Estate Planning

February 1, 2007

Florida Estate Planning and Pretermitted Children

In Florida wills, Florida Trusts, and Florida Estate Planning it is important to deal with Pretermitted children. Make sure your Florida Estate Planning Attorney and the estate planning documents deal with them or you can have unexpected results.

A Pretermitted Child A child by birth or adoption who became a child after the execution of the current estate planning and was not mentioned in the will or trust. If a person has a child or children after executing their will and do not prepare a codicil after or name the child in the document the child will be entitled to receive the share they would be allowed if the estate were to pass by Florida intestacy laws.

January 24, 2007

Florida Power of Appointment

by David M. Goldman

A Florida Power of Appointment is a right given to another in a written instrument, such as a will or trust that allows the other to decide how to distribute your property. The power of appointment Can be a general power of appointment if it places no restrictions on who the distributes may be, or Limited or Special Power of appointment if it limits the eventual distribution.

January 10, 2007

Legally Incapacitated in Florida

by David M. Goldman

Legally Incapacitated Person: A person who has been determined by a court as not capable of handling his or her personal and financial affairs.

A Florida Durable Power of Attorney, Florida Trust, Florida Guardianship, Florida Designation of Health Care Surrogate all deal with Legally Incapacitated persons.

One may not be the Personal Representative, Agent, or Trustee if they are Legally Incapacitated.

January 5, 2007

Florida Intestate Property

by David M. Goldman

Intestate property will pass to the decedents heirs. In Florida if a person has a surviving spouse and of their children are also children of the spouse, the surviving spouse will receive the first $60,000 then 50% of the remainder.

If the decedent had any children that were not children of the surviving spouse the children and the wife split the proceeds of the estate. If there are 4 children and 1 spouse then the spouse would receive 50% and the children would each receive 12.5% of the non-exempt assets of the estate.

Intestate: Refers to dying without a will or other designation of how one’s property should pass.

December 30, 2006

Florida Holographic Wills: Valid or Invalid?

by David M. Goldman

A Florida Holographic Will: A will written entirely in the testator’s own handwriting. NOTE Holographic wills are not valid in Florida unless they comply with the statute of wills and Florida statute 732.502, even if they were valid in another state when created.

All other wills are valid in Florida if they were valid in the other state at the time they were created.

Florida statute 732.502 requires that the:

December 24, 2006

Florida Homestead Definition

by David M. Goldman

The Florida Homestead exemption: In Florida, this refers to a surviving spouse’s or lineal heirs right to receive the primary residence of their family member free of claims from creditors other then perfected security interests on it such as the mortgage. In Florida there is no limit to the value of the property that is covered by a Florida homestead exemption.

The Florida Homestead protection is found in Article X Section 4 of the Florida Constitution.

Although there may be limits placed on the Homestead Exemption by Federal Bankruptcy Law and Florida Medicaid planning through the 2005 Debt reduction act.

December 19, 2006

Florida Fiduciary Agent Definition

by David M. Goldman

Fiduciary: This refers to a person (or entity) that serves in a representative capacity. Personal representatives, trustees, guardians, conservators, and agents under powers of attorney are all fiduciaries. A fiduciary stands in a position of confidence and trust with respect to each heir, devisee, and/or beneficiary. They are subject to a responsibility to act in the best interests of the person that they are serving on behalf of and can be sued if they act improperly.

December 16, 2006

Devise Devisee Definition

by David M. Goldman

In Florida probate and Florida Estate Planning the:

Devise: To give away real, personal or intangible property under a will or trust.

Devisee: An entity or a person selected in a will or trust to receive a devise.

December 15, 2006

Probate: Community Property Definition

by David M. Goldman

In Florida Probate, if an individual acquired assets while living in a community property state, those assets, their proceeds, and income received from the assets may be subject to a different distribution than assets or income that was acquired while living in a non community property state such as Florida. One way to resolve this issue is to have both spouses contribute the property to a revocable living trust.

Community Property:

Property acquired during a marriage and while living in one of the 9 community property states (see below). As a general rule, everything derived from the earnings of either spouse is shared equally by a husband and wife. Each spouse owns only one-half of the community property because the other half belongs to the other spouse. Community property rules can be modified by pre-marital and post-marital agreements made by the spouses. See also separate property, commingle, quasi-community property, and commingle. Florida law is a separate property state. Property that was Community property may retain its character as Community Property though when someone moves from one state such as Arizona to another such as Florida.

December 14, 2006

Charitable Trust Definitions

by David M. Goldman

Florida Residents can use a variaty of Charitable Trusts with the Estate Planning and to help reduce estate taxes in their Florida Probate.

Charitable Lead Unitrust (CLUT): Income goes to charity and remainder to one’s heirs or beneficiaries. Generally for the very rich and for those whose children won’t need the income until years later when the trust ends. For example Jacklyn Kennedy Onassis used this to save taxes when she was seeking to benefit John Kennedy Jr. and Carolyn Kennedy.

Charitable Trust – One of several different types of charitable trusts, including Charitable Lead trusts and Charitable Remainder Trusts, established to benefit a particular charity or the public. Typically charitable trusts are established as part of an estate plan to lower or avoid imposition of Federal (and some states’) estate and gift taxes and/or to save capital gains tax. It can be a win win situation since the donor is able to achieve a tax reduction while still providing for a very worthwhile charity that provides a great service to the public. When this is done during life an income tax deduction is available then the property is out of the estate for estate tax purposes or will generate a deduction to remove it. Some of this tax saving is often the put into the premiums for a life insurance policy as a wealth replacement technique. The insurance policy can be designed so the payment of the premiums will not result in a gift and the value of policy is not included in the estate. Used in this combination the donor is able to provide for a gift to charity through the charitable trust they can still receive income from the trust and despite their gift to charity their children can end up with as much and in some cases more money then if no charitable trust planning had been taken.