7 Facts about a Last Will and Testament in Florida

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  1. A person must be 18 or older to create a will.
  2. There is a presumption of sound mind unless proved otherwise by a very high standard.
  3. Joint wills and holographic, or hand written wills, are not recognized by Florida.
  4. Florida does not recognize oral or death bed wills.
  5. You can set up a trust for a pet’s care known as the Florida Pet Trust.
  6. A lost will is presumed to have been revoked by the testator.
  7. Any provision providing for a spouse is revoked upon separation with the intent to be permanently divorced, or the marriage is otherwise dissolved.

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Disclaimer: The content in this internet website is for informational purposes only and should not be construed as legal advice. Please contact an attorney for legal advice.

Avoiding Probate Court in Florida

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Probate court proceedings (during which a deceased person’s assets are transferred to the people who inherit them) can be long, costly, and confusing. It’s no wonder so many people take steps to spare their families the hassle. Different states, however, offer different ways to avoid probate. Here are your options in Florida.

Living trusts

In Florida, you can make a living trust to avoid probate for virtually any asset you own — real estate, bank accounts, vehicles, and so on. You need to create a trust document (it’s similar to a will), naming someone to take over as trustee after your death (called a successor trustee). Then, and this is crucial, you must transfer ownership of your property to yourself as the trustee of the trust. Once all that’s done, the property will be controlled by the terms of the trust. At your death, your successor trustee will be able to transfer it to the trust beneficiaries without probate court proceedings.

Joint ownership

If you own property jointly with someone else, and this ownership includes the “right of survivorship,” then the surviving owner automatically owns the property when the other owner dies. No probate will be necessary to transfer the property, although of course it will take some paperwork to show that title to the property is held solely by the surviving owner.

In Florida, two forms of joint ownership are available:

  • Joint tenancy. Property owned in joint tenancy automatically passes to the surviving owners when one owner dies. No probate is necessary. Joint tenancy often works well when couples (married or not) acquire real estate, vehicles, bank accounts or other valuable property together. In Florida, each owner, called a joint tenant, must own an equal share.
  • Tenancy by the entirety. This form of joint ownership is like joint tenancy, but is allowed only for married couples in Florida.

Payable-on-death designations for bank accounts

In Florida, you can add a “payable-on-death” (POD) designation to bank accounts such as savings accounts or certificates of deposit. You still control all the money in the account — your POD beneficiary has no rights to the money, and you can spend it all if you want. At your death, the beneficiary can claim the money directly from the bank, without probate court proceedings.

Transfer-on-death registration for securities

Florida lets you register stocks and bonds in transfer-on-death (TOD) form. People commonly hold brokerage accounts this way. If you register an account in TOD (also called beneficiary) form, the beneficiary you name will inherit the account automatically at your death. No probate court proceedings will be necessary; the beneficiary will deal directly with the brokerage company to transfer the account.

Transfer-on-death deeds for real estate

Florida does not allow real estate to be transferred with transfer-on-death deeds. There is a type of deed available in Florida known as an enhanced life estate deed, or “Lady Bird” deed, that functions like a transfer-on-death deed.

A good estate planning attorney can help you get all your properties and estate in order to avoid probate court. Having a proper estate plan can give you peace of mind. It’s not only for your benefit, but to protect your legacy for the benefit of your loved ones.

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Disclaimer: The content in this internet website is for informational purposes only and should not be construed as legal advice. Please contact an attorney for legal advice.

 

Do I need to update my estate plan when I move to Florida?

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When you move to Florida from another state, there could be concerns regarding your estate plan. Laws that affect estate planning decisions vary from state to state. Your estate plan (your Last Will and Testament, Designation of Healthcare Surrogate and Power of Attorney, etc.) from another state may still be valid in Florida. However, there are differences in state laws that might cause provisions to be invalid or prevent them from achieving your desired estate planning goals. When you move to Florida, you should consider updating your documents, or at the very least having them reviewed by a local attorney in case any changes need to be made to accommodate Florida’s laws. Plus, laws may change over time. Every few years you should consider reviewing these documents to make sure you are still current and nothing has changed in your life.

Having a proper estate plan can give you peace of mind. It’s not only for your benefit, but to protect your legacy for the benefit of your loved ones.

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Disclaimer: The content in this internet website is for informational purposes only and should not be construed as legal advice. Please contact an attorney for legal advice.

Updating Your Power of Attorney and Designation of Health Care Surrogate

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Whenever clients ask if they need to update their power of attorney or designation of health care surrogate papers, my first question back to them is: “When was it created?”

If they tell me it was before April 14, 2003, I would recommend they update them both.

The April 14, 2003 date relates to the required compliance date of the privacy regulations under the Health Insurance Portability and Accountability Act (HIPAA), a law which was enacted in 1996.

The HIPAA privacy rule imposed strict guidelines on the disclosure of “protected health information” without the patient’s explicit permission. While these privacy protections are a good thing, they can also become problematic if your executor, trustee or agent (under a durable power of attorney) needs to deal with your employer, insurer or medical providers such as doctors, clinics and hospitals. Due to this rule, to act on your behalf, an authorized person must have a written document executed by you, with very specific language mandated by HIPAA.

So if your power of attorney or designation of health care surrogate was executed before April 14, 2003, your executor, trustee or agent may not be able to work effectively with your medical providers and insurers. To fix this problem, Cristin Silliman, Esq. of The Legacy Law Firm, llc can help you update your documents to include the language required by HIPAA.

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Disclaimer: The content in this internet website is for informational purposes only and should not be construed as legal advice. Please contact an attorney for legal advice.

The Benefits of Florida Living Trusts

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A trust is a legal arrangement whereby specified assets are managed by a trustee for designated beneficiaries on behalf of the individual, known as the grantor, who created the trust. A trust document specifies the rules for managing, distributing, and disposing of the trust assets. Living trusts are used as part of a broad financial and estate planning process to protect the privacy of the grantor’s assets, for tax benefits, and to facilitate the transfer of assets to designated beneficiaries upon the grantor’s death, or incapacity, without delay or encumbrances. When establishing a Florida living trust, you must determine whether it shall be revocable or irrevocable.

Revocable Living Trust

A revocable living trust is designed to maintain the privacy of your assets and to quickly pass the assets through to your designated beneficiaries at the time of your death, or incapacity. A Florida living trust is sometimes used in conjunction with a will. It is important to note that a Florida revocable living trust does not shield the trust’s assets from creditors. The assets in a revocable living trust may be shielded from estate tax upon the grantor’s death. A revocable living trust may be amended or revoked by the grantor at any time.

Irrevocable Living Trust

An irrevocable trust is a legal entity that typically shields the assets that are inside the trust from creditors, litigants and even the grantor’s spouse. It is important to note that the irrevocable trust becomes the legal owner of the trust’s assets and once the irrevocable trust is created, it cannot be amended or revoked. Access to the trust is typically limited to only the trustee and its beneficiaries. There are tax benefits too. Assets that are in an irrevocable trust escape the estate tax.

Cristin Silliman, Esq. of The Legacy Law Firm, LLC has extensive experience in establishing trusts for her clients. Because a Florida living trust can have significant legal and tax consequences, she can help you determine which living trust is in your best interest. Please contact her at 813-925-8083.

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Disclaimer: The content in this internet website is for informational purposes only and should not be construed as legal advice. Please contact an attorney for legal advice.

Quitting Your Job to Start a Business: Are You Ready?

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Many entrepreneurs start their business venture while retaining their current job. As such, they face a formidable dilemma. The desire to focus all their time and attention on a new venture is powerful, yet it must be weighed against the associated risks — small stuff like giving up a predictable salary and benefits.

There’s no tests that can determine the right time to quit a “day” job, but here are a few questions to ask before you turn in a resignation letter.

Q: Is My New Business Poised to Thrive?

Sure, you might have plans for a successful business in mind, along with the skill required to lead it. But you have to consider whether market conditions are favorable and whether you have the resources on hand to steer the business to profitability.

Make sure you have enough money to spend on the business and pay your living expenses long enough to allow you to build the company. Don’t be stingy here: Allow enough of a cushion so that the new company doesn’t die on the vine if it takes longer to catch on than you envisioned.

Also, don’t be afraid to reach out to others for their input. Ask someone you trust, but who will be objective, to review your business plans.

“There’s a reason why entrepreneurs start businesses and why most people don’t. Entrepreneurs have different views of the world, different risk tolerances,” says Barry Levine a Los Angeles-based vice president in Northern Trust’s Financial Consulting practice. “Aspiring entrepreneurs have a greater tendency to see the glass as half full. Before launching your business, it can be very helpful to talk to someone who has expertise but not the same filters and biases.”

Q: Is Your Family Prepared?

You’re ready to live with some financial uncertainty, work the long hours required and skip vacations for a while. But are your spouse and kids?

“It is advantageous to sit down ahead of time with your spouse and envision what this will look like,” Levine says. With your spouse, be specific in terms of your day-to-day routine, your leisure time and expenditures, your cash reserve — everything that might be affected. Your entrepreneurial adventure will be better if everyone knows what to expect.

Talk through the emotional component, as well. Levine has worked with couples whose risk tolerances vary widely. It’s best to know at the onset if your spouse “is someone who is going to be absolutely terrified at the thought of not having a regular paycheck coming in,” Levine says.

Timing is everything. You may be emotionally ready to leave your job and focus on your new business. But if your spouse is nervous — or if your projections indicate you’ll have only a few months in which to turn a profit before you run out of money — you might consider a planning phase. For example, you could stay at your current job and funnel more money into savings while devoting night and weekend hours to lay the groundwork for your new venture.

Q: Is Now the Right Moment to Strike?

Once you’re confident that you have a solid business plan and there’s enough money socked away to allow you to execute your plan to perfection, it’s a matter of choosing the right moment to strike. Consider three potential indicators:

  1. The market: As you’re preparing your business plan and bolstering your savings, keep a close eye on activity in the sector you plan to enter. If you sense that competitors who have been on the sidelines are jumping into the action, it may be worth following suit even if your savings strategy is several months from completion. “So much of success is doing the right thing at the right time,” Levine says.
  2. Business maturity: If you’ve started the company as a nights-and-weekends venture while maintaining your other job, the growth of the business will tell you when it’s hungry for more attention. If you’re having trouble filling your orders, or if the only way to accept a big contract is to devote full-time energy to it, it may be time to move ahead.
  3. Your “fed-up” moment: Levine also provides leeway for the burnout victim. If you’re paralyzed by inertia and lack of motivation in your current role, it may be time to make the jump even if some of the other boxes aren’t checked.

“At some point, you have to acknowledge the emotional side as well as the financial side,” Levine says. “Sometimes, entrepreneurs just have a burning desire to call their own shots and do it their way.”

Of course, doing it your own way is a lot more fun when you succeed, which generally requires a mix of passion and preparation. When the two are aligned, you have the formula for entrepreneurial success.

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Disclaimer: The content in this internet website is for informational purposes only and should not be construed as legal advice. Please contact an attorney for legal advice.

Why Families With Minor Children Need Wills and Estate Planning

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If you are a parent with minor children, this is, or should be a very important issue for you. Most parents do not like to think about what would happen to their children if they were not able to take care of them. Many think that it will never be an issue for them and that it “couldn’t happen to them”.

While it is highly unlikely that you will die while your children are minors, are you willing to take that chance with your child’s well being? Who will care for and raise your children if you and your spouse die at the same time? If you are a single parent and the sole caregiver of the child what will happen to him or her if you die? Most of these concerns can be addressed with proper estate planning. Estate planning attorneys are trained to know what questions to ask and what types of tools and techniques to discuss with their clients to help them with these dilemmas.

A common concern among parents of minor children is how to provide income for the care of their children should something happen to them. In addition to worrying about how they will provide income for the care of their children, they worry about who will manage those funds in order to make the money last until the children reach adulthood and self-sufficiency. Many parents put off the issue of discussing their estate planning with spouses because it is difficult to decide who they would want their children to live with if both parents died.

In Florida the person who cares for a minor child is called a guardian. Florida law considers parents the natural guardians. If something happens to the parents of a child there will have to be someone who can legally make decisions for that child, both financially and personally. A parent, through proper estate planning, can and should choose the person or persons who they want to take over these very important jobs.

Many times parents name one individual to care for their child and another (whether it be a family member, bank/trustee etc.) to manage their child’s money. Parents usually choose someone who they believe will raise their child with the same morals, values and beliefs as themselves. When choosing a person to manage their child’s money, they need to name an individual or entity who they believe will responsibly administer the funds in the way the parents would have. The person chosen to take care of the child’s money will be responsible for making financial distributions for child’s health, education, maintenance and support and the parents need to feel secure in the fact that the person will act responsibly with those funds.

Once you as the parents have decided who will take care of your child and your child’s money you need to sit down with those people to discuss what you are considering doing. Make sure that the people you choose for these jobs are willing and able to take on the duties. You need to name at least one person as a back-up in case your first choice is unable or unwilling to perform the duties for any reason. Make sure to review these choices on a yearly basis. If the person named has had a change in their life’s circumstances (e.g. divorce, marriage, illness, death) and could no longer raise your children or manage your child’s money, you should change your documents to name someone else.

Parents with minor children face many tough decisions when considering what would happen to those children if both parents were to die. How will I provide money for my child’s livelihood should I not be around? Who will take care of my children if I cannot? By sitting down and taking the time to discuss and consider these concerns with an estate planning professional, many of your fears can be put to rest. There are many estate planning tools available to those who choose to explore them. I encourage all parents with children to begin asking themselves these questions and to seek out advice on the subject.

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Disclaimer: The content in this internet website is for informational purposes only and should not be construed as legal advice. Please contact an attorney for legal advice.