Historically a Florida Will could not be changed and had to be strictly complied with by in a Florida Probate.

A recent change to Florida Probate allows for the court to step in and change the terms of a person’s will when there is no question about what the terms when there is clear evidence that what the testator intended.

Anyone can ask a court to change the terms of a Florida Will when there is clear and convincing evidence that a mistake of fac or mistake of law caused the will to reflect something other than the testator’s true intent.

Mistake of law is a legal principle referring to one or more errors that were made by a person in understanding how the applicable law applied to their past activity that is under analysis by a court.

The underlying intent of this new law is to carry out the true intentions of the testator.

A Florida Enhanced Life Estate Deed (sometimes called “The Lady-Bird Deed” is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family and avoid a Probate in Florida. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process in much the same way as a bank account with a beneficiary designation.

Jacksonville Duval Clay Orange ParkWhy Use an Enhanced Life Estate Deed?
The Florida Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Who should use the Enhanced Life Estate Deed?
A Florida Enhanced Life Estate Deed or Florida Lady-Bird Deed should be use by individuals or couples who want to simplify the transfer of their property upon their death and retain full authority and possession over their property.

Will using an Enhanced Life Estate Deed affect my Florida Medicaid Eligibility?
As long as the individuals demonstrate an “intent-to-return” to the homestead Medicaid Eligibility should not be affected.

What are some common mistakes with deeds?
Many Florida residents add their children on their deeds as Joint Tenants with Rights of Survivorship.
Many Florida Residents deed their property to their children and retain a life estate.

What can happen if I have made a common mistake on my deed?
1) My home may not be protected from creditors and/or loose its homestead protection.
2) I may be disqualified from Medicaid in the event that I need to go into a Nursing home.
3) I may have made a gift, subject to Federal Gift Taxes, Penalties, and Interest which my heirs and/or family may be responsible for paying.
4) I may not be able to sell my home or use the proceeds from my home to enhance my quality of life, travel, or pay for the necessary medical care I need.

If I have made a mistake transferring my property, can it be fixed?
Yes, You should meet with a Florida Estate Planning Lawyer to evaluate your situation, and prepare the documents necessary to allow you to qualify for Medicaid, deal with the Gift taxes, protect your homestead, and pass your homestead to the desired beneficiaries without the costly expense and delay of Florida probate.

The fight for Jacksonville equality is reaching its crescendo. The Jacksonville City Council will soon consider legislation presented to them which if passed would offer protections to the LGBT community. Currently, the Jacksonville human rights ordinance does not provide protection for the gay community. That means that those persons who are gay, lesbian, and transgender have little to no shelter from discrimination in the workplace, housing, and public accommodations.

There have been several Florida cities and municipalities that have amended or put in place legislation to protect this vulnerable segment of society. If passed the bill in Jacksonville would prohibit discrimination based on sexual orientation and gender identity.

Almost two weeks ago, Tampa Mayor, Bob Buckhorn signed legislation that will put into place a Domestic Partnership Registry. Similar registries exist in Palm Beach County, Miami-Dade County, and more recently Orange County.

The requirements to register are many but usually require that, among other things.

(1) The couple resides in the county where they apply;
(2) each person is 18 years of age; and
(3) Each party agrees to be jointly responsible for each other’s basic good, shelter, common necessities of life and welfare.

The benefits can be huge, including the ability to visit and make decisions regarding health care and funeral/burial arrangements, pre-need guardian designation for incapacitated partners, and visitation rights in correctional and health care facilities.

If you are interested in learning ways in which you can protect your rights and the rights of your partner, contact a Jacksonville Gay and Lesbian Estate Planning Lawyer.

Florida statutes define probate assets as those assets subject to a probate administration. There are several types of Probate in Florida which are discussed in our Free Florida Probate Handbook that you can request.

Often it is easier to define which assets are not subject to probate.
In Florida any asset with a surviving joint owner, valid payable on death designation, or contract clause which defines what happens to the asset upon death are not subject to probate. Often these include life insurance policies, annuities contract or retirement account with a transfer on death clause, jointly owned bank accounts, real estate with and valid beneficiary designation clause. One of the most common items that is not subject to probate is a Florida homestead. While a homestead is not devised through probate typically, title companies will often require it to be dealt with in a Florida probate to issue title insurance. The good news is unless you messed up your will or other documents, a Florida Homestead will not be subject to the claims of your creditors or the creditors of your beneficiaries if it is their homestead.

a Florida Probate can be expensive so it is wise to review your estate plan with a Jacksonville Estate Planning Lawyer to see if any of your assets will be subject to a Florida Probate and if a probate in Florida can be avoided.

There are very limited opportunities to establish paternity after the death of a parent but it is possible to do so as long as the mother was not married at the time the child was born and no paternity has been previously established.

According the Florida Department of Heath, if a birth record contains an error it may be possible to correct the record depending on the type of correct and the age of resistant, documentary evidence may be required to support the correction.

Once the father has died it is still possible to establish paternity by one of the following

(a) The natural parents participated in a marriage ceremony before or after the birth of the person born out-of-wedlock, even though the attempted marriage is void.

(b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.

(c) The paternity of the father is acknowledged in writing by the father.

Acknowledgment in writing may be in the form of a birth certificate, affidavit, or other writing such as a beneficiary designation under a life insurance policy. There are no formalities that are required and one court refused to require such evidence. In re: Estate of Jerrido, 339 So.2d 237 (Fla. 4th DCA 1976) the court refused to require authenticated evidence.

It has been many years since the regional divisor has been updated. For the last several years the penalty period was calculated using an outdated nursing home cost of $5000. As of now, the divisor has been raised from $5000 to $6880 in Florida (Florida Administrative Code)

What does this mean? If one does property planning, they can give away $6880 and only have a 1 month penalty. This becomes important when doing planning for individuals who have nursing home exposure.

This will significantly increase the amount of money most people could save by doing elder law planning in Florida. As you age it is important to consider both Florida Estate Planning and elder law when structuring your plan.

John B. Conner has written a Law Review article in the Estate Planning and Community Property Law Journal titled “DIGITAL LIFE AFTER DEATH: THE ISSUE OF PLANNING FOR A PERSON’S DIGITAL ASSETS AFTER DEATH”

The article starts off discussing issues of digital assets and estate planning by defining digital assets and then discussing issues in estate planning created by digital assets.

It goes on to talk about how websites are dealing with digital assets and privacy acts as the relate to deceased users with social networking, web-based email, blogs and other online content.

Mr. Conner then give some suggestions for dealing with digital assets properly through planning, and some of the problems with using standard wills or other documents.

He then discusses post mortem identity theft and content theft from the deceased blogs and concludes that as the Internet continues to grow the need for estate planners who are able to deal with digital assets will continue to expand. Some state are attempting to implement legislation to help deal with these issues but those may only help if you die in one of those states.

I have recognized the need for planning for your digital death for several years and have been dealing with clients to design systems that will help provide for their digital death. If your current estate plan has not contemplated your digital death, perhaps you should talk with someone who understands how to deal with this unique class of assets.

While we have been saying this for years and it is the reason we created the original Gun Trust it is nice to see others in the legal community begin to recognize the difference and purpose in firearms trusts. Our trust are now designed for all firearms and not just NFA firearms.

A trust protector is a person or group of people (not the settlor, beneficiary, or trustee) who are appointed to exercise one or more powers affecting a trust and the interest of the beneficiaries. The concept of a trust protector is to protect beneficiaries from a rogue trustee. They can often make changes to a trust involving who the trustees are, investment decisions, change how distributions are made and in some cases modify or terminate a trust.

They can provide help when circumstances change and the settlor’s intentions are not being dealt with properly. While a trustee has fiduciary duties, in most cases a trust protector acts as an agent of the settlor and may not have the same duties as other trustees.

Others argue that you should impose fiduciary duties on the trust protectors and make them accountable to the beneficiaries. As such, it is important to have detailed discussions with clients about the roles and responsibilities of trust protectors. Their powers and limitations should be clearly defined to limit the scope of their actions.

Some recommend that while imposing a fiduciary duty on a trust protector, the claims can be limited by removing liability for simple negligence but not gross negligence or when their conduct amounts to a willful breach of their fiduciary duty.

If you have trust protectors in your trust, it is important to review the powers and limitations and to what standard they will be held if they damage the beneficiaries.

If you would like to add trust protectors to a trust to protect from improper actions of a named trustee or in the event of changed circumstances which may frustrate the settlor’s intentions, you should contact a Florida Estate Planning Lawyer to discuss your circumstances and desires.

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.

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.

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