November 19, 2009

Probate Basics

Posted by Lesly under Elder Law, Estate Planning, Florida Estate Planning Attorney, Probate, Wills | Tags: , , , , , , |
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Probate Basics Under Florida Law

Probate is a title proceeding required to transfer assets.  The probate process is also known as an estate administration.  A deceased person’s probate estate consists of assets held by the person in his or her name alone, or held with another as a tenant in common, or payable to the deceased person’s estate upon death.  If there are no assets for probate, then there is  no probate estate and probate is “avoided.”  But, even though a probate may not be needed to transfer assets, it may be needed for other purposes. See Fla. Probate Rule 5.210.

A will does not avoid probate.  If a person left a will, it needs to be filed in the probate court with jurisdiction over the county in which the deceased person lived at the time of death.  In Florida, probate court is a division of the circuit court.  The will should be filed with the court within ten days. 

If a person dies without a will, a petition must be filed with the court to have the deceased person’s property distributed according to the state’s laws.  These proceedings are known as “intestacy proceedings.”  During the proceedings, the judge will appoint a personal representative to supervise the distribution of the property. 

A personal representative is an individual or entity that gathers all the probate assets and administers the estate according to statutory law, court direction, and/or instructions contained in the will.  The personal representative usually must hire an attorney to help in the estate administration.  The entire probate process can take anywhere from six months to a year, or longer for larger, complicated estates.

Additional Information/Resources:

 

November 5, 2009

How to Protect Your Partner: Advice for Unmarried Couples

Posted by Lesly under Estate Planning, Family Financial Planning, Florida Estate Planning Attorney, Love, Wills | Tags: , , , , , , , , |
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Unmarried couples do not have the same legal rights as married couples. 

Most states deny same-sex couples the right to marry.  Same-sex marriages or unions may not be recognized in other states.  This is an important consideration for a couple moving to another state that does not recognize same-sex unions.  The Florida Constitution, for instance, defines marriage as a union between a man and a woman, preventing same-sex couples from having the right to marry.  Florida will not recognize same-sex unions even if they are valid in other states.

In addition to gay couples, a growing number of heterosexual couples have chosen not to enter into marriage for their own personal reasons.  According to the U.S. Census Bureau, the number of unwed couples has jumped 72% to roughly 5.5 million households from 1990 through 2000.  Marriage-free couples feel they can have whole and complete relationships without marriage, but the government does not extend legal protections to unmarried couples.

All unmarried couples suffer marital status discrimination, and must take action on their own to ensure that they have similar legal rights to married couples.  See http://www.unmarried.org/index.html

Regardless of which category you and your life partner fall into, you must create essential documents to ensure that your partner is treated with the respect he or she deserves even after you are gone.  Specify your choices regarding medical and financial decisions by using the following documents:

  • Will
  • Living Will and Advanced Health Care Directive
  • Durable Power of Attorney
  • Domestic Partnership Agreement (similar to a pre- or post-nuptial agreement)
  • Have an attorney review how you hold title to your home and other real estate
 

October 15, 2009

Celebrity Deaths: An Estate Plan Wake-up Call

Posted by Lesly under Elder Law, Estate Planning, Family Financial Planning, Money, Probate, Trusts, Wills | Tags: , , , , , , , , , |
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Here is an article from Pennsylvania Estate Planning and Taxation Attorney, Steven J. Fromm:  

Michael Jackson & Farrah Fawcett: Estate Plan Wake Up Call

 

October 14, 2009

Top 10 Excuses for Not Writing a Will Defeated

Posted by Lesly under Elder Law, Estate Planning, Family Financial Planning, Money, Probate, Wills | Tags: , , , , , , , , , , |
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There is no excuse for not having a will.  Here are the top 10 excuses and the reasons why they are bogus.

     Excuse # 1 – I am so young, I don’t even need a will.  Death is a certainty for everyone.  The only thing we don’t know is when it’s coming.  Unless you have a will, state law will determine how everything you own is devised.  Your will is your way of saying who gets what you own.  Unless you do not own anything at all, you need a will.  Now look around and think about who you want to get your stuff.

     Excuse # 2 – I don’t have time.  As someone wiser than me once said, you can sleep when you’re dead.  But, you can’t write a will when you’re dead.

     Excuse # 3 – I don’t own enough. If you own anything, you should decide for yourself who gets it.  Your earthly goods may have little monetary value, but they may have sentimental value.  To prevent family feuds, provide detailed instructions about who gets what personal property and update it often.

     Excuse # 4 – I’m single and don’t have any kids.  If you have no kids or spouse, Florida law dictates that your estate will go to your blood relatives in a particular order (see Florida Statutes 732.103).  Your friends or domestic partner will be left out unless you write a will.   

     Excuse # 5 – I have kids, but my mother will take them if I die.  Without a will, a Judge will decide who raises you kids and controls their inheritance.  All parents need to use a will to choose guardians for their children.  Parents may also appoint one person to care for the children and another person to be in charge of their money.

     Excuse # 6 - My family will know how to distribute my belongings.  Your family does not get first call.  The state does.  If you count your friends, including partners or boy/girlfriend, as family, you definitely need to get a will or they will not be left a single thing by the state.  Not having a will may end up making things more difficult for the family, friends and loved ones you left behind.    

     Excuse # 7 – I own my house jointly with my spouse or a co-owner.  The property you own in joint tenancy or a tenancy by the entirety will pass to your spouse or co-owner.  You likely still have other assets that are titled only in your name or other stuff you want to go to specific people.  Also, use of joint ownership may cause an increase in estate taxes over the joint lives of the married persons, force double probates if you and your spouse die at the same time, raise exposure during life to the debts of the other owner, and cause other hassles about estate taxes.

     Excuse # 8 – I do not need a will because I have life insurance.  Life insurance provides money to the person named as the beneficiary in the policy.  A will is still necessary to dispose of other assets that a person owns at death and name those persons that will inherit those assets.   

     Excuse # 9 – I don’t want to increase probate expenses.  Having a will does not increase probate expenses.  If anything, having a will reduces probate expense.  Even if you have no will, your heirs will still have to go to court to administer your estate.  The procedure for administering an estate is often more expensive than administering a will.  A properly drawn will names the beneficiaries and delineates procedures to simplify the administration process.  Not having a will likely makes this process take longer and cost more. 

     Excuse #10 – I cannot afford to write a will.  Contrary to popular belief, it doesn’t cost much to write a will.  It is certainly not a pleasant thing to think about.  Why not delegate it to a qualified professional?  Many attorneys offer reasonable, flat fees and free consultations.  There is plenty of competition, so if you don’t like one attorney, consult with another one.  Attorneys will ensure that your will is properly executed and will alert you to issues you may not have thought of before (like taxes or health care directives, for example). 

Contact me or share your comments below.

 

October 13, 2009

Obtaining a Copy of a Will & Understanding the Process

Posted by Lesly under Estate Planning, Family, Florida Estate Planning Blog, Probate, Wills | Tags: , , , , , , , , , |
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I have received several questions about how one processes or obtains a copy of a will, especially when there are doubts as to its validity.   Here is a recent one.

Question:  My dad passed away here in Florida where he lived, but someone coming in for the funeral from Texas says he has my dad’s will in a safe deposit box, and that he will tell everyone what they will get when he gets here.  Is that legal?  Is there some kind of process we need to go through to make sure that’s what my dad wanted? 

Answer:  There is a formal process for this under Florida law.  This is known as Probate.  Your father must have created a valid Will.  Otherwise, his estate will pass according to state law.  Your father’s friend from Texas should file the Will with the Clerk of the Circuit Court in the county where your father lived.  The Texan can show you the Will if he wants, but that is not required.  If he doesn’t show you the Will, you can obtain a copy of it from the court after it is filed.  A Judge will rule on the validity of the Will, and you can contest it under certain circumstances.  If the person with possession of the Will does not file it within a reasonable amount of time (10 days), you can file an action with the court requiring him to do so and have him pay your attorney’s fees and costs as well.  You can also have a Florida attorney send him a letter demanding that he comply with the law before filing in court.  Please feel free to contact me for assistance.

 

October 7, 2009

Living Wills: Yes You Can Do It Yourself

Posted by Lesly under Elder Law, Estate Planning, Florida Wills & Trusts, Wills | Tags: , , , , , , , , |
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Will

I recently received the following question: Is your living will protected from creditors?

A Living Will is not the same as a Legal Will. A Legal Will disposes of personal property after death and appoints a personal representative.  A Living Will provides instructions regarding future health care and end-of life scenarios.  A Living Will has nothing to do with your property or claims from creditors.

Under Florida law, every competent adult has the right to make decisions about his or her own health, including the right to advise the doctor to withhold or withdraw life-sustaining equipment (“pulling the plug”).  The Florida Legislature has provided a suggested form to do this within Florida Statutes §765.303.  The free Living Will form is also available from the Florida Bar’s website.  You should sign a Living Will in front of two witnesses, at least one of which should not be related to you by blood or marriage.  Once you have created a Living Will, provide a copy to your treating physician or hospital.  Keep another copy in a safe place.

You may also choose a Health Care Surrogate to make all health care decisions on your behalf in the event you become unable to do so.  If you have no Living Will, but you have executed a valid Health Care Surrogate designation, the surrogate can make decisions on your behalf should you become incapacitated.

If you need legal assistance to create these documents, please do not hesitate to contact me, a Florida Estate Planning Attorney.  I include a free Living Will and Health Care Surrogate designation with any Will or Estate Planning Package created by my office.

 

October 1, 2009

DIY Will Form Kits v. Attorney

Posted by Lesly under Consumer Advocacy, Estate Planning, Family Financial Planning, Florida Estate Planning Blog, Love, Probate, Tampa Wills & Trusts Attorney, Trusts, Wills | Tags: , , , , , , , , , |
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You can choose from many “do-it-yourself” last will and testament form kits.  So, is it worth the money to pay an attorney to write your will for you?  Well, an attorney may be less expensive in the end. 

In their consumer pamphlet on wills, the Florida Bar states, “No sensible person would employ ‘just anyone’ to fill teeth, take out an appendix, or deliver a baby.”[1]  So why do the same for your important legal documents?  If you really are trying to protect the financial security of your loved ones, don’t you think it is worth the money to consult with a professional?  For those that do not agree, their heirs will probably have to spend a fortune on lawyer fees to sort out the mess after their passing. 

A Will can be contested if it was not properly drafted, signed, or witnessed in accordance with the applicable state laws.  Laws regarding Wills and the administration of estates vary by state.  So Florida law is different from, say, California law.  For instance, in Florida we have real property law, such as Homestead, which takes precedent over estate planning tools.  What state laws, if any, were used or considered when your DIY Will was drafted?  Who knows.

While you may find a kit that claims to have forms for Florida, buyers beware:  every kit will make you acknowledge that it does not guarantee that it is able to do what it promises to do.  That’s right, it may not provide you an enforceable last will or trust.  Sadly, the warnings pop up at you after you buy the software, but most of us do not read them.   

When you accept the terms, you are likely agreeing that you understand that the software you bought to create important legal documents may not achieve the purpose you intend and does not offer legal advice.  In fact, it makes clear that it does not provide you any value.  It is as good as a blank piece of paper.  Just read it for yourself.  Take, for instance, Findlaw Forms’ Conditions of Use, which warn users that, “We do not provide any express or implied warranties of merchantability, suitability or completeness for any of the products or services for your particular needs.  The products and services are used at your own risk.” 

Suze Orman, who offers financial planning advice on TV, sells a Will & Trust Kit as well.  Her Terms and Conditions similarly state in relevant part: 

TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, SUZEORMAN.COM HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.  SUZEORMAN.COM DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIALS IN THIS WEBSITE IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE.

She wears snazzy jackets and has plenty of spunk, but that does not make her qualified to offer legal advice.  For all Suze (or her company) knows, your designated beneficiaries may not get what you think they will because she can’t guarantee that the forms are fit or reliable for any use, let alone use as a Last Will or a Trust!  Lawyers provide legal advice and are liable for their professional negligence.  Lawyers guarantee you they will use their best professional skill.  Moreover, many lawyers charge affordable fees.

Ultimately, when you use one of these form kits, you are taking a huge gamble on your family’s financial security because your documents may not be legally enforceable.  People with very limited funds and a modest estate may still find that one of these kits is worth the uncertainty.  If you really put family first and you have any money or property to leave them, there is no way you should rely on a do-it-yourself form instead of seeking the assistance of counsel.  Contact an attorney in your state.  A Florida estate-planning attorney can help you with this process, answer your questions, and help you plan for your family’s financial security. 

Thank you to The Consumerist, a national consumer advocacy website, for featuring this article!

Please do not hesitate to contact me with any questions, or post your comments below!

[1]Consumer Pamphlet: Wills Trusts & Estates, The Florida Bar, available at:  <http://www.floridabar.org/tfb/TFBConsum.nsf/48e76203493b82ad852567090070c9b9/a0091ab18d4875d085256b2f006c5b75?OpenDocument>

 

September 30, 2009

Florida Probate Courts Go Electronic

Posted by Lesly under Estate Planning, Florida Estate Planning Attorney, Florida Estate Planning Blog, Money, Probate, Tampa Bay Probate Attorney, Tampa Wills & Trusts | Tags: , , , |
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Florida Probate courts will be the first to implement a new legislatively mandated electronic filing (e-filing) system.  The court clerks will begin implementing the e-filing system tomorrow, October 1st.  While the new system may not be up and running in every county starting on October 1st, a Probate e-filing Work Group will work out the complexities of the new system.  Two Florida counties, Broward and Pasco, have already implemented electronic filing for probate issues.  The new system will save time, paper and money.  It will allow probate attorneys to use the same system to file in any county in the state.  A Florida Estate Planning and Probate Lawyer can assist you in filing probate in Florida.

 

September 14, 2009

The Initial Consultation

Posted by Lesly under Estate Planning, Florida Estate Planning Attorney, Probate, Tampa Bay Probate Attorney, Tampa Wills & Trusts Attorney, Trusts, Wills | Tags: , , , , , |
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The purpose of the initial consultation is for you, the client, to meet the attorney and share your thoughts, concerns, and needs with them.  The attorney will tell you what, if anything, can be done to address your concerns, and how much it will cost you.  The purpose is not to give the client definitive legal advice, as it may be impossible to fully assess the matter at the first meeting.  After or during the meeting, the client decides whether to hire or retain the attorney.  If the attorney chooses to handle your case, the attorney will give you a retainer agreement or contract for legal services that quotes the fee.

It is important to come to your meeting prepared.   I ask clients to bring their current will, if any, and tax returns for the last two years.  Being ready for the meeting also entails thinking about what your assets are and who you would like to give them to before going to the estate planning meeting.  Think about whether you have any beneficiaries with special considerations.  Maybe your child has special needs, or you have a diabetic cat.  You should also consider what information others will need if they are going to handle your family’s financial matters in your absence.  Tell the attorney exactly how your assets are held. 

Many attorneys will provide you with a form that will help you organize the information you need for the planning session, as we call it here.  I am providing a copy of the form my firm uses here: estate planning questionnaire.  After scheduling an office consultation, clients fill out the form and either mail it in before the meeting or bring it in with them.  Some clients are more comfortable providing the information requested in this form in person during our initial consultation and that is okay too.  Any information clients provide is confidential. 

An estate planning attorney licensed in your state will be able to help you create enforceable documents under current state law.  Do not hesitate to ask about fees up front or whether an attorney will be meeting with you.  At my firm, you will always meet with me, and I will personally customize estate planning tools for you.  I use value-based pricing and will charge a fixed, flat fee for most services.  Half of the fee will be payable in advance, with the other half due upon completion.  Please do not hesitate to contact me to schedule an estate planning consultation or a telephone consultation with me.  I look forward to hearing from you!

 

September 8, 2009

When to Update Your Florida Will or Estate Plan

Posted by Lesly under Estate Planning, Family Financial Planning, Florida Estate Planning Blog, Love, Money, Probate, Trusts, Wills, marriage | Tags: , , , , , , , , , , |
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If you already have a will, there are certain events that may trigger the need to service or update your estate plan. 

  • Marriage, divorce, or separation
  • Arrival of a new child by birth or adoption
  • Substantial changes in the value of your assets
  • Loss of benefits or change in business
  • Decline in health
  • Purchase of a property
  • Sudden need to take care of a family member or friend
  • Death of a family member or spouse
  • Move to a new state
  • Tax law changes
  • Desire to pick a new successor beneficiary, trustee, representative, guardian, or administrator.

The Florida Bar has created consumer pamphlets to provide information to the public.  I highly recommend reviewing the pamphlets on wills, trusts, and estates.  The pamphlet can be found by visiting www.floridabar.org and clicking on the consumer information tab under public information.  To schedule an initial consultation, please contact me, a Florida Estate Planning Attorney.