Florida Estate Planning Lawyer Blog

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

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

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

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

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

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

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

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

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

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

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

If there is a surviving spouse and descendants and:

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

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

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

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

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

In 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

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

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

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

As the second marriage becomes more popular, it becomes more important than ever to protect your life insurance for your children. I received a call today where the second wife had changed the life insurance benefits to her name, as might be expected. Five months later the father of two children died. The second wife will receive all the benefits of the life insurance and non will go to help support the fathers biological children. When the wife dies, it is likely that the money will go to her biological children and the fathers children will receive nothing. What this the intent of the father? Probably not? Can anything be done to protect your assets for your descendants? yes

How can you allow a portion of the money to be available for the benefit of a second or third wife and give part to your biological children. One way is through changes in the beneficiary designations. Although this can be difficult and some companies require the consent of the spouse, it is not impossible.

The better way, is to set up a revocable trust. The trust can designate who you would like to receive the proceeds and how you want the money distributed. Even better, once you create the trust, you can amend it.

It is best to create the trust before you get married, and amend it when you choose. Paul A. Rabalais of the Estate Planning Law Firm of Louisiana Blog recently wrote a similar article on this topic that you may want to review for more information.

If you need help creating a Florida Revocable Trust Contact a Florida attorney who is familiar with Florida Estate Planning Documents

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.

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.

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.

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.

When reviewing your Florida Estate Plan be sure that your will does not conflict with other actions you have taken to avoid probate.

Assets that have joint ownership, payable on death designations or beneficiaries will not pass to the beneficiaries names in your Florida Estate Planning Documents. Often a person's will leave assets split equally among their heirs. When a bank account, IRA, CD, or life insurance policy names someone else as the owner, the asset is not counted as part of the estate and the asset will not be split how the will designates.

This can reduce the amount of assets that other beneficiaries receive compared to the person who is the joint owner or beneficiary of the bank account, IRA, CD, or life insurance policy.

One solution to this problem is the use of a funded Florida Revocable Trust or Florida Living Trust. The technique would be to name the trust as the beneficiary and have the trust make the distributions as you want.

For more details on these or other techniques you should contact to a Florida Estate Planning Lawyer or have your attorney review all of your account designations along with your Florida Estate Planning Documents.

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.

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.

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.

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.

Starting January 1, 2008 every non-spouse designated beneficiary will have the option to rollover an inherited IRA and stretch distributions. To take advantage of this opportunity your Florida estate plan must be setup correctly to qualify for this rollover opportunity. You are not entitled to a rollover, you must prove you meet the technical legal requirements. Let’s take a look at why your family would not qualify for the new IRA rollover opportunity.

The IRS has very specific rules for how a trust can qualify as a see through trust and treated as a designated beneficiary. The top level bullet point requirements are:

The trust must be valid under state law;
The trust must be irrevocable or become irrevocable when the IRA owner dies;
The trust beneficiaries must be identifiable from the trust instrument;
Proper documentation must be provided to the IRA custodian.

Seems simple enough right? Remember, this is the IRS we are dealing with and they take income tax deferral very seriously because they think they are losing money. They have regulations on top of regulations on top of Private Letter Rulings and court decisions defining each one of those bullets in extensive detail. There is enough material to write a book on those four issues, and people have. I can’t get into detail on all of them here because it would take forever.

The most common issue is the requirement that beneficiaries be identifiable from the trust document. Often trust documents do not contain adequate language to comply with the IRS rule. Make sure you have the proper language to qualify for rollover treatment.

Rollover treatment is a privilege, not a right. Your family will not qualify for rollover treatment if you do not follow the rules in your estate plan. Make sure you and your Florida Estate Planning lawyer or attorney understands the requirements and that your estate plan doesn’t fall apart on this critical issue.

While credit is tight and many Jacksonville consumers are facing foreclosure on their homes, and attempts to collect old credit card debts, companies have been trying to use waiver of you homestead to collect debts. For over 100 years Jacksonville residents and those living in Florida have had been able to protect their home from claims of creditors. Arguably the home is one of the most valuable assets a Florida resident has. Recently there has been concern over the ability of a homeowner to waive their right to protection. The Florida courts have allowed people to waive many of their constitutionally protected rights, but up to now a waiver of ones Florida homestead protection was invalid except in the case of a valid pre or post nuptial agreement. This case represented the most recent attempt to allow waiver of ones constitutionally protected homestead protection.

In a case involving the Florida Constitution's exemption which protects homeowners' residences from forced sale, the Supreme Court of Florida reaffirms that, while the exemption can be waived in a mortgage, it cannot be waived in an unsecured agreement. The court rejects claims that it should recede from its precedent based on a constitutional amendment, a purported national trend approving such waivers, and recent holdings that other constitutional rights can be waived.
To review the case and the extensive analysis the Florida Supreme Court took read Chames v. Demayo

If you are having problems with collection agents trying to collect debts, credit card debts, or other types of debts, contact a Florida Business Lawyer, or Jacksonville Consumer Debt Lawyer.

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

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed") is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process.

Why Use an Enhanced Life Estate Deed?
The Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Who should use the Enhanced Life Estate Deed?
An Enhanced Life Estate Deed or Lady-Bird Deed should be use by individuals or couples who want to simplify the transfer of their property upon their death and retain full authority and possession over their property.

Will using an Enhanced Life Estate Deed affect my Medicaid Eligibility?
As long as the individuals demonstrate an "intent-to-return" to the homestead Medicaid Eligibility should not be affected.

What are some common mistakes with deeds?
Many Florida residents add their children on their deeds as Joint Tenants with Rights of Survivorship.
Many Florida Residents deed their property to their children and retain a life estate.

What can happen if I have made a common mistake on my deed?
1) My home may not be protected from creditors and/or loose its homestead protection.
2) I may be disqualified from Medicaid in the event that I need to go into a Nursing home.
3) I may have made a gift, subject to Federal Gift Taxes, Penalties, and Interest which my heirs and/or family may be responsible for paying.
4) I may not be able to sell my home or use the proceeds from my home to enhance my quality of life, travel, or pay for the necessary medical care I need.

If I have made a mistake transferring my property, can it be fixed?
Yes, You should meet with a Florida Estate Planning Lawyer to evaluate your situation, and prepare the documents necessary to allow you to qualify for Medicaid, deal with the Gift taxes, protect your homestead, and pass your homestead to the desired beneficiaries without the costly expense and delay of Florida probate.

Often in the process of Florida Estate Planning, Florida Elder Law, or Florida Probate I get asked about the effects of Florida's Spousal Share Statutes. The statutes reserve 30 % of the decedents estate for a spouse in the event that the decedent did not provide at least that amount in their will or other Florida Estate Planning Documents. This right can be waived by the spouse in pre or post nuptial documents. Often for wealthy clients, or those who are legally seperated but not divorced the spousal share can become a big issue. If you think that a spousal share might be an issue with your estate planning, you should discuss it with a Florida Estate Planning Lawyer.

Last week a Florida Appeals Court looked at, Whether Florida's Spousal Share Statutes were constitutional or not?

Generally Florida Statutes are constitutional unless they are not rationally related to furthering a valid governmental objective. Lane v. Chiles, 698, So.2d 260, 262 (Fla 1997) In this case the court looked at whether the potential loss of property rights were rationally related to providing a share in the assets of the decedent.

The Florida Appeals Court upheld the statute and found that the statute was rational related to the purpose. The Florida Probate Litigation blog has an excellent analysis of the case In RE Estate of Magee Download file.

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.

Florida Estate Planning Lawyers and Florida Elder Law Lawyers often use Ladybird Deeds to help transfer property upon death while allowing the owner to retain the full rights to sell, mortgage, convey, or change the future owner.

Florida, Texas, Ohio, California, Kansas and several other states now allow aLadybird Deed (named after Lady Bird Johnson) or Enhanced Life Estate Deed. With an enhanced life estate deed, a person can deed their property to another while reserving for themselves a life estate with the right to sell, convey, mortgage, or change who the property will pass to upon their death.

Quitclaim Deed v. Lady Bird Deed (Enhanced Life Estate Deed)
Often people use a Quitclaim Deeds to avoid probate. A Quitclaim Deed use to make things easier for beneficiaries. The problem with the Quitclaim Deed to avoid probate is that owner would not be able to sell or mortgage his/her property without the consent of her beneficiaries.

In some states a life estate or quitclaim deed could invalidate your homestead protection. If you are elderly or wanting to reduce potential probate costs it is important to speak to attorney in your state, who is practices in Elder law and Estate planning.

Florida residents or those owning property in Florida who have questions about how a recent or future deed transfer might affect them or their family can use the contact form to ask questions.

A Florida Enhanced Life Estate Deed (sometimes called "The Lady-Bird Deed") is a tool used by Florida Estate Planning Attorneys, Florida Elder Law Attorneys, and other by Florida Lawyers to preserve the homestead for the benefit of the family. Upon the death of the homeowner’s the property will pass to the people designated without the need for a costly probate process.

Why Use an Enhanced Life Estate Deed?
The Enhanced Life Estate Deed provides a mechanism to bypass the probate process and thus the creditors. Under this document, the husband and/or wife retain a Life Estate Interest under which he or she retains the right to live on the property for their life. Unlike a Life estate, the husband and/or wife retain the right to sell, mortgage, convey, gift, or cancel the remainder interest at any time during their life. If there is any property interest upon the last to die of the husband and/or wife, the remainder will pass in fee simple to the designated individuals named in the deed.

Continue reading "Florida Enhanced Life Estate Deed" »

Everyone in Florida seems to be going crazy to setup a Florida living trust. Often we find ourselves asking why does this client need a living trust. In most cases they don't, but if clients are looking for privacy, to save time or money on probate or have assets in excess of 1,000,000 a Florida living trust might be a good vehicle for their estate planning.

Much like a will, a living trust will describe what happens to your property in the event of your death. While you are alive, you can remain in control and have the power to change the trust at any time. Setting up a living trust allows you to avoid the expense and long delays of probate, and may even save you money on taxes.

Continue reading " Why use a Living Trust in Florida" »

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.

In Florida a Revocable Trustcan be amended and revoked, by the grantor who established the trust. This trust may become irrevocable and no longer amendable when the grantor of the trust dies or becomes permanently incompetent.

Living Trust also known as Revocable Trust of Revocable Living Trust: A trust that one establishes during one's lifetime which is not part of one's will, but is established by a separate written trust agreement. A revocable trust is one of the primary means for avoiding probate. I can also allow for a specific distribution such as the children receiving 1/3 of the inheritance at 25 1/3 at 30 and 1/3 at 35 if the parents are already deceased or providing longer term asset protection on their behalf. It can provide for professional management of the trust assets, help to ensure that the grantor or their trustee can maintain control over their affairs and has many useful benefits.

Assets which are in the Revocable Living Trust prior to the death of the grantor are not subject to probate, inventory, but can be subject to estate tax. The Trust will generally become irrevocable at the time of the death of the grantor and terminate shortly afterwards. The trust can create several new trusts upon or give assets outright to the beneficiaries. Consult with your Florida Revocable Living Trust Attorney to create a trust that works best for you. There are also several special trusts that can be used to carry out your desires and achieve your goals and objectives.

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.

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.

With a Florida Wills you can appoint guardians for your children and arrange to manage their property for them until they're legal adults. Making a will is a critical first step in your plan.

But in Florida a will must go through the probate process, a lengthy and expensive court procedure in which a judge determines that your will is valid and supervises the distribution of your property. In most Florida counties including Duval, Clay, and St. Johns it can take 6 to 18 months and cost up to 3% of your non exempt portion of your estate. There can be additional fees for dealing with non-probate assets (that includes your Florida Homestead when you die, even if the bank really owns it).

If you have a house worth $300,000 and $200,000 worth of other assets, probate costs could be close to $7,000 and could easily be even higher. An estate of 500,000 could be looking at fees around $15,000. You can avoid probate costs by establishing a Florida Living Trust, Make sure you use a Florida living trust attorney to ensure that you comply Florida laws and regulations.