Florida Estate Planning Lawyer Blog

November 14, 2016

Keeping Beneficiaries Informed in Florida

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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November 1, 2016

Manifestations of Intent by Settlor

by David M. Goldman

For a trust to be legally valid, it must have six elements. One of these required elements is that the settlor of the trust, or the person that creates the trust, must intend to create the trust. For a court to recognize this element, there must be a manifestation of intent by the settlor.

The manifestation of intent is important because it must be present for a court to hold a trust is valid. A ruling on validity would come into play if a beneficiary or another interested party challenged the validity of a trust. For a court to uphold a trust as valid, it would need to ensure that all of the elements are present.

The Elements of a Valid Trust in Florida

As stated above, there are six main elements of a valid trust created in Florida. These elements are:

October 31, 2016

Happy 18th Birthday. I got you a Florida Asset Protection Trust.

by David M. Goldman

A Florida Asset Protection Trust Is a Great Gift for an 18-Year-old that can be used for the rest of their life.

Almost every parent can remember the way he or she felt on the day their child turned 18. It’s the day their son or daughter takes their first steps into adulthood. Officially, they are no longer the baby you used to hold in your arms or the toddler that just learned to walk. They are adults living in the real world with all of its risks and rewards.

Parents know this mixture of feelings very well. They are excited for their child’s future but also nervous because they are still so young and apt to make mistakes. Many parents want to celebrate the child’s birthday by buying them a new car or sending them on a trip.

While these gifts are great, we often tell our clients the best gift you can give your child is an asset protection trust. A trust that can last the rest of the child’s life, which allows the parents to invest in the child, protect the investment from creditors, and allows the parent to retain some control over how the child uses the assets, after all, they are only 18 and most professionals would agree that young adults do not start making good decisions until at least 25.

In a few months my son will turn 18. One of the first things I will have him do is create a Florida Asset Protection Trust.

What is a Florida Asset Protection Trust?

October 28, 2016

Florida Case Holds Estate Planning Attorney Must Testify in an Undue Influence Trial

by David M. Goldman

Florida’s 3rd District Court of Appeal held on October 26, 201 that an estate planning attorney must break the attorney-client privilege for deceased client must by testifying in a will contest trial for undue influence. The trial court ordered the attorney to testify, and the attorney refused. The attorney appealed the trial court’s order to the court of appeal to review the issue as a matter of law. The 3rd District Court of Appeal denied the attorney’s petition and the trial court’s order now must be enforced.

The events of what led to the holding are interesting. The original proceedings by the plaintiffs sought to revoke the probate of two wills, one that was executed in 2012 and another that was executed in 2013. Four of the testator’s children challenged their mother’s mental capacity to make these wills, and assert the wills were the product of undue influence by the fifth child. The fifth child was the only child listed as a beneficiary in the 2013 will, while the other children were disinherited.

October 27, 2016

Are Remainder Beneficiaries entitled to an Accounting in Florida?

by David M. Goldman

Today I received a copy of a recent Florida’s 4th District Court of Appeal dealing with a remainder beneficiary and a the ability to demand an accounting from a revocable trust before the death of a grantor. John J. Pankauski Sent me a well-written summary of the Case from October 26, 2016 which I have adapted for the purpose of this blog. The Case ruling stated that a remainder beneficiary of a Florida trust has no right to a trust accounting, when requested post-death, for the time period of the grantor’s life, absent breach of trust allegations. This was a revocable trust which became irrevocable upon the death of the grantor/settlor.

In Hilgendorf v. Estate of Coleman, the grantor or the person who created the trust was alive, competent, and was acting as her own trustee of her revocable trust. During grantor’s life, she was did not remain the trustee and a successor trustee took over the management of the trust. It appears that the grantor still continued to direct the actions of the successor trustee and to “run” things. The grantor never requested an accounting from the successor trustee during her lifetime. After the grantor passed away, the PR or executor of the decedents estate, who was also a beneficiary, requested an accounting for the time period when the grantor was alive and the when the trust was revocable.