civil_digging600.jpgAs a Jacksonville Estate Planning and Elder Law Lawyer, not much comes as a surprise anymore, not even the few requests for un-burying the deceased. It may sound like a B rated movie, but the reasoning behind the requests I have received are heartfelt and compelling.

One family wanted to remove their beloved father from a nondescript cemetery to a Veterans cemetery. One family wants to bring their grandfather (who was married to their grandmother for 50 years) home to the family plot, where their beloved grandmother lies in wait for him. The reasons are varied, but most meaningful to the families making the requests.

Florida disinterment is governed by Florida Statutes Chapter 497, Funeral, Cemetery and Consumer Services. The statute prescribes the authorization, notification, and other procedures that must be followed to enable one to disinter a family member. The process of Florida Disinterment is further governed by the Florida Department of Financial Services, Board of Funeral and Cemetery Services, found in the Florida Administrative Code, Chapter 69K.

There are several criteria that must be addressed before a cemetery will perform a disinterment (exhume, digging up or removing from a grave or tomb). The presence of a licensed funeral director is required (unless the re-interment is to be made in the same cemetery).

There are several permits and written authorization releases that are also mandated. An authorization must be signed by the individuals who, at the time of disinterment, would be permitted to authorize the burial of the decedent. Also required, is a written release from the individual(s) who currently own the burial (interment) rights for the burial space from which the disinterment of the decedent it to take place.

Unless a cemetery is provided with all the proper documentation, they shall not perform the disinterment unless and until such time as they receive a court order instructing them to do so.

If you have any questions about a Florida Disinterment, contact a Jacksonville Estate Planning Lawyer, who has researched the issue and who has gone through the process of disinterment.

If you have more than 1 million dollars or 2 million dollars of January 2013, you may find that part of your estate will be subject to an estate tax of 55% and in some states subject to additional estate taxes and or inheritance taxes. (Florida does not have either state tax).

Many estate plans have been written with formulas that remove a portion of the assets when the first spouse dies. Those formulas are often based on the current federal estate tax exemption. They either pass the amount of the exemption to the spouse, and remove the excess or remove the amount of the exemption and give the rest to the spouse.

In 2010, these formulas were often broken because there was no estate tax. One family who had sold their stores to Best Buy a few years before was affected by this issue.

The lawyers scrambled to try to fix it at the last-minute but someone failed to comply with the requirements of witnesses and a notary for the modification to be valid. The surviving spouse would have lost the entire estate to the children because of the way the formula worked out.

This type of mistake can make a huge difference in the estate planning outcome and as a result we should each have our estate plan reviewed on a regular basis. Over the past few years there has been less need for life insurance trusts to stop the value of the insurance from being included in one’s estate. With 2013 changes, irrevocable life insurance trusts will become more important than they have been in many years.

While life insurance is generally not subject to income tax, it value is added back into one’s estate for estate tax purposes. This means that for many of us who have life insurance, it could be subject to a 55% tax and not provide as much to our family as we would like.

An ILIT or irrevocable life insurance trust can remove the life insurance from your estate so that it is neither subject to estate tax nor income tax.

On a regular basis we handle probate cases for families where the decedent tried to make their own will or tried to modify it themselves. Below is an example of a will that was created from a form or copied from someone else. While the will was validly signed as required in Florida and created a valid will, the person forgot to dispose of all of their property. It appears that of the provisions made, the person wanted to take care of their spouse first, then distribute $100 to one child and everything else to the other child.

Unfortunately the biggest asset in the estate, the decedent’s home was not devised in the will and thus would pass under the state’s intestate statutes. This will give the child that was to be disinherited 1/2 of the homestead.

Click to see a copy of theBad Florida Will

Thumbnail image for signhere.jpgThe following are a list of some critical issues to consider before you make the big decision to sign a power of attorney:

  1. Asset Protection – Nursing home costs in Florida can be outrageously expensive. Make sure that you really feel comfortable authorizing your agent to protect your assets from those costs. If you do, the agent may need to transfer ownership of certain assets to your spouse or children. Such authority must be clearly laid out in the power of attorney, and standard forms typically do not include this provision. Special powers need to be included to make these types of transactions.

  2. Health Care Issues – A health care power of attorney can allow your agent to make all kinds of health and personal care decisions for you whenever you are incapacitated. You can include instructions not only regarding end-of-life care, but also other situations that may arise. With a power of attorney your agent will be able to act for you even if you are not terminally ill or permanently unconscious. It is a good idea to give your agents some indication as to what your preferences are for daily activities. Without such instructions, you may not be doing what you want to do or participating in activities that you would prefer not to.

    Your agent should be someone who understands your values and who will be willing to advocate for your wishes in whatever situation may arise. Your agent can review the circumstances, consult with the health care providers, consider the prognosis, and then apply your wishes as set forth in the document when making decisions.

    Given the importance of such a document, it’s critical that you discuss your views on health care decisions with your agent and other loved ones. No document can anticipate the exact health circumstances that will arise in your future. Your family may have to make difficult decisions in ambiguous circumstances. Help them by talking with them now about your philosophy of life and death.

  3. Preventing Abuse – In the wrong hands, a power of attorney can be an excellent way to engage in financial abuse. The danger of abuse is especially great when the document includes the authorization to make transfers of your assets or to make changes to beneficiary designations. The best protection from such abuse is to choose someone as an agent who is completely trustworthy and will follow your wishes. But protective provisions can also be incorporated into your power of attorney. These include: 1) naming joint agents, 2) requiring approval by third parties for certain actions, such as transfers of assets, 3) limiting the persons to whom transfers can be made, and 4) requiring the agent to file regular accounts with third parties.

  4. Successor Agents – Just as you may someday be unable to make financial and health-care decisions, there is always a possibility that the person you choose as your agent may become unavailable to serve their role. Make sure you deal with this possibility by appointing more than one agent, either jointly or as a successor. Also, consider giving your agent the power to appoint a successor.

The power of attorney may someday become your most important legal document. A well-drafted power of attorney can be of enormous value to you and your family. A shoddy document can lead to disaster. If you have questions about estate-planning or creating a will or a trust, please contact a Florida Estate Planning Lawyer today or call (904) 685-1200.

Source:
Helping Elderly Parents with Their Finances,” by Ryan P. Zacharczyk, published at Dummies.com.

We see many problems with how homes are titled. Most are in attempt to avoid probate or make it easier on family members. Unfortunately, many of these cause real problems for family members in the future. Here is one example of something we see regularly.

Imagine this: You’re retired, your only significant asset is your home, you’re very close to your child or children, and you don’t want the cost of creating an estate plan. In such cases, what’s the harm of simply putting your home in the name of your child to avoid probate and then be done with it?
We’ve gotten this question more than once at our office, and we almost always advise against it. There are a number of reasons to keep your home in your own name, the biggest ones are, loss of control, loss of stepped up basis leading to increased income taxes the kids will pay, failure to use gift tax exclusions resulting in huge penalties to the IRS, increased property taxes and your child’s liabilities. These aren’t the only reasons to keep your home in your own name, however. Other reasons include:

  • Your relationship with your child may not be as great as you think it is. Once the home is in their name they have no obligation to continue to let you live in it one, two or ten years down the line.
  • You have more than one child. Putting your home in one child’s name can cause a rift of bad feelings between siblings. The alternative, of putting the home in the names of all your children, only makes it more vulnerable to liabilities and paperwork errors.
  • There are other, safer ways to avoid probate. One of those ways is with a Revocable Living Trust. A Revocable Living Trust is flexible and reliable, and doesn’t have to be expensive. In fact, a Revocable Living Trust can actually end up saving your family money in the long run.

Don’t make a mistake that could end up causing you to lose your home. Contact our office to discuss how we can help you protect your family and your assets from probate and liabilities.

Most parents want to love and treat all of their children the same, but when it comes to estate planning, not every child should be treated the same. In fact, insisting on treating all children exactly the same in an estate plan can often lead to disastrous consequences.

Each of your children is unique, and their circumstances may grow increasingly different, especially as they become adults and acquire jobs and extended in-law families. Each child should accordingly be treated as a unique individual.

Here are a few ways that wise parents might consider treating their children differently in an estate plan, but sill equally:

  1. Not naming all of your children as successor executors.
  2. Gifting the annual gift exclusion of $13,000 outright to some children while putting it in trust for another child.
  3. Leaving one child’s inheritance outright while leaving another child’s inheritance in trust–possibly even skipping a generation to help children or grandchildren.
  4. Some children will benefit from structured payments and others can deal with a lump sum of money or assets

The fact of the matter is that all of your children will be different people, with different strengths and weaknesses. While one child may love the trust and challenge that comes with being named executor, another might feel crushed under the weight of responsibility. One child might take an outright inheritance and invest it for retirement, while another child may want to do that, but have an ex-spouse or creditors who would seize an unprotected sum of money, leaving the heir with nothing.

Regardless of how you leave assets to a child or loved one, you should consider the ability you have to help them protect the assets from the reach of current or future creditors. There are new affordable asset protection trusts that can help protect assets from your creditors as well as your families creditors after you are gone.

Every parent knows that it is impossible to treat all of their children exactly the same. But it is possible to know your children, to be aware of their circumstances, strengths and weaknesses, and give them an equal inheritance in different ways.

religion.jpgMany parents hope to pass their values onto their children and grandchildren. Often one of the most important values that they hope to pass on are values based on religion and spirituality. In some cases, religious values are so important to a parent that they will even include mention of these values in their estate planning documents. Our firm strongly believes that an estate plan is not just about money, but about leaving a legacy, and we often encourage our clients to include mention of their values–religious or otherwise.

Formalizing a legacy of values is not always as easy as leaving a financial legacy, however; and there is a limit to how far a parent or grandparent can go in dictating religious values to their heirs. Being too restrictive in an estate plan in an effort to pass on religious values–choosing to disinherit children who marry outside the faith, for example–can often create divisions within a family and spark extended, costly legal battles, all while failing to have any true impact on your heirs’ beliefs. In addition, many of these clauses have historically been poorly drafted and violate the public policy of the freedom to marry and are stricken by courts.

One of the most common value-imposing strategies used by parents in estate planning is to require that children marry within a certain faith in order to receive their inheritance. This strategy has worked in some instances, for example, in 2009 the Illinois Supreme Court overturned the decisions of lower courts and unanimously ruled that Max Feinberg, and his wife, Erla, could legally cut off their grandchildren who chose to marry outside of the Jewish religion.

While this strategy may be accepted by the courts, it is often hurtful, and quite frequently expensively controversial, causing some heirs to challenge the will or trust; a process which can take many years and thousands of dollars to resolve. It is often better to explore other options as far as passing on values. One alternative to strict religious provisions that may penalize heirs who choose a different faith is to instead leave money for children and grandchildren in trust, and give your trustee discretion to make distributions based on the values you highlight when creating the trust. In this way you can provide guidance on how you would like your money to be distributed, but you leave some leeway for the trustee to consider special circumstances that you may not have anticipated and to weigh the potential consequences of each decision.

A trusted and sensitive estate planner can talk to you about what is important to you and your family, and help you choose the best and most respectful way to pass on your wealth and your values while not violating public policy and creating a costly will or trust contest after your gone.

News sources recently revealed that Facebook founder Mark Zuckerberg — as well as other Facebook top brass–use Grantor Retained Annuity Trusts ( GRAT or GRATS) to protect their assets and investments from excessive taxation. A Grantor Retained Annuity Trusts (more commonly called GRATs) is a perfectly legal–and very efficient–way to protect and pass significant assets from one person to another without incurring an exorbitantly high tax bill.

GRATs differ from certain other asset protection trusts in that they offer a good vehicle for wealthy investors who put money in start-ups, while other trusts may not. But it’s not only wealthy startup investors who may find GRATs useful. GRATs are an excellent way to shift wealth to others at little or no tax cost and with minimal legal and economic risk. As such, they can be the perfect tool for business owners, professional investors, and many others. Setting up a GRAT allows the investor/grantor to give assets over to the trust for a pre-determined number of years. During this time the assets appreciate and the grantor receives annual payments adding up to the asset’s original value plus a return based on a fixed interest rate determined by the Internal Revenue Service. At the end of the trust term the assets (at their new value) are transferred to the beneficiary named in the trust with none of the usual gift or estate tax on the appreciation.

This makes GRATs sound like the perfect (and perfectly simple) tool, but nothing is perfectly simple. The pre-determined lifetime of your GRAT will depend on your individual circumstances, as well as the tax laws at the time, so you’ll want to make sure you have the help of an experienced and knowledgeable attorney helping you design your trust. Contact our office for more information.

We also have other types of irrevocable trusts that can be used to create similar benefits with or without inclusion in your estate. Today with the estate tax exemption at 5 million not everyone will benefit from a GRAT but for those with less than 5 million, some of our other trusts can offer the same benefits as GRATs offer the wealthy.

Here are three compelling reasons to make an estate plan. We all know people similar to those portrayed below. While estate taxes and probate are often compelling reasons to create estate plans, sometimes it is the family dynamics that drive the necessity of estate planning.

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