Current Feed Content from 2 Sep 08 10:39
Florida Defective Wills: Invalid Personal Representative
Fri, 15 Aug 2008 10:18:08 -0500Although the state of Florida accepts wills created in other states when they were valid in the state where created, not all of the will may be valid. Recently, I ran across a will that named an accountant of the decedent as their Personal Representative. Several months later the decedent moved to Florida and eventually died without updating the will.
The problem started with the fact that the accountant was not related or married to someone who was related to the decedent. This is a disqualification of a Personal Representative in Florida. The result was that the decedent did not get to choose their Personal Representative.
If you have a will that was prepared in another state and want a Florida lawyer to review it for compliance with Florida law so that your desires are carried out upon your death, Contact a Florida Estate Planning Lawyer to review your Estate Planning Documents.
Florida Defective Wills: Poor Drafting or Intentional?
Thu, 14 Aug 2008 10:28:56 -0500The Florida Constitution protects one's Homestead from creditors. One provision that is often misunderstood is a devise of a homestead in a will when there are minor children in the family. In some cases a two people are getting married and one has a home and a minor child. The spouse may draft a will that states that the home goes to the future husband, but what happens if the spouse dies before the child reaches the age of 18?
Under the Florida Homestead Protections, the house does not pass as the will states, but the homestead goes to the minor child with a life estate going to the surviving spouse. Sometimes this appears to be an intentional mistake in a will to appease a future spouse but the clause does little to provide a fee simple ownership the the decedent's homestead.
If you are getting married or your spouse had a home prior to your marriage that is now your Homestead, be careful that any attempted devise of the home when there are minor children will create a default condition establishing a life estate for the surviving spouse and remainder for the children even if one is a minor.
To have your will reviewed for invalid clauses or to update a Florida will Contact a Florida Estate Planning Lawyer
eLawyering are online estate planning services worth it?
Mon, 11 Aug 2008 10:10:20 -0500LegalZoom and RocketLawyer are two of the many online services that allow individuals to create their own wills at low costs. Many times they are below the cost for a single hour of legal time from an attorney. The real question is whether they are a good value for individuals. Rebecca Kennedy with Everyday Simplicity Blog has a detailed analysis of the positives and negatives where she quotes a previous article on some of the problems with RocketLawyer that I previously wrote about.
Rebecca states, that although the prices and may serve your needs you are taking a risk by using these document services to create estate planning documents. She points to the following:
What if the will is not valid after you die?
What if the incorporation documents are not respected or as compete as necessary in a future civil suit.
What if your assets are not protected because of the choices that were made?
What if divorce documents are not valid?With LegalZoom or RocketLawyer you have to hp0e that you get far more than you pay for.
Legal Zoom and RocketLawyer cannot and do not claim to be up to date with the ever changing state laws and do not offer any legal advice.
Often I see clients who have created perfectly valid legal documents with free or low cost providers but do not realize the problems they have created by executing them. Many families are unable to get Medicaid coverage for their loved ones because they executed a deed to transfer property. The use of an attorney offer far more than creating documents, they lawyer will examine you current and future circumstances to make sure the choice you are making will not cause problems down the road.
If you are looking to create a Florida Will or Florida Estate Planning document Contact a Florida Estate Planning Lawyer to discuss your circumstances and create documents that do what you want.
Can I Sue my Employer for Defamation?
Sun, 10 Aug 2008 10:21:22 -0500It is difficult to sue your employer in Florida for defamation when they give honest information in regards to a reference. This does not mean that an employer may give false information. If the statements are knowingly false or rise to a level of being in reckless disregard of the truth and deal with your character and honesty the employer can be liable. If you are be affected by this type of behavior or want to put policies in place in your business to help prevent these actions please contact a Florida Employment Lawyer
Wrongful Termination in Florida
Tue, 05 Aug 2008 10:27:06 -0500Often I am asked about wrongful termination by Florida Employees. Florida is an "at will employment state". This means that a company does not have to have a reason to fire you. The employer can also change your job position or description for almost any reason.
There are certain times when a termination or job change may be actionable. By discussing the situation with a Florida Employment Lawyer you may find that your job was changed because of inappropriate comments dealing with a protected right. There are certain Constitutionally protected areas which can give rise to a complaint. These include Race, Sex, Religion, and Age.
Another area to look for is called a whistle blower claim. This often happens when you report the business for some violation and are terminated as a result.
To create employment guidelines and or policies to protect your company from suits or if you believe your employer has violated your rights you should contact a Florida Business Lawyer.
Xpress Seal Pro Caulk
Mon, 04 Aug 2008 18:53:46 -0500Xpress Seal Pro from As-Seen-On-TV- Products is a product I purchased to seal the caulk in my bathroom. The caulk in my shower needed replacing and I decided to purchase this after reading many review about this easy to use Professional caulking kit. I saw it on a TV commercial on one of those As Seen On TV Product commercials and decided to give it a try.
I have tried to apply caulk in the past and it was a mess. I found the key to getting a good caulk line was using their caulk removal took to remove all of the previous caulk so that I was starting with a clean surface. Once I got this done, it was relatively easy to apply the silicone caulk and the use the took to make a nice looking caulk bead. It took a little practice before I got the technique down and I found that it was better when I make long consistent beads instead of little short lines. Some of the lines look as good a if a professional had done the work.
With the hurricanes that we have been having lately, it might be a good idea to re-real windows or previous problem areas to preserve values. I normally do not talk about products on this website but since so many of my clients deal with maintaining property values for their families and loved ones I thought it appropriate. If you need to seal a leak you might try the Xpress Seal pro Caulking Kit as seen on TV.
Apple Sues Clone Maker Psystar
Wed, 16 Jul 2008 08:54:45 -0500In my previous life, I had a license to build Apple Clones. It is for this reason that I have been watching the actions of a Florida Company, Psystar, Inc. They have been installing Apple, Inc.'s most recent operating system on generic computers and selling them to the public as "Apple Clones". Apple's software license states that its software can only be installed on computers which were preinstalled with a previous version of Apple's operating system. Apple started including this provision when it switched from version 7.6 to the 8.0 version. An even that effectively ended cloning back in the late 1990's.
At that time my company PowerTools also purchased retail copies of the current operating system and installed them on our Apple Clone Computers. That is we installed version 8.0 of the Operating System on our Apple Clones which were licensed for version 7.6 of the Macintosh OS. Unline Psystar, PowerTools' clone had a legal version of the Macintosh OS preinstalled. Because of this Apple "allegedly" went to our supplier and had our OEM agreement terminated.
This is why I have been so interested in what Psystar has been doing. It appears to be a clear violation of the Macintosh operating system license.
It will be interesting to see Psystar's explanation of why they believe they can use the Mac OS in violation of the licensing agreement.
The Gray Blog first reported news of the suit against Pystar.
Florida Divorce and Estate Planning
Tue, 08 Jul 2008 10:02:03 -0500In Florida as with most states, Estate Planning is something that needs to be addressed when one has major changes in their life. This includes divorce and separation.
You only have to think about your spouse or ex-spouse getting all of your assets if you should die to realize the importance of addressing the issue.
In the last year I have seen a number of families who have been adversely affected because of a lack of planning. Several couples were separated for many years when one died and the estranged spouse received a significant portion of the estate. In Florida, even if you change you will to disinherit your spouse, the spouse is entitled to an elective share of your estate. This is equal to 30 percent of your entire estate. If you are divorced in theory, go ahead and file the paperwork to make it official.
When you get a divorce, be sure to change payable of death designations on your retirement accounts, life insurance, bank accounts.
Be sure to revoke any guarantees associated with credit established in both of your names. Change the way property is owned, even if you plan on selling it soon.
The 401(k)s is also a non-probate assets also, but be careful because ERISA, a federal law, protects a surviving spouse. I have seen children loose their parents life insurance because their parent never finalized the divorce and made changes when they separated from their spouse decades ago. If you are getting a divorce be sure that proper paperwork to change the designations is made part of the divorce or separation agreement.
Unless your Florida Divorce Lawyer is also a Florida Estate Planning Lawyer, it is best to have a Florida Estate Planning Lawyer Contact and work with your Florida Divorce Attorney.
Pending Partition of Property does does not Survive Death of Joint Tenant
Mon, 07 Jul 2008 18:36:08 -0500What happens if you are in the middle of a partition to divide or sell property and one of the owners dies?
The pending action is has no force and effect on the ownership. What doest this mean? If you own property as joint tenants with rights of survivorship and you want to partition the property but die in the middle of the court action, the other joint tenant will own the entire property.
A recent 1st DCA case Mercurio v. Headrick, WL 2434193 (Fla. 1st DCA Jun 18, 2008) has the expected outcome that all attorney's learn in their first year property course. In addition many other states have reached similar opinions but Florida had not seen this issue before. The Florida Probate Litigation Blog has an in depth article on this case.
What should you do if you find yourself in this situation? You should convey your property to break the joint tenancy with right of survivorship prior to bringing the action. The benefit in doing this is that should you die during the action, your heirs or family will not loose the entire value of the property.
To learn how to do this properly in Florida Contact a Florida Estate Planning Lawyer
Google Offers Personal Health Records on the Web
Tue, 01 Jul 2008 10:15:41 -0500Google Health just began offering personal health records on the Web. They are joining WebMD, Microsoft, and Revolution Health.
These services are designed to help consumers manage their health care and medical spending records.
Google record allows users to send personal information to some clinics or to pull records from the clinic into the Google personal file. One clinic that has begun working with Google is the Cleveland Clinic.
As of the launch, more than two dozen companies announced a partnership with Google Health. Some of the companies include Walgreens, CVS, the American Heart Association, Quest Diagnostics, Beth Israel, Deaconess Medical Center, and the Cleveland Clinic.
If you plan to subscribe to a service like this make sure you deal with it in your Durable and Medical Powers of Attorney so that the benefit from these services is not lost by your subsequent incapacity.
To discuss how to integrate these services into your Florida Estate planning documents Contact a Jacksonville Estate Planning Lawyer.
Florida DR-219 Form is Repealed as of 06/1/2008
Fri, 27 Jun 2008 10:31:54 -0500Florida DR-219 Form is Repealed as of 06/1/2008
Beginning June 1, 2008:
•The requirement to complete and file Form DR-219 is repealed. •The Department of Revenue will not process DR-219 forms received. •Destroy all blank DR-219 forms in your inventory.
The repeal of the requirement to complete and file Form DR-219 does not impact documentary stamp tax payment and filing requirements. Documentary stamp tax continues to be due on all documents that convey an interest in Florida real property. The tax must be paid at the time of recording with the Clerks of Court or County Recorders if the document is recorded prior to the 20th day of the month following the month the document is delivered. The tax must be paid directly to the Department of Revenue by the 20th day of the month following the month the document is delivered if the document is not recorded before. Delinquent payment of tax will continue to be subject to penalty and interest charges.Deeds Designating Grantee as a Trustee Sufficient to Pass Title to Trust
Fri, 27 Jun 2008 10:11:07 -0500The Florida Supreme court has ruled affirmatively on the question presented to it.
Whether, under Florida Statutes section 689.07(1) as it existed before
its 2004 amendment, this Deed––which is a recorded real estate
conveyance deed to a named trustee of a private express trust
identified in the deed by name and date, and contains other language
referring to the unrecorded trust agreement, the settlors, and the
beneficiaries––conveys only legal title to the property in trust to the
grantee as trustee.In Raborn v. Menotte, 974 So. 2d 328 (Fla. 2008), the court held that a deed which identifies the grantor as the creator of and the grantee as trustee of a named trust shows sufficient “contrary intention” and grants legal title as trustee to the grantee.
This case was brought to my attention by an article by Gerry Beyer on the WIlls, Trust, & Estates professors Blog.
Supreme Court Rules on Individuals Rights to Bear and Keept Arms
Thu, 26 Jun 2008 15:05:22 -0500NFA Gun Trust Lawyer blog has an article on the 150 + page decision issued today in the gun rights case before the Supreme Court. Looks like good news for gun owners but it will take sometime to digest the full opinion which is over 150 pages. There is a link to the Supreme Court Gun Case also
Florida Spendthrift clause or Trust
Thu, 26 Jun 2008 10:37:25 -0500Spendthrift clauses can be confusing to trustees. The general idea with a Florida Spendthrift clause is that the beneficiaries cannot assign their interest in the trust to a creditor ( voluntarily or involuntarily)
Here is the test found in a typical clause under the new Florida Trust Code
Spendthrift Provisions. Each trust created by this Trust Agreement shall be a spendthrift trust to the fullest extent allowed by law. Prior to the actual receipt of trust property by any beneficiary, no property (income or principal) distributable under any trust created by this Trust Agreement shall, voluntarily or involuntarily, be subject to anticipation or assignment by any beneficiary, or to attachment by or to the interference or control of any creditor or assignee of any beneficiary, or be taken or reached by any legal or equitable process in satisfaction of any debt or liability of any beneficiary, and any attempted transfer or encumbrance of any interest in such property by any beneficiary hereunder prior to distribution shall be void.
The most common application of a Spendthrift Provision is to protect against involuntary assignment or bankruptcy.
While this may be fine with a small estate, this question often comes up with larger estates.
Why would I want to void my child's right to his 5 Million dollar distribution to avoid paying his creditors $25, 000. Would it not be better in such a case to pay of the creditor and let my child enjoy and use the benefits of the trust rather than treat his a being predeceased?Although it is not clear, the trustee can take this into consideration and make the distribution even though the creditor will receive a small portion of the decedents estate.
In these types of cases, I prefer to include language that a trustee can, in their discretion, make a payment when they know that a portion will go to a creditor of the beneficiary. Some times there is a limit placed on the amount and other times there is no limit placed on the maximum amount that can be used to pay a beneficiaries debts.
The Louisiana Estate Planning Law Blog has an article Whether you should include a "Spendthrift Trust" in your will? where they discuss using a spendthrift trust to prevent your children from loosing the money you leave to them.
If you want to make sure your children do not spend or loose all the money or assets you leave to them. It is also common to include a spendthrift provision in a NFA Gun or Firearms Trust to protect the items from being lost to a creditor. To find out more about how a Spendthrift Clause can help you Contact a Florida Estate Planning Lawyer
about including a Spendthrift Provision in your Florida Estate Planning DocumentsTerri Schiavo II?
Tue, 24 Jun 2008 09:29:37 -0500It could be happening again in Florida, The Palm Beach Post has a report on a similar case. If you do not have a Florida Living Will now is the time to get one.
Karen Weber did not have a Florida Living Will when she suffered a seizure back in November. Her husband wants to disconnect the feeding tube that has kept her alive for the past 7 months.
The courts have not ruled on Ms. Weber's condition and it is Mr. Weber's intent to keep it a private matter.
Who could forget the circus that can arise when such an emotional issue is tried in the court of public opinion.
If you need a living will you can get a free one, I have previously posted a Free Florida Living Will on this site.
If you need help with Florida Estate Planning Documents please Contact a
Florida Estate Planning Lawyer
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