Probate

September 8, 2008

Liability of Surving Spouse for Claims Against Decedent in Florida

In Florida, the surviving spouse is not liable for claims against the decedent. Under the common law a husband was responsible for the deceased wife’s expenses for necessities, last illness, and funeral expenses.

At common law, a married woman’s legal identity merged with that of her husband, a condition known as coverture. She was unable to own property, enter into contracts, or receive credit. A married woman was therefore dependent upon her husband for maintenance and support, and he was under a corresponding legal duty to provide his wife with food, clothing, shelter, and medical services.

In 1995 the Florida Supreme court abrogated the common-law doctrine of necessaries in the case Connor v. Southwest Florida Regional medical Center, Inc., 668 So.2d 175 (FLA. 1995).

August 15, 2008

Florida Defective Wills: Invalid Personal Representative

by David M. Goldman

Although the state of Florida accepts wills created in other states when they were valid in the state where created, not all of the will may be valid. Recently, I ran across a will that named an accountant of the decedent as their Personal Representative. Several months later the decedent moved to Florida and eventually died without updating the will.

The problem started with the fact that the accountant was not related or married to someone who was related to the decedent. This is a disqualification of a Personal Representative in Florida. The result was that the decedent did not get to choose their Personal Representative.

If you have a will that was prepared in another state and want a Florida lawyer to review it for compliance with Florida law so that your desires are carried out upon your death, Contact a Florida Estate Planning Lawyer to review your Estate Planning Documents.

August 14, 2008

Florida Estate Planning Lawyer Site Goes Live

by David M. Goldman

The new Jacksonville Estate Planning Lawyer Web site for the Law Office of David M. Goldman PLLC has gone live. This site will act as a hub for the Florida Estate Planning Lawyer Blog and the NFA Gun Trust Lawyer Blog.

Its been a long month setting up the new website and more pages will be added as time permits. For now the Jacksonville, Florida based Law Office of David M. Goldman PLLC deals with:

Florida Asset Protection

Florida Estate Planning

August 14, 2008

Florida Defective Wills: Poor Drafting or Intentional?

by David M. Goldman

The Florida Constitution protects one’s Homestead from creditors. One provision that is often misunderstood is a devise of a homestead in a will when there are minor children in the family. In some cases two people are getting married and one has a home and a minor child. The spouse may draft a will that states that the home goes to the future husband, but what happens if the spouse dies before the child reaches the age of 18?

Under the Florida Homestead Protections, the house does not pass as the will states, but the homestead goes to the minor child with a life estate going to the surviving spouse. Sometimes this appears to be an intentional mistake in a will to appease a future spouse but the clause does little to provide a fee simple ownership the the decedent’s homestead.

If you are getting married or your spouse had a home prior to your marriage that is now your Homestead, be careful that any attempted devise of the home when there are minor children will create a default condition establishing a life estate for the surviving spouse and remainder for the children even if one is a minor.

July 7, 2008

Pending Partition of Property does does not Survive Death of Joint Tenant

by David M. Goldman

What happens if you are in the middle of a partition to divide or sell property and one of the owners dies?

The pending action is has no force and effect on the ownership. What doest this mean? If you own property as joint tenants with rights of survivorship and you want to partition the property but die in the middle of the court action, the other joint tenant will own the entire property.

A recent 1st DCA case Mercurio v. Headrick, WL 2434193 (Fla. 1st DCA Jun 18, 2008) has the expected outcome that all attorney’s learn in their first year property course. In addition many other states have reached similar opinions but Florida had not seen this issue before. The Florida Probate Litigation Blog has an in depth article on this case.

June 6, 2008

Cost of Florida Probate

by David M. Goldman

Florida Probate costs very based upon they type of probate, type of assets, number of creditors, number of beneficiaries and complexity of the issues involved.

Generally a simple Florida Probate which only involves a homestead is around $1500-$1800 dollars and can take 30 to 90 days on average to complete. This fee is for the legal expenses associated with a Florida Summary Administration where the descendant has been dead for more than 2 years or the assets subject to probate are less than $75,000. A homestead, join accounts, and life insurance are not counted as assets. In addition there will be court costs in the $300-400 range depending on the county and if advertising notice is required or desired.

More complex Florida Probate cases can also be handled on flat fees but many are calculated based upon a percentage of the assets subject to probate + some amount for dealing with the non-probate assets.

May 27, 2008

Executor, Personal Representative, PR Fees: Are They Taxable?

by David M. Goldman

If I am the PR of a Florida Estate Planning, do I have to pay income taxes on the money I receive?

The short answer is yes you do. These fees are considered an expense of the estate and unless you qualify for an exemption, you would have to report this as income on your tax return. You should speak to your accountant about where to pick this up and how this will impact your income.

If the money is paid as a distribution of assets instead of a fee, there is generally no income tax associated with the money. For estates which have a value of less than the estate tax exemption, this might be a solution.

May 21, 2008

We the People franchise found to be practicing law without a license

by David M. Goldman

There are many places to get advice on the Internet. Be sure when you are looking for legal advice, you are working with a licensed lawyer. Below is the finding of the Ohio State Bar in regards to one such service.

We the People is a franchise that provides forms and help in legal matters including wills, trusts, divorces, bankruptcy and other areas of law.

The Ohio State Bar found that they were practicing law without a license because they were owned and operated by attorneys not licenced in Ohio and advised individuals with respect to the completion of forms for filing a personal bankruptcy, application of probate, advising individuals on how to complete the forms and what answers to put down, directing individuals to execute documents and charging them for services, instructing completion of forms in disregard for proper procedures and determination by the Bankruptcy Court that the filing was incomplete, preparation of unnecessary and incorrect form for administration of an estate, preparing improperly completed forms for a bankruptcy, issuing advertisements, and advertising the preparation of services for living trusts, wills, powers of attorney, and incorporation’s.

April 29, 2008

How to obtain a Will in a safety deposit box?

by David M. Goldman

In Florida when an individual left their Florida Will in a bank vault or safety deposit box a court order is necessary to open the box unless there is a joint owner on the account.

The process involves having a judge issue an order to inspect the contents of the box. If there is a will it should be deposited with the court in the probate proceeding.

If you need help getting a Florida will that is stored in a safe deposit box at a bank, you should Contact a Florida Estate Planning Lawyer

April 14, 2008

Can a Personal Representative Pay the Debt on a Conveyed Home or Property?

by David M. Goldman

In Florida an encumbered property shall be entitled to have the encumbrance on the property paid at the expense of the residue of the estate only when the will shows that intent. A general direction in a will to pay the debts does not show that intent Florida Probate Code Section 733.803 , Florida Statutes (2002)

In a recent case a Personal Representative tried to make the argument that since the debt was paid off a mortgage during the probate proceeding and that the above rule only applied if the debt was in place at the time of the distribution. In re Estate of Woodward (Fla. 2d DCA Apr 09, 2008)

The court said that the PR could not rewrite the decedents will and pay off the mortgage. The Florida Probate Code makes it clear that without a specific instruction in the will the property was to pass with the encumbrance.