Florida Estate Planning Lawyer Blog

May 5, 2009

Efforts to Avoid Probate Can Cause Problems

In Florida all sorts of clerks, customer service people, insurance sales people, brokers, account managers, and other employees of financial institutions give customers advice about how to title accounts and name beneficiaries. In an effort to avoid probate, these seemingly harmless changes can cause many problems with estate plans.

Most new account forms at financial institutions ask you to name a beneficiary. This does not have to be completed and sometimes you are better off to leave it blank than to fill in a name or attempt to name a proper beneficiary.

Often when filling out beneficiary designations people do not understand how a share of the assets will be treated if that person predeceases them. Will the share go to their descendants or to other named beneficiaries and is that what was intended.

May 4, 2009

Abuse of Florida Durable Power of Attorney

by David M. Goldman

Recently we have begun seeing more cases involving agents who abuse their power of attorney in order to benefit themselves.

Most people do not realize that once they have become an agent for an individual, their duty is to act in the best interest of the individual and not for their own benefit. Sometimes agents make gifts to themselves or change the way bank or stock accounts are title so that the become the beneficiary upon the death of the individual. These actions are violations of the agents fiduciary duty and self dealing. Often what is done interferes with someone’s right to an expectancy as a beneficiary or owner of an account.

In addition to creating liability to the beneficiary or the decedent’s estate, in Florida such actions can also create criminal liability under Florida’s Elder Abuse Statutes. If you have been accused of actions like these it is important to coordinate your defense with a Jacksonville Criminal Defense Lawyer who is familiar with Florida Abuse of the Elderly.

April 28, 2009

Swine Flu and Estate Planning

by David M. Goldman

Today a client of mine in Mexico contacted me about the transfer of their membership interest in an LLC upon their death. He had recently been told he had the “Pig Flu” or Swine Flu as we call it in the United States. Hopefully his case is not bad and he will make a full recovery.

His question was simple and perhaps the answer may help others so I am writing about it. He wanted to know whether his membership interest would become his business partners upon his death. Generally a business interest will transfer upon death by a will or trust and not have a payable on death designation. While it would be possible to create a payable on death designation on a small business interest it is not very common. As a result I suggested that the simplest way to deal with the transfer of his interest upon his death would be to do so with a will or other estate planning documents.

Every year people unexpectedly die from regular cases of the flu or other illnesses. Many individuals make changes to their estate planning documents when there are significant changes in their life such as a birth, death, child, move, major financial change. Perhaps the Swine Flu should be a wake up call for the majority of Americans who have no estate planning documents. With out Florida Estate Planning Documents the state of Florida will decide who receives your assets and who would raise your minor children. To review your Florida Estate Planning Documents Contact a Jacksonville Estate Planning Lawyer

April 27, 2009

Keeping Guardianship and Beneficiary Designations Updated

by David M. Goldman

There are many times to update a Florida Will. Most updates are centered around significant life events like a wedding, divorce, new child, death in the family, or even moving to a new state.

Two of the most important things to change in a will are the designations for guardians of minor children and the beneficiaries of your estate or heirs. While Florida law provides that an ex spouse will not be an heir under a will that was created prior to the divorce, the law is not so kind when it comes to assets that do not pass through the probate system such as life insurance or retirement accounts.

All to often Florida Estate Planning Lawyers see cases of Florida Probate where a 401K or other contractual asset was never updated after a divorce. Because these assets are often designed to replace income that is lost, an improper designation can create a financial hardship for the decedent’s family.

April 22, 2009

Helmsley estate: $136M to charity, $1M to dogs

by David M. Goldman

Helmsey’s estate made 53 charitable grants this week. Most of the money was given to hospitals and for medical research. Only 1 Million was given to 10 animal and dog charities equally. These donations came after a New York judge ruled that the trustees for the Helmsley Charitable trust has the sole authority to decide which charities would benefit from the trust.

April 20, 2009

Faith-Based Estate Planning

by David M. Goldman

David A. Atraus, a Nevada Estate Planning Lawyer, has published a book titled Faith-Based Estate Planning: Our Values and Valuables. The book was written after contacting hundreds of religious clergy throughout the nation, and took him several years to write.

Upon a first glance, I was very impressed. The book covers Estate Planning issues like living trusts, wills, medical directives, long-term care insurance and life insurance on many religions including Baha’i, Buddhism, Christianity (10 denominations and branches), and 12 more religions from Roman Catholic to Judaism to Zoroastrianism.

It looks very comprehensive and I expect to write more on the book in the future.

April 15, 2009

Probate and Guardianship fees may increase by thousands in Florida

by David M. Goldman

SB 1718 & HB 5117 dealing with funding the court would create new filing fees in probate and Guardianship cases that would range from $1,000 to $5,000, depending on the value of the estate of the person being protected.

The increase in filing fees is linked to probate cases but includes all guardianship proceedings. In addition to the current fee of $280, the additional fees will be tied to the person’s estate. Depending on the value of the estate and whether the House or Senate version of the legislation prevails, the additional cost could range from $1,000, to as high as $5,000 if the person being cared for has a large estate.

If you have been waiting to start a Florida Probate or Guardianship proceeding, now may be the time start before the fees increase.

April 14, 2009

Florida Probate and Letters of Administration

by David M. Goldman

Often when someone dies, they have money in a bank account that does not have a joint owner or a payable on death designation (POD). These banks often tell family members that they need “Letters of Administration” to distribute the funds. While this may be trust in some cases, most Florida Probate Courts will only issue Letters of Administration for Formal Probate Cases. If the decedent has been dead for more than 2 years or the assets subject to probate are less than $75,000 then you qualify under the Florida Probate code for a abbreviated probate process. This small estate administration is called Florida Summary Administration.

Once the court enters an order of summary administration, the court order can be used to collect and distribute the money in a bank account or other assets of the decedent.

Even if you qualify for the summary administration there may be reasons why a formal administration is preferable. You should discuss all the issue dealing with the assets, actions of the beneficiaries, and actions of fiduciaries while the decedent was alive with a Florida Probate Attorney to discuss which options make the most sense for you and your family.

April 14, 2009

Digital Assets and Estate Planning

by David M. Goldman

Back in 2006 and 2007 I wrote several articles on Digital Assets and Estate Planning. Now that we are in 2009, there is even more need for Digital Asset protection in your Florida Estate Planning Documents.

Digital assets are those that expire upon your death and are often associated with Email and website accounts. Most of these accounts are not actual property. They are licenses and these licenses generally expire upon your death. A new company Legacy Locker is attempting to solve this problem through a web based tool that stores account login and passwords and purports to transfer this information to the designated beneficiary upon your death or incapacity.

While their software is a good idea it has some issues in that it does not resolve the fact that the license expires upon the death of the person who creates it. One solution to this problem is to create the accounts in the name of a trust of business so that when you die, the entity that owns the license is still in existence. There are other companies that do similar things such as DeathSwitch.com

April 13, 2009

Stop Florida Annuity Scammers from selling Life insurance as an investment

by David M. Goldman

The Palm Beach Post.com has an article which describes a recent trend in Annuities in which scammers sell and churn an insurance policy sold as an annuity in which there are very high surrender fees and limited access to the money for 10 or more years. These policies are being sold to 85 year old individuals as investments when they cannot touch the money for more than 10 years and have very high surrender fees if they do.

Most reputable annuity policies, they say, allow access to the money after just 90 days and require no more than a 5 percent surrender fee, and nothing after five years.

Senate Bill 2520 and House Bill 141 seek to protect Floridians who are 65 and over from annuity scam artists by easing access to the assets and decreasing excessive withdrawal payments. The legislation says that “senior consumers diagnosed as having a terminal illness that will result in death within two years after the diagnosis” could “withdraw all purchase payments from an annuity contract prior to the expiration of the surrender charge period without penalty.”