Probate

October 28, 2008

Florida Will leaves everything to ex wife

In Florida, if you were married when a will was created by your spouse, a subsequent divorce will treat you as predeceasing your spouse in most cases. Even if you were living with your ex spouse, engaged, or had a new wedding date planned, a will executed before the divorce would not be valid in regards to anything devised from a person to his or her ex-spouse.

It is possible to talk with the family and if they agree, the beneficiaries can work together with the ex-spouse to provide assets after the death. The ex-spouse has no legal right to receive assets but it can be negotiated in a friendly arrangement.

If you are an ex-spouse who was friendly with their ex, contact a Florida Estate Planning Lawyer to discuss your options.

October 14, 2008

NEW FDIC Rules for Inter Vivos Trust Accounts

by David M. Goldman

On September 26, 2008, the FDIC issued interim final regulations entitled Deposit Insurance Regulations; Living Trust Accounts. The interim rules amend 12 CFR 330 were effective immediately.

The New regulations make it much easier to determine coverage when the bank has less than $500,000 under the trust and trustee’s accounts:

The FDIC’s main goal in implementing these revisions is to make the rules easier to understand and apply, without decreasing coverage currently available for revocable trust account owners.

This interim rule will result in faster deposit insurance determinations after depository institution closings and will help improve public confidence in the banking system. The rule eliminates the concept of qualifying beneficiaries and for account owners with revocable trust accounts totaling no more than $500,000, coverage will be determined without regard to the beneficial interest of each beneficiary in the trust.

October 13, 2008

Factors for Undue Influence in a Florida Will and Inter Vivos Transfers

by David M. Goldman

In re Estate of Carpenter, 253 So. 2d 697 (Fla. 1971), the Florida Supreme Court stated to raise the presumption of undue influence, a plaintiff must show a confidential relationship between the donor and the donee and active procurement of the gift. Because courts have found that a confidential relationship exists in most relationships, the real issue comes down to active procurement of the gift. Recently Patrick Lannon wrote a summary of case law on the topic for the Florida Bar journal. Carpenter gives a list of seven factors of active procurement of a will, the:

1) presence of the beneficiary at the execution of the will;

2) presence of the beneficiary on those occasions when the testator expressed a desire to make a will;

3) recommendation by the beneficiary of an attorney to draw the will;

October 7, 2008

How to Find a Florida Probate Attorney

by David M. Goldman

How do you find a Florida probate Attorney?

It is important to look for an attorney within the state where the decedent was domiciled at the time of their death.

The type of lawyer that should be used will depend on what the case will involve.

October 6, 2008

Estate Settlement in Florida

by David M. Goldman

Florida Estate Settlement is the process of gathering the assets of an estate and distributing them to the creditors and beneficiaries of the estate. In Florida this process is called a probate and generally requires the use of a Florida Probate Lawyer.

Most probate lawyers charge a percentage of the estate assets to handle the legal work involved. As Florida Estate Settlements get larger a percentage arrangement can become very expensive.

There is a wide range of fees charged for Florida Probate Administration and the Settlement of an estate. It is important to understand the nature and amount of assets and creditors to give a fair estimate of what a reasonable fee for a Florida probate should be.

September 12, 2008

Step-Siblings & Half Bloods in Florida Inheritance

by David M. Goldman

Florida probate cases often involve situations where the decedent has step-siblings or half blood siblings.

Under Florida’s intestate statutes a step brother or sister would not receive any share of the decedent’s estate, but a half blood (one related by one parent) would receive 1/2 as much as a child that was related by both parents of the decedent.

In the case were there are only half blood siblings, each of them receives a full share.

September 11, 2008

How to deal with greedy Trustees in Florida: Trustee Removal

by David M. Goldman

Florida Greedy Trustee Removal Greedy Trustees can be a problem in Florida Probate Litigation and Florida Trust Litigation. Often the Trustee must be removed to resolve the issues. Adrian Thomas a Florida lawyer who deals with Florida Trust and Probate Litigation sent me an article where he discusses individual and corporate trustees. Often banks and financial institutions make their money by managing Florida Revocable Trusts and Florida Irrevocable Trusts. In recent interviews by news organizations, some employees talked about abuse of powers and improper investments that placed profits ahead of the best interest of the beneficiaries of the Florida Trusts.

Some of the abuses included:

Charging inflated fees;

Making distributions difficult for the beneficiaries;

September 10, 2008

Estate Planning Attorneys

by David M. Goldman

There is a new site which is putting together a list of Estate Planning and Probate professionals including lawyers for each state. You can find them at www.Estate-Attorneys.net.

September 10, 2008

Where should a probate be opened? In Florida?

by David M. Goldman

If a person’s usual place of dwelling was in Florida then the original probate should be opened in Florida. We see cases where someone is in the process of or has just moved to Florida and the issue of where to open a probate becomes more complex. In those instances where it may be difficult to determine the exact residence of the decedent there are several factors that should be evaluated to determine the residence.

1) Ownership of a home(s), and the percentage of time spent in each state.

2) Had the decedent applied for and are they currently receiving homestead exemptions in either state?

September 9, 2008

Florida’s Anti lapse Statute: A devise to someone who predeceases the decendent.

by David M. Goldman

In Florida a devise in favor of a beneficiary who predeceases the testator will fail unless there is clear intent or in certain relationships.

Under Florida Statute 732.603 a devise to a grandparent or a descendant of a grandparent of the testator does not lapse but would be distributed per stirpes UNLESS the testator gift is conditioned on the person surviving the testator or the testator provides for a substituted or alternative beneficiary.

A similar result is achieved when the decedent dies intestate (without a will). We often see complicated property distributions when a parent dies and one or more of their children predeceased the parent. In these cases, it is not uncommon to see the Florida homestead or other real property owned by representatives of multiple generations.