Probate

October 5, 2007

Why do I need a Guardian for my Child?

As a Jacksonville Estate Planning Lawyer, I often get asked about picking a Florida Guardian for a child in the even that the parents were to die before the child becomes an adult. There are two types of guardians one should consider to take care of their children. There is the person who will actually be taking care of the child, and the person who takes care of their money. Often these end up being the same person.

If a persons has Florida trusts included in their Florida estate plan, they can choose a guardian for the child, and a trustee to take care of the child’s money or assets. This can prevent the need for a court maintained guardianship over the person. These are expensive to set up and in Florida, they require yearly reporting to the court. In addition, the court may determine that the funds are best protected in a restricted account. If funds are placed in a restricted account, the Trustee must hire a lawyer to file a petition to allow for use of money from the account. While this serves to protect the assets, it limits the investment opportunities, potential growth, and increases the costs of management. All of these fees and restrictions can actually cause the funds to decrease over time and the child may have less money at 18 then when they originally received it.

Susan Nattras an attorney in California has written an article What is a Legal Guardian And Why Do I Need One For My Child? In the article she discusses:

October 4, 2007

Do I really need a Florida Living Trust?

by David M. Goldman

As aFlorida Estate Planning Lawyersand a Jacksonville Estate Planning Lawyer I often receive questions about Florida Living Trusts. These usually come after clients attend seminars given by Estate Planning Organizations. Often they are not law firms, but some are.

Although there are benefits to Florida Living Trusts, sometimes they are not necessary. I often get questions from clients who have less than 100,000 in assets who have been told that a Florida Revocable Trust or Florida Living Trust is the answer to their Florida Estate Planning needs.

To answer the question, “Is a Florida Living Trust right for me?” a Florida Estate Planning Lawyer needs to look at the clients individual financial circumstances. I have found that many times, simple payable on death designations will accomplish the same results as a Revocable Trust.

October 3, 2007

Personal Representative / Executor Requirements

by David M. Goldman

Your Florida Estate Planning Lawyer will tell you that being appointed the PR / executor of an estate is not easy. The PR takes a personal risk and large responsibility to the estate of the decedent, the IRS, and the beneficiaries.

The main job of the PR is to manage the administration of an estate. Many small estates in Florida are distributed without the need of a Personal Representative or Executor. If the decedent had valid Florida Will, the PR can be name from the will, if not the court will appoint a PR based on qualifications and an order of priority. Generally the spouse is the first to be chosen as a PR, next the adult children along with any children who have legal guardians can be the PR. There is a statutory scheme to determining who will be the PR in a Florida Probate Case.

The PR will be responsible for locating the will, and additional documents to help determine what the debts and assets of the decedent are. In Florida probate requires a Florida Attorney. Once you are appointed as the PR, the court will issue you Letters of Administration. This document allows you to act on behalf of the estate. When you take actions, you will have to notify any interested parties (beneficiaries and creditors). The assets of the estate may be used to pay valid claims. One very important job of the PR is to file all current and final tax returns. This is one area where the PR has personal liability for unpaid taxes, penalties, and interest. Once all of the assets have been accounted for, creditors paid, and beneficiaries determined, the PR will distribute the remaining assets as instructed in the will or by the intestate statutes. The PR is also responsible for filing the accounting (a balance sheet showing the amount of the assets and whom they belong to).

October 2, 2007

Are Wills Still Valid After Moving To Another State?

by David M. Goldman

If you move to Florida from any state or country, Florida will recognize any will that was properly executed as to the rules of another state except Holographic wills.

A holographic will is one that is entirely in the handwriting of the creator. Florida does have an exception to their rule against accepting holographic wills, that is for those holographic wills that are witnessed by two witnesses and notarized.

In almost all cases new states will recognize a validly executed will from another state. It is best to check with an Estate Planning Lawyer in your new state to make sure that your will is valid and deals with any special laws that may be available in the new state.

October 1, 2007

Spousal / Elective Share: Constitutional or Not?

by David M. Goldman

Often in the process of Florida Estate Planning, Florida Elder Law, or Florida Probate I get asked about the effects of Florida’s Spousal Share Statutes. The statutes reserve 30 % of the decedents estate for a spouse in the event that the decedent did not provide at least that amount in their will or other Florida Estate Planning Documents. This right can be waived by the spouse in pre or post nuptial documents. Often for wealthy clients, or those who are legally separated but not divorced the spousal share can become a big issue. If you think that a spousal share might be an issue with your estate planning, you should discuss it with a Florida Estate Planning Lawyer.

Last week a Florida Appeals Court looked at, Whether Florida’s Spousal Share Statutes were constitutional or not?

Generally Florida Statutes are constitutional unless they are not rationally related to furthering a valid governmental objective. Lane v. Chiles, 698, So.2d 260, 262 (Fla 1997) In this case the court looked at whether the potential loss of property rights were rationally related to providing a share in the assets of the decedent.

October 1, 2007

Common Law Marriage and Estate Planning

by David M. Goldman

As a Jacksonville Estate Planning Lawyer, I learned that Florida did not recognize common law marriages. About a week ago, the founding partner of Wood Atter, came into my office and asked me about an estate plan involving a couple that were married under the common law many years ago.

Later I discovered that common law marriages prior to 1969 were valid in Florida. I asked some divorce Lawyers some questions and learned, that once married under the common law, you must still be divorced in a court. The divorce is the same process as with a traditional marriage.

Then I began to think that with the number of people who separate and never get divorced, there must be some estate plans had the potential for disruption because of an unreported common law marriage.

September 28, 2007

Attorney and Client Check List for Mediation

by David M. Goldman

Jacksonville Business and Estate Planning Attorney, David Goldman Found a great article How To Prepare For Mediation: The Mediator’s Check List Of Key Legal And Factual Issues by David Laufer. This article and the checklist below can be used in Florida Business Law, Florida Probate Law, Florida Guardianship Law, and Florida Will Disputes.

THE MEDIATOR’S CHECK LIST ****************************************

ALL INFORMATION WILL BE MAINTAINED IN THE STRICTEST CONFIDENCE.

A CONFIDENTIALITY AGREEMENT HAS BEEN SIGNED BY ALL PARTICIPANTS IN THE MEDIATON BEFORE THE EXCHANGE OF ANY CONFIDENTIAL INFORMATION.

PARTIES

1. Identify each party and title of all participants involved in the dispute.
2. Identify each Disputant required to be present during the mediation process.
3. Identify each decision maker who will not be present during the entire mediation process.
4. Describe any special needs, demands, interests and goals of each Disputant and Counsel.

DISPUTE

5. Describe each claim, dispute and defense.
6. Describe each Disputant’s demands -the best case outcome-to be achieved in the Mediation.
7. Identify and quote the key statutes governing the claims and defenses.
8. Identify and quote the key cases governing the outcome of the liability issues. For example: Stout v. Turney (1978) 22 Cal.3d 718: “Of the two measures the ‘out-of-pocket’ rule has been termed more consistent with the logic and purpose of the tort form of action (i. e., compensation for loss sustained rather than satisfaction of contractual expectations) while the ‘benefit-of-the-bargain’ rule has been observed to be a more effective deterrent (in that it contemplates an award even when the property received has a value equal to what was given for it.)”
9. Identify the legal support for each demand for special, general and punitive damages.
10. Identify all defenses to the claims for special, general damages and punitive damages.
11. Identify key disputed facts discussed in the legal briefs.
12. Identify any key facts and legal issues overlooked by Counsel and the Disputants.
13. Identify other issues that may have an effect on the dispute, including change in case and statue law, change in management, change in key decision maker, vacations, trial dates, motions for summary judgment, divorce, employment termination, surgery, promotion, restructure of company, bankruptcy, sale of business, cancellation of insurance coverage, and the need for closure.
14. Should the mediation be conducted in segments? For example, if the claimant is rehired in wrongful terminations claim will the damage claim be resolved? If the franchisor reinstates a franchise will the damage claim be resolved? If the insurance company renews the insurance policy will the claim for bad faith claim be dismissed?
15. Identify possible resolutions of dispute by restoring, creating or enhancing a commercial relationship that the defendant may be able to provide as an alternative to payment of money damages. For example, a HR Director may be able to re-hire an employee without consulting with a higher authority, whereas the payment of a damage claim may have to go through several levels of review and approval and consultations with the company’s risk manger for reporting to an insurance carrier or audit committee.

EVIDENCE:
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September 26, 2007

Do it yourself Wills? Good idea or not?

by David M. Goldman

Although it is possible to create your own will using Quicken, an online service, or by just creating one on your own, a Florida Estate Planning Lawyer would likely caution against doing so.

A “Do it yourself will” can have many undesired results. The California Estate Planning Blog points to one of these. In their article they describe a man who died and bequeathed his home to five people, one being his wife. His will did not give the spouse the right to remain in the home for her life. Upon the request of any other beneficiary, the wife would either have to buy the additional interest, or be forced to move from the home. If you want to read the full details you can follow this link.

Often individually do not fully understand the consequences of the choices they make in a wills. In addition a Florida Will must comply with the Florida Statute of Wills to be valid. Most states have their own requirement for a will to be valid. A valid Florida Will requires that the person be competent, over the age of 18, understand what they are doing, know their possessions at the time they make the will, have two unrelated witnesses, and notarize the document.

September 24, 2007

Florida Executor Found Personally Liable for Estate Taxes

by David M. Goldman

One of the first things your Florida Probate Lawyer should tell you is that as an executor or Personal Representative of a Florida Probate Case, you are personally liable for any unpaid taxes or penalties for the decedent.

Kimberly Martinez-Lejarza has a nice review of the Estate of Ziotowski v. Commissioner. This tax court held that the failure of the two executors to file the 706 estate return made them liable for the taxes, penalties, and interest even though their attorney failed to inform them of the tax, filing, and due date.

Kimberly does a good job of analyzing the case stating:

That there was no way the estate could possibly stand upon its argument of reasonable reliance on the advice of counsel: there was no evidence the executors had even asked their attorney for advice as to whether the return was due on time, let alone that they had received such advice. In its analysis, the court also pointed to testimony given by one of the executors that further demonstrated the executors’ complete disengagement from the estate administration process, including the preparation of the estate tax return. In the end, the estate was held liable for the additional tax generated as a result of the late filing.

September 20, 2007

Florida Trust Accounts: Should the Checking Account Be Held In the Name of the Trust?

by David M. Goldman

When you create a Florida Revocable Trust, your Florida Estate Planning Attorney should advise you on how to title accounts.

One common question is about checking accounts. In most cases, the title (ownership) of the checking account should be changed to the name of the Florida Living Trust or Florida Revocable Living Trust, or Trustee of the trust. If on the date of death, the amount in a personal account has not become property of the trust, it may be necessary to open a Florida probate.

NOTE: The checks do not need to show the trust name and reference to the trust may be omitted for check cashing. The signature cards need to be updated to reflect the way in which checks will be signed. When doing this its best not to close the accounts as outstanding checks could bounce and create unnecessary expenses.