Florida Estate Planning Lawyer Blog

December 7, 2016

Homestead Protection In Florida

Florida’s homestead protections are renown throughout the country for the great homestead protection laws that protect state residents. These laws are found in Florida’s Constitution and offer key protection in three different ways. The state constitution offers protection from creditors, tax exemptions, and transfer restrictions to protect spouses.

Homestead Protection From Creditors

Article X, Section 4 offers Florida exempts the homestead property from creditors. This means that a creditor cannot force the sale of a homestead to satisfy a judgment. Florida courts have graciously expanded the meaning of homestead to include a house, condominium, a manufactured home, and mobile homes. The Florida Constitution defines homestead as one’s principal place of residence including up to one-half acre within a municipality and up to 160 contiguous acres outside a municipality.

December 1, 2016

Does a Revocable Trust Allow My Assets to Pass Outside of Probate Automatically?

by David M. Goldman

One of the best tools estate planning attorneys in Jacksonville utilize for their clients is the Florida revocable trust. The revocable trust is also known as a living trust. A revocable trust has many benefits including the ability to help individuals avoid probate. However, many people do not realize that setting up an estate plan with a revocable trust in Jacksonville is not the final step to avoid probate in Jacksonville or around Florida.

Once the trust has been established, the settlor, or the creator of the trust, or another person must fund the revocable trust. Funding the trust is the process of transferring assets from the settlor’s name to the revocable trust. To do this, the settlor must physically change ownership or the beneficiary designation, or in some cases both from the settlor’s individual name (or joint names, if married) to the name of the revocable trust.

As many as 9/10 estate plans fail because funding was not done, was not complete, or was done incorrectly. As a result, we now offer trust funding as part of many of our estate planning packages.
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November 29, 2016

How to Change Marital Status on Florida Death Certificate

by David M. Goldman

Correcting a Death Certificate in Florida for a Change in Marital Status

We often receive calls about how to correct a Florida Death Certificate in relation to filing a Probate case in Florida. Correcting a Florida Death Certificate is done through Florida Vital Statistics which can be reached at:

DEPARTMENT OF HEALTH
Bureau of Vital Statistics
PO Box 210
Jacksonville, FL 32231

(904) 359-6900, EXTENSION 9005

SURVIVING SPOUSE: With the exception to a misspelling or an omission, the department may not alter the surviving spouse item except on order of a court of competent jurisdiction.

To make this change you will need to hire a lawyer to file a petition and obtain a court order to make the changes. Below is some information on other types of changes that can be made to a Florida Death Certificate and how they can be made.

November 28, 2016

Is An Estate Liable For Rent When A Roommate Dies?

by David M. Goldman

As Jacksonville estate planning attorneys, we often come across unusual scenarios that require a deep look into the law. A recent questions posed to the Jacksonville probate attorneys at the firm was: “Is a roommate’s estate liable for the unpaid rent after he or she passes away”?

The short answer is no the estate is not responsible to the landlord, but the roommate may have a claim against the estate. When a person and his or her roommate sign a lease with a landlord, by default both roommates agree to jointly and independently pay the full rent each month. A landlord usually does not know how rent is divided each month as long as the checks arrive on time.

This means the landlord can sue either or both tenants named on the lease if the rent goes unpaid. This is true even if the roommate is a boyfriend, girlfriend, brother or sister. This is why the estate planning attorneys at The Law Office of David M. Goldman PLLC recommend that a surviving tenant continue to pay the rent after the death of a roommate.

Can the Default Rule Be Changed?

Usually, when multiple roommates live in an apartment or house, they split the rent. Maybe each roommate pays equal rent, or one roommate pays a proportion of use of the property. One solution is for the roommates to form a legally binding contract called a “roommate agreement.” This agreement addresses how the parties to the contract will pay the rent and other household bills.
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November 14, 2016

Keeping Beneficiaries Informed in Florida

by David M. Goldman

Every trustee of a Florida Trust may have a fundamental duty to keep the trust’s beneficiaries informed of the administration of the trust. Florida Statute Section 763.0813 provides that a trustee must keep the qualified beneficiaries of the trust “reasonably informed of the trust and its administration.”

The statutes do provide a few examples of what a trustee must do, such as providing the qualified beneficiary with the trustee’s contact information, notice of the establishment of an irrevocable trust, notice of the right to receive a copy of the trust document, and a notice of the right to receive accountings.

Note, there are ways in Florida to avoid having to provide many of the details to beneficiaries, but you must specify them in advance.
Who is a Qualified Beneficiary in Florida

Many of our Florida clients are surprised to learn that the term “qualified beneficiary” does not mean what a client would assume. A qualified beneficiary not only includes beneficiaries who are eligible to receive a distribution from an irrevocable trust but also includes the first-in-line remainder beneficiaries.

This is a significant requirement because some other states may permit a settlor, the person that creates the trust, to withhold information from certain beneficiaries. The settlor may wish to withhold information for one reason or another, and certain states will allow the settlor to do so for a certain period without providing an alternate recipient if the settlor includes this provision in the trust instrument. However, Florida is not one of these states, and the settlor cannot dictate that only certain beneficiaries can receive administrative information in the trust document.

November 10, 2016

Can You Be Punished For Bringing A Lawsuit in Bad Faith Against An Estate?

by David M. Goldman

A will or trust is one of the essential documents that every person should create. These documents dictate how a person’s assets should pass after death to a personal representative or a trustee. However, will and trusts are sometimes contested by family members when the documents are legally invalid, or someone suspects foul play was involved in the procurement of the document.

What many do not know is that a person that brings a will or trust contest in bad faith can be punished by a Florida probate court. The procedures for bad faith can be found in Florida Statute section 57.105 if a defendant or the court suspects the case was brought in bad faith.

November 8, 2016

Medicaid Liens On A Plaintiff’s Wrongful Death Award

by David M. Goldman

Florida medicaid Liens. Florida residents that suffer from injuries caused by another person are lucky because they can often pay costly medical bills through Medicaid if they qualify for coverage. Medicaid is a government assistance program that provides long-term health coverage to those with low income and few assets. It is sometimes necessary for the person injured to seek further relief by suing the person that caused the injury.

However, what many people do not realize is Medicaid can place a lien on any judgment or monetary settlement a plaintiff receives for wrongful injury or death. The issue then becomes should Medicaid receive a reimbursement for all services given to the recipient or just the medical expenses.
This issue came up in the case of Ark. HHS v. Ahlborn, 547 U.S. 268 (4th DCA July 20, 2016). In this case, the recipient Heidi Ahlborn was severely and permanently injured by in an auto accident with another driver. The other driver was at fault for the accident. Ahlborn owned little assets, which made her able to qualify for Medicaid coverage in her state.

November 7, 2016

Estate Planning Can Help A Person Prepare for life with Memory Loss

by David M. Goldman

Estate planning is important to prepare for potential memory loss. Studies show that memory loss is one of the most common ailments that an older person experiences as they begin to age. Memory loss is often a sign of early dementia, and those that suffer from dementia may not be legally competent to make financial or legal decisions. The best way to prepare for life with dementia is to plan for it through estate planning.

It is imperative to start estate planning when the early signs of memory loss begin. At this point, the person should consider their healthcare and financial future. The client should begin to think of who would be a suitable person to name in a power of attorney, whether or not the client wishes to live on life support during a coma with little chance of recovery, and where the client’s assets should go once he or she passes away.

Further, the client needs to start gathering documents to bring to an estate planning attorney. The client should create an itemized list of assets, and store copies of deeds and titles of assets, copies of tax returns, and copies of health insurance policies. This will allow the Jacksonville estate planning lawyers at The Law Office of David M. Goldman to create an estate plan that caters to the client’s unique needs.

November 3, 2016

Can You Prevent a Marriage in Florida?

by David M. Goldman

Can a Marriage be Prevented in Florida? We often get questions about whether the Fundamental Right to Marry Extends beyond Incapacity?

The state constitution of Florida offers every citizen basic fundamental rights. One of the most important of these rights is a Florida resident’s fundamental right to marry. The right to marry in Florida is strong and has grown ever stronger recently due to the U.S. Supreme Court’s holding that same-sex marriage is a right.

However, this right to marry in Florida is not without its limits. Under the current state laws, an incapacitated person cannot marry without court approval. When a person is deemed incapacitated by a court, he or she loses the ability to contract with others. As unromantic as it sounds, marriage is a contract between two people. Two people cannot get married if one of the persons to the marriage no longer has the ability to enter into a contract.

If an incapacitated person marries then the marriage may not be valid. So what is a valid marriage? According to the court in Goldman v. Dithrich, 179 So. 715 (Fla. 1938), “To constitute a valid marriage, the marital contract must be voluntarily entered into in good faith for the purposes actuating such contracts, the parties must be legally eligible to make the contract, and their status must be such that the union will not be contrary to public policy or obnoxious to the prevailing social mores.”
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November 2, 2016

Should Florida Enact a Disinheritance Statute to Prevent Elder Law Abuse?

by David M. Goldman

Elder law is one of the most important legal fields in Florida because it helps address the unique needs of this state’s large elderly population. One of the growing concerns in the legal community is the rise of elder abuse. The abuse is frequently under-reported, and worse, the abusers are the persons that often benefit from the abuse.

The elder law attorneys at The Law Office of David M. Goldman PLLC frequently come across older clients that have suffered some form of physical or emotional abuse that allows the abuser to exploit the client. Tragically, the abuser is often a person close to the client such as a family member or a close friend. Studies show that elder abuse is a growing problem in Florida and areas like Jacksonville and Ponte Vedra.

Why Are The Current Laws Not Enough?
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