Estate Planning

July 6, 2012

Frequent estate-planning mistakes in Jacksonville.

Thumbnail image for pigbank.jpg While there are many mistakes people can make while planning their estates, a recent column on Forbes.com, lists some of the errors most frequently encountered.

1. Not having a Florida Estate Plan

Not having a will or trust means that at your death the distribution of your assets will be dictated by the inheritance laws of the state where you were domiciled, likely Florida. These “intestacy laws” leave a percentage of assets to various members of your family. While there’s a small chance that the laws will accomplish what you wanted, that’s unlikely. Your will applies to the disposition of your “probate assets,” those things that are not following a beneficiary designation. Non-probate assets will pass by operation of law or contract. For example, whoever the beneficiary designation was when you originally began your 401(k) or IRA will override either your will or the laws of intestacy. This could easily lead to distribution of your assets to people you may not anticipate.

July 5, 2012

How does a Florida living will work?

by David M. Goldman

In Florida a living will can contain an advance medical directive. A living will is a statement of your wishes for the kind of life-sustaining medical intervention you want, or don’t want, in the event that you become terminally ill and unable to communicate. A living will is typically used by people to identify the point at which they no longer desire certain types of life-prolonging medical treatment. The Advanced medical directive can also lay out an individual’s desire for continuation of treatment in the even that the individual is unable to communicate their desires or but is not in one of the predefined terminal medical states that they have already communicated their desires in relation to medical care.

Living wills are very important legal documents with legal power. Assuming the proper procedure has been followed, a patient’s wishes are taken very seriously, and a living will is one of the best ways to have a say in your medical care when you can’t express yourself otherwise.

Once your living will has been drafted, make sure it’s signed and on file with your Florida estate planning attorney. You should also provide a copy to:

July 1, 2012

Florida Wills Must Be in Writing

by Patricia Davis

Although your parents have for years been telling you (and anyone else who will listen) that they are leaving their home to you, if they don’t put their words in writing, you WILL NOT get their home upon their death. In Florida, Wills Must Be in Writing, the Florida Statutes are clear about this. If someone dies and has not left a writing evidencing wishes as to how his/her belongings are to be distributed, then the estate is distributed according to the Intestacy statute.

In the Florida case In Estate of Corbin v. Sherman, the First District Court of Appeal considered a written will which contained the following language,”I give, bequeath and devise all of my estate of whatsoever kind and nature to Betty Sherman to dispose of as she has been instructed to do by me”.

The Court concluded that the language in this clause, “clearly attempts to devise the decedent’s property to Ms. Sherman for Sherman to distribute according to oral instructions from the decedent.” As Florida does not recognize oral wills, the court likewise, invalidated this Will.

June 5, 2012

Planning for Pets who are Part of Your Family: Can a Pet Trust help?

by David M. Goldman

Is your pet a member of your family? If so, you will want to read this article. Do you know what would happen to your pet if something happened to you? Many pet owners have not considered the fate of their pet. After all your pet state laws have not created provisions for you pets to the same extent as they have for your children. Pets in Florida and most states are considered personal property and are dealt with as such.

If you become disabled or die, who will take care of your pets, who will pay for their food, shelter, doctor bills? Who will receive them? Do you want the same person who receives your other personal property to get your pet?

These are some of the issues that pet owners should deal with to create plans for the case where your pet survives you and your spouse.

May 23, 2012

Florida Appellate Court Adds New Requirement for Trust Contestants

by David M. Goldman

The Fourth District Court of Appeals recently handed down a decision which may impose new requirements on probate plaintiffs who are challenging trusts. In Pasquale, Jr. v. Loving, et. al., the Court held that if a person is contesting a trust, the contestant must also contest the will if the trust is incorporated by reference into the will.

The plaintiffs filed a complaint with the probate court challenging trust documents that accompanied a last will and testament. The complaint did not address the last will and testament directly. The defendants moved to dismiss the complaint because the defendant’s argued that the plaintiff’s complaint did not attack the will, which was required since the trust was incorporated into the last will by reference. “In other words, the Defendants argued that even if the Plaintiffs were somehow successful in overturning the Trust instruments, the Will would still govern per its incorporation of the overturned Trust into the Will.” The probate court agreed with the defendant’s and dismissed the probate suit with prejudice.

The Fourth District Court of Appeals reversed the probate court’s ruling, even though the language of the appeal suggested that the Court agreed with the defendant’s reasoning. The Court held that a trust contestant is required to challenge the will if the trust is incorporated into the will by reference, but when the Court analyzed the facts of this case, it held that the complaint could be construed as challenging the will even though the precise language is missing.

April 27, 2012

Florida Nursing Home Penalty Divisor Update 2012 by DCF

by David M. Goldman

It has been many years since the regional divisor has been updated. For the last several years the penalty period was calculated using an outdated nursing home cost of $5000. As of now, the divisor has been raised from $5000 to $6880 in Florida (Florida Administrative Code)

What does this mean? If one does property planning, they can give away $6880 and only have a 1 month penalty. This becomes important when doing planning for individuals who have nursing home exposure.

This will significantly increase the amount of money most people could save by doing elder law planning in Florida. As you age it is important to consider both Florida Estate Planning and elder law when structuring your plan.

April 19, 2012

Law Review Article on Digital Assets & Estate Planning

by David M. Goldman

John B. Conner has written a Law Review article in the Estate Planning and Community Property Law Journal titled “DIGITAL LIFE AFTER DEATH: THE ISSUE OF PLANNING FOR A PERSON’S DIGITAL ASSETS AFTER DEATH”

The article starts off discussing issues of digital assets and estate planning by defining digital assets and then discussing issues in estate planning created by digital assets.

It goes on to talk about how websites are dealing with digital assets and privacy acts as the relate to deceased users with social networking, web-based email, blogs and other online content.

April 12, 2012

Are Trust Protectors Good or Bad?

by David M. Goldman

A trust protector is a person or group of people (not the settlor, beneficiary, or trustee) who are appointed to exercise one or more powers affecting a trust and the interest of the beneficiaries. The concept of a trust protector is to protect beneficiaries from a rogue trustee. They can often make changes to a trust involving who the trustees are, investment decisions, change how distributions are made and in some cases modify or terminate a trust.

They can provide help when circumstances change and the settlor’s intentions are not being dealt with properly. While a trustee has fiduciary duties, in most cases a trust protector acts as an agent of the settlor and may not have the same duties as other trustees.

Others argue that you should impose fiduciary duties on the trust protectors and make them accountable to the beneficiaries. As such, it is important to have detailed discussions with clients about the roles and responsibilities of trust protectors. Their powers and limitations should be clearly defined to limit the scope of their actions.

April 6, 2012

Digital Asset Trusts: To my loving wife I leave my iTunes account

by David M. Goldman

Estate planning is an important event in one’s life. The fruits of a life time of hard work, passed down in the hopes that they will serve their next owner well. But in this modern age we live in, online digital assets are frequently left out of the estate planning process.

Much of our the time we spend each day is on the internet. How much of your information and is floating out there on the internet Between Facebook, PayPal, Flickr, twitter, iTunes, email addresses, passwords, user names and passwords, we have a lot of information that is not readily available to others if we should become incapacitated or die. In this age of the internet what happens to all of that personal info when we finally shed our mortal coil and update our Facebook status to dead? Do we want to loose our Facebook account when we die? Once the status is updated to deceased, it cannot be modified, updated, or used for other purposes. It continues to exist, just as you left it, until the asteroid strikes earth, or the apes rise up, or whatever your favorite end of the word scenario is, ends up happening. There may be value to your family or estate in being able to communicate with your previous friends.

To some this is perfectly acceptable. Some Facebook albums just never need to be seen again, for the good of all mankind. The problem arises when there is something worth saving, something worth passing down. The picture of you two on graduation day, wedding photos, that blog about the summer you spent in Europe, or photographic proof of how much more attractive your grandma was at your age. The memories and happiness that these photos will bring your loved ones is immeasurable. There may be things that your family wants to remove or modify. Something that was important to you, which they can now keep close, fondly reflect on, or pass down themselves. The hitch is only you knew your log in info, and your dead, and those close to you can’t guess the answer to your asinine password hint question. What is the name of my mother’s favorite pet? Seriously…. she lived to a hundred and had 9 cats when she died. How am I supposed to guess that.

April 5, 2012

Florida Asset Protection Update

by David M. Goldman

A Florida Asset Protection Lawyer is of most use when you do not have any potential liabilities. When you have a known creditor, you have to be concerned with fraudulent conveyances and fraudulent transfers. Generally if you participate in a fraudulent conveyance or transfer the court can undo a transaction within 4 years of its occurrence.

A Fraudulent Transfer occurs when you transfer an asset to put it outside the reach of a creditor.

A Fraudulent Conveyance occurs when you transfer an asset for less than full value and this causes harm to a potential creditor.