as to not violate public policy.
When setting up a trust or messing with a will, there are some important things to consider. First, the devil is in the details. Make sure you clearly spell out who is to be included. For instance, consider carefully what you mean when you say "spouse" and come to a decision about whether that can include same-sex partners. Descendants can also be a tricky issue: adopted kids, stepchildren, children from a surrogate and even those conceived from frozen sperm. Though the examples sound wild, they certainly aren't unheard of. You have no way of knowing what shape your family will take in years to come and it's best to cover all your bases.
One tool for watching over future generations that the Journal discusses is what is known as an "incentive provision." Such provisions are meant to promote your descendant's productivity by doing things like matching their income (to encourage working and not laying around) or providing money to get a new business off the ground. Gift givers have to think about the goals they have for their family and if certain gift strategies would help achieve their ends. Giving money to stay-at-home moms may help strengthen a family, but it's important to realize how hard it is to think through every eventuality.
Another way of maintaining control once you're gone is to set up an "heirloom asset" trust. These are designed to protect important family assets, such as a house that has been in the family for generations. Experts recommend that the trust be given enough money so that heirs don't have to fight over who pays for maintaining the old homestead.
Not every kind of activity can be effectively governed from beyond the grave. Experts caution about inserting a requirement to test heirs for drugs, because it can be hard to find a trustee willing to undertake this intrusive supervision.
If you have other questions about estate planning or creating a will or a trust, please contact the Law Office of David M. Goldman PLLC to talk with a Florida Estate Planning Lawyer today at (904) 685-1200.
For more on the Journal's article see "How to Control Your Heirs From the Grave," by Laura Saunders, published at WSJ.com.
As a Jacksonville Estate Planning and Elder Law Lawyer, not much comes as a surprise anymore, not even the few requests for un-burying the deceased. It may sound like a B rated movie, but the reasoning behind the requests I have received are heartfelt and compelling.
One family wanted to remove their beloved father from a nondescript cemetery to a Veterans cemetery. One family wants to bring their grandfather (who was married to their grandmother for 50 years) home to the family plot, where their beloved grandmother lies in wait for him. The reasons are varied, but most meaningful to the families making the requests.
Florida disinterment is governed by Florida Statutes Chapter 497, Funeral, Cemetery and Consumer Services. The statute prescribes the authorization, notification, and other procedures that must be followed to enable one to disinter a family member. The process of Florida Disinterment is further governed by the Florida Department of Financial Services, Board of Funeral and Cemetery Services, found in the Florida Administrative Code, Chapter 69K.
There are several criteria that must be addressed before a cemetery will perform a disinterment (exhume, digging up or removing from a grave or tomb). The presence of a licensed funeral director is required (unless the re-interment is to be made in the same cemetery).
There are several permits and written authorization releases that are also mandated. An authorization must be signed by the individuals who, at the time of disinterment, would be permitted to authorize the burial of the decedent. Also required, is a written release from the individual(s) who currently own the burial (interment) rights for the burial space from which the disinterment of the decedent it to take place.
Unless a cemetery is provided with all the proper documentation, they shall not perform the disinterment unless and until such time as they receive a court order instructing them to do so.
If you have any questions about a Florida Disinterment, contact a Jacksonville Estate Planning Lawyer, who has researched the issue and who has gone through the process of disinterment.
If you have more than 1 million dollars or 2 million dollars of January 2013, you may find that part of your estate will be subject to an estate tax of 55% and in some states subject to additional estate taxes and or inheritance taxes. (Florida does not have either state tax).
Many estate plans have been written with formulas that remove a portion of the assets when the first spouse dies. Those formulas are often based on the current federal estate tax exemption. They either pass the amount of the exemption to the spouse, and remove the excess or remove the amount of the exemption and give the rest to the spouse.
In 2010, these formulas were often broken because there was no estate tax. One family who had sold their stores to Best Buy a few years before was affected by this issue.
The lawyers scrambled to try to fix it at the last-minute but someone failed to comply with the requirements of witnesses and a notary for the modification to be valid. The surviving spouse would have lost the entire estate to the children because of the way the formula worked out.
This type of mistake can make a huge difference in the estate planning outcome and as a result we should each have our estate plan reviewed on a regular basis. Over the past few years there has been less need for life insurance trusts to stop the value of the insurance from being included in one's estate. With 2013 changes, irrevocable life insurance trusts will become more important than they have been in many years.
While life insurance is generally not subject to income tax, it value is added back into one's estate for estate tax purposes. This means that for many of us who have life insurance, it could be subject to a 55% tax and not provide as much to our family as we would like.
An ILIT or irrevocable life insurance trust can remove the life insurance from your estate so that it is neither subject to estate tax nor income tax.
On a regular basis we handle probate cases for families where the decedent tried to make their own will or tried to modify it themselves. Below is an example of a will that was created from a form or copied from someone else. While the will was validly signed as required in Florida and created a valid will, the person forgot to dispose of all of their property. It appears that of the provisions made, the person wanted to take care of their spouse first, then distribute $100 to one child and everything else to the other child.
Unfortunately the biggest asset in the estate, the decedent's home was not devised in the will and thus would pass under the state's intestate statutes. This will give the child that was to be disinherited 1/2 of the homestead.
Click to see a copy of theBad Florida Will
- Asset Protection - Nursing home costs in Florida can be outrageously expensive. Make sure that you really feel comfortable authorizing your agent to protect your assets from those costs. If you do, the agent may need to transfer ownership of certain assets to your spouse or children. Such authority must be clearly laid out in the power of attorney, and standard forms typically do not include this provision. Special powers need to be included to make these types of transactions.
- Health Care Issues - A health care power of attorney can allow your agent to make all kinds of health and personal care decisions for you whenever you are incapacitated. You can include instructions not only regarding end-of-life care, but also other situations that may arise. With a power of attorney your agent will be able to act for you even if you are not terminally ill or permanently unconscious. It is a good idea to give your agents some indication as to what your preferences are for daily activities. Without such instructions, you may not be doing what you want to do or participating in activities that you would prefer not to.
Your agent should be someone who understands your values and who will be willing to advocate for your wishes in whatever situation may arise. Your agent can review the circumstances, consult with the health care providers, consider the prognosis, and then apply your wishes as set forth in the document when making decisions.
Given the importance of such a document, it's critical that you discuss your views on health care decisions with your agent and other loved ones. No document can anticipate the exact health circumstances that will arise in your future. Your family may have to make difficult decisions in ambiguous circumstances. Help them by talking with them now about your philosophy of life and death.
- Preventing Abuse - In the wrong hands, a power of attorney can be an excellent way to engage in financial abuse. The danger of abuse is especially great when the document includes the authorization to make transfers of your assets or to make changes to beneficiary designations. The best protection from such abuse is to choose someone as an agent who is completely trustworthy and will follow your wishes. But protective provisions can also be incorporated into your power of attorney. These include: 1) naming joint agents, 2) requiring approval by third parties for certain actions, such as transfers of assets, 3) limiting the persons to whom transfers can be made, and 4) requiring the agent to file regular accounts with third parties.
- Successor Agents - Just as you may someday be unable to make financial and health-care decisions, there is always a possibility that the person you choose as your agent may become unavailable to serve their role. Make sure you deal with this possibility by appointing more than one agent, either jointly or as a successor. Also, consider giving your agent the power to appoint a successor.