Articles Posted in Probate

One of the most common questions we receive is: “What is Better in Florida? A Will or a Trust?”

Many clients that we work with think that if they live in Florida and have signed a Florida Last Will and Testament, they no longer have to worry about a probate in Florida.

As Chris Rock can attest, Wills are often a big “slap in the face” to the assets you are trying to protect.  In Florida, assets that pass under the terms of a Last Will and Testament have to go through a process known as probate.

Is Equal Fair with Estate Planning?

Most of our clients want to treat their children fairly and equally.  Splitting assets equally among the children may be easy, but is it fair? When dividing assets, it is often important to determine the needs of the kids as well as what you have previously provided.  This is where it can become difficult.

Some gifts can be considered advancements against an inheritance, but most people do not take the right steps to have them considered an advancement.  A trust can be designed to deal with previously gifts or outstanding loans.  After all isn’t an outstanding loan really a debt that is now owed in part to the other siblings.
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How Does A Step Up In Basis Work?

Capital gains taxes are one of the more confusing taxes that American citizens have to pay.  The best way to explain capital gains taxes is through examples.  This article will include plenty of examples, but in an attempt to define these taxes, capital gains taxes are the tax accessed on an asset when it is sold and has increased in value.

Capital gains taxes are a percentage of what a person buys the asset for (the “basis”) and what the amount the property was sold at (the “step-up”).    Most assets have a tax basis, and generally, this is the amount a person paid for the property originally.   When you inherit an asset, the basis is usually set at the amount the property is worth on the day of the transfer.

It is important to know how much an asset is worth on either the day the asset was purchased or on the day the owner dies and the property is transferred.  Once the property is sold, the tax will be accessed on the difference between the first value and the amount the property was sold for.  Most people pay about 15 percent on the difference.  Higher earners may have to pay as much as 23.8 percent capital gains tax.

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How To Object To The Final Accounting of a Personal Representative in Florida

The final accounting can be complex. As many Florida residents might know, the probate of an estate can be a very lengthy process that can be full of mistakes.  Mistakes are often made when the estate’s personal representative makes the final accounting of the estate.  What many people do not realize is that they have the right to object to the final accounting.

The Florida probate rules state that an interested person has 30 days to object to a Final Accounting and Petition for Discharge after the documents have been served.  However, a simple broad objection will not work.  Written objections must state what parts of the accounting the person is objecting to, and what specific grounds the objections are based upon.
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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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Jacksonville Probate: How to Handle Missing Beneficiaries

Jacksonville probate attorneys often deal with a beneficiary that is alive, but no one knows this person’s address.  If a beneficiary goes missing or cannot be found, then there are a few options including using professional heir search companies.

The first place to start is the Florida Rules of Probate, which requires formal notice to be sent to a number of different parties affected by the probate of the estate.  The rule can be found under Florida Rule of Probate 5.040.  The rule states the formal notice can be sent to the following parties:

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A Durable Power of Attorney is an important document, but sometimes having one can cause problems.

A recent Florida court ruling scored a major win in the fight against elder abuse. The case established that a health care proxy does not have the authority to waive the right to jury trial and bind a person to a contract.

The case is Hugh Moen v. Bradenton Council on Aging LLC, where the defendants, the nursing home, filed motions to dismiss and to compel binding arbitration.  The plaintiff, Moen, was the personal representative of the estate of Norma Silverthrone, appealed the order granting the motions to dismiss.  The appeals court sided with the personal representative.

Background on The Case

Norma Silverthorne was admitted to a nursing home in 2013.  Her daughter, Susan Moen, accepted a health care proxy designation on her mother’s behalf. Norma never executed a durable power of attorney in her daughter’s favor.  Susan signed the nursing home’s admission agreement, which contained a “Voluntary Arbitration Agreement.”
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While the following article deals with divorce, our readers may consider it terms of accessing emails or online information of a deceased spouse or family member and the potential criminal liability that may be associated with accessing digital assets.

Federal wiretapping laws usually do not mix with state divorce proceedings.  However, these laws became a central issue during the divorce of Paula Epstein from her husband Barry Epstein in Illinois.  The issue is, did Ms. Epstein violate federal wiretapping laws when she put an auto-forward on her husband’s email account so she could read his emails.

Barry Epstein sued his wife under federal law while the couple was in the process of divorcing.  Paula accused her husband of serial infidelity.  In response, Barry’s attorney asked Paula for any documents and evidence she had that was related to the accusation.  Paula complied and produced copies of the incriminating emails between Barry and several other women.  This discovery response caused Barry to sue her under federal law.

Barry argued that Paula violated the Wiretap Act by secretly placing an auto-forwarding “rule” on his email accounts that automatically forwarded the messages on his email client to Paula.  Barry also claimed Paula’s lawyer violated the Act by disclosing the intercepted emails.  The courts dismissed this claim because the attorney could not be liable for disclosing Barry’s emails in response to his discovery request.

Background Information

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Correcting a Death Certificate in Florida for a Change in Marital Status

We often receive calls about how to correct a Florida Death Certificate in relation to filing a Probate case in Florida. Correcting a Florida Death Certificate is done through Florida Vital Statistics which can be reached at:

Bureau of Vital Statistics
PO Box 210
Jacksonville, FL 32231

(904) 359-6900, EXTENSION 9005

SURVIVING SPOUSE: With the exception to a misspelling or an omission, the department may not alter the surviving spouse item except on order of a court of competent jurisdiction.

To make this change you will need to hire a lawyer to file a petition and obtain a court order to make the changes.  Below is some information on other types of changes that can be made to a Florida Death Certificate and how they can be made.

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As Jacksonville estate planning attorneys, we often come across unusual scenarios that require a deep look into the law.  A recent questions posed to the Jacksonville probate attorneys at the firm was: “Is a roommate’s estate liable for the unpaid rent after he or she passes away”?

The short answer is no the estate is not responsible to the landlord, but the roommate may have a claim against the estate.  When a person and his or her roommate sign a lease with a landlord, by default both roommates agree to jointly and independently pay the full rent each month.  A landlord usually does not know how rent is divided each month as long as the checks arrive on time.

This means the landlord can sue either or both tenants named on the lease if the rent goes unpaid.  This is true even if the roommate is a boyfriend, girlfriend, brother or sister.  This is why the estate planning attorneys at The Law Office of David M. Goldman PLLC recommend that a surviving tenant continue to pay the rent after the death of a roommate.

Can the Default Rule Be Changed?

Usually, when multiple roommates live in an apartment or house, they split the rent.  Maybe each roommate pays equal rent, or one roommate pays a proportion of use of the property.  One solution is for the roommates to form a legally binding contract called a “roommate agreement.” This agreement addresses how the parties to the contract will pay the rent and other household bills.
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