Florida Estate Planning Lawyer Blog

July 5, 2011

Florida Trust Case When Asset Generates No Income

A recent Florida appellate court decision, 2010 WL 4226204, came to the conclusion that if a trust only has a piece of real property as its sole asset and the trust documents provide an intent that the trust give 5% of its annual principal disbursements to the beneficiary, no monies needs to be paid to the beneficiary. However, as a substitute, the court ordered this trust to pay 5% of the interest in the principal asset to the beneficiary. The court ruled that this would be an “equivalent transfer of interest.”

What this may mean to you: If you find yourself as the beneficiary of a trust where the sole asset is a house or some other type of real property and you are expecting a disbursement from the trust, you may be entitled to a substitute payment in an interest in the house. On the other hand, if you are a trustee of a trust with no money to make disbursements, you may still have some options depending on the language of the trust. In either case, you should contact a Jacksonville Florida Trust lawyer who can look over the facts of your particular situation, and let you know the possible legal avenues you can pursue. Or, if you are further down the road leading to litigation, you can contact a Florida Trust Litigation attorney who can represent you in court.

July 2, 2011

Securing Your Assets and Health

by David M. Goldman

According to the United States Census Bureau, the state of Florida has the highest Population Change and Net Migration of any other state, from the years 1975-2000. As is common knowledge, the baby-boomer generation is growing into retirement age, which increases the likelihood of periods of disability. There are two main options you should consider for who will manage your assets and health care decisions during a period of disability: 1) Set up a Revocable Living Trust; and/or 2) Designate a Durable Power of Attorney for Health Care.

Setting up a Florida Revocable Living Trust and a Florida Durable Power of Attorney for Health Care usually provides a person with the comfort in knowing that their health and assets will be managed for their own benefit. Using both types of documents in tandem ensures that your assets and health should not be managed to benefit the private/secret desires of another person.

If you are a baby-boomer who is not quite at the age of retirement and who may look into moving into a warmer climate such as Florida, There are options you may want to discuss with a Jacksonville Estate Planning Lawyer now, so that you can further secure your dreams of moving down south.

June 30, 2011

Calculation of Your Elective Share in Florida

by David M. Goldman

In Florida a spouse can elect to take 30% of the decedent’s elective estate. But what was not answered is what portion of the estate is that 30% applied to? The 5th District Court of Appeal of Florida has answered this question in the case of Paredes v. McLucas .

For example, if you are the spouse of the decedent, your Florida Probate Lawyer should go through the decedent’s records to find any claims that he may have had against him or her, and make a total. Next, there should be a total of mortgages, liens, and other similar devices. The claims and mortgages will be added together, then subtracted from the total amount of assets in the decedent’s estate. The elective share of 30% applies to only this amount. While this may seem simple there are many assets which are not included in a Florida Elective Share Calculation.

Doing the research is a technical and difficult process, especially in the wake of grieving over the deceased. You could contact a Jacksonville Probate lawyer to determine the exact figure, and the option you as the decedent’s spouse can take after that point.

June 29, 2011

What Happens In Florida when a Minor Child is a Beneficiary of a Last Will and Testament?

by Patricia Davis

It happens frequently. A minor child inherits either personal property, including money, bank accounts, CD’s, money markets, or is left an interest in real property. Who looks out for the best interest of the minor child?

Although Florida natural guardians (parents) have all the rights and authority over their minor child’s “person”, natural guardians do not have all of the rights and power over the minor’s “property”. Parents are authorized on behalf of their minor children to settle, collect, receive, and manage real or personal property distributed from an estate or trust, when the amounts received, in the aggregate, DO NOT exceed $15,000.00. Florida Statutes 744.301(2).

Florida law allows a court to appoint a Guardian Ad Litem (a fiduciary appointed by the court) to represent and protect the minor’s best interests. The Guardian Advocate will act for the minor child in a probate proceeding involving an inheritance by either a Will, a Trust, or when the minor child inherits property through the Florida Intestacy Statute.

June 28, 2011

What to do with your Internet passwords when you die?

by David M. Goldman

Coming of age in this digital world has its luxuries, but those luxuries come with their own set of complexities. Face Book enables you to connect with friends; blogging sites (such as this one) allow you to express your ideas to the world; and paying your bill over the Internet is convenient and environmentally friendly. What do all these different types of luxuries have in common? You must remember your password in order to access the information on them. These websites can add up quickly, and so too can the passwords that access them. Then throw in all the passwords you have for work in addition to all the passwords for your personal life, and these can be hard to remember when you are firing on all cylinders.

Digital Asset Protection.

Now, throw in an accident where you either pass away or are mentally incapable and there is a vast amount of information that you or your estate needs to access. If you have a Digital Asset Protection Trust , you will likely be taken care of. By having a Digital Asset Protection Trust , you decide who gets your online account information and what they can do with that information. To give you peace of mind, your Digital Asset Protection Trust attorney has attorney-client privilege with you, ensuring that the people who have access to your information, should a tragedy occur, will only know of those online accounts which you personally have laid out. It is never too early to begin preparing yourself in case a tragedy occurs.

June 27, 2011

New Florida Law for Durable Powers of Attorney

by David M. Goldman

In a Bill supported by the Banks, you will no longer be able to obtain Springing Powers of Attorney in Florida. In addition, not only will you be required to have two witnesses sign in your presence like with a Florida Will or Florida Revocable Trust but you will also need a notary for it to be valid.

Each agent will have full authority to act independently, there will be new Mandatory Duties, Default Duties, and separate signing requirements for certain authorities like creating or revoking trusts, making gifts, disclaimers, and powers of appointment.

In addition, certain non family members will not be able to do certain things like support others, transfer certain interests in the principals property by gift, right of survivorship, beneficiary designation, disclaimer unless the POA provides otherwise.

June 27, 2011

New Florida law for Challenging Trust Revocation

by David M. Goldman

There has just been a progressive change in the trust law governing the revocation of a revocable trust in the state of Florida. With bill HB 325, Governor Rick Scott signed into effect a law allowing a person who has had their interest in a revocable trust revoked, to challenge that revocation. This is a great piece of legislation as to ensure every interested party can protect their individual rights.

The challenge of the revocation can only on the grounds of fraud, duress, mistake, or undue influence. This means that the settlor of the revocable trust revoked a person’s interest in that trust because he or she relied on a fraudulent statement, was forced by another person to revoke, the interest was revoked by mistake, or someone was heavily influencing the settlor to revoke that person’s interest.

Maybe one of your family members has been influence by someone to revoke your interest as a beneficiary in a revocable trust. You now have a means to combat this revocation and should contact a Jacksonville Florida Trust Lawyer to discuss your options or an attorney who works on Florida Trust Litigation .

June 24, 2011

Reforming a Trust in Florida

by David M. Goldman

In order for a person to attempt to reform a trust, that person must “have standing.” This designation refers to a person who has an interest in the trust. This person can be a trustee, beneficiary, or a trustee and beneficiary. A settlor, the creator of the trust, gets to pick who will be designated in the other positions. While the settlor is still alive, he or she generally serves as trustee for that trust, and names a successor trustee to step in when he or she dies or becomes incapacitated.

The “interested parties” all have the power individually to petition a court to reform the trust. There are multiple reasons for trying to reform a trust, but which ever reason the interested party chooses as a basis for the reformation, the result must comply with both the current law and the original settlor’s intent.

The settlor’s intent is usually the trickiest to prove in court. If you have found yourself in a position where you believe a trust that you are involved in needs to be reformed, you should contact either a Florida Trust attorney to correctly set up your trust, or a Florida Trust Contests attorney who specializes in the aspects of litigation.

June 23, 2011

Florida Intestate Law Changes: You may now need or want a Florida Will.

by David M. Goldman

If you are a married person in the State of Florida and have not created a Florida Will or Florida Revocable Trust you should fully understand what will happen to your assets when you die.

Previously in Florida, if a husband or wife passed away with only children belonging to the surviving spouse, the surviving spouse would receive the first $60,000 of the decedents probate estate, while the rest was split equally between the surviving spouse and the children or their heirs.

Governor Scott signed the Florida Law on June 21st. The new Florida Law gives everything to the surveying spouse (where one has passed away without a will and is survived only by a spouse and children of that marriage).

June 21, 2011

Parents Trust Creates Ineligibility for Child on Florida Medicaid

by David M. Goldman

Suppose your parents set up a tax planning Florida Revocable Trust with the assets being held for the kids in trust. Under the terms of the trust, the trustee is to distribute net income and principle as the trustee determines is necessary for education and support in reasonable comfort. If one of the kids is on Medicaid, many states will determine that they are ineligible for Medicaid because of the availability of funds, even if the trustee does not distribute them. It is important to create trusts with the proper language to deal with special needs and not make them ineligible for Medicaid. If you would like to review your situation or have a child with special needs you should contact a Florida Estate Planning Lawyer to discuss your situation and goals.