Florida Estate Planning Lawyer Blog

January 31, 2012

Gay and Lesbian Parents Need Estate Planning

Raising and caring for your children is difficult enough without the additional complications that arise when you are bringing up children in a same-sex relationship. Inherent rights afforded to “straight” or heterosexual couples are non-existent for gay couples. The lack of legal rights for those in relationships not recognized by the State of Florida, will effect your property rights, your health care decisions, the distribution of your assets after death, and most importantly, your children.

If you are not the legally recognized or biological parent of a child, there are several legal documents you can utilize to provide you the authority you need.

A Last Will and Testament will enable you to name your choice of guardian for your minor child in the event of your death or incapacity.

January 31, 2012

When if Formal Notice Used in a Florida Probate

by David M. Goldman

There are certain times when a Probate case can use Formal Notice to reduce the time required and other times when it is required. Formal notice is defined by the Florida Probate Code to be notice which is sent by via certified mail to each interested person. Sometimes notice can be by publication when the whereabouts of a particular interested person or entity cannot be determined. This notice by publlication requires a much longer time period to the party to object than the 20 days when an interested party is serverd by formal notice. Some examples of when Formal Notice can or will be used include:

Petition for Administration Petition to Determine Beneficiaries Petition to Revoke The Probate of A Will Petition to Probate Lost Will Petition to Construe Will Petition to Remove A Personal Representative Petition to Surcharge Personal Representative Petition to Cancel a Devise

January 30, 2012

Is Non Probate separate Property That Increases in Value During a Marriage Part of the Elective Share Calculation?

by David M. Goldman

The 2nd District Court of Appeals for Florida held in McDonald v Johnson that the increase in a company stock value that happened during the marriage can be used to determine the value of an elective share calculation. The lower court ruled that the surviving spouse had no right to discovery of a company’s financial information because the company stock was not subject to probate. The 2nd DCA found that Section 742.2155(6)(c) excluded non-martial assets as defined in Section 61.075. Because the increase in value of an asset that happens during a marriage is a martial asset, they concluded that the spouse was entitled to do discovery that was necessary to determine if it would be to her benefit to claim an elective share.

Section 732.2155(6) provides as follows:

Sections 732.201-732.2155 do not affect any interest in property held, as of the decedent’s death, in a trust, whether revocable or irrevocable, if:

(a) The property was an asset of the trust at all times between October 1, 1999, and the date of the decedent’s death;

January 15, 2012

Gay Marriage a Looming Possibility in Washington State

by Patricia Davis

Florida Gay couples await the possibility of a seventh state to legalize gay marriage, as the Washington State Governor introduced legislation on gay marriage early this month. At a news conference Governor Chris Gregoire stated, “Our gay and lesbian families face the same hurdles as heterosexual families – making ends meet, choosing what school to send their kids to, finding someone to grow old with, standing in front of friends and family and making a lifetime commitment.”

For gay couples all over the country, including Florida, a state marriage license is very important. It gives same-sex couples the right to enter into a marriage contract in which their legal interests, and those of their children, if any, are protected by civil law.

For now, those in gay relationships in the Sunshine State will have to make do by protecting their own interests. This can be accomplished through a variety of legal documents. If you are a lesbian or gay man living in or around Jacksonville, Florida, take time to contact a Jacksonville Gay and Lesbian Issues Lawyer who focuses on LGBT documents to ensure that your rights, whether they pertain to health care, property, or your death are protected.

January 4, 2012

Tortious Interference with an Expected Inheritance in Florida

by David M. Goldman

Often before the death, a spouse or someone else in control of assets attempts to rearrange the assets so that it will benefit them and in doing so it can interfere with the desires of the decedent.

In these situations, the prospective beneficiaries who have been damaged have the right to bring a cause of action against the person who manipulated the decedent’s assets.

Some examples of this type of activity include cashing out insurance policies, paying bills our of one account but not another, removing funds from one account and transferring them to another in which they are the beneficiary. Selling or disposing of assets that would go to one beneficiary and converting them to cash what is distributed in another manner.

December 22, 2011

How do I file a Claim Against a Florida Trust?

by David M. Goldman

In Florida, a creditor may open a probate to reach assets of a decedent which were kept in a trust. The trustee of a decedent’s trust is responsible to file a notice of trust with the probate court. If you are unsuccessful in having the trust pay the debts directly, you can open a probate on behalf of the estate, file your claims and are entitled to be reimbursed for the legal expenses related to the opening of the probate. See Florida Statute 736.05053. Remember that failure to file a claim within 2 years of the decedents death can waive your rights to file a claim in the probate court.

If you are owned money by a decedent and can not figure out how to file a claim, contact a Florida Estate Planning Lawyer to discuss your options.

December 9, 2011

Will Contests: Are Foreign WIlls Valid in Florida?

by David M. Goldman

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.

December 6, 2011

Democrats to Introduce Bill to Lower Estate Tax Exemption to $1 Million

by David M. Goldman

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 :

Minimum 10 year term;

December 2, 2011

What are the duties and responsibilities of the Personal Representative in Florida?

by David M. Goldman

Once the personal representative (PR or executor) is appointed by a Florida court, takes the oath of office, and posts bond (if required), then he or she is authorized to administer the decedent’s estate. A Florida personal representative has a fiduciary responsibility to the creditors, the IRS, and the beneficiaries for proper administration of the estate. The personal representative must not comingle the estate’s funds with his or her own funds, and needs to be fully accountable for all of the decedent’s property during the administration of the estate. The personal representative may sell some or all of the assets of the estate to raise cash to pay the debts and expenses of the estate, if necessary or appropriate.

The personal representative is obligated to:

a) Identify, gather, value, and safeguard the assets.

b) Publish the “notice to creditors” in a local newspaper, giving creditors an opportunity to file claims relating to the estate.

December 1, 2011

What are the Different Types of Probate in Jacksonville Florida?

by David M. Goldman

There are 4 types of probate in Florida

1) Disposition without Administration.

This type of probate can only be used when the assets are less than the funeral bills and last medical expenses. This is available only if estate assets consist solely of property classified as exempt from the claims of the decedent’s creditors by applicable law and non-exempt personal property, the value of which does not exceed the total of: