Florida Estate Planning Lawyer Blog

June 8, 2009

Who can be a Personal Representative?

In Florida who can be a personal representative, or executor, of an estate?

1. The personal representative could be an individual, bank, or trust company, subject to certain restrictions.

2. An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative.

3. A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.

The preference of who will be appointed as the Personal representative is determined first by who is nominated in a will left by the decedent and if there is not a valid will appointing someone who wishes to serve then the surviving spouse has preference with the second preference going to the person selected by a majority in interest of the heirs.

June 7, 2009

What happens if there is no will?

by David M. Goldman

In aFlorida Probate, where the decedent did not have a will, Florida’s intestate laws of succession define how property will be distributed between the person’s family members.

If there was a surviving spouse and no lineal descendants the spouse will receive everything in the decedent’s estate.

If there is no spouse but there are lineal descendants (children) then the estate is split equally between all surviving children. If a child predeceased their parent and had children of their own, that child’s share will be equally divided between his or her children (the decedent’s grandchildren). If the child that did not survive the parent did not have children, that child’s share will go to his or her siblings equally.

June 6, 2009

What Asset are subject to Florida probate

by David M. Goldman

In Florida, Probate assets are those items in the decedent’s name at death which contain no provision for automatic succession of ownership at death like those that are jointly owned or have a payable on death designation. For example:

1. bank accounts that is not a joint account, one held in trust for another, or those without a beneficiary,

2 real estate in the individuals sole name unless it is a homestead property and the decedent is survived by a spouse or children’

3 property owned by the decedent and spouse becomes subject to probate upon the death of the surviving spouse (subject to surviving descendants in the case of a homestead),

June 5, 2009

Obtaining a Copy of a WIll in Florida Before a Probate is Filed

by David M. Goldman

In Florida, the custodian of a will is required to file the will with the court having jurisdiction over the decedent within 10 day of learning that the testator is dead. As Florida Probate Lawyers we often have clients who are wanting to see a family members will but are not provided with one. Although you may not have a right to get one from the custodian, you can require them to file it in the court and then obtain a copy with the court.

If the custodian refuses or delays in filing the testator’s will timely (within 10 days) you may file an action to require compliance with the Florida Statutes. In such a case, you are entitled to be reimbursed all costs, damages, and a reasonable attorney’s fees.

We often send demand letters for our clients requesting the will to be deposited with the court prior to filing actions on their behalf. If you would like to learn more about this and how you can obtain a Florida Will Contact a Florida Probate Attorney to discuss your situation.

June 3, 2009

Probate Intake form

by David M. Goldman

When deciding on a Florida Probate it is important to gather as much information as possible. We have developed a Florida Probate Intake Form. which helps individuals and their families involved in a Florida Probate gather and organize the information. Feel Free to download the Florida Probate Intake Form.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

June 3, 2009

Is Your Child Trust-Worthy?

by David M. Goldman

The Wall Street Journal has an article on Deciding if Your Kid is Trust-Worthy where they discuss using trust like a Florida Estate Planning Lawyer would use to protect your families assets.

Part of the article is devoted to helping you determine if your child or your children are the best ones to manage your finances or Florida Revocable Trust in the even you become incapacitated or die. These are areas you should discuss your your Florida Estate Planning Lawyer in an effort to determine how best to structure a Florida Revocable Trust.

May 28, 2009

Nursing Home Residents May Keep $250 Stimulus Payment

by David M. Goldman

Most people who receive payments for Social Security, Social Security Disability Insurance (SSDI), Supplemental Security Income (SSI), or a Railroad Retirement or Veterans Administration disability pension, will receive $250 as part of the American Recovery and Reinvestment Act of 2009. The extra payment is scheduled to arrive by the end of May.

Those who live in a nursing home and receive SSI are not eligible for the payment.

Medicaid-eligible long-term care facility residents and their families should know that the stimulus payment is not considered income and will not be counted as a resource for 10 months (including the month of receipt) in calculating benefits under Medicaid (or any other federal program or state program with some federal financing). The $250 will also not count as gross income for tax purposes. Recipients can save the payment if they want to, but they should make sure that it will not put their savings over the asset limit for any program benefits they may receive as of February 2010.

May 28, 2009

Tenants in Common without Right to partition and Valuation Discount

by David M. Goldman

When you own Florida property as Tenants in Common, each owner has a right to enter and use the entire property. Often one owner wants to sell their interest while another may not. This can lead to an action for partition where a court will order the property to be sold.

If the owners have an agreement that binds them and the future owners of the property from using a partition to break up or sell the property, the property will and owners will be protected from loosing their rights to use and access the property.

One additional advantage is that these agreements often reduce the value of one’s interest in the property because of the restriction on the ability to partition the property.

May 27, 2009

Florida wills and property in Puerto Rico

by David M. Goldman

Recently we ran across a situation where an individual in Puerto Rico died with a Florida Will . PR has some unique laws dealing with property and who will receive it under Puerto Rico’s laws that can make a Florida Will or will created in another state invalid or ineffective for transferring property. If you live in PR or have property in PR you should have a lawyer in PR review your estate planning documents to make sure your intentions are carried out.

May 26, 2009

Lady Bird Deeds and stepped up basis (Florida Enhanced Life Estate Deeds)

by David M. Goldman

One of the most common questions people ask about Florida Lady Bird Deeds (Florida Enhanced Life Estate Deeds) is whether upon the death of the grantor, the contingent beneficiaries receive a stepped up basis like they would receive if the property was to transfer under a will.

Under Section 2036 of the IRS code, the life estate portion of the Lady Bird Deed causes inclusion in the estate of the decedent. Because of the taxable inclusion in the state there is stepped up basis under the Internal Revenue Code. It is possible that this section of the code might be changed at some time in the future and you should verify this with your tax professional.