Estate Planning

June 21, 2010

Adopted Children Rights in Intestacy

Intestate succession is a statutorily imposed way of passing property to descendants after death. In Florida, an adopted child is treated exactly the same as if he/she was a natural born child of the adoptive parents (mother and/or father). This means that for the purpose of intestate succession by an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family. The adopted person is not a descendant of his or her natural parents, nor is he or she one of the kindred of any member of the natural parent’s family.

Adoption of a child by a step-parent, who is married to a natural parent, has no effect on the intestacy rights between the child and the natural parent or the natural parent’s family. This is true even if the child was adopted by the step-parent after the death of the other natural parent. For example, imagine that Tom and Kate are married and have one child Jane. If Kate dies and Tom later remarries and his second wife adopts Jane, Jane would maintain her rights to inherit from Kate’s family under Florida intestacy statutes. As long as Kate’s family lives in Florida Jane will be protected, but if Kate’s family lives in other states, you would need to check how step-parent adoptions are treated in the state where the relative lives.

One final thing worth mentioning regarding adopted children’s intestacy rights is that in certain circumstances an omitted child from a Florida Will can receive a share of the estate equal in value to that which the child would have received if the testator had died intestate. However, an obvious intentional omission or devises of substantially all the estate to the other parent of the omitted child will likely result in no gift for the omitted child. To discuss your circumstances or ask questions about this or other Florida Estate Planning issues contact a Jacksonville Estate Planning Lawyer.

June 18, 2010

Valid and Invalid Methods of Destroying/Revoking Your Will in Florida

by David M. Goldman

Many people create a Florida Will on their own or with a Florida Estate Planning Lawyer and later want to make a change to one or all of the beneficiaries.

Although this can be frustrating because substantial time and thought went into creating the first Florida Will, there are certain procedures a Florida resident should follow when destroying or modifying the Florida Will.

If you wish to destroy or cancel your Florida Will, there are a few common techniques to use that are considered valid in courts. The goal is to leave no doubt that the will no longer contains your final wishes, should you pass away. Tearing, mutilating, shredding or cutting the Florida Will into small pieces is an effective way that leave no doubt that the will should no longer be recognized as an individual’s last wishes. While burning your Florida will could cause a fire hazard and should be done with caution, it is also recognized as an effective way to revoking your Florida Will. However, if the Florida will is destroyed because of an accidental tear or is burned in a fire it still remains effective because there was no intent to revoke (as long as there is something that can be used to replace the original Florida Will.

June 18, 2010

Florida Prenuptial Agreements

by David M. Goldman

Today, more people than ever before are finding the need for a prenuptial agreement before marriage. A Florida Premarital Agreement is an agreement between prospective spouses made in contemplation of marriage and to be effective upon marriage. Although many people view creating a prenuptial agreement as an adversarial process with the one you love, you can also look at it as a way to make your own decisions about the distribution of your finances. The agreement’s purposes extend beyond planning the outcome of divorce because they can also serve as important tools in Florida Estate Planning particularly when you want to make sure children, friends, and charities receive assets. Otherwise most assets will be given to the surviving spouse upon death.

Florida statutory law lists many forms of content that spouses may contract with respect to in the agreement. In most cases the agreement will spell out in detail who owns each asset and almost any property right may be included. One very important property interest related to Florida Estate Planning is a requirement to be included in a Florida Will or an obligation to make a Florida Will. However, the right of a child to support cannot be adversely affected by the agreement.

The prenuptial agreement is not enforceable under circumstances that indicate a party did not execute the agreement voluntarily or fair disclosures of the property were not given to both parties. Some of the limitations on enforceability do not apply in the case of death. It is also important to have two Florida Estate Planning Lawyers present, one to represent each party, at the signing of the prenuptial agreement because the terms could end up being substantially one-sided. If this happens courts may invalidate the portions or all of the agreement.

June 17, 2010

Specific Devises in Florida Wills and Trusts

by David M. Goldman

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.

June 16, 2010

When do you Digital Assets Expire and are they Assignable

by David M. Goldman

We have started reviewing digital assets for whether they are assignable and when they will be deactivated.

There are services that purport to pass on login information to who you designate after you die. Remember that such a transfer does not appear to be legal and may create liability to the beneficiaries of your estate if damage is done to them or information is obtained by and used by others. The best way to address this issue is to create a Digital Asset Trust and have the trust own the assets, that way there is no transfer upon your death only a change in management- the trustee.

Below is our first summary of some of the major services. A Digital Asset Trust can prevent the loss of valuable Digital Assets upon your death.

Service	Time Before Deactivation	Assignable
AOL	Screen Name: 90 Days Free Email: 30 Days	No
Yahoo	Extended period of time	No
Hotmail	Bing Cashback: 12 months Paid Subscription when service ends	No
Gmail	Nothing in terms	No
PayPal	2 Years	No

For more information on how to manage your digital assets contact a Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer.

June 16, 2010

Choosing a Living Trust Over a Will in Florida. Which is right for you?

by David M. Goldman

It is a common mistake many people make to believe that only the rich and wealthy need to implement a Florida Revocable Trust as a component of their Florida Estate Planning. Often after taking into account your home, bank accounts, cars, brokerage accounts, jewelry, collectibles, and life insurance policy most individuals will see their estate is much larger than they believed. Without proper utilization of Florida Estate Planning tools such as a Florida Revocable Trust, this amount can be subject to high costs associated with the Florida Probate process and potentially federal estate taxes or death taxes. While there are no Federal or Florida estate taxes in 2010, the annual exclusion is expected to drop in 2011. Many believe we could see only a 1 million dollar exclusion in 2011.

There can be many advantages of using a Florida Revocable Trust for you estate planning needs rather than a Florida Will. First, privacy is an advantage offered by a living trust but not a will because after death wills are publicly recorded and copies may be viewed or purchased. A second advantage is that a Florida Will often requires the expense and delay of Florida Probate. With the attorney fees, executor fees, and tax consequences involved with probate, thousands of dollars could be saved with a living trust.

A third advantage is control and to some extent the protection from creditors with the money and assets given to beneficiaries. Often your beneficiaries creditors are not be able to satisfy their debts from your trust funds when the trust is properly setup and managed. However, if the money were given outright in a Florida Will, creditors are be free to collect their debts with those funds. Another advantage worth noting is efficiency with which assets are distributed. Probate proceedings usually take between 6 months and 24 months. Throughout these proceedings the assets are usually tied up and cannot be enjoyed by the beneficiary.

June 15, 2010

Avoiding Florida Estate Planning Pitfalls

by David M. Goldman

Florida Estate Planning involves many situations where is the potential do have disputes over money or assets. Many problems arise from poorly planned and drafted estate planning and these can lead to fights amongst family members, IRS audits, and lead to high litigation costs. Focusing on your specific needs can avoid these pitfalls and can benefit those individuals with all sizes of estates.

It is important to first understand and define your objectives and resources. In order to get a custom-tailored Florida Estate Plan, a Florida Estate Planning Lawyer must be able to explain exactly what you want in terms you can understand. In some cases there are advantages in giving up control over your assets. Part of the process often involves talking with children and other beneficiaries about the estate plan and educating them on how to use it to their benefit after you are gone. Your plan can often offer your children protection into their lives from divorce or claims by creditors if used properly. In addition, many future disputes can be avoided by helping your beneficiaries to understand your goals, objectives, and reasoning behind the decisions you are making. While documents are a large part of the Florida Estate Planning process, effective communications, a clear understanding and education of all those involved will help the plan be successful when you are not there to manage it.

If you would like professional assistance with your Florida Estate Planning contact an experienced Florida Estate Planning Lawyer to help you in these matters.

June 12, 2010

Can a Trustee Resign? And how under Florida Law

by David M. Goldman

When a Florida Trust is created, the creator of the trust designates a trustee to monitor the trust. There is great responsibility that comes with being the trustee because this individual, or group of individuals handles the distributions to the beneficiaries according to the terms of the trust document. The terms may place numerous restrictions on the distributions made to beneficiaries or the trust may give broad discretion to the trustee to make the distributions. In addition, Florida law places additional requirements on a trustee that may not be apparent from the reading of the document. Circumstances can arise where a trustee wishes to resign their position as trustee.

In order to resign your position as trustee in Florida, you must comply with Florida statutory law. Florida Statute § 736.0705 governs the resignation of a trustee. It says that a trustee may resign if at least 30 days notice is given to all qualified beneficiaries, the settlor (creator) of the trust if still living, and all co-trustees. A trustee can also petition the court for resignation and then may be relieved of their position with the courts approval.

This does not mean that the trustee will escape liability for acts done before the trustee’s resignation. If the resigning trustee has committed some breach of their duties to the beneficiaries, they can still be held accountable for those acts. For more information on your Florida Revocable Trust or if you have any trust administration questions contact a Florida Trust Lawyer today.

June 11, 2010

Plan for Your Potential Incapacity in Florida

by David M. Goldman

One important aspect of the estate planning process is determining what will happen if one day you become incapacitated. The decisions that you make on a day to day basis will no longer be possible, therefore you will be required to rely on someone else to make these decisions for you. Two positions, the Florida Health Care Surrogate and Florida Durable Power of Attorney, can serve as decision makers when your time of need arises.

The designation of a Florida Healthcare Surrogate is vital to the estate planning process because this person will make the medical decisions for you in a situations where you are unable to do so. This does not mean that the person will always make medical decisions for you. Only when an individual becomes incapacitated to the point that the primary physician decides he/she can no longer make medical decisions for themselves. Situations such as this often arise when someone is unconscious.

A Florida Durable Power of Attorney determines your financial matters in the event you become incapacitated. It is important to choose a trusting person to whom you can assign this power because of the many responsibilities he or she will have. You can control the degree of power the person chosen has over financial matters but under most circumstances they will have complete control over your banking transactions, real estate transactions, and securities exchanges. In some cases this person can even run your business for you by making contracts and running the day to day operations.

June 10, 2010

Disclaiming Inherited Property from a Florida Will or Trust

by David M. Goldman

Most people in today’s society would be happy to discover that they were being left an inheritance in a Florida Will . However, since inherited property under the estate laws of Florida is a gift, the beneficiary does not have to accept the inheritance. Although declining to accept a gift would seem odd to some people, there are a few reasons why it would be beneficial not to claim inherited property.

One reason why a person may not want to accept an estate gift is because the property may be undesirable. Property may become undesirable when there is a large debt owed on the property or significant maintenance would be required to sell the property. For example, an old abandoned gas station that was given to you in a will would probably not be worth taking because of the significant costs to modify the property and the taxes that could come with it.

Other reasons why someone would disclaim property are to prevent your creditors from taking the property, a feeling that it is wrong to benefit from someone’s death, and to reduce your tax burden, or it will only create additional estate taxes upon your death. While it may not be permissible to disclaim the property in all situations to avoid creditors, you should discuss your specific goals with a Jacksonville Estate Planning Lawyer as soon as possible because there are time limits on when a properly filed disclaimer can be done. Whatever your reason may be for not wanting the gift it is important to know a disclaimer must comply with federal law. Contact a Florida Estate Planning Lawyer who can assist you in the process and insure that the disclaimer is done correctly and complies with the appropriate laws of the jurisdiction.