How Should I Own My Florida Homestead Property?

A commohomesteadnly asked question is, “Should I own my homestead in my trust?”  Generally, the answer is, “No.”  This is not because of your ad valorem homestead exemption or even your Constitutional protection from the claims of creditors. It is not because we don’t want you to avoid probate. Instead, it is because Florida law dictates who can receive your Florida homestead property.

Florida has very unique and strict laws regarding the distribution of your primary homestead residence after you die. Specifically, if you die owning your homestead property in your individual name and you are survived by a spouse or a minor child, Florida law dictates to whom you can leave your property.  If you are survived by a spouse and no minor child, you can only leave your property to your spouse.  If you are survived by both a spouse and a minor child, the spouse automatically receives a life estate and your lineal heirs (all your children) receive the remainder interest.  If you violate the law by directing a different result, the law will prevent your intended distribution and substitute its statutory rule, as outlined above.   (more…)

Still Married? Cannot Disinherit the Spouse

Michael and David are a same sex couple who live in the same house, owned by Michael.  Michael prepares a will leaving everything he owns to David.  Michael is still married to Evelyn who lives in Iowa with their minor child.  For various reasons, they never divorced and don’t necessarily intend to do so.  Michael dies.  Does David get everything owned by Michael?  No.  In Florida, you cannot disinherit your spouse.  Evelyn is entitled to an elective share of Michael’s estate equaling thirty percent (30%) of his assets.  This includes assets he may have owned jointly with David.  Additionally, as he was survived by a minor child, Michael cannot devise his homestead property to anyone other than his minor child.

This is one example of good intentions gone bad for an unmarried couple, whether same sex or traditional.  For this and many reasons, proper estate planning with a qualified attorney is important if you want your wishes carried out as you intend.

Is Your Personal Representative Qualified?

When someone dies the Last Will & Testament becomes the controlling instrument.  Typically, your Last Will & Testament will nominate a personal representative responsible for the administration of your estate including accounting for all of your assets, paying your creditors and distributing your estate to your named beneficiaries. Many times a spouse or adult child is

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Is it good to be “Traditional?”

Leblog post 2t’s say there is a “traditional” scenario where the husband, Jim, works outside of the home and his wife, Annie, takes care of the children and the home.  In this “traditional” scenario, Jim feels it is his responsibility to provide for his family and, as part of that, to take care of all the finances.  He manages the bank accounts, the rental properties, the LLC that owns the rental properties, the investments, paying the bills, etc.  Jim is happy to relieve Annie of this responsibility and she is happy not deal with it.  But, what happens if Jim dies first?

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Estate Planning Documents You Need Now!

With summer quickly approaching, if you are preparing to travel, don’t forget these important legal documents you need to include in your suitcase. We never think an accident or illness will happen while away from home. Are you prepared? There are two legal documents you will want to have a copy of in case of an emergency. (more…)

Hope Is Not a Course of Action: Estate Planning for People Under 40

Most people under the age of 40 consider estate planning something to be done “someday”. They hope that they will live a long and healthy life. The reality is there are no guarantees. Your estate plan is similar to a hurricane preparedness plan. You should have one in place so when the storm or disaster strikes, you are ready. The difference with an estate plan is that, eventually, we will all need one.

Lack of estate planning by younger families can result in confusion, resentment and acrimonious feelings between family members. Who will become the guardian of any minor children? Who takes control of the family residence and decides what happens to it? What about any other property the couple has amassed in their time together, such as a vacation home or family business?

With an estate plan, you and your spouse get to make those decisions. Without an estate plan, these decisions could be left up to the court in your state of residence and the laws they have created regarding intestacy (dying without a will or trust in place). If thinking about creating an estate plan scares you, think about a judge whom you’ve never met deciding what happens to your wealth, your children, your pets and anything else that matters to you. That should frighten you enough to at least look into creating an estate plan!

Estate planning is not about the amount of stuff you have, it’s about what happens to it once you are gone. If you have young (minor) children, it is essential to create a plan naming initial, as well as, alternate guardians for them. With a valid will or trust in place naming specific guardians, the court can follow your wishes and does not have to make an independent decision. You can also decide how distributions are to be made for your children. For instance, will your funds be used for college or graduate level education? An initial investment in a business? A first wedding? How much can they pull from the trust and at what age?

Once you have the plan in place, you can revisit it every few years as your circumstances change. For instance, if your children are now grown and married with children of their own, you may want to update your plan to include your grandchildren. If some of your beneficiaries or agents have died or moved away, you may want to update who has responsibility for executing your wishes.

Having a plan in place is the key. Seek the advice of a qualified estate planning attorney to guide you through the preparation of a will and related estate planning documents. For more information or to schedule an appointment, call our office at (407) 977-8080.

A Good Deed Gone Wrong

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Bob and Suzy get divorced.  Suzy has an adult child, Annie, from a prior relationship. As part of the marital settlement agreement, Bob is supposed to sign a deed conveying his interest in their homestead to Suzy. Suzy is supposed to get a new home loan in her individual name.

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Death Is More Than A Week Away From Home – Leave Proper Instructions

Does your familesate planningy know where your most up to date estate planning documents are located?  If you signed a will in 1985 and put it in your safe deposit box, signed a new will in 2001 and put it in your desk at home, told your son about one, told your daughter about the other, they may be confused.  The attorney information on each document is different.  Then they find something containing information for a third attorney.  At a time when they are grieving, they are now on a scavenger hunt for your most up to date estate planning documents. (more…)

Real Property Problems – The Dilemma of the Unmarried Couple

I just received a call from a local realtor.  She was understandably concerned because a purchase and sale transaction she was working on had stalled.  The reason:  the property was owned by an unmarried couple and one of the partners had recently died.  The title search revealed the couple had taken title as John Doe, an unmarried person and Susie Que, an unmarried person.  There was no indication on the deed that title should have been as joint tenants with rights of survivorship.
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