Articles Posted in Estate Planning

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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Like many deaths, the death of the legendary pop star Prince came as a shock and surprise for the world.  What shocked estate planning attorneys even more so is the possibility that Prince may have died without a will or an estate plan, which could have huge ramifications for his estate and heirs.

Estate planning has many benefits that include allowing a person the peace of mind of knowing how their assets will be divided among his or her heirs.  Estate planning is also one of the best ways a person can preserve his or her wealth, avoid costly taxes, and ensure friends and loved ones are provided for.  Many individuals also choose to protect their assets with certain types of trusts.

Prince died at the age of 57 and his estate is estimated to be worth around $300 million.  What many people do not realize is that when a person’s estate goes through the probate process without any estate planning, the estate will be taxed by the federal and state government.  It is likely that his estate will be hit by a federal estate tax rate of 40 and state tax rate of 16 percent.  This means Prince’s estate may have to pay more than $120 million in taxes before it can be passed to his heirs.

Trust FundingTrust Funding

Trust funding is one of the most important aspects of an estate plan or asset protection plan. Attorneys, and clients, hear so much about trust funding, but rarely is it truly understood or implemented properly. Given how important trust funding is, it is a wonder why most estate planning lawyers leave the funding to the client. We regularly see clients who bring us copies of the parents fancy estate planning binders where the plan or many of the benefits to the plan fail because the trusts were never funded or even worse were funded improperly. That is why many of our estate plans and asset protection plans include trust funding.  It is important to understand proper trust funding to ensure that the planning works the way it was intended.
The first key step in trust funding is to identify what type of estate plan the client is pursuing.  Is the client looking for a traditional estate plan with revocable trusts, an asset protection plan that uses one or more irrevocable trusts, or a plan to protect assets from disability or long term care costs.
A traditional revocable living trust is an estate plan wherein the client identifies who gets to benefit from the client’s assets when the client is well, disabled, and after death. A critically important point to funding a revocable living trust is if all assets funded in the trust are still 100 percent available to creditors, predators, and long-term care costs of the grantor while alive. The assets can continue to be made available to the creditors and predators of the beneficiary after the death of the grantor without proper planning.

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Sandwich Generation

“The Sandwich Generation” is an interesting phenomenon occurring in the estate planning world.  The term was coined to refer to the group of adults in the world today that must juggle the responsibilities of caring for their own families, including children, along with the responsibility of caring for their senior parents.  Many adults who are part of the Sandwich Generation have these dual responsibilities and with them come the emotional, physical, and financial strain of caring for two generations of family.

It’s no secret that people are simply living longer than they did even a few decades ago.  USA Today recently reported that people born in 2012 will have an average life expectancy of 78.8 years.  According to the University of California, the average life expectancy in America during the 1970s was around 68 years, and the data suggests the expectancy will only continue to rise.  What this means is that “The Sandwich Generation” will soon become the norm and it will be expected for adults to provide for their senior parent when they may be unable to do themselves.

The good news is that estate planning can alleviate this pressure by providing your parents with an affordable financial and health care plan as they age.

Sandwich Generation Step 1: Start the Difficult Conversation
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Incentive trusts are important to consider with estate planning.

One of the best tools in estate planning for encouraging positive behavior is through an “incentive trust.”  An Incentive trust is a trust like any other, which rewards the beneficiaries when they meet certain objectives or goals in their lives.

Many of us would like to think that our children and grandchildren will become responsible adults and use their inheritance for great things.  However, as many of our clients know, it can often be hard to motivate younger generations when they have become accustomed to a certain lifestyle.  The theory behind incentive trusts is that parents can help guide their loved ones by offering financial incentives to meet certain goals.  For instance, an incentive trust could award a child $200,000 for graduating college.  In many cases, our clients match the income that their children earn.  This provides an incentive to be a higher wage earner. We believe incentive trusts, when used in a sensitive and careful manner, can be great tools for using wealth to help nudge children and grandchildren in the right direction.

An incentive trust is a legal entity that holds and manages funds usually for the benefit of another person known as the beneficiary.  The trust is managed by a trustee, who is in charge or giving the funds to the beneficiary at his discretion or when certain objectives have been met.

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