Florida Estate Planning Lawyer BlogSuppose your parents set up a tax planning Florida Revocable Trust with the assets being held for the kids in trust. Under the terms of the trust, the trustee is to distribute net income and principle as the trustee determines is necessary for education and support in reasonable comfort. If one of the kids is on Medicaid, many states will determine that they are ineligible for Medicaid because of the availability of funds, even if the trustee does not distribute them. It is important to create trusts with the proper language to deal with special needs and not make them ineligible for Medicaid. If you would like to review your situation or have a child with special needs you should contact a Florida Estate Planning Lawyer to discuss your situation and goals.
Articles Posted in Living Trust / Revocable Trust
Do You Trust the Florida Trustee?
As a Jacksonville Beach Estate Planning Attorney I have heard countless stories of trustees who have been entrusted to administer, distribute, and account for trust funds to family members and beneficiaries . . . who DON’T!
Sad but true, the death of a grantor, trustor, or settlor of a trust fund may reign in the terror and unabashed greed of many trustees.
The Florida Trust Code provides that a Trustee of an irrevocable trust is required to keep beneficiaries of the trust fund informed about the trust and its administration. Florida Revocable Trusts become irrevocable upon the death of one or all of the grantors. Florida Statutes also dictate that the trustee make available to all beneficiaries certain accountings which will among other things:
No Florida WIll Contest Can Fix This Problem.
When you have a blended family or children from different marriages it is very important to have estate planning that deals with the various possibilities. All to often the standard will or generic documents can produce undesired results.
Take for example a Husband and Wife who each have children from a prior marriage. Husband and wife each want to support each other in the even they pre-decease each other. The problem is created when the Husband dies first, and leaves everything to the wife. Now the wife dies and leave everything to her children, essentially disinheriting the husband’s children.
There are several ways a Florida Estate Planning Lawyer can address these issues and achieve the desired results of the husband and wife.
Florida Homestead Protection in a Trust?
As a Jacksonville Attorney at a Florida Estate Planning Firm, I have seen many issues concerning homestead protection in both probate matters and in estate planning. When you occupy a home in Florida as your main residence, this is called your homestead property. Notwithstanding some exceptions, the Florida Constitution protects the homestead from forced sale by creditors. If the owner of a homestead dies, the creditor protection of the home (from the decedent’s creditors) continues for the spouse or family members who inherit the homestead. If the home becomes the homestead of the spouse or other family members then they shall also enjoy the same creditor protection from their creditors.
A Florida condominium was transferred to a Florida revocable trust. Upon the death of the first, the Florida Revocable Trust created a marital trust for the spouse, with the remainder to sons from a previous marriage. A few months after the condo was titled to the trust, the same condo was deeded directly to the spouse. A lawsuit ensued as to who owned the condo, the trust or the 2nd wife.
The sons won an initial victory, ensuring they would receive the condo upon the surviving spouse’s death. The surviving spouse counter-sued for reimbursement of all condo related expenses paid with her own funds, and won a money judgment against the sons. The spouse wanted the sons to transfer a percentage of the condo interest to her, and the sons wanted the trust to sell the condo to obtain money to pay the judgment against them. The sons lost.
Florida Anti-lapse statute and gifts to in-laws
Recently the 3rd DCA in the Florida case of Lorenzo v. Medina ruled that the anti-lapse statute must be strictly construed and that gifts to in-laws are not saved and lapse unlike a gift to a close family member.
This means a gift to a sister-in-law who predeceases the testator is not honored while a gift to a predeceased sister would go to her children. If you are involved with trying to save assets for the families of non-relatives you should talk with a Florida Estate Planning Lawyer how simple changes to your Florida Will or Florida Revocable Trust can ensure that your intentions are carried out.
Estate Planning and Beneficiary Designations
When creating Florida Estate Planning Lawyer it is important to remember that once you create the documents your job is not done.
If you create a Florida Revocable Trust it is important to fund the trust or it will not provide one of the typical benefits of avoiding a Florida Probate. There are several ways of funding the trust and you should discuss these with your Florida Estate Planning Lawyer to see what makes the most sense for you and your family.
In addition, another common mistake is forgetting to make proper beneficiary designations on life insurance or retirement accounts. This is also something that needs to be carefully considered and implemented with the advise of your CPA and Florida Estate Planning Lawyer.
Asset Protection: IRA’s and other Retirement Accounts
In a recent article by Kelly Greene of the Wall Street Journal, she explains methods in which individuals can protect their retirement accounts. Over an individual’s lifetime an IRA (Individual Retirement Account) can accrue hundreds of thousands, or even millions of dollars. There is a high possibility that these retirement accounts will have significant assets left in them when you pass away. One of the main goals of Florida Estate Planning is to make certain your hard earned money is spent according to your final wishes. In order to control how quickly your children or heirs can spend their inheritance, most individuals are led to trust documents.
In a ruling last year, a Florida State Court found that inherited IRAs are not protected from creditors in civil court cases, with the exception of bankruptcy proceedings. Consequently, it is advisable to create an IRA trust where the account holder can name one or more trusts as the retirement account beneficiary instead of leaving the IRA outright to an heir where it could be subject to the claims of their creditors. Not only do you control how your retirement account is spent, but also with this type of Florida Estate Planning you can receive tax-free growth on the funds. Forming an IRA Trust is a complicated process therefore if you require any assistance contact a Florida Estate Planning Lawyer.
Updating Life Insurance Beneficiaries Can Be Easy for Florida Families
Whether you want to completely alter the beneficiaries of your life insurance policy or simply add contingent beneficiaries, the process is not all that difficult. However, there are some common mistakes that occur which can result in unpredictable situations. An amendment to a will or trust document cannot change the beneficiaries under the policy. Since an amendment to a Florida Will or Florida Revocable Trust usually requires the assistance of a Florida Estate Planning Lawyer, while you are there ask about the life insurance policy. The attorney can also offer advice and recommend who would be a good beneficiary to fit your particular situation.
Once you are ready to get started, you will need all required information, such as the beneficiary’s name, mailing address, date of birth, Social Security Number, contact number and relationship to you. Naming a trust as a beneficiary entails knowing the complete name of the trust and the current trustee’s name and address. Before contacting a life insurance company representative, look up the company’s website because many companies allow you to make changes to your beneficiaries over the Internet. Most will at least have forms that you can print and fill out. Be sure to comply with all rules on the forms for witnessing and notarizing.
Finally, once you have completed all necessary forms, make copies of the documents and then mail them to the address provided by the insurance company. To avoid disputes, notify all original beneficiaries to let them know they are no longer part of the policy. If you would like further assistance modifying your life insurance beneficiaries or creating a new policy, seek help from a Florida Estate Planning Lawyer.
Contesting a Will in Florida
Florida Will Contests:
Occasionally a family member or friend passes away with a Florida Will that gives less than expected to an heir of the decedent. This situation usually gives rise to an inquiry about a will contest. A will contest happens when the disgruntled heir challenges the will by suing the estate under some legal theory claiming the will is invalid. Will contests commonly happen when the testator attempts to leave a small amount to an estranged child or a large amount to someone who would not be expected to inherit under a Florida Will.
To guard against the potential of challenges to the will, you may see a No-Contest clause added by the testator. A no-contest clause is a provision of a will that penalizes the beneficiary who challenges the will, or the contestant. While these clauses may be valid in other states, Florida law specifically makes them unenforceable. According to the Florida Probate Code, “a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Furthermore, the Florida Trust Code, as amended in 2007, addresses no-contest provisions by making them unenforceable in any trust instrument. This does not mean that they should not be considered as they may be enforceable if one changes which laws the documents will be interpreted under.
Has Your Florida Trustee Provided an Accounting of the Florida Trust?
With Florida Trust Litigation on the rise, it is important that trustees preform their duties properly.
One of the primary duties of a Florida Trust trustee is to keep accurate records of all acts performed by him in regards to the trust estate. In Florida, trustees have this duty, known as an accounting, which requires providing these records to the trust beneficiaries. The trustee’s accounting should be a reasonably understandable report from the date of the last accounting, or from the date on which the trustee became accountable, that adequately discloses the information required.
Fla. Stat. § 736.08135(2) states the requirements of an accounting:
a) The accounting must begin with a statement identifying the trust, the trustee furnishing the accounting, and the time period covered by the accounting.