Divorce & Estate Planning

If you cannot live with her, do you want her to get your house when you die?  This is where divorce can be part of estate planning. Not everybody needs a will, but if you die without a will while you are still married, your house goes to your spouse.  Even if your will was made before you got married, your spouse is still entitled to half your estate, the same as if you had died without a will. Some couples are “ABD” – All But Divorced – living in harmony separated from each other, but in Florida, unless they are divorced, they are still married.  Should one of them die without a will, that person’s assets get distributed by the State according to the legal formula of Intestate Succession.  Part of that formula is that the living husband or wife is entitled to the homestead property (unless there is a properly executed marital agreement). Divorce does not have to be expensive and it does not have to take a long time.  If both sides are ready to sit down and take the necessary steps to complete the procedure, then a divorce can be over and done with in about […] Read More

Free Legal Lecture April 22 – “Should You Ever Put Someone Else’s Name on Your Deed?”

“It depends.”  That is my standard answer to many questions.  If you would like to learn more about what to consider in the question of your deed, the People’s Law School offers the free legal lecture titled, “Should You Ever Put Someone Else’s Name on Your Deed?” on April 22nd, presented by St. Johns County Legal Aid.  This FREE one-hour class starts at 4:00 p.m. at the Southeast Branch Library (6670 US 1 South, St. Augustine, Florida). For more information on St. Johns County Legal Aid and their services, go to www.jaxlegalaid.org.   Read More

Probate Debate

“Probate” “Prostrate” “Prostate” “Prostitute” – Do NOT get these words mixed up, especially not in front of your wife. Probate is the way the court verifies a will, makes sure certain debts are paid, and oversees the distribution of a decedent’s property.  Probate ensures that the court does not take shortcuts in asset distribution. My theory on probate is, get in, take care of it, get out.  Probate is not a dirty word and it does not have to be expensive. Probate can take time, though.  In some cases, depending on the size of the estate, tax implications, and desires of the testator, probate-avoidance methods, including trusts and pre-death distributions, are appropriate.  However, I am not a fan of a rubber chicken dinner served to you in a hotel ballroom where they scare you into getting a trust. Not everybody needs a trust and not everybody needs a will.  Seek competent legal counsel to discuss your circumstances to make a plan that best suits your intentions.   Read More

Heir of the Dog & Intestate Will

Once upon a time there was a dog who lived in a great junkyard.  This junkyard had everything—broken furniture, old cars, and plenty of scratched up couch cushions.  There were shady spots and sunny spots, and high spots and low spots.  There were places where water collected for a convenient sip, and a vast infestation of tasty rodents.  It was everything a dog could want…and a cat’s paradise. In fact, there was a cat who coveted the junkyard and wanted it very badly for himself.  He had tried to sneak in, but the dog always told him, “No trespassing!” in no uncertain barks.  So the cat decided to wait it out.  Reasoning that cats have more lives than dogs, he figured he would get the junkyard when the dog died. Sure enough, one day the dog succumbed to his mortality.  The cat packed his bags and was all ready to move into the junkyard, but when he got there, a large puppy had already taken up residence. “Who are you?” asked the cat. “Heir of the dog,” answered the puppy. “But the dog had no will,” said the cat.  “How can you possibly be his heir?” At that point, the […] Read More

‘Inheritrance’ – a.k.a. Fear of Reverse Mortgages

‘Inheritrance’ is the mindset of an heir who, under the spell of money, is unwilling to support his parents financially and who views Reverse Mortgage as a threat to his inheritance. If your father has fifty-four grandchildren and if each of those grandchildren gave him $100 a month, he probably would not have to worry too much about his finances.  Or you could give him $5,400 a month.    On the other hand, for someone 62 or older living on a fixed income who has increased expenses—medical hardship, higher utility bills, needs to help out a family member, major home repair—a Reverse Mortgage could be a way to help them meet their financial goals. A Reverse Mortgage (Home Equity Conversion Mortgage, or HECM) is for homeowners 62 or older who have paid off or paid down the mortgage on their primary residence.  The program allows them to withdraw funds from the equity in their home in a fixed monthly amount or a line of credit or a combination of both. My perspective on Reverse Mortgages is that it is not a product for everybody.  To begin with, you have to be 62 or older (and there are other requirements), and there […] Read More

What Happened to My Homestead?

Once upon a time there was a father who owned a lovely plot of land where he had lived for years and years.  He maintained a good and healthy lifestyle full of fresh air and plenty of vegetables, but still the father knew that he would not live forever, and so he decided to do a little estate planning.  He wanted his son to inherit everything, so he went ahead and put everything in his son’s name, including the land on which he lived, that way his son would have it all and not have to wait for probate.  The only problem was, when the father received his property tax bill, it was a lot higher than what he was used to paying. By putting his primary residence in his son’s name, the father was trying to make inheritance easier and faster for his son, but in doing so, he had given up his own homestead exemption on his property taxes. Competent legal counsel can help you review all your estate planning choices and their consequences so you can make informed decisions.  An attorney can also help you ensure your will is properly executed so that your assets will be […] Read More

What Is a Self-Proving Will?

It is difficult to execute a valid will by yourself.  It is also difficult to execute a valid will posthumously.  Generally you need some assistance to make sure your assets will be distributed according to your intentions, and you need to take care of it before your deadline. In Florida, a will has to have two witnesses who see you sign the will and see each other sign as witnesses—everybody has to be in the same room.  You can have a little will execution party—you, your two witnesses, and invite a notary public to join in to make your will self-proving. The reason to have a will notarized is to make it self-proving, then the validity of the witnesses will not be challenged later in probate.  If a valid will is self-proving, it can be admitted to probate without further proof, and saves time and expense in tracking down one of your witnesses to the will so that person can give an oath after your death.  Thus a self-proving will minimizes hardship on your friends and family when you are gone.     Read More

Wills & Spouses

Getting married can change your life.  It can also change what happens after your death.  You cannot disinherit your spouse…no matter how much you may want to.  Regardless of what your will may or may not say, your wife or husband is entitled to your homestead property when at death you do part (unless there is a properly executed marital agreement). Even if your will was made before you got married, your spouse is still entitled to half your estate, the same as if you had died without a will. You may be “ABD” (All But Divorced), but happily or unhappily, while you are still married, you and your spouse have a Tenancy by Entirety.  Tenancy by Entirety includes the unities of Joint Tenancy with Rights of Survivorship plus the Unity of Marriage, which subscribes to the legal fiction that husband and wife are one entity.  As long as the marriage is intact, neither can break the tenancy nor otherwise convey the property. If you want your children to inherit your homestead without having to share with your estranged spouse, then divorce may be part of your estate planning.  ‘Putting your affairs in order’ may literally mean ‘putting your affairs […] Read More

What a Will Can Do for You After You Are Gone

Where there is a will, I want to be in it!  You cannot always predict what is going to happen in life, and death can be a real surprise.  A properly executed will puts you in control of what is going to happen to your property.  Generally, you can accomplish the following things with a will: Decide who gets your property (instead of the law making the decision). Name the personal representative (executor) of your will to manage your estate. You may create a trust in a will; whereby, the estate or part of the estate will be kept intact with income distributed or accumulated for the benefit of members of the family or others.  Minors can be cared for without the expense of proceedings for guardianship of property. Real estate and other assets may be sold without court proceedings (if your will adequately authorizes it). Make gifts to charity. Decide who bears any tax burden (instead of the law making the decision). Name a guardian for minor children. Estate Planning has a deadline.  Seek competent legal counsel to discuss whether you need a will, and if so, to ensure your will is properly executed.   Read More

Estate Planning Sans Rubber Chicken Dinner

There are advantages to wills and there are advantages to trusts—whether they are advantageous to you depends on your circumstances. I am not a big fan of the guys who go to the Ramada Inn, give you a rubber chicken dinner and then make you listen to a two-hour commercial to get a trust.  Those sales pitches have been sitting under a heat lamp and you may be better off with estate planning made to order. A Will is a written direction controlling the disposition of your property at death. A Trust can be part of a Will, but can handle only the property that is put into it. In some cases, depending on the size of the estate, tax implications, and your wishes, probate-avoidance methods (including Trusts and Pre-Death Distributions) are appropriate.  However, do not let anyone scare you to death into purchasing an estate-planning package at a hotel ballroom seminar. Not everybody needs a trust and not everybody needs a will.  Seek competent legal counsel to discuss your circumstances to make a plan that best suits your intentions.   Read More