Estate Planning

May 9, 2013

The Future of Estate Planning: The Multigenerational Life Plan

Over the last year I worked with an intern in our office of a Law Review article for Texas Tech University. This article describes problems with current estate planning and takes the premise that most estate planners have become lazy because of advancements in technology. That is, most only ask their clients about issues that their software is capable of addressing. We identify 6 primary areas that are not addressed in most estate plans:

Firearms;
Digital Assets;
Asset Protection;
Life Planning;
Controlling from the Grave; and
Pets

The citation for the article is
David Goldman & Charles Jamison, The Future of Estate Planning: The Multigenerational Life Plan, 5 Est. Plan. & Community Prop. L. J. 1 (2012).
Continue reading

May 9, 2013

3 Important Reasons to Use an Estate Planning Attorney to Create a Durable Power of Attorney

by David M. Goldman

Estate Planning.jpg A Durable Power of Attorney (DPA) allows you, the “principal”, to designate someone, the “agent”, to act on your behalf. Depending on the DPA, your agent will have authority to oversee your financial affairs or your medical treatment. Having a DPA is a good idea, but only if it is done properly. Otherwise, a DPA will probably not serve its intended purpose and it might create additional problems. To avoid this, contact an estate-planning attorney to assist you with this issue. Meanwhile, this blog discusses three important reasons to hire an estate-planning attorney to draft your DPA.

1. A DPA is effective right after it is executed.

Before October 2011, a DPA could remain “dormant” after it was executed. This type of DPA is known as “springing DPA” and is not effective until the occurrence of the event specified in the document, like the principal’s incapacity. However, pursuant to a revision to Florida Statutes section 709.2108, a DPA is ineffective if it provides that it is to become effective at a future date or upon the occurrence of a future event or contingency. Therefore, springing DPAs are no longer recognized by Florida and a DPA is effective the moment that is executed. So if you want a DPA to protect your financial affairs in the event that you become incapacitated, your agent will have authority to oversee your finances as soon as the DPA is created. This can be a problem. Even if your agent is a person that you completely trust, like your spouse, the fact that he or she has authority over your finances can be against your interests. An estate-planning attorney from the Law Office of David M. Goldman PLLC conveniently addresses this issue by offering an escrow service in which you chose the attorney as your agent and instruct him or her what to do in the event that the DPA is used. Meanwhile, the DPA will be kept in a secure place and will not be used unless you instruct the attorney to do so, a court mandates the attorney to do so, or two Affidavits from two different Doctors state that you are incapable of deciding for yourself. This way you can be better assured that your agent will not abuse his or her power over your affairs.

May 7, 2013

6 Quick Questions to Help You Effectively Decide When is a Trust Better than a Will in Florida

by David M. Goldman

A Florida Will is one of the most basic estate-planning documents. A Will allows the grantor to devise his or her property with very limited encumbrances; however, there are issues that are better addressed with other estate-planning documents – like a Trust. If you are debating whether to use a Trust or a Will, then this blog will help you. However, it is wise to seek assistance from an estate-planning attorney before making a decision.

What is a Will?

A Will is a written instrument, signed by the decedent and at least two witnesses in each other presence, that fulfills the requirements of Florida law. A Will names the beneficiaries for the testator’s probate assets. The testator can also designate guardians for minor children and a personal representative to administer the estate. If a Will was validly executed in another state, Florida courts will recognize the document as a Will except in the case of a holographic Will. Holographic Wills are Wills written entirely in the testator’s own handwriting and in most states witness signatures are not required. However, Florida law requires that holographic Wills be witnessed and signed in the same manner as any other Florida Will.

April 19, 2013

There is a Vacancy in My Trust – Appointment of a Successor Trustee in Florida

by David M. Goldman

Every trust needs at least one trustee to administer the trust and to carry on its terms. If a person designated as a trustee ceases to act as one, then a vacancy in the trust occurs and it might need to be filled. Succession of trustees is perhaps one of the most common occurrences in the administration of a trust. A succession of trustee can be done by the terms of the trust, by the beneficiaries, or by appointment of the court. The overriding concept is that if one trustee ceases to act for any reason, the result depends upon the circumstances of each case. This is why it is wise to consult an estate-planning attorney to analyze all the factors affecting your case and assist you with this issue.

1. When does a vacancy occur?

A vacancy in a trusteeship occurs in the following circumstances:

April 15, 2013

A Checklist to Update Your Florida Estate Plan

by David M. Goldman

Updating your estate plan is as important as having one. Many find it easy to procrastinate about updating their estate plan because they do not want to spend the money on a Florida estate-planning attorney. However, a lot of money can be lost through missed estate planning opportunities and family legal battles over out of date estate planning documents. Therefore, updating your estate plan can actually save money in the long run. Many Florida estate-planning lawyers, including the Law Office of David M. Goldman PLLC, will actually review your current estate plan free of charge. When updating your estate plan, consider the following points.

Consider whether you need a trust: A trust can be very helpful to achieve your goals, even if you do not have a lot of assets. In numerous situations, a trust or series of trusts in conjunction with other documents can be the best option for even those with modest means. Trusts are often used for the following reasons
- Protect your assets from creditors
- Provide for the car of your family and yourself financially in case you no longer are able to handle your own affairs.
- Provide for children of a previous marriage in the case of your death.
- Avoid probate, keep your assets private, and save money for your beneficiaries
- Protect money for minors, so they cannot spend the money in the trust immediately on thing you may consider unnecessary.
- Protect assets from a future ex son or daughter-in-law.
File an estate tax return if you lost your spouse: A surviving spouse has the option of adding any unused tax exclusion of the deceased spouse to her own $5 million exclusion. This option is known as “portability”. You may thin that you will never need this additional exclusion, but they laws could change and significantly reduce the amount of portability in the future. Portability is not automatic. To get portability, the executor of the estate of the decedent spouse must file an estate tax return, even if no estate tax is due.
Consider whether to give away some of your assets now to save taxes: If you have enough money for retirement, it might be in your best interest to transfer some of it now to save some taxes. If you have a lot of assets, it is a good idea to seek an estate planning attorney to discuss the option of using leveraging techniques that can allow you to give away a large part of your assets gift-tax free.
Update basic estate planning documents: If you have not revised your estate plan in more than five years, then you should have someone look at your current estate plan to make sure it still reflects your intent and is flexible enough to accommodate present uncertainties. Consult an estate planning attorney to discuss whether your current estate plan needs some arrangements.
Prepare for a time when you may not be able to think for yourself: Notwithstanding your present age or health it is important to prepare for the possibility of becoming physically or mentally incapacitated. To prepare for this possibility, you should select someone to be a durable power of attorney for health care as well as financial decisions.
Chose a guardian for your children that are minors or have special needs: Even if you are married it is important to select who will take care of your children if you pass away so that a court is not making this decision on behalf of your children. This can be done by appointing a guardian in your will.
Use beneficiary designations or style accounts to assure you or your spouse has enough money to cover immediate expenses in case one of you suddenly passes away. It is wise to maintain a joint account designated for these types of emergencies because when a spouse dies, the surviving spouse generally does not have immediate access to the decedent spouse’s private bank account. These issues can also be dealt with in various types of Trust documents.

An estate planning attorney can review your current estate plan to assure that your intent has not been frustrated with circumstances arising after the creation of your estate plan. New laws or unconsidered circumstances can easily frustrate at least part of your estate plan’s purpose. For an estate planning attorney in Florida, call the Law Office of David M. Goldman PLLC at (904) 685 – 1200 or click the “Contact Us” tab at the top of the page.

April 3, 2013

How to Use a Florida Durable Power of Attorney

by David M. Goldman

Using a Durable Power of Attorney in Florida

When you have been appointed as an agent by a person to act as an attorney-in-fact for that person, you must keep three important ideas in mind.

Agent Authority

April 2, 2013

General Guidelines for Successor Trustees in Florida

by David M. Goldman

The management of a revocable living trust is intended to be a simple, private, inexpensive matter handled by the Settlor and those people the Settlor chooses, without court intervention. It is always a good idea to seek professional advice when taking over the management of another persons trust. Generally the roles, responsibilities, and duties can be explained quickly and stop many problems before then create harm.

The following are general guidelines that you should supplement with the specifics of the trust you will be managing; these guidelines are not intended to be specific advice for any particular situation. These guidelines apply to successor trustees who find themselves in charge of a trust.

There are three situations in which you may have assumed the title of Trustee: 1) The Settlor has been determined to be incapacitated as defined in the Trust; 2) The Settlor has died; or 3) The Settlor has resigned as the Trustee and either appointed you as the Successor Trustee or named you the Successor Trustee in the Trust document.

An Overview
Regardless of why or how you came to be trustee, all successor trustees should keep a few general ideas in mind.

You are handling someone else’s property, not your own. When you act as a Trustee you should follow the rules and laws that apply to the trust. These rules and laws come from two sources. The first source is the trust document. In that document you will find many paragraphs that describe what you are allowed to do, what you are required to do, and what authority you have to exercise your own discretion in making decisions. The second source is the state and federal laws that apply to the trust.
A successor trustee should immediately familiarize himself or herself with the trust document, and any amendments to the trust, to be certain that the successor trustee knows what is expected and what is required by way of management, distributions, reporting, accounting, and any other specific duties that the trust might place on the trustee.
You will be required to account for and explain your decisions and activities in the management of the trust. You will be required to provide regular accountings to the beneficiaries of the trust, and may be required to make certain reports to the tax authorities. Detailed records will make that reporting a lot easier. Your records might include detailed checking ledgers much like you would keep for your own checkbook. The records should show the check number, date, amount paid or received, whom the payment was from or to, and the purpose of the payment. Another good idea is to keep a journal or log book of activities for the trust, in which you would make notes about what you have done and why. You should have a good initial accounting where you list the assets at the time you took over the job.
Clear communication between the trustee and the beneficiaries can avoid future misunderstandings.
Avoid self-dealing. Do not have your spouse or family provide services for the trust if they will be paid for their work. If you feel that you must be involved people who you have a close relationships with, you should only do so after a full disclosure of the terms and circumstances and obtaining written approval from each of the beneficiaries. A small degree of formality now can avoid a major misunderstanding later when the trustee and the beneficiary may have quite different recollections of an arrangement.

March 30, 2013

How to Transfer the Decedent’s Property in Florida to Your Name

by David M. Goldman

Below is a summary of the more common ways that property is transferred in the state of Florida when someone dies.

Somebody just died leaving you an interest in a piece of property. To reclaim your interest in the property you must prove that you own it by documenting the transfer from the estate of the decedent to you. The procedure involved varies depending on the interest held on the property by the decedent, and on many other factors.

Joint Tenancy with Rights of Survivorship

March 24, 2013

Florida Pet Trust

by David M. Goldman

We often get questions regarding the creation of Pet Trusts in Florida. Florida Statutes have provided for pet trusts for many years but they do not always make sense. I have attached a document which you can use to help gather information that will be necessary to determine if a Florida Pet trust is right for your family or you should be looking to add separate provisions to your Florida Will or Florida Revocable Trust to deal with taking care of your pets in the case that you are unable to. Which ever way you decide to go, we provide free Pet Trust provisions or instructions with all of our estate plans when they are requested. This means that there are no additional charges for standard instructions or basic Pet Trusts with any estate plan we draft. Obviously if your situation requires a more complex plan there will be charges associated with it, but we love animals and want to make it easy and inexpensive to take care of your pets.

To begin the process download the Florida Pet Trust Document, take a few minutes to complete it and return it to us with your estate planning objectives.

March 20, 2013

The Effects of Using a Deed to Transfer Real Estate Property Ownership to Avoid Probate

by David M. Goldman

You can transfer ownership of your real estate property through probate, or by signing an instrument known as a deed.1 Using a deed to transfer ownership of your real estate allows you to bypass probate, but there are some risks associated with this alternative. This blog discusses the advantages and disadvantages of using a deed to transfer ownership of your real estate property.

Advantages of Using a Deed to Transfer Ownership

A transfer by deed can allow you to reserve the right to use the real estate property transferred for the remainder of your lifetime: There are different types of deeds that can be used to transfer property and each one of them serve a different purpose. Some deeds, like the life estate deed, allow you to transfer ownership of your real estate property while reserving you the right to use the property for the remainder of your lifetime.