Florida Estate Planning Lawyer Blog

November 29, 2011

When is a Probate in Florida required?

Thumbnail image for probate.jpg When is a Florida probate required?

If a Jacksonville resident dies owning anything in his or her name individually a probate is necessary in Florida. In addition, if a person living in another state owns real property (a home or land) in Florida there will also need to be a probate case opened in Florida. Some examples of individually owned assets include a checking account, a stock account, an insurance policy payable to the insured’s estate or someone who does not survive the decedent, a home or other real estate, or bonds. Just because a Florida will names an asset and a beneficiary, does not mean that the asset will be distributed per the terms of the will. If such asset is jointly owned, for example, it will generally pass to the surviving joint owner (with few exceptions). To carry out the instructions in the will, you must first open a probate. In Florida if there is more than one beneficiary, a lawyer will be required to open the probate. This is because if while you can represent yourself in a probate case, you cannot represent another if you are not a licensed attorney in Florida.

When is a probate not required?

November 15, 2011

Exploitation of the Elderly

by Patricia Davis

For those working with Jacksonville Elder Law Attorneys the Florida news that a daughter living with her elderly mother was accused of stealing her mother’s money to fuel a gambling and drug addiction was not a shock. In attempting to ascertain the Florida elder mother’s mental state, the investigators turned to her doctors.

The medical insight gleaned from treating physicians can lead to tougher charges against those who use their position of trust to scam the elderly. However, many doctors’ are hesitant to get involved in the Florida legal proceedings of their elderly patients.

In Florida counties, where the population of elderly over the age of 60 often exceeds 25%, many law enforcement financial crimes units are seeking volunteer licensed physicians. These doctors assist in determining the mental and physical state of a victim at the time of the perpetration and fraud.

November 15, 2011

Choosing Your Executor in a Florida Will.

by David M. Goldman

After you die, you may have money, property, and other assets that were in your own name. Generally the assets which did not automatically become someone else’s upon your death are part of your probate estate. Many individuals attempt to make sure that there are no assets in their probate estate when they die. This is often done with the help of a Florida Estate Planning Lawyer and can often include Florida Revocable Trust as well as reviewing ones beneficiary designations.

A will is where you would typically define who will be the personal representative or the Executor of your estate. While the many estate plans in Florida will not need a PR or executor, many individuals do not fully plan to deal with all of their assets and a Florida executor is needed. Generally the executor is someone in whom you can put the utmost trust. Your Executor will be the person in charge of making sure all your assets including your money are gathered, kept safe and distributed according to state law and your desires. There are certain people who will get paid before any distributions are made. Generally, the PR, court costs, and lawyers are paid first, then the burial expenses are paid (up to $6000 is a priority claim). After these bills are paid, the creditors are paid and only after the bills are paid, do the beneficiaries receive what is left from the probate estate.

Florida Statute 733.707 discusses the priority that claims are paid. In general they are paid in the following order:

November 9, 2011

More Estates Need Estate Tax Returns in 2010

by David M. Goldman

Jacksonville Probate Lawyer IRS Form 706 for Estate Tax Return While many of you may be thinking that fewer Florida Probate cases will involve federal estate tax returns in 2011, the opposite is actually true. It seems with the new $5 Million estate tax exemption that most estates will not need to file a tax return. What most people do not realize is that by failing to file an estate tax return in 2010 (Form 706) the spouse of a decedent will lose the portability of the unused portion of the estate tax exemption that is available to the surviving spouse. Form 706 was just released by the IRS and if you know someone who passed away in 2011, you should have them ask their CPA or Tax Attorney about the benefits of filing a Form 706 and the risks and potential tax liabilities if one is not filed.

November 8, 2011

Who gets to make funeral decsisions in Florida?

by David M. Goldman

Who gets make the funeral arrangements for our parents? Why was Dad or Mom Cremated? How can I stop my mom, step-parent, parents significant other, or sibling from the improper disposition of my relatives remains?

These are all questions dealing with the same issue: Who gets to make the decision about the disposition of a person who has recently died? As a Florida Estate Planning Lawyer we always talk to our clients about the importance of discussing your desires with those who will make the decisions, but what if someone takes over and does something that was not wanted? Can it be stopped? In most cases, the damage may be done before you have knowledge of what is happening, but in some cases there is time to stop arrangements. Florida statutes define the legally authorized person who can make the decisions regarding disposition of a body. In doing so there is a priority list that starts with the decedent, as it should.

That means if you make arrangements regarding your disposition, your decisions should be followed – as long as they are known, and able to be learned of prior to alternative arrangements being carried out.

November 7, 2011

Florida probate Hanbook Updated

by David M. Goldman

I recently updated the Free Florida Probate Handbook to deal with many of the changes from this year’s legislature. If you have a previous copy or would like an undated version please let us know by requesting on this page.

October 30, 2011

Gay and Lesbian benefits involve preparing living trusts

by Patricia Davis

Jacksonville Estate Planning Attorneys working in Jacksonville Beach watch for Florida issues about gay and same-sex partner benefits.

More and more Florida counties are making positive steps by providing health care and other benefits for same-sex couples. Central Florida’s publicly owned Orlando Utilities Commission (OUC) now offers Florida Domestic Partnership health care benefits for the domestic partners of their employees. Some nationwide companies that do business in Florida likewise provide same-sex partner benefits.

Despite the fact that Florida does not recognize gay marriage, newly-released U.S. Census figures, show nearly 6,800 same sex couples call the Sunshine State home. That’s based on how many gay couples checked the “husband” or “wife” options. The Census bureau also reported an estimate of the number of same sex couples in Florida, both married and unmarried, at 48,456.

October 20, 2011

Guardianship Lawyers Serving Elderly

by Patricia Davis

October 20, 2011

Problems with Domestic Asset Protection Trusts

by David M. Goldman

Domestic Asset Protection Trusts (DAPT) have become the latest rage in estate planning and asset protection. We have generally found that there are better ways of protecting assets from creditors by using traditional estate planning that has case-law history.

In a recent US bankruptcy case, a DAPT was invalidated and the 10-year bankruptcy statute of limitations in regards to trusts was upheld. This was an Alaskan case using an Alaskan DAPT but similar results should be expected in other jurisdictions.

If you are interested in Florida Asset Protection or Asset Protection in Jacksonville, contact a Florida Asset Protection Lawyer to discuss your circumstances and options that are available to help protect your assets from creditors or increase the ability to negotiate with creditors.

October 20, 2011

Florida Medicaid and Durable Powers Of Attorney

by David M. Goldman

DCF will reject Medicaid planning involving trusts and personal service contracts where a power of attorney is executed after 10/1/11 and the DPOA does not specifically authorize the ability to execute trusts or personal services contracts.

If you are using forms for a POA or DPOA, you should have them reviewed by an attorney as the may not be valid with the recent law change. In addition, the forms may not let you accomplish what needs to be done in regards to planning for a nursing home or Medicaid eligibility.