Asset Protection

November 9, 2011

More Estates Need Estate Tax Returns in 2010

Jacksonville Probate Lawyer IRS Form 706 for Estate Tax Return While many of you may be thinking that fewer Florida Probate cases will involve federal estate tax returns in 2011, the opposite is actually true. It seems with the new $5 Million estate tax exemption that most estates will not need to file a tax return. What most people do not realize is that by failing to file an estate tax return in 2010 (Form 706) the spouse of a decedent will lose the portability of the unused portion of the estate tax exemption that is available to the surviving spouse. Form 706 was just released by the IRS and if you know someone who passed away in 2011, you should have them ask their CPA or Tax Attorney about the benefits of filing a Form 706 and the risks and potential tax liabilities if one is not filed.

November 7, 2011

Florida probate Hanbook Updated

by David M. Goldman

I recently updated the Free Florida Probate Handbook to deal with many of the changes from this year’s legislature. If you have a previous copy or would like an undated version please let us know by requesting on this page.

October 20, 2011

Problems with Domestic Asset Protection Trusts

by David M. Goldman

Domestic Asset Protection Trusts (DAPT) have become the latest rage in estate planning and asset protection. We have generally found that there are better ways of protecting assets from creditors by using traditional estate planning that has case-law history.

In a recent US bankruptcy case, a DAPT was invalidated and the 10-year bankruptcy statute of limitations in regards to trusts was upheld. This was an Alaskan case using an Alaskan DAPT but similar results should be expected in other jurisdictions.

If you are interested in Florida Asset Protection or Asset Protection in Jacksonville, contact a Florida Asset Protection Lawyer to discuss your circumstances and options that are available to help protect your assets from creditors or increase the ability to negotiate with creditors.

October 17, 2011

Protecting Assets with No Equity

by David M. Goldman

I recently had a client inquiry with us regarding the transfer of real property which was upside down or had negative equity. Typically when one transfers property of value to another to avoid a creditor’s reach, the creditor can seek to have the transaction reversed under the theory of a fraudulent transfer.

Florida statute 726.102 seems to define assets which are subject to this to only include those which have a value on the date of transfer. If the property had a negative equity, it would appear that a future increase in value would not subject the property to the fraudulent transfer statutes. Given this a property transferred when there was no equity in the property should be protected if the property’s value later increased. There does not appear to be any case-law that is directly on topic and of course there is no guarantee that this would protect the asset. If you are trying to structure your assets for protection from creditors you should talk with a Jacksonville Asset Protection Lawyer to review your circumstances and what options you have.

September 9, 2011

Protecting the Family Vacation Home

by David M. Goldman

Florida asset protection for homestead- House.jpg Often families have vacation property that has been owned for may years or generations. It would be virtually impossible for most children to acquire or maintain these types of properties in today’s market.

We often use business entities or trusts to hold title to the property and other assets to help provide for the management and expense of owning and operating a vacation home. When the property is going to be inherited by more than one child or family. An operating agreement or trust agreement can provide rules for handling allocation of time, and expenses among the children and their families.

If you have a family beech or lake home or a ski lodge you may want to talk with a Florida Estate Planning Lawyer about how to protect the property from your creditors, the creditors of your children, and disputes between your children regarding the use and expense sharing of the home in the future.

September 9, 2011

TBE Bank Accounts and Asset Protection

by David M. Goldman

When protecting one’s assets in Forida a Florida Asset Protection Lawyer will often look at the stying of accounts and other personal property.

There are situations when having a Bank account in the name of a husband and wife as tenants by the entireties can offer additional protection from creditors. In Florida if you open joint bank account or certificate of deposit (CD) and the joint owners are the husband and wife, the account will have the benefits of a tenants by the entireties account. The statute seems to allow for husband AND wife as well as husband OR wife and does not indicate any issues as to when or how the account was opened or if a spouse was added at a later time. Florida Statute 655.29(1) is very limited and does not establish TBE status on other types of accounts or personal property that you may own. It is important to review the way in which you hold title to your personal property to make sure you will be afforded creditor protection.

655.29(1) Unless otherwise expressly provided in a contract, agreement, or signature card executed in connection with the opening or maintenance of an account, including a certificate of deposit, a deposit account in the names of two or more persons shall be presumed to have been intended by such persons to provide that, upon the death of any one of them, all rights, title, interest, and claim in, to, and in respect of such deposit account, less all proper setoffs and charges in favor of the institution, vest in the surviving person or persons. Any deposit or account made in the name of two persons who are husband and wife shall be considered a tenancy by the entirety unless otherwise specified in writing.

August 26, 2011

Protecting Assets From a Florida Divorce using an IPUG Trust

by David M. Goldman

In Florida, all marital assets are subject to equitable distribution. If you leave assets to your children in a revocable trust, they can also be at risk to equitable distribution depending on the circumstances and how they are used. If you create an Irrevocable Pure Grantor Trust (IPUG) and leave assets to your children in their own IPUG they will remain separate property and are only subject to alimony and child support as a last resort. Generally these assets will be protected as separate property in the case of a divorce which occurs in around 50% of all marriages.

To discuss how an IPUG trust can protect assets from your creditors and those of your beneficiaries, contact a Florida Estate Planning Lawyer to discuss your circumstances and goals.

August 17, 2011

Revocable Living Trusts: Are they now obsolete?

by David M. Goldman

Currently the Revocable Living Trust is the most popular type of trust for estate planning. With the current estate tax exemption at 5 Million dollars, many have begun to ask if there is a need for such a trust. More over the Revocable Living Trust provides no asset protection.

Currently 99.7% of the US population has less than 5 Million in Assets. While a Revocable Living Trust can offer privacy, probate avoidance, easier management of one’s assets, and numerous other benefits, it does not offer any asset protection. Many people really want an irrevocable trust, but do not want the consequences of the traditional irrevocable trust. While there are many types of irrevocable trusts, most either cause a loss of control over the assets by the grantor, loose the stepped up basis, or cause the trust to pay taxes at the highest tax rate with as little as $11,000 in earnings.

There are variations of the irrevocable trust that can solve one or more of these issues, but there is only one type of Irrevocable Trust that has the flexibility of a revocable trust, provides asset protection from the creditors of the creators as well as the beneficiaries, allows the income to be taxed at personal rates, and provides for stepped up basis upon the death of the creator.

August 16, 2011

What is the Difference Between Medicare and Medicaid in Florida?

by David M. Goldman

They sound similar. Unfortunately many people do not understand the differences between the two. Most people think Medicare will “care” for them forever but, that is simply not the case.

While Medicare and Medicaid sound similar, they are very different government programs. Medicare provides healthcare benefits for the over 65, blind, and disabled; while Medicaid provides medical benefits for the impoverished.

Medicare is a basically public health insurance for those age 65 and older. Medicare does not pay for long-term care! It will cover some rehabilitation and this is often confused with long-term care.. If a senior citizen has Medicare and is hospitalized for a stay of at least three days, and is then admitted into a skilled nursing facility, Medicare may pay – for a while. But once those Medicare benefits hit 100 consecutive days or the patient stops improving the coverage is over.

August 15, 2011

Florida IPUG Trust Lawyer and the Birth of the Irrevocable Pure Grantor Trust

by David M. Goldman

Asset protection is one of the most important planning tools for America’s aging population, especially in our current tumultuous economy. One new tool in protecting your assets is the Irrevocable Pure Grantor Trust — AKA, the iPug™.

iPug™ trusts are not based on any state statute, but are instead grounded in century-old and well established common law. This means more stability in courts and more peace of mind for those who opt to use an iPug™ trust. In fact, the iPug™ is beneficial for nearly all Americans. This is because the iPug™ is taxed as a grantor trust, meaning the taxes are passed through to the grantor — the trust itself is not individually taxed. This is beneficial for anyone with assets valued at less than $5 million — i.e., over 99% of Americans.

There are three types of iPug™ trusts:

(1) the income-only version,