In Florida, the primary residence is often protected by the Florida constitutional homestead protections.

While in many other states, a persons homestead is not protected from creditors and can be lost to claims for Medicaid reimbursement, this is not the case in Florida. The only creditors that can make a claim against the home are those that do something with the home. These may include a roofer or the bank which financed the home.

If you or a spouse needs nursing home case, selling the home can place that asset or the money received from the sale at risk to creditors as well as Medicaid eligibility. There are several methods of avoiding probate on your homestead. Choosing the right method is not an easy decision without knowing your facts and circumstances.

Many people make the mistake of adding another individual through a deed. This mistake can cause tax problems, subject the home to creditors, cause the loss of part or all of the homestead tax credits, and create an ineligibility period for Medicaid.

Every person who owns and resides on real property in Florida on January 1 and makes the property his or her permanent residence is eligible to receive a homestead exemption up to $50,000. The first $25,000 applies to all property taxes, including school district taxes. The additional exemption up to $25,000, applies to the assessed value between $50,000 and $75,000 and only to non-school taxes
To apply for a homestead tax exemption, complete this Form.

In some situations, a ladybird deed or enhanced life estate deed may be a valid solution while in others a trust may offer a less expensive route and offer better protection for the beneficiaries.

An improper transfer or change in ownership can have many adverse effects including violating the 5 year Lookback for transfers on Medicaid.

To find out which option makes the most sense for your family, you should contact a Florida estate planning lawyer who is familiar with elder law issues and discuss your circumstances in detail.

We often get asked about the iPug™ Trust and how it can be so different than a traditional revocable trust or a standard irrevocable trust. The iPug™ takes the best parts of an irrevocable trust and mixes them with the best parts of a revocable trust to create a new type of irrevocable trust where you are in control and can make changes to the beneficiaries and management of the trust just like you can with a revocable trust.

Why Do People Love iPug™?
Because iPug™ Protects You and Your Family From:

  • Lawsuits
  • Nursing Homes
  • Those that want to take away what you worked hard for.
  • Children’s indiscretions, their spouses and divorce.

An iPug™ Keeps You In Control By:

  • Allowing you to control your assets until death.
  • Allowing you to retain some, all, or none of thel income from your assets.
  • Permitting you use of your assets during life.
  • Ensuring you are able to qualify for Medicaid in the shortest period of time possible (often less than three years).
  • Favorable income and estate tax treatment.

Asset Protection Planning includes many complex laws, including, trust law, Medicaid law, probate law and contract law. If you have been using a traditional trust or will to protect from probate, it may be time to upgrade your planning to include asset protection. An iPug™ trust can be used with your current estate plan with some minor changes to your will and trust documents.

If you live in Florida and own property in another state an ancillary administration will be necessary upon the death of the owner(s) of that property. This special probate administration will be in addition to the administration you have where you lived. This is required because real estate or real property is treated differently than personal property.

There are several ways to avoid the additional administration:

  1. The real estate could be owned in a business entity. This converts the ownership from one of the real estate to one of a personal property interest in the stock or membership of the business entity.
  2. The real estate could be owned in a trust. Because the trust survives you, the trust will distribute the property according to the terms of the trust. The trust can also be used for other property and may even enable you to avoid the probate of your entire estate.
  3. The real estate could be retitled using a ladybird or enhanced life estate deed. This special type of deed, available in some states, is very similar to a deed with a beneficiary designation.

Florida’s statutory probate fees apply for an ancillary administration like other forms of probate in Florida. The legal fees start at $1500 and are typically 3% or less for the first million dollars of value. If your property is located in another state, the fees may not be as reasonable as they are in Florida.

We would be happy to discuss your specific situation and help you determine if a business entity, trust, or enhanced life estate deed could benefit your family and help to avoid the costs and delays invovled with probate. Note: some methods of avoiding probate can protect assets from creditors of your and your estate.

Many times we get questions from clients asking if their revocable trust provides asset protection from creditors. The answer to this is the typical legal answer “It Depends”. That is it depends on who owes the money. In Florida a revocable trust can provide some limited protection against the creditors of your beneficiaries through a spendthrift clause, but it will not provide protection from the creditors of the person who creates the trust. Upon your death, the assets in your revocable trust are available to your creditors.

There is a new type of irrevocable trust that is similar to a revocable trust in terms of management, control, and no negative tax effects. This special irrevocable trust is called an IPUG and can be structured to provide asset protection for the items placed in the trust.

An IPUG can be designed to protect an entire asset, the principal, or the income from the asset. The most common design is to protect the entire assets. If you are concerned about protecting your assets from future creditors and the creditors of your children, an IPUG may be the right choice for you.

More articles on what an IPUG is and the benefits of using an IPUG trust.

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.

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