Florida Estate Planning Lawyer Blog

October 1, 2007

Common Law Marriage and Estate Planning

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 30, 2007

NFA Gun Trust Lawyers® Wanted

by David M. Goldman

As a Florida Estate Planning Lawyer who has created Gun Trusts or National Firearms Trusts for many individuals in Jacksonville Florida and around Florida, I am often asked for names of Attorneys and Lawyers in other states who can help them create a NFA Gun Trust at a reasonable price.

As a result I have begun creating a list of Lawyers in other states who will produce Federal Firearms Gun Trusts. Some have created their own trusts, others will modify the one I am using for the specific laws in their states.

If you are an Estate Planning Lawyer and would be interested in helping others create Gun Trusts, or you are looking for an attorney in another city or state to help you create a NFA Living Trust please contact me using the form on this page or at dgoldman@jacksonvillelawyer.pro.

September 29, 2007

Florida Trust Advantages for Descendants

by David M. Goldman

Florida Estate Planning Lawyers often tell clients of the many advantages of a Florida trusts. When a client leaves property to heirs in a trust instead of outright, they can control how the property is used. The control can violate public policy or law, but often good estate planning can control the property without risk of having the control stricken. Some of the major advantages are:

1. That a trust can provide a mechanism for better management and investment than the individuals may be capable of on their own.

2. That a trust can prevents the beneficiary(s) from using all of the proceeds quickly, or wasting it on unnecessary items.

3. Than a trust can protect the assets from the claims of creditors.

September 29, 2007

Abusive Trust Tax Evasion Schemes – Questions and Answers

by David M. Goldman

Florida Estate Planning Lawyers are often asked about tax strategies. Lawyers and accounts are not allowed to advise clients on tax evasion schemes. Recently I read an IRS Article named Abusive Trust Tax Evasion Schemes – Questions and Answers The questions and answers give a good general background to many of the terms used in Florida estate planning. In addition there are some links at the bottom which provide more information on tax abuse, scams, and fraud.

Basic Trust Law

Q: What is a trust?

A: A trust is an entity created and governed under the state law in which it was formed. A trust involves the creation of a fiduciary relationship between a grantor, a trustee, and a beneficiary for a stated purpose. A trust may be created by any of the following methods:

A declaration by the owner of property that the owner holds the property as trustee;
A transfer of property by the owner during the owner’s lifetime to another person as trustee;
A transfer of property by the owner, by will or by other instrument taking effect upon the death of the owner, in trust, to another person as trustee or
An exercise of a power of appointment to another person as trustee or an enforceable promise to create a trust.

Q: Who is a grantor of a trust?

A: The grantor (also known as trustor, settlor, or creator) is the creator of the trust relationship and is generally the owner of the assets initially contributed to the trust. The grantor generally establishes in the trust instrument the terms and provisions of the trust relationship between the grantor, the trustee, and the beneficiary. These will usually include the following:

The rights, duties, and powers of the trustee;
Distribution provisions;
Ability of the grantor to amend, modify, revoke, or terminate the trust agreement;
The designation and selection of a trustee or successor trustees; and
The designation of the state under which the terms and provisions of the trust agreement are to be governed.

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 26, 2007

Durable Power of Attoney? Why are they so Important?

by David M. Goldman

Florida Estate Planning Lawyers often include Durable Power of Attorney documents in the estate planning they do. Today I read an article on the California Estate Planning Blog entitled “Do I Need A POA Over My Spouse?”.

The article recommends that everyone needs a power of attorney over their spouse in case something happens. Without a Florida Durable Power of Attorney in place, a spouse is unable to file taxes, deal with social security, talk to creditors or deal with other financial considerations that require the spouse’s signature.

You cannot get a Florida Durable Power of Attorney if your spouse becomes incapacitated. The only alternative is to setup a Florida Guardianship. This is costly, time consuming, and requires one to act while a Florida Durable Power of Attorney gives one the ability to act, without the legal requirement to act.

September 25, 2007

Pet Estate Planning Seminar

by David M. Goldman

Often Estate Planning for your Pet can be very expensive. Some Florida Estate Planning Lawyers who also are Florida Pet Trust Lawyers have begun offering comprehensive Low Cost Florida Pet Trusts.

If you want to become more educated on Florida Pet Trusts or Pet Trusts in other states, one way is to speak to a Jacksonville Pet Trust Lawyer. In addition, you may want to attend this seminar by two Lawyers doing Pet Trusts

On September 28, 2007, Neil Hendershot PA Elder, Estate & Fiduciary Law Blog) and Gerry W. Beyer (Governor Preston E. Smith Regents Professor of Law, Texas Tech University School of Law) will explore this issues important to estate planning for pet owners both in Pennsylvania and nationally.

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 21, 2007

Updating your Florida Will

by David M. Goldman

Your Florida Estate Planning Lawyer should tell you that your Florida will is a living document and must be updated regularly based on changes in your circumstances, the laws, and the assets you own.

Life is full of change, and when your life changes you Florida Will should be evaluated for potential updates. Some Jacksonville Estate Planning Lawyers prefer to update Florida Wills with a Codicil. A codicil is just an amendment to a will. Often when there are more than one amendments or the Florida Will and Florida Codicil conflict with each other, it may be more difficult for your personal representative to understand and carry out the instructions on the decedent.

It is for that reason, that often the original Florida Will is rewritten in its entirety. With word processing it is often the same work to create a new Florida Will as a Codicil.