April 11, 2012

Slayer Statute and Asset Protection in Probate

The Florida Slayer Statute bars a murderer from profiting off the victim's assets. The victim's assets which are subject to a Florida Probate pass as if the murderer had predeceased the victim and other jointly held assets are severed so that the victim and murder each owned 50%.

One problem with the slayer statute is that the effect of the statute does not take place until there is either a criminal or civil conviction. It is possible to make changes to the ownership of the assets prior to a court determination that the slayer statute applies. While there are some safeguards in place to prevent those with knowledge from profiting from these types of transfers, there appears to be certain situations where one could protect the assets prior to such a determination. I have not seen any case-law where this has been challenged and do not know what the outcome would be but like with many asset protection techniques, it can put someone in a better position to negotiate if there are any funds or asset left.

One recent case in South Florida involved a beneficiary of a trust. This individual adopted his girlfriend so that she would be a legal beneficiary of the trust. While it does not appear that these asset would have been subject to a slayer statute claim, it is the type of planning that we are referring to and can create the desired results through creative planning.

If you are involved with a potential probate in which a relative was believed to be responsible for the murder of the decedent, contact a Jacksonville Probate Lawyer to discuss how to structure the assets or what steps can be taken to protect your rights.

April 10, 2012

Inheriting Debt from a Probate

We often get asked questions as a Ponte Vedra Beach Probate Lawyer about inheriting debt. Just as you can inherit property and other assets from a Florida Estate, it is possible to inherit the debt that is associated with the property.

When the debt associated with an asset is worth more than the asset itself, one must decide whether they want the asset or not. Just because you inherit something does not automatically mean you are financially responsible for the debt which is associate with the property.

In Ponte Vedra Beach and around Florida we are finding that homes often are worth less than the amount of debt remaining on the mortgage. Just because you inherit the property does not make you responsible for the debt. You may abandon the property in the Florida Probate or decide not to even probate the property or estate until the item which are upside down are dealt with in legal proceedings such as a Florida Foreclosure Case.

The only way a beneficiary is responsible for the debt is if they were a co-signer on the debt or signed a new document which created a financial responsibility.

If you are dealing with a Florida Probate and there are assets which may not be worth what is owed, you should contact a Ponte Vedra Beach Probate Lawyer to discuss your options.

April 6, 2012

Digital Asset Trusts: To my loving wife I leave my iTunes account


Estate planning is an important event in one's life. The fruits of a life time of hard work, passed down in the hopes that they will serve their next owner well. But in this modern age we live in, online digital assets are frequently left out of the estate planning process.

Much of our the time we spend each day is on the internet. How much of your information and is floating out there on the internet Between Facebook, PayPal, Flickr, twitter, iTunes, email addresses, passwords, user names and passwords, we have a lot of information that is not readily available to others if we should become incapacitated or die. In this age of the internet what happens to all of that personal info when we finally shed our mortal coil and update our Facebook status to dead? Do we want to loose our Facebook account when we die? Once the status is updated to deceased, it cannot be modified, updated, or used for other purposes. It continues to exist, just as you left it, until the asteroid strikes earth, or the apes rise up, or whatever your favorite end of the word scenario is, ends up happening. There may be value to your family or estate in being able to communicate with your previous friends.

To some this is perfectly acceptable. Some Facebook albums just never need to be seen again, for the good of all mankind. The problem arises when there is something worth saving, something worth passing down. The picture of you two on graduation day, wedding photos, that blog about the summer you spent in Europe, or photographic proof of how much more attractive your grandma was at your age. The memories and happiness that these photos will bring your loved ones is immeasurable. There may be things that your family wants to remove or modify. Something that was important to you, which they can now keep close, fondly reflect on, or pass down themselves. The hitch is only you knew your log in info, and your dead, and those close to you can't guess the answer to your asinine password hint question. What is the name of my mother's favorite pet? Seriously.... she lived to a hundred and had 9 cats when she died. How am I supposed to guess that.

The problem of how to handle digital assets is new, but the solution on the other hand is not. The formation of a trust to manage your digital assets can insure that before you pass on, you can form a plan to you give those closest to you the tools to ensure that the virtual you, that online life you build, isn't quarantined in internet limbo, but safely in the care of those you choose.

April 5, 2012

Florida Asset Protection Update

asset-protection-cash.jpgA Florida Asset Protection Lawyer is of most use when you do not have any potential liabilities. When you have a known creditor, you have to be concerned with fraudulent conveyances and fraudulent transfers. Generally if you participate in a fraudulent conveyance or transfer the court can undo a transaction within 4 years of its occurrence.

A Fraudulent Transfer occurs when you transfer an asset to put it outside the reach of a creditor.

A Fraudulent Conveyance occurs when you transfer an asset for less than full value and this causes harm to a potential creditor.

There are many ways of protecting assets as part of an overall Florida Estate Plan but careful consideration must be taken of your present situation and circumstances. Some of the tools used by Florida Asset Protection Lawyers include creating Florida Asset Protection Trusts, Domestic asset protection trusts, limited liability companies, limited partnerships, Florida LLLPs, and different forms of ownership.

In addition to how the assets are structured there can be different ways in which you spend "at risk" money and save money that is not at risk. If you would like to learn more about Florida Asset Protection, contact us to discuss your circumstances and objectives with a Florida Asset Protection Lawyer.

Note: Asset Protection is a complex practice area and as such we do not offer free consultations in this area. A typical consultation takes 2 or more hours.

March 30, 2012

Florida Makes Power of Attorney Documents More Dangerous

With the recent changes to the Florida Statutes, it is even more dangerous to use Powers of Attorney documents created by online systems or found in forms books. Not only is there a big risk that they will not comply with the new Florida laws and be worthless, but if they are valid, you run a big risk of handing someone a blank check. YES that is what many are calling the powers contained in the new Florida Durable Powers of Attorney act.

While those using a POA are supposed to act in a fiduciary capacity, when they do not, someone has to complain about it or nothing will be done. While under Florida's Elder Law abuse statutes, anyone may complain about the actions of another who is over the age of 55, those under 55 who grant powers of attorney have little recourse when their power of attorney is abused without their knowledge.

More Jacksonville Estate Planning Lawyers are creating systems to accomplish the springing powers that have recently been stripped from the statutes.

Many are asking who pushed for these new changes. The answer is simple, the banks. It is easier for banks to understand what they have to do with the new documents, it limits lawsuits against banks, but all of this comes with great potential harm to the consumer.

individual already do not understand how to properly structure a Power of Attorney, now many will create invalid powers and potentially incur thousands of dollars of additional legal expenses when they find that they are not valid or do not provide the rights necessary to make gifts, create revocable and irrevocable trusts, or do planning that will enable an individual to preserve their assets instead of spending down their assets to qualify for government benefits. (Currently an individual must spend their assets down to less than $2000 before receiving government benefits.)

Even if they have no assets and can qualify for nursing home coverage, they may have too much income to qualify. Most free or low-cost powers of attorney do not provide the correct language necessary to create income trusts.

Some of the Major changes


  • Agents May not Take Any Actions not Clearly Granted to Them
  • New Springing Powers of Attorney Are No Longer Recognized
  • Certain Delegations of Authority Require the Principal's Initials or Signature
    • Creating an inter vivos trust
    • Amending, modifying, revoking, or terminating an existing trust (additionally, the trust instrument must explicitly authorize the settlor's agent to exercise such authority)
    • Making gifts, subject to statutory limits
    • Creating or changing rights of survivorship
    • Creating or changing a beneficiary designation
    • Waiving the principal's right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
    • Disclaiming property and powers of appointment
  • Some Delegations of Authority are Ineffective (Even With the Principal's Consent)
    • Perform a contract under which the principal was obligated to provide "personal services"
    • Make an affidavit as to the personal knowledge of the plaintiff (in other words, take an oath affirming facts which the principal did or did not know)
    • Vote in a public election on behalf of the principal
    • Execute or revoke a will for the principal
    • Exercise authority granted to the principal in her capacity as trustee or as a court-appointed fiduciary
  • General Language No Longer Sufficient to Revoke Prior Powers of Attorney
  • Co-Agents Can Act Independently on the Principal's Behalf
  • Co-Agents to report wrongdoing or become liable for others actions

If you are looking to create a Florida Power of Attorney you should discuss your goals, objective,and limitations under the new Florida law to make sure you create the documents necessary to be able to provide for yourself and family in the case you become incapacitated at sometime in the future.


March 30, 2012

2012 Tax Planning Seminar

David Adams of David N. Adams, Inc is having a Tax Planning Seminar to discuss the new tax laws which are set to start in 2013. The topics discussed will include information on current and future:

  • Income Tax Rates
  • Capital Gains Tax
  • Tax Strategies
  • Taxation of Dividend Income
  • New Medicare Tax
  • Estate Tax Schedules
He has invited his clients as well as our clients and readers of this blog to attend a Free Dinner at Maggiano's where these topics will be discussed. I will be a guest speaker at the event. If you would like to attend, please contact his office to RSVP.
The event will be 6:30-8:00 pm
Maggiano's Little Italy
St. Johns Town Center
10367 Midtown Parkway
Jacksonville, FL 32246

Seating is limited! Please call 904-339-0015 to reserve your seat today!

This information is not intended to be a substitute for specific individualized tax, legal or investment planning advice as individual situations will vary. Event partially sponsored by SunAmerica Capital Services and Cole Capital Corp., Member FINRA/SIPC.
Securities and investment advisory services offered through SagePoint Financial, Inc, Member FINRA/SIPC and a registered investment advisor. Fixed and/or Traditional Insurance Services Offered through David N. Adams, Inc. which. is not affiliated with SagePoint Financial, Inc. or registered as a broker-dealer or investment advisor. 324 6th Avenue North, Jacksonville Beach, FL 32250

March 29, 2012

How Many Death certificates Do I Need? What are the Differences?

The number of death certificates you will need will vary greatly depending on the amount and number of assets that the person had at the time of death. Most insurance companies, banks, & many creditors will request a death certificate. In addition, you will need a death certificate (short form - one without the cause of death) to open a probate case in Florida. While insurance companies will typically ask for a long version, most other creditors and institutions are ok with a short version. The Probate court will not accept a short version. For this reason it is a good idea to get 3-5 long versions and 5-10 short versions. You can always get more and many companies only need to see a copy of a death certificate.

March 28, 2012

Effects of Splitting Anniuty can be Harsh!

Sometimes clients who are in a divorce are ordered to split up assets. Some of these assets can have large penalties when surrendered. Once such example is an annuity. Often annuities have surrender charges and can also have tax penalties when they are held within an IRA. You might have a high yielding annuity that has a 10% surrender charge as well as a 10% additional tax penalty for removing funds early.

If your incremental income is taxed at 35% and you had to pay a 10 % penalty and 10% surrender charge, you could lose over 50% of the assets value to taxes and penalties. In addition, it may be hard to achieve the returns that many older higher yielding annuities are earning.

If you find yourself in such a situation, you may want to see if you can swap assets so that you can keep the annuity but pay the other party their share of its value without the penalty and tax consequences.

March 27, 2012

IRS Safe Harbor Rates for April 2012

The IRS recently announced safe harbor rates for April 2012. Safe harbor rates are the minimum interest rates that can be used to avoid gift tax treatment that is associated with below market rate loans. The minimum interest rates for April are still very attractive.

0.25% per year for loans for 3 years or less;
1.15 per year for loans greater than 3 years and up to 9 years; and
2.7% per year for loans greater than 9 years.

Some uses for these loans include business financing, business startup expenses, loans for a mortgage, or loans from irrevocable trusts to an estate of the deceased to cover administrative expenses and taxes. These Loans should always be documented by promissory notes and payments must be accounted for on a regular basis or they can be disallowed.

March 27, 2012

Indiana to repeal death tax as of Jan 1, 2021

Indians's Gov. Mitch Daniels signed to repeal the inheritance tax for deaths after Dec. 31, 2021. The relief is retroactive to January 1 and increases amounts exempt from the tax for 2012 deaths.

Currently 22 states and the District of Columbia impose an estate / inheritance tax in 2012. See Forbes article on Another State Death Tax Kicks the Bucket, Will More Fall? for more information on this topic.

If you live in a state that has an estate tax or inheritance tax you may want to consider the additional taxes that your estate or beneficiaries might be subject to in your planning.

March 26, 2012

Family is Unhappy with Bank but is Prohibited from Changing Banks.

Be careful of agreements that you sign with banks. This family is being held hostage by a bank that made the beneficiaries sign an agreement that required all 94 of them to agree prior to moving their money to another bank. The Tompkins family had been customers of Riggs Bank for nearly 50 years when a money-laundering scandal at the Washington lender prompted them to take their business elsewhere (to Chevy Chase Bank)....The family blames Chevy Chase for poor investment returns, among other things. They can\'t move the accounts, now worth $100 million or so, because of a fundamental error they made seven years ago when signing up with Chevy Chase: They failed to read the fine print. In their haste to flee Riggs, which was eventually sold to another bank, the family signed an unusual agreement that prohibits it from pulling the money from Chevy Chase unless all 94 family members who are beneficiaries of the trust agree. Having failed to secure familial unanimity, 10 of the grandchildren are now suing Chevy Chase Trust for the right to pull the funds.
March 15, 2012

Estate Planning Tips For Gun Collectors - Gun Trust Lawyer®

If you own firearms and have done estate planning, you might want to review your planning with a Gun Trust Lawyer®. About 5 years ago, I recognized the problems that are inherent with traditional estate planning (wills, revocable trusts, or the default planning offered by each state) as they relate to firearms.

Most Estate Planning is designed to deal with financial instruments and not the issues that surround the purchase, transfer, possession, and use of firearms.

Did you know that you will or trust probably contains language that instructs your family and friends to break the law after you die? Before you put your family and friends at risk of violating the law or giving a firearm to someone who you would not want to hand a gun, you should talk to your Florida Estate Planning Lawyer about creating a Gun Trust.

While gun trusts are great for regular firearms they have additional advantages when it comes to the purchase, use, possession, and transfer of the more restricted firearms like those sold by Dealers with Class 3 SOT licenses.

To learn more about Gun Trusts, visit the NFA Gun Trust Lawyer® blog

March 5, 2012

Attempt to Avoid Probate Earns Medicaid Applicant Penalty Period

Often in an attempt to avoid a relatively small probate fee, individuals can create huge penalty periods and taxable issues for themselves. Take for instance, a woman in New York who, two years before applying for Medicaid, transferred money from her account to an account with a co-owner. Transferring individually owned funds to an account with joint tenants is a common way to avoid a Florida Probate.

While her estate planning attorney seems to have given the advice, he was not aware of the problems that estate planning techniques to avoid probate can have on Medicaid eligibility.

Not only can transfers like this have problems for the individual making the transfer, but they can also create problems for the beneficiary or the new co-owner who will now have additional assets in their name, that may disqualify them from government benefits like Medicaid.

Before you try to save a few dollars and do what worked for your parents or friends, you may want to discuss your circumstances with a Jacksonville Estate Planning Lawyer who is familiar with Medicaid and Elder law issues.

February 29, 2012

What are Florida Advance Directives?

Advance directives.jpgYou asked and a Jacksonville Estate Planning Lawyer will advise you that according to Florida Law, an "Advance directive" means a witnessed written document or oral statement in which instructions are given by a principal or in which the principal's desires are expressed concerning any aspect of the principal's health care, and includes, but is not limited to, the designation of a health care surrogate, a living will, or an anatomical gift.

A Health Care Surrogate is chosen by the principal to act for the principal and to make all health care decisions for him or her during the principal's incapacity. The health care surrogate has the authority to consult with appropriate health care providers, to provide informed consent, to provide written consent, to be provided access to the appropriate medical records of the principal, and to apply for public benefits, such as Medicare and Medicaid on behalf of the principal.

The written designation of health care shall be signed by the principal in the presence of two adult witnesses. The person designated as surrogate shall not act as witness to the execution of the document designating the health care surrogate. At least one person who acts as a witness shall be neither the principal's spouse nor a blood relative. It is strongly suggested that the execution of the designation of health care surrogate be done in front of a notary.

A Living Will made be executed by any competent adult. It is a declaration concerning the providing, withholding, or withdrawal of life-prolonging procedures in the event that a person has a terminal condition, has an end-stage condition, or is in a persistent vegetative state. A living will must be signed by the principal in the presence of two witnesses, one of whom is neither a spouse nor a blood relative of the principal. It is strongly suggested that the execution of the living will be done in front of a notary.

In determining whether a patient has a terminal condition, an end-stage condition, or is in a persistent vegetative state, or may recover capacity, the patient's attending or treating physician and at least one other consulting physician must separately examine the patient. The findings of each such examination are then documented in the patient's medical record and signed by each examining physician before life-prolonging procedures may be withheld or withdrawn.

An "Anatomical gift" or "gift" means a donation of all or part of a human body, to take effect after the donor's death and to be used for transplantation, therapy, research, or education. Chapter 765 of the Florida Statutes has a comprehensive listing of provisions that detail everything one needs to consider when contemplating an anatomical gift.

Now that you know what "Advance Directives" are, contact a Jacksonville Estate Planning Lawyer to have your advance directives prepared today.

February 27, 2012

Elder Law Lawyers look to Alzheimers Research

happy_elderly_couple_americare.jpgAs Jacksonville Elder Law Lawyers, we are always looking for the most effective and least restrictive ways in which to serve the needs of our Jacksonville elderly. We keep current of the Florida statutes and the numerous Florida cases which interpret matters involving Florida's senior citizens.

Elder law encompasses many aspects, including estate planning, guardianship, medicaid issues, and of course, health care issues. As Florida Elder Law Attorneys, we also look to various research and articles throughout the nation which focuses on issues related to aging.

Recently an interesting article caught our attention dealing with coconut oil and it's effect on those suffering with dementia and Alzheimers. We want to share information we learn of that may have a positive impact on your lives. This article addresses alternative medical treatment.

Coconut oil, once thought to be harmful due to elevating cholesterol levels, actually has numerous positive influences on human health. While pure non hydrogenated coconut oil does in fact raise cholesterol levels it is the good (HDL) cholesterol that is influenced. Although there is little evidence at this point to support it, some leading researchers believe that Alzheimer's, dementia, ADHD and other central nervous system impairments can be helped with the use of pure coconut oil.

Glucose is the primary nutritional source for brain cells. Some conditions impair the body's ability to utilize glucose and as a consequence brain cells do not function optimally and will ultimately die.

Recent research along with antidotal testimonials suggest that the median chain triglycerides can provide a source of ketone to brain cells that acts as an alternative to glucose. Some patients with Alzheimer's and dementia have seen improvement in cognitive, emotional and physical function with the use of pure coconut oil.

If you would like information or direction with an elderly person in your life, consult with a Jacksonville Elder Law Lawyer.