Florida Estate Planning Lawyer Blog

October 28, 2010

Unlicensed Contractors Can’t Enforce Agreements

The 3rd DCA recently ruled that a contractor who enters into a contract with a company to install a satellite system was not able to enforce the contract because the contractor was not a licensed electrical contractor and as such the contract was unenforceable Under Florida Statute 489.532.

In Florida, in order to engage in electrical contracting, a person must be certified or registered with the state. § 489.516(2), Fla. Stat. (2004). The statutes generally define an “electrical contractor” as any person “who has the experience, knowledge, and skill to install, repair, alter, add to, or design . . . electrical wiring, fixtures, appliances, apparatus, raceways, conduit, or any part thereof, which generates, transmits, transforms, or utilizes electrical energy in any form.” § 489.505(12), Fla. Stat. (2004). Additionally, section 489.532 states that, “As a matter of public policy, contracts entered into . . . by an unlicensed contractor shall be unenforceable in law or equity by the unlicensed contractor.”

Disclaimer: I found this case and thought it was interesting and may provide my clients and readers some benefit. Please do not call me about providing legal advice or to defend against your contractors suit as it is not an area that I practice in.

October 21, 2010

Forbes reports that 60% estate tax rate could be around the corner

by David M. Goldman

Ashlea Ebeling with Forbes is reporting that next years estate taxes could be as high as 60% for some. This title is misleading because the maximum estate tax will be 55%. She gets 60 percent by adding the max rate of 55% plus the 5% surcharge for assets between 10 million and 17.184 million dollars. This surcharge only makes the overall rate closer to 55% and the full 55% rate is not achieved until the estate is in excess of the $17.184.
So while there is a 60% estate tax, it is only a marginal tax rate and the rate is never higher than 55%.

Please do not think I am ok with a 55% tax rate, but I did want to clarify the issue. If your estate is greater than 1 Million dollars, you should consider meeting with a Jacksonville Estate Planning Lawyer to discuss ways you can increase your exemptions or hedge against the taxes that would be due upon your death.

September 12, 2010

Estate Planning Update: New Changes to Florida Homestead

by David M. Goldman

Starting October 1, 2010, if you die in Florida your spouse will be able to elect to take the traditional life estate in your homestead that is separate property or a 1/2 interest in the property. While this does not effect many Floridians, it does effect many who got married after purchasing their home or who have children from another marriage.

Traditionally the new spouse would receive a life estate ( the ability to live in the home for the rest of their life) and the children of the deceased parent who owned the home would receive the remainder of the property after the death of the surviving spouse or their step parent.

A Florida Estate Planning Lawyer can create documents that change or alter the homestead rights of a surviving spouse. Remember that it may not be your spouse making the decision, but the government or an agent acting under a power of attorney who make the decision and they may not agree with what you and your spouse decided upon years earlier. It is best to create a post nuptial agreement or valid waiver to address these issues while everyone agrees and before it is too late.

September 11, 2010

Florida Estate Planning Procedure

by David M. Goldman

Estate Planning Procedure

We make it easy and affordable to obtain professional legal advice by offering complimentary consultations for your Florida estate planning needs with a Jacksonville Estate Planning Attorney. Once you’ve decided to implement your Florida estate plan, your documents will often be ready in less than two weeks.

STEP 1: FILL OUT THE CONFIDENTIAL PERSONAL INFORMATION FORM

September 8, 2010

Do-It-Yourself Wills: Good or Bad

by David M. Goldman

While most articles seem to be nothing more than a press release from Legal Zoom or Quicken, Deborah Jacobs seems to really examine the issue. Check our the Forbes.com article on some of the Pitfalls of Do-It-Yourself WIlls

September 7, 2010

When can Notice to the Creditors Be sent

by David M. Goldman

Creditors only have 90 days to file claims in a Florida Probate once notice has been published. For this reason it may be beneficial to publish notice as soon as possible. Unfortunately, you can only publish notice once a Personal Representative has been appointed. If there is a dispute about who will be the PR in a Florida Probate case the ability to publish notice to the creditors will not happen until the Florida Court appoints a Personal Representative.

Creditors claims are barred 90 days after publication or 2 years after the death of the decedent. If you have a question about a Florida Probate case or want to speak with a Jacksonville Probate Lawyer contact us by phone or email.

September 2, 2010

Florida Constitution can protect two Florida Homes as Homestead

by David M. Goldman

The Homestead Exemption in Florida, which was established in the State’s Constitution, has always provided for the protection of the Family home free from creditors and liens. In 1985 the Constitution was amended to extend the protection to the “natural person” and not necessarily having to be the head of the household. The 4th district Court of Appeals ruled that a husband and wife who are separated for a period of time can BOTH claim the Florida Homestead Protection from creditors. This ruling does nothing to allow two homestead tax deductions. Law v. Law et al., 738 So. 2d 522.

The case involves a husband and wife who were separated for several years. They both claimed Homestead exemption for the Hollywood home that they owned jointly. But when his mother got sick, he and his wife decided to sell the home to pay for the medical bills. His ex-wife had a claim against him for support and brought action to seek recovery through the sell of the home. He filed for Homestead exemption. The court of appeals ruled that “we see nothing inconsistent with our public policy if we extend a homestead exemption to each of two people who are married, but legitimately live apart in separate residences, if they otherwise meet the requirements.” Court referencing Colwell v. Royal International Trading Corp., 226 B.R. 714 (Bank S.D. Fla. 1998) to show precedent on allowing dual homestead exemption. The court seemed to find it important to find that the separation was not contrived to defraud creditors.

If you would like to talk about how to create two homesteads and document them to avoid unnecessary litigation over the issue, contact a Florida Estate Planning Lawyer or if one or more of your home is in foreclosure contact a Jacksonville Foreclosure Defense Lawyer.

August 23, 2010

Pre-Validation of Wills and Trusts Before You Pass Away

by David M. Goldman

Over the past summer, Alaska has become one of a few states to allow pre-validation of a will. The state legislature also took the law a step farther and allowed trusts to be validated by the grantor before they pass away. In order to explain the new process it is essential to know how most states operate in the probate process. In Florida, if a beneficiary wishes to contest a will, the document must first be submitted to probate. The probate court will not allow probate proceedings to proceed unless the testator is deceased which eliminates the crucial witness of the document, the testator. For this reason, Florida subjects wills and trusts to a number of formalities in order to be deemed valid.

In their effort to reduce will challenges, the Alaska law allows the testator to accurately express their intentions before they die rather than allowing the process to occur afterward. The process first starts by notifying all interested parties and serving them with a copy of the will or trust. The parties then have a specific deadline for filing a challenge to the document, usually 3 to 4 months, before they permanently lose the chance to contest the will. If there is a challenge, the testator will be there to confirm the validity of the document. Since a court can verify duress, undue influence, and capacity while the testator is testifying, the judge can make a final ruling on the authenticity of the will or trust.

Although Florida has not adopted any law of this kind, Alaska allows non-residents to take advantage of their laws. However, a will must be probated in the decedent’s state of residence so it is doubtful a Florida court will give any significance to an pre-validated Alaska will. On the other hand, trusts are separate legal entities from their creator so pre-validating this document may prove critical in probate proceedings. A Florida Estate Planning Lawyer offer assistance to your estate plan and answer any further questions concerning wills and trust documents.

August 21, 2010

Rite Aid Settles with HIPAA for Privacy Violations

by David M. Goldman

A recent article by Tanya Roth reveals some shocking truths about our local drug store. Rite Aid is being held accountable for their employees’ actions after an investigation by the Office of Civil Rights (OCR) revealed privacy regulations were not followed. The chain of drugstores has reached a settlement with the Department of Health and Human Services and the FTC where they will pay damages of $1 million. Spurred by a television station’s videotape, the investigation revealed Rite Aid employees dumping labeled medicine bottles and prescriptions into public dumpsters near their stores.

Since these medicine bottles contained the private information of customers, it was obvious Rite Aid was not abiding by the requirements protecting patient information under HIPAA privacy regulations. OCR confirmed that customer information and other private information was disposed of improperly including job applications. In addition to the $1 million they will have to pay under the settlement, Rite Aid is obligated to implement new training procedures and policies for monitoring internal operations. Nevertheless Rite Aid was not the only drugstore to be targeted by the OCR as last year CVS Pharmacy paid a much larger fine for HIPPA violations.

These violations of health care laws affect everyone but elderly citizens are more at risk because they are frequently in need of medications. Identity theft has been on the rise for many years and this crime is often the result of criminals sorting through dumpsters for any private materials you through away.

August 20, 2010

Protecting My Assets Using A Florida LLC: What are the Options?

by David M. Goldman

Due to the recent decision of the Florida Supreme Court, many single-member limited liability company owners have been left confused and upset. The Ohmstead decision expressly eliminated most of the asset protection benefits that single-member LLCs were thought to have. Creditors of the member can use all available remedies to recover their debt, not just the charging lien that was thought to be the sole remedy. Now it may be possible for a creditor to force the sale of LLC assets and seize all management decision-making.

This decision has sparked new ideas on how to protect debtors who are the owner in a single-member LLC. According to one academic, adding an unrelated business partner as a new member could offer protection. This would require the new member receive some consideration such as a share of the profits so that the reorganization would not be a fraudulent transfer. Also, a second option would be to reorganize the LLC in another state with more desirable LLC protections. Some LLC owners may consider converting to limited partnerships to offer a stronger protection that might be available under the current law. The Florida legislature is expected to address this issue in the future to clarify the standing of multimember LLC’s

While the decision did not deal with multi-member LLC’s, there is language in the opinion that has raised concern with many around the state over the issue of whether a multi-member LLC offers asset protection in Florida. It seems that it might be possible for a creditor to pierce a LLC and foreclosure on the shares, which may not be possible with a limited partnership interest. Given the current uncertainty with asset protection and LLC’s in Florida you should have your operating agreements reviewed to make sure that they are updated to include provisions that would not permit a creditor who has taken an interest in the LLC to vote or participate in the business decisions, is not guaranteed any distributions, and any moneys that would be provided to the original members who have creditor problems are use to purchase annuities for that member or are paid in the form of wages if that individual’s wages are protected from creditors