Florida Estate Planning Lawyer Blog

November 1, 2016

Manifestations of Intent by Settlor

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.

October 4, 2016

Florida Passes Fiduciary Access to Digital Assets Act

by David M. Goldman

In March, the Florida governor approved a new law called the Florida Fiduciary Access to Digital Assets Act, which allows the loved ones of a decedent to access any digital assets he or she may have owned before death. This allows loved ones to access the recently deceased’s text messages, emails, online photographs, social media, and other electronic communications that would have otherwise been lost forever.

The act also allows Florida residents to plan for the management and disposition of digital assets should they become incapacitated or unable to manage their digital assets. Should either of these events happen, a person can grant an authorized fiduciary the power to access, control, or copy digital assets and accounts.

The Definition of Digital Assets

Digital assets under this Act are any electronic record that Florida resident has a right or interest in. This definition does not include any underlying assets or liabilities of the electronic asset. Examples of digital assets include information recorded on a computer or other digital device such as an external hard drive.

September 26, 2016

How Long Does Florida Probate Take

by David M. Goldman

One question the most frequent questions our Jacksonville estate planning lawyers receive is how long does a probate case in Florida take? Often the best answer to how long a Florida Probate Case takes is “it depends.” The answer usually depends on how vast and complex the decedent’s estate is if there are a lot of beneficiaries or if there is any litigation involved the estate.

A Probate Case in Florida Can End Quickly or Take Years to Complete

A probate case in Florida can be quick if the estate is small and there are not any complicated procedural issues. Simple estates can be fully probated in as little as a few weeks or as long as few months. Something the county where the probate case is located can affect how long a Florida Probate case takes
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September 26, 2016

2016 Amendments to the Florida Probate Rules

by David M. Goldman

This year the Florida Probate Rules Committee has a added a few new rules to the Probate Code. Many of these rules are minor amendments to the old rules or clarifications of previously vague language. The biggest change to the code was the addition of a separate rule for Guardian Accounting under 5.696. This means there are now different rules for guardian accountings from the other types of probate accountings.

Below is a summary of the 2016 amendments to the Florida Probate Rules

September 23, 2016

Promise To Establish A Trust In The Future

by David M. Goldman

The general rule in estate planning is that if something is not in writing it usually will not be legally valid. For instance, Florida law requires a Will or trust must be in writing to be effective. However, one question we often receive is if a promise to create a will or trust is enforceable by a court?

The answer is a promise can be enforceable. However, certain conditions would have to occur. To further explain, the promise would have to meet the formal requirements of a contract. A contract, whether written or oral, must have three elements to be enforceable.
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September 12, 2016

Florida Homes Titled A Certain Way Not Qualify As A Homestead.

by David M. Goldman

Florida offers some of the strongest homestead protection laws in all of the United States. When a resident of Florida dies, the law protects the surviving spouse and minor children from becoming homeless by preventing the decedent from giving his or her estate to someone else through a Will or Trust. However, a recent court ruling may have weakened the homestead law.

These laws provided by the Florida Constitution are strong, but there are some limitations by recent court decisions. A Florida Probate Court created a limitation in the case of Marger v. De Rosa, 57 So. 3d 866, 866 (Fla. Dist. Ct. App. 2011) where a mother and son owned a home as joint tenants with rights of survivorship. The son, Mr. De Rosa, had two minor children when he purchased the home with his mother. A few years later he died with no surviving spouse, two minor children, and an adult child.
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September 9, 2016

Jurisdiction of Florida Trust Case

by David M. Goldman

Florida Trust Code & the Florida Long Arm Statute

There are many estate planning benefits for creating a revocable or irrevocable trust in Florida. Trusts can help our Jacksonville clients avoid probate, efficiently manage assets, save money on estate taxes, and protect assets. A person can create a trust in any state, but Florida is unique because of the Statutes that make up the Florida Trust Code.

One of these is the Florida Trust Code’s long arm statute. This law can be found under Florida Statute 762.0202, is a law that was specifically tailored to protect Florida trusts in litigation. This law states that a Florida probate court will decide just about any lawsuit or litigation involving a trust created in Florida.