Articles Posted in Living Trust / Revocable Trust

How a Community Property Trust Can Save Tens or Hundreds of Thousands of Dollars in Capital Gains Taxes
Community property trusts can save your clients tens of thousands of dollars in capital gains taxes, and that is just one of their many benefits. This lesser-known strategy is not necessarily the best fit for all couples either because of their assets or state of residence. However, for households you work with that can make the most of them, it is a planning tactic that could have a significant impact on keeping more of the value of their estates in the family.

These trusts offer a huge benefit to couples who take advantage of them. There’s also a lot to gain for their financial advisors. Thanks to the double step-up for property held in this type of trust, your clients will retain a significant amount of wealth that would otherwise go to the IRS because of capital gains tax. So it is a solution that provides better cash flow for your clients and more assets under management for you: a win-win for all parties.

What is community property, and what is a community property trust?

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A common question our Jacksonville Homestead Lawyers receive is “When A Spouse Dies, Does The House Automatically Transfer To You?”

One of the more common Florida probate questions our clients ask the Jacksonville homestead lawyers at The Law Office of David M. Goldman PLLC is whether a house automatically transfers to the living spouse when one spouse dies?  The answer often depends on many factors; there is no simple yes or no answer.

Florida does offer some of the best homestead laws in the nation.  Before explaining the great homestead benefits that Florida offers, let’s see how the law devises a property when one spouse passes away.  Remember a home may or may not be a homestead.  For this article, we will use the situation where the home is a homestead unless otherwise noted. The relevant homestead law comes from Article X, Section 4 of Florida’s Constitution.
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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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One of the best tools estate planning attorneys in Jacksonville utilize for their clients is the Florida revocable trust. The revocable trust is also known as a living trust.  A revocable trust has many benefits including the ability to help individuals avoid probate.  However, many people do not realize that setting up an estate plan with a revocable trust in Jacksonville is not the final step to avoid probate in Jacksonville or around Florida.

Once the trust has been established, the settlor, or the creator of the trust,  or another person must fund the revocable trust.  Funding the trust is the process of transferring assets from the settlor’s name to the revocable trust.  To do this, the settlor must physically change ownership or the beneficiary designation, or in some cases both from the settlor’s individual name (or joint names, if married) to the name of the revocable trust.

As many as 9/10 estate plans fail because funding was not done, was not complete, or was done incorrectly. As a result, we now offer trust funding as part of many of our estate planning packages.
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Every trustee of a Florida Trust may have a fundamental duty to keep the trust’s beneficiaries informed of the administration of the trust.  Florida Statute Section 763.0813 provides that a trustee must keep the qualified beneficiaries of the trust “reasonably informed of the trust and its administration.”

The statutes do provide a few examples of what a trustee must do, such as providing the qualified beneficiary with the trustee’s contact information, notice of the establishment of an irrevocable trust, notice of the right to receive a copy of the trust document, and a notice of the right to receive accountings.

Note, there are ways in Florida to avoid having to provide many of the details to beneficiaries, but you must specify them in advance.
Who is a  Qualified Beneficiary in Florida

Many of our Florida clients are surprised to learn that the term “qualified beneficiary” does not mean what a client would assume.  A qualified beneficiary not only includes beneficiaries who are eligible to receive a distribution from an irrevocable trust but also includes the first-in-line remainder beneficiaries.

This is a significant requirement because some other states may permit a settlor, the person that creates the trust, to withhold information from certain beneficiaries.  The settlor may wish to withhold information for one reason or another, and certain states will allow the settlor to do so for a certain period without providing an alternate recipient if the settlor includes this provision in the trust instrument.  However, Florida is not one of these states, and the settlor cannot dictate that only certain beneficiaries can receive administrative information in the trust document.

 

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For a trust to be legally valid, it must have six elements.  One of these required elements is that the settlor of the trust, or the person that creates the trust, must intend to create the trust.  For a court to recognize this element, there must be a manifestation of intent by the settlor.

The manifestation of intent is important because it must be present for a court to hold a trust is valid.  A ruling on validity would come into play if a beneficiary or another interested party challenged the validity of a trust.  For a court to uphold a trust as valid, it would need to ensure that all of the elements are present.

The Elements of a Valid Trust in Florida

As stated above, there are six main elements of a valid trust created in Florida.  These elements are:

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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.

One of the most forgotten assets, or even a beneficiary, in estate planning is a person’s pet. Many clients have dogs and cats that are close members of the family and need a way to be taken care of after the owner passes. With a pet trust, a person may leave money to be used for the care and support of the pet.

Florida, along with most other states, currently allows individuals to create a trust with no human beneficiary. These trusts are usually drafted to take effect when the owner dies.   A pet trust can be created to care for one of more animals that are living during the testator’s lifetime. The trust will end when the last surviving animal dies and usually cannot include animal offspring under most trust codes.

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A trust can be amended it a number of ways depending on whether the trust is revocable or irrevocable. Usually, an irrevocable trust cannot be modified unless there is a judicial modification or the trust terms allow for a modification. A recent court ruling in Florida now provides that a “trust protector” may amend a trust.

What is a trust protector? A trust protector is a person that is appointed to watch over the trust and to ensure the trust is not adversely affected by a change of law or other circumstance. A trust protector can be appointed when the terms of the trust specifically confer on a trustee or other person the power to direct the modification or termination of the trust. The law concerning trust protectors in Florida stems from section 808 of the Uniform Trust Code, or UTC, and the case, Minassian v. Rachins, was the first major court decision to interpret this provision of the Florida Trust Code. Continue reading

A trust is one of the most important estate planning tools available and can be used to achieve almost any estate plan’s purpose. A trust can even be drafted with provisions to allow the settlor, or the person who creates the trust, to set conditions for the beneficiaries to meet in order to receive distributions from the trust after the settlor passes.

Recently a trust with “some strings attached” made news due to some of its stranger and oddly specific requirements of the beneficiaries. Maurice Laboz was the owner of a large real estate management firm Regal Real Estate, and when he died, he left both of his daughters $10 million each through a trust. What is interesting about this trust is that each girl can receive their full inheritance when they reach the age of 35, or sooner if the daughters meet certain conditions Continue reading

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