Articles Posted in Estate Planning

John B. Conner has written a Law Review article in the Estate Planning and Community Property Law Journal titled “DIGITAL LIFE AFTER DEATH: THE ISSUE OF PLANNING FOR A PERSON’S DIGITAL ASSETS AFTER DEATH”

The article starts off discussing issues of digital assets and estate planning by defining digital assets and then discussing issues in estate planning created by digital assets.

It goes on to talk about how websites are dealing with digital assets and privacy acts as the relate to deceased users with social networking, web-based email, blogs and other online content.

A trust protector is a person or group of people (not the settlor, beneficiary, or trustee) who are appointed to exercise one or more powers affecting a trust and the interest of the beneficiaries. The concept of a trust protector is to protect beneficiaries from a rogue trustee. They can often make changes to a trust involving who the trustees are, investment decisions, change how distributions are made and in some cases modify or terminate a trust.

They can provide help when circumstances change and the settlor’s intentions are not being dealt with properly. While a trustee has fiduciary duties, in most cases a trust protector acts as an agent of the settlor and may not have the same duties as other trustees.

Others argue that you should impose fiduciary duties on the trust protectors and make them accountable to the beneficiaries. As such, it is important to have detailed discussions with clients about the roles and responsibilities of trust protectors. Their powers and limitations should be clearly defined to limit the scope of their actions.

Estate planning is an important event in one’s life. The fruits of a life time of hard work, passed down in the hopes that they will serve their next owner well. But in this modern age we live in, online digital assets are frequently left out of the estate planning process.

Much of our the time we spend each day is on the internet. How much of your information and is floating out there on the internet Between Facebook, PayPal, Flickr, twitter, iTunes, email addresses, passwords, user names and passwords, we have a lot of information that is not readily available to others if we should become incapacitated or die. In this age of the internet what happens to all of that personal info when we finally shed our mortal coil and update our Facebook status to dead? Do we want to loose our Facebook account when we die? Once the status is updated to deceased, it cannot be modified, updated, or used for other purposes. It continues to exist, just as you left it, until the asteroid strikes earth, or the apes rise up, or whatever your favorite end of the word scenario is, ends up happening. There may be value to your family or estate in being able to communicate with your previous friends.

To some this is perfectly acceptable. Some Facebook albums just never need to be seen again, for the good of all mankind. The problem arises when there is something worth saving, something worth passing down. The picture of you two on graduation day, wedding photos, that blog about the summer you spent in Europe, or photographic proof of how much more attractive your grandma was at your age. The memories and happiness that these photos will bring your loved ones is immeasurable. There may be things that your family wants to remove or modify. Something that was important to you, which they can now keep close, fondly reflect on, or pass down themselves. The hitch is only you knew your log in info, and your dead, and those close to you can’t guess the answer to your asinine password hint question. What is the name of my mother’s favorite pet? Seriously…. she lived to a hundred and had 9 cats when she died. How am I supposed to guess that.

asset-protection-cash.jpgA Florida Asset Protection Lawyer is of most use when you do not have any potential liabilities. When you have a known creditor, you have to be concerned with fraudulent conveyances and fraudulent transfers. Generally if you participate in a fraudulent conveyance or transfer the court can undo a transaction within 4 years of its occurrence.

A Fraudulent Transfer occurs when you transfer an asset to put it outside the reach of a creditor.

A Fraudulent Conveyance occurs when you transfer an asset for less than full value and this causes harm to a potential creditor.

With the recent changes to the Florida Statutes, it is even more dangerous to use Powers of Attorney documents created by online systems or found in forms books. Not only is there a big risk that they will not comply with the new Florida laws and be worthless, but if they are valid, you run a big risk of handing someone a blank check. YES that is what many are calling the powers contained in the new Florida Durable Powers of Attorney act.

While those using a POA are supposed to act in a fiduciary capacity, when they do not, someone has to complain about it or nothing will be done. While under Florida’s Elder Law abuse statutes, anyone may complain about the actions of another who is over the age of 55, those under 55 who grant powers of attorney have little recourse when their power of attorney is abused without their knowledge.

More Jacksonville Estate Planning Lawyers are creating systems to accomplish the springing powers that have recently been stripped from the statutes.

David Adams of David N. Adams, Inc is having a Tax Planning Seminar to discuss the new tax laws which are set to start in 2013. The topics discussed will include information on current and future:

  • Income Tax Rates
  • Capital Gains Tax
  • Tax Strategies
  • Taxation of Dividend Income
  • New Medicare Tax
  • Estate Tax Schedules

He has invited his clients as well as our clients and readers of this blog to attend a Free Dinner at Maggiano’s where these topics will be discussed. I will be a guest speaker at the event. If you would like to attend, please contact his office to RSVP.

The event will be 6:30-8:00 pm Maggiano’s Little Italy St. Johns Town Center 10367 Midtown Parkway Jacksonville, FL 32246

Seating is limited! Please call 904-339-0015 to reserve your seat today!

This information is not intended to be a substitute for specific individualized tax, legal or investment planning advice as individual situations will vary. Event partially sponsored by SunAmerica Capital Services and Cole Capital Corp., Member FINRA/SIPC.

The IRS recently announced safe harbor rates for April 2012. Safe harbor rates are the minimum interest rates that can be used to avoid gift tax treatment that is associated with below market rate loans. The minimum interest rates for April are still very attractive.

0.25% per year for loans for 3 years or less;

1.15 per year for loans greater than 3 years and up to 9 years; and 2.7% per year for loans greater than 9 years.

Indians’s Gov. Mitch Daniels signed to repeal the inheritance tax for deaths after Dec. 31, 2021. The relief is retroactive to January 1 and increases amounts exempt from the tax for 2012 deaths.

Currently 22 states and the District of Columbia impose an estate / inheritance tax in 2012. See Forbes article on Another State Death Tax Kicks the Bucket, Will More Fall? for more information on this topic.

If you live in a state that has an estate tax or inheritance tax you may want to consider the additional taxes that your estate or beneficiaries might be subject to in your planning.

If you own firearms and have done estate planning, you might want to review your planning with a Gun Trust Lawyer®. About 5 years ago, I recognized the problems that are inherent with traditional estate planning (wills, revocable trusts, or the default planning offered by each state) as they relate to firearms.

Most Estate Planning is designed to deal with financial instruments and not the issues that surround the purchase, transfer, possession, and use of firearms.

Did you know that you will or trust probably contains language that instructs your family and friends to break the law after you die? Before you put your family and friends at risk of violating the law or giving a firearm to someone who you would not want to hand a gun, you should talk to your Florida Estate Planning Lawyer about creating a Gun Trust.

Often in an attempt to avoid a relatively small probate fee, individuals can create huge penalty periods and taxable issues for themselves. Take for instance, a woman in New York who, two years before applying for Medicaid, transferred money from her account to an account with a co-owner. Transferring individually owned funds to an account with joint tenants is a common way to avoid a Florida Probate.

While her estate planning attorney seems to have given the advice, he was not aware of the problems that estate planning techniques to avoid probate can have on Medicaid eligibility.

Not only can transfers like this have problems for the individual making the transfer, but they can also create problems for the beneficiary or the new co-owner who will now have additional assets in their name, that may disqualify them from government benefits like Medicaid.

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