A will cannot always handle the wide range of issues that arise when planning your estate. A revocable living trust, commonly called a living trust (or “inter vivos trust”), is created during your lifetime and allows you to create a plan to manage your assets and protect you when you fall ill or even as you age. Because the Living Trust, governed under Chapter 736 of the Florida Statutes (the “Florida Trust Code”) is revocable, you also have the power to revoke or amend it throughout your life.
You take the time to create an estate plan with the hopes that upon passing, your assets are distributed as you had indicated in your estate plan. Unfortunately, not all estate plans are created equal and consequently, a poorly created estate plan could become more contrary to your intended wishes than no plan at all. Drafting an estate plan is a great way to ensure that your assets transition upon death in a manner consistent with your goals and wishes, however, a poorly executed plan can result in unexpected consequences and prove disastrous for your family and your estate.
The following tips can help you avoid common pitfalls in estate planning and may provide you with the peace of mind that undesirable consequences will not result from your good intentions:
We live in a social media age where almost anything we do can be posted online for others to view. We share personal information ranging from vacation photos to our thoughts and opinions on this year’s Oscar winners. Facebook pages have become the diaries of our lives. Facebook and personal information stored on your Facebook page are not likely to be the first thing that comes to mind when you draft your estate plan, even though for millions of people around the world, it is the first website they visit when they wake up in the morning or when they arrive at work. But what happens to your Facebook profile after you die?
Power of Attorney is a legal document that gives one person the authority to act on behalf of another as that person’s “agent.” The person who grants the Power of Attorney is known as the “Principal,” and can make this authority as broad or as narrow as he or she would like. For example, Power of Attorney may be as limited to merely giving the agent the authority to sell property out of state (often called “Limited Power of Attorney”), or as expansive as permitting the agent to perform any legal act for the principal (known as “General Power of Attorney”).
Estate Planning Ambiguities: What Robin Williams’ will contest teaches us about creating high-value trusts
When you are gone, will your surviving heirs abide by every wish of your estate just as you envisioned, or will they fight over their own interpretations of your will? Ambiguous language in estate planning can create friction among your loved ones when they are at their most vulnerable, erasing the love underlying your final gifts.
When a Florida resident passes away, regardless of whether he or she had a valid will, a person will be appointed to act as personal representative to administer the estate of the deceased. If the deceased executed a valid will, he or she may have named the personal representative in the will, or if the personal representative was not specifically named, the power of appointing the personal representative may have been granted to a named individual. See Fla. Stat. § 733.301(1)(a)(1). If the deceased either died without a will, or had a will but neither named a personal representative, nor granted the power to appoint a personal representative, then the personal representative is appointed in accordance with the order of preference set forth in Florida Statute § 733.301. See Fla. Stat. § 733.301(1). For a person who dies without a will, the personal representative will be “[t]he surviving spouse,” “[t]he person selected by a majority in interest of the heirs,” or “[t]he heir nearest in degree. If more than one applies, the court may select the one best qualified.” See Fla. Stat. § 733.301(1)(b). For a person who died with a will which did not specify a personal representative or grant someone else the power to name the personal representative, the personal representative will be “[t]he person selected by a majority in interest of the persons entitled to the estate,” or “[a] devisee under the will. If more than one devisee applies, the court may select the one best qualified.” See Fla. Stat. § 733.301(1)(a).
Personal and financial records are among the few things people generally prefer to keep private. In the past, people may have gone so far as to bury the documents. Nowadays, people might keep them under lock and key in their homes. Some might leave them with financial advisors, accountants, or attorneys, and others might keep them in safety deposit boxes. Admittedly, although we have come quite a way from the days of burying documents in the backyard, today’s precautions nonetheless still reflect society’s desire to keep personal and financial information private. Unfortunately, upon death, beloved family members named as beneficiaries in a will become susceptible to outsiders gaining knowledge of their personal and financial information.
The rapid expansion of international public and private companies has brought about an exponential increase in the establishment of subsidiaries far from global headquarters. Such growth has meant that companies are often requiring employees across professional sectors to relocate to offices maintained in cities where significant operations are carried out. Local businesses of global enterprises often have responsibility for administrative, manufacturing or operational activities including, for example, the local management of store and bank groups. Depending upon the nature of a company’s current or anticipated business strategic planning, employees may be required to relocate for varying lengths of time to foreign countries. The length of the mandate may require the consideration by the employee of moving alone or accompanied by family members.
2014 LEGISLATIVE SESSION – ALIGNMENT OF THE ANTILAPSE PROVISIONS OF THE FLORIDA TRUST AND PROBATE CODES
The 2014 State of Florida legislative session brought about several changes in the area of trusts and estates. Among those passing into law was the amendment to the antilapse provisions of the Florida Trust Code (Florida Statutes Chapter 736). As amended, the new provisions mirror the language and intent of similar provisions contained in the Florida Probate Code (Florida Statutes Chapter 732). It is assumed at law that in order for a named beneficiary to take under a devise, the beneficiary must survive the settlor or testator. Antilapse provisions contemplate the status of a devise to a beneficiary who predeceases the settlor or testator, a contingency presumably unanticipated by the settlor or testator. Such provisions address the consequences of the common law rule of lapse in attempting to reflect the presumed intent of the testator.
Charitable donors are frequently in pursuit of a means for establishing a lifetime philanthropic legacy and effective estate planning. The utilization of a charitable trust provides a strategic option. The donor may choose to set up a trust during his or her lifetime (termed an “inter vivos” trust) or a trust set up to take effect upon death under a will (termed a “testamentary trust”).
Estate planners often focus on the tax benefits of making a gift, as smart planning can help reduce or eliminate a wide array of taxes on the estate and individual. But if you thought the primary motivation for donor gift-giving was related to taxation, you are mistaken. The reason behind the choice to make a gift to charity over a family member runs deep—it is about an emotional connection to the mission of the benefiting organization. Neuroscience has revealed that giving is hard-wired into our brains, perhaps giving validity to the aphorism that “it is better to give than to receive.” With the right estate planning, giving can actually lead to receiving, in the form of tax benefits.
Tortious interference with an expected inheritance occurs when someone intentionally prevents, through fraud, duress, or other tortious means, another person from receiving an inheritance or gift that other person otherwise would have received. Many states today, including Florida, recognize the tort of tortious interference with an expected inheritance. Even the Supreme Court of the United States has acknowledged tortious interference with an expected inheritance to be a “widely recognized tort.”