Blog Posts

Estate Planning Checklist for Year-End Financial Planning

Wed, 04 Dec 2024 18:48:35 +0000

By Jada W.Terreros, Esq.

As we approach the end of the year, now is the ideal time to revisit and update your Estate Planning documents. An annual review ensures that your plans align with your current wishes and financial situation. Here’s a checklist to help you stay on track:

Review Your Will

Ensure that your Will reflects your current intentions, especially if there have been major life changes such as marriage, divorce, or the birth of a child. In Florida, confirm that your personal representative meets state requirements (e.g., must be a Florida resident or a close relative) and that any gifts, property, or specific instructions align with your current wishes.

Update Your Trusts

If you have a Trust in place, verify if any recent legislative changes in Florida affect it and whether its terms still match your goals. Ensure your Trust is fully funded by titling assets in its name. Double-check that your chosen trustees are still your preferred appointees and are prepared to manage the Trust as instructed.

Check Beneficiary Designations

Review designations on accounts like retirement funds, life insurance, and bank accounts. In Florida, these designations override your Will and Trust, so it’s vital they are accurate and up to date. Confirm that both primary and contingent beneficiaries remain appropriate, especially after significant life events.

Evaluate Power of Attorney & Healthcare Directives

Ensure the individuals designated in your Durable Power of Attorney and Healthcare Surrogate Designation are still the best choices to make financial and medical decisions on your behalf. Review these documents to reflect any changes in your healthcare preferences or financial situation.

Review Your Digital Assets

In Florida, state laws now allow you to specify who can access your digital accounts, such as email, social media, and online banking. Create a record of your accounts and passwords and consider designating a digital executor to manage these assets in case of incapacity or death. This step minimizes complications and ensures smooth access to your digital footprint.

Starting these updates in November gives you ample time to work with your Estate Planning Attorney to finalize any changes by year’s end. An annual review not only secures your financial legacy but also provides peace of mind for you and your loved ones.

By making these updates part of your year-end routine, you stay proactive with your Estate Plan and reducing potential stress for your family. With a clear and updated plan, you can enter the new year knowing your wishes are well-documented and your affairs are in order.

Expert Insights: The Risks of Naming Minor Children as Death Beneficiaries in Estate Planning

Wed, 04 Sep 2024 13:32:27 +0000

By Callie W. Cowan, Esq.

When considering how to structure your estate plan, one of the most important decisions you will make is determining who will inherit your assets. If you're a grandparent wanting to leave a portion of your estate to a minor grandchild, it's crucial to understand the potential pitfalls associated with naming them as a direct beneficiary. As an estate planning attorney, I've seen firsthand the complications that can arise from this well-intentioned decision.

Legal and Guardianship Complexities

One of the most significant issues is that minors cannot legally inherit property or financial assets outright. If you name a minor as a beneficiary, those assets typically go into a court-supervised guardianship until the child reaches the age of majority—usually 18 or 21, depending on your state. This process often involves considerable court oversight, legal fees, and administrative costs that can significantly reduce the value of the inheritance. Moreover, the court may appoint a guardian to manage the funds, and that person may not be the individual you would have chosen. This can lead to the assets being handled in a manner inconsistent with your wishes.

Financial Inexperience and Its Consequences

Another critical concern is the financial inexperience of the beneficiary. Once the minor reaches adulthood, they gain full control over the inheritance. At 18 or 21, most young adults lack the maturity and financial literacy required to manage a significant sum of money wisely. Without the necessary skills, there is a high risk that the inheritance will be squandered, leaving the beneficiary without the long-term financial security you intended to provide.

Family Disputes and Tension

Naming a minor as a beneficiary can also create tension and conflict within the family. If the terms of the inheritance are not clearly articulated or if there is confusion about how the assets should be managed, it can lead to disputes among family members. This is particularly true if different relatives have differing opinions on how the funds should be used for the child's benefit. Such disputes can be emotionally and financially draining, detracting from the legacy you intended to leave.

Alternative Estate Planning Strategies

Given these potential complications, it is wise to consider alternative strategies that better protect your assets and ensure your wishes are honored. One of the most effective solutions is to establish a trust, either during your lifetime (a living trust) or through your will (a testamentary trust). A trust allows you to appoint a trustee—someone you trust implicitly—to manage the assets according to your instructions. You can specify how the funds should be used, such as for the child’s education, health care, or other needs, and set conditions on when and how the child can access the funds. This approach provides both control and flexibility, ensuring that the assets are managed responsibly until the beneficiary is mature enough to handle them.

In conclusion, while the desire to provide for a minor grandchild is understandable and commendable, naming them as a direct beneficiary in your estate plan can lead to unforeseen challenges. As an experienced estate planning attorney, I strongly recommend exploring alternative options, such as trusts, that offer greater protection and ensure your legacy is preserved according to your wishes. By taking these steps, you can provide for your loved ones in a way that safeguards their future and honors your intentions.

Understanding Beneficiary Designations

Wed, 29 May 2024 15:32:39 +0000

By Jada W. Terreros, Esq.

As an Estate Planning Attorney, I frequently encounter clients who are unaware of the intricacies involved in beneficiary designations and their interaction with Wills. A common scenario involves clients who believe they have adequately named multiple beneficiaries in their Wills, only to discover later that due to a misunderstanding, they effectively named just one beneficiary. This misunderstanding can lead to significant consequences. Let's delve into the critical aspects of beneficiary designations and how they interact with Estate Planning.

The Role of Beneficiary Designations

Beneficiary designations are instructions you provide to financial institutions about who should receive the assets in your accounts—such as life insurance policies, retirement funds, and bank accounts—upon your death. These designations are crucial because they override the instructions in your Will. For instance, if you name your daughter as the beneficiary of your life insurance policy, she will receive the payout directly, regardless of what your Will or Trust says.

How Wills and Beneficiary Designations Work Together

While a Will governs the distribution of your residual assets—those not tied to specific beneficiary designations—such as personal property, real Estate, and other assets solely in your name, it’s essential to ensure consistency between your Will and beneficiary designations. If you want your assets divided among multiple beneficiaries, you must either list all intended beneficiaries on your beneficiary designations or ensure those assets fall under the purview of your Will.

Common Estate Planning Mistakes

Single Beneficiary Assumption: Some people name only one child as the Payable on Death (POD) or Transfer on Death (TOD) beneficiary, mistakenly believing this will result in equal distribution among all their children. This leads to only the named child receiving the asset, which might not align with the person's overall wishes.
Mismatched Designations: Clients sometimes intend for their Estate to be divided equally among their children but designate only one child as a beneficiary on significant accounts and other children on lesser accounts. This can result in unintended unequal distributions and potential family disputes.

Best Practices for Effective Estate Planning

Regular Review and Updates: Regularly review and update your beneficiary designations and Will to ensure they align with your current wishes. Life events such as births, deaths, marriages, and divorces should prompt a review of your Estate plan.
Consult with Professionals: Given the complexities of Estate Planning, consulting with an Estate Planning Attorney or financial advisor is crucial. These professionals can help ensure your assets are distributed according to your intentions and guide you through the nuances of beneficiary designations and Wills.
Understand Your Assets: It’s important to understand which of your assets require beneficiary designations and which are governed by your Will. This knowledge helps you make informed decisions and effectively structure your Estate plan.
Clear Communication: Clearly communicate your intentions in all your documents. Vague or contradictory instructions can lead to confusion and legal challenges, potentially causing family disputes.

The case of the client who thought she had twelve beneficiaries but had effectively named only one illustrates the importance of understanding beneficiary designations in Estate Planning. By ensuring consistency between your designations and your Will, regularly reviewing and updating your plans, and consulting with professionals, you can avoid common pitfalls and ensure your assets are distributed as you intend.

Estate Planning doesn't have to be overwhelming. With the right guidance and a clear understanding of how your assets are handled, you can create a comprehensive plan that honors your wishes and provides for your loved ones. As an Estate Planning Attorney, I'm here to help you navigate these complexities and achieve peace of mind for your future.

Inherited IRAs: Insights from a Probate Attorney

Tue, 30 Apr 2024 16:30:54 +0000

By Carolyn S. Smith, Esq.

As a probate attorney, it is very common to deal with beneficiary inherited Individual Retirement Accounts (IRAs). Most people have either never heard of a beneficiary IRA or do not understand how they work. In this blog, I would like to offer insights into the legal landscape surrounding inherited IRAs, shedding light on key considerations that beneficiaries should be aware of.

A beneficiary IRA is an IRA that is inherited by an individual who was designated as a beneficiary by the original account holder, also known as the decedent. When the decedent passes away, the assets held in the IRA can be transferred to one or more beneficiaries, who then establish beneficiary IRAs to receive and manage the inherited funds.

At the time the IRA was established, the decedent should have designated one or more beneficiaries to receive the assets upon their death. Beneficiaries can be individuals, such as family members, friends, or charitable organizations, or entities like trusts or estates.

Upon the death of the decedent, the IRA custodian is notified, either by the decedent’s family members or the probate attorney, and the account is frozen until the beneficiary designation and inheritance process is completed.

Probate attorneys can help the designated beneficiaries initiate the inheritance process by obtaining necessary documentation from the IRA custodian. The attorney can then help the beneficiaries execute the documentation and forward it to the IRA custodian for processing along with a certified copy of the decedent’s death certificate.

Beneficiaries of inherited IRAs have several distribution options available to them, depending on the type of IRA inherited, the relationship to the deceased owner, and other factors. These options may include taking a lump-sum distribution, withdrawing funds over a specified period, or "stretching" distributions over the beneficiary's life expectancy to maximize tax deferral.

Taxes are a significant aspect of inherited IRAs. It's important to note that distributions from beneficiary IRAs may be subject to income tax, depending on the type of IRA and the distribution option chosen by the beneficiary. Traditional IRA distributions are generally taxable as ordinary income, while qualified distributions from Roth IRAs are tax-free. Beneficiaries must navigate the complexities of required minimum distributions (RMDs) and potential income tax liabilities associated with distributions. Failing to comply with RMD requirements can lead to substantial penalties, underscoring the importance of seeking guidance from tax professionals to develop tax-efficient strategies tailored to individual circumstances.

Overall, beneficiary IRAs allow individuals to inherit retirement assets from a decedent and manage those assets according to their own financial needs and objectives, subject to applicable tax and distribution rules. It is important to work with a knowledgeable probate attorney and tax consultants to understand the financial implications of inherited IRAs and to help avoid tax liabilities associated with the inheritance.

Preparing for Your Parents’ Future (and Yours!)

Wed, 20 Mar 2024 19:50:45 +0000

By Callie W. Cowan, Esq.

As our parents age, we are confronted with the reality that their well-being may someday soon be in our hands. But what documents should we be making sure they have in place? This article will cover three indispensable documents that play a crucial role in proactive estate planning for your parents and future generations.

Durable Power of Attorney (DPOA):
Who can sign a document on behalf of your parents? Ensure they have a Durable Power of Attorney in place so that a trusted individual can manage financial affairs during incapacity. From handling bills to making decisions, this document is an essential part of their estate planning.

Living Will and Designation of Healthcare Surrogate:
Who will make health care decisions for your parents when they can no longer make them for themselves? This document designates a trusted advocate, while the Living Will clarifies life-sustaining treatment preferences. Both provide peace of mind for your parents and their loved ones.

Testamentary Documents (Will or Trust):
Who will inherit from your parents? If someone passes away without a testamentary document like a will or trust in place, the statutes dictate who receives their inheritance. It is important to formalize their testamentary wishes while they have capacity to sign documents, making sure that their desires are carried out rather than being determined by the court.

Initiating Estate Planning Conversations: We all know it can be awkward to have these conversations with our parents – but it is so important. One of the best ways you can initiate the conversation is by putting your own estate planning in place and then sharing your experience and the insights gained from your lawyer's questions with your parents. Mention the importance of formalizing their wishes. Emphasize that involving your parents in the process is a collaborative effort to ensure their wishes are respected and their legacy is preserved.

Highlight potential complications that may arise without a clear estate plan, underscoring the challenges faced by families navigating legal complexities. Express your willingness to assist in researching options, finding a reputable professional, or facilitating family discussions. Assure them that your aim is to support and collaborate in securing their future and family legacy.

Why the Urgency?
One of the biggest pitfalls in Estate Planning is procrastination. Everyone knows they should get these documents prepared, but it often stays on the “to do” list from one year to the next. Unfortunately, this procrastination can lead to legal and emotional chaos during unforeseen crises. Take proactive steps to ensure your parents' peace of mind and pave the way for a smoother transition for future generations.

Ensuring your parents' peace of mind is our top priority. Take action now; schedule a free 15-minute consultation with our Attorneys to discover our unique approach to the Estate Planning process. By securing these three essential documents, you're not just fulfilling a checklist; you're investing in a lasting legacy for your family's future.

Securing Your Legacy: The Indispensable Role of an Estate Planning Attorney

Wed, 21 Feb 2024 18:26:38 +0000

By Steve W. Ledbetter, Esq.

Embarking on the journey of estate planning is a pivotal step in ensuring the seamless transfer of your assets and safeguarding the future for your loved ones. While online programs may offer a quick and seemingly convenient solution, there are compelling reasons to choose the personalized guidance of an experienced estate planning attorney. In this blog post, we'll explore why opting for professional legal assistance is essential for creating a robust and tailored estate plan.

1. Personalized Guidance: Crafting a Plan That Fits You

Estate planning isn't a one-size-fits-all endeavor. Online programs & “trust drafting salesmen” may provide generic templates, but they lack the nuanced understanding of your unique situation. An attorney brings a personal touch, offering tailored advice based on your family dynamics, financial situation, and specific preferences. Some examples include taking advantage of step-up in basis to avoid income tax & asset-protection trusts for the kids to protect from divorce.

2. Legal Expertise and Ongoing Updates

The legal landscape surrounding estate planning is complex and subject to change. Attorneys possess the necessary legal expertise to navigate intricate laws, ensuring that your plan complies with current regulations. This ongoing commitment to staying informed about legal developments is a crucial benefit that online programs may lack, potentially leaving your plan outdated and susceptible to legal challenges.

3. In-Depth Understanding of Your Assets

Estate planning goes beyond document drafting; it requires a comprehensive understanding of your financial landscape. Attorneys delve into the intricacies of your assets, liabilities, and financial goals, offering insights that extend beyond the capabilities of online tools. This deeper understanding allows for a more strategic and effective estate planning approach.

4. Mitigating Potential Challenges

The execution of an estate plan can be fraught with challenges, from family disputes to changing tax laws. Attorneys are equipped to anticipate and navigate these potential pitfalls, minimizing the risk of legal complications. Unlike online programs, attorneys provide a human touch, offering guidance on addressing complexities and ensuring a smoother implementation of your plan.

5. Professional Network Collaboration

Estate planning often requires collaboration with other professionals such as financial advisors, accountants, and insurance agents. Attorneys typically have a network of trusted professionals, facilitating a holistic approach to your estate plan. This comprehensive coordination ensures that all aspects of your financial strategy align seamlessly.

6. Access to Specialized Tools and Resources

Estate planning attorneys have access to specialized tools and resources that may not be available through online programs. This access enables them to employ sophisticated strategies tailored to your specific needs, providing a level of detail and effectiveness that online platforms may lack.

In the realm of estate planning, the value of professional guidance cannot be overstated. While online programs may offer convenience, an experienced estate planning attorney brings unparalleled expertise, personalized advice, and a comprehensive approach to ensure that your legacy is not only secured but crafted with precision and care. Choosing the path of legal assistance is an investment in the future well-being of your loved ones and the preservation of your unique legacy.

Unlocking the Digital Vault: Navigating Digital Assets in Probate

Tue, 30 Jan 2024 16:31:17 +0000

By Carolyn S. Smith, Esq.

In the modern era, our lives are increasingly intertwined with technology. From social media profiles to cryptocurrency wallets, much of our personal and financial information exists in the digital realm. However, what happens to these digital assets when we pass away? This question lies at the junction of technology and probate law, presenting both challenges and opportunities for estate planners and beneficiaries alike.

Traditionally, the probate process primarily dealt with tangible assets such as real estate, vehicles, and bank accounts. However, the rise of digital assets has added a new layer of complexity to estate administration. Digital assets encompass a wide range of items, including:

Social Media Accounts: Platforms like Facebook, Instagram, and Twitter hold not only personal memories but also valuable digital content. Who has the right to access or manage these accounts after death? Should they be memorialized or deleted?
Financial Assets: Cryptocurrencies, online banking accounts, and investment portfolios are increasingly common forms of wealth. However, without proper planning, these assets may be lost forever in the digital ether.
Intellectual Property: Digital content such as ebooks, music libraries, and online courses represent valuable intellectual property. Ensuring their proper transfer or management requires careful consideration.

Navigating the complexities of digital assets in probate requires specialized estate planning. Here are some essential steps to consider:

Inventory and Documentation: Start by compiling a comprehensive list of all digital assets and their corresponding login credentials. Document any specific instructions regarding their management or disposition.
Legal Considerations: Consult with legal professionals experienced in digital estate planning to ensure your will or trust adequately addresses the handling of digital assets. Consider appointing a digital executor specifically tasked with managing your online presence.
Privacy and Security: Balance the need for privacy and security with the necessity of providing access to digital assets. Utilize password managers or secure storage solutions to safeguard sensitive information while still ensuring accessibility to designated individuals.
Platform Policies: Familiarize yourself with the terms of service and policies of various online platforms regarding posthumous access to accounts. Some platforms offer specific options for memorializing or transferring accounts upon death.
Regular Updates: Review and update your digital estate plan regularly to account for changes in technology, assets, or personal circumstances.

Ultimately, managing digital assets in probate requires a proactive and informed approach. By incorporating these considerations into your estate planning process, you can ensure that your digital legacy is preserved and managed according to your wishes. Embracing the digital age means taking on the responsibility to safeguard and transfer our virtual assets effectively, ensuring a smooth transition for future generations in an increasingly digital world.

Why Charitable Giving Should Be Part of Your Estate Plan

Wed, 01 Nov 2023 14:32:28 +0000

By Callie W. Cowan, Esq.

Estate planning isn't just about distributing assets; it's also an opportunity to leave a lasting impact on the causes and organizations that matter most to you. Charitable giving is a noble way to make a difference, even after you're gone. Here are a few compelling reasons why you should consider including charitable donations in your estate plan:

Fulfill Your Philanthropic Goals: If you're passionate about supporting charitable causes, estate planning provides a strategic way to continue your philanthropic efforts. By earmarking a portion of your assets for charitable purposes, you can make a meaningful difference in the world.

Tax Advantages: Charitable giving in your estate plan can offer tax benefits. Depending on your jurisdiction and the assets donated, your estate may qualify for deductions, potentially reducing the overall tax liability for your heirs.

Legacy Building: Creating a charitable foundation, endowment, or trust in your name allows your legacy to live on. This can fund charitable activities in perpetuity, ensuring your values endure for generations.

Family Values: Incorporating charitable giving into your estate plan can help instill the importance of philanthropy in your family. It's a way to pass down your values and encourage future generations to give back.

Impact on Your Community: Donating to local charities can have a direct and significant impact on your community. Your estate plan can play a vital role in continuing your support for causes that matter locally.

Tailored Support: You can choose specific causes or organizations that align with your passions and values, whether it's education, healthcare, environmental conservation, or the arts.

Professional Guidance: To make the most of your charitable giving, consult with experts in estate planning and financial advising who specialize in charitable donations. They can help you navigate the tax implications and identify the most tax-efficient strategies.

Incorporating charitable giving into your estate plan can be as simple as including a bequest in your will, establishing a charitable trust, contributing to a donor-advised fund, or designating beneficiaries for your retirement accounts or life insurance policies.

By weaving philanthropy into your estate plan, you can ensure that your legacy extends far beyond your lifetime, making a positive impact on the world and the causes you hold dear. It's not just about distributing assets; it's about leaving a legacy of compassion, generosity, and positive change.

Understanding Probate: Why Your Home May Go Through the Process

Mon, 21 Aug 2023 12:31:01 +0000

By Carolyn S. Smith, Esq.

If you own a home and pass away, your home may go through the probate process if it is part of your probate estate. The probate process is a legal procedure that occurs after someone's death to administer and distribute their assets, including their real estate, according to their will or the laws of intestacy (when there is no valid will).

The home will go into probate if:

You Have No Living Trust: If you do not have a living trust or other estate planning arrangements in place, your home will typically be subject to probate. A living trust allows you to transfer assets, including your home, directly to your chosen beneficiaries without going through probate.
You Are The Sole Owner: If you own the home in your individual name without any co-owners or beneficiaries designated, it becomes part of your probate estate. Property owned jointly with rights of survivorship or held in trust, generally avoids probate.
You Have No Beneficiary Designations: Some assets, like retirement accounts or life insurance policies, allow you to designate beneficiaries. If you haven't named beneficiaries for your home (e.g., through a Transfer on Death Deed or Beneficiary Deed), it most likely will have to go through probate.
No Transfer-on-Death (TOD) Deed: In some states, you can use a Transfer-on-Death Deed , which is also called a Lady Bird Deed or Beneficiary Deed to name a beneficiary for your home. This allows the property to transfer directly to the beneficiary without probate.

During probate, the court oversees the process of paying off debts and taxes and distributing assets to the rightful beneficiaries. The process can be time-consuming, costly, and subject to public record, which is why many people opt for estate planning strategies like living trusts, to avoid probate and ensure a smoother transfer of their assets to their loved ones.

It's important to consult with an estate planning attorney to determine the best strategy for your specific situation and to ensure your wishes are carried out efficiently and effectively after your passing. Please reach out to us at Ledbetter Law Group, if we can help you be better prepared for the future.

After Graduating High School - The Importance of Advanced Directives

Fri, 14 Jul 2023 16:03:11 +0000

By Callie W. Cowan, Esq.

High school graduation marks an important milestone in life. As you embark on this new chapter filled with opportunities and independence, it's essential to consider important aspects of responsible adulthood, such as healthcare planning. One crucial component of healthcare planning is creating advanced directives.

Advanced directives are legal documents that allow you to outline your healthcare preferences and make important decisions about your medical care. As a recent graduate, you may be in the prime of your health and not immediately concerned about medical emergencies. However, unexpected situations can occur at any age, making it prudent to plan for the future. Advanced directives ensure that your healthcare choices align with your values and wishes, even if you are unable to communicate them later on.

By creating advanced directives, you are taking proactive steps to protect your autonomy and ensure that your medical treatment aligns with your personal beliefs. These documents grant you the power to make decisions about life-sustaining measures, end-of-life care, and other medical interventions. Additionally, advanced directives can provide clarity and alleviate potential conflicts among family members who may have different opinions about your healthcare decisions. Taking responsibility for your healthcare planning early on demonstrates maturity and foresight, giving you peace of mind and empowering you to maintain control over your own medical care.

In conclusion, as you transition into adulthood after graduation, it is crucial to consider all aspects of responsible living, including healthcare planning. Creating advanced directives allows you to assert your healthcare preferences and make decisions in advance, ensuring that your wishes are honored. Taking this important step early on not only protects your autonomy but also provides clarity for your loved ones and minimizes potential conflicts. By embracing this responsibility, you can face the future with confidence, knowing that your healthcare choices will be respected, no matter what circumstances arise.

Estate Planning for Unmarried Couples

Fri, 10 Feb 2023 20:52:36 +0000

By Steve W. Ledbetter, ESQ.

There are many reasons why a committed couple in a loving relationship might choose not to get married. We strongly recommend that unmarried couples consider the implications of Estate Planning to ensure that their wishes are fulfilled with regards to their testamentary documents. It is also important to consider fiduciary appointments for managing assets and health care in the event of incapacity.

We find it imperative that our clients have updated and state-specific (Florida) advanced directives in case of incapacity, including living will, designation of health care surrogate, HIPPA release, and durable power of attorney in addition to their testamentary documents like a last will and testament or revocable living trust. Here are some high-level notes on the foregoing documents that unmarried couples should consider:

Last Will & Testament - A legal document in which a person expresses their wishes as to how their assets (including property, cash, jewelry, and possessions) will be distributed upon their death. The testator names a personal representative to manage the estate. A Will does not prevent Probate.
Revocable Living Trust – Commonly used to avoid the court process of probate after death. A Revocable Living Trust is a testamentary document similar to a Last Will & Testament that allows you to specify how and to whom you would like your assets distributed. Having a trust can also enable you to avoid the extended delays in probate caused by a lengthy judicial process, the exorbitant costs associated with probate, and maintain a level of privacy for your family and beneficiaries.
Living Will - A legal document telling doctors and medical facilities the actions you want regarding artificially prolonging your life when you are in a terminal, vegetative, or end of life condition.
Health Care Surrogate – The tool by which you appoint an agent, called your “surrogate” to make medical decisions for you if you are unable. To avoid issues, it is wise to appoint multiple people, but often not at the same time.
Durable Power of Attorney – This is the legal document allowing you to appoint an agent to handle financial transactions, bill pay, contracts, real property, intangible property, and similar matters on your behalf. NOTE: there are specific legal procedures to revoke a Durable Power of Attorney; please call us to make changes properly – including recording in the public records and service via formal notice on the ex-agent.
Homestead Trust – A specific trust used to provide a mechanism for couples to provide for each other while simultaneously protecting the equity in a home for future distribution to their family or beneficiaries. This document also preserves the homestead qualities of real property, including the homestead property tax exemption and the protection from claims of creditors.
Designation of Agent for Disposition of Remains – Florida statue provides that the “next of kin” have authority over the remains of a decedent. If you want to appointment someone other than your child/sibling/parent/spouse, this document is the tool to accomplish your goals.
Designation of Preneed Guardian – An unmarried significant other has no rights – i.e., is not an “interested party” – in a guardianship proceeding. This document allows you to communicate with the courts, as needed, to indicate your preference for a guardian if future events indicate such a need.

New to Florida? It’s Time to Update Your Estate Plan

Wed, 04 Jan 2023 16:41:53 +0000

By Callie Cowan, Esq.

You’ve made it. You’re finally a Florida resident, enjoying the warmth & sunshine. It has undoubtedly taken a great deal of planning to get to this point, but there is one more piece of planning you may not have considered – your Estate Plan.

You may have a Will or Trust from your previous home state, but it’s important to know that laws regarding Estate Planning vary from state to state. Now that you’re a Floridian, it’s time to “Floridize” your Estate Plan, making sure it conforms to Florida law. This helps reduce confusion or complications when it comes time to use the documents upon your incapacity or passing.

Our Estate Planning Attorneys will meet with you to review your previous documents & advise as to how to make them conform to Florida law. Our office does this in a three-step process:

Initial Consultation: This is a time for you to meet with one of our Attorneys, learn about how Estate Planning works in Florida, & address your concerns regarding your Estate Plan.
Plan Review: Once your Florida Estate Plan has been designed, you will meet with the Attorney again to review the documents and asset alignment instructions to ensure they meet your expectations, accomplish your goals & provide you peace of mind.

Signing Ceremony: Your Estate Planning components will be prepared & ready for you to execute. Congratulations on completing this important part of making Florida home!

What is Probate?

Wed, 14 Dec 2022 15:11:22 +0000

By Carrie Smith, JD

At its most basic, probate is a court process that determines where the assets that were owned by the decedent, the legal term for the person who died, belong. A probate judge oversees the process making determinations based on direction given in a Will or in statute if no Will exists. If the decedent had a Will, that means that they died testate. If the decedent died without a Will, that means they died intestate.

Dying testate means the court has directions to follow to help determine:

Who should be appointed as Personal Representative (“Executor” in some states);
What assets the decedent may have owned; and
What the Decedent desired done with those assets (i.e., who gets what).

Dying intestate means that the assets owned by the Decedent are distributed pursuant to Florida Statute – the “laws of intestacy”. Often this is not how the Decedent wanted their assets divided. For example, in cases where the decedent was married at the time of their death:

A spouse takes the entire intestate estate if there are no surviving descendants of the decedent.
If the decedent had children who are also children of the spouse, then the spouse takes the entire estate.
If the decedent had a spouse, but also had children that are not related the spouse by blood, then the spouse takes half the estate, and the children take the other half (equally divided by the number of children).

Florida law requires that the personal representative of an estate hire an attorney to provide counsel and guide them through the probate process. Attorneys’ fees for probate are payable directly from the estate; therefore, the personal representative typically only pays out-of-pocket until there are funds in the estate account to reimburse for such expenses.

At Ledbetter Law Group, we help clients through the probate process every day. Similarly, we assist with the post-death administration of a decedent’s trust (which also has statutory requirements – check back for future blog posts on this subject ?). If you have just lost a loved one & do not know where to start, call us – we are happy to help you navigate the Florida Probate process!

So, You Want to Start a Business?

Thu, 01 Feb 2024 16:15:59 +0000

By Steve W. Ledbetter, Esq.

You have a great idea, and your entrepreneurial mind is flowing. How Exciting! Now you want to form a business entity (e.g., Florida corporation or limited liability company) to properly manage your business and insulate from liability. Here are some ideas to think about in the process:

Pick A Name. Your business name is important because it often communicates to the world what your business is all about. Alternatively, it might be “catchy” and easy to remember. Regardless, the name needs to be available and sufficiently unique and different from existing businesses already registered in the State of Florida. Be flexible and choose a name that fits your vision and is available.

Legal Structure. Whether you want to be a corporation, limited liability company, partnership, or sole proprietor, each type of entity has ramifications on your taxes, distributions, management structure, and liability. Here is where a good attorney can provide counsel on the best option to meet your goals.

Operating Documents. During the creation and formation of your entity you will have to give thought to the organizational setup, structure, and management of your entity. This requires preparation and organization, as well as thinking about your business purpose. It is advisable to be thoughtful in these documents, considering potential pitfalls you might encounter. For example, what if you and your business partner are at an impasse? Did you include Buy-Sell provisions that will allow for a harmonious “corporate divorce”? How about the valuation of the business?

Filing With the State. While the internet has provided “access”, there’s still a significant difference in “filing” versus “filing correctly”. SPAM ALERT! Be aware there are numerous unscrupulous businesses that will reach out to you offering services and posing as a government agency – read carefully mail, email, and even text messages you receive purporting to be from the Secretary of State. In most cases, it’s just SPAM looking to prey on ignorance, and we get dozens of calls from non-clients asking for help with this.

After the Legal Entity is Created. Once the foregoing is complete, you can start doing all the things that enable you to be in business. We often assist clients in obtaining an EIN from the IRS, filing forms to choose between partnership or S Corp taxation status, registering with the Department of Revenue for the submittal of sales and use tax, among many things. Also, remember to review City, County, and State requirements for your specific business. Some types require a licensure (e.g., lawyers, realtors, contractors). Prepare your standard contracts and forms you may need in the course of running your business. Consider the insurance requirements (or best practices) for your business. Finally, if you are going to lease property, review all local building and zoning codes and restrictions when considering different locations to open your business and have the lease agreement reviewed by your attorney.

Creating a new business is an exciting endeavor! At Ledbetter Law Group…

Rights of Spouse – Not Always What You’d Expect

Wed, 30 Nov 2022 16:48:22 +0000

By Steve W. Ledbetter, ESQ.

In the context of Estate Planning, marriage can add many elements of complexity. In fact, in our law practice it is quite common to get to educate new clients on how their recent nuptials may add multiple levels of complexity to their estate plan.

Rights of Spouses in the Estates of Decedents. While a short article like this is not the appropriate forum for an in depth look at any legal subject, there are 3 “rights” we typically talk about with clients: (1) Homestead, (2) Elective Share, (3) Tangible Personal Property.

Homestead is a concept created by our Florida Constitution. While many think merely about the homestead property tax exemption created by Florida statutes, our constitution has restraints on alienation – in short, if you are married or have minor children at the time of your death, even if you direct otherwise, your homestead real property goes to your surviving spouse and minor children (in one form or another, the details of which are best suited for a more detailed conversation).
Elective Share is a statutory right of a surviving spouse to “elect” to take a 30% interest in the assets of the decedent, regardless of what the decedent’s Will or Trust provides. Effectively this serves as a minimum, although there are specific types of Trust clauses we can implement to minimize the effects of Elective Share.
Tangible Personal Property is your “stuff” – your car, boat, jewelry, golf clubs, art, rocking chair, baseball card collection, etc. It even includes your pets. A surviving spouse is entitled to the first $20,000.00 worth of tangible personal property plus a car.

As a final note, the foregoing applies to estates when the decedent did update their estate plan after their marriage. If the decedent failed to update their estate plan after marriage, then a surviving spouse is entitled to a “pretermitted share” of one-half.

How to avoid these issues? Go ahead and get married, but first consider the benefits of a prenuptial agreement. While many people associate such legal agreements with planning for divorce, they are extremely important in the context of estate planning too. With a simple waiver of the foregoing rights, you may make whatever plans, gifts, and bequests you desire.

Regardless, we are often able to provide counsel on how best to avoid the pitfalls and unexpected effects of the application of these laws to our clients, but only if they plan ahead.

Don't DIY Your Estate Plan

Wed, 30 Nov 2022 16:48:36 +0000

By Callie Cowan, ESQ.

Whether it's Fixer Upper or This Old House, we've all seen projects go awry when homeowners try to "DIY" certain things that should have been left to the professionals.

Unfortunately, we often see people try to take a "do it yourself" approach when it comes to their estate plan and the results can be just as disastrous.

Using an online program to draft your will and trust might seem appealing to some, but there are many pitfalls that could cause problems for those administering your estate when you're gone. Here are a few concerns that we as professional estate planning attorneys can help address:

Probate Avoidance: Many of our clients wish for their estate to avoid probate upon their passing, and simply having a Will does not accomplish this goal. We have several strategies that can help provide ease for your heirs at the time of your passing by avoiding the probate process.
Asset Alignment: This is where many "DIY" plans go wrong. Simply creating a Will or Trust is not the end goal - asset alignment is an important step to make sure that your wishes are carried out. We can provide counsel regarding this part of the process.
Peace of Mind: When you "DIY" your estate plan, you have no support system for counsel when life inevitably takes unexpected turn. Our office is here for our clients as they navigate life changes that may affect their estate plan. We can provide peace of mind that your plan is sound and will work the way you want it to when the time comes.

Some aspects of life are simply too important for a "DIY" approach, and your estate plan is one of them. Trust us as the professionals to create a comprehensive plan that will provide you peace of mind knowing that things have been done correctly.