Florida Estate Planning Lawyer Blog

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

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Beneficiary , Distributions , Estate Planning , Florida Probate , Living Trust , Retirement Plans , Revocable Trust , Wills

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Creditors and Claims , Florida Probate , Full Administration , Letters of Administration , Personal Representative , Summary Administration

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Beneficiary , Florida Probate

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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

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Exempt property , Florida Probate , Intestacy , Intestate

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Florida Probate , Probate Litigation , Probate Litigation

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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

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate , Inventory , Probate Litigation

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Ancillary Administration , Florida Probate , Homestead

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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 us

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Estate Taxes , Florida Probate , Summary Administration

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Distributions , Florida Probate , Personal Representative

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate

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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

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Distributions , Estate Planning , Florida Probate , Irrevocable Trust , Revocable Trust , Wills

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Devise / Devisee , Distributions , Florida Probate , Homestead

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Florida Probate , Personal Representative , Wills

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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

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Florida Probate , Wills

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Devise / Devisee , Distributions , Estate Planning , Florida Probate , Personal Representative , Wills

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Beneficiary , Distributions , Estate Planning , Exempt property , Florida Probate , Homestead , Wills

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Beneficiary , Business Law , Digital Asset Trust , Estate Planning , Florida Probate

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Florida Probate , Wills

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Florida Probate

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Devise / Devisee , Exempt property , Florida Probate , Homestead

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate

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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."

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Florida Probate

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate , Personal Representative

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Elective Share , Estate Planning , Exempt property , Family Allowance , Florida Probate , Homestead

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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

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Florida Probate , Wills

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Charitable Trusts , Death Taxes , Estate Planning , Estate Taxes , Florida Probate , Living Trust , Revocable Trust , Wills

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Elder Law , Enhanced Life Estate Deeds , Florida Probate , Homestead , LadyBird Deeds , Summary Administration

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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

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Estate Planning , Florida Probate , Intestate

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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.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Beneficiary , Estate Planning , Florida Probate , Living Trust , Revocable Trust , Wills

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A paycheck of a decedent belongs to the Decedents estate. Florida Employers should not cancel nor refuse to issue paychecks for employees who die. Florida Employers should follow their normal procedures. If no one checks on the status of the paycheck, it would be a good idea to send notice to their address that the check is being held for their estate. This gets more complicated with direct deposit where the funds could go to the wrong person. The decedent could have a joint account with someone who was not the same person who would take under the will.

If you have questions about receiving or what to do with the earned but unpaid income of a decedent in Florida you should contact a Florida Estate Planning Lawyer who is familiar with Florida Business Law.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Business Law , Florida Probate , Personal Representative , Withholding Pay

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Fox Business has an article on A New and Smart Way to Leave Your IRA to a Minor where they discuss the importance of reviewing beneficiaries on all acounts including insurance, annuities, and retirement plans.

They discuss leaving a percentage of the account rather than a dollar amount as this can cause complications if there are not enough assets in the account.

"If you don’t name someone in your will to act as “financial guardian” for your granddaughter, then your IRA will end up in probate court with a judge making the decision. And it might not be the person you’d want. (Your son-in-law, for instance.)"

Not only that, once the probate court is involved, it can get very expensive, depending upon the laws of the state where the minor lives. “The court gets joint jurisdiction,” says Goldberg. It can require the guardian to post bond and prepare annual reports on how the money was spent. You may need pre-approval each time you want to take a withdrawal. The court could require that the money be taken out as a lump sum, negating the benefits of “stretching” withdrawals over your granddaughter’s life expectancy.

To avoid the jurisdiction of the probate court, you can leave your IRA to a trust instead of directly to your granddaughter. As the beneficiary of the trust, she would still receive all of the benefit of your IRA. You get to appoint a trustee- which can’t easily be changed by a court- and this individual would take the annual required distributions from your IRA. The money goes into the trust and, based on the conditions you set, it can either be paid out to cover some of your granddaughter’s living expenses or accumulated to pay for college.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Estate Planning , Florida Probate , Living Trust , Living Will , Personal Representative

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The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the distributions of a persons estate when is no will in a Florida probate case.
Contrary to the belief of some, the decedent’s assets are not turned over to the State of Florida unless no intestate heirs can be found. If there is no will, the assets of the decedent will be distributed to the intestate heirs as follows:

• Surviving Spouse and No Lineal Descendants. If there is a surviving spouse and no lineal descendants, the surviving spouse takes all.

• Surviving spouse and lineal descendants.

1. If there is a surviving spouse and one or more lineal descendants (with the lineal descendants all being the lineal descendants of the surviving spouse as well as the decedent), the surviving spouse receives the first $60,000 of the probate estate plus one-half of the rest of the probate estate, and the lineal descendants share the remaining half.

2. If there is a surviving spouse and one or more lineal descendants (one or more of which lineal descendants are not also lineal descendants of the surviving spouse), the surviving spouse receives one-half of the probate assets and the lineal descendants share the remaining half.

• No Surviving Spouse, But Lineal Descendants. If there is no surviving spouse, but there are lineal descendants, the lineal descendants share the estate, which is initially broken into shares at the children's level, with a deceased child's share going to the descendants of that deceased child.

• No Surviving Spouse, No Lineal Descendants. If the decedent left no surviving spouse or lineal descendants, the probate property goes to the decedent's surviving parents, and if none, then to the decedent's brothers and sisters and descendants of any deceased brothers or sisters. The law provides for further disposition if the decedent is survived by none of these.

• Exceptions to Above. The above provisions are subject to certain exceptions for homestead property, exempt personal property, and a statutory allowance to the surviving spouse and any lineal descendants or ascendants the decedent supported. Regarding homestead, if titled in the decedent's name alone, the surviving spouse receives a life estate in the homestead, with the lineal descendants of the deceased spouse receiving the homestead property upon the death of the surviving spouse. If there are no lineal descendants, the surviving spouse receives full ownership of the homestead outright.

For an evaluation of a Florida Probate Case please contact a Florida probate Lawyer.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Exempt property , Florida Probate , Personal Representative

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The Florida Bar has released consumer information on Florida Probate.

One of the most common questions deals with the personal representative and their role in a Florida probate case.

The personal representative is the person, bank or trust company appointed by the court to be in charge of the administration of the estate. The generic term "personal representative" has replaced such terms as "executor, executrix, administrator and administratrix."

The personal representative is directed by the court to administer the estate pursuant to Florida law. The personal representative is obligated to:

• Identify, gather, value and safeguard probate assets.
• Publish a "notice to creditors" in a local newspaper, giving notice to file claims and other papers relating to the estate.
• Serve a "notice of administration" on specific persons, giving information about the estate administration and giving notice of requirements to file any objections relating to the estate.
• Conduct a diligent search to locate "known or reasonably ascertainable" creditors, and notify them of the time by which their claims must be filed.
• Object to improper claims and defend suits brought on such claims.
• Pay valid claims.
• File tax returns.
• Pay taxes.
• Employ necessary professionals to assist.
• Pay administrative expenses.
• Distribute statutory amounts or assets to the surviving spouse or family.
• Distribute assets to beneficiaries.
• Close probate administration.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate , Personal Representative

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The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how creditors are dealt with in a Florida probate case.

Prior to commencement of probate proceedings, a creditor can file a caveat with the court. Upon publication of notice to creditors a creditor or other claimant may file a document called a "statement of claim" against the estate with the Clerk of the Circuit Court where the estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the "non-claim period." The personal representative or any other interested person may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim.

The personal representative is required to use diligent efforts to give actual notice of the probate proceeding to "known or reasonably ascertainable" creditors, to afford them an opportunity to file claims. A valid claimant is not viewed as an adversary of the personal representative but rather must be treated fairly as a person interested in the estate until the claim has been satisfied or otherwise disposed of.

It is important to give creditors the proper notice in a Florida Probate Case. If you have questions about creditors and a Florida Probate proceeding please contact a Florida Probate Lawyer.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Creditors and Claims , Florida Probate

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The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how fees are determined in a Florida probate case.

The personal representative, the attorney and other professionals whose services may be required in administering the estate (such as appraisers and accountants) are entitled by law to reasonable compensation.

The fee for the personal representative is usually determined in one of five ways:

(1) as set forth in the will;
(2) as set forth in a contract between the personal representative and the decedent;
(3) as agreed among the personal representative and the persons who bear the impact of the fee;
(4) as the amount presumed to be reasonable as calculated under Florida law if the amount is not objected to; or
(5) as determined by the judge, applying Florida law.

(1) as agreed among the attorney, the personal representative and the persons who bear the impact of the fee,
(2) as the amount presumed to be reasonable calculated under Florida law, if the amount is not objected to, or
(3) as determined by the judge, applying Florida law.

That being said each case is different and the fees depend on the type of assets, complexity of the case, and the conflict between the beneficiaries or heirs of the estate. To find out what a reasonable fee for a probate case please contact a Florida probate lawyer.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Creditors and Claims , Florida Probate

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The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:

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 THE PROBATE ADMINISTRATION?
9. WHAT IS A PERSONAL REPRESENTATIVE, AND WHAT DOES THE PERSONAL REPRESENTATIVE DO?
10. WHO CAN BE A PERSONAL REPRESENTATIVE?
11. WHO HAS PREFERENCE TO BE PERSONAL REPRESENTATIVE?
12. WHY DOES THE PERSONAL REPRESENTATIVE NEED AN ATTORNEY?
13. HOW ARE ESTATE CREDITORS HANDLED?
14. HOW IS THE INTERNAL REVENUE SERVICE ("IRS") INVOLVED?
15. HOW IS THE FLORIDA DEPARTMENT OF REVENUE INVOLVED?
16. WHAT RIGHTS DO THE SURVIVING FAMILY HAVE IN THE PROBATE ESTATE?
17. WHAT RIGHTS DO OTHER POTENTIAL BENEFICIARIES (OTHER THAN THE SURVIVING SPOUSE AND CHILDREN UNDER CERTAIN CIRCUMSTANCES) HAVE IN THE PROBATE ESTATE?
18. HOW LONG DOES PROBATE TAKE?
19. HOW ARE FEES DETERMINED IN PROBATE?
20. WHAT ALTERNATIVES ARE AVAILABLE TO FORMAL ADMINISTRATION?
21. WHAT IF THERE IS A REVOCABLE TRUST?

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Ancillary Administration , Annual Gift Tax Exclusion , Assets Subject to Probate Administration , Attorney-in-fact , Beneficiary , Creditors and Claims , Death Taxes , Devise / Devisee , Distributions , Elective Share , Estate Taxes , Exempt property , Family Allowance , Florida Probate , Full Administration , Homestead , Intestacy , Intestate , Inventory , Letters of Administration , Life Insurance Trust , Personal Representative , Special Needs Trust , Summary Administration , Tax issues , Trusts - Charitable

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If you feel that something is wrong with a Florida will because you are left out or your distribution doesn't seem fair, is there anything you can do?

If you believe a Florida will is not valid, you may be able to contest it. Proving a Florida will is invalid is a difficult process but not impossible. You must have some right to property to contest a Florida Will. You can not contest a will for someone when there is no indication that you would be a beneficiary.

Often wills contain no contest clauses voiding a persons interest if they contest the terms of the will. In Florida will contest provisions are invalid and ignored. If there was no will and you would inherited or become a beneficiary of their estate than you may have standing to contest the Florida Will.

Assuming you have standing to contest the will, the will can be contested only in certain circumstances; there must be evidence that something is wrong with the will. The situations in which a will may be contested are:

Mental incapacity: If you believe the decedent did not have the mental capacity to write the will it may be grounds for a will contest. To prove mental incapacity a statement from a doctor who examined the person around the time the will was created is beneficial. Medical records and witnesses can also be used to establish mental incapacity.

Fraud: Sometimes a person is fraudulently induced into signing a will. If fraud occurred or the Florida will was signed without the person knowing it was a will it may also be contested as fraudulent. Another type of fraud occurs when someone signs a will under a mistaken believe that caused a change in the will or the distribution of assets to a beneficiary.

Undue Influence:Often caretakers, friends, or children are in a position to exert undue influence over a person and induce them to change or create a will. Wills can be contested on the basis of undue influence. In some cases with a child, spouse, or agent there is a fiduciary relationship. When there is a fiduciary relationship the burden of proving undue influence can shift to that person to prove that there was no undue influence.

Not Executed Properly: On other way to contest a Florida will is to check and make sure that it was executed properly. A Florida will must comply with the statute of wills and be signed by the creator in the presence of two witnesses who each see the signing process. In addition a Notery must authenticate the signatures. If the Florida Will or Florida Trust was not witnessed properly, it may be invalid.

If you want to contest a Florida will, you should contact an Florida will contest lawyer immediately because a claim will need to be filed timely with the court.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Estate Planning , Florida Probate , Wills

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A recent article on Your Louisiana Estate Planning Blog, For Families With More Than $2 million of Assets: Bad Wills Can Cost You $1,000,000 talks about how poorly drafted wills can quickly cost your over $1Million in estate taxes. I see several clients a month that would have tax bills in excess of 1 Million dollars upon their death.

For those of you who have assets in excess of 2 million or expect to have assets in 2011 in excess of 1 million dollars, did you know that almost 1/2 of your estate will go to pay the tax bill?

If you have substantial assets and want to leave them to your family instead of the government, talk to a Florida Estate Planning Lawyer about how to structure your assets.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Death Taxes , Estate Planning , Estate Taxes , Florida Probate , Tax issues , Wills

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In Florida as with many other states, current child support payments and past due child support payments are an asset of the estate of the decedent. When there is back child support due and the primary caretaker passes away, the personal representative or executor of the estate may take action to collect the payments from the other parent.

Even though it is the estate who is going after the payments, these payments are for the benefit of the child and not available to creditors or other beneficiaries.

If you are trying to collect back child support from a parent and there is an estate involved, you should discuss this with a Jacksonville Estate Planning Attorney who works with a Jacksonville Family Attorney.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Creditors and Claims , Florida Probate

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Last week I had a client call me about a Probate problem? It turned out that this client had used a Do it yourself Will Program that was online ( LEGALZOOM). Her husband executed his will, but she did not. Then her husband died. The problem is that because her husband had a bank account in his name and did not have a Payable on Death designation, the bank account needed to go through probate.

This could have happened if a lawyer had prepared the will, but the lawyer would have probably inquired into the title of the assets in his possession. This little mistake cost $1500 in probate fees.

The odd thing is that she doesnt want her will or assets reviewed by an attorney because it will cost around $100. Some people never learn.

The moral of the story: Online wills are only forms. Even if they imply that a lawyer created them, a lawyer is not looking at your documents or your assets when you make decisions.
This client could have spent $100 more than the online cost and had an attorney prepare, and review their documents for mistakes like the one she missed.

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

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Florida Probate , Summary Administration , Wills

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Professor Gerry W. Beyer author of the Wills, Trusts, & Estates Professors Blog, as reported on a mistake in estate planning where a Another Self-Help Estate Plan Gone Awry. In this case a man decided not to consult with anestate planning lawyer. He transferred the family home to his stepchildren son and $150,000 of securities to his son.

The house was highly appreciated and as such was a poor asset to select to use as a lifetime gift. Because it was transferred during life, the children had to use the father's basis instead of the price of the home at the death of the father. This resulted in over $80,000 in capital gains liability.

In addition the house, because it was transferred within 3 years of death, was still included in the father's estate value and did not reduce his estate taxes.

The moral of the story: Spontaneous self-help by a Testator / Grantor can backfire and deprive heirs of large percentages of an estate and prompt family tensions. Professional planning would have made a huge difference to this man's family.

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

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Annual Gift Tax Exclusion , Assets Subject to Probate Administration , Beneficiary , Death Taxes , Devise / Devisee , Distributions , Estate Planning , Estate Taxes , Florida Probate , Medicaid and Homestead , Tax issues , Wills

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Mitchell Port a California lawyer posted a link to an article on the California Tax Attorney Blog about an article on the State Bar Website which provides information on estate planning. Although this is a California bar website, many of the same issues and considerations are important to Florida residents interested in Florida Estate Planning. Much of the information is also found on The Florida Estate Planning Lawyer Blog which primarily deals with Florida issues.

1. What Is Estate Planning?
2. What Is Involved in Estate Planning?
3. Who Needs Estate Planning ?
4. What Is Included in my Estate?
5. What Is a Will?
6. What Is a Revocable Living Trust?
7. What Is Probate?
8. To Whom Should I Leave My Assets?
9. Whom Should I Name as My Executor or Trustee?
10. How Should I Provide for My Minor Children?
11. When Does Estate Planning Involve Tax Planning?
12. How Does the Way in Which I Hold Title Make a Difference?
13. What Are Other Methods of Leaving Property?
14. What If I Become Unable to Care for Myself ?
15. Who Should Help Me With My Estate Planning Documents?
16. How Do I Find a Qualified Lawyer?
17. Should I Beware of Someone Who Is a "Promoter" of Financial and Estate Planning Services?
18. What Are the Costs Involved In Estate Planning?

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Devise / Devisee , Distributions , Durable Power of Attorney , Elder Law , Estate Planning , Estate Taxes , Florida Probate , Health Care Surrogate , Intestacy , Intestate , Irrevocable Trust , Living Trust , Living Will , Personal Representative , Supplemental Needs Trust , Tax issues , Wills

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If you live in a Jacksonville Florida, like many other cities around the country where the (CLEO) Chief law Enforcement Officer of your city will sign a Form 4 for NFA purchases of Class 3 items, there are several solutions.

Class 3 Weapons include suppressors, short barrel rifles, machine guns, and other destructive devices.

The most common solution is to create a revocable trust to hold title to the firearm or class 3 items you desire to purchase. Florida now requires a nexus to the state of Florida to create a Florida Revocable Trust or Florida Gun Trust

A Gun Trust, Firearms Trust, Limited Liability Company, or Florida Corporation are all legal entities that are established under Florida State Law. Each of these entities can purchase and hold firearms. There are some advantages and disadvantages of each legal entity. Generally the Florida NFA Gun Trust is the least expensive to create and maintain. In addition the Florida Gun Living Trust provides complete privacy from the public as Revocable Trusts are not required to be registered or filed with the state. The lack of any required filings means, the only people who know the terms of the trust are those you choose to tell.

Florida Business entities typically cost $150 a year for the state filings in addition to the cost of a CPA to prepare and file the federal filings.

Although most Florida Revocable or Living Trusts can hold firearms or other class 3 items, many are not properly setup to deal with the issues involving firearms and other items which are regulated by the National Firearms Act (NFA). If the NFA is violated, the owners are subject to criminal charges, substantial fines, and forfeiture of not only the class 3 items in question but all firearms in the possession or ownership. ($250,000 penalty, 10 years in prison, and forfeiture of items)

The Florida NFA Gun or Firearms Trust must give the Trustee instructions and special powers so that they can legally manage for unplanned events. Weapons and other assets in a Firearms Trust can not be distributed like other assets upon the death or incapacity of the person who placed the items in the trust(The Grantor or Settlor).

Many individuals are using Quicken or other simple trusts to purchase class 3 items. Before doing something like this you should consider the adverse effects that can be created by this technique.

1) You put your family and friends at risk of criminal and civil penalties in the event of your death or incapacity.
2) What happens if these items are transferred to someone who is not able to accept them because of eligibility, residency, age, or mental condition.
3) What happens if your trust merges with another trust, which will survive.
4) What happens if you will transfers NFA assets to your trust upon your death, can the trustee say no, most trusts do not allow for this.
5) What happens if the beneficiary is under age?
6) Will you know the mental state of the beneficiary, at the time of transfer and who and how will a problem be dealt with?
7) What state will the beneficiary live in at the time of the transfer? Can they accept, or possess these items, if not, what will be done?

If your trust doesn't deal with these issues or you do not understand why they are important, you should speak to a Florida NFA Gun Trust Lawyer to find out the answers. Feel Free call, email or ask any questions using the contact form

Read more articles on Gun Trusts, NFA Trusts, or using Trusts to hold Guns, Weapons or Class 3 items.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Beneficiary , Devise / Devisee , Distributions , Estate Planning , Florida Probate , Gun-Firearms Trust , Wills

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A Florida Probate Lawyer Long Duong is reporting a mistake a client of his made with a modification to a Florida Will. The document was not properly executed and it was held to be invalid. This mistake cost the intended beneficiaries over $75,000.

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?

If you have used software, a form, or an online service to prepare your will, you should have it reviewed by a Florida Estate planning Attorney for potential problems.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Creditors and Claims , Elective Share , Estate Planning , Florida Probate , Homestead , Wills

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One common mistake that people make when they have a spouse or children is to transfer their retirement accounts into their Florida Living Trust.

Generally, retirement accounts are not subject to probate because you can name beneficiaries. If you name individual beneficiaries, each beneficiary is given the most flexibility in the way they take and report the proceeds from the IRA.

If you name a Florida Living Trust, the beneficiaries might have to take all of the distributions in the year after death. This can happen when one of the beneficiaries is a charity or not an individual.

The other main problem is when there is a great difference in age between the oldest and youngest beneficiary. Often this happens when the spouse is one of the beneficiaries and there are children or grandchildren that are also named beneficiaries. When this happens it is possible to make all of the distributions the same as with the oldest beneficiary.

These problems can be solved or avoided if the retirement accounts are properly setup, separated, or if the problem beneficiaries are dealt with timely.

Generally its best to either name beneficiaries with retirement accounts individually, separate the retirement accounts while you are still alive, or name a separate revocable trust for these benefits that is different that the main revocable trust.

For more information on how to deal with retirement accounts in probate you should talk with a Florida Probate Lawyer who is familiar with Retirement benefits. It is even better to plan things upfront by using a Florida Estate Planning Lawyer.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Distributions , Estate Planning , Florida Probate , Irrevocable Trust , Living Trust , Tax issues

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Last month the IRS released a newly revised Form 706, United States Estate (and Generation-Skipping Transfer) Tax Return, and Instructions to Form 706. The new form is to be used for estates of decedents dying after December 31, 2006 and before January 1, 2008, and reflects changes in law as well as indexing changes.

According to the instructions, the following items are new:

• Use of the revision is only for the estates of decedents dying in calendar year 2007.
• The maximum tax rate for the estates of decedents dying in 2007 has decreased to 45%.
• The Small Business and Work Opportunity Tax Act of 2007, P.L.110-28, extends the application of income tax return preparer penalties to all tax return preparers, including estate tax return preparers.
• The decedent's authority over certain financial accounts in a foreign country must be reported on Part 4 - General Information.
• Various dollar amounts and limitations are indexed for inflation, and the following amounts have increased:
1. The ceiling on special-use valuation is $940,000, and
2. The amount used in computing the 2% portion of estate tax payable in installments is $1,250,000.
• Beginning with the estates of decedent's dying and generation-skipping transfers occurring after December 31, 2003, the generation-skipping transfer (GST) exemption is equal to the applicable exclusion amount. ($2,000,000 for 2007).

Visit the IRS website at www.irs.gov and look under Forms and Publications.

Source: Internal Revenue Service, Form 706 (United States Estate / and Generation-Skipping Transfer Tax Return) and Instructions for Form 706, Forms and Publications - September 28, 2007.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Death Taxes , Estate Planning , Estate Taxes , Florida Probate , Tax issues

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As aFlorida Estate Planning Lawyersand a Jacksonville Estate Planning Lawyer I often receive questions about Florida Living Trusts. These usually come after clients attend seminars given by Estate Planning Organizations. Often they are not law firms, but some are.

Although there are benefits to Florida Living Trusts, sometimes they are not necessary. I often get questions from clients who have less than 100,000 in assets who have been told that a Florida Revocable Trust or Florida Living Trust is the answer to their Florida Estate Planning needs.

To answer the question, "Is a Florida Living Trust right for me?" a Florida Estate Planning Lawyer needs to look at the clients individual financial circumstances. I have found that many times, simple payable on death designations will accomplish the same results as a Revocable Trust.

Other times the cost of the Florida Living Trust is more than the savings in probate, and what is saved is time. Although cost of probate is not the only consideration, it is usually one of the primary concerns of clients.

The Connecticut Estate Planning Blog has a detailed review of the issues that must be looked at to determine if a Living Trust is right for you.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Florida Probate , Living Trust

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Your Florida Estate Planning Lawyer will tell you that being appointed the PR / executor of an estate is not easy. The PR takes a personal risk and large responsibility to the estate of the decedent, the IRS, and the beneficiaries.

The main job of the PR is to manage the administration of an estate. Many small estates in Florida are distributed without the need of a Personal Representative or Executor. If the decedent had valid Florida Will, the PR can be name from the will, if not the court will appoint a PR based on qualifications and an order of priority. Generally the spouse is the first to be chosen as a PR, next the adult children along with any children who have legal guardians can be the PR. There is a statutory scheme to determining who will be the PR in a Florida Probate Case.

The PR will be responsible for locating the will, and additional documents to help determine what the debts and assets of the decedent are. In Florida probate requires a Florida Attorney. Once you are appointed as the PR, the court will issue you Letters of Administration. This document allows you to act on behalf of the estate. When you take actions, you will have to notify any interested parties (beneficiaries and creditors). The assets of the estate may be used to pay valid claims. One very important job of the PR is to file all current and final tax returns. This is one area where the PR has personal liability for unpaid taxes, penalties, and interest. Once all of the assets have been accounted for, creditors paid, and beneficiaries determined, the PR will distribute the remaining assets as instructed in the will or by the intestate statutes. The PR is also responsible for filing the accounting (a balance sheet showing the amount of the assets and whom they belong to).

The personal representative is entitled to compensation for the work that they do. The personal representative is also able to hire professionals or others to advise and administer aspects of the estates.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Creditors and Claims , Distributions , Estate Planning , Estate Taxes , Florida Probate , Full Administration , Inventory

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As a Jacksonville Estate Planning Lawyer, I learned that Florida did not recognize common law marriages. About a week ago, the founding partner of Wood Atter, came into my office and asked me about an estate plan involving a couple that were married under the common law many years ago.

Later I discovered that common law marriages prior to 1969 were valid in Florida. I asked some divorce Lawyers some questions and learned, that once married under the common law, you must still be divorced in a court. The divorce is the same process as with a traditional marriage.

Then I began to think that with the number of people who separate and never get divorced, there must be some estate plans had the potential for disruption because of an unreported common law marriage.

For example, a Husband and Wife were married under common law in Florida prior to 1969. They are later separated but not officially divorced. There would not be an official record of their marriage, so when one dies, there is an opportunity for the property of the estate to be distributed incorrectly.

If you were married through common law and now live in Florida It is important for you to have a Valid Florida Will that represents your wishes, if you are sepearted from your spouse and married either under the common law or by the state, you need to evaluate your Florida Estate Plan to make sure you assets are distributed as you desire.

Florida has some unique benefits for the spouse, if you were married under the common law and not divorced in a court, and your spouse died in Florida, you are probably entitled to some or all of your spouses assets. You should talk with an Jacksonville Florida or other estate planning attorney where your spouse lives or where your spouse died.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Assets Subject to Probate Administration , Distributions , Elective Share , Estate Planning , Exempt property , Florida Probate , Homestead , Intestate , Personal Representative , Wills

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One of the first things your Florida Probate Lawyer should tell you is that as an executor or Personal Representative of a Florida Probate Case, you are personally liable for any unpaid taxes or penalties for the decedent.

Kimberly Martinez-Lejarza has a nice review of the Estate of Ziotowski v. Commissioner. This tax court held that the failure of the two executors to file the 706 estate return made them liable for the taxes, penalties, and interest even though their attorney failed to inform them of the tax, filing, and due date.

Kimberly does a good job of analyzing the case stating:

That there was no way the estate could possibly stand upon its argument of reasonable reliance on the advice of counsel: there was no evidence the executors had even asked their attorney for advice as to whether the return was due on time, let alone that they had received such advice. In its analysis, the court also pointed to testimony given by one of the executors that further demonstrated the executors' complete disengagement from the estate administration process, including the preparation of the estate tax return. In the end, the estate was held liable for the additional tax generated as a result of the late filing.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Death Taxes , Florida Probate , Full Administration , Tax issues

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One problem I have seen in Florida probate cases, and Florida Estate Planning was recently written about by a Massachusetts Estate Planning Lawyer, Leanna Hamill who Practices in Estate Planning and Elder Law. This article was also covered by the Elder Law Professors Blog

In her review of the Walls Street Journal article, Paperless World Can Leave Heirs in the Dark, she states that the article outlines the dangers of keeping your records on your computer.

One of the main problems is that you may not have paper copies, for your Personal Representative to review. Without this information it may be difficult or impossible to compete an accurate inventory during the probate or administration of the decedents estate.

I have previously touched on this in a several articles about Florida Estate Planning and Digital Assets. Those articles cover some of the actual problems and ways in which various online services deal with death, and some of the problems that can result including who has a right if any to access the decedent's information which is stored online.

If you use a computer, you need to consider having a Florida Estate Plan that deals with Digital Assets, paperless transactions, and details your assets for those who have to administrate your estate.

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Posted In: Administration , Ancillary Administration , Beneficiary , Digital Asset Trust , Estate Planning , Florida Probate , Inventory , Living Trust , Personal Representative , Wills

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When you die, someone has to know hot to determine or what the details of your financial life are

It is important to make a comprehensive list of assets, liabilities, life insurance policies, power of attorney, Florida will, credit cards, details of bank accounts and all other important financial information.

The problem is that once you pass away, an executor or personal representative has to go through all of your document to figure out where assets may be located.

Recently a range of self-help products have emerged. The paper, and computer based products are available in many office supply stores. Many people who have a Florida Will or other Florida Estate Planning Documents, do not have a system for keeping the other information organized so that after passing, the Florida Probate process can be simplified.

Think about someone unfamiliar with your filing system trying to figure out where you have banks, stocks, Cd's, private investments, loans, debts, and everything else you keep in your mind but not on paper. Often the lack of an organized system increases the cost of the Fees associated with using a Florida Probate Lawyer.

Your Florida Estate Planning Lawyer, should be able to give you advice on what you need to make a list to simplify the Florida Probate process.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Estate Taxes , Florida Probate , Inventory , Life Insurance Trust , Living Trust , Personal Representative , Wills

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With Florida Estate Planning it is important to consider the effects of a gun on the probate process.
Neil E. Hendershot a Professor at Widener University School of Law in Harrisburg and author or PA Elder, Estate & Fiduciary Law Blog, had a Student submit an article regarding the possession and use by elderly persons of firearms. The article has a great title "I Bequeath my machine gun to . . ."

After reading this article, it is even more apparent that one who owns Class 3 Weapons, needs to be conscious of the effect of their demise on their Personal Representative and/or heirs.

Uncertainty in proper disposition of such a firearm could lead to one’s client being convicted of possession of an unregistered firearm, punishable by up to 10 years, $250,000 in fines and the forfeiture of the weapon and any “vessel, vehicle, or aircraft” used to conceal or convey the firearm.

No matter what state you are in, if you or someone you know has a Machine Gun, or other weapon regulated by the National Firearms Act (NFA), they should speak to an Estate Planning Attorney or Florida Probate Attorney who is familiar with the Act to protect their estate, Personal Representatives, Trustees, and Beneficiaries from the penalties associates with the wrongful possession or transfer of a weapon in violation of the NFA.

A Florida NFA (Gun / Firearms) Revocable Trust may be the solution for you.

On September 13, 2007, Professor Gerry Beyer posted an entry on the Wills, Trusts & Estates Prof Blog, which he edits, entitled "Dead People With Guns", referencing this post: One of the growing estate planning niches is preparing for the death of gun owners and handling the estates of gun owners.

Here are two sites which have detailed information about the issues and the solutions:

Neil E. Hendershot, "I bequeath my machine gun to . . ." , PA Elder, Estate & Fiduciary Law Blog, Sept. 12, 2007: * * *

David M. Goldman, Florida Gun Trusts or National Firearms Trust , Florida Estate Planning Lawyer Blog, July 30, 2007, National Firearms Gun Trust: * * *

The second site discusses the legal tool of a "Firearms Trust" (or "Gun Trust"), which provides special powers to a trustee not normally considered or granted, to carry out specified purposes of maintenance & disposition of weapons.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Beneficiary , Distributions , Estate Planning , Florida Probate , Gun-Firearms Trust , NFA Trust , National Firearms Gun Trust , Personal Representative , Wills

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It is important to have a Florida Business Attorney review important and complex contracts. In my experience as an entrepreneur, I have found that the number one reason why problems occur with employees and clients is a failure to set proper expectations and communicate effectively. Often when one looks hard enough at any problem, the cause and cure deal exclusively with expectations and communication. Often Florida estate planning involves litigation, although this article is focused on business, the same issues tent to apply to probate, guardianship, will constests and other types of Estate Planning.

I ran across this article which describes 5 things that one can do to help avoid litigation.

1 Think carefully about the type of people that you do business with 2 Be the kind of organisation which does not create disputes 3 Seek to communicate effectively and consistently. 4 Have management trained to face up to the dispute. 5 Have plain English and not too onerous legal term.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Business Law , Estate Planning , Florida Probate

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A Florida Personal Representative - The individual or individuals (or institution) named in a will or appointed by the Probate Court who is responsible for gathering a decedent's assets, paying debts, taxes, and expenses, selling assets of the estate, if necessary, and distributing the remaining property and money according to the terms of the will (or the intestate laws of the state of residence). The personal representative must preserve and protect the estate assets and unless an accounting is waived account to the estate beneficiaries for estate income and expenses. The personal representative must file a federal and state estate tax return, if required, and must also file final state and federal income tax returns for the decedent, and, if necessary, federal and state income tax returns for the estate.

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Posted In: Administration , Assets Subject to Probate Administration , Beneficiary , Exempt property , Florida Probate , Intestacy , Intestate , Personal Representative

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Before accepting the duties and responsibilities of being a PR in a Florida Probate Case or any probate case, the PR should be aware that they can be personally liable for the taxes, penalties and interest that are from the decedent.

According to 31 U.S. C. 3713b:

A representative of a person or an estate paying any part of a "debt" of the person or estate before paying a claim of the U.S. government is personally liable to the extent of the payment for unpaid claims of the U.S. Government.

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Posted In: Administration , Florida Probate , Tax issues

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Florida Probate is a legal process through which your Florida Probate Lawyer / Attorney files documents so that the following can happen

(a) a judge determines whether or not the decedent's will if any is valid;
(b) a personal representative is appointed to:

(1) collect the decedent's assets in his or her probate estate,
(2) pay the decedent's legal debts, and
(3) distribute the remaining assets in the decedent's Florida probate estate to the individuals or entities entitled to the assets in accordance with the will or laws of Florida intestacy; and

(c) the court approves the transfer of the decedent's assets to the individuals and entities designated in the will or the laws of intestacy.

The probate court will also determine the rights, if any, of a spouse and children to the decedent's property in addition to what they have been left in the will and supervises any claims filed against the estate, objections to claims and probate claims which are barred by time.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate , Full Administration , Letters of Administration , Personal Representative , Summary Administration

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Intestate property will pass to the decedents heirs. In Florida if a person has a surviving spouse and of their children are also children of the spouse, the surviving spouse will receive the first $60,000 then 50% of the remainder.

If the decedent had any children that were not children of the surviving spouse the children and the wife split the proceeds of the estate. If there are 4 children and 1 spouse then the spouse would receive 50% and the children would each receive 12.5% of the non-exempt assets of the estate.

Intestate: Refers to dying without a will or other designation of how one's property should pass.

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Posted In: Administration , Assets Subject to Probate Administration , Estate Planning , Family Allowance , Florida Probate , Full Administration , Intestacy , Intestate , Wills

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The Florida Homestead exemption: In Florida, this refers to a surviving spouse's or lineal heirs right to receive the primary residence of their family member free of claims from creditors other then perfected security interests on it such as the mortgage. In Florida there is no limit to the value of the property that is covered by a Florida homestead exemption.

The Florida Homestead protection is found in Article X Section 4 of the Florida Constitution.

Although there may be limits placed on the Homestead Exemption by Federal Bankruptcy Law and Florida Medicaid planning through the 2005 Debt reduction act.

An invalid conveyance of a homestead in a decedents will is ineffective and results in a spouse receiving a life estate in the property with the remainder going to the decedents children per stripes.

The same result happens if there are minor children at the time one of the parent dies. The transfer of time is valid at the time of the decedents death, but this tile is not considered marketable tile by Florida Title Agencies. Because of this it is necessary to open a Florida Probate case for the decedent to transfer the property.

One can accomplish their desired goals by using a Florida Estate planning attorney who is familiar with Florida Homestead, Florida Elder Law, and the rules regarding the Florida Homestead protection in regards to Florida probate administration.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Exempt property , Florida Probate , Full Administration , Homestead , Personal Representative , Summary Administration

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In a Florida probate case, where there is more than $75,000 of non-exempt property and the decedent died less than 2 years ago a Full or Formal administration is required. A formal administration can be used when the assets are lower than $75,000 but one can also do a summary administration.

Formal Probate: a proceeding before a probate judge either with a will or intestacy which is not a summary administration or disposition of property without administration and is governed by chapter 733 of Florida statutes.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Florida Probate , Full Administration

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Exempt property:

Florida law (Florida Statute 732.402) provides the right of a surviving spouse or children to receive tangible personal property such as furniture and furnishings within the homestead property up to $10,000 as well as the automobiles regularly used by the decedent if they are not devised to someone else. These properties are not subject to any claims except those with perfected security interests on them. Those entitled to such designation may be required to file the probate forms to declare such property as exempt within 4 months of publishing notice of administration of the probate administration. A surviving spouse and/or children are also entitled to a designation of homestead property that the property is exempt from creditors.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Exempt property , Florida Probate , Homestead , Personal Representative

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Administration - Probate or Trust: The process of handling the affairs of a deceased person's estate or a trust. Florida Probate and Trust Administration

Ancillary Administration: probate proceedings in another state. This is usually necessary when the deceased person owned real estate in their sole name in a state other than his or her home state. It could be avoided by putting the property into a trust or passing the property so the beneficiary (beneficiaries have) has a remainder interest in which the property will pass to them by operation of law upon the death of the decedent. With limited exceptions such as requiring documents from the decedents probate in their home state ancillary probate in Florida is generally treated according to the same rules as if the decedent were domiciled in Florida.

Formal Administration: a proceeding before a probate judge either with a will or intestacy which is not a summary administration or disposition of property without administration and is governed by chapter 733 of Florida statutes.

Summary Administration: an abbreviated proceeding before a probate judge either with a will or intestacy which the value of the entire estate subject to administration in this Florida, less the value of property exempt from the claims of creditors, does not exceed $75,000 or that the decedent has been dead for more than 2 years is governed by chapter 735 of Florida statutes.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Ancillary Administration , Florida Probate , Full Administration , Summary Administration

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Domicile is important when creating a Florida Estate Plan as well as when dealing with Florida Probate matters.

Domicile: The place that a person presently lives with the intent to remain. This is usually a persons permanent residence but if they are merely away on military service, to receive medical care or go to college for example but intend to return home to another place that they intend to return to will be the domicile. The law governing the state and county of domicile will control the disposition of the person's property upon their death. One's Domicile is important in figuring out which county a Florida Probate case is filed.

Posted by David M. Goldman | Permalink | Email This Post

Posted In: Administration , Estate Planning , Florida Probate , Homestead

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