Florida Estate Planning Lawyer Blog

August 21, 2007

Florida Probate and Wrongful Death: Proceeds may not be claimed for unpaid child support

In Florida probate, proceeds from a wrongful death action are not subject to the claims on creditors including unpaid child support. In Re: The estate of Johnny Glenn Barton (631 So.2d 315) the Second District court of appeals reasoned that since the recovery for wrongful death has nothing to do with the injuries sustained by the decedent, but is due to the benefit that the beneficiaries would have received if the decedent had not been killed.

A wrongful death action does not include an award for medical expenses and thus the proceeds of such settlement do not include money for that. A Florida Wrongful death action is to compensate the survivor for their own losses, separate from their departed loved-one.

The appeals court held that it was wrong for back child support to be paid from the proceeds from the wrongful death action. If you have a wrongful death action it is important to use a Florida Probate Attorney who is familiar with Florida Probate.

August 20, 2007

Florida Will: Original Will must be kept safe

by David M. Goldman

In Jacksonville Florida or another Florida city, if a person creates a valid Florida will, but the will can not be found upon their death, the Florida courts will presume that the decedent destroyed the Florida will with the intention of revoking the Florida will. This doesn’t mean that it is impossible to get a copy of the Florida will admitted, but it will be difficult.

The first step is to establish the terms of the will in Florida and offer it for Florida probate. This can be done by any interested person. The specific content of the Florida will must be proven by the testimony of two disinterested witnesses, or, if a copy of the will is available it can be proven by one disinterested witness.

In Florida, it is very important to keep your original will in a safe place. You might consider having your Florida Estate Planning Attorney keep the original will for you in a fire and water proof safe. If you live in an area of Florida that is prone to hurricanes, it would be wise to keep the will in a water proof, fire proof area that is not at risk to weather. Some Florida will lawyers or Jacksonville will attorneys can keep the original Florida will in their safe.

August 14, 2007

Validity of Florida Arbitration Clauses

by David M. Goldman

Recently the Florida statutes changed to allow for arbitration clauses in Florida Revocable Trust Agreements. When including an arbitration clause in a Florida Revocable Trust one needs to make sure the arbitration clause will be enforceable.

Below are some issues with arbitration clauses in Florida that need to be considered whether used for Florida Business Contracts, Transactions in Florida, or Florida revocable trusts. Luckily the US Supreme Court has ruled that if an arbitration clause is invalid, the clause can be removed from the agreement and the underlying agreement can still be valid.

Florida Arbitration Clauses
An agreement to arbitrate, or a provision in a contract providing for the arbitration of disputes, is valid, enforceable, and irrevocable without regard to the justiciable character of the controversy. The only questions for a court to determine when looking to see whether an arbitration clause is enforceable are:

1. Whether the agreement that contains the arbitration clause is valid?
2. Whether the parties have a valid arbitration agreement;
3. Whether an arbitrable issue exists; and
4. Whether the right to arbitrate has been waived.

July 30, 2007

Florida Gun Trusts or National Firearms Trust

by David M. Goldman

If you live in a Jacksonville or another city in Florida where the Chief law Enforcement Officer (CLEO) will not or easily sign a Form 4, there are several solutions.

Title II Firearms (sold by Class 3 SOT dealers) include suppressors, , short barrel rifles, machine guns, and other destructive devices.

The most common solution is to create a revocable trust to hold title to the firearm or class 3 items you desire to purchase. There can be many problems with a typical revocable trust and firearms. Its best to use a Firearms Trust or NFA Gun Trust

A Gun Trust, Firearms Trust, Limited Liability Company, or Florida S Corporation is a legal entity established under state law. For NFA purposes many individuals prefer the a Revocable Trust over a corporation or LLC because it is less expensive to operate and provides privacy. Florida Business entities typically cost $150 a year for the state filings in addition to the cost of a CPA to prepare and file the federal filings. In addition, Florida Trusts don’t require any disclosure or public filings. The lack of any required filings means, the only people who know the terms of the trust are those you choose to tell.

Although most Florida Revocable or Living Trusts can hold firearms or other class 3 items, many are not properly setup to deal with the issues involving firearms and other items which are regulated by the National Firearms Act (NFA). If the NFA is violated, the owners are subject to criminal penalties, substantial fines, and forfeiture of not only the class 3 items in question but all firearms in the possession or ownership. ($250,000 penalty, 10 years in prison, and forfeiture of items)

The gun or firearms trust must give the Trustee instructions and special powers so that they can legally manage for unplanned events. Weapons and other assets in a Firearms Trust can not be distributed like other assets upon the death or incapacity of the person who placed the items in the trust(The Grantor or Settlor).
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July 11, 2007

Florida Trusts & Real Estate

by David M. Goldman

In Jacksonville or other cities in Florida, there are many advantages to using a Revocable Living Trust or Florida Land Trust to hold title to real estate. Dyches Broddiford has an interesting article dealing with many of these issues.

In summary a real estate trust provides:

– Privacy for the owners;

July 4, 2007

Jacksonville Living Will Seminar

by David M. Goldman

Jacksonville Estate Planning Law Firm will continue it community service project by adding 3 Living Will Seminars in the month of September. This program provides Free information and the chance to create a free Florida Living Wills, Florida Designation of Health care Surrogate, and a Hipaa Release.

Jacksonville, Jacksonville beach, Ponte Vedra Beach, PVB-on-beach.jpg On September 11, 2007 at 11 A.M.

Riverview Center

June 20, 2007

Estate Planning and Discounts: Can a Fractional Interest In Artwork Be Discounted For Estate Planning Purposes

by David M. Goldman

To discuss how this case may affect you, talk to your Florida Estate Planning Lawyer

In the recent case of Stone v. United States, No. 3:06-cv-00259, United States District Court for the Northern District of California (May 25, 2007), the declined to give a discount to the value of artwork.

Jacksonville, St. Johns, Duval, Orange Park, Amelia Island, Beach, rare art The Court reasoned that artwork in not fungible. From that, and the testimony of the experts (and commenting that unlike this case, sales of fractional interests in real estate sales had comparable sales evidence of discounts) the Court concluded, in general, that a hypothetical willing seller of an undivided interest in art would rather sell the whole piece and split the proceeds, then sell a fractional interest at a discount. Such a sale might be by agreement or might be by partition. But, because a partition could be sought, no hypothetical willing seller would accept anything less than full value.

June 18, 2007

Florida Pet Trusts

by David M. Goldman

This article has many interesting provisions that have been found in wills, but more common today are provisions dealing with trusts for pets.

Pet trusts are quickly becoming more common. Around 20 percent of pet owners include their pets in their wills. Florida have specific rules on how one can leave money or provide for their pets after their death. After years of resistance, more states are making it easier to set up a trust for a pet. A guardian is appointed to care for the animal and a trustee to take care of the finances.

People can be very detailed in planning their own funerals, down to requesting specific songs and Bible verses. “It’s less of a taboo topic,” said Leanna Hamill, an attorney from Hingham, Mass. “People talk about it more.”

June 17, 2007

Florida Wills: When do you need one?

by David M. Goldman

Amy Baldwin has a nice article on when people usually think about getting wills. Typically they get wills when they are married, buy a home, have a baby, get a divorce or go on a vacation.
She states that most estate planning lawyers say whether married or not, every adult, starting at 18 needs to have estate planning documents.

In general when people turn 18 they need to have a Florida medical power of attorney . With the new HIPPA regulations parents can not depend on being able to find out about their injured child and provide instructions for their treatment. In Florida and other states, many doctors will not release information to a spouse much less an adult child. Before your child goes to college, you should have him execute some common Florida Estate Planning Documents.

June 16, 2007

Estate planning: What will it do for me, my family and my business

by David M. Goldman

Florida Estate Planning: The “right plan(s)” will accomplish all your goals.

There are basically two types of plans: a lifetime plan that should start now (in the next two or three months), and a death plan (your will and trust documents) that can sit in a drawer until you go to business heaven. By far, the lifetime plan is the more important of the two. Let me say it loud and clear: Never, under any circumstances, can your will and trust accomplish your lifetime goals. Even worse, standing alone, your will and trust rarely accomplish your estate planning (death) goals. Remember, your death documents do absolutely nothing until after you draw your last breath.

And the 11 most common goals in Florida Estate Planning
As you read the strategies, think about the ones that match your goals.

1) Allow us to maintain our lifestyle for as long we live [intentionally defective trust, S corporation, family limited partnership, retirement plan].
2) Control my wealth-including my business-for as long as I live [voting/nonvoting stock for business, family limited partnership].