Voss' Views
Do I Really Need a Will?
by Patricia R Voss on 03/12/19
No, but maybe
yes. So I guess I could say “it
depends.” If you die without a Last Will, then Florida law ‘has a Will for
you!’ The Florida statutes contain a list of who gets what depending on if
you’re married or not, have children with your spouse or children from another
relationship or have no children, etc.
What does
this really mean? If you are married to
the same person (that is, not ever married to someone else) and that person
dies, as the surviving spouse you are entitled to everything. If the two of you have children together,
then you’re still entitled to everything. If your spouse dies and is survived
by you and your spouse’s children, who are not also your children, then your
share drops to one-half. If the two of you have children together, but your
deceased spouse also had children from a prior relationship, then your share is
one-half.
This sounds nice,
except for the 50% reduction part, but still most times it’s what you might
choose anyway. If you are OK with this plan, then do you really need a Will?
No.
Medical Directives for Adults and Children
by Patricia R Voss on 02/28/19
An
unexpected medical emergency can happen to anyone at any anytime. Whether due to an illness or as a result of
an unexpected circumstance, situations occur every day which render persons of
all ages incapacitated and unable to make decisions for their own health
care. Advance Directives is a group of
documents that allow you to give someone the legal authority to make medical
decisions for you, access your medical records, and carry out your instructions
with regard to the types of medical treatment acceptable to you in an end of
life care situation.
The
documents that makeup these Directives consist of a:
1)
“Designation of Health Care Surrogate” ( see
Florida Statutes for a suggested form ), the document which allow the
person you designated to make medical decisions for you and can include HIPPAA
release language unless a free-standing HIPPAA release document is also being
executed (HIPPAA stands for Health Insurance Portability and Protection Act
which is a federal law that protects the privacy of a person’s medical records);
2)
A “Living Will” ( see
Florida Statutes for a suggested form ), the document that includes types
of medical treatment you would or would not want in the event of you terminal
illness, end-stage condition or being in a persistent vegetative state
condition. Since tragedy does not discriminate and there is rarely advance
warning about when a person will become incapacitated, obtaining these Directives as soon as possible is
critical since without them, then you have no control over who will be the
person tasked with making life and death decision on your behalf during a time
of incapacity or near death. This could potentially mean that someone you don’t
trust, or even a guardian appointed by the Court, could be appointed to make decisions
on your behalf.
In
addition, anyone who is the parent or guardian of a minor child, should execute
a separate Designation of Health Care Surrogate for a Minor (see
Florida Statutes for a suggested form) in order to authorize another adult to make
medical decisions on behalf of your child in the event you (and anyone else
with legal authority over your minor child) should become unable to make such
decisions. Keep in mind that once your child becomes a legal adult, your adult
child should also execute his or her own Medical Powers of Attorney in order to
grant you or whoever they wish, the authority to make medical decisions on
their behalf in the event of any incapacity.
Although
you will always be your child’s parent, once a child becomes legally
emancipated or attains the age of majority, you no longer have the same legal
rights to make medical decisions simply by virtue of the fact that you are the
parent. Therefore, whether an adult
child goes off to college, takes off for a gap year, or continues to reside at
home, adult children also need Advance Medical Directives in order for another
person, including a parent, to make health care decisions on their behalf in
the event of incapacity.
What Happens to your Will from another State when you Move to Florida?
by Patricia R Voss on 02/26/19
When people move to Florida they often ask whether the estate planning documents they signed in another state are valid in Florida. And generally, this is true. Where many run into trouble is presenting an out of state document to a local doctor’s office or trying to use a power of attorney document from out of state to complete the sale of real estate. Since the Last Will doesn’t become valid until after death, testing it ahead of time isn’t possible.
In a Last Will, there may be provisions that are in conflict with Florida law or would be governed in its home state by laws that Florida doesn’t have, such as community property. Some other examples are:
- Florida
does not allow Holographic (i.e., handwritten but without proper
witnessing) or noncupative Wills (oral Wills).
- Florida
law requires that a Personal Representative designated in a Will must be either
a person related as stated in FS 733.304 ( generally, related by blood) or
a Florida resident.
- If
a Last Will does not include a self-proving Affidavit after the
Testator/Testatrix’s signature, Florida law requires that the witnesses be
located and give an Oath as to their presence at the time of signing of
the Will and other execution formalities – this become much more involved with
an out of state Will and requires an opinion letter from an attorney
licensed to practice in the other state as to the Will’s validity.
- If
more than $15,000 (or an asset worth at least that) is devised to a minor,
Florida law requires that a guardianship be established with Court
supervision, even if this is not the case in the state where the Will was
created. Florida guardianship is expensive to open and administer.
- Florida
law does not allow a spouse to devise his/her homestead in a Will or Trust
to anyone other than his/her spouse - Florida has very strict (and
unusual) laws about how one’s homestead can be devised when there is a
spouse or a minor child.
Reviewing your Will periodically is always in your best interest, since life happens and circumstances often change. The persons you named as beneficiaries or as (executor) Personal Representative may have died or become incapacitated or you may have simply changed your mind about these designations.
Since you want to ensure that your current instructions are reflected in your estate planning documents, you should plan to meet with an experienced estate planning attorney to ensure the validity of the provisions of your out of state Will in Florida and that your prior instructions are in line with your current wishes.
The Advantages of Florida Limited Liability Companies
by Patricia R Voss on 01/28/19
Estate plans of owners of rental real
estate should include establishing an Limited Liability Company (“LLC”),
inasmuch as Florida multi-member LLCs offer asset preservation that is superior
to an “S” or “C” Corporation (named for those sub-chapters of the Chapter 1 of
the Internal Revenue Code). This is because when a judgment is obtained against
an LLC, the judgment creditor, according to Florida law, gets only some
specific rights of ownership, not 100% of them.
Even if you are already involved in a
lawsuit regarding your rental property, the fact that the rental property is
involved does not, in and of itself, preclude transferring it into an
LLC. However, if a court determines that your transfer of the rental
property into the LLC was done with the intent to defraud a potential creditor,
the court may deem it a “fraudulent transfer” and unwind the transfer.
Therefore, if you own rental property, you should give serious consideration to
transferring it into an LLC before a threat arises.
Rental property owned in another state
can be conveyed (with a new deed) by an attorney licensed in the state where
the rental property is located, to a Florida LLC, provided the laws of that other
state do not prohibit such a transfer. However, certain states require
that documentation remain on file in the state where the real property is
located, such as registering the Florida LLC as a foreign LLC, filing an annual
report, and paying any required fees.
For the “Do-it-Yourselfer:” if
any of your rental properties are mortgaged, you will need written approval
from the lender, authorizing the deed transfer to the Florida LLC, prior to the
proposed transfer. If you are unable to
obtain lender authorization for your transfer, you might consider taking the
equity out of another property, using those proceeds to pay off the mortgaged
property and then transfer the unencumbered property into the LLC.
Although “single-member” LLCs are
valid in Florida, they do not offer the same protection as a multiple-member
LLC. Even if one member holds the overwhelming majority interest (i.e.,
98%), and the other holds a minority interest (i.e., 2%), this is sufficient to
create a multi-member LLC.
As part of your estate planning, your
revocable living trust would hold your ownership units in your LLC and upon
your death, your trust would provide instructions for how to distribute those
units. The LLC may also have a Member Operating Agreement to control the units
on death, divorce or disability so it’s important that your testamentary
document (Will or Trust) and the Operating Agreement are consistent.
If you are unmarried, please repeat after me. . . “I will have a Prenup
before I get married.” Repeat again. This is the only way to protect your
assets, including your LLC, from a future ex-spouse.
Many attorneys base their fees on an
hourly rate for this type of work. While the attorney fees to establish
an LLC can vary, some of the current approximate costs are as follows: 1)
$125.00 – initial filing fee for Articles of Organization and naming a registered
agent for service of process; 2) $90.00 - LLC Corporate Book, when kept up to
date, satisfies the requirement of keeping corporate formalities when operating
a legitimate business in Florida); 3) $138.75 – annual filing fee for the
Annual Report with the State of Florida. Some of the services an attorney
might provide are: obtaining a tax ID number (EIN), guiding you in opening a
business checking account; drafting an Operating Agreement, Organizational
Meeting Minutes and Annual Meeting Minutes.
Owners of rental property in Florida
should be concerned about someone on the property being injured or worse. A Limited Liability Company (LLC) for each rental
property is a solid tool for protecting property owned outside of a particular
LLC.
How a Prenuptial Agreement Can Protect You
by Patricia R Voss on 01/14/19
A
Prenuptial Agreement (Prenup) is a contract between two persons who intend to
marry one another and is used to keep some (or all) of assets separate after
marriage, in the event of divorce and death.
It’s a very important document in Florida since it’s a way to preserve assets
for the benefit of persons other than a spouse - such as adult children from a
prior marriage or relationship. Without a Prenup, each spouse’s assets upon
death and/or divorce, will be distributed according to Florida law, which
oftentimes is not at all what they might choose. With a Prenup, the couple are each able to
decide how to distribute the assets between themselves as well as to other
beneficiaries, upon death and/or in the event of a divorce.
On marriage each spouse assumes
legal rights and responsibilities, many of which they may have no knowledge. Among those is a right found in the Florida
Constitution, which protects each spouse’s homestead from forced sale by a
creditor. This is so that a person won’t
be without shelter. Florida has one of the strictest protections
available. This means, if you own your home
as the “sole owner” on the deed, and then marry, your new spouse acquires a
right in that home, unless you both enter into a Prenuptial Agreement that
changes that right. Also, without a
Prenuptial Agreement, your new spouse’s signature is required in any transfer
of that property even if your spouse is not in any way an owner.
In
addition to rights in a deceased spouse’s homestead, a new spouse also acquires
the right to elect to receive 30% of the deceased spouse’s “Elective Estate,”
which includes both probate and non-probate assets. Practically, this means
that even if you have a Last Will or a Revocable Trust in which you left your
entire estate to your children, your spouse could elect to take 30% first. If your Last Will is dated before the marriage, your spouse may
receive up an even larger percentage of your estate.
The surviving spouse has the right to claim the greater of the two, as between the Elective Share or "Pretermitted" Spouse Share. On the other hand, if you made a Will and/or
Trust after you married, but
still failed to provide for your surviving spouse when devising your assets
including your homestead (even if purchased by you before marriage to your
surviving spouse), then your surviving spouse will have acquired homestead
rights for life and may also elect 30% of your elective estate.
In
addition, a surviving spouse also has the right to claim some property and also
a family allowance. The property right entitles the surviving spouse to
furniture, furnishings and appliances from the residence of up to $10,000, any
automobiles held in the name of the deceased spouse being used by immediate
family, and the deceased spouse’s interest in certain contracts. The family allowance right gives the
surviving spouse a claim for up to $18,000).
Lastly, a surviving spouse is also given preference in appointment as
personal representative of an intestate estate even when this might not have
been the deceased spouse’s choice.
A properly drafted Prenuptial Agreement that includes a Waiver of Homestead Rights and Elective Share Rights, together with a properly drafted Estate Plan are vehicles that will protect your estate for the beneficiaries of your choice after your death, enabling your assets to be distributed in accordance with your wishes.