Florida Estate Planning Lawyer Blog

August 19, 2010

Lost Wills in Florida Require Live Witnesses

A lost Florida Will is a will that was lost or destroyed without the decedent’s knowledge or consent and without his or her intent to revoke. The original Florida Will of a testator can be revoked in a number of ways but the individual must have the intent to revoke the will. When the original will of the decedent cannot be located after her death, it is presumed that the will was destroyed with the intent to revoke it. Overcoming this presumption in Florida requires the proponent of a lost will to carry the burden of introducing competent and substantial evidence.

In the recent case Brennan v. Estate of Brennan, the issue addressed by the 5th District Court of Appeals was whether affidavits alone are enough to prove a lost will or whether live witness testimony is required. Relying on a similar issue addressed by the Florida Supreme Court and the 3rd DCA, the 5th DCA determined that in order for a lost will to be admitted to probate Fla. Stat. § 733.207 requires testimony of one disinterested witness and a “correct copy” of the will, or testimony from two disinterested witnesses. Affidavits merely swearing the witnesses saw the decedent execute the lost will and that witness signed the will are insufficient to fulfill this requirement.

From this decision it is apparent that a draft of the will or some evidence be provided for admission to the probate court and depending on whether a “correct copy” of the will is offered, the testimony of one or two disinterested witnesses. Florida Probate issues are anything but simple so if you feel the need for assistance don’t hesitate to contact a Florida Probate lawyer or Florida Estate Planning Lawyer. If you are considering a Florida Will modification, it may be wise to do a full disclosure to all beneficiaries and those close to you because it will provide peace knowing your final wishes have been acknowledged.

August 11, 2010

Insolvent Estates: Who Gets Paid First

by David M. Goldman

Whether a death is expected or unexpected, the deceased will probably die with some outstanding debts. It is the responsibility of the estate of the decedent to pay whatever outstanding debts are owed. If you are wondering whether a debt owed by a recently deceased person is collectible, a probate judge will make that decision for you under Florida Statutes. Normally, tax debts are collected first followed by probate fees and all other debts including mortgages, account payables and credit card bills.

In order to pay the remaining debts the executor of the estate will use estate assets, which may require selling off illiquid portions of the estate to create funds to pay the debts. However, if there are not enough assets in the estate to cover all the debts then you may be left wanting. A creditor must file a claim with the estate within a fixed date after the death of the debtor. Therefore, you will go onto a list of creditors to be paid if you meet this deadline. A creditor will always be paid before a beneficiary unless the beneficiary also can make a claim as a creditor. As a result, if an individual leaves their estate insolvent, creditors will end up with their pockets full while your beneficiaries end up with nothing.

With an economy still slow to recover, more and more estates are left insolvent. A Florida Estate Planning Lawyer or Jacksonville Estate Planning Lawyer may be able to assist you in creating an Florida Estate Plan that can protect assets from some types of creditors and allow your heirs to receive a larger portion of your estate. If you would like a Free Florida Probate Handbook, let us know

August 10, 2010

Asset Protection: IRA’s and other Retirement Accounts

by David M. Goldman

In a recent article by Kelly Greene of the Wall Street Journal, she explains methods in which individuals can protect their retirement accounts. Over an individual’s lifetime an IRA (Individual Retirement Account) can accrue hundreds of thousands, or even millions of dollars. There is a high possibility that these retirement accounts will have significant assets left in them when you pass away. One of the main goals of Florida Estate Planning is to make certain your hard earned money is spent according to your final wishes. In order to control how quickly your children or heirs can spend their inheritance, most individuals are led to trust documents.

In a ruling last year, a Florida State Court found that inherited IRAs are not protected from creditors in civil court cases, with the exception of bankruptcy proceedings. Consequently, it is advisable to create an IRA trust where the account holder can name one or more trusts as the retirement account beneficiary instead of leaving the IRA outright to an heir where it could be subject to the claims of their creditors. Not only do you control how your retirement account is spent, but also with this type of Florida Estate Planning you can receive tax-free growth on the funds. Forming an IRA Trust is a complicated process therefore if you require any assistance contact a Florida Estate Planning Lawyer.

August 6, 2010

Updating Life Insurance Beneficiaries Can Be Easy for Florida Families

by David M. Goldman

Whether you want to completely alter the beneficiaries of your life insurance policy or simply add contingent beneficiaries, the process is not all that difficult. However, there are some common mistakes that occur which can result in unpredictable situations. An amendment to a will or trust document cannot change the beneficiaries under the policy. Since an amendment to a Florida Will or Florida Revocable Trust usually requires the assistance of a Florida Estate Planning Lawyer, while you are there ask about the life insurance policy. The attorney can also offer advice and recommend who would be a good beneficiary to fit your particular situation.

Once you are ready to get started, you will need all required information, such as the beneficiary’s name, mailing address, date of birth, Social Security Number, contact number and relationship to you. Naming a trust as a beneficiary entails knowing the complete name of the trust and the current trustee’s name and address. Before contacting a life insurance company representative, look up the company’s website because many companies allow you to make changes to your beneficiaries over the Internet. Most will at least have forms that you can print and fill out. Be sure to comply with all rules on the forms for witnessing and notarizing.

Finally, once you have completed all necessary forms, make copies of the documents and then mail them to the address provided by the insurance company. To avoid disputes, notify all original beneficiaries to let them know they are no longer part of the policy. If you would like further assistance modifying your life insurance beneficiaries or creating a new policy, seek help from a Florida Estate Planning Lawyer.

August 5, 2010

Scam Targets the Elderly in Florida

by David M. Goldman

align=”left” style=”margin-right: 5px;”Seniors Citizens in Florida are the latest to fall victim to the scam dubbed the “Grandparent Scam.” An article in the South Florida Sun-Sentinel details how grandparents are scammed when they first receive a phone call from someone pretending to be their grandchild.

The fake grandchild then informs the grandparent that they are in legal trouble and need money to get bailed out of jail. Later, they give detailed instructions on how to wire money and where the money should be wired. Usually the scammers will use a bank account in another country as the place to wire the money to hide their money trail.

Seniors should not be fooled if they seem to know a lot about your grandchild and your family history. With the boom of social networking websites, many family secrets that you thought were private can end up in the personal history of a grandchild. Look for them to request you keep the transfer confidential as this could tip you off that the call is a scam. Also, it is probably in the grandchild’s best interest to notify their parent of the call because they have the ability to verify their child’s legal trouble.

August 4, 2010

Florida Supplemental Needs Trust

by David M. Goldman

A Florida Supplemental Needs Trust (SNT), also known as Florida Special Needs Trust, is a unique trust designed to benefit an individual with a disability. Supplemental Needs Trusts can be broken down into two categories, third party and self settled. In a well-executed SNT, an unlimited amount of assets can be placed in the trust for the benefit of a disabled person without jeopardizing their qualification for government benefits. These trusts are designed to provide for the extra care and costs above that which governmental benefits supply.

The self settled, or self created, supplemental needs trust has been officially recognized by Congress to benefit individuals under the age of 65, who have a physical or mental disability.

When creating a self settled SNT it is important to know that any assets remaining in the trust at the death of the disabled beneficiary will be used to reimburse the state for Medicaid benefits paid on behalf of the beneficiary. If there is a balance left over it will be distributed to the remainder beneficiaries identified in the trust document.

August 3, 2010

Estate Planning Brings Relief

by David M. Goldman

Planning for your own death may appear morbid to some people, but the knowing your financial affairs are in order brings reassurance. By acknowledging that death will eventually happen to everyone, the estate planning process can proceed. If you suddenly become ill or are diagnosed with a terminal condition, would you really want to have to deal with additional unwanted stress? Waiting until the end can bring this stress on you and your family at a time when you could be fulfilling your bucket list.

In a recent Market Watch article by Chuck Jaffe, the author’s reluctant sister-in-law had to be taken “kicking and screaming” to meet with estate planning lawyers with the his brother. She believed that by remaining ignorant to the possibility of death or illness would lessen the likelihood of those things happening. Unfortunately, two years after the meeting with lawyers her husband was diagnosed with a rare disease that was incurable. Jaffe shared the story of his brother upon his insistence that he tell the life lesson he learned in his final days. This important lesson to share with the world was that taking care of the important things when your days are numbered should not include estate planning. Jaffe’s brother believed it was a blessing to know that as his time approached, he didn’t need to worry one minute about the estate planning documents.

Focusing on death while you are alive and healthy was an important point in this article. Jaffe’s brother believed “focusing on death when you are dying” would be unimaginable. With these life lessons learned, imagine all the time and stress that can be avoided with estate planning. A Florida Estate Planning Lawyer can help you with your end of life decisions. Whether that time is now or in years in the future, remember the life lessons learned from this story.

August 2, 2010

Estate Planning and Commercial Services

by David M. Goldman

Estate planning for Digital Assets is a topic that was covered in a two part article by Oregon Estate Planning Attorney on his Wealth Law blog. In the second part of his article Estate Planning and “Virtual Assets” – Part 2 Michael discusses the importance of determining who should receive your virtual assets and cautions readers in the use of commercial services to hold your virtual assets because of the risk of loss associated with the improper storage or release of the assets to others.

While these are valid points, a bigger concern in my mind is that most of these commercial services appear to violate the the terms of the licenses by allowing others to use your accounts after your death and potentially create liability to your estate. The Digital Asset Protection Trust is the only solution that appears to resolve the legal issues and deal with digital assets correctly. To create a Digital Asset Protection Trust contact a Florida Estate Planning Lawyer to discuss your circumstances.

August 1, 2010

Is a Virtual Asset Instruction Letter Enough to Protect Digital Assets?

by David M. Goldman

Everyday there is becoming an increasing need for Digital Asset protection as more and more digital assets are created. In Estate Planning and “Virtual Assets” – Part 1, a recent article written by Washington attorney Michael Walker, he discusses digital assets and recommends doing two things to protect your digital afterlife. First, he recommends integrating digital assets, or “virtual” assets, into your estate plan. By choosing a trustworthy representative for your estate, he suggests this will properly integrate the assets into the estate. Next, Walker proposes creating a virtual asset instruction letter (or VAIL) that will list all of your online accounts and assets. Included in this list will be the web addresses, user names, and passwords to give your designated representative access these accounts.

While it is important to include these assets in an estate plan, simply choosing a dependable and trustworthy representative may not be enough to secure your digital assets after you are gone. Even with a VAIL list, digital assets may be lost if the username/password is changed. Additionally, a VAIL does not resolve the problem that digital assets are expiring licenses. The best solution to this problem is to create a Digital Asset Protection Trust that will form the accounts in the name of a trust so that when you die, the entity that owns the license is still in existence. For more information on protecting Digital Assets, consult your Florida Digital Asset Trust Lawyer for guidance before your digital death day.

July 30, 2010

New Study: Asians Have Increased Estate Planning Awareness

by David M. Goldman

In a recent article published in the New York Times, Sonia Kolesnikov-Jessop writes that Asians are paying more attention to inheritance planning. With a vast number of first generation wealthy Asians getting older, many heirs find themselves in court fighting over their parents’ estates. In the article, a Singaporean businessman explained that death was never talked about for sensitive and superstitious reasons. The second generation, having already experienced the uncertainty of estate court battles, is much more willing to talk about estate planning with their beneficiaries.

Due to the strong family values in Asia, individuals are planning because they feel obligated to do so. According to a study, people between the ages of 30 and 40 with a net worth of at least $1 million are more likely to do estate planning than Westerners of the same group. However, a similar survey showed that only 10% of first generation Asians with a net worth of at least $1 million had thought about inheritance planning. The same study found that Americans are more motivated to plan due to the high estate taxes that face wealthy estates. China and other Asian countries do not have a tax similar to the U.S. estate tax.

Increasing awareness of the importance of estate planning is essential, not only for Asian countries, but also here in the Florida. With the potential for a federal estate tax level not seen in years, more Floridians than ever before could be subject to the estate tax. Planning your estate with a Florida Estate Planning Lawyer can potentially avoid probate court and taxes.