Articles Posted in Estate Planning

In Florida it can be crucial to do Estate Planning For Second Marriage

More and more Americans are getting remarried which is causing estate planning to become more complex.  People are living much longer than in the past, which means that the rate of remarriage is occurring at a much higher frequency.  A second marriage adds new obligations and rights for the new people in your life, while still keeping the obligations from your first marriage.

The effect of multiple marriages is that it could create multiple claims on a person’s estate.  Many estate planning issues can be resolved with careful planning.  Here are some key issues for estate planning for a second marriage.

1. Length of the New Marriage

The first issue that is common in estate planning is the duration of the subsequent marriage.  For instance, say a person has a spouse with early Alzheimer’s.  This person also has a retirement plan that named his children outside the marriage as beneficiaries.  The couple has been married for eight years, and the person would be destitute without the spouse’s IRA.  It may be time to think about changing the estate plan to include the new spouse, which would desperately need the funds from the retirement plan.

2. Children from the First Marriage or outside the current marriage

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Yes A Spendthrift Provisions Can Protect Against Civil Judgments

What is a Spendthrift Provision? One of the best forms of asset protection we can provide is through a trust that contains a spendthrift provision.  In a revocable trust, a spendthrift provision has some significant benefits such as protection against your beneficiaries’ creditors.

So what exactly does a spendthrift provision do?  A spendthrift provision is a provision within a revocable or irrevocable trust that limits the beneficiary’s access to trust.  This restriction protects the trust property in two ways, it prevents a beneficiary from selling his or her interest in the trust property as a beneficiary, and it prevents the beneficiary’s creditors from compelling the trustee to make distributions except where this would void public policy like in the case of alimony, child support and some civil judgements.
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How To Protect Against Elder Abuse

A Senate Special Committee on Aging had a hearing in November of 2016, which allowed experts to testify that elder abuse is still a growing problem in the United States.  The experts testified that over 5 million elders, or one in ten seniors, that live at home experience some elder abuse, neglect, or exploitation.

Jaye Martin, the executive director of Maine Legal Services for the Elderly, testified that not only is financial abuse (elder abuse) running rampant, but that the elder abuse is most often perpetrated by family members who are guardians.  This information regarding financial elder abuse was further supported by a report issued by the Government Accountability Office.
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A Florida DNR is a document you will not complete with your Jacksonville Estate Planning Lawyer. Many feel that estate planning is a great area of law because it allows people to plan ahead for how they wish to be treated medically in a scenario when someone is not able to decide on their own.  This is why we recommend that every person plan for their future through estate planning documents such as a will, trust, living will, medical and financial powers of attorney and even simple documents such as a Florida “Do Not Resuscitate Order.”

A Florida DNR, Do Not Resuscitate Order, is a form developed by the Florida Department of Health, known formally as Form 1896, that identifies a person that does not wish to be resuscitated in the event of respiratory or cardiac arrest.  This form, tells hospitals, doctors, and other health providers to not resuscitate you when certain conditions occur because you do not feel your quality of life will be sufficient after resuscitation. We recommend that everyone have a Florida DNR, Do Not Resuscitate Order, if they do not wish to be revived under certain conditions because most doctors and health care providers will attempt to resuscitate a person by default.

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As a Jacksonville Will Lawyer I have seen an alarming trend in Florida.  Most Americans live fast-paced lives with long work hours, bills to pay, and mouths to feed.  After a long day, the last thing on our minds is our mortality.  But studies show that Americans need to be more concerned.

According to a 2015 survey performed by Rocket Lawyer, 64 percent of Americans do not have a will.  Of those without an estate plan, only 27 percent thought there was not an urgent need to make a will.  The most alarming statistic of them all – 15 percent of those surveyed said they did not need a will at all.  As a Jacksonville Will Lawyer I have noticed  that do have wills have not had them updated in many years.
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Florida Living Trusts are often the cornerstone of a great estate plan and provide many of our top estate planning clients benefits.  Here are a few of the best or most important things that everyone should know about living trusts.  In many situations, an asset protection trust can be used in conjunction with a living trust.

1. A Florida Living Trust is Revocable

A Florida Living Trust is more formally known as a revocable trust.  The trust’s name is an indication of its flexibility.  The Florida living trust is revocable, which means that the person that created the trust can change the trust, or even cancel it, whenever he or she likes.  For example, if the creator of the Florida living trust wishes to add or remove a beneficiary from the trust he or she may do so at any time through an amendment or restatement.

Any changes to the trust will be effective during the settlor’s lifetime.  A person can transfer assets into the trust for his or her benefit during his or her lifetime.  The living trust can even permit a transfer of assets in the scenario that the trust creator becomes incapacitated.
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While the following article deals with divorce, our readers may consider it terms of accessing emails or online information of a deceased spouse or family member and the potential criminal liability that may be associated with accessing digital assets.

Federal wiretapping laws usually do not mix with state divorce proceedings.  However, these laws became a central issue during the divorce of Paula Epstein from her husband Barry Epstein in Illinois.  The issue is, did Ms. Epstein violate federal wiretapping laws when she put an auto-forward on her husband’s email account so she could read his emails.

Barry Epstein sued his wife under federal law while the couple was in the process of divorcing.  Paula accused her husband of serial infidelity.  In response, Barry’s attorney asked Paula for any documents and evidence she had that was related to the accusation.  Paula complied and produced copies of the incriminating emails between Barry and several other women.  This discovery response caused Barry to sue her under federal law.

Barry argued that Paula violated the Wiretap Act by secretly placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to Paula.  Barry also claimed Paula’s lawyer violated the Act by disclosing the intercepted emails.  The courts dismissed this claim because the attorney could not be liable for disclosing Barry’s emails in response to his discovery request.

Background Information

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Trusts are one of the most commonly used estate planning tools by Jacksonville estate planning lawyers for a good reason.  A Trust can permit an asset to bypass probate while allowing the original owner the power to control and manage the assets.  A trust can also provide asset protection and make assets exempt from the Medicaid qualification process.  Our Jacksonville estate planning attorneys are often asked about differences between using a trust and an outright gift to a beneficiary.

In most cases, the answer is that it is it better to keep the asset in a trust to reduce income taxes, protect the asset from creditors, and prevent penalties in the case long-term care is needed. We will attempt to explain why in this article   A major purpose of a trust, which can be irrevocable or revocable, is to provide an easy way to transfer ownership of a property when the owner passes away and permit an unlimited step-up in basis without income taxes to the person who receives the items.  Some trusts also provide asset protection or can be designed to protect assets in the case long-term care is needed.  As a person begins to age it can be dangerous and costly to make large outright gifts.  The risks are often specific to the individual and should be discussed with an estate planning or elder law attorney.

One example may be a 65-year-old client who owns a rental home or multiple rental homes.  The homes are primarily rented out to generate income while they appreciate in value.  The client can transfer the property into an asset protection trust.  The trust becomes the owner of the rental property, and the rent and value of the properties can, over time be excluded if the client needs long-term care.  The client can be in charge of their trust and determine how the assets are invested and to whom the funds are given to.

Zsa Zsa Gabor is one of the latest celebrity deaths to sadden America.  The actress passed away at 99 years old and was known for being one of Hollywood’s first stars due to her colorful personality.  She was also known for her many marriages and divorces.

Gabor married nine times, which resulted in seven divorces and an annulment.  These complicated series of marriages and breakups has made her estate extremely interesting to estate planning attorneys.

Zsa Zsa’s ninth husband, Frédéric Prinz von Anhalt, will have to move out of Gabor’s luxurious Bel Air home where the actress lived for nearly 40 years.  What is interesting to note is that for the past three years the couple lived in the large bungalow even though they no longer owned the house.

Often we get clients who are interested in objecting to a will because of undue influence.  In Florida there is a split of authority over what happens to a previous will when the most recent will is invalidated by undue influence.  The results can be very different and may provide planning opportunities that could insulate from claim of undue influence.  As you can see in the case information below, the court determined that the previous will should be valid, while other courts in the states have found that intestacy is the proper method distributing assets after a successful  claim of undue influence.  If you are changing your will or would like to talk about how to protect from claims of undue influence in Florida, you might talk with a Jacksonville Estate Planning lawyer or Jacksonville Undue Influence Lawyer about your options.

The case of Rocke v. Am. Research Bureau (In re Estate of Murphy), 184 So. 3d 1221

This is a case where the probate court revoked a will due to undue influence.  The question then turned on whether or not the decedent’s estate should pass through intestate succession or by a previous will.

History of the case leading up to the claim of Undue Influence.

The testator was Virginia Murphy, a woman that passed away at the age of 107.  Her estate was worth 12 million dollars.  The decedent executed six wills throughout her lifetime.  Murphy’s parents and husband predeceased her, and she had no children or siblings.

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