Articles Posted in Estate Planning

One of the best tools estate planning attorneys in Jacksonville utilize for their clients is the Florida revocable trust. The revocable trust is also known as a living trust.  A revocable trust has many benefits including the ability to help individuals avoid probate.  However, many people do not realize that setting up an estate plan with a revocable trust in Jacksonville is not the final step to avoid probate in Jacksonville or around Florida.

Once the trust has been established, the settlor, or the creator of the trust,  or another person must fund the revocable trust.  Funding the trust is the process of transferring assets from the settlor’s name to the revocable trust.  To do this, the settlor must physically change ownership or the beneficiary designation, or in some cases both from the settlor’s individual name (or joint names, if married) to the name of the revocable trust.

As many as 9/10 estate plans fail because funding was not done, was not complete, or was done incorrectly. As a result, we now offer trust funding as part of many of our estate planning packages.
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Every trustee of a Florida Trust may have a fundamental duty to keep the trust’s beneficiaries informed of the administration of the trust.  Florida Statute Section 763.0813 provides that a trustee must keep the qualified beneficiaries of the trust “reasonably informed of the trust and its administration.”

The statutes do provide a few examples of what a trustee must do, such as providing the qualified beneficiary with the trustee’s contact information, notice of the establishment of an irrevocable trust, notice of the right to receive a copy of the trust document, and a notice of the right to receive accountings.

Note, there are ways in Florida to avoid having to provide many of the details to beneficiaries, but you must specify them in advance.
Who is a  Qualified Beneficiary in Florida

Many of our Florida clients are surprised to learn that the term “qualified beneficiary” does not mean what a client would assume.  A qualified beneficiary not only includes beneficiaries who are eligible to receive a distribution from an irrevocable trust but also includes the first-in-line remainder beneficiaries.

This is a significant requirement because some other states may permit a settlor, the person that creates the trust, to withhold information from certain beneficiaries.  The settlor may wish to withhold information for one reason or another, and certain states will allow the settlor to do so for a certain period without providing an alternate recipient if the settlor includes this provision in the trust instrument.  However, Florida is not one of these states, and the settlor cannot dictate that only certain beneficiaries can receive administrative information in the trust document.

 

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Estate planning is important to prepare for potential memory loss. Studies show that memory loss is one of the most common ailments that an older person experiences as they begin to age.  Memory loss is often a sign of early dementia, and those that suffer from dementia may not be legally competent to make financial or legal decisions. The best way to prepare for life with dementia is to plan for it through estate planning.

It is imperative to start estate planning when the early signs of memory loss begin.  At this point, the person should consider their healthcare and financial future.  The client should begin to think of who would be a suitable person to name in a power of attorney, whether or not the client wishes to live on life support during a coma with little chance of recovery, and where the client’s assets should go once he or she passes away.

Further, the client needs to start gathering documents to bring to an estate planning attorney.  The client should create an itemized list of assets, and store copies of deeds and titles of assets, copies of tax returns, and copies of health insurance policies.  This will allow the Jacksonville estate planning lawyers at The Law Office of David M. Goldman to create an estate plan that caters to the client’s unique needs.

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Florida’s 3rd District Court of Appeal held on October 26, 201 that an estate planning attorney must break the attorney-client privilege for  deceased client must by testifying in a will contest trial for undue influence.  The trial court ordered the attorney to testify, and the attorney refused.  The attorney appealed the trial court’s order to the court of appeal to review the issue as a matter of law.  The 3rd District Court of Appeal denied the attorney’s petition and the trial court’s order now must be enforced.

The events of what led to the holding are interesting.  The original proceedings by the plaintiffs sought to revoke the probate of two wills, one that was executed in 2012 and another that was executed in 2013.  Four of the testator’s children challenged their mother’s mental capacity to make these wills, and assert the wills were the product of undue influence by the fifth child.  The fifth child was the only child listed as a beneficiary in the 2013 will, while the other children were disinherited.

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In March, the Florida governor approved a new law called the Florida Fiduciary Access to Digital Assets Act, which allows the loved ones of a decedent to access any digital assets he or she may have owned before death.  This allows loved ones to access the recently deceased’s text messages, emails, online photographs, social media, and other electronic communications that would have otherwise been lost forever.

The act also allows Florida residents to plan for the management and disposition of digital assets should they become incapacitated or unable to manage their digital assets.  Should either of these events happen, a person can grant an authorized fiduciary the power to access, control, or copy digital assets and accounts.

The Definition of Digital Assets

Digital assets under this Act are any electronic record that Florida resident has a right or interest in.  This definition does not include any underlying assets or liabilities of the electronic asset.  Examples of digital assets include information recorded on a computer or other digital device such as an external hard drive.

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One question the most frequent questions our Jacksonville estate planning lawyers receive is how long does a probate case in Florida take? Often the best answer to how long a Florida Probate Case takes is “it depends.”  The answer usually depends on how vast and complex the decedent’s estate is if there are a lot of beneficiaries or if there is any litigation involved the estate.

A Probate Case in Florida Can End Quickly or Take Years to Complete

A probate case in Florida can be quick if the estate is small and there are not any complicated procedural issues.  Simple estates can be fully probated in as little as a few weeks or as long as few months. Something the county where the probate case is located can affect how long a Florida Probate case takes
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The general rule in estate planning is that if something is not in writing it usually will not be legally valid.  For instance, Florida law requires a Will or trust must be in writing to be effective.  However, one question we often receive is if a promise to create a will or trust is enforceable by a court?

The answer is a promise can be enforceable. However, certain conditions would have to occur.  To further explain, the promise would have to meet the formal requirements of a contract.  A contract, whether written or oral, must have three elements to be enforceable.
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Florida Trust Code & the Florida Long Arm Statute

There are many estate planning benefits for creating a revocable or irrevocable trust in Florida. Trusts can help our Jacksonville clients avoid probate, efficiently manage assets, save money on estate taxes, and protect assets. A person can create a trust in any state, but Florida is unique because of the Statutes that make up the Florida Trust Code.

One of these is the Florida Trust Code’s long arm statute. This law can be found under Florida Statute 762.0202, is a law that was specifically tailored to protect Florida trusts in litigation. This law states that a Florida probate court will decide just about any lawsuit or litigation involving a trust created in Florida.

I have recently become acquainted with a bank who does business very different than traditional banks.  As we do Trust funding for many of our estate planning, elder law, and asset protection packages, we have the opportunity to interact with many banks around the area.  One of the recent banks that I have been impressed with because of their understanding of revocable and irrevocable trusts is Seacoast Bank.  There interest rates much higher than many of the local banks and offer trust services at a good value.  They recently interviewed me about Florida estate planning and asset protection and here is the link to the interview.

Remarriage Protection

Many lawyers proclaim to have remarriage protection in their estate planning documents, but few estate plans deal with these issues completely. A traditional trust that deals with remarriage will include language that permits or limits the surviving spouse rights to benefit in the event of future marriage.  While this may seem like a good way of dealing with this potential conflict, it is often insufficient to protect the surviving spouse and kids from the numerous methods that can be used to gun a trust prior to the marriage.  In the end, your kids are the ones that loose out.
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