Many of our clients have asked us to put our Florida Probate Intake form online so that they can easily download it. You can download the Florida Probate Intake form with the following link: Probate Intake Form.pdf
In Florida, a multi member LLC, has asset protection characteristics. Prior to 2011, Florida law was not clear on whether a charging order was the exclusive remedy for a creditor of a member of a multi member LLC. Assets in a Florida multi member LLC are protected from the reach of the member’s creditors so that the debts of one member do not cause harm to the other members. Once a creditor receives a judgement, they can apply for a charging order and stand in line to receive distributions that are made to that member. The problem with this is that a charging order also subjects the creditor to the tax gains that a member is allocated. For this reason, it is difficult to find a lawyer who will take a case on a contingency basis against a multi member LLC. Even if a creditor is successful, the potential downside from the tax liability is huge and can be painful.
In Young v. Levy, the 4th DCA ruled that the trial court erred in entering a writ of garnishment upon the member’s interest in a multi member limited liability company because as of 2011 the charging order is the exclusive remedy that a creditor of a member of a Florida multi member LLC can obtain as per Florida Statute 605.433(5).
A Florida multi member LLC is not real asset protection like is available with some of our IPUG Asset Protection Trusts, but the LLC can, in the right circumstances, give you the ability to wait out your creditors and make it expensive for them to try. This, in turn, can give you a great ability to negotiate a favorable settlement.
In many cases, a trust may be a better solution, but that cannot be determined without reviewing your specific circumstances and goals.
It is important to make sure that you are not violating fraudulent transfer or conveyance rules when transferring assets to a Florida multi-member LLC.
Most Florida probate courts simply accept the information contained in the pleadings that are filed with the court. These pleadings are usually signed “under penalties of perjury”.
Some courts (such as Citrus Count and Miami-Dade County) often require an Affidavit of Heirs.pdf to be filed along with the pleadings. There really is no other independent evidence that is required to prove who the beneficiaries are.
When a rightful heir has been omitted from the pleadings, it is important to act timely. Sometimes, there are people who are included that should not receive a portion of the estate.
If anyone (most likely one of the heirs) contests the proposed distribution of assets by claiming that one or more of the alleged heirs are not heirs at all, there will be an evidentiary hearing where the disputed heirs will need to prove they are heirs. (A Birth certificate is a good start on this).
Generally, the Affidavit of heirs contains information on the spouse, children of the decedent, the surviving spouse, children of the surviving spouse, parents, siblings, grandparents, aunts, and uncles.
Portland company WebCease is making waves in the probate and estate-planning community by helping attorneys and grieving families locate the deceased’s digital accounts.
CEO Glenn Williamson aims to be the first to provide this service to the growing market of families and attorneys trying to track down digital accounts. Williamson is banking on the need for this service to continue to grow as people continue to use digital accounts for shopping, social media and traveling.
WebCease searches across different vendors to determine if the deceased person had an account. WebCease then generates a report that outlines the location of the deceased’s accounts and includes instructions on how to transfer the account or shut it down. The company will not take any action to use the account, or attempt to login to the account.
For example, if a person has accrued points with Delta Airlines or Marriott Hotels, Webcease will find the account and alert the interested party as to what further steps and documents are needed to use the points. Williamson hopes the company’s services will help to save time for grieving families and reduce the possibility of identify theft.
Williamson first came up with the idea while visiting his LinkedIn page. The networking site suggested he connect with two people he knew had passed away. The idea further took root when Williamson’s mother died, and he himself had to search for her digital accounts. He documented these steps and realized the immense amount of time and work it took to track down these accounts.
It took him more than 20 hours or searching and researching the various companies’ terms of service. He eventually found his mom had 13 online accounts. This search allowed him to find more than 50,000 miles through United Airlines, which could be transferred or donated to another account.
Currently, about 60 percent of the process is automated. The rest of the work required the company to hire a team of researchers to compile the report. Williamson plans to hire six employees throughout the year. So far the company has targeted its service to probate attorneys and other estate-planning professionals. A full report costs $529, but the company is releasing a $99 pared-down version for consumers.
WebCease focuses on companies and websites with monetary value, such as travel sites, shopping websites, and social media sites that could hold sensitive information about the deceased person. Currently WebCease searches through about 70 websites and plans to add more as the company grows.
WebCease is a inventive solution for those who have not included their digital accounts in their estate-planning materials. According to Williamson, only 50 percent of Americans have a will and 90 percent don’t include digital assets in the will. For more information on Webcease or including digital information in your estate-planning materials contact the Law Office of David Goldman today at 904-685-1200.
As most young adults are about to return to college, most parents do not think about the fact that not that their child is 18 they are an adult in the eyes of the law. Deborah Jacobs has written an article on this in Forbes outlining two documents that are needed. Most professionals would agree that there are actually 3 that are needed.
Now that they are an adult, parents can no longer make health care of the financial decisions for their children without the legal authorization to do so.
If a child or young adult is injured or needs help with a financial matter, a parent cannot speak with doctors or help the child with financial decisions with our a power of attorney. Once a child reaches the age of 18, it is important to prepare financial and medical powers of attorney to that someone can help the child if they are injured or disabled without having to go through the expensive process of setting up a guardianship.
A Durable Power of Attorney is a document that lets someone select an agent who can speak or act for them if they are unable or unwilling to do so.
A Designation of Health Care Surrogate is a similar document that permits a predesignated agent to speak to doctors and make health care related decisions when you are unable to communicate or make decisions.
Along with a Designation of Health Care Surrogate, it is important to sign a HIPAA release so that doctors can talk with your agents and disclose your private information that would be otherwise restricted.
If you have a young adult in your family, you should talk with a Florida Estate Planning Lawyer to prepare these documents to permit the child to appoint a representative to help them if they are ever injured or would like you to have the ability to talk on their behalf.
You can use a website or create your own will in Florida, but we find that some people do not create valid wills, or create wills that do things other than what they want. We only charge $200 for a will so an online will does not save very much considering the risks.
If you want to create your own will be sure that you sign the will at the end and in front of two witnesses. There are benefits to using a self proving affidavit, but one is not required under Florida law. Of course, most lawyers will include a self proving affidavit with the will that they prepare for you.
Many online wills or wills that individuals try to create do not include provisions for things that happen routinely. Some examples are a named person dies simultaneously, shortly after you, or before you. An improperly drafted will could expose your belongings to their creditors in such a case.
Another common example is that a will could leave money to someone who ends up being disqualified for government benefits because of the inheritance.
Your will could leave a large amount of money to a young adult, who is not financially responsible yet.
Your will could leave money to someone who is bankrupt or files for bankruptcy shortly after you die and their inheritance could be lost.
There are many reasons to hire a Florida estate planning lawyer to create a valid will in Florida that deals with your specific circumstances, but also many reasons like the ones mentioned above that most people never consider.
Many people see joint accounts as a cheap and easy way to avoid probate, since joint property passes to the join owner at death, but these accounts can actually be quite risky when it comes to estate planning.
Joint ownership of accounts can be a great way to easily pass assets to another owner at death. Joint ownership is also a great way to plan for an elder person’s incapacity, since the joint owner of the account can pay bills and manage investments if the primary owner falls ill or suffers from any other sickness.
There are some potential downsides to joint ownership of an account. The biggest factor to consider is the risk of joint ownership. Joint owners have complete access to the account, and the ability to use the account funds for any purpose. When children are made joint owners of an account, it is often the case they can take money without consulting with the other children.
Another risk involved with joint ownership accounts is that the funds of the account are available to all creditors of all the joint owners of the account. There is one type of joint ownership called tenants by the entireties that does not have this risk for assets in Florida. In addition, joint ownership of an account can also serve as a roadblock to receiving financial aid or health benefits.
Joint ownership of accounts can also cause some heirs to receive more inheritance than others. An example would be if a child is named a joint owner of the account. At the death of the original owner, that child could receive more than the other children. While the original account owner can hope the children will share the funds from the account equally, there is no guarantee the other joint owner will distribute the money equally.
A system based on joint account ownership can also fail if the joint owner passes away before the original owner. If a child is the joint owner and passes, the child’s loved ones may not receive the benefit of those funds. For instance, if a mother places an account in the name of her child and herself with rights of survivorship and the child dies before the mother, the assets in that account will go to the mother’s heirs and not to the daughter’s heirs.
Joint accounts are best used in limited situations. One situation to possibly use a joint ownership account is when a senior has just one child and wants to pass everything to the child. Generally an estate planning trust can provide better protections for the unexpected than joint ownership or a beneficiary designation. There are risks involved with joint ownership and tax issues, so you should consult an estate-planning attorney before relying on joint ownership.
Another way a joint account can be useful is to include children on a person’s checking account to help pay monthly bills. This checking account should be a smaller account that does not include the bulk of the original owner’s assets.
Instead of taking a risk with joint ownership accounts, we recommend using more reliable estate-planning tools such as durable power of attorney to provide the ability to pay bills or help with financial decisions. These tools can limit the risk of loss by eliminating your agent’s creditors from those who can access your funds.
If your family works in a high stress profession is a good idea to make sure you and your family keep their estate plans up to date.
The unexpected deaths of finance workers in the past few months by suicide around the world have raised concerns about mental health and stress levels of the banking profession.
JP Morgan executive director Julian Knott, 45, killed himself after shooting his wife Alita Knott, 49, to death with a shotgun. Julian worked for JP Morgan until July 2010, before he and his wife moved to the United States. Before the move, Alita had opened a nursery in Southwick, West Sussex and remained the nursery’s care provider until 2013.
Police officials in London are currently investigating two suicides of finance workers. William Broeksmit, 58, was a retired risk executive at Deutsche Bank. Broeksmit died on Jan 26, 2014 at his home in west London, where Police found him hanging. Gabriel Magee was a 39-year-old vice president at JP Morgan who died after falling from his firm’s 33-story building. A few weeks later, Li Junjie, a 33-year-old banker at JP Morgan in Hong Kong, jumped from his firm’s local headquarters as well.
The banking world’s aggressive, hard-working culture may be too much for some to handle. Peter Rogers says banks are beginning to realize the scale of the problem. Rodgers believes the banking sector needs to see a number of initiatives to improve staff well being and hopefully a cultural shift will occur within the firms.
Emma Mamo, who leads a workplace initiative in the U.K. said finance does have a long-hours culture. “People can’t keep doing long hours; you need perspective and downtime,” she warned.
America has also seen a recent trend of banking suicides. Mike Dueker, a 50-year-old chief economist of a US investment bank was found dead recently near the Tacoma Narrows Bridge in Washington State. Richard Talley, 57, was the founder of American Title Services in Colorado. He was found dead earlier this month after allegedly shooting himself with a nail gun.
On January 10, Bank of America issued a statement to employees telling them they should take some weekends off. Christian Meissner, head of global corporate and investment banking at Bank of America said analysts and associates should “take a minimum of four weekend days off per month.”
JP Morgan is not a member of the City Mental Health Alliance and has announced any measures to deal with the alarming increase of employee suicides.
Carolyn Wolf, executive partner and director of mental health law practice at Abrams, Fensterman, suggests the trend may be tied to substance abuse. She thinks many young people get hooked on drugs such as Adderall to cope with the long hours. Many take the drug, prescribed for ADHD, to stay focused during a long workday. However, she says the substance abuse can exacerbate underlying mental health issues.
Suicide statistics show that financial professionals have a 39 percent higher likelihood of suicide than professions within the general public. In 2010, more than 38,000 Americans died by suicide, according to the Center for Disease Control.
Planning an estate can be a difficult process, but also a rewarding one because it helps to ensure that a person’s heirs will be provided for after he or she dies. Many assume they should wait until after death to convey assets to their loved ones, but there are some benefits to giving assets to an heir while still alive.
There are two types of taxes to consider when determining when to give an heir your assets. A decedent who gives his or her assets to someone while still alive may have to pay a gift tax. This is a tax imposed by the federal government on any transfer of property. Property includes intangible items such as cash and stocks, as well as physical items such as vehicles or furniture.
The most important aspect of gift tax to understand is the unified gift and estate tax credit, which allows a person to give property tax free up to $5.34 million throughout his or her life.
According to current tax law, a person is allowed to give a tax-free gift worth up to $14,000 per recipient each year. This $14,000 is not counted against the lifetime exception. Any amount given to one recipient over $14,000 would count against this total. So this means if a person is given $18,000, then $4,000 would be deducted from the lifetime total and reported with a federal gift tax return.
When a person dies, an estate tax is imposed by the federal govern on the decedent’s estate after the property transfers to his or her heirs. This tax is calculated by the decedent’s “gross estate,” which includes all of his or her assets such as real estate, cash, and business interests. The net amount of these calculations are then added to any taxable gifts given by the decedent with a value large enough to deduct from the decedent’s unified credit.
These laws mean that giving heirs some inheritance now can actually be a good way of avoiding higher estate taxes. However, this is only beneficial to the gift giver if he or she avoids the gift tax by giving something with a value less than $14,000 per heir. If the gift giver is married, and gives the gift jointly with his or spouse, this gift will avoid the tax if its value is under $28,000.
There are other advantages to giving gifts while alive, which includes the benefit of seeing the heir actually enjoy the gift. This allows the gift giver to also advise the heir on how to use the gift. If the heir misuses the property against the decedent’s wishes, he or she can stop giving that person money and adjust the will accordingly.
There are also some good reasons to hold off on giving an heir their inheritance early. The biggest reason is the decedent may need that property or money while they are still alive. The financial climate can change between now and when the estate owner dies. A person who gives too many assets away may find they now need them in order to survive. A final reason to wait to give assets until after death is it allows the heirs to grow and mature first before receiving the gifts. This can ensure the inheritance is both more appreciated and used more wisely.
For more information on estate planning, contact Florida estate planning and probate attorney David Goldman at (904) 685-1200.
A recent ruling by the Fifth Florida Appellate Court on Friday allows surviving spouses to claim loss of consortium separately from others claims after the spouse dies.
The surviving spouse Margaret Randall filed the case, Randall v. Walt Disney World Co., in 2006 after her husband Barry Randall allegedly suffered injuries to his head and neck from riding a roller coaster. Besides personal injuries, Ms. Randall also claims loss of consortium. Loss of consortium is the inability of one spouse to have normal martial relations. Judges will sometimes award the surviving spouse damages for his or her loss of intimacy with their spouse.
The issue here was could Mrs. Randall claim loss of consortium after her husband died. Mr. Randall died shortly after the lawsuit was filed, which Mrs. Randall claims was a result from the rollercoaster injury. In Florida, the rules of civil procedure requires that when a party in a lawsuit dies a personal representative of the deceased’s estate must be substituted within 90 days. This is a rather harsh rule that must be performed on time or else the deceased party will be dismissed from the lawsuit.
In this case, Mrs. Randall did not make a timely substitution and thus the court dismissed her spouse’s personal injury claim. The trial court dismissed Mrs. Randall’s loss of consortium claim, reasoning the claim was derivative of the same personal injury claim it had just dismissed. However, the appellate court reversed and allowed the loss of consortium claim to survive.
This court had previously held in another case that a wife’s cause of action for loss of consortium, while derived from the personal injury to the husband, survives the death of her husband. When making this decision, the court looked to Gates v. Foley. The court in that case held that, “deprivation to the wife of the husband’s companionship, affection and sexual relation (or consortium…) constitutes a real injury to the marital relationship and one which should be compensable at law due to the negligence of another.”
In Ryter, the first district court in Florida held a wife’s loss of consortium claim is actionable regardless of the status of the husband’s claims. The court reasoned a, “wife owns the cause of action [and that] it is her property right in her own name.” Finally, the court in Orange Cnty. V. Piper, held loss of consortium to be a “separate cause of action belonging to the spouse of the injured married partner, and… it is a direct injury to the spouse who has lost the consortium.”
The appellate court of the third district reasoned a loss of consortium claim should not continue past death because the Legislature made recovery for a surviving spouse a part of the Wrongful Death Act. However, the Fifth District found this hold to be too limiting to the surviving spouse’s rights because the act only allows recovery in specific situations. This court felt the Legislature did not intend to limit a spouse’s right to claim loss of consortium, and thus reaffirmed its view that a loss of consortium claim survives a dead spouse.
Another appellate court disagreed with this conclusion, and thus the Florida Supreme Court may soon decide because of the circuit split. For more information regarding the surviving rights of a married spouse in Florida, contact Jacksonville attorney David Goldman at 904-685-1200.