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ADOPTION SERIES – PART 3: HOW DOES AN ADOPTED PERSON INHERIT?

Friday, August 22nd, 2014 by

We recently have written about how adopting an adult can allow an unrelated person to share in an inheritance (unless it is done with improper motives).  But how, and from whom, do adopted persons (whether they are adults or children) inherit under Florida law?

The general rule is that a legally adopted person is treated as if he were the natural child of his adoptive parent(s).  If an adoptive parent dies without a will or trust, the adopted child can inherit just like a biological child would.  For example, if Arthur dies leaving one adopted child, Bill, and two natural children, Cindy and Dave, Florida law provides that Bill, Cindy, and Dave would each get an equal share of Arthur’s probate estate.

A legally adopted person (again, whatever his age at adoption) can also inherit from any other blood relatives of his adoptive parent.  That means that Bill would be eligible to share equally with Cindy and Dave upon the death of Arthur’s parents, siblings, and other relatives.

As you can see, the Florida legislature has done its best to give adopted children the same rights as natural children and assist with a seamless transition into their new families.  However, there is a catch.  With a few exceptions, adoption cuts the ties between the adoptee and their biological family so that neither can inherit from the other.  So, Bill would not be an heir of his biological mother or father or any of their relatives.

It is important to remember that the rules discussed above only apply when the person who passed away did not have a valid estate plan and his property must pass according to the state’s will (intestacy).  If you would like to provide for someone who has been adopted into or out of your family, you should be able to override the state’s will by making your own will or trust.  To learn more about the planning options available in Florida, you are welcome to attend one of our monthly “Truth About Estate Planning” workshops.

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PRECATORY LANGUAGE: THE DANGER OF UNLIMITED DISCRETION

Monday, August 11th, 2014 by

Wording in a will or trust which allows a named person to decide where your property and money should go after your death (instead of you making that decision ahead of time) is called “precatory” language.  An example is the recent Florida case of Cody v. Cody, where Earler Martin’s will left his home, and the rest of his estate, to one of his three stepsons, “to divide between [himself and his brothers], as he sees fit and proper.”  Earler’s wish was probably that the inheriting stepson, Buford, divide up the home and other property equally between himself and his brothers.  However, the words he chose to express that desire defeated that intent.

Buford’s brothers challenged the way Buford was handling the estate, asserting that there should be a division into three equal shares.  The court disagreed, stating that the language in Earler’s will left it entirely up to Buford to decide how to divide Earler’s property, including the discretion to make no division and keep all the property himself.

The bottom line is that wills and trusts must be carefully drafted to ensure that they carry out your wishes.  You can allow your trusted helpers some flexibility and discretion in taking care of your loved ones after you are gone, but it must be done the right way.  If you are interested in learning more about safely building flexibility into your estate plan, you are welcome to attend one of our monthly “Truth About Estate Planning” workshops.

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UTMA AND UGMA ACCOUNTS: SMART SAVINGS PLAN OR TRAP FOR THE UNWARY?

Tuesday, July 29th, 2014 by

When working with clients who have minor children, we spend a lot of time discussing the kids: their individual personalities, the values the clients are trying to instill, and concerns for their future. We do our best to craft an estate plan that will secure the children’s financial future. This usually involves planning both from a financial perspective (making sure there is enough money for future expenses, especially if something happened to the clients), with the help of the clients’ financial advisors, and from a legal standpoint (ensuring the children will have access to any money when and how the clients judge best).

We have seen many clients who used accounts set up under the Uniform Transfers to Minors Act, called “UTMA accounts” (also known as “UGMA accounts” under a prior version of the law), to save for their kids’ or grandkids’ future. These accounts allow an adult to immediately transfer money to a minor (a child under the age of 18), but retain control over the money until the child reaches a specified age (18 or 21, depending on the account). The problem is that, when the child reaches the stated age, the money must be turned over to him or her. All control by the parent is lost.

As you might imagine, not every 18- or 21-year-old is ready to responsibly manage thousands of dollars. In fact, many of our clients believe that the youngest age at which their children would be ready for that task is 25, and some wait as late as 35. Unfortunately, we have recently seen situations where a parent was forced, kicking and screaming, to hand over sizable UTMA or UGMA accounts to an irresponsible child.

It is always devastating to see a plan fail because the implications were not fully understood at the time it was made. Developing your own planning “team” of financial, tax, and estate planning professionals, who will work together to meet your goals, should allow you to avoid such a failure. Additionally, with proper trust planning, parents can maintain control over how a child may spend money for a much longer time, even for the life of the child, if desired. To learn more about protecting your children from themselves and others until they become responsible adults, attend one of our monthly “Truth About Estate Planning” workshops.

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SENIOR DRIVING: FINDING A BALANCE BETWEEN INDEPENDENCE AND SAFETY

Friday, July 11th, 2014 by

The number of seniors (Americans aged 65 or older) who drive is on the rise.  In fact, from 1999 to 2009, statistics show a 20% increase in senior drivers.  The AAA Foundation for Traffic Safety predicts that this trend will continue; seniors will make up 25% of the drivers on the road by 2025 and there will be at least 60 million senior drivers by 2030.

Although we find these figures encouraging as advocates for maintaining independence as long as possible, other senior driving statistics give us pause.  For example, 95% of senior drivers take medications that could impair their driving.  Yet, alarmingly, less than 33% of them admit to awareness of the potential impact of their medications.  Moreover, fatality rates for older drivers are 17 times higher than those for 25- to 64-year-old drivers due to greater physical fragility.

Despite the real dangers of senior driving illuminated by these numbers, it is possible to address safety concerns while maintaining (or allowing your senior loved one to maintain) control and independence.  There are many great resources to help you strike this balance.  AAA has created a website with tools to help seniors assess their ability to drive, understand what might impair driving performance, and learn how to drive safer.  Locally, there are several driving improvement schools for those who are still able.  When the time comes to stop driving, many alternative transportation options are available from the local government, senior living communities, and in-home care providers.  Please feel free to contact us for more information on local transportation resources or to attend one of our monthly Truth About Estate Planning workshops to learn more about maintaining control as you age.

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Categories : Elder law, Newsletter
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PLANNING FOR YOUNG ADULT “CHILDREN”: WHAT PARENTS NEED TO KNOW

Friday, June 27th, 2014 by

Now that graduation season is behind us, we have some important information for parents of young adults who are going off to college or starting their first job.  Once your child turns 18, he or she is automatically an “adult” in the eyes of the law, no matter how immature or inexperienced.  Being an adult comes with the right to manage your assets (including opening credit cards and taking out loans) and make decisions about your life (such as where to live, who to socialize with, and whether you want medical treatment).  As you might imagine, this silent leap into full adulthood can cause some nasty surprises down the road. 

For example, parents have no legal right to medical information for an adult child.  That means that your child’s doctors don’t have to talk to you, even in an emergency situation.  The same goes for anyone that your child signed a contract with, including for a credit card or an apartment lease (unless you are a co-signer).

Fortunately, your child can give you continued access to medical and financial information, and even some decision-making authority, with a few simple documents:

1.       a Designation of Health Care Surrogate naming someone (usually one or both parents) to make medical decisions if he is not able;

2.       a HIPAA Release designating any persons who he would like to have access to his medical records and doctors; and

3.       a Power of Attorney, if he would like to name a trusted person (again usually one or both parents) to have access to and power over his finances.

We are currently offering a “back to school” special: we will provide the documents listed above for a flat fee of $295 for the first child and $195 for each additional child in the same family.  Call us today to get in before summer is over!

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(ADULT) ADOPTION SERIES – PART 2: MAN TRIES TO ADOPT HIS GIRLFRIEND!

Friday, June 13th, 2014 by

In the first part of this series, we discussed how failing to address the issue of adult adoption in your estate plan can cause unnecessary litigation after your death, even when there is nothing sinister about the adoption.  In this article, we will discuss what happened to a man who attempted to use adult adoption to preserve his lavish lifestyle at the expense of his biological children.

John Goodman, the subject of the recent Florida case of Goodman v. Goodman, had gone from a wealthy polo tycoon to a man with some serious problems.  He was awaiting trial for DUI manslaughter after causing a fatal car crash, facing the possibility of serving years in prison.  Mr. Goodman was also in the midst of a civil lawsuit brought by the parents of the 23-year-old man he killed, who were seeking millions of dollars in damages.  In a scheme to ensure his continued access to cash despite his legal issues, Mr. Goodman adopted his forty-two year old girlfriend so that she would become a beneficiary of the multimillion-dollar irrevocable (and therefore theoretically protected from creditors) trust he set up years earlier for any children he might have.

The adoption of your adult “significant other” is technically legal under Florida law.  As discussed in our previous article, Florida statutes provide that “[a]ny person, a minor or an adult, may be adopted.”  However, Mr. Goodman’s bad intentions caused him to run afoul of the law.

Mr. Goodman’s critical mistake was that, in furtherance of his scheme, he kept the adoption a secret until the time to challenge it had passed.  This violated a Florida law which required him to give proper notice to anyone who would be financially affected by the adoption, such as his two biological children, who now would have to share the assets of the irrevocable trust with the adopted girlfriend.  The court ruled that this intentional failure to give notice was enough to make the adoption void, both in and of itself and because it amounted to a fraud on the court.

Mr. Goodman’s attempt to adopt his girlfriend not only failed to obtain the result he desired, it also resulted in expensive and lengthy litigation.  Unfortunately, many people facing catastrophic creditors behave like Mr. Goodman and end up committing fraud to try to save or hide their money.  If you would like to learn how you can legitimately protect your loved ones from unexpected creditors through proper planning, you are invited to attend one of our monthly “Truth About Estate Planning” workshops.

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(ADULT) ADOPTION SERIES – PART 1

Friday, May 30th, 2014 by

When people think about adoption, images of a young child in need often come to mind. Yet, Florida law contemplates a broader vision. Under Florida Statute § 63.042(1) “[a]ny person, a minor or an adult, may be adopted.” The recent Florida case Dennis v. Kline demonstrates the complications that may arise when an estate plan allows adopted children to become beneficiaries, but fails to address whether “adopted children” includes adopted adults.

Thomas Dennis initially created a trust in 1989 to benefit his five children and their descendants.  Unfortunately, two of Mr. Dennis’ children, a son and a daughter, were unable to have children of their own.  After the son adopted an infant, Mr. Dennis amended his trust to specifically include “legally adopted persons” as descendants who would receive benefits under the trust.

Many years later and more than a decade after Mr. Dennis’ death, his childless daughter, Dianna, adopted her “godchild”: a twenty-seven-year-old woman whose (still living) biological parents were Dianna’s close friends.  Dianna’s objective in adopting the godchild was for her to benefit under Mr. Dennis’ trust.

Harriet, another of Mr. Dennis’ daughters, objected to allowing the godchild to be a beneficiary because, despite the trust language including “adopted persons,” she felt her father never intended the trust to benefit adopted adults – only adopted children, such as the infant adopted by her brother.  A contentious lawsuit ensued over how Mr. Dennis would have felt about adult adoption, a topic he never discussed with his children nor, more importantly, the lawyer who changed his trust.

In the end, the court held that the godchild was eligible to be a beneficiary of the trust.  The court reasoned that, because Florida law expressly allowed adult adoption at the time Mr. Dennis amended his trust, we can all assume he knew the law of Florida and intended to allow adult adoption, since he did not specify otherwise.  (I wonder what Mr. Dennis would have to say about that if he was still around!)

This case shows how the issue of adult adoption can cause costly and hurtful litigation between family members if you leave the issue unaddressed in your estate plan, as Mr. Dennis did.  To learn more about preventing unnecessary litigation over your “true wishes” through comprehensive estate planning, you are welcome to attend one of our monthly “Truth About Estate Planning” workshops.

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FAILURE TO UPDATE YOUR ESTATE PLAN: THE UNEXPECTED BLESSING

Friday, May 16th, 2014 by

Sometimes blessings occur when we least expect them, but a lack of planning for such blessings can have unpleasant results. In the recent case of Maher v. Iglikova, a Florida court dealt with the ramifications of an unexpected blessing: the discovery of a previously unknown child.

Mr. Maher executed a will in 2001, but unfortunately disappeared in 2004 and was declared dead some years later. At the time Mr. Maher executed his will, he thought he had one child – a son. Yet, about one year after executing his will, Mr. Maher learned he had another child—a daughter – who was born in 2000. Mr. Maher confirmed that he was the girl’s father and then financially supported her.  But, he never updated his will.  So, after Mr. Maher’s death, a question arose: how does Florida law treat a child born before a will was signed but unknown, until afterwards? Would Florida law provide a way for the daughter to be included in the will?

The Florida legislature has tried to help people take care of children who come into their lives after a will is signed.  Florida law provides that a “pretermitted child”, a child either “born” or “adopted” after a will is made, inherits not under the will but under a statute that entitles the child to share equally with any other children.  Because the daughter was born before the will was made, she argued that her father’s acknowledgment of paternity and financial support legally constituted an “adoption” after the will was made, thus making her a pretermitted child entitled to share equally with the son under the statute.

Unfortunately for the daughter, the Court held that she was not a pretermitted child because Mr. Maher’s acknowledgment, financial support and even a court ruling changing her birth certificate to show Mr. Maher as her father did not amount to “adoption.”  Thus, the daughter lost her claim to share equally in the estate. Worse, the daughter and son suffered collateral damages. Because Mr. Maher failed to update his will once he discovered his daughter, he left open the question of how much inheritance he intended her to have. Thus, the son and daughter ended up suing each other to resolve the question. (And the case went to trial and through an appeal—both costly prospects.)

Mr. Maher could have prevented the wasting of his estate assets and family friction merely by updating his will to clarify his wishes. If you would like to learn more about how we help our clients create estate plans, and  keep them updated, you are welcome to attend one of our monthly “Truth About Estate Planning” workshops. Because adoptions can create different issues in estate planning, we will begin a series of articles on adoptions in our next newsletter.

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THE OTHER PERSONAL REPRESENTATIVE:GRANTING ACCESS TO YOUR HEALTH INFORMATION

Friday, May 2nd, 2014 by

You may know that one of the necessary steps in estate planning is to name a “personal representative” (Florida’s term for “executor”) to settle your affairs after you pass away.  But did you know that you should also name your trusted family members and other helpers as your “personal representatives” under the Health Insurance Portability and Accountability Act of 1996 (HIPAA)?

HIPAA was put into place to protect the personal health information given to and generated by health care professionals.  It is the reason that you have to sign all those forms at the doctor’s office about the privacy of your medical records and who may have access to them.  Although we agree that keeping our medical information private is an important goal, we also often see unintended consequences of HIPAA.

For example, one of our team members has a sister who has become very ill.  Her physical state has rendered her incapable of making the decisions and taking the actions necessary to care for herself.  Her family wants to help, but unfortunately she did not authorize any of them to access her health information and now is in no condition to share the details or grant access.  This means that the family cannot talk to her doctors and therefore does not know enough about her illness or treatment needs to know how to help her.

As we often say, this stressful situation could have been avoided with proper planning.  HIPAA allows you to give your loved ones access to all of your doctors, medical records, and other health information when they need it by appointing them as your “personal representatives” in writing.  We believe that everyone should have this document as a lifetime planning tool and include it in all of our flat-fee will and trust packages.  If you would like to learn more about comprehensive planning, you are welcome to attend one of our monthly Truth About Estate Planning workshops.

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RELATIONSHIP SERIES – PART 3

Friday, April 18th, 2014 by

Our Relationships Series previously has covered the unique estate planning challenges faced by blended families and by same-sex and other unmarried couples.  Today we will address another group that is in dire need of proper planning: families with children under the age of 18.

In Florida, as in other states, the law recognizes children as vulnerable members of society and therefore limits their legal rights and responsibilities until they reach the age of “majority,” or adulthood, on their 18th birthday.  For example, a child who is not yet 18, called a “minor” in legalese, cannot own property or sign contracts.  Instead, he must rely on his parent(s) to make decisions regarding his person (i.e. where he will live and go to school, what medical treatment he will receive) and his property (i.e. what to do with any assets he may receive).

As parents, we exercise these rights as a matter of course while raising our children.  We are able to do so without any legal process or reporting because we are the “natural guardians” of our minor kids.  But what would happen to your minor child if you were no longer alive or otherwise unable to take care of him?

When there is no natural guardian available, a court must authorize someone (a “guardian”) to step into your shoes and make decisions about your child’s person and property until he turns 18.  If you do not plan properly, the court will decide who the guardian will be based on who steps forward, and who the law prefers, rather than your wishes.

Even if you do have a plan that expresses who you want to be guardian(s) of your minor child, it may not fully protect him.  In the short term, your sudden unavailability, even if temporary (i.e. unconscious after a car accident), may lead to your child being taken into foster care.  In the long term, your plan may result in your child getting complete freedom and a big check at the age of 18 rather than receiving continued guidance.

If you would like to learn more about planning to protect your family, you are welcome to attend one of our monthly Truth About Estate Planning workshops.  The October 7th workshop will be specifically tailored for families with minor children.

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