Florida Estate Planning Lawyer Blog

January 5, 2008

How are Creditors Handled with Florida Probate

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how creditors are dealt with in a Florida probate case.

Prior to commencement of probate proceedings, a creditor can file a caveat with the court. Upon publication of notice to creditors a creditor or other claimant may file a document called a “statement of claim” against the estate with the Clerk of the Circuit Court where the estate is being administered. This claim is generally required to be filed within the first three months of publication of a prescribed notice in a countywide newspaper. This three-month period is often referred to as the “non-claim period.” The personal representative or any other interested person may file an objection to the statement of claim, after which the claimant must file a separate independent lawsuit to pursue the claim.

January 4, 2008

What is a Reasonable Fee for Florida Probate?

by David M. Goldman

The Florida Bar has released consumer information on Florida Probate.

One of the most common questions is how fees are determined in a Florida probate case.

The personal representative, the attorney and other professionals whose services may be required in administering the estate (such as appraisers and accountants) are entitled by law to reasonable compensation.

January 3, 2008

Florida Probate FAQ by Florida Bar

by David M. Goldman

The Florida Bar has released consumer information on Florida Probate where they describe many of the issues related to Probate in Florida. They discuss the following:

1. WHAT IS PROBATE?

2. WHAT ARE PROBATE ASSETS?

3. WHY IS PROBATE NECESSARY?

January 2, 2008

Death Tax – Estate Tax Rates and Exemptions for 2008

by David M. Goldman

Florida Continues to have no State Death Tax. Only 24 states have some form of death tax as the state death tax credit has been phased out.

The Top Estate Tax rate for 2008 is 45% and is scheduled to remain at $45 percent through 2009. This estate tax rate applies to assets in excess of $1.5 million.

The 2008 Estate Tax Exemption is $2 Million dollars and is set to increase to $3.5 million dollars in 2009. Many believe there will be new legislation this year which could change the numbers in the future.

January 2, 2008

Avoiding Accidental Disinheritance with Florida Estate Planning

by David M. Goldman

Accidental disinheritance is a growing problem. It’s a problem, in part, because there are too many death-disposition instruments now that dispositions are slipping through the cracks to the wrong people.

Paul Rabalais wrote about this on Your Louisiana Estate Planning Blog where he describes some of the more common ways people are disinherited. He mentions several life events that cause unintended consequences.

1) Failing to update your will yearly.

2) Ineffective wills 3) Divorce 4) Remarriage 5) Conflicting disposition instruments.

January 1, 2008

Florida Estate Planning and the Importance of Beneficiary Desinations

by David M. Goldman

Often the first thing that comes to mind with Florida Estate Planning is a Florida will or Florida living trust. Although these are valuable documents they do not have any effect on the distribution of many assets.

We recommend that our Jacksonville residents make sure their beneficiary designations are updated as these control the distribution of many assets. When a Florida Living Trust is part of an estate plan, you can designate your trust to be the beneficiary of most assets. It is important to make sure that the trust is the proper beneficiary. With some assets like retirement plans, you may not want your trust to be the beneficiary as it can have adverse consequences when charities are named as beneficiaries of the trust.

Your beneficiaries need to be updated on a regular basis and in the event of a life event (birth, death, marriage, divorce…). We recommend naming contingent beneficiaries in these documents.

December 30, 2007

IRA Rollover and Estate Planning: Why you might not qualify?

by David M. Goldman

Starting January 1, 2008 every non-spouse designated beneficiary will have the option to rollover an inherited IRA and stretch distributions. To take advantage of this opportunity your Florida estate plan must be setup correctly to qualify for this rollover opportunity. You are not entitled to a rollover, you must prove you meet the technical legal requirements. Let’s take a look at why your family would not qualify for the new IRA rollover opportunity.

The IRS has very specific rules for how a trust can qualify as a see through trust and treated as a designated beneficiary. The top level bullet point requirements are:

The trust must be valid under state law;

December 29, 2007

Nursing Home Admission Agreements…Read the Fine Print!

by David M. Goldman

In Jacksonville Florida there are many Nursing homes. Some of them have very long agreements and some are very complex. You should review them carefully and make sure you look out for liberal guidelines regarding when a resident can be evicted, very restrictive visiting hours for family members, and requiring that a family member accept financial responsibility for the resident. These types of requirements may violate federal law; specifically, the Nursing Home Reform Act of 1987. This law is summarized by AARP

Other concerns I have touched on are the ability for someone with a durable power of attorney in Florida to bind the resident or heirs to using binding arbitration in future claims. You may want to have specific language in the durable power of attorney which prohibits the signing or agreement of a mandatory arbitration agreement on your behalf. You have the right to a trial by jury in the United States and may not want your agent acting under a Durable Power of Attorney to Waive your rights.

It is generally a good idea to have an Florida Elder Law Lawyer or Florida Estate Planning Lawyer review a nursing home agreement.

December 27, 2007

Florida Powers of Attorney (Part 7 FINANCIAL MANAGEMENT AND THE LIABILITY OF AN ATTORNEY-IN-FACT)

by David M. Goldman

What is “fiduciary responsibility?”
An attorney-in-fact is a fiduciary and as such has a duty to invest and manage the assets of the principal as a prudent investor. This standard requires the attorney-in-fact to exercise reasonable care and caution in managing the assets of the principal. The attorney-in-fact must apply this standard to the overall investments and not to one specific asset. If an attorney-in-fact possesses special financial skills or expertise, he or she has an obligation to use those skills. The attorney-in-fact should keep careful records. Everything the attorney-in- fact does for the principal should be written down, and the attorney-in-fact should keep all receipts and copies of all correspondence, and consider logging phone calls so if the attorney-in-fact is questioned, records are available.

This is the last part on Florida Powers of Attorney Click to review the others . If you need help with a Florida Power of Attorney contact a Jacksonville Florida Estate Planning Lawyer.

December 26, 2007

Florida Powers of Attorney (Part 6 TERMINATION OF THE POWER OF ATTORNEY)

by David M. Goldman

When does the attorney-in-fact’s authority under a Durable Power of Attorney terminate?

The authority of the attorney-in-fact of a Durable Power of Attorney automatically ends when one of three things happens: (1) the principal dies; (2) the principal revokes the Power of Attorney, or (3) when a court determines that the principal is totally or partially incapacitated and does not specifically provide that the Power of Attorney is to remain in force. In any of these three instances, the Durable Power of Attorney is terminated. If, after having knowledge of any of these events, a person continues to act as attorney-in-fact, he or she is acting without authority. The power to make health care decisions, however, is not terminated when a court determines that the principal is totally or partially incapacitated unless the court specifically terminates this power.

What is the procedure for a principal to revoke a Power of Attorney?