Living Trust / Revocable Trust

March 16, 2008

Can Trust be Modified by Agent Acting Under a Durable Power of Attorney

Gurfinkel v. Marmor, 32 Fla. L. Weekly D2931 (Fla. 3rd DCA December 12, 2007)

The decedent’s trust beneficiaries challenged a pre-death “amendment” executed by the decedent’s spouse as attorney in fact pursuant to a valid Durable Power of Attorney . The amendment “deleted” the trust’s primary asset stock in a family corporation. The stock was subsequently transferred to one of the decedent’s sons. The trial court relied upon language in the Durable Power of Attorney to uphold the amendment. The appellate court reversed, relying upon language in the Trust which indicted powers granted by the trust could be exercised only by the grantor and not by a conservator, guardian, or any person other than the grantor.

What does this mean, if you want your agent acting under a Durable Power of Attorney to be able to change your trust, your trust should include language to allow for it.

March 16, 2008

Trust Provision interpreting distribution to someone who dies before distribution is complete.

by David M. Goldman

Bryan v.Dethlefs, 959 So. 2d 314 (FIa. 3d DCA May 16, 2007)

The decedent’s trust stated,

“Upon my death, the then balance of principal and accumulated income remaining in the trust fund shall be distributed to my grandson, Robert R. Bizzell, if he is living at the time of distribution.”

The trust provided for distributions to other beneficiaries if Bizzell was not living.

February 27, 2008

My Bank Wants a Tax ID / EIN number for My Revocable Trust

by David M. Goldman

When creating a revocable trust you may be asked for a Employment ID number (EIN) or Tax ID to open the account or fill out the paperwork. Many banks do not understand the difference between a revocable and a irrevocable trust. Although irrevocable trusts require TAX ID or EIN’s revocable trusts do not require them.

When this happens to you, it may be difficult to get them to understand why they do not need this information. It is best to just fill out that section with your social security number – which is your Tax ID number.

If you have questions on a Florida Revocable Trust you should Contact a Florida Estate Planning Lawyer.

February 22, 2008

Terry Schiavo judge handles divorce cases

by David M. Goldman

Florida judge who presided over the Terri Schiavo case until her death, has a new assignment. He no longer judges Florida Guardianship cases. He judges divorce cases.

The Judges transfer from Florida Probate and Florida Guardianship court to family court should allow Judge Greer who is now 65 to serve the next three years in obscurity before his retirement.

Judge Greer is nationally famous and has 20 honors displayed in his chambers. The largest is the 2005 President’s Award of Merit from the Florida Bar, “for your unswerving commitment to the rule of law, the independence of the judiciary and the fundamentals of American democracy.”

February 17, 2008

Fund your Revocable Trust

by David M. Goldman

The most common problem with Florida Estate Planning or estate planning in general is that those how are in the most need of the benefits a Florida Revocable Trust can offer are the ones who usually fail to fund their trust.

Creating a Florida Revocable Trust is only the beginning. No benefits are received by signing the documents. It is only when the Florida Revocable Trust is funded that the benefits of the trust can be used.

These benefits include avoiding delays in probate, reducing or eliminating the costs associated with a Florida Probate, and not having your assets or the distribution of your assets in the public record.

February 15, 2008

Estate Taxes or Probate Fees

by David M. Goldman

As the Estate tax exemption continues to increase, fewer and fewer American families are subjected to the death Taxes. On the other hand this is creating a real problem with probate fees. Since fewer families are concerned with estate taxes, the overlook the fees associated with probate.

There are many techniques used to avoid the need for assets to be subjected to probate. These include: Joint accounts, payable on death designations, beneficiary designations, and Florida Revocable Trust . There are many issues that determine which of the methods is best for your particular situation.

With the increase in divorces and numbers of families with children from outside the current marriage, the Florida Revocable Trust often offers the best flexibility. It is important to evaluate a clients objectives, the risks associated with each method, and the costs.

February 8, 2008

Britney Spears Not Competent Enough to Hire Lawyer

by David M. Goldman

Britney’s dad had was appointed as conservator of her person and co-conservator of her estate, which means her dad is now in control of what Britney can do, who she can see, and he’s controlling all access to her bank accounts and credit cards.

Over the weekend, Britney attempted to hire her own lawyer to fight her dad’s attempt to take over her personal and financial affairs.

But, the Court refused to recognize Andrew Streisand as Britney’s lawyer because the court-appointed lawyer assigned to evaluate Britney said that Brit doesn’t have capacity right now to hire her own lawyer.

February 6, 2008

Can a Power of Attorney modify a Trust?

by David M. Goldman

Florida changed their statute regarding Power of Attorney several years ago. It seems that many banks and other financial institutions were not honoring existing powers of attorney documents. Florida changed Florida Statute 709 to allow for enforcement and recovery of expenses associated with the improper denial of a Power of Attorney.

Clients often ask if what limits there are on a Durable
Although a client can limit the powers in a Durable Power of Attorney the right to change a Florida Will under Florida Law. Recently we have begun adding specific provisions to allow for the modification of a Florida Revocable Trust with a Durable Power of Attorney. When this happens it is important to also include provisions in the Florida Revocable Trust. to allow for the modification by Durable Power of Attorney. Charles Rubin who writes the Rubin on Tax blog has an article where he discusses this. There was a recent Florida Case where a Florida Revocable Trust was in conflict with a Power of Attorney. The court ruled that the prohibition by the Florida Revocable Trust on modification by Power of Attorney trumped the Power of Attorney.

February 3, 2008

Sloppy Drafting of Florida Wills and Florida Trusts

by David M. Goldman

Drafting and transfer of assets is an important aspect of a Florida Will or a Florida Revocable Trust. Real estate held by a company will not transfer to the trust unless the ownership of the company interest is transferred.

In a recent Florida case a testator never transferred the ownership of his business entity. When he died the trust directed that the property go to one beneficiary. His will transferred the residual to his wife.

The court in Vaughan v. Boerckel, 963 So. 2d 915 (Fla. Dist. Ct. App. 2007), affirmed judgment for the widow, holding that the failure to transfer title to the realty to the trustee meant that title remained in the corporation all the shares of which passed to the widow.

February 1, 2008

Florida Pet Trust: Unexpected Expences

by David M. Goldman

With the recent rise in the popularity of the Florida Pet Trust many individuals are caught off guard with unexpected expenses associated with a Florida Pet Trust. These expenses are also associated with Florida Pet Trusts from other states as they are related to Federal issues.

The primary issue that a pet trust is subject to income tax reporting and required to pay taxes on the income the funds generate. Most Florida Pet Trusts have less than $50,000 in funds and the cost of maintianing them is relatively high. There are some Pet Trusts that pool the money and do master reporting. This can be a solution to smaller pet trusts. If you are interested in creating a Florida Pet Trust, Contact a Florida Pet Trust Lawyer for more information