You have heard it all before again and again. The reason for the repetition is . . . there really are 7 estate planning documents that should be prepared before one dies.

A Jacksonville Estate Planning lawyer will provide you with story after story that have no happy endings. These stories begin with people who talked about contacting a lawyer to have legal documents prepared, but never did.

The documents you need to consider today are:

  1. Last Will and Testament: This document allows you to name a guardian for your minor children in the event of your death, distributes your property to the people you want to inherit, allows you to donate to charity, among other provisions.
  2. Living Will: If you remember the Terri Schiavo Florida case, you will recall 7 years of court battles regarding life-prolonging procedures keeping Terri alive, after being diagnosed as in a persistent vegetative state. If a Living Will (which allows you to declare what, if any life-prolonging technology you desire) was in place, this costly, exhaustive and emotional fight would never have happened.
  3. Do-Not-Resuscitate Order (DNR): This document is state specific and it must be prepared in strict compliance with Florida Law. If prepared properly, it alerts medical professionals not to perform cardiopulmonary resuscitation on a patient when he/she stops breathing or the heart stops beating in specific medical conditions (end state renal disease, terminal cancer).
  4. Designation of Health Care Surrogate: This document allows you to name the person(s) you want to make health care decisions for you in the event that you are incapacitate or too ill to make these decisions yourself. If this document is not in place, the default health care substitute chosen may very well be someone you do not want to serve.
  5. Authorization to Release Health-Care Information: We have all heard of HIPAA (Health Insurance Portability and Accountability Act of 1996). This federal privacy rule provides protection for personal health care information. This law is so strict that if you have not executed a HIPAA Release even your health care surrogate or proxy will be unable to obtain and review your records.
  6. Trust Documents: There are numerous trusts for different types of situations. In general terms, a trust is utilized whereby property is held by one party for the benefit of another. For a listing of the various trusts available and their purpose, visit Jacksonville Trusts Attorney.
  7. Letter of Instruction: This document can be as simple or detailed as you desire. It can contain directions as to your burial and cremation wishes, organ donation wishes, and who you would like to care for your pets.

Don’t let another day pass, contact a Jacksonville Estate Planning Lawyer.

Rainbow families.jpgRaising and caring for your children is difficult enough without the additional complications that arise when you are bringing up children in a same-sex relationship. Inherent rights afforded to “straight” or heterosexual couples are non-existent for gay couples. The lack of legal rights for those in relationships not recognized by the State of Florida, will effect your property rights, your health care decisions, the distribution of your assets after death, and most importantly, your children.

If you are not the legally recognized or biological parent of a child, there are several legal documents you can utilize to provide you the authority you need.

A Last Will and Testament will enable you to name your choice of guardian for your minor child in the event of your death or incapacity.
A Pre-Need Guardian Designation lends additional proof of your choice of guardian for your child(ren).
An Authorization and Power of Attorney for Child Care will enable the person of your choice to have the authority to make decisions for and care for your children when you are unavailable. Unavailable may mean incapacity, or being out of town, or otherwise engaged elsewhere.

For additional documents and methods of ensuring that the “non-legal” parent’s relationship with his or her children are protected, contact a Jacksonville Gay and Lesbian Estate Planning Lawyer to schedule a time to talk.

There are certain times when a Probate case can use Formal Notice to reduce the time required and other times when it is required. Formal notice is defined by the Florida Probate Code to be notice which is sent by via certified mail to each interested person. Sometimes notice can be by publication when the whereabouts of a particular interested person or entity cannot be determined. This notice by publlication requires a much longer time period to the party to object than the 20 days when an interested party is serverd by formal notice. Some examples of when Formal Notice can or will be used include:

Petition for Administration Petition to Determine Beneficiaries Petition to Revoke The Probate of A Will Petition to Probate Lost Will Petition to Construe Will Petition to Remove A Personal Representative Petition to Surcharge Personal Representative Petition to Cancel a Devise

The 2nd District Court of Appeals for Florida held in McDonald v Johnson that the increase in a company stock value that happened during the marriage can be used to determine the value of an elective share calculation. The lower court ruled that the surviving spouse had no right to discovery of a company’s financial information because the company stock was not subject to probate. The 2nd DCA found that Section 742.2155(6)(c) excluded non-martial assets as defined in Section 61.075. Because the increase in value of an asset that happens during a marriage is a martial asset, they concluded that the spouse was entitled to do discovery that was necessary to determine if it would be to her benefit to claim an elective share.

Section 732.2155(6) provides as follows:
Sections 732.201-732.2155 do not affect any interest in property held, as of the decedent’s death, in a trust, whether revocable or irrevocable, if:

(a) The property was an asset of the trust at all times between October 1, 1999, and the date of the decedent’s death;
(b) The decedent was not married to the decedent’s surviving spouse when the property was transferred to the trust; and (c) The property was a non-marital asset as defined in s. 61.075 immediately prior to the decedent’s death.

The courts reasoning is as follows:

We conclude that the fact that section 732.2155(6)(c) cites to section 61.075 without a specific citation to the subsection defining non-marital property indicates the legislature’s intent that the entire statute, which defines both marital and non-marital property, is to be considered in determining whether the property in the revocable trust was non-marital at the time of death. The definition of marital assets includes “[t]he enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” § 61.075(6)(a)(1)(b), Fla. Stat. (2010). In other words, if the value of the MCC stock in the decedent’s revocable trust increased pursuant to the terms of section 61.075(6)(a)(1)(b), that increase would not be excluded from the elective share under section 732.2155(6)(c). Thus, to the extent the information sought by the surviving spouse is necessary to her determination whether the MCC stock value was enhanced during the marriage due to the efforts of the decedent, it is relevant.

gay-marriage-rights.jpgFlorida Gay couples await the possibility of a seventh state to legalize gay marriage, as the Washington State Governor introduced legislation on gay marriage early this month. At a news conference Governor Chris Gregoire stated, “Our gay and lesbian families face the same hurdles as heterosexual families – making ends meet, choosing what school to send their kids to, finding someone to grow old with, standing in front of friends and family and making a lifetime commitment.”

For gay couples all over the country, including Florida, a state marriage license is very important. It gives same-sex couples the right to enter into a marriage contract in which their legal interests, and those of their children, if any, are protected by civil law.

For now, those in gay relationships in the Sunshine State will have to make do by protecting their own interests. This can be accomplished through a variety of legal documents. If you are a lesbian or gay man living in or around Jacksonville, Florida, take time to contact a Jacksonville Gay and Lesbian Issues Lawyer who focuses on LGBT documents to ensure that your rights, whether they pertain to health care, property, or your death are protected.

Often before the death, a spouse or someone else in control of assets attempts to rearrange the assets so that it will benefit them and in doing so it can interfere with the desires of the decedent.

In these situations, the prospective beneficiaries who have been damaged have the right to bring a cause of action against the person who manipulated the decedent’s assets.

Some examples of this type of activity include cashing out insurance policies, paying bills our of one account but not another, removing funds from one account and transferring them to another in which they are the beneficiary. Selling or disposing of assets that would go to one beneficiary and converting them to cash what is distributed in another manner.

In a recent appeal over this issue it was made clear that it is not enough to have shown that someone engaged in this type of wrongful activity, but also must provide legally admissible evidence of the damage that was caused to the beneficiaries. Failure to show damages, a required element of the claim, subjected the case to a directed verdict and final judgment of dismissal.

If you are considering a claims against someone who has interfered with your expectancy, you should contact a Florida Estate Planning Lawyer who understands the elements of the cause of action as well as the ability to gather and introduce legally admissible evidence.

In Florida, a creditor may open a probate to reach assets of a decedent which were kept in a trust. The trustee of a decedent’s trust is responsible to file a notice of trust with the probate court. If you are unsuccessful in having the trust pay the debts directly, you can open a probate on behalf of the estate, file your claims and are entitled to be reimbursed for the legal expenses related to the opening of the probate. See Florida Statute 736.05053. Remember that failure to file a claim within 2 years of the decedents death can waive your rights to file a claim in the probate court.

If you are owned money by a decedent and can not figure out how to file a claim, contact a Florida Estate Planning Lawyer to discuss your options.

In Florida a Will must be in writing, signed by the signed by the testator and authenticated by two witnesses. Florida does not recognize holographic wills that are valid in another state if they do not meet the above requirements. Other than holographic wills, Florida will recognize a will that was validly created in another country.

Therefore a foreign will other than a holographic will is valid in Florida and holographic wills created in anther state or country which are signed by the testator and authenticated by two witnesses are also valid in Florida.

There are three ways in which a will can be contested in Florida.

  1. Undue Influence;
  2. Testamentary Capacity;
  3. Failure to Execute with the Required Formalities.

The above example would involve Failure to Execute with the Required Formalities.
Florida Statute 732.502 defines the requirements that a testator must follow to create a valid will. Carefull attention need to be paid to a will that was not executed in Florida, or an old will to make sure that the requirements were followed at the time the will was created and not necessarily the current requirements.

In addition, a foreign will could be challenged under testamentary capacity. To have the proper testamentary capacity to make a will in Florida you must be of sound mind and either an emancipated minor or more than 18 years of age. Sound mind is having the mental ability to understand the making of a will, knowing what your assets are, and being able to choose who is going to receive them. You do not have to understand it later, but only have a lucid moment at the time you execute the document. If there is a question about mental capacity, it is a good idea to ask questions, and document the answers at the time the will is signed to create evidence of mental capacity for any future dispute.

The third type of will contest deals with undue influence. This happens when a beneficiary or another person causes a person to change a will to the detriment of another person. These are very hard cases to prove but do occur. Often a family member, caregiver, friend, or neighbor with access to a person can cause them to change a will with undue influence.

If you are considering contesting a will in Florida, you should discuss your situation with a Florida Estate Planning Lawyer to determine what your options are.

Jim McDermott and the House Democrats introduced a bill to extend the estate tax beyond 2012. The proposal would reduce the current estate tax exemption from $5 million to just 1 million and raise the estate tax rate from 35% to a top rate of 55%.

The bill also contains restrictions on Grantor Retained Annuity Trusts :

  • Minimum 10 year term;
  • Annuity payment cannot be reduced from one year to the next during the first 10 years of the GRAT term; and
  • The remainder interest at the time of the transfer must have “a value greater than zero.”
  • The bill contains no guidance regarding the parameters of the “greater than zero” requirement.
  • Effective for transfers made after the date of enactment.

The bill would also limit discount on minority interest in companies or investments:

  • For the transfer of an interest in an entity which is not actively traded, no valuation discount would be allowed with respect to “non business assets”;
  • For the transfer of an interest in an entity which is not actively traded, no discount would be allowed by reason of the fact that the transferee does not have control of the entity if the transferee and the transferee’s family members have control of the entity.
  • Effective with regard to transfers after the date of enactment.

“It really is a question of clarity,” for both families and planners, McDermott said. “The question is how to bring fairness into it.”

Under McDermott’s proposal, co-sponsored by Rep. Charles Rangel , the exemption for married couples would drop to $2 million from current level of $10 million. A surviving spouses could still claim the remainder of their partner’s exemption if some remains unused after death. The rate and $1 million exemption would be adjusted for inflation, beginning at the 2000 level.

The bill would also unify the estate and gift taxes. That means a taxpayer would only have a single exemption of $1 million for their estate and most gifts. The legislation also includes several provisions from Obama’s last budget proposal to end targeted estate tax breaks.

While there are not many days left this year, it might be beneficial to make larger gifts today to lock in the 5 Million dollar gift exemption in place now. To discuss how this could change your existing estate tax planning, contact a Florida Estate Planning Lawyer to discuss your specifics.

Once the personal representative (PR or executor) is appointed by a Florida court, takes the oath of office, and posts bond (if required), then he or she is authorized to administer the decedent’s estate. A Florida personal representative has a fiduciary responsibility to the creditors, the IRS, and the beneficiaries for proper administration of the estate. The personal representative must not comingle the estate’s funds with his or her own funds, and needs to be fully accountable for all of the decedent’s property during the administration of the estate. The personal representative may sell some or all of the assets of the estate to raise cash to pay the debts and expenses of the estate, if necessary or appropriate.

The personal representative is obligated to:

a) Identify, gather, value, and safeguard the assets.
b) Publish the “notice to creditors” in a local newspaper, giving creditors an opportunity to file claims relating to the estate.
c) Serve “notice of administration” on specific persons, giving information about the estate and giving notice of requirements to file any objections relating to the estate.
d) Conduct a diligent search to locate “known or reasonably ascertainable” creditors, and notify them of the time by which their claims must be filed.
e) Contact the Social Security Administration and the Veteran’s Administration to apply for any death benefits or survivor benefits for which the decedent’s estate may be eligible.
f) Locate insurance policies and apply for benefits if the proceeds are payable to the estate.
g) Contact the decedent’s employer and any club or fraternal organization to which the decedent may have belonged to determine if the estate or surviving family members are entitled to any benefits.
h) Examine the circumstances surrounding the decedent’s death to determine if there are any claims against third parties, which need to be asserted or preserved, such as claims for wrongful death or worker’s compensation.
i) Collect rents, accounts receivable, interest, dividends and other income due to the decedent prior to death and that becomes due to the estate thereafter.
j) Assume the responsibility for any litigation or settlement of pending lawsuits in which the decedent had an interest.
k) Keep the property of the estate in good repair.
l) Keep the estate property invested properly until the administration is complete.
m) Locate and access any safe deposit boxes in the decedent’s name.
n) Object to improper claims and defend suits brought on such claims.
o) Pay the valid claims.
p) File all past due and current tax returns.
q) Pay the taxes.
r) Employ necessary professionals to assist in the administration of the estate.
s) Pay the expenses of administration.
t) Distribute the statutory amounts or assets to the surviving spouse or family if claims are made.
u) Distribute the appropriate assets to beneficiaries.
v) Close the probate administration.

No personal representative shall be compelled to pay the debts of the decedent until after the expiration of five (5) months from the first publication of notice to creditors and is obligated to make payment of expenses of administration and creditors’ claims against the estate in accordance with the priorities set forth in §733.707, Fla. Stat.

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