Florida Estate Planning Lawyer Blog

September 24, 2011

Updating your Florida Will is as Important as making a Will!

Circumstances change, possessions change, homes change, has your Will changed? As a Middleburg Estate Planning Attorney, I have heard many “will” stories, not all of them have a happy ending.

A Florida woman was left a home in her father’s Florida Will . Her brother was left money in the amount equivalent to the value of the home. Her father sold the home before he died, but failed to update his Florida Will to provide for his daughter.

If the subject matter of a specific gift is not in the estate at the time of the testator’s death, the specific gift, (in this case the house) will fail and the person who should have received the gift will take nothing. This is called “Ademption by Extinction“, in other words, the house no longer belongs to the deceased and therefore it cannot pass to his heirs.

September 14, 2011

IRS extends Filing Deadline for Form 706 and 8939 for Decedents dying in 2010

by David M. Goldman

The IRS just released Notice 2011-76 that extends the filing deadline for Forms 706 and 8939 for estates of decedents dying in 2010.

The Notice provides that large estates of people who died in 2010 will have until early next year to file various required returns and pay any estate taxes due. In addition, the IRS is providing penalty relief to certain beneficiaries of these estates on their 2010 federal income tax returns. This relief is designed to give large estates, normally those over $5 million, more time to comply with key tax law changes enacted late last year. Specifically, the following relief is given:
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September 11, 2011

Differences between Estate Planning and Elder Law

by Patricia Davis

Many Middleburg families have thought about their future and what they want to happen upon their incapacity or death. However, many Middleburg families have not made that important call to consult with a Jacksonville Estate Planning Attorney about memorializing their thoughts in valid legal documents.

When you plan in advance you make your own decisions, you pay less, and you rest comfortably knowing that if you become incapacitated, and when you pass away, you have important legal documents in place. Legal documents that direct what you want to happen, to your children, your assets and you.

If you are a parent, whether you are married, divorced, or single, you must consider who will take care of, and provide for your minor children in the event of your incapacity or death. It is important to designate in a Forida Will or Pre-need Guardianship document your choice of who would be your child’s guardian. Better that you make this choice than a judge.

September 9, 2011

Personal Represntative of Yale Student’s Estate Files Wrongful Death Lawsuit

by David M. Goldman

It is the PR’s job in a Florida Probate case to take actions to gather the assets and distribute them to the beneficiaries. When wrongful death claims are not assets subject to distribution under Florida Probate, it is the personal representative of an estate who pursues a Wrongful Death Claim in Florida or another state. The Jacksonville Wrongful Death Lawyer will often work directly with a Florida Estate Planning Lawyer to pursue the claim for the family and children of the decedent.

The Yale Daily News is reporting that

The estate of former pharmacology student Annie Le GRD ’13 filed a wrongful death lawsuit against the University in New Haven Superior Court on Tuesday, alleging that pervasive sexual harassment at the University “emboldened” her killer, Raymond Clark III, who is serving a 44-year sentence for the murder and who the suit claims was hired through Yale’s negligence.

While many states have broader statutes dealing with wrongful death claims, Florida limits which family members can have a claim and often when an elderly person dies, the adult children may not be able to file a claim.

September 9, 2011

Protecting the Family Vacation Home

by David M. Goldman

Florida asset protection for homestead- House.jpg Often families have vacation property that has been owned for may years or generations. It would be virtually impossible for most children to acquire or maintain these types of properties in today’s market.

We often use business entities or trusts to hold title to the property and other assets to help provide for the management and expense of owning and operating a vacation home. When the property is going to be inherited by more than one child or family. An operating agreement or trust agreement can provide rules for handling allocation of time, and expenses among the children and their families.

If you have a family beech or lake home or a ski lodge you may want to talk with a Florida Estate Planning Lawyer about how to protect the property from your creditors, the creditors of your children, and disputes between your children regarding the use and expense sharing of the home in the future.

September 9, 2011

TBE Bank Accounts and Asset Protection

by David M. Goldman

When protecting one’s assets in Forida a Florida Asset Protection Lawyer will often look at the stying of accounts and other personal property.

There are situations when having a Bank account in the name of a husband and wife as tenants by the entireties can offer additional protection from creditors. In Florida if you open joint bank account or certificate of deposit (CD) and the joint owners are the husband and wife, the account will have the benefits of a tenants by the entireties account. The statute seems to allow for husband AND wife as well as husband OR wife and does not indicate any issues as to when or how the account was opened or if a spouse was added at a later time. Florida Statute 655.29(1) is very limited and does not establish TBE status on other types of accounts or personal property that you may own. It is important to review the way in which you hold title to your personal property to make sure you will be afforded creditor protection.

655.29(1) Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons shall be presumed to have been intended by such persons to provide that, upon the death of any one of them, all rights, title, interest, and claim in, to, and in respect of such deposit account, less all proper setoffs and charges in favor of the institution, vest in the surviving person or persons. Any deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.

September 6, 2011

Gay and Lesbian and Living in the Bible Belt

by Patricia Davis

The grandson of the late evangelist Oral Roberts has “come out” as a gay man. Courageous move for a man that comes from a devout and famous evangelical family. Although he and his family have minimal contact, their opposing views as to living a gay lifestyle has them at opposite ends of the spectrum (the rainbow spectrum).

This is a familiar pattern for many Orange Park and Jacksonville gay and lesbian individuals. Families can’t and won’t accept their lifestyle. Communication is the first key, but often times that does not work. Living in a same-sex relationship often involves thinking about your partner and your future together. Because same-sex relationships are not a legally recognized union in Florida, it is important to talk with an Orange Park Estate Planning Attorney sensitive to the concerns of the LGBT community. There are many avenues and legal documents that enable you to be in control of who will make future health and financial decisions in the event of your incapacity.

Florida Estate planning can help protect your same-sex partners and their children. This can help avoid disputes between your family and your parents and siblings

August 26, 2011

Protecting Assets From a Florida Divorce using an IPUG Trust

by David M. Goldman

In Florida, all marital assets are subject to equitable distribution. If you leave assets to your children in a revocable trust, they can also be at risk to equitable distribution depending on the circumstances and how they are used. If you create an Irrevocable Pure Grantor Trust (IPUG) and leave assets to your children in their own IPUG they will remain separate property and are only subject to alimony and child support as a last resort. Generally these assets will be protected as separate property in the case of a divorce which occurs in around 50% of all marriages.

To discuss how an IPUG trust can protect assets from your creditors and those of your beneficiaries, contact a Florida Estate Planning Lawyer to discuss your circumstances and goals.

August 25, 2011

Can Minor Children Pick the Personal Representative of an Estate

by David M. Goldman

In Florida Statute 733.301(1)(b)(2) defines how a minor child can participate in a probate proceeding. Minor children are not able to participate directly, but can do so through a court appointed guardian over their property. In a recent Florida case out of the 2nd District of Florida the appellate court found that it is an error not to give the minor children an opportunity to have a guardian appointed before appointing a personal representative.

The court found that although the mother, as natural parent, had no right to select the personal representative, she did have the right to file objections on behalf of her children. Significantly, the statute does not entitle a natural guardian to such a right. Rather, section 733.301(2) provides that “[a] guardian of the property of a ward who if competent would be entitled to appointment as, or to select, the personal representative may exercise the right to select the personal representative.”

Although Florida Probate Rule 5.040(a)(2) provides that where an interested person on whom formal notice is served does not serve written defenses within twenty days, the probate court may consider the pleading ex parte, Florida courts treat this rule as merely procedural; it is “`in no sense’ a statute of limitations or a mandatory non-claim provision.” Tanner v. Estate of Tanner, 476 So. 2d 793, 794 (Fla. 1st DCA 1985).

August 24, 2011

Florida Probate and Timeshare Ownership?

by David M. Goldman

In Florida Probate is the legal process which occurs after death and is used to transfer assets and pay the debts of the person who is deceased. This process takes place in the Civil Court where the person lived at the time they passed away or in the county where the decedent owned property in Florida. Additionally, a probate proceeding is usually required in each state where the decedent owned property in their own name without a right of survivorship.

The basic steps to a Florida probate case are:

Filing a petition in the Probate Court