Articles Posted in Estate Planning

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Florida Asset Protection Trusts: Can they be changed?

In Florida, both revocable and irrevocable trusts are valuable estate planning tools that permit individuals to organize and protect their assets from creditors.  The Florida Asset Protection trust is not used by many estate planning lawyers.  Asset Protection is an important part of estate planning in Florida. While the name irrevocable would seem to indicate that the trust cannot be revoked, there are many ways of accomplishing the same effect as revoking a trust.

Generally when one discusses revoking a trust, they are referring to doing one of the following:

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The Florida District Court of Appeals recently applied a little known doctrine called the Doctrine of Dependent Relative Revocation in the case of In Re Estate of Murphy to save an estate from passing through intestacy.

The owner of the estate was Virginia Murphy.  Mrs. Murphy died in 2006 and was predeceased by her parents and husband.  She also died without any siblings or children.  In the years before she passed, Mrs. Murphy executed a number of wills that were prepared by her longtime attorney Jack S. Carney, including the last will she executed in 1994.  The 1994 will named Mr. Carey as personal representative of Mrs. Murphy’s estate; and it purported to leave the bulk of that estate to Mr. Carey, Gloria DuBois (Mr. Carey’s legal assistant), and George Tornwall (Mrs. Murphy’s accountant, who died the year before Mrs. Murphy passed away).
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One issue that occurs in estate planning is whether or not a charitable pledge can be enforced on a person’s estate after death.  Wealthy individuals often make pledges to their favorite charitable organizations during their lifetime, only to die before fulfilling the pledge.  Executors are then placed in the difficult situation of balancing its duty to ensure the estates assets for the decedents heirs and to pay the money owed by the estate to the charitable organization.   If a court rules the pledge is enforceable, the pledge must be paid out of the estate before the rest of the estate’s assets are distributed to the beneficiaries.

Courts will often find a charitable pledge enforceable when these situations occur:

The pledge is an offer to contract that becomes binding when work obligated by the pledge has begun, or the charity relying on the pledge has otherwise incurred liability.

Donor’s pledge has induced other pledges

The charity’s acceptance of the pledge imparts a promise to apply the funds according to the donor’s wishes, and his pledge is supported by that promise.
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Many women in today’s world stay single by choice, and for those women who are married, we know divorce rates are very high. Studies also show that women are far more likely to survive their husbands. Therefore, we advise all women to create estate plans as if they are a single person.

The first step to making an estate plan is to identify a means to pay for future long term care. A 70 year old woman is likely to live another 15-20 years, which means that estate plans must now last longer than before. We encourage all of our clients to consider long term care policies and other hybrid policies, which have retained benefit features in case a policy is dropped.

The next step a single person should take is to select an executor of a will and a power of attorney agent. A failure to name these persons means a judge will one day be in charge of selecting who will serve these pivotal roles in managing the estate. It is best to name these people ahead of time so a person can ensure his or her health and estate are managed by competent people. These roles do not have to be filled by friend or relatives, so we recommend starting a “recruiting process” to find someone qualified to fill these roles. While more expensive, there are many professionals and or financial institutions that can handle these matters.

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There is a myth that trusts and estate planning are for the rich only, but this is actually a common misconception. Estate planning for high net worth individuals usually centers on reducing tax bills, but estate planning has a number of benefits and objectives depending on a client’s needs. An estate plan can provide expert guidance on other aspects of wealth transfer through, wills, guardianships, executorships, powers of attorney, and long term health care.  Today one of the most important aspects of estate planning is to provide asset protection.  Asset protection has historically only been available to the ultra wealthy.

Of all the asset protection and estate planning tools we use here at the Law Office of David M. Goldman PLLC, trusts are the most likely to be associated as having the stigma of being only for the rich. An  asset protection or estate planning trust is a great device that can ensure a client’s wishes are followed and further offer asset protection. A trust is a legal entity, much like a corporation, that has a manager called a trustee. The person who creates the trust, the settlor or grantor, will put assets into the trust for the trustee to administer as the trust dictates.  (Often the creator and the manage are the same person or people) Continue reading

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A trust is one of the most important estate planning tools available and can be used to achieve almost any estate plan’s purpose. A trust can even be drafted with provisions to allow the settlor, or the person who creates the trust, to set conditions for the beneficiaries to meet in order to receive distributions from the trust after the settlor passes.

Recently a trust with “some strings attached” made news due to some of its stranger and oddly specific requirements of the beneficiaries. Maurice Laboz was the owner of a large real estate management firm Regal Real Estate, and when he died, he left both of his daughters $10 million each through a trust. What is interesting about this trust is that each girl can receive their full inheritance when they reach the age of 35, or sooner if the daughters meet certain conditions Continue reading

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Here at the Law Office of David M. Goldman, we come across many estate-planning problems that can be avoided by careful planning and forethought. With higher estate tax exemptions most individuals don’t have to consider avoiding estate taxes, so we often recommend a person’s estate planning goal be to leave behind a legacy that will preserve and protect your family.

A common mistake clients often make is to not name a contingent beneficiary of a retirement account or bank account. Generally, every retirement account requires a person to name a beneficiary, but a problem can arise if this named person passes before the retirement account holder.   Always specify at least one contingent beneficiary to inherit the account if the primary beneficiary dies before you. It is also important to learn the difference between “per stirpes” and “pro rata” designations. Per stirpes means that if the named beneficiary dies, that person’s family inherits what the dead person would have inherited. Pro rata means the inheritance goes to the other surviving named beneficiaries. With the recent Supreme court decision, we often recommend that your trust be named as the primary beneficiary of your retirement accounts to avoid loss to the creditors of the beneficiaries. Continue reading

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Elder fraud is becoming a growing concern as the baby boomers are beginning to retire and are not well versed in the latest technology. Recent studies show that senior citizens are being defrauded through Internet and telephone scams. As an estate planner and elder law specialist, I thought I would share a few tips on how to safeguard assets from financial abuse.

One way to prepare for the future and to safeguard assets is to have a Florida estate and financial plan with proper controls in place. We recommend that many clients should start considering adding elder law or asset protection planning once they reach age 60 or acquire large assets. The estate plan should deal with all of a client’s assets are accounted for and the plan be reviewed every periodically or when there has been a change in the family like a birth, death, divorce, or marriage.  Continue reading

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With the recent Supreme Court ruling making headlines for allowing same-sex couples to get married, the unnoticed effect of this monumental ruling is how it will affect the estate planning for couples that can now tie the knot. Same-sex married couples now have the same estate planning and tax benefits others couples have been enjoying for years. Now is a great time to update your estate plan to take advantage of all new benefits available.

Supreme Court Justice Kennedy wrote in his now famous opinion that same-sex couples are no longer “cosigned to an instability, many opposite-sex couples would deem intolerable in their own lives.” Before this decision 36 states had already recognized these marriages, but now the other 13 mostly southern states must follow.   This means same-sex couples that live and marry in these states should consider updating or creating estate plans that take advantage of their new legal status. Continue reading

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