Florida Estate Planning Lawyer Blog

September 6, 2016

Does the Ladybird Deed Enjoy Homestead Protection?

A Florida Ladybird deed has become one of the increasingly most used estate planning tools by the some of best Jacksonville estate planning attorneys. One common questions we receive at our Jacksonville estate planning law firm is how the Ladybird deed works under Florida’s current homestead protections.

In Florida, a Ladybird deed is also known as an enhanced life estate deed. This type of deed permits a person or family that owns real estate, most often a home, to transfer a future interest in the property while keeping a present interest. This type of transfer permits the person to live on the property until he or she dies. A Ladybird deed is special because it allows the enhanced life estate holder more power than a standard life estate holder. Unlike the standard life estate deed, the ladybird deed allows the life tenant (typically the original owner) to sell, convey, or mortgage the property and the holder is not liable to the future interest holders for misuse of the property.
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August 29, 2016

Who can make burial arrangements in Florida?

by David M. Goldman

One question the top Jacksonville elder law and estate planning attorneys often receive is who can make burial arrangements in Florida. Does it have to be the next of kin, or can any family member or interested party make funeral arrangements? Another similar question we often receive is what happens if a family member refuses to sign for burial rights? This article should answer these issues by explaining the current Florida law.

Luckily, Florida law has tried to clear up any burial issues by codifying an extensive set of rules for burial rights. A person can find the relevant law under Florida Statute 497.005 (43). The first part of this statute defines some important terms under the law. For instance, the law defines “human remains” as the body of a deceased human person that requires a death certificate or fetal death certificate, and the body is in a stage of decomposition.

The primary section needed to solve these questions is found under number 43, which is the definition of “legally authorized person.” This definition is a priority list for what individual can make funeral arrangements. According to the statute, the decedent, or the dead person, has priority to make the choice. This means during the decedent lifetime he or she authorized a particular burial plan through an estate planning document. This type of authorization is likely found in a Living Will or another form of an advanced directive. For example, a common type of burial authorization will be a listed preference for burial or cremation.

August 18, 2016

Ponte Vedra Trust Lawyer Interview

by David M. Goldman

I have recently become acquainted with a bank who does business very different than traditional banks. As we do Trust funding for many of our estate planning, elder law, and asset protection packages, we have the opportunity to interact with many banks around the area. One of the recent banks that I have been impressed with because of their understanding of revocable and irrevocable trusts is Seacoast Bank. There interest rates much higher than many of the local banks and offer trust services at a good value. They recently interviewed me about Florida estate planning and asset protection and here is the link to the interview.

July 11, 2016

How to Correct a Death Certificate in Florida

by David M. Goldman

Correcting a Death Certificate in Florida

We often receive calls about how to correct a Florida Death Certificate in relation to filing a Probate case in Florida. Correcting a Florida Death certificate is done through Florida Vital Statistics which can be reached at:

DEPARTMENT OF HEALTH

May 27, 2016

Remarriage Protection

by David M. Goldman

Remarriage Protection

Many lawyers proclaim to have remarriage protection in their estate planning documents, but few estate plans deal with these issues completely. A traditional trust that deals with remarriage will include language that permits or limits the surviving spouse rights to benefit in the event of future marriage. While this may seem like a good way of dealing with this potential conflict, it is often insufficient to protect the surviving spouse and kids from the numerous methods that can be used to gun a trust prior to the marriage. In the end, your kids are the ones that loose out.
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May 4, 2016

Prince – Estate planning

by David M. Goldman

Like many deaths, the death of the legendary pop star Prince came as a shock and surprise for the world. What shocked estate planning attorneys even more so is the possibility that Prince may have died without a will or an estate plan, which could have huge ramifications for his estate and heirs.

Estate planning has many benefits that include allowing a person the peace of mind of knowing how their assets will be divided among his or her heirs. Estate planning is also one of the best ways a person can preserve his or her wealth, avoid costly taxes, and ensure friends and loved ones are provided for. Many individuals also choose to protect their assets with certain types of trusts.

Prince died at the age of 57 and his estate is estimated to be worth around $300 million. What many people do not realize is that when a person’s estate goes through the probate process without any estate planning, the estate will be taxed by the federal and state government. It is likely that his estate will be hit by a federal estate tax rate of 40 and state tax rate of 16 percent. This means Prince’s estate may have to pay more than $120 million in taxes before it can be passed to his heirs.

April 25, 2016

Foreign Wills: Are they valid in Florida?

by David M. Goldman

Foreign Wills: Will a Florida Court recognize them?

The world is becoming a more global community and with that means the United States has seen an increase in the amount of foreign-born individuals living, visiting, and investing in the U.S. economy. For instance, 12 percent of residential home purchases in Florida were made by foreign buyers. The question soon becomes how do foreign citizens pass their assets to loved ones in the U.S. and in other counties. Is a will from another country valid in America?

Florida law allows a foreign will to be admitted to probate if the will is valid under the laws of the country where the will was executed. This is great news for foreign Florida citizens because it means usually a will be valid even if it doesn’t comply with strict will formalities set by the state. However, the Florida Probate Code has made two exceptions for a type of will that is never valid under Florida law. These exceptions are when the will is a holographic will or a nuncupative will.
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April 19, 2016

Trust Funding

by David M. Goldman

Trust Funding

Trust funding is one of the most important aspects of an estate plan or asset protection plan. Attorneys, and clients, hear so much about trust funding, but rarely is it truly understood or implemented properly. Given how important trust funding is, it is a wonder why most estate planning lawyers leave the funding to the client. We regularly see clients who bring us copies of the parents fancy estate planning binders where the plan or many of the benefits to the plan fail because the trusts were never funded or even worse were funded improperly. That is why many of our estate plans and asset protection plans include trust funding. It is important to understand proper trust funding to ensure that the planning works the way it was intended.
The first key step in trust funding is to identify what type of estate plan the client is pursuing. Is the client looking for a traditional estate plan with revocable trusts, an asset protection plan that uses one or more irrevocable trusts, or a plan to protect assets from disability or long term care costs.
A traditional revocable living trust is an estate plan wherein the client identifies who gets to benefit from the client’s assets when the client is well, disabled, and after death. A critically important point to funding a revocable living trust is if all assets funded in the trust are still 100 percent available to creditors, predators, and long-term care costs of the grantor while alive. The assets can continue to be made available to the creditors and predators of the beneficiary after the death of the grantor without proper planning.

April 14, 2016

Sandwich Generation

by David M. Goldman

Sandwich Generation

“The Sandwich Generation” is an interesting phenomenon occurring in the estate planning world. The term was coined to refer to the group of adults in the world today that must juggle the responsibilities of caring for their own families, including children, along with the responsibility of caring for their senior parents. Many adults who are part of the Sandwich Generation have these dual responsibilities and with them come the emotional, physical, and financial strain of caring for two generations of family.

It’s no secret that people are simply living longer than they did even a few decades ago. USA Today recently reported that people born in 2012 will have an average life expectancy of 78.8 years. According to the University of California, the average life expectancy in America during the 1970s was around 68 years, and the data suggests the expectancy will only continue to rise. What this means is that “The Sandwich Generation” will soon become the norm and it will be expected for adults to provide for their senior parent when they may be unable to do themselves.

The good news is that estate planning can alleviate this pressure by providing your parents with an affordable financial and health care plan as they age.

Sandwich Generation Step 1: Start the Difficult Conversation
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March 21, 2016

Can a grantor be a trustee?

by David M. Goldman

Can a grantor be a trustee?

The Irrevocable trust is one of the most valuable tools for estate planning and Florida asset protection that is available. These trusts are not only a great way to pass assets outside of probate, but also allow assets to be protected from creditors. For an irrevocable trust to be valid, a person or entity must serve as the trustee, or manager, of the trust. The Trustee is a person who is responsible for accounting and managing the trust’s assets for the beneficiaries of the trust. Naturally, a question our firm often receives is can I (the grantor/creator of the trust) serve as the trustee?

Can a grantor be a trustee of an Irrevocable Trust? The now outdated school of thought was that a grantor should never serve as the trustee because it could potentially make the trust’s assets available to the grantor’s creditors – thus defeating the asset protection benefits offered by an irrevocable trust. The belief came from section 2036 of the tax code, which states any trust where the grantor retains the right to possess or enjoy the property or designate who will possess and enjoy the trust property will make the principal of the trust includable in the grantor’s estate at death for estate tax purposes.