You have heard it all before again and again. The reason for the repetition is . . . there really are 7 estate planning documents that should be prepared before one dies.
A Jacksonville Estate Planning lawyer will provide you with story after story that have no happy endings. These stories begin with people who talked about contacting a lawyer to have legal documents prepared, but never did.
The documents you need to consider today are:
In Florida a Will must be in writing, signed by the signed by the testator and authenticated by two witnesses. Florida does not recognize holographic wills that are valid in another state if they do not meet the above requirements. Other than holographic wills, Florida will recognize a will that was validly created in another country.
Therefore a foreign will other than a holographic will is valid in Florida and holographic wills created in anther state or country which are signed by the testator and authenticated by two witnesses are also valid in Florida.
There are three ways in which a will can be contested in Florida.
Jim McDermott and the House Democrats introduced a bill to extend the estate tax beyond 2012. The proposal would reduce the current estate tax exemption from $5 million to just 1 million and raise the estate tax rate from 35% to a top rate of 55%.
The bill also contains restrictions on Grantor Retained Annuity Trusts :
The eligibility requirements for Medicaid have changed for Florida as of 1/1/2012. There were changed in the income criteria, maximum amount of assets, and maximum equity in your homestead property.
Florida Medicaid Income Limits as of 1/1/2012.
The Applicant’s income limits have increased from $2022/ month to $2094/month. If the applicant for Medicaid has income in excess of $2094, they may use a Qualified Income Trust or Miller Trust to help the applicant qualify for Florida Medicaid Benefits under the Medicaid Asset Test.
What is a Florida will?
A will is a written instrument, signed by the decedent and at least two witnesses in each others 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 testators 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.
What if there is not a Florida will?
After you die, you may have money, property, and other assets that were in your own name. Generally the assets which did not automatically become someone else’s upon your death are part of your probate estate. Many individuals attempt to make sure that there are no assets in their probate estate when they die. This is often done with the help of a Florida Estate Planning Lawyer and can often include Florida Revocable Trust as well as reviewing ones beneficiary designations.
A will is where you would typically define who will be the personal representative or the Executor of your estate. While the many estate plans in Florida will not need a PR or executor, many individuals do not fully plan to deal with all of their assets and a Florida executor is needed. Generally the executor is someone in whom you can put the utmost trust. Your Executor will be the person in charge of making sure all your assets including your money are gathered, kept safe and distributed according to state law and your desires. There are certain people who will get paid before any distributions are made. Generally, the PR, court costs, and lawyers are paid first, then the burial expenses are paid (up to $6000 is a priority claim). After these bills are paid, the creditors are paid and only after the bills are paid, do the beneficiaries receive what is left from the probate estate.
Florida Statute 733.707 discusses the priority that claims are paid. In general they are paid in the following order:
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.
Who gets make the funeral arrangements for our parents? Why was Dad or Mom Cremated? How can I stop my mom, step-parent, parents significant other, or sibling from the improper disposition of my relatives remains?
These are all questions dealing with the same issue: Who gets to make the decision about the disposition of a person who has recently died? As a Florida Estate Planning Lawyer we always talk to our clients about the importance of discussing your desires with those who will make the decisions, but what if someone takes over and does something that was not wanted? Can it be stopped? In most cases, the damage may be done before you have knowledge of what is happening, but in some cases there is time to stop arrangements. Florida statutes define the legally authorized person who can make the decisions regarding disposition of a body. In doing so there is a priority list that starts with the decedent, as it should.
That means if you make arrangements regarding your disposition, your decisions should be followed – as long as they are known, and able to be learned of prior to alternative arrangements being carried out.
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.
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.
Florida Estate Planning Lawyer Blog