Florida Estate Planning Lawyer Blog

As generations grow older, more and more women will find that they have significant assets worth giving to others when they pass away. In most parts of the world women have a longer life expectancy and commonly marry older men. This means that there is a good chance a wife will inherit her husband’s estate if she outlives her husband. Since the wife will typically outlive the husband, she will have the last word about the division of property between heirs when she passes away.

Due to statistics that show many women do not make as much money in their lifetime as men, it is important for women to do Florida Estate Planning . Women’s living standards could be compromised if proper estate planning is not accomplished. By planning for unforeseen circumstances with insurance and a Florida Revocable Trust, living standards can be easily maintained should anything occur to you or your loved one. Another issue to consider is how assets to a spouse may be limited to allow the spouse to obtain benefits but not put the families assets at risk. This is a combination of Elder law and estate planning.

Florida Estate Planning has never been something only men should complete before they pass away. In modern society, women are dying with significantly more assets than a vast number of men. A Florida Will or Florida Revocable Trust can ensure that your assets pass to your chosen heirs. Speak to a Estate Planning Lawyer in Jacksonville Florida who can assist you in fulfilling all your estate planning needs.

Creating a Florida Revocable Trust is a job that most Florida Estate Planning Lawyers are capable of but the process of avoiding Florida Probate does not end there. Once the Florida Revocable Trust has been created it must then be funded with the client’s assets. Without proper funding all of the assets that should have been in the trust will pass through Florida Probate costing heirs extra money in taxes and fees.

In order to fund your Florida Revocable Trust properly, you need to transfer ownership of your assets into the name of the trust. Personal property can be transferred using a document called a General Assignment or Assignment of Personal Effects. Real property is a little more complex because it requires executing a new deed transferring the property from your name as an individual to the name of the trust. Institutions with which you have bank and brokerage accounts usually require a showing that your trust exists and that it is your wish to have these accounts transferred. A Certificate of Trust is a document that provides proof of the existence of your trust and is usually given to the client in the living trust package he receives from his Florida Estate Planning Attorney.

Forgetting or neglecting to fund your trust is something you wouldn’t want to do after going to all the trouble to create a trust in the first place. Even if you initially funded the trust with assets there are many cases where people have acquired a significant amount of assets later and never transferred them to the trust. If you would like assistance in creating a revocable living trust or an assessment of your existing trust contact a Florida Revocable Trust Lawyer or Jacksonville Estate Planning Lawyer today!

According to Forbes Magazine the United States has over four hundred billionaires. Currently, three Liberal members of the Senate are working on a plan that calls for a 10% estate “billionaire surtax” that would go into effect retroactively. This would raise the tax rate to 65% on all estates that have accumulated more than $1 billion in assets. These lawmakers believe that billionaires should be required to pay more in estate taxes due to the increasing federal budget deficit and national debt.

This harsh tax proposal may have been spurred by the death of Texas billionaire Dan L. Duncan who passed away in March with a net worth of $9.8 billion. Since Duncan died this year, his entire estate passes to his heirs tax-free. If these Senators’ proposal is enacted, it will hit Duncan’s estate retroactively, immediately prompting a court challenge to its constitutionality.

Republican Senators and some less liberal Democrats are opposed to any retroactive plan. Seeing that the only way to come up with a legitimate plan is through bipartisan cooperation, two other Senators have been working on a compromise. This would impose estate taxes on estates above $5 million at a maximum tax rate of 35%. If Liberals have their way they would also seek to eliminate or restrict the use of GRATs because those trusts are popular tax breaks for the wealthy. If you have any questions or concerns about how these new laws may effect you contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer for assistance.

In Florida, it is a common principle of law that criminals should not profit from their crimes. Therefore, it follows that a murderer should not be able to inherit from the estate of their victim. The most common, but unfortunate event that would trigger a slayer statute would be when a spouse murders the other spouse.

Under the Florida statute, a surviving person who unlawfully and intentionally kills or participates in killing the victim is not entitled to any benefits under the intestacy code or the victim’s Florida Will or Florida Revocable Trust. Property that was originally meant for the killer passes as if the killer had predeceased the victim. A final conviction of murder in any degree is conclusive for purposes of this statute but in the absence of a conviction of murder in any degree, the court may determine by the greater weight of the evidence whether the killing was unlawful and intentional.

There are many situations where the slayer statute could arise in Florida Probate proceedings of a Florida Estate. None of them are simple and should be dealt with quickly and efficiently. For more information on how to deal with slayer statutes contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer.

Being named the “Personal Representative” or “Executor” of someone’s estate under a Florida Will should be a decision made after consider several factors. Although many people may be tempted to name their spouse or one of their children as personal representative, there are certain qualities one should look in a candidate before deciding who to name. The following is a list of traits you should look for when deciding who should serve as your executor:

1. Loyalty – the executor should be loyal to your beneficiaries and loyal to your final wishes. 2. Fair – the executor should treat multiple beneficiaries fairly and protect all of their interests equally in the probate process. 3. Trustworthy – the executor will be trusted with large sums money, real property, and personal property. Your executor is capable of investing and selling all of these assets and will know all of your financial secrets. 4. Organized – the personal representative you choose will be responsible for performing several comprehensive tasks with deadlines that must be met. Good organizations skills make it quick and easy to locate information. 5. Financial Background – the personal representative should understand finances because during the probate process he must pay debts and collect revenues for the estate. Also, financial minded people can deal with investment accounts so they won’t suffer or drop in value before they can be distributed to your heirs. 6. Tough Minded – the executor should be able to deal with greedy beneficiaries who want their inheritance right way and any unforeseen circumstances that could arise.

With the proper personal representative, you can ensure that your estate is safe and distributed according to your wishes. For assistance in choosing a Personal Representative, contact a Jacksonville Estate Planning Lawyer today.

Intestate succession is a statutorily imposed way of passing property to descendants after death. In Florida, an adopted child is treated exactly the same as if he/she was a natural born child of the adoptive parents (mother and/or father). This means that for the purpose of intestate succession by an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent's family. The adopted person is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent's family.

Adoption of a child by a step-parent, who is married to a natural parent, has no effect on the intestacy rights between the child and the natural parent or the natural parent’s family. This is true even if the child was adopted by the step-parent after the death of the other natural parent. For example, imagine that Tom and Kate are married and have one child Jane. If Kate dies and Tom later remarries and his second wife adopts Jane, Jane would maintain her rights to inherit from Kate’s family under Florida intestacy statutes. As long as Kate's family lives in Florida Jane will be protected, but if Kate's family lives in other states, you would need to check how step-parent adoptions are treated in the state where the relative lives.

One final thing worth mentioning regarding adopted children’s intestacy rights is that in certain circumstances an omitted child from a Florida Will can receive a share of the estate equal in value to that which the child would have received if the testator had died intestate. However, an obvious intentional omission or devises of substantially all the estate to the other parent of the omitted child will likely result in no gift for the omitted child. To discuss your circumstances or ask questions about this or other Florida Estate Planning issues contact a Jacksonville Estate Planning Lawyer.

Florida Revocable Trust are managed by a Trustee who is the person(s), or in some cases entity, that hold legal title to property for the benefit of an equitable title holder.

Often the grantor of the Florida Revocable Trustselects the trustee who is responsible for making sure the beneficiaries are taken care of according to the grantor’s wishes. A single beneficiary or group of beneficiaries can become dissatisfied with the performance of the trustee when unfortunate circumstances occur. This may lead to a difficult court proceeding where the removal of a trustee is sought.

Under the current Florida statute a beneficiary, co-trustee, or the grantor of the trust may request the court to remove a trustee. When a removal request is made, it is up to the court to decide if there are sufficient circumstances that justify the trustee’s removal.

The Florida Trust statute expressly states that the court may remove a trustee if:

1) The trustee commits a serious breach of trust,
2) There is a lack of cooperation among multiple trustees,
3) The trustee is unfit, unwilling, or persistently fails to administer the trust effectively, or
4) There has been a substantial change of circumstances or all beneficiaries agree to the removal, the removal of the trustee best serves the interests of all of the beneficiaries, is not inconsistent with a material purpose of the trust, and a suitable co-trustee or successor trustee is available.

Many people create a Florida Will on their own or with a Florida Estate Planning Lawyer and later want to make a change to one or all of the beneficiaries.

Although this can be frustrating because substantial time and thought went into creating the first Florida Will, there are certain procedures a Florida resident should follow when destroying or modifying the Florida Will.

If you wish to destroy or cancel your Florida Will, there are a few common techniques to use that are considered valid in courts. The goal is to leave no doubt that the will no longer contains your final wishes, should you pass away. Tearing, mutilating, shredding or cutting the Florida Will into small pieces is an effective way that leave no doubt that the will should no longer be recognized as an individual’s last wishes. While burning your Florida will could cause a fire hazard and should be done with caution, it is also recognized as an effective way to revoking your Florida Will. However, if the Florida will is destroyed because of an accidental tear or is burned in a fire it still remains effective because there was no intent to revoke (as long as there is something that can be used to replace the original Florida Will.

When attempting to modify a Florida Will your efforts should conform with the requirements found in the Florida statutes for WIlls and Trusts. Some techniques that courts have found are invalid when modifying or destroying a will include crossing out only part of the document with pen and writing void on the back of a will. Florida Willsrequire two witnesses when making any alteration or modification of a will. If they are not there to witness the changes made, then a court will not uphold modification. The witness must sign the will in the presence of each other and in the presence of the creator of the will- who must sign at the end of the document also.

It is important to remember that after destroying or revoking a will it leaves the individual with no estate plan to distribute their assets when they are gone. That means it is the same as dying with no will at all. If this happened the state intestacy laws control how the assets of your estate will be divided upon your death. Thus, it is important to discuss these issues with a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer to make sure that you understand what will happen in the event of your death.

When using a Specific Devise in a Florida Will or Florida Revocable Trust it is important to understand how they work and what causes them not to work in order to avoid unintended consequences.

A specific bequest is a gift of a particular identifiable asset within the estate that can be distinguished from any other estate property. For example, “I give the Picasso painting hanging in the living room to Jane” or “I give all of my baseball cards to my son David Goldman.” Typically, specific gifts are given in a Florida Will to a beneficiary that will keep and use the property. Upon the death of the Testator (the person who made the will), problems arise when specific gifts are no longer owned or in their possession or if there is not enough money to satisfy the gift.

In Florida, a specific gift is deemed to be extinguished to the extent that the testator does not own it when they die. This means that the gift is void and the beneficiary has no right to collect the gift. In the previous examples above, if the testator had sold the the Picasso painting or box of baseball cards before his or her death, the gifts would be extinguished and Jane and David would be left with nothing. The problem can also arise when there are specific devises of money in dollar amounts but not enough money or the money is in account with joint ownership or payable on death designations. Since these accounts are not subject to probate, there is no money to give to the named beneficiaries. This can also happen if cash is given, but only stocks are owned at death. There is no requirement to sell other assets to satisfy the specific gifts in the estate.

However, recent changes in the law allow the beneficiary of a specific gift to receive a general gift equal to the sale price of the property if a guardian of the property sold it instead of the testator.

If you would like advice or counseling on any matters related to your devises in your Florida Will or Florida Revocable Trust contact a Jacksonville Estate Planning Lawyer to aid you in the estate planning process.

It is a common mistake many people make to believe that only the rich and wealthy need to implement a Florida Revocable Trust as a component of their Florida Estate Planning. Often after taking into account your home, bank accounts, cars, brokerage accounts, jewelry, collectibles, and life insurance policy most individuals will see their estate is much larger than they believed. Without proper utilization of Florida Estate Planning tools such as a Florida Revocable Trust, this amount can be subject to high costs associated with the Florida Probate process and potentially federal estate taxes or death taxes. While there are no Federal or Florida estate taxes in 2010, the annual exclusion is expected to drop in 2011. Many believe we could see only a 1 million dollar exclusion in 2011.

There can be many advantages of using a Florida Revocable Trust for you estate planning needs rather than a Florida Will. First, privacy is an advantage offered by a living trust but not a will because after death wills are publicly recorded and copies may be viewed or purchased. A second advantage is that a Florida Will often requires the expense and delay of Florida Probate. With the attorney fees, executor fees, and tax consequences involved with probate, thousands of dollars could be saved with a living trust.

A third advantage is control and to some extent the protection from creditors with the money and assets given to beneficiaries. Often your beneficiaries creditors are not be able to satisfy their debts from your trust funds when the trust is properly setup and managed. However, if the money were given outright in a Florida Will, creditors are be free to collect their debts with those funds. Another advantage worth noting is efficiency with which assets are distributed. Probate proceedings usually take between 6 months and 24 months. Throughout these proceedings the assets are usually tied up and cannot be enjoyed by the beneficiary.

A Florida Revocable Trust can provides significant advantages for many people that cannot be obtained with only a simple will. To receive these benefits your goals should be shared with a Jacksonville Estate Planning Lawyer to determine what options you have and how to implement them to meet your desires.

Florida Estate Planning involves many situations where is the potential do have disputes over money or assets. Many problems arise from poorly planned and drafted estate planning and these can lead to fights amongst family members, IRS audits, and lead to high litigation costs. Focusing on your specific needs can avoid these pitfalls and can benefit those individuals with all sizes of estates.

It is important to first understand and define your objectives and resources. In order to get a custom-tailored Florida Estate Plan, a Florida Estate Planning Lawyer must be able to explain exactly what you want in terms you can understand. In some cases there are advantages in giving up control over your assets. Part of the process often involves talking with children and other beneficiaries about the estate plan and educating them on how to use it to their benefit after you are gone. Your plan can often offer your children protection into their lives from divorce or claims by creditors if used properly. In addition, many future disputes can be avoided by helping your beneficiaries to understand your goals, objectives, and reasoning behind the decisions you are making. While documents are a large part of the Florida Estate Planning process, effective communications, a clear understanding and education of all those involved will help the plan be successful when you are not there to manage it.

If you would like professional assistance with your Florida Estate Planning contact an experienced Florida Estate Planning Lawyer to help you in these matters.

In a recent article I discussed disclaimers, which are a refusal by a person to accept an interest in property. According to the Internal Revenue Code § 2518, the following is a list of requirements for a qualified disclaimer to be effective in Florida.

(1) A refusal is in writing,

(2) Such writing is received by the transferor of the interest, his legal representative, or the holder of the legal title to the property to which the interest relates not later than the date which is 9 months after the later of—
(A) the day on which the transfer creating the interest in such person is made, or
(B) the day on which such person attains age 21,

(3) Such person has not accepted the interest or any of its benefits, and

(4) As a result of such refusal, the interest passes without any direction on the part of the person making the disclaimer and passes either--
(A) to the spouse of the decedent, or
(B) to a person other than the person making the disclaimer.

There are different types of disclaimers for different assets. I have included a sample form of what is required to make a qualified disclaimer under a plan Download file. Because of the risk of doing an incorrect disclaimer, it is advisable to have a Florida Estate Planning Lawyer review or create the disclaimer for you.

Most people in today’s society would be happy to discover that they were being left an inheritance in a Florida Will . However, since inherited property under the estate laws of Florida is a gift, the beneficiary does not have to accept the inheritance. Although declining to accept a gift would seem odd to some people, there are a few reasons why it would be beneficial not to claim inherited property.

One reason why a person may not want to accept an estate gift is because the property may be undesirable. Property may become undesirable when there is a large debt owed on the property or significant maintenance would be required to sell the property. For example, an old abandoned gas station that was given to you in a will would probably not be worth taking because of the significant costs to modify the property and the taxes that could come with it.

Other reasons why someone would disclaim property are to prevent your creditors from taking the property, a feeling that it is wrong to benefit from someone’s death, and to reduce your tax burden, or it will only create additional estate taxes upon your death. While it may not be permissible to disclaim the property in all situations to avoid creditors, you should discuss your specific goals with a Jacksonville Estate Planning Lawyer as soon as possible because there are time limits on when a properly filed disclaimer can be done. Whatever your reason may be for not wanting the gift it is important to know a disclaimer must comply with federal law. Contact a Florida Estate Planning Lawyer who can assist you in the process and insure that the disclaimer is done correctly and complies with the appropriate laws of the jurisdiction.

Under ideal circumstances a husband and wife will agree to what the surviving spouse should receive when the other dies. However, many times when this doesn’t happen the surviving spouse receives a portion of the estate they are unsatisfied with. For example, an elderly couple who marries later in life may want to provide their grandchildren, so they leave 90% of their estate to them and 10% to their wife. In Florida, if the wife is unsatisfied with these conditions, she may make a claim for an elective share.

An elective share is statutorily defined as a right of the surviving spouse to a specific portion of the estate when he/she isn’t satisfied with the amount received under a Florida will. Taking a 30% elective share of the estate is something a surviving spouse has a right to in Florida. However, the elective share does not overcome a pre or post nuptial agreement between the husband and wife.

Many times the elective share consists of more than just the net probate estate. The assets subject to the elective share can be different than those subject to a probate and it is a complicated process to calculate what assets should be included in a Florida Elective Share. Therefore, the surviving spouse will receive 30% of the elective estate which include other property interests that pass outside of probate. To discuss what property is subject to the elective share and what amount may be due to you contact a Florida Estate Planning Lawyer or Florida Family Law Attorney to assist in the estate planning process.

Florida has no Estate Taxes, but there may still be Federal Estate taxes due. Before the distribution of assets of the deceased’s estate can occur, the federal government has the ability to take their share of the estate. The Federal Estate tax has been repealed for the year 2010 but in past years the tax has been applied to every U.S. citizen who died leaving assets to be distributed to their heirs. - This does not mean no taxes will be due for individuals who die in 2010. Remember the law does not allow an unlimited amount of capital gains like in previous years. There is not an unlimited amount of capital gains like in 2009. This means even with an unlimited estate tax exemption, some people will pay more in estate taxes under 2010 than under previous years.

In past years the estate tax was applied only on funds that exceeded the net estate amount set by Congress. For example, if an individual died in 2009 leaving a net estate of $3.5 million then the federal government would not have taxed the estate because the net estate did not exceed the amount exempted by Congress. However, if the net estate would have been $4 million instead, the estate would be taxed at a rate of 45% on the amount over $3.5 million. So in this case the Federal Estate tax liability would be ($500,000 x 45%) which comes out to $225,000.

Currently, there is no plan to repeal the Estate Tax exemption for 2011. Before the 2010 repeal, Congress had increased the tax exemption given to individuals who died and whose net estate was distributed to $3.5 million. However, the current plan for 2011 is to have a tax exemption of $1 million and a tax rate of 55%. If the current plan remains in effect it will place a much greater tax liability on assets and funds that are distributed out of the net estate of those who die next year.

Thus, it is important to discuss the estate tax process and what tax liability your estate may be subject to in future years with an Florida Estate Planning Lawyer. Some assets are exempt from tax liability and with proper planning your federal estate tax liability in future years could be significantly reduced.

When a person dies, who owned a property protected by a Florida Homestead we generally expect the property to be free from the claims of creditors.

There are certain situations when this is not true and other types of planning could prevent creditors from making claims against your Florida Homestead.

So when will your property lose homestead protection upon your death:
1) if you are not survived by a spouse or children and devise your property o people not listed in Florida Statute 732.103.
2) If you are not survived by a minor child and have a valid prenuptial agreement or waiver of homestead rights with your spouse and devise the property to someone not named in Florida Statute 732.103.

(Florida Statute 732.103 deals with the spouse, descendants, parents, siblings, grand parents, uncles, aunts, their kindred, and great-grand parents.)

If you want to leave your homestead to someone who is not defined in Florida Statute 732.103 we can help you maintain protection from the claims of creditors and avoid probate. Since there can often be many unexpected and significant expenses associated with end of life, it could be a good idea to plan to protect what could be your single largest asset- your home.

Note that many people incorrectly believe that a Revocable living trust can protect your home from the claims of creditors. While there may be homestead protection for those defined in Florida Statue 732.103, a Florida Revocable Trust in an of itself does not provide asset protection.

To talk about how to protect your assets and home from the claims of creditors, contact a Florida Estate Planning Lawyer.

A Jacksonville Trial Lawyer can be very helpful in the event that your dispute needs to go to trial. There are many different types of Jacksonville trial attorneys. The Apple Law Firm has Jacksonville Civil Trial lawyers as well as Jacksonville Criminal Trial Lawyers. We Deal with Family law, criminal, trust, will, estate planning, foreclosure defense, probate, guardianship, and asset protection issues. Many cases never go to trial and are settled by a Jacksonville Trial Attorney long before seeing a court room. If you would like t discuss your circumstances or what options you have to protect your rights please contact a Jacksonville Trial Attorney today.

For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

Yes, heirs have a right to see the will and to know everything about the assets and distributions. Yes, some personal effects can be distributed before the "will closes" or the probate is closed.

Florida probate laws include many protections for the beneficiaries of a probate estate. If you are a beneficiary under a Florida Will and there are assets that were required go through probate, you should have received some notifications.

You should require that the Custodian of the will deposit it with the court. If they refuse, they can be ordered to by the court and are subject to reimbursement of your legal fees.

If you have a relative that is unwilling to share the contents of a Florida Will you should contact a Florida Estate Planning Lawyer or Florida Probate Lawyer to discuss your options.

Note, in Florida you do not have any right to see a will while they are still alive.

Whether you live in Florida, New York, California or any state and are the owner of a Toyota car, truck, or SUV, your Toyota Automobile may have just dropped in value. We all know there will be many Class Action Lawsuits against Toyota. Here is one class action that you may not have considered. Even if Toyota fixes the problems and no one is injured from a defect in your Toyota car, the recent bombardment of news has caused your automobile to decrease in value. You may ask, why is this on a Florida Estate Planning Lawyer's website? What if you are the PR of an estate that owns a Toyota vehicle, a trustee of a trust that owns a vehicle, or the guardian of someone who owns a Toyota car subject to the recall? You may have a duty to investigate what claims of action you might have to avoid liability. Remember that by failing to investigate a claim or pursue one, you may be violating your fiduciary duty.

The good news that whether to pursue these types of claims is a simple one as they are almost always done on a contingency basis. If you have a potential claim you might want to contact Florida Toyota Class Action Lawyer Mike Ossi at (904) 399-0606 to talk about a claim.

Jacksonville Divorce Lawyer: What does Florida Divorce Law have to do with Florida Estate Planning? We often find that Estate planning is needed most around the time of a Divorce in Florida. We now have a Jacksonville Divorce Lawyer on staff to help deal with the unique issues of Jacksonville Child Support, Jacksonville Child Custody, and Jacksonville Family law.

These issues often arise around the time of Florida Estate Planning or in conjunction with a Florida Probate.

If you have questions concerning Florida Estate Planning contact one of our Florida Estate Planning Lawyer or Jacksonville Divorce Lawyer to discuss your situation.

We will begin to cover topics related to Estate Planning, Probate, and Trust Administration and Florida Foreclosure Defense in relation to Florida Family law from a Jacksonville Divorce Lawyer's prospective.

For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

Yesterday, the House of Representatives voted 225-200 in favor of H.R. 4154. The bill will make the 2009 Estate Tax Level Permanent.

Currently (for 2009) the estate tax exemption is $3.5 million and the maximum tax rate on estates is 45%. The Bill referred to as the Permanent Estate Tax Relief for Families, Farmers, and Small Businesses Act of 2009, would permanently extend this estate tax exemption amount and tax rate.

The Bill still needs the Senate and President's approval.

as a Jacksonville Foreclosure Lawyers who also practices Florida Probate Law I see many Florida Estates where the decedent's home has negative equity. If you are appointed the Personal Representative of a Florida Probate you should explore Florida Foreclosure Defense. You may have a fiduciary duty to do so and preserve the assets of the estate.

If you are considering a Florida Foreclosure Defense you will need to do a Formal Administration of the Probate so that a Florida Personal Representative can be appointed to defend the Florida Foreclosure and pursue counterclaims on behalf of the decedent's estate or beneficiaries.

For more information on Jacksonville or Florida Foreclosure Defense See the Florida Foreclosure Defense Lawyers Blog.

Will Contest Clauses are generally included to prevent children or beneficiaries from attempting to dispute their portion of an estate. In some states they are valid and many others like Florida they are not valid by statute.

Given that a No Contest Clause in a Will is invalid in a Florida Probate case, should they be used in Florida? If your will is contested and the end result under the state statute may be the same, it may provide any benefit to include the no contest language.

Today people move quite often and may have assets in other states that do recognize Will Contest clauses. Given that one of these situations may enable a no contest clause to be enforced, it might be a good idea to include them in your Florida Estate Planning Documents.

Under the Florida Trust Code a Florida Revocable Trust is not able to have a contest clause, unless the right to revoke the trust terminated prior to October 1, 1993.

While its not possible to have a no contest clause in a Florida Revocable Trust, Florida does allow a trust to specify the laws of another state to be used in interpreting and administering the trust. So in effect, by drafting your trust correctly, you can have a no contest clause.

There are several ways to accomplish the desired results from a no contest clause in a will or trust. To discuss your specific issues and how one might benefit you, contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer

Virtual adoption is not defined under the Florida Statutes. There was a recent Florida Bar article entitled Virtual Adoption: Not Just for Netizens written by Brian R. Dolan and Joel M. Commerford.

The Fifth District Court of Appeal listed the following elements which are necessary to establish a virtual adoption:

1. An agreement [to adopt] between the natural and adoptive parents;
2. Performance by the natural parent[s] of the child in giving up custody;
3. Performance by the child by living in the home of the adoptive parents;
4. Partial performance by the foster parents in taking the child into the home and treating the child as their child; and
5. Intestacy of the foster parents.

All five elements must be present, and these elements must be proven by clear and convincing evidence.

A virtual adoption means that the person is an heir and a possible PR.

As the use of genetic material becomes more accepted, the issue of what and how to deal with it has begun to be an important part of estate and trust planning and administration. Not only could this change distributions or dilute inheritance, but without guidelines or requirements for the disposition of genetic materials, there could be a conflict between the legal requirements of a trustee and what is ethically permissible as well as legal at the time of your death. The Wills, Trust & Estate Professors Blog has an article that references Jerry Coopers's article on Trust Administrators Tool-Up for Custody and Care of Client's Genetic Property.

This was included in version 7 of the Florida Probate Handbook as such I wanted to publish it on my blog for those of you who did not receive it.

An accounting is required to provide notice of the time to object. The notice shall state that objections to the accounting or inventory must be filed within 30 days from the date of service of the notice. Any interested person may file an objection to any accounting within 30 days from the date of service. If an objection if filed later than 30 days it is deemed to be abandoned. The objection shall be in writing and shall state with particularity the item or items to which the objection is directed and the grounds upon which the objection is based. All objections must be served on the fiduciary who filed the accounting as well as all other interested persons.

Follow this link to request your free copy of the Florida Probate Handbook

This was included in version 7 of the Florida Probate Handbook as such I wanted to publish it on my blog for those of you who did not receive it.
The Personal representative shall file an inventory within 60 days after the issuance of letters of administration. The inventory must contain notice of the beneficiaries’ rights, list the assets with reasonable detail and its estimated fair market value at the date of the decedent’s death. Homestead property is also listed and designated as a protected homestead. The court can extend the date the inventory is due with cause and no notice is necessary. If there is an extension, the PR must serve copies of the petition and order on Department of Revenue, the surviving spouse, each heir at law in an intestate estate, each residuary beneficiary in a testate estate, and any other interested person who may request it in writing. The personal representative shall file proof of such service.

Follow this link to request your free copy of the Florida Probate Handbook

Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In the handbook, you will:

•Learn about four types of Florida Probate.
•Learn about what is involved in opening a Florida Probate.
•Learn about the responsibilities of being a Personal Representative or administering a Florida Probate.
•Learn why a lawyer is required in most Florida Probates.
•Learn the steps involved in a Florida Probate.
•What type of Florida Probate do I need?
•Am I responsible for the bills of the Estate?
•Can I object to claims of creditors?
•Do I need an attorney to help me?
•How can I get a copy of a Florida Will?
•What are the penalties for not filing the Will within 10 days of death?
•If there was a trust, what happens to it, whom must I notify, and what needs to be filed with the court?

Trust Arbitration Clauses are common in Florida. In many states, they are not always enforced but Florida passed a law a few years ago that makes them enforceable in Trusts.

Florida Statute 731.041 Arbitration of disputes.

(1) A provision in a will or trust requiring the arbitration of disputes, other than disputes of the validity of all or a part of a will or trust, between or among the beneficiaries and a fiduciary under the will or trust, or any combination of such persons or entities, is enforceable.

(2) Unless otherwise specified in the will or trust, a will or trust provision requiring arbitration shall be presumed to require binding arbitration under Florida Statute 44.104.

We are often asked what is Arbitration?

Arbitration is process of dispute resolution in which a neutral third party (arbitrator) renders a decision after a hearing at which both parties have an opportunity to be heard. Where arbitration is voluntary, the disputing parties select the arbitrator who has the power to render a binding decision.

An arbitrator’s decision may be binding upon the parties or non-binding.

Binding arbitration is more common in trust documents, non-binding is usually a way to allow each side to test there position before having the full expense of a trial and is a hybrid of mediation and a trial.

Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

We often get calls from clients stating that they believe they are included in the will of a father, mother, or any decedent but have been unable to obtain a copy of the will to verify their thoughts. It is important to understand that just because you are included in a will, it does not mean you will receive what the will states. Often a parent has remarried and the Florida Will only transfers assets that are subject to probate. If all of the assets are jointly owned with their new spouse, there is nothing to pass through probate.

This concept is hard for people to understand and even harder when an unfriendly step-parent is involved. Regardless, many people still want to see their parents Florida Will. Generally we will send the custodian of the will a letter informing them of their obligation under Florida law to file the will within 10 days. If they refuse to do so, you have three choices:

1) do nothing or wait until they comply;
2) file a lawsuit asking that the court direct the custodian of the will to deposit it and reimburse you for your costs; or
3) open a probate and ask the court to order the custodian of the will to deposit it and reimburse your for your costs.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida, A personal representative shall be entitled to a commission payable from the estate assets without court order as compensation for ordinary services. The commission shall be based on the compensable value of the estate, which is the inventory value of the probate estate assets and the income earned by the estate during administration.

(a) At the rate of 3 percent for the first $1 million.
(b) At the rate of 2.5 percent for all above $1 million and not exceeding $5 million.
(c) At the rate of 2 percent for all above $5 million and not exceeding $10 million.
(d) At the rate of 1.5 percent for all above $10 million.

(a) The sale of real or personal property.
(b) The conduct of litigation on behalf of or against the estate.
(c) Involvement in proceedings for the adjustment or payment of any taxes.
(d) The carrying on of the decedent's business.
(e) Dealing with protected homestead.
(f) Any other special services which may be necessary for the personal representative to perform.

If the personal representative is a member of The Florida Bar and has rendered legal services in connection with the administration of the estate, then in addition to a fee as personal representative, there also shall be allowed a fee for the legal services rendered.

Upon petition of any interested person, the court may increase or decrease the compensation for ordinary services of the personal representative or award compensation for extraordinary services if the facts and circumstances of the particular administration warrant. In determining reasonable compensation, the court shall consider all of the following factors, giving weight to each as it determines to be appropriate:

(a) The promptness, efficiency, and skill with which the administration was handled by the personal representative;
(b) The responsibilities assumed by and the potential liabilities of the personal representative;
(c) The nature and value of the assets that are affected by the decedent's death;
(d) The benefits or detriments resulting to the estate or interested persons from the personal representative's services;
(e) The complexity or simplicity of the administration and the novelty of the issues presented;
(f) The personal representative's participation in tax planning for the estate and the estate's beneficiaries and in tax return preparation, review, or approval;
(g) The nature of the probate, nonprobate, and exempt assets, the expenses of administration, the liabilities of the decedent, and the compensation paid to other professionals and fiduciaries;
(h) Any delay in payment of the compensation after the services were furnished; and
(i) Any other relevant factors.

Can a Florida Quit Claim deed be recorded after death? Generally any deed can be recorded at any time even after the death of the grantor. However there can be problems created by the delay in filing. First, we often see that the deeds were never delivered and as such are ineffective and not a valid conveyance of the property. In addition, the deeds can be wrong or incomplete and create problems that the grantor is not alive to fix. Third, there is now a requirement in Florida to update the property appraiser with any change in beneficial ownership. Generally the reason why deeds were not recorded in the past was to avoid loss of homestead and keep property taxes lower. Florida's new requirement places penalties on this type of fraud, whether done intentionally or not.

You should have your deeds reviewed by a Florida Estate Planning Lawyer to make sure you are using the right type of deed, are protected from creditors, are not creating additional liability, are not creating unreported gifts and are accomplishing your goals.

Are you searching for Free Florida Probate Forms? In most Florida Probate cases the personal representative or executor must hire an attorney. While this is not necessary in some other states, the Florida laws require it. A Florida Probate Lawyer will be familiar with the rules of the probate process in Florida.

The Attorneys at Apple Law Firm PLLC can help you to understand the complicated forms that are associated with Florida Probate . Whether you are a personal representative, an executor, a creditor, or a beneficiary, we can help you file the correct paperwork and make sure that everything is done correctly so that the court will be able to grant what is being requested. A Florida Probate Lawyer can help you make sure you do not miss any of the steps necessary to be heard.

Your search for Florida probate forms stops here. Much of the information necessary for a successful Florida Probate can be found on this website.

We are flexible and evaluate Florida Probate cases using hourly fees and often can offer a flat fee cost lower than the statutory fees. In most cases you will be able to choose which you feel more comfortable with.

Receive your Free Probate Evaluation with the use of our Free Florida Probate Contact Form.

Is a Florida Probate required if the decedent had a living trust?
Most people do not transfer all of their assets into a Florida Revocable Trust prior to their death. If their home, or other personal property was not transferred into the trust prior to their death, a Florida Probate may still be required to properly dispose of the remaining assets. Often bank accounts, IRA's, land, business interests, or other assets are not transferred property.

The probate will typically take the remaining assets and follow the instructions of the Florida Will to distribute them. If the will directs the assets to a trust it is called a Pour-over will.

What happens if the Florida Will directs the assets to a non-existent trust. Unless the Florida Will contemplates this, the assets will be transferred by the residuary clause in the will or in the case that this does not exist, they will transfer under the Florida intestate statutes or as if there was no will.

If you are looking to find out about Florida Beneficiary rights, or how property should be transferred in a Florida Probate Contact a Florida Estate Planning Lawyer

Matthew Gardner an Estate Planning Lawyer who writes the Iowa Estate Plan Blog has an article on a child conceived after death and how his state and Social Security treats this child as not being an heir of the decedent. The Iowa Probate Code and many states specify that in order to qualify as an "heir" under Iowa law, you must have been conceived prior to the death of the biological parent. You can see with recent medical advancements, this with become more of an issue as time goes on.

If you have a potential for future heirs after your death, you may consider the jurisdiction of your trust or estate to avoid or permit additional children to share in your estate.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida who can be a personal representative, or executor, of an estate?

1. The personal representative could be an individual, bank, or trust company, subject to certain restrictions.
2. An individual who is either a resident of Florida, or is a spouse, sibling, parent, child, or certain other close relative, can serve as personal representative.
3. A trust company incorporated under the laws of Florida, or a bank or savings and loan authorized and qualified to exercise fiduciary powers in Florida, can serve as personal representative.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In aFlorida Probate, where the decedent did not have a will, Florida's intestate laws of succession define how property will be distributed between the person's family members.

If there was a surviving spouse and no lineal descendants the spouse will receive everything in the decedent's estate.

If there is no spouse but there are lineal descendants (children) then the estate is split equally between all surviving children. If a child predeceased their parent and had children of their own, that child's share will be equally divided between his or her children (the decedent's grandchildren). If the child that did not survive the parent did not have children, that child's share will go to his or her siblings equally.

If there is a surviving spouse and descendants and:

1. all of the descendants are also descendants of the surviving spouse, the surviving spouse will receive the first $60,000 plus 1/2 of the remaining estate, with the balance being shared between the lineal descendants.
2. one or more of the lineal descendants is not a lineal descendant of the surviving spouse, the surviving spouse receives 1/2 of the probate estate and the lineal descendants receive the other 1/2 of the probate estate.

If there is no surviving spouse and no lineal descendants the probate property goes to the decedent's surviving parents and if none, then to the decedent's siblings or the descendants of any deceased brothers or sisters.

There are other provisions in the Florida Probate code which provide for exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported.

If you need help with a Florida Probate and determining your rightful share of an estate in Florida you should contact an attorney familiar with Florida Probate or a Florida Estate Planning Lawyer.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida, Probate assets are those items in the decedent's name at death which contain no provision for automatic succession of ownership at death like those that are jointly owned or have a payable on death designation. For example:

1. bank accounts that is not a joint account, one held in trust for another, or those without a beneficiary,
2 real estate in the individuals sole name unless it is a homestead property and the decedent is survived by a spouse or children'
3 property owned by the decedent and spouse becomes subject to probate upon the death of the surviving spouse (subject to surviving descendants in the case of a homestead),
4. life insurance payable to the decedent or their estate,
5. retirement accounts payable to the decedent or their estate,
6. annuities payable to the decedent or their estate,

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida, the custodian of a will is required to file the will with the court having jurisdiction over the decedent within 10 day of learning that the testator is dead. As Florida Probate Lawyers we often have clients who are wanting to see a family members will but are not provided with one. Although you may not have a right to get one from the custodian, you can require them to file it in the court and then obtain a copy with the court.

If the custodian refuses or delays in filing the testator's will timely (within 10 days) you may file an action to require compliance with the Florida Statutes. In such a case, you are entitled to be reimbursed all costs, damages, and a reasonable attorney's fees.

We often send demand letters for our clients requesting the will to be deposited with the court prior to filing actions on their behalf. If you would like to learn more about this and how you can obtain a Florida Will Contact a Florida Probate Attorney to discuss your situation.

When deciding on a Florida Probate it is important to gather as much information as possible. We have developed a Florida Probate Intake Form. which helps individuals and their families involved in a Florida Probate gather and organize the information. Feel Free to download the Florida Probate Intake Form.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

A Summary Administration in Florida is an abbreviated Florida Probate proceeding where estates with assets of less than $75,000 or those where the decedent has been dead for more than 2 years can simplify the probate process. We often find that the families of people who die with a home or other property do not properly administer their loved one's estate at the time of death and must go back to clear up the title so that the property can be sold or transferred properly at some later date.

When a piece of real property is involved in the estate, we have to ask the court to determine if the property is protected as a Florida Homestead or is subject to the claims of creditors. Once this determination is made the property can be transferred properly.

If you need help clearing up the title of a home or property located in Florida that belonged to a person who died, we can help with a Florida Summary Administration, please Contact a Florida Probate Lawyer for more information on this process.

In Jacksonville and around Florida we are often asked about the differences between a Florida Will and a Florida Revocable Trust. Although each persons circumstances are unique, generally the following factors tend to determine which is better in relation to disability and death in relation to the cost of a Florida Probate or avoiding Probate in Florida.

A Will tends to be the best tool if these issues fit your circumstances:

Limited cash flow
Limited assets, including life insurance

A Trust tends to be the best tool if these issues fit your circumstances:

Older clients
Large qualified retirement plans (IRA, 401k, 403b, etc.)
High cost / difficulty death probate state
Simple, outright disposition of assets at death
More sophisticated disposition of assets at death
Privacy issues
Possible or probable mental disability
Desire to make everything as easy and inexpensive as possible for heirs
Out-of-state real estate or timeshares
Complicated disposition issues
Out-of-state executors, trustees or guardians
Tax planning
Protection of inheritance for spouse, children and grandchildren
Planning for couples on second or subsequent marriage
Medicaid planning or qualification issues
Planning for beneficiaries with “special needs”

To find out which is best for your particular situation Contact a lawyer in Florida who is familiar with Florida Probate and Florida Estate Planning

In Florida all sorts of clerks, customer service people, insurance sales people, brokers, account managers, and other employees of financial institutions give customers advice about how to title accounts and name beneficiaries. In an effort to avoid probate, these seemingly harmless changes can cause many problems with estate plans.

Most new account forms at financial institutions ask you to name a beneficiary. This does not have to be completed and sometimes you are better off to leave it blank than to fill in a name or attempt to name a proper beneficiary.

Often when filling out beneficiary designations people do not understand how a share of the assets will be treated if that person predeceases them. Will the share go to their descendants or to other named beneficiaries and is that what was intended.

Other problem can happen when there are future children born who were not contemplated at the time the account was created or if all of the beneficiaries do not agree.

There are good ways of avoid Florida Probate , and it can often be dealt with through proper beneficiary designations, use of a will, or use of a Florida Revocable Trust.

Often a Florida Revocable Trust or Florida Will can simplify the need to change designations in the event of changes in your life such as a divorce, marriage, or birth or death of a family member. With a Florida Revocable Trust or Florida Will you can simply modify one document and it will take care of all of the accounts that are under it. Sometimes it is difficult or impossible to make changes when a spouse becomes incapacitated.

If you would like to review your Florida Estate Planning you should Contact an attorney familiar with Florida Estate Planning

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Recently we have begun seeing more cases involving agents who abuse their power of attorney in order to benefit themselves.

Most people do not realize that once they have become an agent for an individual, their duty is to act in the best interest of the individual and not for their own benefit. Sometimes agents make gifts to themselves or change the way bank or stock accounts are title so that the become the beneficiary upon the death of the individual. These actions are violations of the agents fiduciary duty and self dealing. Often what is done interferes with someone's right to an expectancy as a beneficiary or owner of an account.

In addition to creating liability to the beneficiary or the decedent's estate, in Florida such actions can also create criminal liability under Florida's Elder Abuse Statutes. If you have been accused of actions like these it is important to coordinate your defense with a Jacksonville Criminal Defense Lawyer who is familiar with Florida Abuse of the Elderly.

It is important to file a caveat or lis pendens as soon as possible to prevent the assets from being transferred to those who are without notice of these potential claims. Filing a caveat can make sure you receive notice prior to a will being admitted and a personal representative being appointed by the Florida Probate court.

If you believe your inheritance has been adversely affected by the actions of an agent acting under a durable power of attorney please Contact a Florida Estate Planning Lawyer to discuss an action against the agent or the estate.

Today a client of mine in Mexico contacted me about the transfer of their membership interest in an LLC upon their death. He had recently been told he had the "Pig Flu" or Swine Flu as we call it in the United States. Hopefully his case is not bad and he will make a full recovery.

His question was simple and perhaps the answer may help others so I am writing about it. He wanted to know whether his membership interest would become his business partners upon his death. Generally a business interest will transfer upon death by a will or trust and not have a payable on death designation. While it would be possible to create a payable on death designation on a small business interest it is not very common. As a result I suggested that the simplest way to deal with the transfer of his interest upon his death would be to do so with a will or other estate planning documents.

Every year people unexpectedly die from regular cases of the flu or other illnesses. Many individuals make changes to their estate planning documents when there are significant changes in their life such as a birth, death, child, move, major financial change. Perhaps the Swine Flu should be a wake up call for the majority of Americans who have no estate planning documents. With out Florida Estate Planning Documents the state of Florida will decide who receives your assets and who would raise your minor children. To review your Florida Estate Planning Documents Contact a Jacksonville Estate Planning Lawyer

SB 1718 & HB 5117 dealing with funding the court would create new filing fees in probate and Guardianship cases that would range from $1,000 to $5,000, depending on the value of the estate of the person being protected.

The increase in filing fees is linked to probate cases but includes all guardianship proceedings. In addition to the current fee of $280, the additional fees will be tied to the person’s estate. Depending on the value of the estate and whether the House or Senate version of the legislation prevails, the additional cost could range from $1,000, to as high as $5,000 if the person being cared for has a large estate.

If you have been waiting to start a Florida Probate or Guardianship proceeding, now may be the time start before the fees increase.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Often when someone dies, they have money in a bank account that does not have a joint owner or a payable on death designation (POD). These banks often tell family members that they need "Letters of Administration" to distribute the funds. While this may be trust in some cases, most Florida Probate Courts will only issue Letters of Administration for Formal Probate Cases. If the decedent has been dead for more than 2 years or the assets subject to probate are less than $75,000 then you qualify under the Florida Probate code for a abbreviated probate process. This small estate administration is called Florida Summary Administration.

Once the court enters an order of summary administration, the court order can be used to collect and distribute the money in a bank account or other assets of the decedent.

Even if you qualify for the summary administration there may be reasons why a formal administration is preferable. You should discuss all the issue dealing with the assets, actions of the beneficiaries, and actions of fiduciaries while the decedent was alive with a Florida Probate Attorney to discuss which options make the most sense for you and your family.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Back in 2006 and 2007 I wrote several articles on Digital Assets and Estate Planning. Now that we are in 2009, there is even more need for Digital Asset protection in your Florida Estate Planning Documents.

Digital assets are those that expire upon your death and are often associated with Email and website accounts. Most of these accounts are not actual property. They are licenses and these licenses generally expire upon your death. A new company Legacy Locker is attempting to solve this problem through a web based tool that stores account login and passwords and purports to transfer this information to the designated beneficiary upon your death or incapacity.

While their software is a good idea it has some issues in that it does not resolve the fact that the license expires upon the death of the person who creates it. One solution to this problem is to create the accounts in the name of a trust of business so that when you die, the entity that owns the license is still in existence. There are other companies that do similar things such as DeathSwitch.com

My previous articles on this topic include:

Speaking (or Emailing) from the Grave
Florida Estate Planning & Digital Assets
Digital Property After Death
Florida Estate Planning: Paperless Records Leave Heirs in the Dark

One of the most difficult processes with a probate it dealing with all of the stuff that is left over. After all of the valuable assets have been collected and distributed there are still many items that are of value to some but often get thrown away because of the difficulty and cost in dealing with them. If you are the PR of an estate you may consider using a service like JustJunk.com to remove, recycle, and donate the remainder of an estate. Sometimes it is just to costly to hire someone to collect and sell off the remaining assets.

Remember that if you are contemplating something like this to make sure that you obtain waivers from all the beneficiaries so that you do not expose yourself to liability in the future. A service like this can reduce the stress and responsibility of a PR in dealing with their family members unwanted possessions.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Jonathan G. Blattmachr, a partner at Milbank, Tweed, Hadley & McCoy LLP, has published "Reducing Estate and Trust Litigation Through Disclosure, In Terrorem Clauses, Mediation and Arbitration" in the Cardozo Journal of Conflict Resolution, 9 Cardozo J. Conflict Resol. 237 (2008).

He suggests six methods to reduce litigation.

1. Advise Inheritors of Inheritance Plans. Especially when children of the decedent are treated unequally, will contests and litigation arise from disappointed feelings of entitlement. Telling the children ahead of time what their shares will be may avoid a later dispute. Blattmachr even suggests that one could enter into a contract (for consideration) with such a person that he or she will not object to the validity of the document. (Of course, as Blattmachr says, "advising a child that he or she will not receive an equal share may have adverse effects even if it prevents litigation after death." You think?)

2. Use a Revocable Trust in Lieu of a Will. Since a revocable trust can be funded and operate during lifetime, it is difficult to contest on the grounds that the individual was unaware of its terms. When the Settlor of the trust dies, there is no need to begin a court proceeding to "prove" the validity of the trust, such as there is for a will.

3. Use an Irrevocable Trust in Lieu of a Will or Revocable Trust. An irrevocable trust is even less likely, in Blattmachr's view, to be challenged than a revocable trust. Irrevocable trusts can be drafted in such a way so that transfers of property to them are not completed gifts. Alternatively, making a transfer that is a completed gift, paying gift tax, and filing a gift tax return disclosing details may be additional evidence that the transfer was truly intended. Again, Blattmachr believes that a lifetime trust that is significantly funded is less likely to be challenged.

4. Use an In Terrorism Clause. If the testator lives in a state that will enforce it, an in terrorism clause (or disinheritance clause) could be used. Or the testator could direct that his will be probated in a state that does enforce such clauses. A lot of trust and estate litigation is not about the validity of the document, it is about its interpretation or about actions taken by the fiduciary. In order to reduce this type of litigation, an in terrorism clause can cause a forfeiture of a beneficiary's interest if such a challenge is made.

5. Use Mediation or Arbitration Provisions. Arbitration or mediation cannot be used with respect to the challenge of a document's validity unless the parties agree to it. Using an in terrorism clause to cause forfeiture if the parties will not participate can be used. This could stop claims that are filed only to harass other beneficiaries or to delay distributions to others. Another approach would be having the parties enter into a contract agreeing to arbitration before the transfer.

6. Use a Condition Precedent to a Bequest as an Alternative Method of Causing Participation in Mediation or Arbitration. Since a person cannot be forced to participate in arbitration or mediation unless the law provides for enforcement, consideration must be given to how to get parties to use these methods. One can use the carrot instead of the stick. Parties can be given a benefit if they consent to use arbitration or mediation instead of resorting to court.

When creating estate plans or trust documents it is important to consider the potential for litigation and whether it should be addressed prior to the death or after the death of the people creating it. While much can be done prior to death to resolve potential disputes and keep communications open, often issues only arise after the death of the trustees.

To discuss your estate plan with a Florida Estate Planning Lawyer and discuss what can be done to reduce the likelihood of estate and trust litigation Contact an estate planning attorney familiar with litigation issues.

In a Florida Probate , if the decedent was domiciled in Florida at the time of his death, the surviving spouse or if there is no surviving spouse, the children shall have the right to a share of the estate of the decedent as provided in Florida Statute 732.403.

Warning: You will waive your right to exempt property under Florida Statute 732.403 if you fail to file a petition to determine exempt property within 4 months after the date of service of the notice of administration or the date that is 40 days after the date of termination of any proceeding involving the construction, admission to probate, or validity of the will, or any other matter affecting any part of the estate subject to the Florida Intestate succession and Wills

If you need help with a Florida Probate or figuring out Florida Probate Fees Contact a Florida Probate Lawyer or Attorney for help

If a person dies and owns anything that does not transfer upon death like a bank account, car, home, retirement account, or accounts receivable a Florida Probate is necessary to transfer these assets to the rightful owner. It does not matter if they have a will, a trust, or any other estate planning documents. Often we get clients who say they are the executor or personal representative and attempt to manage the decedents assets. This cannot take place until the probate process has begun and the court has appointed someone to be the PR or executor.

The type of administration that is required depends on several factors.

1. The date of death;
2. The amount of assets;
3. If there will be litigation; or
4. If there is a will.

In addition, Florida law requires that if you are in possession of what you suspect to the be last will of a decedent it needs to be filed with the courthouse where the decedent resided within 10 days of death. If it has been more than 10 days you should file it anyway. We often file these for clients who are in the state and those from other states and there is no charge to file the will with the proper court.

If you have specific questions in regards to a Florida Probate Contact Florida Probate Lawyer for a Free consultation with a Florida Estate Planning and Probate Lawyer

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Forbes.com has an article on where not to die.

Sixteen states and the District of Columbia (shaded in red) impose their own estate taxes. The dollar amount exempted from tax (in black) and the top tax rate (in yellow) vary by state. Eight states (shaded in orange) levy an inheritance tax, meaning the tax rate (in black) depends on who gets the money. New Jersey and Maryland levy both types of tax.

Professor Gerry Beyer, author of the WIlls, Trust & Estates Professor Blog wrote an article where a Texas court admitted a copy of a will which gave most of the assets to the decedents sister instead of the children. The will had been seen shortly before the decedents death and many people had access to it. Normally, if a will was last seen in the decedents possession and cannot be found the Florida Will is presumed to have been revoked by the decedent. But his presumption can be overcome as it was in this Texas case.

Under Florida Law, the fees for a probate must be reasonable. Many lawyers charge the statutory rates of approximately 3% of the estate. This fee schedule is only a guideline and is not necessarily reasonable. In addition, we have seen probate fees that include the percentage on non probate assets like a homestead. This is clearly not permitted under the statutes and case law. If you would like a quote on a Florida Probate Contact a Florida Probate Lawyer.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida if you are a beneficiary a potential heir, you are entitled to an inventory and accounting. As An Atlanta Georgia Estate Planning Lawyer wrote in their article AS A BENEFICIARY OR HEIR OF A GEORGIA PROBATE ESTATE, YOU ARE ENTITLED TO AN INVENTORY AND ACCOUNTING IN GEORGIA PROBATE COURT – REMEMBER, “POSSESSION IS NINE-TENTHS OF THE LAW”, SO ACT QUICKLY AND WITH KNOWLEDGE, it is important to act fast.

It is often frustrating for beneficiaries that this doesn't happen quickly or automatically. Often beneficiaries only receive these documents after a Florida Probate Attorney makes a formal request for them.

If you have not received an inventory or accounting relating to a Florida Probate Contact a Florida Probate Lawyer

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

While a Florida Revocable Trust can avoid the necessity for a Florida Probate to be filed, there are often circumstances that require a Probate. A Florida Revocable Trust only eliminates the need for a probate when it is funded and to the extent that your assets are inside the trust prior to death.

One of the most common problems is that people create trusts but never fund them or do not fund them completely. One of the most common assets, the Florida Homestead, must be dealt with or a probate will be required to transfer marketable title to the beneficiaries. Even though, the home, in most cases, will transfer automatically upon death under the Florida Constitution, it is necessary to open a Florida Probate to transfer the home with Marketable title. The title companies require the probate court to establish the home as a homestead, notify potential creditors, and have the title transferred in the probate to insure the home against future claims from creditors who claim they were not notified. For more information on this and other issues with avoiding probate, Julie Garger wrote an article why a Florida Revocable Trust may not avoid probate.

To discuss how you can reduce your risk of a probate in Florida Contact a Florida Estate Planning Lawyer

In Florida, the question of whether an attorney should charge fees based on the value of the home or land is a common one. The answer to this question depends on whether the Home is considered a homestead. A Florida Homestead is a constitutionally protected piece of property which is exempt from being counted as an asset of the decedent in a Florida Probate. If the home is a Florida Homestead, the fees for transferring the property to the decedents must be reasonable and unless the home a very small value it would be unreasonable to charge 3% of the homes value to transfer the property. In all Florida probate cases a lawyers fees must be reasonable. When a home is considered a homestead, the lawyer must file a petition to determine homestead, publish notice to the creditors, and if there are no objections, file a PR deed to transfer the property.

If you are a creditor or a beneficiary of a Florida Probate and think that the fees in the Probate are unreasonable Contact us and we can review the fees and the court file to determine if you are being treated reasonably. When fees are higher than necessary, we can often resolve the dispute with a letter and a few conversations. Sometimes the issues are more complex and it becomes necessary to attend a hearing in the probate court to present evidence or dispute the fees. When this happens a Judge will make the determination of whether the PR fees and the Legal fees are reasonable.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida the personal representative is the person named in a will collect and distributed the assets of a person after death. In a Florida Probate this typically involves taking care of and real or personal property, paying legitimate outstanding bills and filing and paying taxes. Once the debts are paid, the remaining assets are transferred to their new rightful owners. The Personal Representative or Executor can request payment from the estate for the job that they are doing. Florida state law and what is contained in the decedent’s will regulate the exact amount a PR is paid. Often in simple estates and where the PR is a close family relative the PR will not charge a fee for administering a Florida Estate.

If you have questions about a Florida Probate or your job as a Personal Representative in Florida, Contact a Florida Estate Planning Lawyer

The Emergency Economic Stabilization Act of 2008 temporarily raises the basic limit on federal deposit insurance coverage (FDIC) from $100,000 to $250,000 per depositor. WARNING the basic deposit insurance limit will return to $100,000 after December 31, 2009.

The rise in insurance coverage applies to most trust accounts with no more than five beneficiaries.

Some benefits of establishing a Florida Revocable Trust include of avoiding probate, transfer upon death of property,reduced taxes, and privacy.

A Florida elder law attorney or Jacksonville Estate Planning Lawyer can help you determine whether your trust accounts are adequately insured or tell you whether your situation merits setting up a trust.

To discuss ways to reduce your estate taxes, avoid probate, and make the transfer of assets upon your death easy for your family and friends Contact a Jacksonville Estate Planning Attorney

Often after someone dies in Florida, their families look to save money and open handle the probate without the use of a lawyer. In some states this is permitted, but in most cases Florida does not permit an individual to represent themselves in a Probate Proceeding. This is why probate forms are not available for Florida.

One reason individuals are not allowed to do their own probate deals with the complexity of the issues surrounding the Florida Constitutions protections of the homestead. If one does not take the right steps they could loose or jeopardize their homestead protection.

Florida Probate Rule 5.030 requries an attorney licenced in the state of Florida to be involved with probate proceedings, unless the personal representative remains the sole interested person.

If you feel that a Florida homestead of assets of a Florida resident may be at risk because of an inadvertent error or mistake, Contact a Florida Probate Lawyer to discuss your situation.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Sometimes it is necessary to admit a will in Florida when the original is not available because it was admitted in another state. The most common occurrence of this involves a Florida ancillary administrations. This is when the decedent lived in another state and there was an initial probate in that state, but the decedent owned real property in Florida.

In some cases, we find that the original probate was incorrect and the original administration should have been filed in Florida to protect the homestead from claims of creditors. In the case where a person who dies is a resident of Florida and their original will is admitted to probate in another state or country because of inadvertence, error, or omission. And the will is admitted in that other state prior to the Florida Probate case being filed, the certified copy of the will can be admitted to the Florida Probate case if the original could have been admitted. When this happens an authenticated copy of the will, foreign proof of the will, the foreign order or probate, and any letters issued shall be filed instead of the original will and shall be evidence of its execution and admission to foreign probate.

If you feel that a Florida homestead of assets of a Florida resident may be at risk because of an inadvertent error or mistake, Contact a Florida Probate Lawyer to discuss your situation.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Jacksonville and around Florida an attorney is required under Florida Probate Rule 5.030 unless the personal representative remains the sole interested person. The attorney must be licensed to practice law in Florida. If you need a Jacksonville Probate lawyer or a Florida probate Attorney Contact us to see if we can help you.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

Short Answer: A Summary Administration probate usually takes just over 3 months but can take 6 or more depending on the circumstances.

Long Answer: It depends on the facts and circumstances of each situation. In some areas of Florida the Judges require or allow for differing procedures this causes some probate administrations to take longer than others.

In Florida, the personal representative may need to sell real estate prior to settling the estate. As you can imagine the market conditions can determine how long it will take to sell property. I have been involved in some Jacksonville Probate Litigation where the creditors dispute every claim and as a result lawsuits are filed to resolve those claims. This procedure or settling a disputed claim in a Florida probate can extend the time to compete the probate.

Other Jacksonville cases have involved a disputed prenuptial agreement or Florida WIll. Again when there is extended litigation the process will take longer to resolve., or to resolve a disputed claim filed by a creditor, or a lawsuit filed to challenge the validity of the will.

Even the simplest of estates must be open for at least the three-month creditor claim period. If there are no assets that are subject to claims of creditors in some counties the Judges like to give notice to creditors and an opportunity to dispute homestead status to preserve the creditor's due process rights. With these issues in mind, it is reasonable to expect that a simple estate will take at least three months and typically five or six months to properly handle.

If the estate does not have to file a federal estate tax return, the final accounting and other documents necessary to close the estate are first due within 12 months after the Court issues Letters of Administration to the personal representative. This period can be extended if necessary and is often extended in cases involving Florida personal Injury Claims.

If the estate is required to file a federal estate tax return, the return is initially due nine months after the date of the decedent’s death, however, the time for filing the return can be extended for another six months. Remember that the Personal Representative is personally responsible for the estate taxes if they are unpaid. If a federal estate tax return is required, the final accounting and other documents to close the probate administration are due within 12 months from the date the estate tax return, as extended, is due. This date can also be extended if necessary.

If you need help from a Florida probate lawyer or are looking to file a claim a Florida Probate case and would like a Jacksonville Probate Attorney to review your claim or the probate administration Contact a Florida Probate Lawyer.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida what happens to a person's assets if they die without a will? Under Florida probate law, if a person dies without leaving a will the decedent's estate is dealt with under Florida's Intestate statutes. Even if a Florida resident dies intestate, the decedent’s assets will be transferred to their family members. Only when there are no family members will the assets escheat to the state or be transferred to the state. Generally Florida's intestate statutes go to great lengths to find a relative to leave a decedent's assets to.

In Florida the decision to create Florida Will that appoints a personal representative to administer your probate assets is a wise decision. It is important to consider who can be a personal representative. With Florida probate law, the personal representative can be an individual, bank or a trust company. For an individual to act as a representative they must be legal residents of the state of Florida or a relative or spouse of a sibling, parent, or child. A person who is not a legal resident and is not closely related to the decedent cannot act as an executor or a personal representative of the decedent's estate. In addition a trust company that is incorporated under Florida laws or which is a bank or lending agency and is licensed to extend fiduciary lending in the state of Florida can also act as a personal representative of a Florida probate.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

In Florida what happens to persons assets if they die without a will? Under Florida probate law, if a person dies without leaving a will the decedent's estate is dealt with under Florida's Intestate statutes. Even if a Florida resident dies in intestate, the decedent’s assets will be transferred to their family members. Only if there are no family members will the assets escheat to the state or be transferred to the state. Generally Florida's intestate statutes go to great lengths to find a relative to leave a decedent's assets to.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

When a decedent’s assets go into probate in Florida the Florida Probate Case will be in the county court where the decedent maintained his or her domicile.

Pursuant to Florida probate law a judge will normally decide and rule on the validity of a will. The judge will also rule on who the heirs are should there be a question or dispute as to the validity of a decedent’s heirs.

If the decedent appointed a personal representative to administer the Florida will, the judge will determine if the representative is qualified administer the estate. If there are no objections and the judge determines that the representative qualified, the judge will issue letters of administration. These letters of administration allow the executor or personal representative to administer the will. Any issues or conflicts that arise during the representative’s administration will be ruled on by the circuit court judge.

In Florida, if you were married when a will was created by your spouse, a subsequent divorce will treat you as predeceasing your spouse in most cases. Even if you were living with your ex spouse, engaged, or had a new wedding date planned, a will executed before the divorce would not be valid in regards to anything devised from a person to his or her ex-spouse.

It is possible to talk with the family and if they agree, the beneficiaries can work together with the ex-spouse to provide assets after the death. The ex-spouse has no legal right to receive assets but it can be negotiated in a friendly arrangement.

If you are an ex-spouse who was friendly with their ex, contact a Florida Estate Planning Lawyer to discuss your options.

if you have been divorced or reacquainted with someone from a prior marriage, it is important to update your Jacksonville Estate Planning Documents to reflect your current intentions.

In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court stated to raise the presumption of undue influence, a plaintiff must show a confidential relationship between the donor and the donee and active procurement of the gift. Because courts have found that a confidential relationship exists in most relationships, the real issue comes down to active procurement of the gift. Recently Patrick Lannon wrote a summary of case law on the topic for the Florida Bar journal. Carpenter gives a list of seven factors of active procurement of a will, the:

1) presence of the beneficiary at the execution of the will;
2) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;
3) recommendation by the beneficiary of an attorney to draw the will;
4) knowledge of the contents of the will by the beneficiary prior to execution;
5) giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will;
6) securing of witnesses to the will by the beneficiary; and
7) safekeeping of the will by the beneficiary subsequent to execution.

1) the donee’s level of involvement in the donor’s affairs;
2) the donee’s level of involvement in the actual gift in question;
3) the relationship of the donee to the donor as compared to the natural objects of the donor’s bounty;
4) the secrecy or openness of the transaction;
5) the effect of the transfer on the donor’s pre-existing estate plan; and
6) the physical health and mental acuity of the donor at the time of the gift.

If you would like help in structuring transfers of property to help avoid the appearance of an improper transfer of property, Contact a Florida Will Attorney or a Florida Estate Planning Lawyer to review your case.

If you believe you have been harmed by the improper transfer of property, Contact a Florida Probate Litigation Attorney or a Florida Trust Litigation Lawyer to review your case.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

How do you find a Florida probate Attorney?
It is important to look for an attorney within the state where the decedent was domiciled at the time of their death.

The type of lawyer that should be used will depend on what the case will involve.
If there is expected litigation, you should choose a Florida probate litigation attorney.

Depending on the type and amount of assets and creditors, it may be necessary to find a local attorney so that in court issues can be handled economically. Many probate courts will allow out of town attorneys to appear by telephone, but this should be checked prior to selecting an attorney who is far from the court. In other instances, the attorney can have a local lawyer help in hearings that require presence in the court.

Other types of probate cases are often dealt with by mail or in ex parte hearings and can be done by an attorney anywhere in the state.

To discuss what type of attorney you should look for please Contact a Florida Probate Lawyer.

Florida Estate Settlement is the process of gathering the assets of an estate and distributing them to the creditors and beneficiaries of the estate. In Florida this process is called a probate and generally requires the use of a Florida Probate Lawyer.

Most probate lawyers charge a percentage of the estate assets to handle the legal work involved. As Florida Estate Settlements get larger a percentage arrangement can become very expensive.

There is a wide range of fees charged for Florida Probate Administration and the Settlement of an estate. It is important to understand the nature and amount of assets and creditors to give a fair estimate of what a reasonable fee for a Florida probate should be.

Before you talk with a Florida Probate Attorney, you should gather as much information as possible. This will help them understand what steps will be necessary to administer the estate in question.

Florida probate cases often involve situations where the decedent has step-siblings or half blood siblings.

Under Florida's intestate statutes a step brother or sister would not receive any share of the decedent's estate, but a half blood (one related by one parent) would receive 1/2 as much as a child that was related by both parents of the decedent.

In the case were there are only half blood siblings, each of them receives a full share.

An example might be where your mother and father had 2 children together. Your mother and father each had a child from another relationship. If you died, your sibling from both parents would receive 1 share of your estate and your other two siblings (1 from your father and one from your mother) would receive 1/2 share each. This would mean that your full brother would receive 1/2 of your estate and each half-blood sibling would receive 1/4.

This is assuming that you had no descendants and your parents had predeceased you. If you have half blood and step siblings and would like to know what your rights to inheritance are Contact a Jacksonville Florida Estate Planning Lawyer

Greedy Trustees can be a problem in Florida Probate Litigation and Florida Trust Litigation. Often the Trustee must be removed to resolve the issues. Adrian Thomas a Florida lawyer who specializes in Florida Trust and Probate Litigation sent me an article where he discusses individual and corporate trustees. Often banks and financial institutions make their money by managing Florida Revocable Trusts and Florida Irrevocable Trusts. In recent interviews by news organizations, some employees talked about abuse of powers and improper investments that placed profits ahead of the best interest of the beneficiaries of the Florida Trusts.

Some of the abuses included:

Charging inflated fees;
Making distributions difficult for the beneficiaries;
Not considering compelling circumstances for distributions of allocation of principal and income; and
Naming themselves beneficiaries or trustees in the wills of elderly Florida Citizens.

The new Florida Trust Code includes remedies which allow the court to inquire into the appropriateness of a trustee and evaluate a change in circumstances for a judicial modification of the trust. In addition, Section 736.0706(2)(d) allows a trustee to be removed when there is a change in circumstances and the removal would best serve the interest of the beneficiaries.

Many of these problems can be addressed in the drafting of the Florida Living Trust by creating language and terms that beneficiaries can remove or modify the terms when it is in the best interest of the beneficiaries. In addition, judicial modification is a process where the court can modify a trust for similar circumstances. In Aelillo v. Hyland one beneficiary was favored over another beneficiary. The Florida Court removed the trustee because of conflict of interest.

If you feel that your are not being treated fairly by the trustee of a Florida Trust which you are the beneficary of Contact a Florida Estate Planning Lawyer who deals in Florida Probate Litigation or Florida Trust Litigation

There is a new site which is putting together a list of Estate Planning and Probate professionals including lawyers for each state. You can find them at www.Estate-Attorneys.net.

If a person's usual place of dwelling was in Florida then the original probate should be opened in Florida. We see cases where someone is in the process of or has just moved to Florida and the issue of where to open a probate becomes more complex. In those instances where it may be difficult to determine the exact residence of the decedent there are several factors that should be evaluated to determine the residence.

1) Ownership of a home(s), and the percentage of time spent in each state.
2) Had the decedent applied for and are they currently receiving homestead exemptions in either state?
3) Where is the decedent employed?
4) Does the decedent own business interests?
5) If a homestead cannot be determined, where else does decedent own property?
6) Where are their federal tax returns filed?
7) State of Vehicle registration, Drivers license.
8) Location of Will, Ownership of cemetery lot.
9) Affidavit of domicile as found in Florida Statutes 222.17.
10) Religious, social, and union affiliations.
11) Charitable contributions.
12) Children's school attendance or activities.
13) Official termination of residence in one state by notice to taxing officer, cancellation of voter registration, change of DL, vehicle registration, and insurance.
14) Specific provisions in the will reciting the domicile.

In Florida a devise in favor of a beneficiary who predeceases the testator will fail unless there is clear intent or in certain relationships.

Under Florida Statute 732.603 a devise to a grandparent or a descendant of a grandparent of the testator does not lapse but would be distributed per stirpes UNLESS the testator gift is conditioned on the person surviving the testator or the testator provides for a substituted or alternative beneficiary.

A similar result is achieved when the decedent dies intestate (without a will). We often see complicated property distributions when a parent dies and one or more of their children predeceased the parent. In these cases, it is not uncommon to see the Florida homestead or other real property owned by representatives of multiple generations.

To find out more about your Contact a Jacksonville Florida Probate Attorney.

In Florida, the surviving spouse is not liable for claims against the decedent. Under the common law a husband was responsible for the deceased wife's expenses for necessities, last illness, and funeral expenses.

At common law, a married woman's legal identity merged with that of her husband, a condition known as coverture. She was unable to own property, enter into contracts, or receive credit. A married woman was therefore dependent upon her husband for maintenance and support, and he was under a corresponding legal duty to provide his wife with food, clothing, shelter, and medical services.

In 1995 the Florida Supreme court abrogated the common-law doctrine of necessaries in the case Connor v. Southwest Florida Regional medical Center, Inc., 668 So.2d 175 (FLA. 1995).

Now neither a husband nor a wife is liable for the other's expenses for necessities in Florida.

Although the state of Florida accepts wills created in other states when they were valid in the state where created, not all of the will may be valid. Recently, I ran across a will that named an accountant of the decedent as their Personal Representative. Several months later the decedent moved to Florida and eventually died without updating the will.

The problem started with the fact that the accountant was not related or married to someone who was related to the decedent. This is a disqualification of a Personal Representative in Florida. The result was that the decedent did not get to choose their Personal Representative.

If you have a will that was prepared in another state and want a Florida lawyer to review it for compliance with Florida law so that your desires are carried out upon your death, Contact a Florida Estate Planning Lawyer to review your Estate Planning Documents.

The new Florida Estate Planning Lawyer Web site for the Apple Law Firm PLLC has gone live. This site will act as a hub for the Florida Estate Planning Lawyer Blog and the NFA Gun Trust Lawyer Blog.

Its been a long month setting up the new website and more pages will be added as time permits. For now the Jacksonville, Florida based Apple Law Firm deals with:

Florida Asset Protection
Business Formation
Florida Estate Planning
Firearms Trust
Florida Guardianship
Florida Probate Litigation
Florida Trust Litigation and
Florida Trusts

The Florida Constitution protects one's Homestead from creditors. One provision that is often misunderstood is a devise of a homestead in a will when there are minor children in the family. In some cases two people are getting married and one has a home and a minor child. The spouse may draft a will that states that the home goes to the future husband, but what happens if the spouse dies before the child reaches the age of 18?

Under the Florida Homestead Protections, the house does not pass as the will states, but the homestead goes to the minor child with a life estate going to the surviving spouse. Sometimes this appears to be an intentional mistake in a will to appease a future spouse but the clause does little to provide a fee simple ownership the the decedent's homestead.

If you are getting married or your spouse had a home prior to your marriage that is now your Homestead, be careful that any attempted devise of the home when there are minor children will create a default condition establishing a life estate for the surviving spouse and remainder for the children even if one is a minor.

To have your will reviewed for invalid clauses or to update a Florida will Contact a Florida Estate Planning Lawyer

In Florida as with most states, Estate Planning is something that needs to be addressed when one has major changes in their life. This includes divorce and separation.

You only have to think about your spouse or ex-spouse getting all of your assets if you should die to realize the importance of addressing the issue.

In the last year I have seen a number of families who have been adversely affected because of a lack of planning. Several couples were separated for many years when one died and the estranged spouse received a significant portion of the estate. In Florida, even if you change you will to disinherit your spouse, the spouse is entitled to an elective share of your estate. This is equal to 30 percent of your entire estate. If you are divorced in theory, go ahead and file the paperwork to make it official.

When you get a divorce, be sure to change payable of death designations on your retirement accounts, life insurance, bank accounts.

Be sure to revoke any guarantees associated with credit established in both of your names. Change the way property is owned, even if you plan on selling it soon.

The 401(k)s is also a non-probate assets also, but be careful because ERISA, a federal law, protects a surviving spouse. I have seen children loose their parents life insurance because their parent never finalized the divorce and made changes when they separated from their spouse decades ago. If you are getting a divorce be sure that proper paperwork to change the designations is made part of the divorce or separation agreement.

Unless your Florida Divorce Lawyer is also a Florida Estate Planning Lawyer, it is best to have a Florida Estate Planning Lawyer Contact and work with your Florida Divorce Attorney.

What happens if you are in the middle of a partition to divide or sell property and one of the owners dies?

The pending action is has no force and effect on the ownership. What doest this mean? If you own property as joint tenants with rights of survivorship and you want to partition the property but die in the middle of the court action, the other joint tenant will own the entire property.

A recent 1st DCA case Mercurio v. Headrick, WL 2434193 (Fla. 1st DCA Jun 18, 2008) has the expected outcome that all attorney's learn in their first year property course. In addition many other states have reached similar opinions but Florida had not seen this issue before. The Florida Probate Litigation Blog has an in depth article on this case.

What should you do if you find yourself in this situation? You should convey your property to break the joint tenancy with right of survivorship prior to bringing the action. The benefit in doing this is that should you die during the action, your heirs or family will not loose the entire value of the property.

To learn how to do this properly in Florida Contact a Florida Estate Planning Lawyer

Where can I get a Form for Florida Lady Bird Deed is a question that I am often asked. Florida Lady Bird Deeds are generally not available on the Internet because not many Florida Lawyers even know what they are. They are also far more complex than a regular deed.

I have seen several cases where clients used Ladybird deed that were not acceptable to Title insurance companies and the families had to open probate cases to clear the title on the property after the death of the grantor.

Because of this when we created our deeds we went to many title companies to get their feedback and modified our deed and they way they are filed to be in compliance with the title companies requirements.

In addition the language that is used on the remainder interest is very important because it is possible that the person named might not survive the original owner. If the wrong language is used, the property will revert back to the original owners estate and could potentially be subject to the claims of the creditors and Medicaid liens. They are often used in Florida Medicaid Planning.

If you need a Ladybird deed in Florida, you should Contact a Florida Estate Planning Lawyer who is familiar with Ladybird deeds.

Florida Probate costs very based upon they type of probate, type of assets, number of creditors, number of beneficiaries and complexity of the issues involved.

Generally a simple Florida Probate which only involves a homestead is around $1500-$1800 dollars and can take 30 to 90 days on average to complete. This fee is for the legal expenses associated with a Florida Summary Administration where the descendant has been dead for more than 2 years or the assets subject to probate are less than $75,000. A homestead, join accounts, and life insurance are not counted as assets. In addition there will be court costs in the $300-400 range depending on the county and if advertising notice is required or desired.

More complex Florida Probate cases can also be handled on flat fees but many are calculated based upon a percentage of the assets subject to probate + some amount for dealing with the non-probate assets.

If you would like to get a quote on a Jacksonville Probate or a Florida probate you should Contact a Florida Probate lawyer. Only after a summary of what the circumstances are, can an accurate quote be given.

There are many places to get advice on the Internet. Be sure when you are looking for legal advice, you are working with a licensed lawyer. Below is the finding of the Ohio State Bar in regards to one such service.

We the People is a franchise that provides forms and help in legal matters including wills, trusts, divorces, bankruptcy and other areas of law.

The Ohio State Bar found that they were practicing law without a license because they were owned and operated by attorneys not licenced in Ohio and advised individuals with respect to the completion of forms for filing a personal bankruptcy, application of probate, advising individuals on how to complete the forms and what answers to put down, directing individuals to execute documents and charging them for services, instructing completion of forms in disregard for proper procedures and determination by the Bankruptcy Court that the filing was incomplete, preparation of unnecessary and incorrect form for administration of an estate, preparing improperly completed forms for a bankruptcy, issuing advertisements, and advertising the preparation of services for living trusts, wills, powers of attorney, and incorporation's.

They were enjoined form further engaging in the unauthorized practice of law and from damaging members of the public and fined $10,00 per occurrence as a civil penalty as well as court costs.

To read more download the case Ohio State Bar Association v. Martin et al., No. 2007-1939, 2008 Ohio 1809; 2008 Ohio Lexis 1024 (April 23, 2008)

In Florida when an individual left their Florida Will in a bank vault or safety deposit box a court order is necessary to open the box unless there is a joint owner on the account.

The process involves having a judge issue an order to inspect the contents of the box. If there is a will it should be deposited with the court in the probate proceeding.

If you need help getting a Florida will that is stored in a safe deposit box at a bank, you should Contact a Florida Estate Planning Lawyer

In Florida an encumbered property shall be entitled to have the encumbrance on the property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in a will to pay the debts does not show that intent (Florida Probate Code Section 733.803 , Florida Statutes (2002))

In a recent case a Personal Representative tried to make the argument that since the debt was paid off a mortgage during the probate proceeding and that the above rule only applied if the debt was in place at the time of the distribution. In re Estate of Woodward (Fla. 2d DCA Apr 09, 2008)

The court said that the PR could not rewrite the decedents will and pay off the mortgage. The Florida Probate Code makes it clear that without a specific instruction in the will the property was to pass with the encumbrance.

If you are a PR or a beneficiary of an estate in Florida and you have a question about whether you can pay off a mortgage, Contact a Florida Estate Planning Lawyer to discuss your circumstances.

Invalid transfer of Florida Homestead with do it yourself deed leads to unintended consequences!

Man wants his second wife to have a life estate in his homestead after his death with the remainder to go to his children and not his second wife's children.

His mistake, he used a preprinted deed and filled it out wrong. The court found that he did validly convey a life estate to his wife, but did not convey the remainder of the property to his daughter because it must have been signed by both spouses.

The property went back to his heirs per stripes after his spouses death and not to his daughter as intended.

Florida's homestead provisions make it difficult to properly convey real property as you desire. There were valid ways of conveying the property correctly, but a preprinted form does not deal with non traditional families or non traditional conveyances.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and
Do it Yourself Wills? a Good Idea or Not?
Do it yourself Estate Planning: Bad News Part 3
Do it yourself Estate Planning: Bad News Part 4
Do it yourself Estate Planning: Bad News Part 5
Do it yourself Estate Planning: Bad News Part 6
Do it yourself Estate Planning: Bad News Part 7
Do it yourself Estate Planning: Bad News Part 8

If you have used software, a form, or an online service to prepare your will, a deed, or other document, you Contacta Florida Estate planning Attorney or Florida Estate Planning Lawyer to review your documents for potential problems.

A federal curt found that Marilyn Monroe was a New Yorker when she died in 1962. This means her estate which has earned more than 30 million dollars licensing her image can not control the licensing. Product makers may be free to use her image without paying licensing fees to her estate because of a difference between California and New York state laws.

Marilyn Monroe LLC plans to appeal the ruling. If you license your image, it may be important to look at the laws of your state to determine what rights your estate will have. If you have questions about licensing in your state you should Contact a Florida Estate Planning Lawyer to discuss the effects of your domicile on your future heirs.

Arthur v. Milstein. et al, 949 So.2d 1163 (Fla. 4th DCA February 28, 2007)

In this dispute regarding who controlled the disposition of the body of Anna Nicole Smith, the trial court ruled that the guardian ad litem for her minor daughter Dannielynn had priority over Anna Nicole Smith’s mother based upon interpretation of Florida Statutes section 406 defining a "legally authorized person" upon whom a funeral home can rely to receive burial instructions. The appellate court indicated section 406 simply protects a funeral home from liability, and Florida common law applies regarding who has the right to possession of the body. The court found the trial court’s ruling was "the right result, but for the wrong reasons," and based upon evidence indicating the intent of Anna Nicole Smith, affirmed the trial court ruling.

This issue could have been avoided with a properly drafted Florida Will. If you would like your Florida Will reviewed please Contact a Florida Estate Planning Lawyer.

City of Key West v. Knowles, 948 So.2d 58 (Fla. 3 DCA January 10, 2007)

A surviving spouse sued the city of Key West, Florida claiming she was deprived of her property interest in her husband’s buried remains without due process in violation of 42 U.S.C. 1983.

The Court found that an individual has no constitutionally protected property interest to a decedent’s remains after the point of burial or other lawful disposition, the appellate court reversed the $15,000 jury verdict that had been entered in favor of the surviving spouse.

Phillips v. Hirshon, 963 So. 2d 227 (Fla. 2007).
The supreme court agreed to hear a case which will determine if Florida's revisions to the homestead laws allow for a cooperative apartment to be considered homestead property for descent purposes. We should have an answer on this question by the end of April.

If you own a property and are concerned about its status as a Florida Homestead please Contact a Florida Estate Planning Lawyer to discuss your circumstances.

Qarcia v. Morrow, 954 So.2d 656 (Fla. 3rd DCA April 4,2007)

This case involves competing petitions for appointment as personal representative filed by a decedent’s grandson with statutory priority to be appointed as personal representative and the former wife of the decedent’s son. After his mother’s death, and while in prison, the decedent’s son acquiesced in a state court order requiring him to transfer his mother’s condominium unit and certain financial accounts to his ex-wife to satisfy past-due child support payments. The son later executed a disclaimer of the interest in his mother’s estate and the grandson filed that disclaimer in support of his petition to be appointed as personal representative. The former spouse argued the fling of the disclaimer was an effort to work a fraud on the court and, without an evidentiary hearing, the court appointed the former spouse as personal representative. The appellate court reversed the decision and remanded for a further evidentiary hearing to determine whether the grandson "lacks the necessary qualities and characteristics" to be personal representative.

Glover v. Miller. 947 So.2d 1254 (Fla. 4th DCA January 31, 2007)

After a 16-year-old child was killed by a police officer, two separate men claimed they were his father and asserted the right to be appointed personal representative of the child’s estate for purposes of pursuing a wrongful death action. One man had been declared the decedent’s father in a paternity action 12 years previously and had been required to pay child support. Post-death DNA testing showed a 99% likelihood that the other man actually was the decedent’s natural father. The appellate court affirmed a trial court’s determination that the man previously declared to be the father was entitled to priority in appointment and that absent having the judgment of paternity vacated and a new determination of paternity entered, the man previously deemed the father was, for purposes of appointment of personal representative, the decedent’s "father in the eyes of the law, regardless of the results of DNA testing."

Hemandez v. Hernandez, 946 So.2d 124 (Fla. 5th DCA January 19, 2007)

A trial court refused to appoint the decedent’s son as personal representative, despite the fact the decedent had nominated a son in his last will, instead appointing an unrelated attorney. The only basis for the courts ruling was that there was animosity between the nominated personal representative and his brother. Citing the absence of any evidence that the nominated personal representative does not meet the statutory criteria to qualify, and that there are no other "exceptional circumstances," the appellate court reversed the trial court.

Magee v. Magee, 32 Fla. L. Weekly 02307 (Fla. 2d DCA September 26, 2007)

In a challenge to the constitutionality of Florida’s elective share statutes, the Second District Court of Appeal upheld a lower court ruling that the statute is constitutional. The Court applied a test of whether there is "any reasonable relationship between the act and the furtherance of a valid governmental objective," and rejected the challenger’s argument that the "far more rigorous analysis" of whether the statute is "reasonably necessary to protect the public." The Court found that the state has a strong public policy concerning protection of the surviving spouse about
marriage in existence at the time of the decedent’s death and that, therefore, the provisions of the elected chair statutes serve a legitimate legislative purpose. On February 20, 2008, the Florida Supreme Court refused to accept jurisdiction for an appeal of this decision.

Vazpuez v. Bvrski, 32 Fla. L. Weekly D2415 (Fla. 2d DCA October 10, 2007)

Prior to his death, a decedent entered a contract to sell real property. The decedent died prior to closing on the contract. The purchaser filed a Petition for Administration in which he expressly alleged the obligation based upon the purchase and sale agreement. The purchaser subsequently filed a Petition for Appointment of Guardian Ad Litem to represent the interests of unidentified heirs, and again alleged the obligation based upon the purchase and sale agreement. The personal representative of the estate subsequently filed a petition for authorization to sell the real property pursuant to the contract.
The guardian ad litem objected claiming, inter alia, the purchaser had failed to file a claim in the estate. The trial court agreed and denied the request for authorization to sell the property.

On appeal, the Second DCA reversed, finding that the initial petition for administration and subsequent documents filed in the probate proceeding, while defective as to form, sufficiently stated the character and extent of the claim and were substantially sufficient to place interested persons on notice of the claim.

I am currently in Shanghai China for the next 5 days and then heading to Osaka and Tokyo for 3 nights each. I am planning to keep posting new issues to my blog while I am gone. In addition, I will be responding to emails and will be available over my VOIP number for calls or issues that need immediate attention. Feel free to continue to send in your questions. I wanted to apologize upfront for any additional delay in responses. Please be conscientious that it is 12 hours ahead of EST and this along with being on vacation means I will typically respond to any issues between 8AM - 12 PM EST or 8PM to -12AM my time.

Fernandez-Fox v. Estate of David P. Lindsay, 33 Fla. L. Weekly D259 (5th DCA January 18, 2008)

Fox and the Decedent had owned real property they had intended to have titled joint with rights of survivorship. Because of an error, the title was not correctly designated in the public records and the decedent died before the error could be corrected. Fox initiated probate proceedings and filed claims for storage fees, funeral expenses, and maintenance of the property. One of the beneficiaries of the decedent’s Florida Will filed a Motion to Strike the claims, which was denied. In the interim, Fox initiated a quiet title action against the Estate and the estate beneficiaries. A personal representative was appointed, and the PR filed objections to the Fox claims nine months after being appointed.

Fox petitioned for an extension of time to file independent action on her claims. The Florida Probate Court denied the motion, ruling that the earlier Motion to Strike was an objection requiring filing of an independent action within 30 days.

On appeal, the decision was reversed on the grounds the Motion to Strike failed to meet the requirements of an objection pursuant to Florida Probate Rule 5.496. The appellate decision had good discussion of the types of actions and information that would serve to put an estate on notice of a potential claim and indicates a request for extension should be granted only if the estate can establish it would be prejudiced or unfairly surprised. Both parties requested fees, claiming their actions benefited the estate.

The court rejected both claims: 1 the reversal allowed Fox to pursue her claims, obviously not of benefit to the estate and 2 the Estate lost the appeal, will be required to litigate the claims and, in the opinion of the court, thus had not benefited the estate.

The Florida Bar has created a Florida Probate Pamphlet to help individuals understand Florida Probate.
It discusses the following information
1. WHAT IS PROBATE?
2. WHAT ARE PROBATE ASSETS?
3. WHY IS PROBATE NECESSARY?
4. WHAT IS A WILL?
5. WHAT HAPPENS TO PROBATE ASSETS IF THERE IS NO WILL?
6. WHO IS INVOLVED IN THE PROBATE PROCESS?
7. WHERE ARE PROBATE PAPERS FILED?
8. WHO SUPERVISES PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO WILL THE COURT APPOINT TO SERVE AS PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. WHAT ARE THE ESTATE’S OBLIGATIONS TO ESTATE CREDITORS?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. WHAT ARE THE RIGHTS OF THE DECEDENT’S SURVIVING FAMILY?
16. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES HAVE IN THE DECEDENT’S PROBATE ESTATE?
17. HOW LONG DOES PROBATE TAKE?
18. HOW ARE THE PERSONAL REPRESENTATIVE’S COMPENSATION AND PROFESSIONAL FEES DETERMINED?
19. WHAT ALTERNATIVES TO FORMAL ADMINISTRATION ARE AVAILABLE?

If you would like to know more about Florida Probate Contact a Florida Estate Planning Lawyer who deal with Florida Probate.

Bryan v.Dethlefs, 959 So. 2d 314 (FIa. 3d DCA May 16, 2007)

The decedent’s trust stated,

"Upon my death, the then balance of principal and accumulated income remaining in the trust fund shall be distributed to my grandson, Robert R. Bizzell, if he is living at the time of distribution."

The lower court agreed with Bizzell’s half-sister and the appellate court affirmed, reviewing that the law favors early vesting of estates and any doubts should be resolved in favor of vesting.

The court determined the trust provision in question mandated distribution upon the death of the decedent and the last clause of the sentence "if he is living at the time of distribution" could lead only to the conclusion that the time of distribution intended by the decedent was at his death.

1. Anscher v. Lebenthal & Co., 963 So.2d 921 (Fla. 3rd DCA August 29, 2007)

Spouse vs. Estate of spouse, co-trustee, & brokerage company

The decedent’s surviving spouse bought an action in probate court against the decedent’s estate, the co-trustees of his trust, and his brokerage for failure to transfer securities out of the trust based upon written instructions from the decedent to the brokerage delivered two days before his death. The spouse settled the claim against the estate and the co-trustees, leaving only the claim against the brokerage.

The probate action became non-adversarial and was subject to being dismissed. To avoid statute of limitations issues, the spouse filed a second action in the general jurisdiction division of the Circuit Court, which was removed to federal court by the defendant. The defendant brokerage filed a motion to dismiss the probate proceeding, which was granted. The appellate court affirmed the lower court, although noting that "the probate court should have transferred the probate action rather than grant the motion to dismiss," but finding that the probate court order of dismissal was harmless.

How can you tell if a Will has been altered?
Most of the time you cannot tell by simply looking at the document. Often these documents are "tampered with" behind the scenes: friends, relatives, heirs or neighbors pressure, threaten or trick someone into changing, modifying or preparing a new Last Will and Testament or Codicil (an amendment to the Will). It takes an experienced lawyer to discover the facts and circumstances behind the preparation and execution (signing) of a Will.

Can a child be cut out of a Will?
In Florida, an adult child can be cut out of a Florida Will . So long as the parent is competent. An adult child can be removed from a Last Will and Testament (or a Florida Revocable Trust) for any reason. If a child is not mentioned in a Florida Will , it may be a mistake and grounds may exist for a Will contest. A child that is born or adopted after the decedent makes a Florida Will , may be entitled to receive 50% of the decedent's estate under the Pretermitted Child statute. However, a minor child has special "homestead" rights which prohibit the decedent from gifting his home if he or she is survived by a minor child.

When is litigation the only option?
Often litigation is cause by a failure to communicate. You will find that if people communicate and treat each other fairly or as they would want others to treat them any disagreements can be resolved amicably and without the need for lawyers. Most Probate disputes, Will contests and Trust litigation end up settling before trial.

When does helping a relative become Undue Influence?
If you make a telephone call to a lawyer to help a relative or friend prepare a Trust or Last Will and Testament, there may be a presumption that you exercised undue influenced over that person, especially if you're a beneficiary of the estate. The lines between helping a person and coercing them often become blurred in a fight over estate assets. Seemingly harmless assistance to a mother or father can be twisted into deceitful or dishonest behavior. Sometimes seemingly harmless assistance is deceitful or dishonest behavior that will go unchallenged without the helped of a skilled attorney. If you are planning on assisting another with the preparation of estate planning documents, ask the attorney what steps can be taken to reduce the appearance of impropriety, influence or over reaching.

Can a Spouse be cut out of a Will or Trust?
No. Florida law requires that in the absence of valid pre/post marital agreement, the surviving spouse is entitled to an elective share (approximately 30% of the fair market value of the decedent's assets); exempt property (household furniture, certain automobiles and Florida College saving programs); family allowance ($18,000); and/or entitlement to an Intestate or Pretermitted share of the decedent's estate. The right of the surviving spouse to receive from the decedent's estate is neither obvious nor straight forward. Multiple overlapping laws come into play that if analyzed incorrectly could costs the surviving spouse a fortune.

In Florida, and many other states animals are now allowed to be the beneficiaries of a special trust that is created to take care of them. These are often referred to as a Florida Pet Trust.

Today I was reading an article published in Arizona which stated that a Dog could inherit one's estate. While the article gives the correct advice the title is misleading and seems to suggest that a dog could inherit your estate. A pet may only receive the benefit of a Florida Pet Trust while the animal is alive. Being the beneficiary of a trust is not the same as inheriting part of an estate. In fact, a gift to a pet which is not in the form of a Florida Pet Trust would be void in Florida and most states.

To create a valid Florida Pet Trust please Contact a Florida Estate Planning Lawyer.

Rules regarding wills are usually based upon where the will was created. The general rule is that when a Will is valid at the time of creation, Florida will honor the will.

There is an exception to this and it regards certain handwritten or holographic wills. a Holigraphic Will is not valid in Florida unless it complies with the Florida Statute of Wills.

So even while your Mom's handwritten will in California may be valid, it will not be valid in Florida. To make sure you have a valid Florida Will please Contact a Florida Estate Planning Lawyer

Although a Power of Attorney often authorizes the agent to give gifts, agents should be careful when making gifts to themselves.

The Chicago Tribune has an article on an agent who gave herself $180,000 in gifts and the ensuing court battle over theft by deception, financial exploitation of an elderly person and conspiracy to commit financial exploitation of an elderly person.

If you believe someone has taken advantage of your or a loved on by the inappropriate use of a Durable Power of Attorney or Power of Attorney you should Contact a Florida Estate Planning Lawyer to review the facts.

If you need information on someone who died in south Florida in the last 100 years, you may be in luck.

A south Florida resident, Ann McFadden, has compiled a 4,000-page record of all most every death listed in a local newspaper for more than the last 100 years.
Now people are using this information to help resolve tricky genealogy research issues, reports the Miami Herald.

Ms. McFadden is a fixture at the main Miami library downtown. Deaths are not her only interest according to the Miami Herald. Ms. McFadden has also "indexed local adoption, military and probate records and has compiled a short history of a handful of local cemeteries, including Palms Woodlawn in Naranja, Miami City Cemetery on Northeast Second Avenue, Pinewood in Coral Gables and Woodlawn North on Southwest Eighth Street."

Ms. McFadden who is now 74 became interested in such work because she wanted to find out about her own family after living with her grandmother for 25 years and never asking her a single question about her family.

If you are searching for an heir in South Florida, you may check out the information Ms. McFadden has compiled.

A Los Angeles judge has decided that the young daughter of former Playboy bunny and television personality Anna Nicole Smith will inherit her estate.

Although Smith's will, drafted before her now 18-month-old daughter was born, gave everything to her son, Daniel, it also said she intended that the assets in trust for him be shared equally if she had future children, reports the Associated Press. Meanwhile, Daniel died, at age 20, three days after Smith's daughter, Dannielynn, was born in 2006. Smith herself died about five months later, in early 2007, of an accidental prescription drug overdose.

She is perhaps best known as the young wife of an elderly Texas oil billionaire, J. Howard Marshall II. The two married in 1994, when she was 26 and he was 89. He died a little over a year later, and litigation over his estate is still ongoing. If Smith's estate prevails or a settlement is reached, her daughter could potentially inherit millions, Reuters points out.

Only five weeks before his death Leonard R. Brener made a change to his will. He decided to change his beneficiaries form four local charities to his niece and her husband who took care of him while he was dying.

The non-profits were stunned and file a suit to battle over the money. The case took more than five years that the state appeals court recently ruled that Brener was mentally competent and his decision to leave the money to his family should stand.

The charities tried to argue that his change was unnatural because it would trigger significant estate taxes which he had previously stated he wanted to avoid.
(Estate taxes on 8M today are 2.7 Million Dollars) with proper estate planning its possible to have reduced the tax to 1.8 Million or less) Although the estate taxes from 2001 were significantly more than they are today.

This lengthy estate battle could have been avoided with the privacy afforded by a Florida Revocable Trust and some explanation within the will as to why the changes were being sought. In addition a Florida Revocable Trust would help to avoid the costs associated with a Florida Probate. If you would like more information on how a Florida Revocable Trust could benefit your or your family, Contact a Florida Estate Planning Lawyer for more information.

Are there other ways of transferring my property for estate planning that will not disturb my Homestead Exemption or SOH Cap?

Two methods of transferring your property will, in most cases, keep your Homestead Exemption and SOH intact: reserve a Life Estate for yourself or transfer your property to your trust. Please consult your attorney or estate planning professional before attempting either option.

If you transfer your property to a trust, your attorney should know that three criteria are required in order for your Homestead Exemption and SOH cap to remain intact:

* You as the homestead owner must have beneficial or equitable title to real property. In other words you must be the trustee or beneficiary of the trust. If you are the beneficiary but not the trustee, your interest must be in REAL property, not PERSONAL property.
* You must have the present possessory interest in the property. Simply, you must have the right to live there.
* The deed that transfers the property into the trust must be recorded.

If you are transferring your property by deed and want to maintain your Homestead Exemption and SOH cap please Contact a Florida Estate Planning Lawyer to verify that you are doing it correctly.

When one dies the value of their estate is subject to an Federal Estate Tax. This rate is currently 45%. In 2008 the Federal government has an exemption of the estate tax on the first 2 million dollars in value. In addition, many states have additional state taxes that are due when a resident of their state dies. Florida use to have an estate tax, but repealed it when the federal government stopped allowing you to deduct the amount of state estate tax paid from the federal estate tax due.

You should check on the estate tax in your state and consider costs and benefits of your state versus those with no estate tax. One of the reasons so many wealthy people move to Florida is the lack of income tax and estate tax.

How much are estate taxes?

Your estate will have to pay estate taxes if its net value when you die is more than the "exempt" amount set by Congress at that time. Here is the current schedule for the federal estate taxes:

Year of Death.........Estate Tax "Exemption"
2008................................$2 million
2009................................$3.5 million
2010................................N/A (repealed)
2011 and thereafter..........$1 million

In addition you may have to add your states taxes on top of the numbers above.
Although 2010 looks like 0, it really is higher, in 2010 the plan is tax on the increase in value of one's estate. Under the current plan, most assets are able to take advantage of a free stepped up value based upon the fair market value at the time of the decedents death.

A Florida Life Insurance Trust is an irrevocable trust that allows an individual to make the proceeds of a life insurance poliicy free from income taxes and estate taxes. Typical life insurance policies are income tax free, but many increase the value of one's estate to the point that the federal and or state income taxes are due. By using an ilit one can avoid these taxation issues.

In 2008 the Federal tax exemption is $2,000,000. Lets take a client with 1.5M in assets and a 1M life insurance policy.

If they were to die in 2008 their estate would be valued at 2.5M and 500,000 would be subject to estate taxes. The current estate tax rate is 45% so this estate would have to pay a tax of $225,000.

In 2011 the estate tax exemption is only $1M. With an estate valuation of $2.5M, 1.5M would be subject to estate taxes. Using the same tax rate, this estate would have to pay $675,000.

To find out if or how a Florida Life insurance trust can help you please Contact a Florida Estate Planning Lawyer.

In Florida, the powers granted by a Florida Guardianship expire when the ward dies. Often people try to use their powers granted by a Florida Guardianship to control aspects of the after death process. The guardian is without any powers granted by the guardianship once the ward dies.

If you are having problems with a Florida Guardianship or Florida Guardian Contact a Florida Estate Planning Lawyer.

A common technique with large Florida Estate Planning is the use of FLP's or Family Limited Partnerships. Neil Hendershot of the PA Elder, Estate & Fiduciary Law Blog summarized the recent highlights of the Heckerling Institute where they discussed those issues in detail.

The most important issues dealt with making sure there was

(1) not a gift on formation of a family limited partnership. This can be done by making sure the partnership is property funded and the capital accounts are credited. The recommendation was that during the next tax year he or she transfer partnership interest. This helps to avoid the argument that the transfer was contemplated at the time of the capital contribution. See Senda, T.C. Memo 2004-160 (July 12, 2004). One must also take this into consideration with additional contributions because they are valued with the amount given instead of a discounted valuation.

(2) Avoiding Bad Facts based on formation and operation. You do not want to have these issues used to devalue the discount on the entity.

• Disproportionate Distributions to senior family members.
• Distributions that cover senior family member's expenses.
• Do not create the partnership by an agent acting under power of attorney.
• Do not use partnership funds to pay estate taxes after death. If this looks like it will be necessary consider using a life insurance policy or a hands length loan from the partnership to fund those expenses if it is necessary.

(3) Senior family member should have no control at death or within 3 years of death to avoid an inclusion look-back period under IRC § 2035. If the senior family member must serve as a general partners remove "sole and absolute" authority language and any overly protective clauses.

(4) FPL's should be created for legitimate non-tax business purposes to avoid inclusion arguments. It is likely that the drafting attorney will provide testimony of the non-tax reasons. It might be advisable to use a separate attorney to draft the agreement who has no knowledge of the discounting opportunities when creating a Family Limited Partnership for Florida Estate Planning

(5) Potential problems arise with using a martial trust for the benefit of a surviving spouse. These interests may not get the same discounted treatment which can cause problems.

(6) Be careful with the 100 Shareholder rule when using S corporations as it is possible to have more than 100 shareholders when you look at all family members who are lineal descendants up to six generations including current and former spouses.

(7) Nonresident aliens or other non-approved shareholders can create problems with S corporations.

(8) S corporations can only have a single class of stock and all must have equal rights. Look out for disproportionate distributions, buy-sell installments, and split-dollar arrangements

The article goes on to discuss other concerns and should be reviewed by anyone looking to create a Family Limited Partnership for Florida Estate Planning

For more information on how a FLP can be an effective tool in Florida Estate Planning Contact a Florida Estate Planning Lawyer

The most common problem with Florida Estate Planning or estate planning in general is that those how are in the most need of the benefits a Florida Revocable Trust can offer are the ones who usually fail to fund their trust.

Creating a Florida Revocable Trust is only the beginning. No benefits are received by signing the documents. It is only when the Florida Revocable Trust is funded that the benefits of the trust can be used.

These benefits include avoiding delays in probate, reducing or eliminating the costs associated with a Florida Probate, and not having your assets or the distribution of your assets in the public record.

There are many other benefits that are specific to each Florida Revocable Trust .

If you have not funded your Florida Revocable Trust now is the time to do so. Don't forget to transfer your bank accounts, stocks, bonds, land, and other assets. Generally personal property can be assigned to the Florida Revocable Trust with a simple assignment. This is one type of asset that many people forget about and can often cause a Florida Probate to be necessary.

For more information on how to fund or create a Florida Revocable Trust Contact a Florida Estate Planning Lawyer.

As the Estate tax exemption continues to increase, fewer and fewer American families are subjected to the death Taxes. On the other hand this is creating a real problem with probate fees. Since fewer families are concerned with estate taxes, the overlook the fees associated with probate.

There are many techniques used to avoid the need for assets to be subjected to probate. These include: Joint accounts, payable on death designations, beneficiary designations, and Florida Revocable Trust . There are many issues that determine which of the methods is best for your particular situation.

With the increase in divorces and numbers of families with children from outside the current marriage, the Florida Revocable Trust often offers the best flexibility. It is important to evaluate a clients objectives, the risks associated with each method, and the costs.

To find out of a Florida Revocable Trust is the right solution for you, please Contact a Florida Estate Planning Lawyer to discuss your specific circumstances.

All Florida Enhanced Life Estate Deed or Florida LadyBird Deed are not created Equal.
In the past, I have had clients come to me for help when a title company would not accept the language on an Florida Enhanced Life Estate Deed or Florida LadyBird Deed. Each title company has specific language that they look for in the deed. As as result we have had several title companies review our deeds and make recommendations. We took these and complied them into a single form that satisfied all of their requirements.

If the title company is not happy with your current deed, they can refuse to write title insurance. As title insurance is required by every commercial lender in Florida when a home is sold, this can create a problem when you want to sell your home. In some cases, we have had to open or reopen a probate case to get the judge to issue an order to clear up the title concerns.

Often these deeds are used to avoid the delays and expenses of Florida Probate, not create ineligibility periods for medicaid, allow for stepped up basis, and not create unnecessary gift tax. If you would like to create an Florida Enhanced Life Estate Deed or Florida LadyBird Deed or have your deed reviewed please Contact a Florida Estate Planning Lawyer.

When someone dies without a Florida Will Their property is distributed under the Florida Statutes. Chapter 732 define the order of succession to a decedent's property.

732.103 Share of other heirs.--The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:

(1) To the descendants of the decedent.

(2) If there is no descendant, to the decedent's father and mother equally, or to the survivor of them.

(3) If there is none of the foregoing, to the decedent's brothers and sisters and the descendants of deceased brothers and sisters.

(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent's paternal, and the other half to the decedent's maternal, kindred in the following order:

(a) To the grandfather and grandmother equally, or to the survivor of them.

(b) If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.

(c) If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.

(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

(6) If none of the foregoing, and if any of the descendants of the decedent's great-grandparents were Holocaust victims as defined in s. 626.9543(3)(a), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the descendants of the great-grandparents. The court shall allow any such descendant to meet a reasonable, not unduly restrictive, standard of proof to substantiate his or her lineage. This subsection only applies to escheated property and shall cease to be effective for proceedings filed after December 31, 2004.

If you think you may be entitled to a persons property, Contact a Florida Estate Planning Lawyer to help you determine if you could benefit from a Florida Probate

If you own a Florida Limited Liability Company or Corporation there are unique Florida Estate Planning challenges. Often Florida Business owners fail to plan properly if they plan at all. Greg Herman-Giddens of the North Carolina Estate Planning Blog has an article where he gives a list of 32 Questions to ask if you own a business.

If you own a Florida Business and are concerned about Florida Estate Planning you should Contact a Florida Estate Planning Lawyer and discuss your circumstances.

As the Percentage of Florida Millionaires continues to rise, the need for more complex Florida Estate Planning continues to increase.

When ones assets are significant the benefits of a Florida Revocable Trust in conjunction with a Florida Will are increased. Florida's probate fees can rapidly approach 30,000 dollars on some of these estates. These fees can be greatly reduced or eliminated with proper planning. Even Florida residents who have a Florida Revocable Trust may need some additional documents to avoid probate. One such document that Florida's millionaires might consider is the Florida Enhanced Life Estate Deed or Florida LadyBird Deed .

To discuss what steps you family can take to reduce your estate taxes and probate fees, Contact a Florida Estate Planning Lawyer to discuss your situation.

Drafting and transfer of assets is an important aspect of a Florida Will or a Florida Revocable Trust. Real estate held by a company will not transfer to the trust unless the ownership of the company interest is transferred.

In a recent Florida case a testator never transferred the ownership of his business entity. When he died the trust directed that the property go to one beneficiary. His will transferred the residual to his wife.

The court in Vaughan v. Boerckel, 963 So. 2d 915 (Fla. Dist. Ct. App. 2007), affirmed judgment for the widow, holding that the failure to transfer title to the realty to the trustee meant that title remained in the corporation all the shares of which passed to the widow.

If you have assets owned by a Florida Limited Liability Company or corporation and wish to have your trust dictate how the assets will be transferred upon your death, you should Contact a Florida Estate Planning Lawyer to help you with your Florida Estate Planning.

This article was also reported on by Professor Gerry Beyer who writes the Wills, Trusts & Estate Professor Blog and Michael Bonesara who writes The Ohio Trust & Estate Blog.

When considering getting married for the second time, or to someone with a prior family it is important to consider Estate Planning, Long-Term Care, the family home, Social Security, Alimony, Survivor's Annuities, and College Financial aid as an article on Forbes has reported.

Florida Estate Planning becomes very important when there are children from outside the current marriage. A spouse in Florida is entitled to a 30% share of all assets unless there is a prenuptial or post nuptial waiver.

in addition aFlorida Revocable Trust or prenuptial agreement might not keep a spouse from being responsible for long-term care and can have an effect on Florida Medicaid Planning and Eligibility

The Florida Supreme court has said that a spouse may wave their rights to a family home, but the constitutional rights of the Florida Homestead are very strong and should be considered.

Social Security needs to be considered an the benefits from former will be affected by remarrying before the age of 60. After age 60 you may be able to collect benefits from a new spouse if those benefits are higher.

Alimony and Survivor's Annuities will likely end if you remarry.

College Financial Aid might be affected if the income of the family changes.

For more information on Florida Estate Planning Contact a Florida Estate Planning Lawyer.

Normally a Florida Estate Planning Lawyer would advise against signing a deed conveying a home or other property without recording the deed.

What happens if a Florida deed or Florida Enhanced Life Estate Deed is signed but unrecorded?
Is the deed valid?
What risks are associated with unrecorded deeds?
Why would someone want to sign a deed but not record the deed in Florida?

A Florida Deed is not invalid just because it is not recorded. There is the potential for claims from other people if they record a deed before you record a deed. In Florida, when a deed is recorded there are taxes that must be paid on any outstanding mortgage. For every $1000 of mortgage a fee of $70 is charged. While this may not seem like much, if the loan is $100,000 the fee will be $700 and if the loan is $500,000 the fee is $3500. Often people want to transfer the ownership of their property but expect to pay off outstanding loans prior to their death. To save the fees, clients often ask about waiting to record the deed. We would generally advise against such actions as in Florida the first person to record a deed, who does not have notice of a prior deed, and who pays for the property will be considered the owner.

As people age, they may forget that they signed a prior deed, and sell the property to someone else. If that person records before you do, your claim or right to the property would be invalid. In addition, as people age, they are sometimes taken advantage of and do things against their will. Although there may be a claim for undue influence, these are very hard and expensive to prevail on.

Another potential problem could arise if your father's estate plan distributes the real estate to someone other than you. If your dad's will bequests the property to your sister and you go to record your deed, you might find yourself on the business end of a lawsuit involving the estate.

There is always a chance the rules relating to recording a deed change. The current sales disclosure form that must be filed with deeds needs to be signed by both parties.

Unrecorded deeds can be useful under certain limited conditions, such as death-bed planning. However, personally, I would generally be reluctant to advise using an unrecorded deed. When clients ask about them it is important to let them know the risks associated with them.

Each set of circumstances is unique and sometimes the use of an unrecorded deed in Florida is worth the risk. You should contact an Estate Planning Lawyer to review your needs and circumstances prior to executing an unrecorded deed.