Florida Estate Planning Lawyer Blog

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

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

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

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

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

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

This is a common mistake found in Florida Probate cases, when people try to make their own wills, or transfer their assets without getting professional help from an attorney or accountant who is familiar with the effects of gifting and estate planning.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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.

A number of Texarkana residents have filed suit against sellers of living trust documents in a class action accusing the salesmen of exploiting senior citizens. This is similar to what I reported happening in California in December.

A Plaintiff says he purchased a living trust after attending a lunch presentation at a restaurant. He states the document was misrepresented and that if he dies with only these estate-planning documents, his estate will still need to be probated because the living trust failed to factor in his real property in Arkansas.

The living trust sellers are facing allegations of "masquerading as qualified financial advisers, estate planners, lawyers, and paralegals" to "exploit and prey" upon senior citizens with the creation and selling of "unnecessary and often useless" living trusts.

Defendants are accused of fraud, unauthorized practice of law, negligence, breach of fiduciary duty and conspiracy. The suit alleges that the defendants created and sold the living trusts as part of a scheme to gain access to senior citizens' financial information in order to sell annuities and other financial products.

According to the original complaint, the scheme begins with advertisements that persuade senior citizens to attend a free lunch or dinner. At these meetings, the "unlicensed" living trust defendants conduct presentations and distribute materials that misrepresent the impact of probate fees and estate taxes in order to create fear that the senior citizens need to buy a trust to prevent heirs from losing their estate.

These presentations include references to celebrities such as Elvis and describe the large amounts these celebrities have paid in estate taxes. The plaintiffs state these presentations do not include information about the federal estate tax exemption, the sliding scale of the exemption amount, or the possibility of the elimination of future estate taxes.

Further, the presentation does not tell senior citizens with estates larger than the exemption amount that the purchase of these living trusts will not automatically eliminate all estate taxes. The forms and decisions made by the defendants fail to take into account the entire senior's assets and ultimately and fail to serve the legal purpose as presented, argue the plaintiffs.

The plaintiffs claims the presentations convince the senior citizens to use their IRA accounts or other tax-exempt growth products to purchase variable annuities. However, according to the plaintiffs' accusations, the presentations and documents do not demonstrate the redundancy with regard to a variable annuity's tax deferral benefit when purchased in a qualified plan and also do not inform the consumer of the associated fees, surrender charges and commissions associated with these variable annuity products.

These types of programs are everywhere. It is important to use a lawyer who will look at your individual assets and who is not trying to sell you other financial products. To review your estate planning needs contact a Florida Estate Planning Lawyer.

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.

Vanguard recently sent their clients a notice that they would no longer allow their clients to name different beneficiaries for multiple IRA accounts and would be changing the beneficiaries to whomever was named last.

If you have a Florida Estate Plan that uses POD or beneficiary designations, this could significantly change your estate planning.

It is important to check your designations on all accounts.
- Make sure all accounts have beneficiaries to avoid a Florida Probate.
- Consider using a Floria Revocable Trust to manage your beneficiaries. A Florida trust can manage all of the beneficiaries in one documents. Remember that if you are leaving a percentage to a Charity to deal with this properly so there are no adverse tax and distribution consequences.

If you have questions about payable on death designations, beneficiaries, or joint accounts, please contact a Florida Estate Planning Lawyer to help you understand the implications and benefits of using a Florida Trust.

Florida residents should start the New Year off right, here are ten important Florida estate planning and Florida probate and tips for the New Year.

1. If you don’t have a Will, get one.
Florida estate planning and Florida Probate tip #1: Have a Florida Will. If you don’t have a Florida Will, get one. In particular, married couples with children from prior relationships should always have a Florida Will. Otherwise, the state will decide who gets the money at death.

2. Get a Medical Power of Attorney and Advanced Medical Directive.
Florida estate planning and Florida Probate tip #2: Along with a Will, everybody should have a Florida medical power of attorney and an advanced medical directive. A Florida medical power of attorney designates an individual to make health care decisions for you should you be unable to do so. An advanced medical directive, commonly called a living will, states in advance what you want in the way of life sustaining treatment when death is imminent or when you are in a persistent vegetative state.

3. Review all beneficiary designations on life insurance, retirement accounts, and other financial accounts.
Florida estate planning and Florida Probate tip #3: Review all beneficiary designations on life insurance, retirement accounts and other financial accounts. You may be surprised at what you find. Do not settle for a verbal confirmation. Make sure you see the documents.

4. Get a permanent life insurance policy.
Florida estate planning and Florida Probate tip #4: Evaluate the need for permanent life insurance. Liquidity is important in life and at death. The lack of liquidity at death can increase legal fees and cause property to be sold for less than its actual value – far less. Even a small amount of life insurance is better than none.

5. Put your permanent life insurance in a life insurance trust.
Florida estate planning and Florida Probate tip #5: If you have substantial, permanent life insurance, consider putting the life insurance in a life insurance trust. Moving your life insurance into a life insurance trust removes the insurance from your gross taxable estate for federal estate tax purposes and protects the insurance policy from creditors. This can save you 45% or more of the policy value.

6. Put your inheritance in an irrevocable trust for asset protection.
Florida estate planning and Florida Probate tip #6: Get it and give it in trust. When you give an inheritance in an irrevocable trust, you also give some level of asset protection. If you are the potential recipient of an inheritance and if you have the ability to speak openly with the person making the gift, consider suggesting that the gift be made in some form of irrevocable trust. There is some cost to a gift in trust. However, the asset protection benefits typically outweigh the cost.

7. Put all your estate planning documents in a safe deposit box.
Florida estate planning and Florida Probate tip #7: Obtain a safe deposit box and put your original Florida estate planning and other important documents in the box. Fire safes and file cabinets are certainly better than nothing if you let somebody know where to look. However, many Wills vanish or are lost shortly before death. If the original cannot be found and the original was last seen in your possession, Florida courts presume that you destroyed or revoked the Will. While a copy of a Florida Will can sometimes be probated in a Florida probate, it can be expensive and not always successful.

8. Protect your heirs against local expensive probate proceedings.
Florida estate planning and Florida Probate tip #8: If you own real estate outside of the state where your Will is to be probated, make sure that transferring the real estate to your heirs will not require a local, expensive probate proceeding. This can be accomplished several ways. Some states have a simplified probate procedure for making the transfer without opening a local probate proceeding. Other states allow for beneficiary designations through something called beneficiary deeds. In most states, the probate process can be avoided by transferring the real estate into a revocable trust. Otherwise, be prepared to spend several thousand dollars to make the transfer after the death of the owner. Note: Property in a foreign country can be very expensive to transfer upon death. Also pay attention to foreign estate tax. Unlike the United States, the estate tax can vary greatly based upon whom you give the property to at death.

9. Leave property to your husband or wife in trust.
Florida estate planning and Florida Probate tip #9: Consider leaving property to your spouse in trust instead of outright. The trust accomplishes three goals.

1. Avoiding estate tax.
2. Protecting the assets from the surviving spouse’s creditors.
3. Controlling how the remaining funds are distributed.

Many family estates have been lost when the surviving spouse remarries and leaves the family assets to the new spouse or his/her family. We see more money lost to shifting bloodlines than we have ever seen paid in federal estate tax.

10. Know if your state has state or estate/inheritance taxes.
Florida estate planning and Florida Probate tip #10: If you have a tax planning estate plan, know whether your state has estate tax. Florida does not have any estate tax, but if you become domiciled in another state your estate may be subject to estate taxes. Many states are implementing estate or inheritance taxes.

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?

If you have questions about a Florida probate case please contact a Florida Probate Lawyer.