Florida Estate Planning Lawyer Blog

July 29, 2010

Second Life After Death

While video games have become increasingly realistic over the last few years, they still cannot compete with the virtual world reality of computer based Internet services. To some, SecondLife.com may seem like a game, but to others it really is a “second life.” Second Life is a website that allows users to interact with each other by downloading a software program. Each user creates an avatar that can resemble himself, a celebrity, or anyone they can imagine. All users interact, socialize, and even conduct business with each other in the same world known as “the grid.”

One of the unique abilities built into the software is a modeling tool that allows the user to build virtual objects in the virtual world. The terms of service guarantee that the users will retain all copyrights to the substances they design and create. With their digital rights management, the virtual community of Second Life generated approximately $55 million of real money last year. By having such a unique way to create an asset, the user must choose a unique way to protect it for heirs.

I would suggest a Digital Asset Trust because Second Life will only transfer an account when there is a relevant legal documentation. By setting the account up in the name of a trust, licenses and use restrictions will no longer apply to transfer of property to another. If you would like assistance in protecting your Second Life account and property, contact a Florida Estate Planning Lawyer today.

July 28, 2010

Mother Finds Comfort After Daughter’s Death Through Facebook

by David M. Goldman

In a recent TIME article written by Gaelle Faure, the tragedy of daughter’s death is told. Like many parents of teenagers and young adults, Pam Weiss has never had a social networking account of any kind. Many older generations have remained reluctant to create a Facebook or MySpace account due to their lack of technological expertise. However, any lack of expertise did not stop Weiss from turning to Facebook when her daughter died in a sledding accident back in 2007. Knowing that her daughter, a UCLA student, had an account with Facebook prompted Weiss to use the social network to find photos memorializing her daughter. Before long Weiss was reliving several memories her daughter shared with friends through the contacts Weiss made online.

Back in 2007, Facebook’s policy was to take down the profile of a deceased user 3 months after their death. Since that time, Facebook has amended their policy to allow loved ones a way of honoring the deceased. This policy sends the profile into a memorial state in which many features such as status updates are removed. No friends can be added, and only the friends of the deceased on the day of their death may view the profile. Facebook also seals the profile from any future log-in attempts but leaves the wall open for family and friends to pay their respects.

As the online presence of individuals continues to grow, more and more information that was once written on paper is stored digitally. To ensure these memories are not lost forever in cyberspace, you should take action now. The best option is create a Digital Asset Protection Trust that would incorporate your digital assets in your Florida Estate Plan. Permitting an experienced Florida Estate Planning Lawyer to help to achieve your goals will guarantee your digital assets are kept safe.

July 24, 2010

Know Where to Store Estate Planning Documents

by David M. Goldman

Since Florida Estate Planning Documents distribute the wealth you have accumulated over your life and provide your wishes in the event you become incapacitated, estate planning documents are some of the most important documents you will ever sign. Knowing where to keep these documents is imperative to ensuring the original copies are never damaged, lost, or forgotten over the years.

A couple of recommendations on where to keep your estate planning documents are a safety deposit box or a home safe. A safety deposit box is probably the most secure place to keep any documents and you can rest assured that the documents are protected from theft, fire, damage, tampering or loss. Banks provide top of the line security for those who seek the ultimate safe location for their estate planning documents.

In addition, storing your estate planning documents in a home safe that is waterproof and fireproof is a good alternative to a safety deposit box. However, storing the documents at home may not provide the same level of security as a bank safety deposit box because safes are always prone to thievery in the event your home is broken into.

July 23, 2010

Small Businesses Are Set to Collide With Estate Taxes in 2011

by David M. Goldman

Recently, I have written several blogs concerning the possible federal estate tax increase from zero to 55% in 2011. If Congress’s left and right representatives cannot come to an agreement, the exemption will end at $1 million. This means that for every individual who passes away, up to $1 million in assets may pass to their heirs free from estate taxes. While having one million dollars is a significant amount of money, $1 million in assets is something considerably different. Numerous small and family owned businesses that fall into the class above the $1 million limit would be hit hard by the estate tax.

Over the past few years many businesses have been split up and sold to pay the estate taxes. Much of this could have been avoided with proper estate planning. If nothing changes many businesses that are family-owned will most likely have to sell off the business because of a 55% federal estate tax rate. Many states have additional estate taxes that will be due which could raise the total tax to around 70%. Luckily Florida residents will not be subject to additional state estate taxes. For instance, suppose a family owned business has a net worth of $10 million. When the current owner dies the $10 million net worth of the company will pass to the estate and be taxed at 55% + any state estate taxes that may be due. This means that the heirs will have to pay the millions of dollars out of their own pocket or sell off the company. The same rationale is true for farm and ranch owners as well. A one thousand acre farm that has been in a family for many years could be worth millions of dollars. When the current owner dies, the farm will be subject to the same 55% estate tax requiring the heirs to sell off the property to pay the taxes.

With serious tax consequences on the horizon, estate planning has never been more important. The showdown between Republicans and Democrats on Capitol Hill on estate taxation does not show strong signs of reconciliation. If you are a small business owner or farm owner who would like more information on protecting your company contact a Florida Estate Planning Lawyer today. An attorney can help you reach your goal of keeping the business in the family and reducing the taxes through estate planning techniques.

July 22, 2010

Florida Asset Protection : LLC issues: Olmstead v. Federal Trade Commission

by David M. Goldman

The Supreme Court of Florida recently had a chance to consider the single member LLC and the charging order protections under Florida Law. As expected by many, the single member LLC is not afforded the protection that a multi member LLC can be under certain circumstances. If you are wanting to structure your business entities and assets to protect against future and unknown liabilities, you should discuss these with a Florida Asset Protection Attorney.
Here is what happened in this recent case. This is not our typical blog posting, but its very fact specific so we have decided to post a short summary of the case for those who want to look at the facts, issues, and holding of the court. If you want a copy of the full case, let me know and I can send it to you.
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July 22, 2010

Avoid Being Exploited Financially in Florida

by David M. Goldman

As we age, it is very common to lose some of the wits you had when you were younger. Due to the growing number of senior citizens that are falling victim to financial abuse, careful estate planning is a necessity while you are still fully competent. Financial abuse of the elderly usually occurs in a time when the person’s mental capacity is diminishing. Also, it is common that the senior can’t say no to someone who repeatedly requests to be included in the estate.

In a recent article by Eileen Ambrose, she provides an in depth analysis of this blight in our country. Arguably the most shocking statistic related to financial abuse of the elderly is, in approximately one-third of all cases, a family member of the victim is the person who takes advantage of the senior. This is the reason that it is essential for aging adults to create a complete estate plan while they remain fully competent. Protecting your assets is a complicated matter that should be handled by a Florida Estate Planning Lawyer . In addition to seeing an attorney, the following list is advice Ambrose shares in her article:

1) Choose a trustworthy agent to represent you who manages his or her own finances properly and is not a spendthrift.

2) Maintain control of assets refrain from including a child’s name in your a bank account.

July 21, 2010

Faith Based Estate Planning

by David M. Goldman

Faith and religion often underlie many decisions an individual makes in regards to their Florida Estate Plan. This realization prompted David A. Straus to write a book entitled Faith-Based Estate Planning: Our Values and Valuables. Straus’ book attempts lead the reader through the estate planning process, at all times keeping in mind their personal beliefs. The book focuses on how Estate Planning is not always about tax and probate avoidance as it is used to fulfill the planner’s final wishes.

Taking information from trade journals, magazines, book, websites, surveys and newspapers, Straus’ main goal is to provide a wealth of knowledge about faith to support those final wishes as desired. Health care, burial and resuscitation beliefs all fundamental beliefs based on faith and religion. For example, most Jewish and Eastern Orthodox practitioners believe it is a desecration of the body to be cremated or embalmed after death. These beliefs should be addressed in the estate plan so that everything goes according to your wishes.

Each religion addressed in Straus’ book is detailed with a geographical concentration, history, the number of practitioners, and integration of estate planning subject ideas. Furthermore, the book’s emphasis is on death rituals, philosophy of life, position in the afterlife and their effect on each religion’s perspective on investments and estate planning.

July 19, 2010

Contesting a Will in Florida

by David M. Goldman

Florida Will Contests:

Occasionally a family member or friend passes away with a Florida Will that gives less than expected to an heir of the decedent. This situation usually gives rise to an inquiry about a will contest. A will contest happens when the disgruntled heir challenges the will by suing the estate under some legal theory claiming the will is invalid. Will contests commonly happen when the testator attempts to leave a small amount to an estranged child or a large amount to someone who would not be expected to inherit under a Florida Will.

To guard against the potential of challenges to the will, you may see a No-Contest clause added by the testator. A no-contest clause is a provision of a will that penalizes the beneficiary who challenges the will, or the contestant. While these clauses may be valid in other states, Florida law specifically makes them unenforceable. According to the Florida Probate Code, “a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable.” Furthermore, the Florida Trust Code, as amended in 2007, addresses no-contest provisions by making them unenforceable in any trust instrument. This does not mean that they should not be considered as they may be enforceable if one changes which laws the documents will be interpreted under.

July 18, 2010

FBI finds another case of Foreclosure Fraud

by David M. Goldman

Stop Foreclosure Fraud An Indianapolis foreclosure attorney was recently sentenced in federal court to three years probation and almost of 300 hours of community service for defrauding Citifinancial of thousands of dollars through a foreclosure fraud scheme. While working for Citibank, the attorney was required to submit a bid at sheriff’s sale on foreclosed homes, sell the home through legitimate means and submit the proceeds of the sale to Citifinancial. Instead of following these proscribed procedures the attorney submitted inflated bids and had arrangements for family and friends to purchase the homes. The purchase price for the home made by his family and friends were for a few thousand dollars more than the Citifinancial minimum bid and the attorney would not send the profits to Citifinancial.

July 16, 2010

Update Intellectual Property in Estate Planning

by David M. Goldman

In today’s society, intellectual property rights are rapidly increasing for those individuals that are business savvy and artistically or scientifically talented. Intellectual property rights (aka intangible assets) include patents, copyrights, trademarks, and publicity rights. In most instances, intangible assets are obtained as a direct result of someone’s job, profession, or trade. With the vast expansion of the Internet, many new intangible assets have been acquired in the last 10 – 15 years. Therefore, the issues involved with these assets are continually evolving and the governing law is struggling to keep up.

The rules governing these intangible assets and the way they are treated when passed through an estate is anything but clear. There are a few key issues that should be addressed when intellectual property is incorporated into an estate. First, valuing the asset always poses a challenge, especially when the formula involves reducing the future earnings to present value. How to address current and future income from the asset is another key issue. Next, some intangible assets have a specific life for which the owner has exclusive rights. According to federal law, copyrights last for the life of the author plus 70 years. On the other hand, patent rights are divided into two categories with design patents receiving 14 years and utility patents receiving 20 years.

Furthermore, intellectual property creates a unique concern with the return of the Federal Estate Tax in 2011 and the looming effect on everyone with a slightly more than modest estate. For example, the executor of a best-selling author’s estate may be forced to sell the future publication rights of a book in order to cover estate taxes. The author may be uncomfortable with the thought that his unfinished work could be published once he is gone. Enhancing your estate with a life insurance trust can guard against these estate tax concerns.