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Estate Planning

Tenancy by the Entirety

By Asset Protection Planning, Estate Planning

In Florida, married couples can hold jointly owned property as tenants by the entirety which can help couples to avoid probate and protect one spouse from creditors of the other.  When someone dies and they and their spouse owned a property as tenants by the entirety, the property is automatically passed to the surviving spouse and the creditors of the deceased spouse cannot reach any property which the couple owned as tenants by the entirety.

Any property, including bank accounts, can be held as tenancy by the entirety.  If a married couple owns a bank account jointly, it is presumed under Florida law that this account is held as tenancy by the entirety.

For more information about estate planning and probate avoidance, contact one of our experienced estate planning attorneys at (941) 906-1231.

March 15, 2016
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How to Become a Florida Resident

By Elder Law, Estate Planning, Government Benefits, Tax Law

Becoming a Florida Resident can lead to significant benefits in access to both beautiful beaches and tax benefits.  One of the most important steps to becoming a resident is submitting a Declaration of Domicile.  In Sarasota County you will need to fill out the Declaration of Domicile and bring it to the Recording Department on the first floor of 2000 Main Street, Sarasota, FL 34247.  You will also need to pay a $10.00 fee for recording the Declaration.  A link to the Declaration of Residency form can be found below:

http://sarasotaclerk.com/FileLib/domicile.pdf

In addition to submitting the form above, consider taking the following steps to declare Florida as your residency:

  • Change your voter registration to Florida and vote here
  • Surrender your out-of-state driver’s license and obtain a Florida drivers license (or a Florida ID card if you do not drive)
  • Register your cars in Florida
  • If you belong to any out-of-state private clubs, change your status from resident to non-resident
  • File your federal income tax using your Florida address
  • If you have taxable assets that require it, file a Florida Intangible Personal Property Tax Return
  • Make primary banking accounts in Florida
  • Update estate planning documents using Florida documents and laws and declare yourself to be domiciled and a resident of Florida
  • Document that the majority of your time is spent in Florida through receipts or other relevant documentation. Report yourself as a Florida resident and use your Florida address when traveling and staying in hotels

 

For help updating your estate planning documents to reflect your Florida residency, contact one of our experienced estate planning attorneys at (941) 906-1231.

March 11, 2016
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Do I have the right to access or handle my spouse’s financial affairs?

By Asset Protection Planning, Elder Law, Estate Planning

Being married does not give your spouse the ability to make financial decisions for you, such as accessing your IRA.  In order to grant your spouse or another trusted individual those rights, you must set up a durable power of attorney (DPOA).  A DPOA is important as it can give an individual of your choice the right to handle your financial affairs, plan for Medicaid, etc.  While the DPOA becomes effective the moment it is executed, the DPOA is especially useful in the event that you become unable to make such decisions yourself.  The specific powers which you grant to your power of attorney can be designated in the document you set up.  They can be extremely specific, such as granting a person the right to sell your home, or broad, such as granting a person the right to conduct banking transactions.

If you do not have a durable power of attorney set up or would like an old DPOA reviewed and updated, contact our office at (941) 906-1231 to meet with one of our estate planning attorneys.

March 8, 2016
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What happens if a beneficiary is underage?

By Asset Protection Planning, Elder Law, Estate Planning, Probate

When a minor child inherits assets in Florida, their parent or guardian does not have the authority to settle, collect, receive, or manage real or personal property if the total assets exceed $15,000.  If the assets inherited exceed this amount, the court can appoint a Guardian Ad Litem who is responsible for managing the probate process and inheritance for the child.  This guardianship can cost time and money as the guardian must petition the court each year for distributions of assets.

To avoid the cost of an unknown guardian helping a minor to manage inherited assets, assets can be passed for the benefit of a minor using a trust.  A known trustee can then be designated to distribute assets to the minor child or for the minor’s benefit in accordance with the trust provisions.  For example, it could be specified that trust assets are to be used to fund the child’s education.

For estate planning services or to set up a trust to ensure your assets are passed to beneficiaries in the way that you desire, call one of our experienced estate planning attorneys at (941) 906-1231.

March 4, 2016
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What does Per Stirpes mean?

By Elder Law, Estate Planning, Probate

Per stirpes is a Latin phrase used in wills to mean that an asset will be passed to the heirs of designated beneficiaries if the beneficiaries themselves die.  If someone plans to leave assets to a friend but that friend dies before they do, the asset would be passed to the friend’s heirs if a per stirpes expression appears in the will.

February 26, 2016
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How to Clear the Title to Jointly Owned Real Estate when Your Spouse Dies

By Asset Protection Planning, Estate Planning, Probate, Real Estate

If your spouse passes away and you owned real property with your spouse as tenant by the entirety, you need to clear the title to your real estate so it is owned by you alone as the surviving spouse through the following steps.

  • Record a copy of the death certificate with the Clerk of Court in the county where the property is located.
  • File an “Affidavit of Continuous Marriage” with the County Clerk. This form proves that your marriage was valid through your spouse’s death.
  • File an “Affidavit of No Florida Estate Tax” (or DR-312 form). A copy of this form is linked below.

Affidavit of No Florida Estate Tax

Following these steps to clear the title to your property will ensure that there are no delays when you later wish to sell the property.

Bach & Jacobs, P.A. assists clients with the transfer of jointly owned real property after a joint owner dies and can prepare the necessary Affidavits and guide you through the process to properly transfer the title.

 

February 19, 2016
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How can I ensure my pet is taken care of after my death?

By Elder Law, Estate Planning, Probate

Florida statutes allow for the creation of pet trusts which can be used to designate who will take care of your pet and leave funds necessary to do so.  The trust would appoint a care-taker and a trustee who would observe the care-taker to make sure they are following your instructions and caring for your pet as you specify.  A trust protector can also be appointed to ensure the funds in the pet trust are being spent appropriately by the care-taker.  The care-taker can be given specific instructions through the trust on how they should care for the pet on a day to day basis and how they should respond to unexpected illness of the pet.

Under Internal Revenue Code, the income of a pet trust is taxable.  The trust would be active during the entire lifespan of your pet and after the death of your pet any remaining funds would be distributed to other beneficiaries as you specify.  If you have further questions or would like to set up a pet trust, contact us at (941) 906-1231 to discuss the use of a pet trust as part of your estate planning.

February 12, 2016
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End of Life Care Plans

By Asset Protection Planning, Elder Law, Estate Planning, Guardianship, Long-Term Care

Distinct from healthcare directives such as a healthcare power of attorney or a living will, a personal care plan is a document telling your loved ones how you wish to be taken care of throughout your life if you lose capacity.  Living wills only concern end of life medical treatment but personal care plans can be used to express desires such as nursing home preferences and what types of entertainment and hobbies they should have access to.  Although on their own end of life care plans are not enforceable, their power can be strengthened by tying them to a trust and directing that the trustee use the assets in the trust to ensure your desires are met.

If you are interested in setting up an end of life care plan or healthcare directives to ensure that your later life care will be carried out on your own terms, contact Board Certified Elder Law Attorney Babette Bach, Esq. at (941) 906-1231.

February 5, 2016
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No-Contest Clauses in Florida Wills

By Elder Law, Estate Planning, Probate

Florida law does not recognize “no-contest” clauses written into wills or trusts, which means they are unenforceable in Florida courts.  No-contest clauses are written to dissuade beneficiaries from challenging the will by threating that anyone who contests the will is no longer entitled to any assets from the estate.  Even if a Florida will contains a no-contest clause, it carries no weight in a courtroom which means a beneficiary may contest a will without jeopardizing their rights to an inheritance.

If you are looking to set up estate planning documents to ensure your assets are distributed as you wish, contact one of our experienced estate planning attorneys at (941) 906-1231.

January 29, 2016
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Does a Beneficiary have the Right to See a Will?

By Estate Planning, Probate

In Florida, if you are named a beneficiary in a will, you have the right to view the entire document and be notified of distributions of assets through probate procedures.  This right to see the contents of a will is valid after the will’s creator dies and the document is submitted to the courts.  Similarly, beneficiaries of an irrevocable trust also have the right to see the entire trust.  The lawyers at Bach & Jacobs, P.A. represent beneficiaries of Florida trusts and estates and can advise them of their rights to ensure they are protected.  Call us today at (941) 906-1231.

January 22, 2016
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