Are you concerned about your father, another family member or close friend’s ability to continue taking care of his or her own health and property without help? Are you afraid they cannot remember to properly take their medications or go to their own doctor appointments? If a Power of Attorney and/or a Power of Attorney for Health Care is not already in place, the only means to help manage their health and assets is by establishing a guardianship within a court’s probate division. Once a guardian is appointed, the incapacitated person does lose many of his or her individual freedoms and rights, but gains the help from someone with legal authority to make health and property decisions for him or her.

 

A guardianship can be either plenary or limited. A guardian who manages all rights and property of an individual is referred to as a Plenary Guardian. A Limited Guardianship is when the court determines a person only lacks the ability to handle his or her affairs to a limited degree. In these situations, a person may lose their ability to contract, marry, make health care decisions, etc., but may maintain their right to determine where they live, retain employment and make decisions regarding their social environment to name a few.   Continue reading

Elder fraud is becoming a growing concern as the baby boomers are beginning to retire and are not well versed in the latest technology. Recent studies show that senior citizens are being defrauded through Internet and telephone scams. As an estate planner and elder law specialist, I thought I would share a few tips on how to safeguard assets from financial abuse.

One way to prepare for the future and to safeguard assets is to have a Florida estate and financial plan with proper controls in place. We recommend that many clients should start considering adding elder law or asset protection planning once they reach age 60 or acquire large assets. The estate plan should deal with all of a client’s assets are accounted for and the plan be reviewed every periodically or when there has been a change in the family like a birth, death, divorce, or marriage.  Continue reading

 

With the recent Supreme Court ruling making headlines for allowing same-sex couples to get married, the unnoticed effect of this monumental ruling is how it will affect the estate planning for couples that can now tie the knot. Same-sex married couples now have the same estate planning and tax benefits others couples have been enjoying for years. Now is a great time to update your estate plan to take advantage of all new benefits available.

Supreme Court Justice Kennedy wrote in his now famous opinion that same-sex couples are no longer “cosigned to an instability, many opposite-sex couples would deem intolerable in their own lives.” Before this decision 36 states had already recognized these marriages, but now the other 13 mostly southern states must follow.   This means same-sex couples that live and marry in these states should consider updating or creating estate plans that take advantage of their new legal status. Continue reading

While irrevocable trusts were once thought to be untouchable this may no longer be true as the practice of “decanting” a trust becomes more commonly used. Decanting lets a trustee, or the manager of the trust, change certain terms by figuratively pouring the assets from an old trust into a new one. So far, 21 states have adopted decanting laws and a group of trust lawyers and professors are drafting a model law to serve as a template for states to use in the future as a model.

Many families use irrevocable trusts to pass wealth to their beneficiaries because of the tax advantages and other benefits the trust offers. So far there are some limits to what decanting can do, as, for instance, trustees cannot change a beneficiary’s already vested interests in a trust.

So what can the act of decanting do? Continue reading

A GRAT is a Grantor Retained Annuity Trust and is a special type of irrevocable trust that allows the settlor, or trust maker, to transfer assets to this trust and receive an annual annuity payment for a certain amount of years. When the term of the GRAT ends, the assets remaining in the GRAT are distributed to the trust beneficiaries.

So how does it work?

The amount of the annuity payment paid to the settlor during the GRAT is calculated by using an interest rate determined by the IRS called the section 7520 interest rate. The settlor can even set the annuity payment so that it will be exactly equal to the section 7520 interest rate, meaning that theoretically all of the assets that been transferred into the GRAT will be returned to the settlor in the form of annuity payments. Continue reading

If a tenant does not pay rent in Florida, a landlord can evict the tenant if he or she follows the correct procedures as defined in the Florida statutes.

Florida law no longer allows “self-help” evictions, which few states continue to recognize, such as changing the locks or shutting off the utilities. A self-help eviction occurs when a landlord retakes possession of a property without using the eviction process. Courts no longer favor this approach as it can lead to dangerous confrontations, assault, or even harassment. Landlords must now follow the eviction legal process.

The key to the eviction process is the proper preparation and delivery of a three-day eviction notice. This notice must be delivered, and cannot be waived by either the landlord or the tenant. Termination for nonpayment of rent is exclusively accomplished under the act of serving the three-day notice to all tenants. Without the termination for nonpayment, a lawsuit to remove a tenant who refuses to leave cannot be heard in court. If the landlord purchased the property through a foreclosure, there may be an additional 90-day notice required.

The Florida statute provides the three-day notice must “substantially comply” with the form provided in the statue. This form states to the tenant the “what, when, and to whom, and where” regarding the tenant’s requirements to avoid an eviction. Many Florida courts have held that a three day notice that fails to substantially comply with the notice is defective, and a court will be unable to evict a tenant if the notice is not proper. Continue reading

 

 

A living trust, revocable trust, or asset protection trust can be a great estate planning tool that offers a number of benefits, such as allowing assets to pass to beneficiaries without going through probate and avoid the claims of creditors. Once a trust has been created, the testator must then fund the trust.

 

To fund the trust, the trust maker  (Settlor) usually transfers assets into the trust. A trust can be funded with almost any type of asset, such as: cash, stocks, bonds, real property, or even personal property. Out of state property can also be used to fund a trust, but will require a different process.  Real property (land or homes) requires a deed to be transferred into the trust.

 

How do you transfer assets to the trust?

There are three ways to transfer assets into a trust account, which include changing the title or ownership in the property to the name of the trust, assigning ownership rights to the trust, or making the trust the beneficiary of the property. Real property, such as real estate, a person can transfer through a warranty deed or a quitclaim deed. A warranty deed provides a guarantee that the seller has clear title to the property being sold, and there are no liens or encumbrances on the property. If you change the beneficiary designation on the asset, it will not become a trust asset until you die.

Many people often own property in more than one state, including states in which that person does not reside. Depending on the client’s situation, we often recommend a person fund a trust with all real property or assets which are located  out of state or else probate will become necessary in each state where the real property is located. Multiple probate processes can be expensive and time consuming for the beneficiaries.

All 50 states will recognize a  trust regardless of which the state the trust was created in. This means that out of state property placed in a trust will also escape probate in the state the real property is located. One consideration when property is transferred from out of state is the tax implications of the transfer.

 

Every state has its own laws regarding the conveyance of real property, including the funding of a trust with real property. Title insurance companies and banks also have their own rules and requirements that must be met before a transfer of real property will be accepted. For more information, contact the Law Office of David Goldman PLLC today.

A new Florida law, Florida HB5, signed into law by Governor Rick Scott in June seeks to curb elder guardianship abuse. The bill was drafted to help solve the growing problem of elder abuse in Florida’s elder guardianship system

There are a growing number of reports of abuse of court appointed guardians in Florida misappropriating funds and other abuse by exploiting the old law’s lack of transparency, poor oversight and other structural flaws. Once a person becomes incapacitated, a petition may be filed to appoint a guardian if there is no pre-approved guardian in place. An incapacitated person can lose a variety of rights to his or her guardian, including the right to manage his or her finances and health care.

Under the current system incapacitated persons become vulnerable to abuse by their guardian. The new Florida bill seeks to prevent abuse with some of its major provisions, such as the provision that provides specific criminal penalties for abuse or exploitation of a ward.

Continue reading

Transferring a guardianship from another state to Florida can be more complicated than a transfer between another two states. American families are increasingly becoming more mobile, and different states have varying rules regarding the guardianship process.

Before a move can occur, a guardian will need to consider if the state he or she is moving the ward to will recognize the guardianship in their current state. To best ensure the guardianship is correctly transferred, we recommend speaking with an attorney who is familiar with both state laws.

Continue reading

Estate planning often focuses on married couples, but estate planning for a single person is equally as important. A single person often owns assets in their name individually, which means these assets must go through the probate process when the person dies. The big question then becomes whom do these assets pass to?   In addition, asset protection and Medicaid issues become more important to address with a single person than a married couple.

A single person like any other person can own many assets and have a desire to see those assets distributed to certain people. Some assets, such as life insurance and retirement plans, are distrusted at death according to the beneficiary designations. If a person dies without a will, his or her possessions are passed intestate according to the intestate laws of the state. For a single person, the state law usually provides that a single person’s assets are passed to his or her closest relatives. If there are no relatives then the assets are collected by the state. So estate planning is needed if a person wants a say in how his or her assets will distributed.

What documents does a single person need?

A will acts as the foundation of an estate plan and serves as the blueprint for how a person’s assets are distributed after death. A will allows this person to name a guardian for young children. A will also assign an executor to help guide beneficiaries through the probate process. The executor can be a trustworthy friend or family member. A will allows the testator, or will maker, to take his or her beneficiaries thoughts into account.

A durable power of attorney is a document that lets a person appoint someone to manage your day-to-day financial and personal affairs if that person becomes incapacitated. A married person will usually name the spouse. We recommend a single person name a trusted family member or friend with a strong financial background. A medical power of attorney allows a third person to make decisions regarding a person’s health care and treatment. This does not have to be the same person who has the financial power of attorney. The person named in a health care power of attorney should be someone who respects your health care wishes, such as a choice not to be on life support when the odds of recovery are not good.

A will or trust are  also great tools when planning for the distribution of your estate. With a will, you can direct whom will receive your assets through probate. A trust is a legal device that holds assets for one or more beneficiaries. A trust allows the beneficiaries to take the trust’s assets without going through the probate process.

While married couples can protect their assets by owning them a certain way, a single person does not have the ability to use Tenants by the entireties or have a spouse own their assets.  It may be necessary to have a properly drafted LLC or Florida Asset Protection trust to help protect assets from creditors.  In addition, the max non exempt assets a single person can have and be eligible for Medicaid is only $2000.  Using certain trusts and other planning techniques into a single person can control assets and make them exempt from creditors as well as Medicaid (there is a 5 year look back for Medicaid planning).

If you are single and currently do no have an estate plan, we urge you to contact our office at 904-685-1200.

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