Lins Law Group Blog

Estate Planning Documents You Need in Florida

In every Florida estate plan, there are certain documents which you should have in place. These include the following:

 

        1.  Last Will and Testament. This document allows you to appoint a personal representative to oversee your estate and to designate your beneficiaries. You can also appoint guardians for your minor children. While a Will does not avoid probate, it acts as a “roadmap” for the probate court to follow in accomplishing your desires. If you die without a Will, Florida law will determine who inherits your assets and how your estate will be administered.

 

        2.  Living Trust. This document, also known as a “Revocable Trust,” goes beyond the Will and allows you to implement a means to pass along your property without requiring probate. The Trust also allows you to control the distribution to your beneficiaries over a period of time rather than all at once. In the right situation, a Living Trust can be used to effectively reduce estate taxes. While not every estate needs a Living Trust, you should at least consult an estate planning attorney to evaluate its benefits in your situation.

 

         3.  Durable Power of Attorney. In this document, you appoint a person or persons who can act for you on business, personal and financial matters in the event of your incapacity.

 

         4.  Living Will. This document expresses your desires in the event of your having a terminal illness, an end stage condition or are in a permanent vegetative state.

 

         5.  Healthcare Power of Attorney. In this document, you appoint a person or persons who can act for you on medical decisions in the event of your incapacity.

 

         6.  HIPAA Authorization.  This document allows your physicians and other medical providers to speak with your designated persons about your health condition.

 

Having these documents provides a comprehensive plan to protect you in the event of disability, incapacity or death. If something happens to you, your loved ones will have the means to provide for you and to settle your estate with as little inconvenience, cost and delay as possible. Because these documents involve complex legal issues, they should be prepared by an attorney who practices in the area of estate planning.

Considering the Impact of a Pre-Marital Agreement

Doing family law, many times I see the benefits of a couple entering into a pre-martial (also known as a pre-nuptial) agreement. This article discusses the major issues which arise upon entering into such an Agreement. As a preliminary matter, you must understand that upon entering into such an Agreement, your intended spouse and you are waiving certain rights (and their accompanying benefits or obligations) which otherwise would have been available to you under applicable law. In particular, the Agreement will impact your rights in the event of dissolution of marriage or death. Because of this, you should only enter into the Agreement if you have a clear understanding of your rights and of the impact the Agreement will have on those rights. If you have any doubts or questions, you should discuss them with an attorney before signing.

Set forth below are a few of the major areas impacted by a Pre-Marital Agreement.

1.  Equitable Distribution. In the event of dissolution of marriage, the court will determine marital and nonmarital assets and liabilities. The court has the authority to divide those assets and liabilities equitably (in other words, as the court determines is “fair”). As a general statement, assets and liabilities accumulated during the marriage and enhancements of assets brought into the marriage, are considered marital and subject to division by the court. Upon entering into a Pre-Marital Agreement, you are agreeing with your spouse how assets and liabilities will be determined to be marital or nonmarital. The Agreement defines marital and nonmarital assets and liabilities differently than would be the case under applicable law. Therefore, the Agreement could significantly lessen the assets to which you are entitled and could increase the liabilities for which you are held accountable.

2.   Alimony/Spousal Support. In the event of a dissolution of marriage, you might be entitled to receive support from your spouse in the form of alimony (either rehabilitative, lump sum or permanent alimony). Upon entering into a Pre-Marital Agreement, you may be waiving or limiting your entitlement to receive such alimony or support. Once waived, you can never go back and receive alimony in a divorce action.

3.  Spousal Elective Share. In the event of your spouse’s death, you would normally be entitled to receive either what your spouse leaves you in their Will, Trust or by beneficiary designation, or to elect to receive 30% of your spouse’s estate. By entering into the Agreement, you are waiving your spousal elective share and would only be entitled to receive what your spouse leaves you by gift or bequest.

4.  Homestead Property. Under Florida law, spouses have certain rights in and to the primary marital residence in the event of divorce or death. Upon entering into a Pre-Marital Agreement, you are waiving your homestead rights under Florida law and thereby consenting to the homestead being disposed of as set forth in the Agreement.

5. Attorney’s Fees and Costs. In the event of a dissolution of marriage, a significant issue to be resolved can be who will pay for the attorney’s fees and costs incurred. If the divorce is contested, these can be in the tens of thousands of dollars. Under applicable law, the divorce court can order one spouse to pay the other spouse’s attorney’s fees and costs. In particular, the spouse who has the lower income can be impacted since it is usually that spouse who is awarded the fees and costs form the higher income spouse. Often in a Pre-Marital Agreement, the issue of attorney’s fees and costs are addressed, thereby limiting or altering a party’s rights to recover these expenses.

 

For more information, please visit our sister sites: www.linslawgroup.com and www.mytampabaydivorce.com

Florida Divorce Overview

A Florida divorce proceeding formally begins with the filing of a Petition for Dissolution of Marriage. This document sets forth certain essential allegations upon which the dissolution will be based. These allegations first establish the grounds for the court to assert jurisdiction. For instance, at least one of the spouses must have been a resident of Florida for at least six months prior to the filing of the Petition. The allegations must also include such factual matters as the date and location of the marriage, whether there are minor children, that the marriage is irretrievably broken, the desired division of assets and liabilities, the desired responsibility for the minor children, payment of support and alimony, etc. Generally, accompanying the filing of the Petition are a Family Law Financial Affidavit and a Uniform Child Custody Jurisdiction Act Affidavit.  After being filed with the court, the Petition is served on the opposing spouse by a Deputy Sheriff or by a private process server. That spouse then has 20 days within which to serve his or her Response and Counterpetition. The spouse must also file a Financial Affidavit. During the first 60 days after the filing of the Petition, both parties are required to serve certain mandatory disclosure on the other party. This includes exchange of an array of financial documents including tax returns, bank statements, loan applications, deeds, titles, and other related financial records.Early in the divorce process, the court will schedule a Case Management Conference where preliminary issues will be addressed. The timing of this conference will depend on the county and the court involved but is usually in the first 60-120 days. If there are minor children involved, most courts will require each parent to attend a mandatory course entitled "Children, Parents & Divorce." In many Florida counties, this 3-4 hour course is offered several times a month, often at a local hotel conference room. At the end of the course, each participant receives a certificate which must be filed with the court.At the first or second case management conference, the court will often order the parties to attend mediation. At mediation, the parties and their attorneys meet with a third party mediator. The purpose of the mediation is to try to resolve some or all of the issues in dispute. The mediator's role is not that of a judge; he or she does not "decide" the case. Instead, the mediator tries to help the parties reach an agreeable middle ground. If issues are resolved, they are reduced to a written agreement which is later presented to the court as binding on the parties as to the issues addressed. If the case does not resolve in mediation, then the case may proceed to a final hearing or trial before the court. Under Florida family law, trials are always before the court and not with a jury. 

More free information is available at www.linslawgroup.com and www.mytampabaydivorce.com

The Importance of Uninsured Motorist Coverage

This week I had a client come into the office with horrendous injuries. Her medical bills are already in excess of $60,000 and her auto accident just happened two weeks ago. By the time all of her treatment and recovery are finished, she could easily have bills in excess of $100,000. Add to this her lost wages and pain and suffering and she has a substantial case. Unfortunately, the person who hit her had only a small liability policy. This means that the client likely will not recover enough to pay her medical bills, much less recover anything for herself.

In some cases, this would not be so catastrophic if the client had her own unisured motorist ("UM")coverage. With that type of insurance, if the "at fault" party does not have any or enough liability coverage, then the UM coverage would kick in and pay for the client's damages, including medical bills, lost wages, and pain and suffering. However, in a effort to save money, many people decline UM coverage. In order to do so, they actually have to sign a form saying they decline the coverage. If the insuarnce agent does not obtain the signed waiver form, the client may be able to establish a right to the coverage. If there is no UM insurance, the badly injured client will have a great case but no one against whom to collect. As a result, she will likely end up facing a dire financial and personal situation since she will have huge unpaid medical bills, she may be unable to work and will suffer in pain in the future. 

In order to protect yourself and your family, you should talk with your insurance agent about securing the most UM coverage you can reasonably afford.

Visit www.linslawgroup.com

The Final Judgment in Divorce may only be the beginning!

This week I've had an unbelievable number of inquiries from parties asking me about seeking enforcement or modification of various parts of their divorce Final Judgments. I'm not sure what is the reason for the number of calls other than perhaps that the economy is struggling so family finances for many may be tight. Also, school is out and summer travel and visitation plans are coming into focus. These elements may be acting to fuel what may already be strained parental relations. So I'm not sure what's behind it all but post-divorce disputes are certainly "in the air."

The extent of post-divorce disputes surprises some parties. In many cases, when a person gets divorced they think that once they have the final hearing, things are over for good. Sometimes this is true and sometimes it is waaaaaayyyyyy off base! When there's no minor child, no alimony, no child support, and relatively easy property division, then the final hearing really may be the end of things. However, when there are minor children, then ongoing issues often arise involving visitation, payment of child support, etc. Also, if there is an order to pay alimony, the disputes can be frequent and sometimes very heated. Let's face it, former spouses hate paying anything to their "ex." So parties are surprised and often frustrated that not only did they have to go through what may have been an expensive, nasty divorce but now they face a similar experience in the post-divorce stage as well. Regrettably, that is a reality from which there is little ability to avoid unless both parties go out of their way to accommodate each other and if they'd done that, maybe they wouldn't have gotten divorced in the first place!

For more information on divorce, visit www.linslawgroup.com

Six Reasons Not to Add Your Children on Title

          Often I have new clients come in to consult on estate planning issues but who have already taken certain "planning" action on their own. Among the worst of these is the practice of adding their children or another person onto the title to their house. The thinking is that by doing so they will avoid probate. While this practice might in fact avoid probate, it can create far more problems than it solves.

          There are at least six good reasons not to add another person (other than a spouse) onto the title of your house. These include:

          1. In the event the person faces a liability or debt claim from a third party, your property can be at risk.

          2. In the event the person gets in trouble with the IRS, your property can be at risk.

          3. In the event the person goes through a divorce, your property can be at risk.

          4. In the event you want to sell the property, you must get the other person's permission.

          5. Placing another person's name on the title could be considered a gift, thereby triggering a gift tax consequence if the property exceeds $12,000.

          6. Placing another person's name on the title could jeopardize your getting government help with nursing home care.

          There are probably more reasons, but for now, these should be reason to follow this advice. When you consider making this type of transfer...DON'T. Instead, seek sound legal counsel on other ways to accomplish your objectives (such as by a Living Trust).

          For more information, visit www.linslawgroup.com

Protecting Special Needs

Many families struggle daily with the demands of caring for a family member with health or developmental challenges. Whether it is autism, Parkinson's, birth defects or some other debilitating condition, the challenges can be immense. Perhaps one of the more challenging aspects which these families face is making sure that resources are available to provide medical and other necessary benefits. Often these families can only turn to governmental programs such as SSDI, SSI and Medicaid to meet the overwhelming demands. For example, take the situation where a child, age 6, suffers from autism. Depending on the circumstances, the family may only be able to get medical coverage through Medicaid. The child could live many, many years and need benefits during that time. If the child lives 60 years, and the average medical and other care bills for the child average $10,000 per year, then the benefits are...well...huge.

Where many families fail to prepare is in the event the parents or other family members die and leave inheritance monies to the child. That inheritance could jeapardize the child continuing to get benefits. So if the inheritance is not enough to provide for the child's needs over a lifetime, those lost governmental benefits would have an enormous impact. Instead, families with children or other members on these governmental programs should set up an irrevocable trust (also called a special needs trust or "SNT"). If this is done correctly, the inheritance monies can go into the SNT and can be available to provide for the child over his or her lifetime. So long as the SNT does not duplicate governmental benefits and otherwise complies with the limitations set forth by the applicable governmental program, then the benefits will continue uninterrupted. However, an SNT is a comlicated planning document which must be prepared by an attorney skilled and experienced in drafting these kinds of trusts.

For more information, visit www.linslawgroup.com 

Five Steps to Protect Your Children

For parents with minor children, there are at least five steps to take to protect their children in case of a catastrophic event involving the parents. While the chances of both parents dying or becoming incapacitated at the same time may seem remote, in today's fast-paced, technology driven world, it can happen. Whether it involves a car accident, an airplane crash or a criminal attack, the potential for the unexpected is not beyond possibility. The reality is that parents cannot and should not wait until a crisis to try to address these issues.

Here are five considerations to address:

1. Appoint a guardian of the children in the event both parents die or become incapacitated.

2. Have an emergency plan to provide for the children in the first 24-72 hours after a crisis.

3. Have a trust in place to hold, administer and distribute assets for the children's benefit.

4. Leave instructions for the guardian and trustee regarding how you want the children to be cared for, raised and provided for.

5. Parents should make sure that they have adequate monetary resources available to assist the guardian in raising the children.

In order to address these considerations, the best vehicle to do so is through a skillfully drafted Will or Living Trust. Once these documents are in place, it is equally important for the parents' loved ones and trusted advisors to know where these documents are located and to have access to them. There is little benefit to having a plan if no one knows about it or if no one can access it.

For more information, visit www.linslawgroup.com

Staying Married: To be or Not to Be?

Many times clients come to me for a family law consultation when they have problems in their marriage. We usually begin by discussing their particular marital situation. This often involves recounting past events and the present situation. How long have they been married? Are there any kids? What assets have they accumulated? Is one or both spouse working?

After we go through these discussions, what I often hear is that the client is unhappy...often VERY unhappy...but they are not sure whether they want to go through with a divorce. Sometimes I get the feeling they are looking to me for guidance on what to do. Of course, my role as attorney is not to advise whether to get a divorce but to advise how to get divorced and what issues, considerations and determinations come into play. I usually ask if the client has sought any professional advice from a marital counselor or therapist. As an attorney, I am not trained to determine the whether, just the how, when, and where, of getting divorced.

Sometimes clients decide initially not to divorce and to either "stick it out" or to "work on it." However, more times that not, they eventually are back in our office, ready to proceed. Unfortunately, sometimes they are more unhappy than ever and their marriage, rather than being saved, has instead gone down the tube.

Even though it is not my role to tell a client whether to divorce, as a legal professional and as a person I do have my own opinion about whether getting divorced is better than staying in a bad marriage. Admittedly, going through a divorce is not pleasant. In fact, it ranks among the most stressful and unpleasant events in life. It takes its toll on the spouses and on any children.

Nonetheless, I believe that being divorced is better than being miserable in a bad marriage. Why do I say this? First, when a person divorces, at least he or she has the prospect of moving on and finding happiness. He or she may meet someone who appreciates and treats them with love, kindness and respect. If they stay in a bad marriage, it is hard to move on and to develop a meaningful relationship with someone special. Another reason for my opinion is that when someone is unhappy in a marriage it impacts those around them. For example, children usually know when parents are not getting along. The parents' unhappiness can spill over to the children and in the long run, it can impact their well-being and happiness. In addition, an unhappy marriage can effect a person's health (mental, emotional and physical). Depression, unmanageable anger, anxiety, etc. are all potential results of prolonging a bad marriage. The bottom lines is that life is to short and too precious to live it being unhappy.

In sum, when clients have an unhappy marriage, I recommend that they seek advice, both personal and professional. Hopefully, if the marriage can be salvaged, this will help. However, if the problems persist to the level that the person is very unhappy, I recommend proceeding with divorce rather than prolonging his or her unhappiness. Life is precious and should be abundant. Living life with a spouse who does not show his or her spouse love, kindness and respect is not consistent with the abundance of life.