Florida Estate Planning Lawyer Blog

December 6, 2010

Florida Probate Code Requires Production of Wills

Gavel images.jpg Wills need to be deposited with the court within 10 days of death. Florida Statutes, Section 732.901. A Jacksonville custodian of a will must deposit the will with the appropriate clerk of court within 10 days after receiving information that the testator (person whose will it was) is dead. If the will has not been timely deposited, any interested person may upon petition and notice compel the production of the will, and receive attorney fees, costs and damages against the delinquent custodian.

A Florida judge recently entered an order requiring a custodian of a will to produce the will. The judge then entered an award of $2500.00 in attorney’s fees against the custodian who had failed to produce the will.

The 4th district court of Florida reversed the order, stating it was error by the circuit court to enter an order requiring production of a will and assessing attorney fees against the custodian of the will, without a hearing or proof that the petition to produce the will had actually been received by the custodian of the will. As the order was entered without due process the district court set it aside and remanded the case back to the circuit court.

November 29, 2010

Estate Planning and Beneficiary Designations

by David M. Goldman

When creating Florida Estate Planning Lawyer it is important to remember that once you create the documents your job is not done.

If you create a Florida Revocable Trust it is important to fund the trust or it will not provide one of the typical benefits of avoiding a Florida Probate. There are several ways of funding the trust and you should discuss these with your Florida Estate Planning Lawyer to see what makes the most sense for you and your family.

In addition, another common mistake is forgetting to make proper beneficiary designations on life insurance or retirement accounts. This is also something that needs to be carefully considered and implemented with the advise of your CPA and Florida Estate Planning Lawyer.

November 26, 2010

Lesbian and Gay Estate Planning for Couples

by Patricia Davis

gay dollerimages.jpg As a Florida lesbian and gay person in a committed relationship, you know that living in Jacksonville does not afford you the same legal rights as if you were in a relationship with a legally recognized spouse. Not only will you be ineligible to receive survivor social security benefits, or other government benefits when your same-sex partner dies, but, If you don’t have written documents in place, many partners will lose property, assets, access to their children, and the right to make medical and financial decisions.

Creating Estate Planning Documents in Jacksonville is the process of determining what you want to happen to your estate, once you are gone, which includes all the rights, titles and interests that you have in the property you own.

It is important for you to safeguard what you do have and consult with a Jacksonville Estate Planning Attorney who is sensitive to the issues prevalent in same-sex couples, to discuss the Estate Planning distribution methods which will allow you to provide for your surviving partner.

November 24, 2010

Florida Advance Directives for Gay and Lesbians

by Patricia Davis

If you are gay or lesbian in Ponte Vedra or the Jacksonville area, having properly prepared Florida Advance Directives is essential. Whether you are young, healthy, and believe you will live forever, the fact remains, that if you wait until illness, injury, or disability to strike, you will not have a voice in your own future health care.

Florida Advance Directives are written documents created by statutory authority that express your wishes and desires concerning many aspects of your future health care. A Florida Living Will expresses your wishes for the type of life-prolonging procedures as well as pain alleviating medications you want in the event you suffer certain serious medical conditions. A Designation of Health Care Surrogate and HIPAA Release will allow you to choose the person you want to make your health care decisions in the event of your future disability, as well as to give that person authority to obtain and review your medical records.

Don’t wait until you are unable to make your own decisions. Contact a Jacksonville, Florida Gay and Lesbian Rights Attorney to discuss how these legal documents are vital to your maintaining control of your future healthcare.

November 23, 2010

Guardianship for Developmentally Disabled

by Patricia Davis

Many people residing in the St. Augustine area, suffer from developmental disabilities. Unfortunately, as these individuals get older, the disease progresses to the point where the person is often unable to take care of and manage their own financial and personal affairs.

A Florida procedure can appoint a Florida guardian advocate for a person with developmental disabilities, without an adjudication of incapacity. One way this appointment can be accomplished is if the disabled person has voluntarily petitioned for the appointment of a guardian advocate. If the disabled person is able to care for some, but not all of his personal care and finances, a guardian advocate will be able to act for the disabled person in certain specified matters.

If you have a relative or friend that suffers from a developmental disability and you believe that this person is unable to care for themselves, contact a St. Augustine Guardianship Attorney to learn more about the process of being appointed a guardian advocate.

November 22, 2010

Homestead Exemption Crackdown

by David M. Goldman

Most Florida Estate Planning Lawyer deal with planning for the unexpected and protecting your assets for those after we are gone. Part of this protection and planning often involves the use of the Florida Homestead. The Homestead Exemption is not exclusive to Florida. A recent case, a New York Representative is accused of claiming a Homestead exemption for a home located in Washington, D.C.

The homestead exemption varies from location to location, but it generally applies to one’s primary home. Recently government officials have noted that even though this exemption was established in the late 1800s, still only few today take advantage of it.

Tax officials in several locations around the country, including Florida, have begun to crackdown on the number fraudulent claims that are being reported every year. The New York Times reported that Jennifer Frastai, City manager of Hallandale Florida, has begun an intensive effort to stop fraudulent homestead claims.

November 22, 2010

Florida Homestead Property Law for Condominiums

by Patricia Davis

Florida homestead is a constitutional protection which makes the homestead of a decedent exempt from the claims of creditors. Florida Homestead can apply to condominiums, however, a Florida District Court recently affirmed a lower court decision which held that decedent’s contractual interest in a condominium (which was owned by decedent at the time of her death) was not homestead property, and therefore, not protected from claims of creditors.

The decedent had purchased a life estate in a condominium from the condominium association and then entered into a repurchase agreement. The repurchase agreement provided that upon the death of decedent the life estate would automatically terminate and fee simple title would be vested in the condominium association, which would then attempt to sell the condominium for the benefit of decedent’s heirs. Therefore, the condominium was not afforded homestead protection.

Considering the descendant did not have an interest at the time of death, I am not sure what this case was about. If her interest expired at death, there was nothing there to protect.

November 15, 2010

The Future of Multi-Member LLC’s in Florida

by David M. Goldman

The recent court decision which removed the charging order protection for single member LLC’s has raised concern over whether a multi member LLC has charging order protection.

In addition, a member in Florida is defined as one who has an an economic interest in a Florida LLC as well as one who has been admitted as a member. In the case of bankruptcy, one may no longer be considered a “member” as defined in Florida law.

Many Florida lawyers are advising those who have single or multi member LLC’s in Florida to switch them to LLC’s in other states or change them to Florida Limited Liability Partnerships. Please note that just changing to a FLLP or FLLLP is not enough, one must have a special operating agreement which sets fourth obligations that will make it an executory contract in the case of bankruptcy.

November 10, 2010

Some Contemplate Dying in 2010 to Avoid Estate Taxes

by David M. Goldman

Forbes has an article about contemplation of death in 2010 to avoid estate taxes. As 2010 comes to an end, there may not be time for many to make the decision. The article quotes Rep. Cynthia Lummis in saying that some of her Wyoming constituents are planning to discontinue dialysis and other life-extending treatments so they can die before December 31st.

In many cases, the stories of this seem to be overblown as many can have the same results with good estate planning. To discuss your options contact a Jacksonville Estate Planning Lawyer.

November 9, 2010

First congressional face-off of new year could be over tax cuts

by David M. Goldman

The Bush tax cuts are set to expire on 12/31/2010. Many feel the the first face-off between Republicans and Democrats could be over the estate tax and income tax issues. If nothing is done we will see significantly higher estate taxes and income taxes in 2011.

To plan for these higher estate taxes and see hot to reduce the effects of a Florida Probate contact a Jacksonville Estate Planning Lawyer to discuss how planning can give your family advantages over the typical Florida Probate process.