Florida Estate Planning Lawyer Blog

October 30, 2008

Who can be a Florida personal representative?

In Florida what happens to a person’s assets if they die without a will? Under Florida probate law, if a person dies without leaving a will the decedent’s estate is dealt with under Florida’s Intestate statutes. Even if a Florida resident dies intestate, the decedent’s assets will be transferred to their family members. Only when there are no family members will the assets escheat to the state or be transferred to the state. Generally Florida’s intestate statutes go to great lengths to find a relative to leave a decedent’s assets to.

In Florida the decision to create Florida Will that appoints a personal representative to administer your probate assets is a wise decision. It is important to consider who can be a personal representative. With Florida probate law, the personal representative can be an individual, bank or a trust company. For an individual to act as a representative they must be legal residents of the state of Florida or a relative or spouse of a sibling, parent, or child. A person who is not a legal resident and is not closely related to the decedent cannot act as an executor or a personal representative of the decedent’s estate. In addition a trust company that is incorporated under Florida laws or which is a bank or lending agency and is licensed to extend fiduciary lending in the state of Florida can also act as a personal representative of a Florida probate.

Update:

October 30, 2008

Florida probate law and dying without a will

by David M. Goldman

In Florida what happens to persons assets if they die without a will? Under Florida probate law, if a person dies without leaving a will the decedent’s estate is dealt with under Florida’s Intestate statutes. Even if a Florida resident dies in intestate, the decedent’s assets will be transferred to their family members. Only if there are no family members will the assets escheat to the state or be transferred to the state. Generally Florida’s intestate statutes go to great lengths to find a relative to leave a decedent’s assets to.

Update:
Jacksonville Probate Lawyer, David Goldman has put together a Florida Probate Handbook that is being offered free to readers and visitors of his websites. If you would like a copy, visit the Free Florida Probate Handbook web page, fill out the form, and one will be sent to you within 24 hours by email.

October 29, 2008

Who presides in matters of Florida probate?

by David M. Goldman

When a decedent’s assets go into probate in Florida the Florida Probate Case will be in the county court where the decedent maintained his or her domicile.

Pursuant to Florida probate law a judge will normally decide and rule on the validity of a will. The judge will also rule on who the heirs are should there be a question or dispute as to the validity of a decedent’s heirs.

If the decedent appointed a personal representative to administer the Florida will, the judge will determine if the representative is qualified administer the estate. If there are no objections and the judge determines that the representative qualified, the judge will issue letters of administration. These letters of administration allow the executor or personal representative to administer the will. Any issues or conflicts that arise during the representative’s administration will be ruled on by the circuit court judge.

October 28, 2008

Florida Will leaves everything to ex wife

by David M. Goldman

In Florida, if you were married when a will was created by your spouse, a subsequent divorce will treat you as predeceasing your spouse in most cases. Even if you were living with your ex spouse, engaged, or had a new wedding date planned, a will executed before the divorce would not be valid in regards to anything devised from a person to his or her ex-spouse.

It is possible to talk with the family and if they agree, the beneficiaries can work together with the ex-spouse to provide assets after the death. The ex-spouse has no legal right to receive assets but it can be negotiated in a friendly arrangement.

If you are an ex-spouse who was friendly with their ex, contact a Florida Estate Planning Lawyer to discuss your options.

October 27, 2008

Using Quicken to prepare a trust: The good, the bad, and ugly!

by David M. Goldman

I recently receive a copy of Quicken Willmaker 2009. I have previously written about many articles about the unintended results that occur with Do It yourself and Free Estate Planning Documents created by individuals without the advice of counsel and the problems with online document preparation services like LegalZoom and RocketLawyer.

I decided to try out a few of the documents in Quicken to see if they had improved the quality and accuracy of their Florida documents. Last week I wrote about problem with the Quicken Willmaker 2009 Durable Power of Attorney. This week I will be looking a the Revocable Living Trust. I have previously written about the many problems in using Quicken to create a Firearms Trust but for this article I will be focusing on the typical issues with regular estate planning and living trusts.

1. No free updates and old language, in order to keep your trust up to date, you need to purchase the software every year and hope they have dealt with changes in your state laws. Quicken seems to be slow at incorporating small or significant changes in the law. The changes in the new trust code from Florida in the years 2006 and 2007 have not been incorporated into the software. Quicken does not let you know what years statutes its language is based upon. Quicken states that when their users report problems they try to fix the program. Unfortunately, their users are not lawyers, and their users never find out about the problems. Their family may find problems when it is to late to make changes, but they have no way to ask, nor to they attempt to ask the beneficiaries to report problems.

October 16, 2008

Free Florida Durable Power of Attorney and related problems – Quicken 2009 Florida Problems (part 1)

by David M. Goldman

I recently receive a copy of Quicken Willmaker 2009. I have previously written about many articles about the unintended results that occur with Do It yourself and Free Estate Planning Documents created by individuals without the advice of councel and the problems with online document preparation services like LegalZoom and RocketLawyer.

I decided to try out a few of the documents in Quicken to see if they had improved the quality and accuracy of their Florida documents.

Problems and issues I encountered with the Quicken Durable Power of Attorney.

October 15, 2008

Charitable IRA rollovers are back

by David M. Goldman

The provision allowing IRA owners over age 70 ½ to transfer up to $100,000 of their IRA directly to charity has been RETROACTIVELY extended through the end of 2009 (as if it never expired).

This provision was part of the massive bailout legislation officially known as the “Emergency Economic Stabilization, Energy Improvement and Extension, and Tax Extenders and AMT Relief Acts of 2008”

It is so far being referred to in the short version as The “2008 Economic Stabilization Act”

October 14, 2008

NEW FDIC Rules for Inter Vivos Trust Accounts

by David M. Goldman

On September 26, 2008, the FDIC issued interim final regulations entitled Deposit Insurance Regulations; Living Trust Accounts. The interim rules amend 12 CFR 330 were effective immediately.

The New regulations make it much easier to determine coverage when the bank has less than $500,000 under the trust and trustee’s accounts:

The FDIC’s main goal in implementing these revisions is to make the rules easier to understand and apply, without decreasing coverage currently available for revocable trust account owners.

This interim rule will result in faster deposit insurance determinations after depository institution closings and will help improve public confidence in the banking system. The rule eliminates the concept of qualifying beneficiaries and for account owners with revocable trust accounts totaling no more than $500,000, coverage will be determined without regard to the beneficial interest of each beneficiary in the trust.

October 13, 2008

Factors for Undue Influence in a Florida Will and Inter Vivos Transfers

by David M. Goldman

In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court stated to raise the presumption of undue influence, a plaintiff must show a confidential relationship between the donor and the donee and active procurement of the gift. Because courts have found that a confidential relationship exists in most relationships, the real issue comes down to active procurement of the gift. Recently Patrick Lannon wrote a summary of case law on the topic for the Florida Bar journal. Carpenter gives a list of seven factors of active procurement of a will, the:

1) presence of the beneficiary at the execution of the will;

2) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;

3) recommendation by the beneficiary of an attorney to draw the will;

October 7, 2008

How to Find a Florida Probate Attorney

by David M. Goldman

How do you find a Florida probate Attorney?

It is important to look for an attorney within the state where the decedent was domiciled at the time of their death.

The type of lawyer that should be used will depend on what the case will involve.