How Is Estate Planning I Do In Florida Impacted When I Move To Another State?
Video Summary
How is estate planning I do while I live in Florida impacted when I move to another state?
Well, that’s a question that you’re gonna have to ask the out-of-state lawyer, whenever you move. It’s my recommendation that if you move to another state, that you consult with a lawyer in whatever state you become a resident, and ask him to review your estate planning documents. That’s something that I do routinely.
And then I get asked, the other question is, “Are my estate planning documents from Illinois, or some other state, valid in the state of Florida?” Most of the time, I look at those and say, “Well, the will would probably be effective. However, for me to review it and confirm that the aspects of the self-proving aspects, and also the personal representative, would be sufficient and Florida would have it admitted to probate, it would be easier in most circumstances just to do a new Florida will, particularly if there are any circumstances that have changed.”
Usually, a will that has been properly executed in another state is effective in Florida. However, you may want to modify it to Florida law, in order for the ease of administration when you pass away, and if it has to be admitted to probate. It is a good idea, though, to talk to an attorney in whatever state you reside, to have him review your estate planning documents.
Florida is peculiar in that we require the personal representative to either be a relative or a resident of the state of Florida, to serve as a personal representative, which may not be the case in your old document. There may be other laws that are peculiar to whatever state you move to, so that lawyer could tell you about that.
Also, we have different powers of attorney and how they must be executed, in Florida. Under a Florida power of attorney, we like to have two witnesses, so that we can use it to convey real property. Also, living wills and healthcare surrogates.
So, the short answer to the question is, consult with whatever attorney about estate planning documents, wherever you become a resident. And take with you your estate planning documents that you previously executed.
If you have any questions about this, please give me a call at 727-847-2288.
- Published in Estate Planning, Videos
Do I Need A Lawyer For A Will?
Video Summary
Do I need a lawyer for a will?
Yes, you should use a lawyer to prepare your will. Each state has different laws as far as how the will is to be signed, so there’s a certain formality involved as far as signing a will. In Florida, it requires that the will be signed in the presence of two witnesses, and the person who executes the will. And if it is not, and if both parties are not present, then the will can be challenged and is ineffective.
Also, there are certain provisions in a will that you would want to consult with a lawyer – besides the particular language, as far as paying your bills – as far as what property you want to go to what particular person. It’s not a particularly good idea to try and designate a beneficiary for each one of your assets, since those assets are fluid and you don’t know what assets you’ll have at the time of your death.
So, it is my suggestion, whenever I take information to prepare your will, that you allocate it into shares or percentages for the particular beneficiaries. If there’s a particular grandchild or person that you wanna leave a specific sum of money, well, we can designate that.
It’s also important to know or consult with a lawyer as far as devising your home or your homestead property. And there’s certain constitutional provisions which does not allow you to leave your house to anyone you want, if you’re married or if you have minor children.
So, if you’d like to have a will prepared, give me a call. I’ll be glad to give you a quote for preparing the will. Also, there’s other documents that I will talk to you about whenever we do your estate plan, such as a living will which states your dying declaration as to whatever circumstances you want life support to be discontinued.
Also, a healthcare surrogate, which is a healthcare power of attorney form where you’re designating someone to make healthcare decisions for you if you’re unable to do so. And, also, a durable power of attorney which appoints an agent to be able to sign on your behalf. And the durable power of attorney is effective even if you become incapacitated, and may avoid having to set up a guardianship.
So if you would like to do some estate planning, giving me a call at 727-847-2288.
Ask Jaleh: Who Controls the Money In A Special Needs Trust?
Video Summary
Who controls the money in a supplemental or special needs trust?
Perhaps the most important consideration for an SNT is the selection of a trustee. The trustee of the special needs trust is critical to the successful achievement of the goals and objectives of the special needs trust.
First, the trustee should never be the beneficiary of the special needs trust, or the beneficiary spouse, because of the control and the deeming factors. The trustee should be someone who is experienced with financial matters, or who is capable of retaining the appropriate financial expertise to assist in the management of the assets in the special needs trust.
The trustee must have the time and be willing to exert the effort to become acquainted with and maintain current knowledge of the needs of the beneficiary. And, very importantly, the requirements of the public benefits programs for which the beneficiary of the special needs trust is eligible.
Often, especially with a supplemental needs trust, it is advisable to name co-trustees. One co-trustee could be a corporate trustee, and the other could be a family member or close friend who has frequent contact with the beneficiary of the special needs trust.
Whether co-trustees, a single corporate trustee, one or more individuals are appointed as trustee, consideration should be given to the use of a care manager. The special needs trust can provide that a care manager be hired by the trustee of the special needs trust, to provide the constant contact with the beneficiary necessary to become aware of the beneficiary’s personal needs. And then they can communicate that information regularly to the trustee.
The grantor of the special needs trust can also use a memorandum of instruction, or other similar type of document, to communicate the various personal information about the beneficiary of the special needs trust. Such as the beneficiary’s favorite color, favorite food, likes, dislikes, medications, and other important information regarding the beneficiary.
The special needs trust should include terms that prohibit the distribution of any trust asset for anything provided by the public benefits programs for which the beneficiary of the special needs trust may be qualified. If the trustee conscientiously complies with those provisions, the special needs trust assets will not be deemed to be owned by the beneficiary of the special needs trust, and will be available to use in the trustee’s discretion for other needs of the beneficiary of the trust.
Another common provision for a supplemental needs trust is allowing the trustee to make payments that could possibly disqualify the beneficiary of the trust for some government benefits, if the trustee decides that it is in the best interest of the beneficiary. For example, the trustee may use the special needs trust funds to purchase a house on behalf of the beneficiary. This would cause a reduction in the beneficiary’s social security income stipend, because it is considered a shelter expenditure. However, if the beneficiary of the special needs trust has housing needs that exceed the government benefits, it is in the beneficiary’s best interest to use the trust funds for better housing.
Special needs trusts are commonly used to provide the beneficiary with specially equipped vehicles, concert tickets, transportation tickets, dental work – these things are not covered by Medicaid or other public benefits programs. They could also be considered to be used for things such as the theater, performing arts admission tickets, computers, and other electronic devices such as televisions, iPads, and anything that would be necessary to the benefit of the beneficiary of the special needs trust.
With a third party special needs trust, the grantor has the right to designate, in the special needs trust document, who will be the beneficiaries of the trust upon the death of the primary beneficiary.
In conclusion, special needs trusts, whether third party or self-settled, are valuable tools for beneficiaries who are disabled or have other special needs.
If you’re interested in setting up a special needs trust, please contact me at Waller and Mitchell, at 727-847-2288.
What Is A Joint Trust And Can I Establish One?
Video Summary
What is a joint trust and can I establish one? A joint trust is whenever usually husband and wife sign a trust agreement. Thereby you’ve gotta have two people, of course, to have a joint trust, particularly whenever they own all their assets jointly, and it’s not – you just need to contact an attorney to be able to establish a joint trust.
If the purpose of the joint trust is to avoid probate, you can do that through titling your assets as husband and wife and that way you avoid probate when the first one passes away. If the purpose of the joint trust is to establish a… who you want to receive the asset when both the husband and the wife passes away, that is very, very remote on a simultaneous death, and I really don’t recommend it on that basis.
Also if you do set up a joint trust, do not put your homestead property into a joint trust. There’s all sorts of problems that are associated with that. Also joint trust destroy what they call tenancy body entirety is to give you a certain amount of protection from creditors if there is a judgment against either husband or wife under Florida law. So I am not a big fan or I don’t usually recommend folks to set up joint trust. I think you can title your assets so that they can go to the survivor rather than having a joint trust. If you don’t want your assets to go to your spouse, you have a prenuptial agreement; you have a second marriage or something like that; then I suggest you have separate trust, one for the husband and one for the wife as far as that’s concerned. And again, not putting the homestead property in either trust.
So if you have any questions about establishing a trust, joint or otherwise, give me a call at (727) 847-2288. Thank you.
How Can I Protect My Children’s Inheritance Of My Home If I Have Creditors?
Video Summary
How can I protect my home for my children and their inheritance if I have creditors? Well, under our Florida constitution, your home is protected from creditors. It’s called homestead and that’s a different part of our Florida constitution than when you file for homestead exemption, but you have to be a Florida resident and your residence must be less than a half an acre if inside the city limits and less than 160 acres outside a municipality.
And if you’re a resident of Florida and you pass away, then the property will pass to your children unless direct it to be sold under your will, or you can leave it to your children and your creditors will not have a claim against it even if they have a judgment against you, it will not attach to your homestead property. The word that’s used in the Florida constitution is this exemption from for sale of your creditors of your home in nours or passes through to your children. So your home is protected from creditors during your lifetime so that you don’t have to worry about credit card companies coming in and getting a judgment and taking your home and neither do your children if you even have judgments.
There is an exception, of course, in the event that the federal government has a lien, a tax lien, or a judgment against you, they can take your home and you cannot protect it from the claims of the United States of America. But your home is protected if you go through a bankruptcy, you can exempt out your homestead property and reaffirm your mortgage debt and preserve it; or if it’s paid for, you may even be able to keep it out of bankruptcy and be protected from the claims of creditors, and then whenever you pass away, it’s not subject to any judgment you have against you when it passes through to your children. You do have to leave it to your children or their heirs or grandchildren in order for them to get this exemption from the claims of creditors.
If you have any other questions about your homestead property and your creditors, give me a call at (727) 847-2288.