Florida Estate Planning Lawyer Blog

June 10, 2010

Requirements for a Florida Qualified Disclaimer

In a recent article I discussed disclaimers, which are a refusal by a person to accept an interest in property. According to the Internal Revenue Code § 2518, the following is a list of requirements for a qualified disclaimer to be effective in Florida.

(1) A refusal is in writing,

(2) Such writing is received by the transferor of the interest, his legal representative, or the holder of the legal title to the property to which the interest relates not later than the date which is 9 months after the later of–

June 10, 2010

Disclaiming Inherited Property from a Florida Will or Trust

by David M. Goldman

Most people in today’s society would be happy to discover that they were being left an inheritance in a Florida Will . However, since inherited property under the estate laws of Florida is a gift, the beneficiary does not have to accept the inheritance. Although declining to accept a gift would seem odd to some people, there are a few reasons why it would be beneficial not to claim inherited property.

One reason why a person may not want to accept an estate gift is because the property may be undesirable. Property may become undesirable when there is a large debt owed on the property or significant maintenance would be required to sell the property. For example, an old abandoned gas station that was given to you in a will would probably not be worth taking because of the significant costs to modify the property and the taxes that could come with it.

Other reasons why someone would disclaim property are to prevent your creditors from taking the property, a feeling that it is wrong to benefit from someone’s death, and to reduce your tax burden, or it will only create additional estate taxes upon your death. While it may not be permissible to disclaim the property in all situations to avoid creditors, you should discuss your specific goals with a Jacksonville Estate Planning Lawyer as soon as possible because there are time limits on when a properly filed disclaimer can be done. Whatever your reason may be for not wanting the gift it is important to know a disclaimer must comply with federal law. Contact a Florida Estate Planning Lawyer who can assist you in the process and insure that the disclaimer is done correctly and complies with the appropriate laws of the jurisdiction.

June 3, 2010

Florida Elective Share of a Spouse

by David M. Goldman

Under ideal circumstances a husband and wife will agree to what the surviving spouse should receive when the other dies. However, many times when this doesn’t happen the surviving spouse receives a portion of the estate they are unsatisfied with. For example, an elderly couple who marries later in life may want to provide their grandchildren, so they leave 90% of their estate to them and 10% to their wife. In Florida, if the wife is unsatisfied with these conditions, she may make a claim for an elective share.

An elective share is statutorily defined as a right of the surviving spouse to a specific portion of the estate when he/she isn’t satisfied with the amount received under a Florida will. Taking a 30% elective share of the estate is something a surviving spouse has a right to in Florida. However, the elective share does not overcome a pre or post nuptial agreement between the husband and wife.

Many times the elective share consists of more than just the net probate estate. The assets subject to the elective share can be different than those subject to a probate and it is a complicated process to calculate what assets should be included in a Florida Elective Share. Therefore, the surviving spouse will receive 30% of the elective estate which include other property interests that pass outside of probate. To discuss what property is subject to the elective share and what amount may be due to you contact a Florida Estate Planning Lawyer or Florida Family Law Attorney to assist in the estate planning process.

June 2, 2010

Florida Estate Taxes: Past, Present, and Future

by David M. Goldman

Florida has no Estate Taxes, but there may still be Federal Estate taxes due. Before the distribution of assets of the deceased’s estate can occur, the federal government has the ability to take their share of the estate. The Federal Estate tax has been repealed for the year 2010 but in past years the tax has been applied to every U.S. citizen who died leaving assets to be distributed to their heirs. – This does not mean no taxes will be due for individuals who die in 2010. Remember the law does not allow an unlimited amount of capital gains like in previous years. There is not an unlimited amount of capital gains like in 2009. This means even with an unlimited estate tax exemption, some people will pay more in estate taxes under 2010 than under previous years.

In past years the estate tax was applied only on funds that exceeded the net estate amount set by Congress. For example, if an individual died in 2009 leaving a net estate of $3.5 million then the federal government would not have taxed the estate because the net estate did not exceed the amount exempted by Congress. However, if the net estate would have been $4 million instead, the estate would be taxed at a rate of 45% on the amount over $3.5 million. So in this case the Federal Estate tax liability would be ($500,000 x 45%) which comes out to $225,000.

Currently, there is no plan to repeal the Estate Tax exemption for 2011. Before the 2010 repeal, Congress had increased the tax exemption given to individuals who died and whose net estate was distributed to $3.5 million. However, the current plan for 2011 is to have a tax exemption of $1 million and a tax rate of 55%. If the current plan remains in effect it will place a much greater tax liability on assets and funds that are distributed out of the net estate of those who die next year.

June 1, 2010

Florida Trusts: Who is involved and what is the Grantor, Trustee, and Beneficiary?

by David M. Goldman

A valid Florida Living Trust or Florida Revocable Trust includes three typical positions that most individuals can occupy.

Each Trust should have a grantor, trustee and beneficiary at the time the Florida Revocable Trust is created. The grantor, sometimes called the settlor, is the person who originally sets up the trust and usually supplies the initial trust property. A trustee is the manager of the trust, but does not receive any benefits of the trust (as the trustee). The Trustee has a responsibility and duty to take care of the trust assets for the beneficiary. The original beneficiary is typically the grantor, but a trust must also designate a beneficiary who is different than the grantor in the event of the grantor’s death. This beneficiary is also the person who will receive the benefit of the trust and receives the benefits of the trust after the death of the grantor.

Although there are three different positions, one person can serve in more than one capacity. However, there should be some separation of the legal title and equitable title. This can be done by having more than one beneficiary or more than one trustee. Otherwise, the trust purpose of holding property for the benefit of another would be defeated. As long as there are at least two people named in the Florida Trust, a separation of legal and equitable title has occurred.

May 28, 2010

Digital Asset Trust Lawyer: Digital Death Day

by David M. Goldman

Digital Death Day is the idea that when we die physically, we may want to decide what happens to our digital profiles and accounts, whether that entails deleting or claiming the information. In the physical world individuals tend to leave paper trials so that their heirs may find important documents, but in the digital world the paper trial vanishes. Whether assets are economically or sentimentally valuable assets, they may be lost when we die.

Recently, a conference was held in California which discussed some of the issues involved with digital assets and what becomes of them when we die. Participants included attorneys, funeral directors, hospice services, obituary columnists and memorial services. In addition, representatives from many digital asset services offering digital afterlife management attended including Entrustet, Legacy Locker, online-legacy.com, digitaldeath.eu, and digitalestateplanning.com.

As the digital environment grows and the area of law develops, many people will seek to ensure that their legacy remains after they are gone. In the future individuals who use a computer to store information should utilize a Digital Asset Protection Trust for all their digital assets to pass to their heirs. Consult your Florida Digital Estate Planning Lawyer for guidance on how to protect and distribute your digital assets and Digital Asset Protection before your digital death day.

May 24, 2010

Can a Florida Will/Trust Disinherit a Child for Religious Reasons?

by David M. Goldman

In many cultures it is important to parents that their children marry into their religion. Orthodox Jews often disinherit their children and will even stop speaking to them if they marry outside the Jewish religion. While public policy will not permit a provision in a Florida Will or Florida Revocable Trust or prevent a person from getting married, it is ok to withhold a inheritance from a child or relative if they marry outside the religion. This type of provision needs to be written carefully so that it does not violate Florida state law or public policy.

If the provision is written incorrectly it will be stricken from the Florida Will or Florida Revocable Trust.

If you want to provide provisions in your Florida Estate Planning Documents to encourage certain behaviors, you should contact a Florida Estate Planning Lawyer to discuss your desires and help you create a plan to achieve your desired result.

May 10, 2010

Inherited IRA Not Protected from Creditors in Florida Second DCA case rules

by David M. Goldman

In the case of Robertson v. Deeb 16 So.3d 936 (FL. Dist. Ct. App. 2 DCA 2009) the court held that an inherited IRA does not have the same creditor protection that an individual’s IRA by concluding that F.S. 222.21(2)(a) “does not apply to inherited IRAs because the plain language of that section references only the original ‘fund or account’ and the tax consequences of inherited IRAs render them completely separate funds or accounts.”

May 7, 2010

Florida – Do it Yourself Estate Planning goes bad

by David M. Goldman

It has been a while since I updated my Do it yourself estate planning mistakes but I wanted to point you to some of the previous articles on the unintended consequences that can occur when individuals and family members use fill in the blank forms that are not customized for their specific family situation.

Some other examples of Do it your self wills and bad news are covered in my articles listed below

Do it Yourself Wills? More bad news and Do it Yourself Wills? a Good Idea or Not?

Do it yourself Estate Planning: Bad News Part 3

May 5, 2010

How to Defend a Foreclosure in Jacksonville

by David M. Goldman

In Jacksonville a Florida Foreclosure Lawyer uses many laws that regulate the mortgage lending process to defend your Jacksonville Foreclosure. The first step is to determine what laws and issues apply to your case by doing a careful analysis of your specific circumstances.

When you talk with a Jacksonville Foreclosure Lawyers its important to determine your objectives from the start and make sure that if they are met, you will be able to afford the home and are just not delaying the inevitable. Do you want to keep the home, reduce penalties, clear your credit, or simply dispose of the home with as little damage to you as possible?

Its important to know whether your current loan was the original loan or a later refinance of the original loan and the date the loan was taken out. There are certain remedies that expire and before perusing a remedy it is important to know whether it will still be available.